FEDERAL COURT OF AUSTRALIA
Clarke v Nationwide News Pty Ltd trading as The Sunday Times [2012] FCA 307
IN THE FEDERAL COURT OF AUSTRALIA | |
| Applicant | |
AND: | NATIONWIDE NEWS PTY LTD TRADING AS THE SUNDAY TIMES Respondent |
DATE OF ORDER: | |
WHERE MADE: |
THE COURT ORDERS THAT:
1. The Court will hear from the parties as to the final terms of the orders to be made and on the question of pre-judgment interest and costs at 9.15am on Wednesday 4 April 2012.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
WESTERN AUSTRALIA DISTRICT REGISTRY | |
GENERAL DIVISION | WAD 195 of 2010 |
BETWEEN: | NATALIE CLARKE Applicant
|
AND: | NATIONWIDE NEWS PTY LTD TRADING AS THE SUNDAY TIMES Respondent
|
JUDGE: | BARKER J |
DATE: | 27 MARCH 2012 |
PLACE: | PERTH |
REASONS FOR JUDGMENT
claim of racial discrimination
1 This case concerns the publication of readers’ comments on The Sunday Times’ perthnow.com.au website following the report in the newspaper of a motor vehicle accident on the night of Friday 27 June 2008, in which four of the five young male occupants of the vehicle were killed.
2 The applicant, who is an Aboriginal Australian, is the mother of three of the deceased occupants who, at the time of the accident, were boys aged 15, 11 and 10. Their cousin, who was aged 17 at the time of the accident, was the other deceased occupant. A fifth, teenage boy survived the accident.
3 The applicant complains that by the publication of a number of the readers’ comments the respondent contravened s 18C of the Racial Discrimination Act 1975 (Cth) (RD Act) that proscribes offensive behaviour because of race.
4 The applicant initially filed a complaint about unlawful discrimination because of race with the predecessor of the Australian Human Rights Commission (AHRC), pursuant to the RD Act and what is now called the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). On 20 January 2010, the AHRC terminated the complaint by notice of termination issued under s 46PH(2) of the AHRC Act on the ground that there was no reasonable prospect of the matter being settled by conciliation. The applicant then filed an application alleging unlawful discrimination under s 46PO which now comes before this Court for determination.
5 In this proceeding, the respondent admits the act or acts of publication alleged by the applicant but denies that any of them contravened the RD Act.
offensive behaviour because of race unlawful
6 Section 18C of the RD Act makes unlawful offensive behaviour because of race, colour or national or ethnic origin. Insofar as it is relevant to this proceeding, s 18C provides:
18C Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
…
7 As to the reason for which “the act is done”, to which s 18C(1)(b) refers, s 18B provides that:
18B Reason for doing an act
If:
(a) an act is done for 2 or more reasons; and
(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
8 The operation of s 18B still leaves for determination, in any case where breach of s 18C is alleged, the question whether a reason for the doing of an act complained of was the race, colour or national or ethnic origin of a person.
9 Section 18D of the RD Act provides exemptions to s 18C, in the following terms:
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
issues
10 The issues in this proceeding are:
(1) whether the respondent, by any of the particular acts of publication complained of by the applicant, contravened s 18C of the RD Act, and in particular whether any of those publications:
(a) was reasonably likely, in all the circumstances, to offend, insult, or humiliate the applicant; and (if so)
(b) was done because of the race of the applicant, namely, the Aboriginal race.
(2) whether, in the case of any apparent contravention of s 18C, the respondent’s act is exempt under s 18D.
11 The respondent also challenges the constitutional validity of s 18C of the RD Act, but formally “reserves” its position on that issue. As a result, the Court assumes the constitutional validity of s 18C in this proceeding.
the sunday times article
12 The article in relation to which the respondent invited readers’ comments was published in The Sunday Times (which circulates throughout Western Australia) on Sunday 29 June 2008. It reported the motor vehicle accident of the Friday night 27 June 2008 on the front page under the banner heading, “OUR WASTED YOUTH”, above which in smaller print the following words appeared: “FOUR BOYS – 10, 11, 15, 17. ONE STOLEN CAR. ALL DEAD. THE TRAGEDY THAT HAS DIVIDED WA”. Beneath the banner heading appeared a reference to “PAGE 7”. All these words appeared over a graphic that included a photograph of a badly impacted vehicle and inset photographs of three boys, who were then identified in smaller print at the bottom of the graphic by their names and ages. The three boys were the applicant’s children.
13 At page 7 the detailed story appeared under the heading, “Tragedy of 4 young lives thrown away”. Above the page 7 story, at the top of the page, the respondent published four comments, each apparently having been received on the newspaper’s website, together with an invitation to readers of the newspaper to “Tell us your views” by sending them to the website.
14 The four comments published at the top of page 7 ranged from the reproving to the sympathetic. In the order in which they appeared across the page, they were as follows:
• No sympathy here … if you’ve ever been broken into, or had your car stolen, then these kids got what was coming to them. To all you do-gooders out there saying, ‘Oh, they were just kids’, how would you feel if they crashed into your house and killed a family member? I bet you would change sides pretty quick.
• How heartless has the public become? They were naughty for stealing but to pay with their lives is tragic. Children naturally get up to mischief. Deepest sympathy to their families. All children are good at heart.
• To some of you heartless bastards out there … the mother of these kids is wonderful. Those boys were very well looked after. Was she drunk? NO. Is she a druggie? NO. She is a single mum who does nothing more than worry sick for my nephews. THEY WERE BLOODY CHILDREN. Such beautiful boys and talented footballers.
• Four dead, all breaking the law at the time. Yes, it is a big price to pay. And as for the people who actually owned the car, what do they drive NOW.
15 In the page 7 story in the third paragraph it was noted that:
Hundreds of readers posted comments on perthnow.com.au following the deaths. The crash divided opinions, with many people claiming the four boys deserved little sympathy because they were in a stolen car. Others took a more compassionate view.
16 This was followed by:
The boys’ teachers and loved ones said yesterday they were not bad boys and the waste of their promising lives needed to be a jarring wake-up call.
17 The applicant was then mentioned in the next paragraph and how she had “choked back tears as she told The Sunday Times how much she would miss her ‘little boys’”.
further publications and readers’ comments
18 On 3 July 2008, an article was published online on the perthnow.com.au website headed “Pinjarra crash mum too distressed to speak”. This online article reported that the applicant was due to make a statement outside the Mandurah Police Station but cancelled at the last minute as she was too distraught to speak and not physically able to stand. Following some further reportage concerning what the applicant had said about her sons, the article went on to state a number of other things, including:
“Earlier this week Pinjarra police confirmed that a stolen car was bogged and torched on Morrell Rd in Pinjarra a short distance from where the boys stole a Holden Commodore involved in the death crash”.
“Sergeant Darrell Phillips-Jones said the police were investigating whether the boys were responsible for both thefts. ‘They [the boys] would be people of interest to us’, he said”.
“The deaths have sparked a massive community debate about parental control but Senior Sergeant Jeff Beaman said now was not the right time to point the finger of blame”.
“Supporters of the family rallied yesterday to support the grief-stricken mother while police spoke of the ongoing problem of young Aboriginal children in the area being attracted to crime.”
“Peel Supt Dave Parkinson said that generally the problem was due to lack of proper parental supervision”.
“Poll: who’s to blame for out of control kids”.
19 On 5 July 2008, a further article was published online headed “Heartbreak for crash victim’s girl”. This article reported how Kayla Watkins, the former girlfriend of the deceased 17 year old, Quinton Humes, had been emotionally affected by his death. Between 5 July 2008 and 14 October 2008 the respondent posted 55 comments relating to this article. Some of the 55 comments, or portions of them are referred to by the applicant in this proceeding.
20 On 6 July 2008, a further article was published in The Sunday Times at pages 66 and 67 in which a selection of comments in “Support” and recording “Blame” were republished from the perthnow website, together with a contribution from Dennis Eggington, CEO of the Aboriginal Legal Service (WA), under the heading “Young need space”, and a contribution headed “A good family” from Sen-Sgt Jeff Beaman, Officer in Charge of Mandurah Police. Sen-Sgt Beaman was at pains to point out that young people from both Aboriginal families and affluent white families offend and provide parental challenges.
21 Also on 6 July 2008, the article concerning the former girlfriend of Quinton Humes that was published online on 5 July 2008 was published in the newspaper.
22 On 11 July 2008, another article was published online headed “Mourners farewell ‘loving, caring’ Quinton Humes”, which reported on his funeral service at St John’s Anglican Church, Pinjarra, which was conducted by the Reverend Sealin Garlett. This online article also reported other matters, including:
“Earlier, Reverend Garlett said: ‘This has had a deep impact on the community. It is like it has opened a wound again in the Aboriginal community. It is like we are saying, ‘Here we are going to see again the neglectful way that Aboriginal people have with their children’”.
“Meanwhile, a low-key contingent of more than 60 police, including officers from Pinjarra, Mandurah and the Traffic Enforcement Group, had been deployed to the funeral, amid fears of a possible grief-stricken backlash at Quinton’s family”.
“However, the sombre service was conducted without incident”.
“After Quinton’s funeral at St John’s Anglican Church in Pinjarra, a burial service will be at Pinjarra Cemetery”.
“Pinjarra officer-in-charge Sergeant Darrell Phillips-Jones said police would monitor the funeral to ensure any tensions did not boil over”.
Between 11 July 2008 and 12 July 2008, the respondent posted 114 comments relating to this article, some of which are the subject of complaint by the applicant in this proceeding.
23 On 17 July 2008, a further article was published online headed “Community mourns three brothers killed in crash”. This report on the funeral for the applicant’s three boys held that day. The article appears also to have been published online under the heading “500 mourn crash boys”. Between 17 July 2008 and 8 September 2008, the respondent posted 179 comments relating to this latter story, one of which is the subject of complaint by the applicant in this proceeding.
applicant’s case as pleaded and finally advanced
24 The applicant pleads in [7.1]-[7.4] of the amended statement of claim (statement of claim) in this proceeding (which is admitted by the respondent) that on the perthnow website the respondent:
(1) Noted that “police spoke of the ongoing problem of young Aboriginal people being attracted to crime”.
(2) Reported that “Peel Supt Dave Parkinson said that generally the problem was lack of proper parental supervision”.
(3) Announced a “Poll: who’s to blame for out of control kids”.
(4) Quoted Reverend Garlett as saying: “This has had a deep impact on the community. It is like it has opened up a wound again in the Aboriginal community. It is like we are saying, ‘Here we are going to see again the neglectful way that Aboriginal people have with their children’”.
25 The applicant further pleads in [7.5] of the statement of claim (which is admitted by the respondent), that the respondent published the following readers’ comments (as numbered and on the dates and times shown):
(a) ‘...if these young people had not been killed in the course of their criminal activities they would have continued to steal cars and putting the lives of innocent law abiding citizens at risk... Will the law abiding public be given important information re the criminal history of these families as they are the ones footing the huge bill for this matter.’ [Comment 108 of 114 posted by John of 8:27am July 12, 2008];
(b) ‘I suggest to the Sunday Times reporters that they look at the criminal history of these boys. They were certainly not little goodie two shoes. Talk to the local police. They knew all about them.’ [Comment 104 of 114 posted by Norm of look a bit deeper 5:55am July 12, 2008]
(c) ‘...until these young people gain the respect and gratitude of all races then they will continually be thought of as violent and criminals, can’t keep using the same excuse forever, everyone else has to gain the publics [sic] respect, why in the hell should that exclude aboriginals?’ [Comment 102 of 114 posted by annoyed of perth 1”50am July 12, 2008]
(d) ‘...now ‘the elders grieve’. Where were they when the little kids needed supervision late at night’ RIP criminal and poor little boys.’ [Comment 91 of 114 posted by Marion of Perth 5:37pm July 11, 2008]
(e) ‘...no one has had a fairer go and more encouragement plus billions of dollars than the aboriginal people of Australia. Apparently in the main to little avail. Life is simple, behave yourself, obey the law, look after your children and partner, create a domestic life conducive to raising kids and people will give you the respect and admiration you deserve. Behave like morons and the community will react as it has over this case.’ [Comment 84 of 114 posted by Harry of 4;04pm July 11, 2008]
(f) ‘...criminal trash like these young boys’ [Comment 66 of 114 posted by Kylie of 1:59pm July 11, 2008]
(g) ‘Don’t get me wrong but does this blog and previous blogs on this subject just show how little the aboriginal community in perth are respected. I have to admit I hold very little respect for them, due to the multitude of times they are in the press committing crimes and causing general upset. I am aware of very good people who do so much for these communities, but unfortunately they are totally outnumbered, and the people of perth are fed up of the crime, the drunked [sic] and just general anti social behaviour of them. This blog is basically an outcry from society for the aboriginal community to pull their heads in and sort out your futures, and do it now.’ [Comment 53 of 114 posted by Dean of Perth 12:18pm July 11, 2008]
(h) ‘Let em [sic] all fight and kill each other i [sic] say!’ [Comment 51 of 114 posted by Unreal! Of Perth 12:09pm July 11, 2008]
(i) ‘...not only are we paying for the police protection, we are also more than likely paying to bury the children (I bet the mother won’t be forced to pick up the tab like everyone else). I’m all for equality ... but stop pulling the race card, everyone is aware of the financial benefits of being an indigenous Australian [sic]. You want respect ... time to earn it (by behaving appropriately at a funeral). You have no one to blame but yourselves for the deaths, so stop misdirecting your anger and actually learn from your mistakes.’ [Comment 46 of 114 posted by Brett on No Special Treatment 11:41 July 11, 2008]
(j) ‘...I doubt the families will ever be able to behave themselves at the funeral’ [Comment 36 of 114 posted by John of 10.52am July 11, 2008]
(k) ‘Why on earth should all the law abiding citizens out there pay for protection of criminals and those that condone such behaviour.’ [Comment 35 of 114 posted by Amanda of perth 10:40am 11 July, 2008]
(l) ‘With so many officers having to attend this criminals funeral for what – to ‘keep the peace’?? Maybe if the people involved took responsibility, police would not have to attend.’ [Comment 32 of 114 posted by Harry of WA 10:11AM July 11, 2008]
(m) ‘...today will show the real family. If this goes off with trouble it will only prove how ferrell [sic] the rest must be and have not respect for anything even the dead. I have thoughts on the deceased and those I will prefer to keep to myself Today is reckoning day for the rest of his [sic] so called greeving [sic] family’ [Comment 30 of 114 posted by Kristofferson of Perth 9:59am July 11, 2008]
(n) ‘You can post as many comment as you like but it wont [sic] change anything untill [sic] the law makers of this land get off thier [sic] fat a## and get out of thier [sic] ivory towers and start dealing out real punishment to the low life instead of the 5 star treatment they get in prison they get 3 squares aday [sic] tv computer clean beds there are lots of holes in [Kalgoorlie I would use these scum as land fill’ [Comment 29 of 114 posted by Jack Reacher of 9:49am July 11, 2008]
(o) ‘yeah,yeah i [sic] feel sympathetic to the families of these car thieves,but i [sic] don’t give a rats arse about the fact that they died stealing a car and speeding away from police. I couldn’t care lees [sic] if it was a white prickwho [sic] did it or in this case some black pricks who did it..................AT THE END OF THE DAY WHEN THE DUST SETTLES AND YOU ALL HAVE A LITTLE THINK ABOUT IT. THEY BROKE THE LAW AND MY THANKS GO OUT TO THE PARENTS FOR DOING A LOUSY JOB RAISING AND EDUCATING YOUR CHILDREN,SHAME ON YOU’ [Comment 134 of 179 posted by DOCTOR OF PERTH of [sic] 1.08pm July 12, 2008].
26 The applicant pleads at [8] of the statement of claim that the respondent published the following “Like comments regarding parental responsibility” (as numbered and on the dates and times shown):
(a) A comment published on the website on 6 July 2008 numbered 9 of 55;
(b) A comment published in ‘The Sunday Times’ on 6 July 2008 under the heading ‘BLAME’, at paragraph 1 on page 67;
(c) A comment published on the website on 7 July 2008 numbered 31 of 55;
(d) Comments published on the website on 11 July 2008 numbered 37 of 114 and 91 of 114;
(e) Comments published on the website on 17 July 2008 numbered 11 of 179, 43 of 179, 48 of 179 and 53 of 179
(f) Comments published on the website on 18 July 2008 numbered 61 of 179, 63 of 179, 68 of 179, 78 of 179, 82 of 179, 83 of 179, 88 of 179, 89 of 179, 93 of 179, 96 of 179, 105 of 179, 119 of 179, 131 of 179, 132 of 179, 133 of 179, 135 of 179, 144 of 179;
(g) A comment published on the website on 19 July 2008 numbered 149 of 179;
(h) Comments published on the website on 21 July 2008 numbered 166 of 179 and 174 of 179.
27 The applicant pleads at [8] of the statement of claim that the respondent published the following “Like comments regarding association with criminals” (as numbered and on the dates and times shown):
(a) A comment published in ‘The Sunday Times’ on 6 July 2008 under the heading ‘BLAME’, at paragraph 5 on page 67;
(b) A comment published on the website on 8 July 2008 numbered 50 of 55
(c) Comments published on the website on 17 July 2008 numbered 35 of 179, 52 of 179;
28 The applicant pleads at [8] of the statement of claim that the respondent published the following “Like comments directed at race or colour” (as numbered and on the dates and times shown):
(a) A comment published in ‘The Sunday Times’ on 6 July 2008 under the heading ‘BLAME’, at paragraph 6 on page 67;
(b) Comments published on the website on 17 July 2008 numbered 27 of 179, 32 of 179, 33 of 179;
(c) Comments published on the website on 21 July 2008 numbered 164 of 179, 167 of 179, 174 of 179.
29 The applicant at [9] of the statement of claim pleads that the respondent published the following “Like comments” (as numbered and on the dates and times shown):
(a) Comments published on the website on 11 July 2008 numbered 15 of 114, 20 of 114, 26 of 114 and 32 of 114
(b) A comment published on 18 July 2008 numbered 101 of 179.
30 The applicant then pleads at [8] of the statement of claim that:
the words published in (a)-(g) inclusive and (o) of [25] above; and
the like comments particularised at [26], [27] and [28] above;
read singularly or together and in the context of:
(1) the words referred to in [24] above; and
(2) the comments directed at the race or colour of the applicant, her family and community set out in [28] above:
contained the imputations that the Applicant, as an Aboriginal person and member of the local Aboriginal community, (a) is an irresponsible person who has failed in her duty as a parent to supervise her children and ensure they complied with the law and (b) is an associate of criminals.
31 The applicant pleads at [9] of the statement of claim that:
the words referred to in [25(h)-(m)] above; and
the “like comments published on the website”;
read singularly or together and in the context of the publication of the words referred to at [24] above:
contained the imputation that the Applicant, as an Aboriginal person and member of an Aboriginal family, was likely to behave at a funeral in a manner which was unlawful and may require the law to be enforced by police officers.
32 The applicant in [10] of the statement of claim additionally pleads that the words referred to in [25(n)-(o)] above were “grossly offensive, including because of the words used”.
33 Finally, the applicant in [11] of the statement of claim pleads that:
the publication by the respondent of the words referred to at [25] above (a)-(o) and the like comments set out at [26], [27], [28] and [29] above;
“comprises an act, or acts, done, otherwise than in private, reasonably likely, in all the circumstances, to offend, insult or humiliate the Applicant”; and
“one of the reasons the act was done, or acts were done, was because of the Aboriginal race of the Applicant”; and
so is unlawful under the RD Act.
34 At the hearing, senior counsel for the applicant clarified the way in which the applicant put her case and stated it was not advanced on the basis of the imputations pleaded in the statement of claim but that the imputations pleaded should be regarded as identifying categories of meaning that the Court might accept in determining whether the comments complained of contravene the RD Act. Two broad categories of meaning were identified as: that the applicant was an inadequate or improper mother; and that persons attending funerals were likely to behave in an unlawful manner.
35 Senior counsel for the applicant drew particular attention to readers’ comments which he contended could not possibly survive the public interest defences in s 18D of the RD Act, namely, Comment 108 of 114, Comment 102 of 114, Comment 66 of 114, Comment 29 of 114, Comment 84 of 114 and Comment 96 of 179, and otherwise confined the applicant’s case to the question whether any of the comments pleaded in [7.5] of the statement of claim and Comment 96 of 179 contravene s 18C of the RD Act and were not exempt under s 18D.
36 Senior counsel for the respondent responded to the applicant’s case advanced on this basis and the Court will also rule on this basis.
The respondent’s position
37 The respondent denies that any of its acts of publication contravened s 18C of the RD Act.
38 In essence, the respondent contends that the uncontested evidence in the proceeding shows the publications were made because of a desire to encourage discussion about matters of undoubted public interest. The respondent says it may be accepted that part of the background that led to the discussion was the death in a car crash of four Aboriginal boys who were involved in an illegal enterprise, the theft of a motor vehicle. Among the matters discussed were Aboriginal disadvantage, how best to remedy it, and the question of personal responsibility. The respondent contends these were and are legitimate matters for public discussion and the comments on these topic do not give offence.
39 The respondent contends that the evidence does not show, in any event, that the true reason or the true ground of the act or acts of publication in this case was “because of” the race of the applicant. The respondent says that however hurtful certain observations might be, and which might subjectively offend an Aboriginal person – for example, how to remedy Aboriginal disadvantage or to the effect that Aboriginal communities are not doing enough to rectify social problems, or that families should do more to curb the delinquency of their children and the publication of such comments – they are not acts done “because of” the race of the person offended.
40 The respondent, therefore, contends that the comments on the website objected to by the applicant were neither reasonably likely, in all the circumstances, to offend, insult or humiliate the applicant for the purposes of para (a) of s 18C(1), nor done because of the race of the applicant for the purposes of para (b) of s 18C(1).
41 The respondent says that in providing the website as, in effect, a public forum where members of the public could express their views on important, albeit controversial subjects, as it did, it may be expected that some comments will be likely to offend the subjective notions of some persons concerning elegance of expression and good taste. Accordingly, in the course of a genuine public debate, persons expressing opinions will inevitably come from different backgrounds, will have different levels of education, will in some cases be inarticulate and may struggle to express themselves with clarity, refinement or restraint that is the result of an advanced education or a keen intellect. But that is not to say that the published comments of such persons necessarily are reasonably likely, in all the circumstances, to offend, insult or humiliate.
42 Similarly, the respondent contends that merely because the published comments appears to oversimplify the issues involved or exhibit defects of argument or logic does not mean they should be condemned as unreasonable in the sense that they are reasonably likely in the circumstances to offend, insult or humiliate.
43 The respondent finally says that, even if the comments appear to offend s 18C, they were made in the course of debate for a genuine purpose in the public interest under s 18D(b), and/or constituted fair comment under s 18D(c)(ii), and in each case what was said or done was said or done reasonably and in good faith and so was not unlawful under s 18C.
44 The respondent reserved its right to contend that s 18C of the RD Act is unconstitutional in that it infringes the right to free political speech guaranteed by the Constitution without pursuing that issue in this hearing.
INTERVENTION of australian human rights commission
45 On the application of the AHRC, leave was granted to the AHRC to intervene in the proceeding, limited to the filing of written submissions on the following issues:
the interpretation and application of s 18C and s 18D of the RD Act;
the application of the International Covenant on Civil and Political Rights and International Convention on the Elimination of All Forms of Racial Discrimination (CERD) to the interpretation given to s 18C and s 18D of the RD Act; and
the relevance of the implied freedom of political communication to Pt IIA of the RD Act in Pt IIB of the AHRC Act.
General principles
46 Objective test: In determining whether s 18C of the RD Act has been contravened, it is first necessary to determine whether, for the purposes of para (1)(a), the act complained of is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”. In deciding this, the Court does not simply rely on how a particular person or group of people subjectively felt about or reacted to the doing of the act complained of. Rather, the Court assesses whether, objectively, the act complained of was “reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate” another person or a group of people: Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]; Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 (Cairns Post) at [12]; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 (Jones v Scully) at [98]-[100]; Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261 (Bolt).
47 In Bolt at [257], Bromberg J noted that the expression “in all the circumstances” needs firmly to be kept in mind. With that I agree. I should add that, in my view, the circumstances in a particular case will depend on the facts found from the evidence.
48 Justice Bromberg in Bolt goes on at [258]-[261] to discuss what the expression “reasonably likely” means in this statutory context and concluded that it should be taken to be speaking to the chance of an event occurring or not, which is real, not fanciful or remote. With that I also, with respect, agree. As I do with his Honour’s statement that whether an act is reasonably likely to cause offence is to be assessed on the balance of probabilities.
49 I note that, at [257], Bromberg J stated that a determination of whether it is reasonably likely, in all the circumstances, that an act gives offence, “requires that the social, cultural, historical and other circumstances attending the person or the people in the group be considered”. I can understand that such factors may well be relevant to that determination but whether they are required to be considered on every occasion would, I think, depend on the evidence led in the proceeding. The “circumstances” that will readily be relevant are those particular factual circumstances in which a particular act complained of was done. Of course, the reasons why a particular person or group might feel offended, insulted, humiliated or intimidated by a particular act will also be relevant though not determinative of the issue, as explained below.
50 The “reasonable victim” perspective: When applying the objective test it is, however, necessary to regard the perspective of the hypothetical person or group – sometimes referred to as the “reasonable victim” – who might possibly be offended by an act of the type complained of.
51 The adoption of such a perspective is important because, if the Court were not to do so there would be a real risk that the standards of some other, different person or group would be adopted without any sensitivity to cultural differences between groups in the community. This point is well made in human rights literature. For example, Akmeemana S and Jones M, “Fighting racial hatred”, in Racial Discrimination Act 1975: A review (Race Discrimination Commissioner, Commonwealth of Australia, 1995) observe, at p 168, that the adoption of a “reasonable victim” standard can be understood as a means of eliminating a systemic barrier as complainants will no longer be subject to the views of the dominant group concerning the types of comments that in fact are offensive to other groups or sub-groups in the community.
52 The Cairns Post case provides a good illustration of the point. The Cairns Post newspaper had published an article concerning the custody of a two year old Aboriginal girl. It concerned the decision of the Queensland Department of Family Services, Youth and Community Care to take the child from foster care with a white family and place her into the care of the applicant who also had the care of the child’s two brothers. The article was accompanied by two photographs, one of the applicant and one of the couple from whose care the child had been removed. The difference between the photographs was that the couple was presented in their living room in a comfortable chair, with photographs and books behind them, while the photograph of the applicant showed her in a bush camp with an open fire and a shed in which young children could be seen. The photographs had been chosen by the respondent after resort to a photographic library. As it transpires, the photograph of the applicant had been taken on an earlier occasion when she had assisted in locating some backpackers who had become lost in a remote area. The applicant alleged that the publishing of the photo caused her upset and humiliation as it portrayed her as a primitive bush Aboriginal woman and implied that this was her usual lifestyle and therefore one in which the child would have to live. In reality the applicant lived in a comfortable four bedroom brick home with the usual amenities.
53 In assessing the applicant’s complaint Kiefel J, at [13], noted the necessity to consider the perspective under consideration, that is to say, the hypothetical person in the applicant’s position or the group of which the applicant is a member. Her Honour pointed out that a simple reference to the person’s race may, in some cases, be too wide a description. Having regard to the evidence, her Honour observed, at [13], that Aboriginal people’s views about being portrayed as having a more traditional lifestyle, will differ depending upon where and in what circumstances they live. Thus, her Honour accepted that the perspective suggested on behalf of the applicant in order to test whether the respondent had contravened s 18C, was apposite, namely, that of “an Aboriginal mother, or one [who] cares for children, and who resides in the township of Coen” (where the applicant lived).
54 Viewed from that perspective, her Honour considered such a person would feel offended, insulted or humiliated if they were portrayed as living in rough bush conditions in the context of a report which was about a child’s welfare. Her Honour accepted that, in that context, it was implied by the photographs that the hypothetical person would be taking the child into less desirable conditions, and that was how a “reasonable reader” would have viewed the photographs.
55 Similarly, in McGlade v Lightfoot [2002] FCA 1457; (2002) 124 FCR 106 (McGlade v Lightfoot) at [46], Carr J explained that the first logical step in a proceeding of this type is to identify a person or group of people who, on the basis of a reasonable likelihood, “may have been affected in the manner described in s 18C”. In that case, where the applicant complained about the public comments concerning Aboriginal people made by the respondent that were published in a newspaper, Carr J initially considered that the relevant person or group of people would at least include “an Aboriginal person or a group of Aboriginal persons leading a traditional way of life”, but also accepted the submission of counsel for the applicant that the respondent’s act should also be assessed “from the aspect of its reasonably likely effect on an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture”.
56 In Jones v Toben [2002] FCA 1150 (Jones v Toben), at [96], Branson J, at first instance, in relation to a proceeding concerning publications about Jewish people, defined the relevant group as “members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability”. On appeal in Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 (Toben v Jones) the identification of the group in this way was not in dispute: see for example, Carr J at [25], Kiefel J at [57], and Allsop J at [154] (his Honour agreeing with the reasons of Carr J at [32]-[38] in concluding that contravention of s 18C was made out).
57 In Bolt, the Court, in relation to a proceeding concerning the publication of “blogs” about certain Aboriginal people, considered the perspective of “fair skinned Aboriginal persons” when assessing the blogs.
58 In Bolt, Bromberg J, at [253], expressly rejected the respondent’s contention that the objective nature of the assessment required by s 18C(1)(a) imported an objective assessment of community standards, and that the same standard applied irrespective of whether group offence or personal offence was alleged. In rejecting this submission, his Honour noted that the contention would see a reasonable person test substitute the reasonable representative test and would result in the perspective clearly required by para (a) being ignored.
59 However, his Honour accepted, at [255], that the purposes of the RD Act are to be served by objectively attributing to the “ordinary” or “reasonable” representative of the group, characteristics consistent with what might be expected of a member of a free and tolerant society. With respect, I agree with his Honour’s observation, understanding that it is the reaction of the reasonable member of the group that needs to be regarded.
60 Identifying the “reasonable victim”: There is an issue, which I will determine later in relation to this proceeding, whether it is the perspective of a “person” or a “group” that should be adopted in any particular case. In some cases it may only be an individual who is the subject of an impugned act done or said. In other cases, while a particular person may consider what was done or said was directed at them personally, it may be that it was also directed at a larger group (or subgroup) of which they are a member.
61 I agree with what Bromberg J said in Bolt, at [248], that the dichotomy between conduct directed to an identified individual, on the one hand, and conduct directed to a group of people in a general sense, on the other, works well in the ordinary case. However, there will be cases where the conduct may be directed to both the individual and the group. In Bolt, at [248], Bromberg J, however, considered that the publications of the respondent should be characterised as directed to individuals identified as examples of people in a wider group and also directed at members of the wider group. As a result, at [250], his Honour adopted the approach of not assessing the acts complained of simply by reference to the perspective of the individuals identified, but rather from the perspective of the reasonable representative of the group of the people who were offended – namely, “fair skinned Aboriginal persons”.
62 I further agree with what Bromberg J said in Bolt, at [251], that a group of people may include the “sensitive as well as the insensitive, the passionate and the dispassionate, the emotional and the impassive”. For that reason it is necessary to consider only the perspective of the ordinary or reasonable member or members of the group, not those at the margins of the group whose view may be considered unrepresentative.
63 Finally, I also agree with what Bromberg J noted in Bolt, at [252], that, as in Jones v Toben, the defined group may include a smaller group. In Jones v Toben, as noted above, the “young and the impressionable” Jews were regarded as a vulnerable subgroup of Australian Jewry who were identified as the relevant group whose perspective ought to be taken into account.
64 Of course the facts and circumstances of each case in which unlawful discrimination is alleged, contrary to the RD Act must guide the correct identification of the reasonable victim in each case.
65 The “serious effects or consequences” consideration: When it comes to applying the objective test from the perspective of the “reasonable victim”, the words “offend, insult, humiliate or intimidate” used in s 18C(1)(a) do not constitute a compendious phrase and should be separately considered and given their ordinary English meanings: see McGlade v Lightfoot at [51]; Jones v Scully at [102]; Jones v Toben at [90]; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 (Bropho v HREOC) at [67].
66 However, in Bropho v HREOC, French J, at [67], noted that the words used in para (a) are “open textured” and that in ordinary parlance are sometimes used to describe a level of response to another person’s conduct which is relatively minor. For example, relevant definitions in the Shorter Oxford English Dictionary are:
offend – to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).
insult – to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage…
humiliate – to make low or humble in position, condition or feeling, to humble… to subject to humiliation; to mortify.
intimidate – to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.
67 His Honour, at [68], considered that the “lower registers” of these definitions, particularly those of “offend” and “insult” seemed a long way removed from the mischief to which Pt IIA of the RD Act was directed. His Honour then undertook an examination of the legislative history of Pt IIA of the RD Act and its foundation on Art 4 of the CERD, to which Australia is a State party, and concluded, to similar effect as Kiefel J in Cairns Post, that s 18C was intended to deal with “serious incidents only”.
68 In Cairns Post, at [16], Kiefel J, having examined the legislative history of Pt IIA of the RD Act, stated:
To ‘offend, insult, humiliate or intimidate’ are profound and serious effects, not to be likened to mere slights. Having said that, the court would of course be conscious of the need to consider the reaction from that person or group’s perspective.
(Emphasis in original.)
69 This approach to the application of s 18C(1)(a), that it is intended, put generally, to deal with serious effects or consequences, has now been generally adopted and applied in a number of cases following Cairns Post and Bropho v HREOC, including Toben v Jones and Bolt.
70 I note, however, that in Jones v Toben, Branson J, having regard to Kiefel J’s observation that s 18C was concerned with profound and serious effects not to be likened to mere slights, stated that she did not understand her Honour to have intended that a “gloss” be placed on the words in s 18C(1)(a). At [92], Branson J said:
Rather, I understand her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to ‘mere slights’ in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult (see also Jones v Scully per Hely J at [102]). It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.
(Emphasis in original.)
71 I also note that in Bolt, while Bromberg J, at [268], expressly agreed with the view that the conduct caught by s 18C(1)(a) will be conduct which has “profound and serious effects, not to be likened to mere slights”, his Honour, at [267], stated that the “public consequence…need not be significant…[i]t may be slight”. His Honour suggested conduct will evince the relevant seriousness to satisfy para (a) where it involves “conduct which invades or harms the dignity of an individual or group”. His Honour, in my respectful view, was not in saying this seeking to restate the test by which para (a) of s 18C(1) will be satisfied, but emphasising the point made at [268], namely, conduct which does not give “real” offence, as opposed to “mere slights”, will not be found to satisfy para (a).
72 The AHRC, in its submissions, draws attention to what Branson J said in Jones v Toben. Senior counsel for the respondent also drew attention to her Honour’s observations and submitted they could not stand with the remarks of Kiefel J and French J. For my part, accepting that subtleties are no doubt always important, I fail to see a lasting difference between them. If one takes the simple dictionary definitions of the words “offend” or “insult” given above, then, in my view, there is force in the view that, on the face of them, even relatively minor conduct might fit their meanings. But those and the other words employed in s 18C(1)(a) are not employed without qualification. Rather, the test for offensive behaviour is whether the act done “is reasonably likely, in all the circumstances” to offend etc. So an act that may, at first regard, appear to fall within the statutory proscription, may not be considered reasonably likely to do so when all the circumstances of the case are considered from the perspective of the reasonable victim.
73 What is important and what remains important in the assessment process, is the perspective of the reasonable victim, as indeed the qualification of Kiefel J in the passage from Cairns Post cited above at [68] emphasises. In that case, her Honour held that the act of publication of the two juxtaposed photographs would be likely to offend when considered from the perspective of an “Aboriginal mother, or one [who] cares for children, and who resides in the township of Coen” and so satisfied para (a) of s 18C(1) (although her Honour went on to find it did not satisfy para (b) of s 18C(1)).
74 Thus, an act done, something said, that might not offend one group of Australians because it will be considered by them as a mere slight only, may well be considered reasonably likely, in the circumstances, to offend another, minority group. Communications about a historically oppressed minority group are far more likely to cause relevant harm to that group, than communications which relate to a dominant majority.
75 It goes without saying that in regarding the perspective of the reasonable victim, while the subjective feelings of a particular person who complains about an act is not determinative of the question whether an act is reasonably likely to offend, etc, the Court is not properly equipped without relevant evidence to identify that perspective. The Court will therefore regard evidence led by the parties to that end, including from a complainant (such as the applicant in this proceeding) and then, having evaluated it, form a view about the perspective of the reasonable victim in relation to a particular act complained of.
76 Thus, in the Cairns Post case, the Court regarded the evidence of the applicant mother affected directly by the publication complained of, in McGlade v Lightfoot the Court regarded the evidence of a senior Nyungar women and a number of senior men and in Bolt, the Court regarded the views of a member or members of a group of “fair skinned Aboriginal persons”.
77 Causation issue: If, having regard to para (a) of s 18C(1), the Court determines that the doing of an act is reasonably likely, in all of the circumstances, to offend, insult, humiliate or intimidate another person or group of people, then the further question must be asked, for the purposes of para (b) of s 18C(1), whether the act complained of was done “because of” the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
78 As noted above, it is not necessary, having regard to the terms of s 18B of the RD Act, to show that the act complained of was done solely for one or other of those reasons. It is enough that the race of the applicant, for example, was one of the reasons for the doing of the act in question.
79 The use of the expression “because of” in s 18C(1)(b) raises questions concerning: how an applicant should go about proving the causal relationship between, for example, the act done and a person’s race; whether the motive or intention of the respondent is relevant to that issue; and, if it is, whether it matters that motive or intention for the doing of the act is not directly proved.
80 In Cairns Post, Kiefel J concluded, at [28], that the question in the case before her was whether anything suggested race “as a factor” in the respondent’s decision to publish the photograph. Her Honour noted that the context of the article in question was race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race should be taken to have “actuated the publication” – that is to say, to have been “a factor”. For her Honour the question was whether the publication of a photograph showing the applicant’s apparent living standards, “was motivated by considerations of race”.
81 In the result, Kiefel J was not satisfied that the act complained of had been done “because of” race. Her Honour considered, at [29], there was nothing in the newspaper article itself which provided an insight on the question. The reader might reasonably draw a comparison between the two photographs. The reader might assume the photograph to accurately portray the applicant’s living circumstances. If there was anything to suggest that the respondent, in arriving at its decision to include the photograph, had acted upon an assumption that this was the case, or if it had chosen the photograph when others depicting the true circumstances were available, then her Honour considered the requirement of race as a cause may well have been satisfied. But the evidence did not suggest that. Her Honour also considered it was possible that the respondent’s employees just did not turn their minds to what the photograph conveyed, in addition to the portraits of the parties. In that regard mere thoughtlessness would not qualify the conduct as unlawful under s 18C.
82 Thus, it can be seen that Kiefel J accepted that motivation or reason for the doing of an act is relevant to the causal issue, and that if there is evidence to support the finding, motivation or reason based on race may be inferred from the act itself – for example, from the terms of a publication.
83 In Toben v Jones, at [61], Kiefel J confirmed and elaborated on the view she had expressed in Cairns Post. At [63], her Honour said that the inquiry as to motive or reason for an act is not limited to the explanation a person might provide for their conduct or their genuine understanding as to what motivated them. Her Honour emphasised that: “The enquiry is as to the true reason or true ground for the action” (emphasis in original).
84 Her Honour, at [63], added that:
A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions.
85 Her Honour also noted, at [64], that the question posed by s 18C(1)(b) is separate and different from the one posed by s 18C(1)(a) and that more is required to answer the question as to the motivation of the person complained about and whether the race of the group was one reason.
86 At first instance, the primary judge had found that the relevant group was Australian Jewry and other members of the Australian Jewish Community within that group, particularly younger, vulnerable members, and that the impugned publication contained the following meanings or imputations:
(a) There is serious doubt that the Holocaust occurred.
(b) It is unlikely that there were homicidal gas chambers in Auschwitz.
(c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence.
(d) Some Jewish people for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
87 Justice Kiefel, at [65], considered that the conclusion reached by the primary judge, that the publication in question was plainly calculated to convey a message about Jewish people, stated the necessary causal connection between the act of publication that gave offence and the group of a particular race.
88 At [68], Kiefel J suggested it may be possible in some cases “to infer that a person must have intended offence to the racial or ethnic group in question by what is said or done”. Such a conclusion, her Honour reasoned, might be reached by reference to the gravity of the offence likely to be caused and the apparent relevance of the statement in the context in which it appears.
89 However, her Honour also stated, at [69], that some statements which cause offence may be made without a racially based motive and because of a lack of sensitivity or even thought towards others. These will not provide the necessary motivation for s 18C(1)(b) purposes.
90 At [70], Kiefel J noted that in other cases it may be that, in pursuing an historical or other discourse, offence cannot be avoided, and the reason for the statement causing offence will not lie in considerations of the affected group’s race. In such a case, however, her Honour considered one would “expect to discern the argument” being pursued.
91 Justice Kiefel, at [72], emphasised, however, that a contravention cannot be made out “by assumptions as to motive, as distinct from inferences which may properly be drawn”.
92 Justice Kiefel finally considered whether the appellant was motivated by the Jewishness of the group was to be determined by the reference to the statements made by him. Her Honour went on, at [74], to point out that the proceedings did not involve any determination about the truth or falsity of the appellant’s claim or the historical records which he challenged. But her Honour added that, if it were shown that he knew his challenges to be without foundation, and that they were therefore cynically made, the conclusion that he intended offence to the group could be readily drawn. Her Honour, however, could not see how this could be gleaned from the article which principally contained denials of what was said to be historical fact, even if those denials seemed incomprehensible. However, at [77], her Honour noted other aspects of the appellant’s publication where it was stated that historical fact “clearly shows that Jews are not always victims in history, but also murderers”. Her Honour considered this provided “more than a little insight” into what actuated the appellant to publish the article and supported the findings made by the primary judge.
93 In Toben v Jones, Allsop J, approached the causation issue a little differently from Kiefel J. His Honour observed at [151] that it is the “reason or reasons” for the act which must be discerned in order to decide whether an act was done “because of” race or another factor. His Honour added, however:
Whilst it may be accurate to say that this is not the same thing as enquiring as to the motive or purpose or intention behind such conduct … proof of those matters (motive, purpose or intention) may, in any given case, be relevant, perhaps even central, to the ascertainment of the reason or reasons for the act in question. It is unwise, however, to go too far in explication of the language of s 18B and par 18C(1)(b) lest words be substituted for those chosen by Parliament.
94 Justice Allsop, at [154], accepting that the questions raised by s 18C(1)(a) and (b) are different and separate inquiries, noted that nevertheless the material relevant to one may be relevant to the other. His Honour suggested that the ease with which one can draw the conclusion that, objectively, the publication satisfies s 18C(1)(a), may assist in drawing a conclusion as to why the person published the material. If something is obviously offensive, that may, in the circumstances, assist a conclusion that the act of publication was, for example, done because of race. Justice Allsop otherwise agreed with Carr J that the link provided for by s 18C(1)(b) was satisfied in that case.
95 Justice Carr, at [32], noted that the appellant had not placed any evidence before the Court about his intention or motive in publishing the relevant document. His Honour considered, nonetheless, that in examining its contents it was possible to draw inferences about his intention or motive in doing so. At [37], Carr J concluded that at least one reason why the document was published was because of the race or ethnic origin of Jewish Australians, whom the appellant conceded were reasonably likely to be offended by the publication.
96 Causation and media outlets: Particular causation questions may arise in circumstances where a person, such as a media outlet like the respondent, publishes the words of another. It might for example be a letter to the editor or, as in this case, a comment published on a website designed to facilitate contemporaneous public discussion or debate on a topic of genuine public interest. If the comment published is of itself objectively offensive, can the media outlet be said to have published the comment “because of” race. On the one hand, it might be said that the only thing that the media outlet has done is publish a comment, not of its own, but of someone else. In cases such as Jones v Scully, McGlade v Lightfoot, Toben v Jones, Cairns Post and Bolt, the respondent was the actual author of the comment complained of. In a case such as the present, the respondent has facilitated the publication of someone else’s comment, although having first “moderated” or vetted it.
97 Accordingly, it may possibly be argued, along the lines of the finding in Cairns Post, that if there is nothing to show that the act of publishing what is objectively an offensive comment was motivated or actuated by race then there is no contravention. On the other hand, it might be argued that it would be a remarkable outcome if a media outlet were able to avoid a finding of contravention of the RD Act for publishing objectively offensive material, by simply citing its own subjective intention to facilitate public debate on a topic of genuine public interest.
98 In Wanjurri v Southern Cross Broadcasting (Aus) Ltd (2001) EOC 93-147, a decision of the Human Rights and Equal Opportunity Commission, delivered 7 May 2001, Radio 6PR, owned by the first respondent, broadcast a morning talkshow in Perth hosted by the second respondent, Mr Sattler. It included a segment called “Taxi talk” which involved Mr Sattler seeking the views of Perth taxi drivers on a variety of local issues. Mr Sattler was responsible for the content of “Taxi talk”. He was able to control what was broadcast in two ways: he discussed what was going to be said with callers before going to air; and he had access to a “dump” button that he could use to prevent any comments from being broadcast.
99 A topical issue in early 1997 was the redevelopment on the site of the old Swan Brewery in Perth, on the banks of the Swan River. It was a site considered sacred by the Nyungah Aboriginal people and there was a considerable protest against the redevelopment. On 3 February 1997 the issue was discussed on “Taxi talk”. Mr Sattler and two callers had a conversation during which things were said that led to a complaint lodged by five Nyungah Elders, alleging contravention of s 18C. Each alleged they had been vilified by the comments made and sought a public apology. The complaint was considered by the Human Rights and Equal Opportunity Commission inquiry commissioner.
100 The inquiry commissioner found that Mr Sattler caused the words to be communicated because he controlled the radio program. He had control over whether the words would be broadcast by his use of the seven second “dump” button. He was willing to permit the words to be broadcast because they were consistent with his views that the Brewery site was claimed as a sacred site for dishonest reasons. He endorsed the views of two of his callers by his failure to stop comments, by the sarcastic tone of his response and participation in the general laughter at the end of the segment. As a result, the first respondent was considered vicarious responsible for Mr Sattler’s act by reason of s 18E of the RD Act.
101 In Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512; (2007) 164 FCR 475, the first respondent is an incorporated association (the Collective) and had the primary purpose of reforming builders’ warranty insurance in the residential building industry. It conducted an internet website that included a discussion forum, which had the purpose of enabling members of the public to discuss and debate issues relating to the building industry, particularly in relation to the reform of warranty insurance in the residential building industry. The forum was available for access to all members of the public, both in Australia and overseas, who had an internet connection and an internet browser. All messages posted on the forum could be accessed and viewed without any restriction by any member of the public. However, only a registered user could post messages on the forum. A registered user was not required to disclose their true identity. Messages posted on the forum were put up automatically without intervention by the respondent and there was no monitoring of content at the time of their posting and no systematic monitoring thereafter, although postings were reviewed from time to time. It was said to be the policy of the respondent to delete objectionable material upon becoming aware of it. But it was also said not to be practicable to review and approve every posting before it was put up and a prior approval would detract from the “real-time” interactive nature of the forum.
102 In or about May 2005, the second respondent, a registered forum user, who was later identified by his real name, posted a message that read:
‘Director Ron Silberberg’, that’s a good Irish Name. That in itself explains the monetary push in the HIA.
103 Then, on 24 January 2006, the second respondent posted another message headed: “Silberberg is out to break the little builders”, that was followed by references to Mr Silberberg’s qualifications and the fact that he had a Bachelor of Economics, which the author of the post then said, “translated, he is primarily interested in making lots of money and he has the background prior to education to unequivocally qualify by way of genes…”.
104 Justice Gyles of this Court found that the publication of the messages were reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate the applicant “or other Jewish people”. His Honour found that each message contained the imputation that the applicant’s Jewish ethnicity was, in itself, the cause for an excessive monetary focus within the Housing Industry Association Limited. He found the second message was reasonably likely, in all the circumstances, to offend and insult other persons of Jewish race or ethnicity. Justice Gyles further found, at [23], that it was abundantly clear that the applicant’s race and ethnicity was a reason for the publication by the second respondent. His Honour also rejected the proposition that the inclusion of the offensive portions of the messages was either reasonable or in good faith and did not constitute fair comment.
105 The Collective, however, submitted that as owner and manager of the website, it merely provided a facility – the forum – by which the second respondent published the messages, and that by simply “allowing” publication it was not in breach of s 18C. It contended it did not know the existence of the messages in the forum until it was advised of them by a letter from the applicant’s solicitor.
106 Justice Gyles, at [26], noted that there is little difficulty in applying s 18C to the author of a message posted on an internet site but the position of others involved in the chain between author and ultimate reader was not so clear. At [28] Gyles J noted that material posted on an internet website may be seen to be published by the author when uploaded or posted onto a web server by or on behalf of the author and also by a person when downloaded onto a computer accessed by a person who has used a web browser to pull the material from the web server in comprehensible form. He stated that for the purposes of the law of defamation, publication is regarded as a bilateral, complete at the time of downloading (see Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575).
107 Justice Gyles also noted authority to the effect that whenever a organisation publishes a posting to any subscriber who accesses a website there is a publication of that material to the reader: see Godfrey v Demon Internet Ltd [2001] QB 201 (Godfrey v Demon Internet); Kaplan v Go Daddy Group Inc [2005] NSWSC 636 (Kaplan). His Honour noted that in Kaplan, at [32]-[33], White J considered that there was a serious issue to be tried in such circumstances and that even if the publisher of material posted on its website was not the author of headings and comments, but maintains some control over the site and invited disparaging comments, it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet or the proprietors and secretary of the golf club in Byrne v Deane [1937] 1 KB 818 which allowed a defamatory statement to remain on a noticeboard.
108 Ultimately, Gyles J, at [34], considered it was clear enough that failure to remove known offensive material from a website would be caught by s 18C(1)(a), bearing in mind s 3(3) of the RD Act which provides that, for the purposes of the RD Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure. His Honour found, at [34], that the Collective chose to conduct an open and anonymous forum available to the world without any system for scrutinising what was posted. He considered the party controlling a website of such a nature was in no different a position than publishers of other media. In his Honour’s opinion, failure to remove offensive material within a reasonable time of it having been posted was an act caught by s 18C(1)(a).
109 Nonetheless, Gyles J considered, at [35], that there was substance to the Collective’s argument that its relevant act, the failure to remove the offensive material, was not shown to have any relevant connection with the race or ethnic origin of the applicant, or indeed any other Jewish person, as required by s 18C(1)(b) of the RD Act. His Honour considered the failure of the unidentified administrator to remove the second message was the clearest case of failure to act, but he could not conclude the failure was attributable, even in part, to the race or ethnic origin of the applicant. His Honour considered failure to do so could just as easily be explained by inattention or lack of diligence. To draw a causal connection, Gyles J considered, would be “speculation rather than legitimate inference”. In this, one might observe, his Honour came to a conclusion for reasons not dissimilar to those expressed by Kiefel J in the Cairns Post case, where her Honour considered that the respondent’s motivation in selecting the published photographs was not shown to be because of race.
110 What may be drawn from these two cases is that, where the evidence is that a respondent actively solicits and moderates contributions from readers before publishing them, and reserves the right not to publish or to modify them, the potential for a finding of contravention of s 18C is real. While the apparent subjective intention or motivation of the respondent in doing an act in such circumstances will be relevant to the question of causation, it will not be definitive. If the respondent publishes a comment which itself offends s 18C, where the respondent has “moderated” the comment through a vetting process, for example, in order not to offend the general law (or to meet other media standards), then the offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it. In such circumstances, it will be no defence for the respondent media outlet to say, “But we only published what the reader sent us”. Obviously, such circumstances are unlike those considered in Cairns Post, where no such moderating was undertaken, or Silberberg, where, at material times, the Collective did not know about a comment that had been posted on the website it maintained.
111 Section 18D exemptions: Finally, the exemptions provided for by s 18D of the RD Act must be noted:
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
112 Question of onus where exemption claimed: In Bropho v HREOC, French J, in referring to s 18D, observed that the immunities it creates were described in the Second Reading Speech and in the Explanatory Memorandum as “exemptions”. However, his Honour suggested that it was important to avoid using a “simplistic taxonomy” to read down s 18D and that the proscription in s 18C itself creates an exception to the general principle that people should enjoy freedom of speech and expression. Justice French, emphasising the primary importance of free speech stated at [73], said that against that background s 18D may be seen as defining the limits of the proscription in s 18C and not as a free speech exception to it. Thus French J considered that s 18D should be construed broadly rather than narrowly, consistent with what the Minister said in the Second Reading Speech.
113 As to whether an applicant or a respondent carries the onus of showing the “exemption” does not exist or does it exist, French J, at [75], considered the question not to be settled, even though it was not contested in that case that the respondent carried the burden of proof in relation to the exemption claimed.
114 However, in Bropho v HREOC, neither Lee J nor Carr J suggested otherwise than that the respondent bore the onus of making out an exemption.
115 In Bolt, Bromberg J at [338]-[339] considered the respondent carried the burden of establishing the exemptions he claimed.
116 That a respondent claiming the benefit of a particular exemption has the onus of establishing it seems to me to be the conventional position and I proceed on that basis.
117 Reasonableness for the purposes of s 18D: The availability of the exemptions in paras (a), (b) and (c) of s 18D are qualified by the requirement that what was said or done was said or done “reasonably and in good faith”. Those expressions have separate meanings although they plainly overlap and are sometimes referred to interchangeably and as if constituting a single composite requirement.
118 In Bropho v HREOC, French J, at [77], observed that if the burden of proof does rest upon the person invoking the benefit of s 18D, then that burden would plainly cover the proof of primary facts from which assessments of reasonableness, and good faith, are to be made.
119 As to the concept of “reasonableness” for the purposes of s 18D, French J, at [80], considered that:
An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question.
120 His Honour added that an act will be done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes “if it bears a rational relationship to those purposes”.
121 Justice French also drew a possible distinction between the publication of a genuine scientific paper on the topic of genetic differences at a scientific conference where it may not be considered insulting or offensive to a group of people, and the presentation to a meeting convened by a racist organisation where what is put forward may not be a thing reasonably done. At [81], his Honour noted that a presentation of a report or comment which highlights, in a way that is “gratuitously insulting or offensive”, a matter that is irrelevant to the purported question of public interest under discussion may not be done “reasonably”. His Honour went on there to note that:
A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered ‘reasonably’.
122 In Bropho v HREOC, Lee J, at [139] and [140], adopted the view that the construction of the words “reasonably and in good faith” imported a requirement for proportionality to be demonstrated in the conduct engaged in having regard to the degree of harm inflicted.
123 In Toben v Jones, Carr J at [43]-[45] rejected the submission that the exemption provided for by s 18D(b) applied because, taken as a whole, the document did not establish on the balance of probabilities that publication of it was done reasonably and in good faith for any genuine academic or any other genuine purpose in the public interest. Rather, it was “deliberately provocative and inflammatory”. In this, his Honour referred to that passage mentioned above that described Jews as “also murderers”. Consequently, at [46], Carr J considered the primary judge was correct in finding that there was no proof of good faith. Justice Allsop, at [159], entirely agreed with the reasons of Carr J that the contents of the document taken as a whole did not establish that the publication was done reasonably and in good faith. Justice Kiefel, at [78], too agreed with what Carr J said concerning the exemption provided for by s 18D and with the primary judge’s finding that there was no proof of the appellant’s good faith.
124 In Bolt, at [411], Bromberg J, in the course of discussing the application of s 18D, and by reference to the authorities just mentioned, amongst others, considered that the language utilised in a publication complained of should have a “legitimate purpose in the communication of a point of view and not simply be directed to disparaging those to whom offence has been caused”. As a result, his Honour considered, at [414]:
The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt’s point.
125 At [439], Bromberg J considered that questions relating to reasonableness and good faith were effected not only by an assessment of how a publication is rationally related to a matter of public interest said to be exempted, but also by reference to “the extent of harm done to the protective objectives of the RDA by the expressive conduct and whether a conscientious approach was taken which gave sufficient regard to those objectives including the minimising of the potential harm”.
126 I agree with and adopt the approaches to the question of “reasonably” in s 18D indicated in the authorities I have just discussed.
127 “Good faith” for the purposes of s 18D: As to what “good faith” requires for the purposes of s 18D, in Bropho v HREOC at [93], French J considered that:
In a statutory setting a requirement to act in good faith, absent any contrary intention express or implied, will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes as attracting the requirement of good faith observance. That fidelity may extend beyond compliance with the black letter of the law absent the good faith requirement. In ordinary parlance it may require adherence to the ‘spirit’ of the law.
His Honour added that a good faith provision therefore offers a warning that “game playing” at the margins of a statutory proscription or obligation may attract a finding of liability.
128 At [95], French J suggested that the good faith exercise of the freedoms recognised by s 18D will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C:
It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict. It will not use those freedoms as a ‘cover’ to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin.
129 At [96], his Honour considered that good faith may be tested both subjectively and objectively. Thus want of objective good faith, by seeking to further an ulterior purpose or racial vilification, may be sufficient to forfeit the protection of s 18D. Thus, good faith requires more than subjective honesty and legitimate purposes.
130 At [101], his Honour said that generally speaking the absence of subjective good faith should be sufficient to establish want of good faith for most purposes. At [102], his Honour stated that a person who exercises the right to speak freely, carelessly, disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt, may be found not to have been acting in good faith.
131 Justice Lee, at [141], added that the requirement that an act to which s 18D applies must be shown to have been done in good faith, as well as reasonably, and will not be met by the publisher asserting that there is an absence of evidence that it acted in bad faith, fraudulently or with malice. His Honour, like French J, considered that whether the publication was an act done in good faith must be assessed, in part, by having regard to the subjective purpose of the publisher, but overall it is a objective determination as to whether the act may be said to have been done in good faith having regard to the degree of harm likely to be caused and to the extent to which the act may be destructive of the object of the RD Act.
132 In Bolt, Bromberg J, at [347], adopted a similar approach to French and Lee JJ in Bropho v HREOC.
133 I consider the approaches indicated by these authorities to be appropriate, particularly the principle that good faith has both a subjective and objective element.
the evidence
134 Applicant’s evidence: The affidavit of the applicant filed 21 September 2010, (excluding [84]) and its nine annexures was received into evidence. The annexures included the publications in The Sunday Times of 29 June 2008 on the front page and page 7 (together with the readers’ comments published at the top of page 7), which have been set out in full above. The applicant was not required for cross-examination and her relevant evidence was not challenged.
135 The applicant says that when she read the article she could not believe that The Sunday Times had already sought out comments from anonymous members of the public and had thought it appropriate to publish such “horrible comments only a day after the accident”. She also noticed that the article referred to and the comments had been quoted from the perthnow website.
136 The applicant also says that prior to and since the time of the childrens’ accident she read other articles about crash situations that involved that non-indigenous youth. To the best of her recollection she did not see any comments that had been so suggestive or derogatory about the parents in those articles so close in time to the incident when most families are still in shock or grieving.
137 The applicant considers that the photographs of her children in the article, when taken together with their names, readily identifies them as being of Aboriginal descent.
138 The applicant also states that it disturbed her that The Sunday Times printed photographs of her children. She considered that it was disrespectful and remains so to publish names or photographs of the dead in Aboriginal culture. By showing pictures of her children, the applicant believed that they were exposed as controversial figures and she was not able to mourn in peace. She says that, at that time, the photographs, together with the publication of the childrens’ names was the first identification of her children and herself as members of the indigenous community. The applicant states: “We all became targets because of our race”.
139 The applicant further says that apart from this, at that time, she was in shock and in mourning for her children, she was hurt about the publication and that people were saying such horrible things about their death and that The Sunday Times was publishing those comments.
140 The applicant indicates that later, as a result of things that her relatives informed her of, she logged onto the internet and read an article on the perthnow website, entitled “Pinjarra crash mum to distressed to speak” dated 3 July 2008, alongside of which were photographs, including one of each of her children and one of distressed relatives. The applicant says that the photographs of the children were produced and had the caption “Boys stole second car” alongside full colour photographs of the accident scene. That article contained a section entitled: “Debate: see more Readers’ Comments now” and linked that to a section of the website allowing readers to make their own comments.
141 After reading the article the applicant says she formed the opinion that perthnow was really trying to put her down and target her and she felt this because the “debate” section of the website was directly below a statement that her children “were in a stolen car” and had made a “bad choice”.
142 The applicant says she believed the placement and nature of the three existing comments quoted in the section “Debate: see more Readers’ Comments now”, below the heading set the tone for further negative and accusatory comments about her children.
143 She also believes that the “poll” offered and entitled “Poll: who’s to blame for out of control kids” prompted the suggestion that she was the stereotype of a bad Aboriginal mother.
144 She believes that the activation and use of the “comment” and “poll” facility opened her and her family up to be a target of racial vilification.
145 The applicant says she was hurt, upset and offended that people were saying such horrible things and that The Sunday Times and perthnow were continuing to publish those comments. She felt that The Sunday Times and perthnow website were fanning the public resentment against her – by using the tragic death of her children for their own end.
146 The applicant says that after she also read the 55 comments that followed the online publication of the article headed “Heartbreak for crash victim’s girl”. She says that she felt that while the article was not directly about her, many of the comments were, and she felt her family and the indigenous community were being treated with contempt and disrespect.
147 The applicant also says that when The Sunday Times published its article on 6 July 2008 headed “The tragedy that divided our state” she felt that many of the comments in the “Blame” section were racially motivated and that they polarised the differences between Aboriginal and non-Aboriginal families in the community. She again felt that she was identified as not being a good role model and guardian to her children and that her family’s grief was not valid.
148 The applicant further says that after she read the article published online on 11 July 2008, “Mourner’s farewell ‘loving, caring’ Quinton Humes” she felt that once again she was being identified as a neglectful Aboriginal mother and this upset and hurt her.
149 She says she then read the 114 comments that were linked to that online story, a number of which made her very angry, hurt, upset and annoyed.
150 Similarly, she says she read the online article “Community mourns three brothers killed in crash” that was published 17 July 2008. She felt that there was unnecessary overexposure of the funeral because her children were Aboriginal. She says that the comments which totalled 179 that were linked to this article really upset her.
151 She considers them to be extremely racist and hurtful, especially as they were “linked” to an article about the childrens’ funeral and published at a time when she was clearly in mourning. The applicant says that when she read these comments she was offended that they had been published and allowed to remain on the website because they did not, for the most part, have anything to say about the accident but only talked about the fact that she had provided little parental supervision, that Aboriginal people blame the community, that Aboriginal people use the fact that the land was stolen as an excuse to commit crime and that Aboriginal culture is useless and a secondary culture.
152 The applicant says she was also upset at a later article published in The Sunday Times on 8 August 2008. She could not believe that the newspaper was running another story on the topic.
153 After the publications, the applicant says she was targeted in the community by strangers who would say things to her when they saw her in the street that reflected almost word for word opinions printed in the online comment forums and in the paper implying that they saw her as a stereotypical bad Aboriginal mother and blamed her for what happened. She says she did not say anything in response to these comments and would just turn and walk away.
154 The applicant says she ultimately was driven to leave the State at the end of July 2008 to live interstate with her brother. She says it was easier to grieve in Adelaide with the support of family than to be in Western Australia, although in doing so she had to leave her daughters in Perth with her mother. That was a difficult decision and having to move interstate distressed her greatly.
155 The applicant says she returned to Perth a week before Christmas in 2008 as her daughters were still in Perth but when she returned she found that the blogs had not been taken down from the respondent’s website.
156 The applicant says she returned interstate after New Year in 2009 but then returned to Perth again four months later to be with her daughter. As the media hype died down in 2009 she continued to return to Perth more often and split her time between Perth and Melbourne, where her brother had then moved.
157 In early 2010 the applicant decided to return to Perth permanently.
158 As at the date of her affidavit, namely, 20 September 2010, the applicant says her mother, her daughters and she were all still having to cope with criticism from the wider community.
159 In her affidavit the applicant similarly dealt with a number of other articles and comments on the perthnow website and her feelings having read them.
160 Respondent’s evidence: The affidavit of Allen Geoffrey Newton, filed 14 December 2010 was received into evidence. Mr Newton was not required for cross-examination and, like the applicant, his relevant evidence was not challenged.
161 Mr Newton was, at all material times, a journalist employed by respondent as the managing editor of the perthnow website. Mr Newton, as of 2008, when the publications complained of were made, had been the managing editor of perthnow since 2006. As editor of perthnow he focussed mostly “on content” and he also had commercial responsibilities attached to the managing aspect of the role.
162 Mr Newton explained that on a day-to-day basis he was responsible for all material which appeared online. The readers are given the opportunity to comment or “blog” in response to articles and this facility had been made available to readers of the perthnow website from the day it commenced operating on 25 January 2006. Mr Newton said it was feature that many newspapers all over the world had introduced in the last 10-15 years.
163 Mr Newton also said that before the respondent commenced making available to the readers the ability to blog in response to articles, he had a number of meetings and discussions with Brett McCarthy, the editor of The Sunday Times at the time, and who is now the editor of The West Australian newspaper, and also Ish Davies who was the managing director of The Sunday Times and who is now the managing director of The Adelaide Advertiser. The purpose of these meetings was to come to a decision about how the respondent wanted the interactive part of the website to run, and what it wanted to achieve by making it available.
164 The meeting of these people elicited similar views, for example, Mr Newton’s view as editor was that the interactive part of the website should provide a forum for readers for legitimate and lawful discussion and debate, both to put their own point of view, and to read and respond to the views of others. He believed that members of the public did not have much in the way of outlets for having a say on important issues of the day, and that an interactive site was a way of providing members of the public with the ability to debate and discuss those issues. Mr Newton said that in introducing this facility, he wanted to provide a service that would not only attract and interest readers, without which no news organisation, commercial or otherwise, could realistically survive. He also said the purpose of providing a forum for readers to put their points of view, see the points of view of others and argue with others, in the same way that occurs when people meet face-to-face.
165 Mr Newton expressed the view that the website enables readers to comment on news stories and give their point of view and enables them to comment on, support, or criticise, points of view expressed by others, as well as to take part in discussion and argument with others.
166 In short, Mr Newton regards the website as the “electronic version of a public meeting” where people can give their opinion freely about matters of interest, hear the opinions of others and express their own views of those opinions, supportive or critical.
167 Mr Newton believed and continues to believe that the provision of the interactive website and the discussions that it encourages are in the public interest as it enables people to discuss issues publicly and expose people to other points of view.
168 Mr Newton’s view at the meeting with the other editors, with which they agreed, was that within legal boundaries the respondent should permit robust and open debate, and the contributors should be free to put forward their own points of view. The respondent wants to “allow as much freedom of speech on the site as we possibly lawfully can”.
169 At the time Mr Newton made his affidavit, he said the perthnow website received about 40,000 story comments a month.
170 Mr Newton also explained that not all contributions to the perthnow website are published, rather, they are “moderated”. He said that when a person submits a comment for publication as a blog, it is first sent to The Sunday Times and is not accessible by the general public. The comment appears in a box with three choices for the moderator: “unaction”, “approve” or “decline”. By selecting the appropriate option box, if the comment is approved it will appear on the perthnow website. If it is declined, it will not appear.
171 It is also possible, however, to edit a comment. However moderators most often consider a comment in its entirety and either decline or approve it. Sometimes a comment may be edited to remove an expletive. Generally the moderators prefer, where possible, to avoid editing comments because blogging allows the community to frankly debate an issue and it “would become artificial if the contributions were edited to the same level as if they were appearing in other parts of the newspaper”.
172 The “moderators” of whom Mr Newton spoke, are “experienced journalists” and only journalists with a certain level of experience are permitted to moderate the blogs. But merely because a person has been a journalist for a certain number of years does not automatically qualify them to be a moderator. It is Mr Newton’s decision to allow a journalist to moderate readers’ comments and it is based on a person’s degree of experience. He indicated that a person’s unsuitability as a moderator would be indicated if they are “overlooking of contributions where the contributor is obviously ‘playing the man’ rather than the issue and making a ‘purely personal attack’ unrelated to a wider issue”. Another example is where obvious warning bells are missed, for example, the use of the word “corrupt”.
173 Mr Newton said that whenever he decides to test a journalist’s potential as a moderator, he permits the journalist to moderate comments but checks their work himself in order to form a view about their suitability on a permanent basis.
174 As a general rule no one is permitted to be a moderator with less than five years experience and the majority of moderators have between 10-20 years experience in journalism.
175 Mr Newton also encourages all the moderators to raise any concerns they have not only with their colleagues, but also with him.
176 Mr Newton also acts as a moderator and, when he is moderating, he compares the comments to the issues of public interest raised by the story to see if the comments relate to those issues. He looks at the tenor of the comments and the language that is used. He asks himself: is the contributor, by the comment, making a point that could be honestly held and is it part of the discussion of the issues raised or is it mere abuse?
177 As a moderator, Mr Newton says his role is not to allow comments which support his own view of an issue, or to disallow comments which lack sophistication, or are badly expressed. He seeks to moderate comments to provide the variety of views that the community holds. He would not, as a moderator, allow a comment that he believed was not made in good faith or was not the opinion of the person making the comment.
178 Thus, Mr Newton said this approach is what he encourages in a moderator and is a way in which he believes each moderator approaches his or her task.
179 As to the comments that were published on the perthnow website, of which complaint is now made, Mr Newton says a large number of comments were received and they raised a variety of complicated issues, which he considered legitimate matters for the expression of opinion by readers.
180 In this regard Mr Newton stated that Western Australia, and probably Australia: “has a significant problem with youngsters who steal cars, particularly underage and unlicensed youngsters, and kill or injure themselves and their passengers. This is a problem that is not confined to indigenous children”.
181 Mr Newton also expressed the view that the incident cannot be divorced from the issue of well known problems in Aboriginal communities:
Indigenous people are grossly overrepresented in the prison population. It would be pointless to deny that in Western Australia there are social issues of dysfunctional families in aboriginal communities that are linked to delinquency in young people. There is an ongoing and urgent debate about the best way of tackling issues like juvenile crime in aboriginal communities, and social problems faced by indigenous communities generally.
182 Mr Newton said that he considers those issues to be matters of public interest and debate about those issues are in the public interest. He referred to examples of comments, including a comment by the deceased boys’ primary school teacher to exemplify this approach.
183 I will refer below to other aspects of Mr Newton’s evidence.
184 The respondent also tendered, and the Court received as an exhibit without objection, a bundle of various publications to do with the accident to show that comments appeared not only in The Sunday Times but also in a rival newspaper, The West Australian.
185 Finally, the respondent tendered and the Court received as an exhibit without objection another bundle of documents concerning publications on the perthnow website from 14 April 2011 concerning an article about an unrelated vehicle collision which had been the subject of a number of comments on the website and which the respondent considered might be compared with the comments complained of in this proceeding.
186 I should note that so far as the questions of contravention are concerned, these last two exhibits are of limited usefulness.
identifying the “reasonable victim” in this case
187 In considering whether the publication of the comments complained of by the applicant are objectively reasonably likely, in all the circumstances, to offend, insult or humiliate, the question arises whether it is appropriate to regard the comments from the perspective of the applicant herself, who says she was the target of the comments, or of a group or subgroup of which the applicant is a member. Senior counsel for the applicant initially contended, in opening the applicant’s case, for a group of which the applicant is a member – “the local Aboriginal community” – but in reply submissions suggested the appropriate perspective may be that of an “ordinary member of the local Aboriginal community whose children had just been killed in an accident”.
188 As Bromberg J explained in Bolt, in some cases the perspective of a person directly affected may be appropriate. In that case, however, the Court took the perspective of a subgroup of which the applicant was a member.
189 As Kiefel J noted in Cairns Post, it will not always be appropriate to cast the reasonable victim too broadly. The potential danger in doing this is that an act which might truly be offensive will not be so regarded by a reasonable member, or all reasonable members, of a wider group.
190 Most decided cases I have referred to, however, tend to select a reasonably broad group perspective. I am inclined to think it is also the appropriate perspective to adopt in this case. I would be concerned that, if I were to adopt the “grieving parent” perspective suggested by the applicant in reply submissions, the focus of the inquiry would become the subjective response or emotional response of a member of the group to something said, and that this would be too far removed from the proper focus of the inquiry suggested by the authorities, as to whether serious effects or consequences of a discriminatory kind are likely to flow from an act complained of.
191 In this case, I consider the appropriate perspective is that of adult members of the local Aboriginal community, including parents and carers of children. While a reasonably broad perspective, it encapsulates the persons who are likely to be offended by the statements complained of, but is not so narrowly cast as to invite a consideration of the subjective or emotional concerns of a grieving parent.
192 In the result, it seems to me, in the particular circumstances of this case, that I should adopt the perspective of a “reasonable member of the adult local Aboriginal community, including parents and carers of children” in assessing whether para (a) of s 18C(1) is satisfied in the case of each publication complained of. I will hereafter refer to this group simply as the “reasonable victim” or “the local Aboriginal community” for the sake of convenience.
comment 108 of 114
193 The applicant first complains about publication of the following reader’s comment, which as published reads:
if these young people had not been killed in the course of their criminal activities they would have continued stealing cars and putting the lives of innocent law abding citizens at serious risk... Will the law abiding public be given important information re the criminal history of these families as they are the ones footing the huge bill for this matter.
Posted by: John of 8:27am July 12, 2008
Comment 108 of 114
(As in original.)
194 The applicant’s reaction to the publication of the 114 comments generally has been set out above.
195 The words complained of are part of a longer published comment which in full states:
sounda Very emotive. the fact of the matter is however that if these young people had not been killed in the course of their criminal activities they would have continued stealing cars and putting the lives of innocent law abding citizens at serious risk. Criminals who successfully avoid the law usually go on to more serious crimes home invasion using violence even rape. We do not know his these kids would have progressed or regressed, we can only take a look at the stats. and assume. Would also like to know who taught them to start a car without a key – not the other kids in their peer group. Smacks at an adult teaching kids criminal techniques doesn’t it. Will the law abiding public be given important information re the criminal history of these families as they are the ones footing the huge bill for this matter.
(As in original.)
196 The applicant draws particular attention to the passage that:
…if these young people had not been killed in the course of their criminal activities they would have continued stealing cars and putting the lives of innocent law abding citizens at serious risk,
and submits it is obviously offensive.
197 The respondent’s practical response to the applicant’s complaint about this and the other comments complained of, is to say that it was reasonable for the respondent to publish the comment. In saying that it was reasonable for the respondent to publish the comment, the respondent means to indicate two things. First, that the comment as published discussed legitimate matters of public concern and so the comment is not one that objectively gave offence for the purposes of para (a) of s 18C(1), and also for that reason was not published “because of” the Aboriginal race of the applicant. Secondly, because it was reasonable to publish the comment for these reasons, the publication of the comment was done “reasonably” for the purposes of the exemptions created by s 18D of the RD Act and relied upon by the respondent in this case. Thus, it may be seen that the concept of reasonableness is raised and addressed in two separate circumstances: first, in relation to the question of primary liability under s 18C and, secondly, in relation to the question of exemptions under s 18D.
198 Accordingly, if the respondent is unable to make out that it was reasonable for it to publish a comment, because the comment objectively gave offence for the purpose of para (a) of s 18C(1) and was made “because of” race for the purposes of para (b) of s 18C(1), then the respondent will be taken to have contravened s 18C and will not be entitled to claim any exemptions under s 18D because its act of publication will not have been done “reasonably”.
199 In short, unless the respondent can make out its claim that each comment complained of was reasonably published by it, on the basis referred to, then the Court should infer that one of the reasons for the publication of the comment was because of the Aboriginal race of the applicant and members of the group to which she belongs. In such circumstances, as discussed above in relation to the question of causation and media outlets, where the respondent moderated comments before publishing them, it is not open to the respondent to say, “But we only published what the reader sent us”. The act of publishing a comment which is objectively offensive because of race in such circumstances will give offence because of race as much as the public circulation of such a comment by the original author might have done.
200 I proceed now to consider this first comment complained of and then to consider each of the others in turn.
201 The aspects of Comment 108 of 114 that have the potential to give offence to or to insult the reasonable victim are, first, the assertion that if the boys had not been killed “they would have continued stealing” thereby putting the lives of innocent citizens at risk, and, secondly, the demand for the law abiding public to be given “important information re the criminal history of these families” as they (the public) “are the ones footing the huge bill for this matter”. The reference to the “huge bill” in the context of this comment is to the online report of a large contingent of police being present during the funeral and burial of the 17 year old deceased occupant of the vehicle, Quinton Humes.
202 On behalf of the respondent, senior counsel draws attention to the complete comment and submits that what is being said in this comment, in very unsophisticated language, is that if the boys had not perished in a motor vehicle accident, there is a real chance they would have progressed to a further degree of criminality because that is something that commonly happens. It also asks the question as to who taught them to start a car without a key and whether one is going to find out something about the background of the families and whether they had a criminal history.
203 Senior counsel for the respondent says that one can understand that the applicant may find all that very offensive but there is nothing unreasonable about the sentiments expressed; they are perfectly legitimate. The comment is expressed badly, expressed crudely, but not unreasonably. Senior counsel says that the comment could have been expressed more sensitively but nonetheless contends it bespeaks a genuine expression of opinion by the member of the public. In those circumstances, the respondent says it was not unreasonable for it to publish the comment.
204 The applicant concedes in this instance and all others that comments dealing with the topics of the incidence of juvenile crimes and the issue of parental responsibilities in the Aboriginal community are proper topics for public discussion. The applicant also concedes the respondent published the comments in good faith. My understanding of this concession is that the applicant accepted Mr Newton’s evidence of subjective good faith in this regard, but considered it a question for determination by the Court whether, having regard to the particular publications, objective reasonableness and good faith is demonstrated in all the circumstances for the purposes of s 18D. I proceed on this understanding.
205 While there is force in the first part of the respondent’s formulation of the essence of the comments made, the effective call for “important information re the criminal history of the families” cannot be accounted for quite as simply as the respondent submits. The plain inference is that the families have “criminal histories” and this would explain how the boys learned to start stolen cars. This is a comment that, in my view, goes beyond any rational discussion of the incidence of juvenile crime and parental responsibility in the Aboriginal communities and effectively indicts the families concerned here without a proper foundation. To accuse anyone of being a criminal without a proper foundation is plainly offensive.
206 In my view, the moment the comment departs from what might arguably be said to be the broader issues of juvenile crime and parental responsibility, and descends into the character of the families of the young people concerned and their “criminal history”, a legitimate discussion of matters of public concern is difficult to discern.
207 For this reason, I find it is reasonably likely, in all the circumstances, that the reasonable victim, a reasonable member of the local Aboriginal community, including the parents and carers of children, would be offended or insulted by the words complained of because they assume the families of these boys have a “criminal history”, something the reader apparently considered would help to explain how the boys had learned to start a stolen car without a key, but fail to provide any foundation for the claim.
208 The simple fact that the families referred to were obviously Aboriginal potentially raises race as a factor for the making of the comment. The question raised is, how do relatively young Aboriginal children learn how to steal cars and start them without a key. The answer is: look at the families’ “criminal history”. In circumstances where the topics of discussion being posted on the website up to that point, generally speaking, were the Aboriginal boys killed in the car accident, juvenile offending in the Aboriginal community and the responsibility of parents in the Aboriginal community for the behaviour of their children, I consider the reasonable reader would infer that the comment directed at the families’ “criminal history” was made because they were Aboriginal and that race was a factor in the making of the comment. The lack of foundation for the offensive comment about “criminal history” compounds this conclusion and supports it.
209 In these circumstances, it was not reasonable for the respondent to publish the comment and the publication of it contravenes s 18C.
210 For those same reasons, the comment was not published reasonably for the purposes of s 18D.
211 As a result, I find the posting of Comment 108 of 114 on the perthnow website by the respondent contravenes s 18C of the RD Act and was not exempted under s 18D.
COMMENT 104 of 114
212 The applicant complains about the publication of the further reader’s comment, which as published reads:
I suggest to the Sunday Times reporters that they look at the criminal history of these boys. They were certainly not little goodie, goodie two shoes. Talk to the local police. They knew all about them.
Posted by: Norm of look a bit deeper 5:55am July 12, 2008
Comment 104 of 114
(As in original.)
213 The respondent submits that the expression, “they were not little goodie, goodie two shoes” may well have offended the applicant but there is nothing unreasonable about it or its publication.
214 This is a comment which, in my view, implies that the reader was apprised of particular information concerning the boys who had died in the car crash, and that he knew that the local police “knew all about them”.
215 To imply, at the least, that the deceased boys had a “criminal history” and were known to the police because of it, conveys that they had committed crimes, whether or not they had formal convictions. To say that they were “not little goodie, goodie two shoes” confirms the reader’s view that they had, putting it generally, “broken the law” in the past.
216 Whether the comment should, however, be considered reasonably like to offend, insult or humiliate the reasonable victim is the issue. Because the comment is so specific as to the prior “criminal history” of the deceased boys, it does not assume or suggest, for example, that all or most Aboriginal boys have a “criminal history”. It does not, in that sense, stereotype Aboriginal youth. And it is not a comment extending beyond the boys, for example to their families, as does Comment 108 of 114.
217 While the comment no doubt is offensive to the applicant personally, because she is the mother of the children and knows them as only a mother can, it is not at all clear that this comment is reasonably likely, in all of the circumstances, to offend, insult or humiliate the reasonable victim. Such a person may be taken to have known relatively little about the boys at material times. Certainly the evidence does not support any other view. As a result, this is a comment that I consider would raise uncomfortable questions for a reasonable member of the Aboriginal community, including parents and carers of children about the boys’ histories given it was not seriously in context that they had stolen at least the car they died in. Such a person might be concerned that unreasonable assumptions were being made about the boys – that because they were Aboriginal, they had criminal histories – but on balance I consider the reasonable victim would accept there was some apparent foundation for the comment and what was said was an issue to be explored.
218 As a result, I find the posting of Comment 104 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 102 of 114
219 The applicant complains about publication of the further reader’s comment, which as published reads:
until these young people gain the respect and gratitude of all races then they will continually be thought of as violent and criminals, can’t keep using the same excuse forever, everyone else has to gain the publics respect, why in the hell should that exclude aboriginals?
Posted by: annoyed of perth 1:50am July 12, 2008
Comment 102 of 114
(As in original.)
220 The particular words complained of are part of a longer comment which in full reads:
what good stories do gooder aboriginal? what, that an aboriginal actual works and lives a respectful life? well if thats the case i would expect all these people to come out and condemn the sillyness and stupidity of these young aboriginals, again you blame the white person for these idiots behavior. until these young people gain the respect and gratitude of all races then they will continually be thought of as violent and criminals, can’t keep using the same excuse forever, everyone else has to gain the publics respect, why in the hell should that exclude aboriginals?
(As in original.)
221 The respondent submits that this comment should be read in the light of Comment 52 of 114 and Comment 82 of 114 that in effect joined issue about media portrayal of Aboriginal people. In Comment 82 of 114 “Do gooder Aboriginal”, another reader posted a comment in response to Comment 52 of 114. This explains why the reference to “do gooder Aboriginal” appears in Comment 102 of 114. I accept that this plainly is the context of this comment.
222 Senior counsel for the respondent submits that while one may not agree with the point of view expressed as to why young people are “continually” thought of as “violent criminals” and may consider it crudely expressed, angrily expressed and intemperately expressed, there is nothing to suggest it was not reasonable to make that comment. If it was reasonable for the comment to be made then it was reasonable for the respondent to publish it. The only criticism in the comment, on the submission of senior counsel, was a criticism of the family and the respondent accepts that that would not please and would upset the applicant but does not establish the unreasonableness of the comment.
223 The applicant draws particular attention to the implication that she says can be drawn from this comment, that her boys were “continually… thought of as violent and criminals”.
224 In my view, however, taking this comment as a whole the reader may be taken simply to be making the point that until young Aboriginal people generally gain the respect of the community as a whole then, having regard to current events such as the accident, they are likely “continually” to be thought of as “violent and criminals”; and that the Aboriginal community needs to work for that respect. In that regard, the comment is not aimed at the boys in the accident but is trying to make a much larger point.
225 I do not consider that the publication of this comment is reasonably likely, in all the circumstances, to offend, insult or humiliate the reasonable victim.
226 As a result, I find that the posting of Comment 102 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 91 of 114
227 The applicant complains about the publication of the further reader’s comment, which as published reads:
now ‘the elders grieve’. Where were they when the little kids needed supervision late at night? RIP criminal and poor little boys…
Posted by: Marion of Perth 5:37pm July 11, 2008
Comment 91 of 114
(As in original.)
228 As the respondent submits, this comment would appear to be a response to Comment 10 of 114 which reads:
why brand me a redneck? not once did i mention race or colour. I called him a criminal which he was. Please tell me if you think he wasn’t a criminal? PS I’m university educated, work full time, never committed a crime and am surrounded by other educated respected people. Who in fact also share the same opinions as me on criminals.. Stop trying to bring race into you morons. I don’t care if he was white, black, pink or yellow, he was a criminal.. and i’m glad we have a few less to worry about.
Posted by: Gavin of 8.30am July 11, 2008
Comment 10 of 114
(As in original.)
229 One can understand how the applicant, the mother of the three boys who had died in the car crash, would be personally offended by Comment 91 of 114. Undoubtedly it would give a grieving mother considerable heartache to read a comment so directly critical of her oversight of the boys so soon after their deaths.
230 As to whether the comment is, however, reasonably likely in all the circumstances to offend, insult or humiliate a reasonable member of the Aboriginal community, including parents and carers of children, I am in doubt. As a matter of fact, the comment notes that Aboriginal “elders” were grieving, which was not untrue. The question as to why the boys - “the little kids” - were not being supervised was not a comment that, in all the circumstances, was unreasonably asked. The comment “RIP criminal and poor little boys”, however, may be thought to add a degree of invective or cynicism that affects a reasonable reading of the comment being made. If that phrase did not include the words “criminal and” it would be read perhaps as a sympathetic comment. The addition of those words tends to convey a cynical edge to the comment. However, by itself the use of word “criminal” in a context where there is no real dispute that the car the boys were travelling in had been stolen by them, would not make the use of the word “criminal” inapposite.
231 In the end, I do not consider that the publication of this comment is reasonably likely, in all the circumstances, to offend, insult or humiliate the reasonable victim. While the reasonable victim may well be affronted by the directness, and perhaps would feel stung by the use of the word “criminal” in the “RIP” phrase, I consider they would also recognise that it raises an important public issue regarding supervision of young boys at night by their elders.
232 As a result, I find that the posting of Comment 91 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 84 of 114
233 The applicant complains about the publication of the further reader’s comment, which as published reads:
…no one has had a fairer go and more encouragement plus billions of dollars than the aboriginal people of Australia. Apparently in the main to little avail. Life is simple, behave yourself, obey the law, look after your children and partner, create a domestic life conducive to raising kids. and people will give you the respect and admiration you deserve. Behave like morons and the community will react as it has over this case.
Posted by: Harry of 4:04pm July 11, 2008
Comment 84 of 114
(As in original.)
234 Senior counsel for the applicant says that all except the last sentence would have not brought this comment into question. Counsel accepts it is a legitimate form of public commentary apart from that sentence. But the last sentence contains derogatory terms – such as “morons” – and that is where offence is given.
235 On behalf of the respondent, senior counsel submits that the last sentence and the use of the word “morons” was just a piece of robust debate and that what the reader was saying was, “Life is simple, behave yourself, obey the law…”. Instead of making the reference to behaving like morons, the reader could have said, “behave stupidly or behave foolishly and the community will react as it has in this case” and there can be no objection to it.
236 In my view, this comment is not reasonably likely, in all the circumstances, to offend, insult or humiliate a reasonable member of the local Aboriginal community. The comment raises questions about parental responsibility and good behaviour, which, while patronising, are not calculated to offend, insult or humiliate the reasonable victim.
237 The only part of the comment that detracts from its otherwise reasonably neutral tone, is the last sentence in which the reader states: “Behave like morons and the community will react as it has over this case”. It is the use of the word “morons” that has a tendency to excite sensitivities. The word “moron” is defined by the Macquarie Dictionary (4th ed, The Macquarie Library Pty Ltd, 2005) (Macquarie Dictionary) relevantly as “a very stupid person”. Ordinarily, for one person to call another a “moron”, is likely to give offence when one has regard to the wide definition of “offence” mentioned above. But in the context in which the word is used in this comment, I do not consider, for example, a reasonable member of the local Aboriginal community, including parents or carers of children would take the comment to be one branding all Aboriginal people as “morons”. Rather the comment would be understood as saying that if a person “behaves” like a very stupid person then they can expect people to react in the way indicated by many of the readers’ comments published to that point on the perthnow website. This would not offend or insult them.
238 As a result, I find that the posting of Comment 84 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 66 of 114
239 The applicant complains about the publication of the further reader’s comment:
...criminal trash like these young boys
Posted by: Kylie of 1:59pm July 11, 2008
Comment 66 of 114
(As in original.)
240 The particular words complained of are part of a longer comment which as published reads:
I am a part of the law abiding, tax paying population that is appalled by this. These criminals died whilst breaking the law. Why are we as tax payers paying for funeral costs? Why are so many police man hours wasted on this funeral? To all those do gooders out there that say how sad all this is please try to keep that in mind when your car is stolen and your insurance premium goes up all because of criminal trash like these young boys. See how sad it is when the tax payers don’t cover your costs to fix or replace what criminals like this take away. Lets see how much respect you hold for them then.
(As in original.)
241 The applicant accepts that but for the words complained of, the complete comment would not contravene s 18C. The question is whether those words alter this outcome. The appellant submits they are obviously offensive.
242 On behalf of the respondent, senior counsel submits that in this comment the reader effectively is saying they are angry that police man hours were spent on the funeral. The commenter is angry that the background to it is that the car was stolen and this has an effect on insurance premiums. The objected to words follow. Senior counsel submitted these words are “an intemperate comment but it is not an unreasonable comment”. Senior counsel submitted that if it did not have the context of race in it, one would simply say it is intemperate but otherwise not objectionable.
243 In my view, to call someone “criminal trash” immediately raises the issue whether the phrase complained of is offensive or insulting. These words no doubt would have hurt the applicant, the mother of three of the boys who were killed in the car accident. The question is, however, whether the comment would be reasonably likely to offend or insult a reasonable member of the local Aboriginal community including parents or carers of children, either of themselves or when read in context.
244 There is no doubt that the particular sting is in the phrase, “criminal trash like these young boys”. The words “these young boys” refers to the four deceased Aboriginal boys, including the applicant’s three boys. They are thereby said to be persons within a class of people deserving of the description “criminal trash”. The comment is made without any justifying context apart from two car stealing incidents mentioned in the stories posted on the website by the respondent to that point; one in relation to the car crash, the other an allegation in relation to a burnt out car. The assertion that these boys were “criminal trash” is apparently made in that context alone.
245 The word “trash” is defined by the Macquarie Dictionary relevantly for the present purposes as “anything worthless or useless; rubbish” or “worthless or disreputable persons” and reference is also made to the United States of America colloquial and derogatory expression, “white trash”. The Shorter Oxford English Dictionary (5th ed, Oxford University Press Inc, 2002) (Shorter Oxford English Dictionary) offers similar definitions.
246 But I return to the expression actually used in this comment – “criminal trash like these young boys”. The boys are thereby labelled not merely as offenders against the criminal law, but as worthless or disreputable offenders against the criminal law. The question is whether a statement to this effect is reasonably likely, in all the circumstances, to offend or insult the reasonable victim.
247 In my view, the reasonable victim would be likely to be so offended or insulted. The reason is that the expression “criminal trash like these young boys” lumps the boys in with a group of persons who may objectively be classified as “criminal trash”. However, the only information and the only context created by the reports of the car accident in which the boys were killed, both in The Sunday Times and online, was that the boys had stolen the Holden Commodore in which they were killed, and may have been in the stealing of another car which had been discovered burnt out. In my view, the reasonable member of the local Aboriginal community, including parents and carers of children would likely be offended by the “criminal trash” tag because that background or context simply does not justify the labelling of these young boys in this extreme way.
248 As the respondent submits, other parts of the comment register a strong complaint about taxpayers’ funds being used at the funeral and about insurance premiums going up because of criminal behaviour and are removed from any direct reference to Aboriginal people. However, taking account of the context in which this comment was published, among many responding to the accident in which the boys – plainly identified by the photographs in the original article published in The Sunday Times as Aboriginals – were killed and issues concerning juvenile crime and parental responsibility in the Aboriginal community were being discussed – and which were alluded to in this comment as well – it is reasonable to infer that the reference to “criminal trash like these young boys” was made because of their Aboriginality.
249 In these circumstances, it was not reasonable for the respondent to publish the comment and the publication of it contravenes s 18C.
250 For those same reasons the comment was not published reasonably or in objective good faith for the purposes of s 18D.
251 As a result, I find that the posting of Comment 66 of 114 on the perthnow website by the respondent contravenes s 18C of the RD Act and is not exempt under s 18D.
comment 52 of 114
252 The applicant complains about the publication of the further reader’s comment, which the applicant incorrectly identified as 53 of 114 in the statement of claim. It is in fact Comment 52 of 114, which as published reads:
Don’t get me wrong but does this blog and previous blogs on this subject, just show how little the aboriginal community in perth are respected. i have to admit I hold very little respect for them, due to the multitude of times they are in the press committing crimes and causing general upset. I am aware of very good people who do so much for these communities, but unfortunately they are totally outnumbered, and the people of perth are fed up of the crime, the drunked and just general anti social behaviour of them. This blog is basically an outcry from society for the aboriginal community to pull their heads in and sort out your futures, and do it now.
Posted by: Dean of Perth 12:18pm July 11, 2008
Comment 52 of 114
253 As noted above in relation to Comment 102 of 114, this Comment 52 of 114 was in effect the beginning of a chain that finished with this comment.
254 In my view, the publication of this comment is not reasonably likely, in all the circumstances, to offend, insult or humiliate a reasonable member of the local Aboriginal community.
255 The comment, whilst made in the context of other reports and commentary following the death of the boys in the car accident, does not focus on those boys, but on the phenomena of widely reported criminal behaviour within the local Aboriginal community.
256 While the comment might, in the view of some, tend to depict a view that many Aboriginal people are involved in the commission of crimes and “causing general upset”, I consider the reasonable victim would not seriously quibble with and not be offended or insulted or humiliated by the proposition that there are a “multitude of times they [Aboriginal people] are in the press committing crimes and causing general upset”. They would be likely to accept this as a very general, if not from their view an entirely balanced comment, about the incidence of Aboriginal involvement in the criminal justice system.
257 While the reasonable victim might be pained by the references to the extent of such criminal involvement and the causing of upset, I do not consider it is reasonably likely that they would be offended by this comment or insulted or humiliated by it. They would be strengthened in taking this view by noting the reader’s further observation there are “very good people who do so much for these communities”, a comment that in context includes “good Aboriginal people”.
258 Thus, in my view, while the reasonable victim might not consider this comment to be entirely balanced, I consider they would not be likely, in all the circumstances, to be offended, insulted or humiliated by it.
259 As a result, I find that the posting of Comment 52 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 51 of 114
260 The applicant complains about the publication of the further reader’s comment, which as published reads:
Let em all fight and kill each other i say!
Posted by: Unreal! of Perth 12:09pm July 11, 2008
Comment 51 of 114
(As in original.)
261 On behalf of the respondent, senior counsel submits that this article was about the funeral of the driver of the crash vehicle, not about the applicant’s sons. The respondent emphasises that there was a heavy police presence at the funeral and some expectation there could be trouble. That is the context for this comment. The comment therefore should be seen as a “throwaway line”. While it is distasteful it really is a “mere slight”. It has nothing to do with the applicant’s family. It was plainly a comment directed to the people who attended the funeral of the driver.
262 This is a comment that, in my view, has regard to various comments that had been made on the perthnow website up until that date and time and not just a comment on the original story about the car crash involving the boys. Indeed, it should be considered, as submitted by the respondent, a comment directed more at reports of possible unrest that might possibly occur at the burial of Quinton Humes.
263 The use of the exclamation mark at the end of this comment may suggest that the reader intended to convey a “light” comment. Such a comment, however, particularly in the context of the other comments published on the website to that point, should not be considered light and I doubt that a reasonable victim would take it that way. Rather, the reasonable victim would read the comment as betraying a lack of respect for Aboriginal people. The reference to “em all” and “each other” is plainly, in the context of all the comments posted on the website to that point, a reference to Aboriginal people – although perhaps limited to those attending the funeral and burial.
264 When one takes into account all of the circumstances here, and the fact that this comment has little, if anything to do with the tragic car accident, but has to do mainly with reports concerning the potentially difficult relations between persons who might attend the burial of Quinton Humes, I do not consider this comment is reasonably likely, in all the circumstances, to offend, insult or humiliate the reasonable victim. While I do not think they would consider the comment merely as a “throwaway line”, as suggested by the respondent, I consider they would treat it as a disrespectful and ignorant comment made by a person not familiar with Aboriginal people or culture, but falling short of being offensive or insulting and best just ignored.
265 As a result, I find that the posting of Comment 51 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
Comment 46 of 114
266 The applicant complains about the publication of the further reader’s comment, which as published reads:
…not only are we paying for the police protection, we are also more than likely paying to bury the children (I bet the mother won’t be forced to pick up the tab like everyone else). I’m all for equality ... but stop pulling the race card, everyone is aware of the financial benefits of being an indigenous australian. You want respect ... time to earn it (by behaving appropriately at a funeral). You have no one to blame but yourselves for the deaths, so stop misdirecting your anger and actually learn from your mistakes.
Posted by: Brett of No Special Treatment 11:41 July 11, 2008
Comment 46 of 114
(As in original.)
267 On behalf of the respondent, senior counsel submits that this is another comment that is not well expressed, is unsophisticated, lacks restraint and is unrefined, but that the reader is merely expressing a commonly held view that what is being done for the indigenous community is not effective and personal responsibility needs to be taken.
268 In my view, this comment conveys a mish-mash of complaints by the reader. It appears to be another comment responding to the online article about police oversight at the funeral service and burial of Quinton Humes, as well as other issues including the death of the boys in the car accident.
269 As to the first observation that “not only are we paying for the police protection” I do not consider it is likely, in all the circumstances, to offend, insult or humiliate a reasonable member of the local Aboriginal community. The question of how public resources such as the police should be deployed is something upon which a range of views might be expressed. There is nothing particularly offensive, insulting or humiliating about it.
270 That observation however gives rise to the second comment that “we are also more than likely paying to bury the children (I bet the mother won’t be forced to pick up the tab like everyone else)”. There is nothing in the context of articles or comments published in The Sunday Times or the perthnow website up to that point to suggest that the public would be meeting the expense of the funeral, nonetheless this reader has made that comment. Having made the comment, and apparently treating it as a matter of fact, the reader then complains about indigenous Australians receiving greater financial benefits than others, and demands that, “You want respect… time to earn it (by behaving appropriately at a funeral)”.
271 So far as the comment about the public having to pay to bury the children and the mother not being forced to do so, I do not consider it is reasonably likely, in the circumstances, to offend, insult or humiliate the reasonable victim. Such a person would undoubtedly consider that the comment, particularly when read with the subsequent comment about indigenous Australians having financial advantages, assumes or entertains a view that all Aboriginal people are unreasonably financially advantaged by the expenditure of public resources. But even so, and as uninformed as such a comment might appear to be to the reasonable victim, and as much as they might disagree with the sentiments being expressed, I do not think, in all the circumstances, they would be offended, insulted or humiliated by it.
272 As to the further comment in which the reader says, in effect, that if “You want respect” – which I consider the reasonable reader would take to be a reference not just to the applicant but to Aboriginal persons affected by the recent death of the boys and who would be attending the funeral or burial – you should behave “appropriately at a funeral”, again I consider that it is not reasonably likely, in all the circumstances to offend, insult or humiliate the reasonable victim. Rather, it would be treated by them as an uninformed, ignorant comment as to the cultural circumstances in which Aboriginal funerals are conducted, falling short of being offensive or insulting and best simply ignored.
273 All of these passages in the comments to this point may well be hurtful to a reasonable victim, but it is the last sentence of the comment complained of that would probably be the most hurtful to them:
You have no one to blame but yourselves for the deaths, so stop misdirecting your anger and actually learn from your mistakes.
(As in original.)
274 Again, the reference to “you” in this comment would be understood by the reasonable reader to be a reference to members of the local Aboriginal community generally and not exclusively to the applicant or family members of the deceased boys. The comment is plainly hurtful because it lays the blame for the boys’ deaths at the feet of the local Aboriginal community and its members, including no doubt the applicant and other family members. But the point of the comment is that the local Aboriginal community have real responsibilities in bringing up children which, if met, would likely mean such tragedies would be avoided. Rightly or wrongly, the comment suggests that those with responsibility for the upbringing of children have made “mistakes”.
275 In my view, it is not reasonably likely that the reasonable victim would take real issue with the broad concerns expressed in these particular comments concerning the upbringing of children. They might not agree with the comments and may think they over-generalise and are unfair, and they may also wish to debate the “mistakes” that are said to have been made. But the substance of the comment made in this passage is not one that would offend, insult or humiliate the reasonable victim, in my view, as it is an issue they too would agree needs addressing.
276 As a result, I find that the posting of Comment 46 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 36 of 114
277 The applicant complains about the publication of the further reader’s comment, which as published reads:
…I doubt the families will even be able to behave themselves at the funeral…
Posted by: John of 10:52am July 11, 2008
Comment 36 of 114
(As in original.)
278 On behalf of the respondent, senior counsel submits that this comment again is not about the family of the applicant, but about the family of the driver of the crash vehicle. Senior counsel submits that there was in fact a large police presence at the funeral and there is nothing unreasonable about this comment.
279 I doubt that this comment is one that is likely, in all of the circumstances, to offend, insult or humiliate the reasonable victim.
280 I have no doubt that the comment might well be hurtful to and even offend or insult the applicant and other members of the families of the deceased boys, but the question is whether the reasonable victim would be offended, insulted or humiliated by this comment.
281 The background to the comment is that the respondent had published online an account initially of the funeral of Quinton Humes and, as noted above, had suggested that a large number of police had been assigned to watch over the funeral service and then the burial. Statements were made to the effect that there were concerns that the family of the deceased driver might be the subject of some retribution from other family members.
282 In this comment the reader doubts that the families “will even be able to behave themselves” at the funeral, suggesting perhaps that the families generally have a behaviour problem which is sufficiently serious that even a serious occasion like a funeral of one of their members may not temper it. But the particular comment complained of should be read in the context of the complete comment posted online:
reddy of perth I doubt the families will even be able to behave themselves at the funeral and after. Why do you think the WAPS has fielded 60 officers ? Certainly not because the funeral will be invaded by the “rednecks” who are blogging here that for sure. Hasn’t the tennage survivor of crash had to go into hiding after threats from the families and friends of the victims? Says it all doesn’t it.
(As in original.)
283 In my view, a reasonable member of the local Aboriginal community would not construe the particular words complained about as implying or inferring, for example, that all Aboriginal people always misbehave, or always misbehave at funerals or the like. The comment in context is one drawn from what had been reported on the website concerning the number of police who had been “fielded”, and the report that the teenage survivor of the crash had gone into hiding. It gave rise to the comment that the families may not be able to behave even at the funeral.
284 In my view, it is reasonably likely that the reasonable victim would consider this an unbalanced, uninformed and ignorant comment that unfairly targets the families’ concerned in the funeral, but they would not be offended or insulted by it in all the circumstances of the accident, the deaths, and the reported potential dissention in the local Aboriginal community.
285 As a result, the reasonable victim would not be likely, in all the circumstances, to be offended, insulted or humiliated by the comment, as annoyed as they might be by the making of the comment directed at the families concerned.
286 As a result, I find that the posting of Comment 36 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 35 of 114
287 The applicant complains about the publication of the further reader’s comment:
Why on earth should all the law abiding citizens out there pay for protection of criminals and those that condone such behaviour.
Posted by: Amanda of perth 10:40am 11 July, 2008
Comment 35 of 114
(As in original.)
288 On behalf of the respondent, senior counsel submits that this comment is very much like Comment 36 of 114 just dealt with and the question should be asked why a member of the public should not be entitled to express the view given; it is in that sense a reasonable comment.
289 The comment complained of is part of the following complete comment, which as published reads:
Verb Of Perth – who pays the wages of government staff including the police. Yep, that’s right the taxpayers!!!!! Why on earth should all the law abiding citizens out there pay for protection of criminals and those that condone such behaviour. 60 police what a crock and a cop out (no pun intended). HARRY of WA couldn’t have said it better.
290 There are a number of aspects of this comment that, in my view, would be likely to attract the concern of a reasonable member of the local Aboriginal community and which mark it out as different from Comment 36 of 114. On one view, the comment seems to classify the people or many of them who will be attending the funeral as either “criminals” or “those that condone such behaviour”. The reasonable victim would be concerned about any unwarranted stereotyping of Aboriginal people who would be attending the funeral or many of them in these ways.
291 However, on reflection I consider the reasonable reader would consider that all the comment does is draw attention to the large public expenditure being made to ensure everyone involved in the car stealing – such as the teenage survivor who was reported online to have gone into hiding – and those who might support them should not be “protected” in this way. It may be considered a disrespectful comment but I consider it is not one that would be reasonably likely, in all the circumstances mentioned above, to offend or insult them.
292 As a result, I find that the publication of Comment 35 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 32 of 114
293 The applicant complains about the publication by the respondent of the following further reader’s comment, which as published reads:
With so many officers having to attend this criminals funeral for what – to ‘keep the peace’?? Maybe if the people involved took on responsibility, police wouldn’t have to attend.
Posted by: Harry of WA 10:11AM July 11 2008
Comment 32 of 114
(As in original.)
294 On behalf of the respondent, senior counsel submits that the same observations made by the respondent in respect of the previous two comments complained of apply also in this case. The comment is about police presence at the funeral and there is nothing unreasonable about it.
295 This is the comment by “Harry of WA” that “Amanda of Perth” made reference to in Comment 35 of 114 referred to above. I do not consider that this comment is reasonably likely, in all the circumstances, to offend a reasonable member of the local Aboriginal community.
296 Unlike Comment 35 of 114, this comment does not suggest that those attending the funeral or burial are themselves criminals or persons who condone such behaviour. The burden of this complaint is that if the persons attending the funeral “took responsibility” there would be no reason to suspect there would be any retribution or disturbance at the funeral and thus no need for a large number of police to attend.
297 While the reasonable victim might think that the reader does not have a fully informed understanding of the cultural circumstances in which Aboriginal funerals or burials are conducted, I do not consider the comment would be reasonably likely, in all the circumstances, to offend, insult or humiliate them. They would accept that ordinarily police are not required to attend Aboriginal funerals and do not do so, and that some people might be puzzled and question why so many police should have to attend this one. They would accept that the police presence may not have been required if the boys’ deaths had not occurred in the circumstances in which they did, which may raise a question of “retribution” in the Aboriginal community.
298 In these circumstances, the publication of the comment is unlikely to offend or insult the reasonable victim.
299 As a result, I find that the posting of Comment 32 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 30 of 114
300 The applicant complains about the publication by the respondent of the further reader’s comment, which as published reads:
…today will show the real family. If this goes off with trouble it will only prove how ferrell the rest must be and have no respect for anything even the dead. I have thoughts on the deceased and those I will prefer to keep to myself. Today is reckoning day for the rest of his so called greeving family.
Posted by: Kristofferson of Perth 9:59am July 11, 2008
Comment 30 of 114
(As in original.)
301 The respondent says this is a comment not unlike the previous two just considered and it was not unreasonable for the respondent to publish it.
302 I doubt that this comment is reasonably likely, in all the circumstances, to offend, insult or humiliate the reasonable victim. I have no doubt that it would upset the reasonable victim because it is lacking in respect for the applicant and the families who had just lost four young boys in tragic circumstances and would be very hurtful to them for that reason. It would also upset them because it plainly suggests that the families of the deceased boys may well be incapable of behaving properly at the funeral of one of their own family members. But I doubt the comment would be reasonably likely, in all the circumstances, to offend or insult the reasonable victim. They would simply recognise that some people will hold such a cynical, disrespectful and hurtful view. Ultimately, weighed against the consideration of whether the effect or consequence of the comment on the reasonable victim is likely to be serious, I am left in real doubt that it would. Cynical, disrespectful and hurtful, yes, but not, in all the circumstances, offensive, insulting or humiliating. For this reason, I am not satisfied on the balance of probabilities that this comment contravenes s 18C.
303 As a result, I find that the posting of Comment 30 of 114 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 29 of 114
304 The applicant complains about the publication of the further reader’s comment, which as published reads:
You can post as many comment as you like but it wont change anything untill the law makers of this land get off thier fat a## and get out of thier ivory towers and start dealing out real punishment to the low life instead of the 5 star treatment they get in prison they get 3 squares aday tv computers clean beds there are lots of holes in [Kalgoorlie I would use these scum as land fill
Posted by: Jack Reacher of 9:45am July 11, 2008
Comment 29 of 114
(As in original.)
305 On behalf of the respondent, senior counsel submits that this is again another comment about the funeral but one that particularly evidences a lack of education, lack of sophistication and oversimplification. Senior counsel submits that when boiled down the reader is simply saying that, “I don’t agree with, I think that the people that make the laws are being too soft on criminals and we need to increase punishments”. That is a legitimate point of view, even if it is a gross simplification but a point held by many in the community and there is no reason why it should not be expressed. Senior counsel submits the reader could have shown more restraint in the final words, but was “obviously not intending his comment to be taken literally … It is just a turn of phrase”.
306 The applicant draws attention to the whole of this comment, noting its peroration, “I would use these scum as land fill”. Senior counsel for the applicant submits that while this is a general comment apparently directed at Aboriginal people generally it must necessarily include the Aboriginal people who have been the subject of comments on the website and it is undoubtedly offensive. It even fails the test which Mr Newton set himself as it does not betray any comment on a matter of public interest. It does not contribute to public debate. It is entirely abusive and a highly inappropriate thing to say about anybody.
307 In my view, this comment does not leave anything to the imagination. It does not challenge the reader to infer anything to understand his view that “real punishment” should be accorded “low life”. Having mentioned “lots of holes…in Kalgoorlie” – plainly a reference to old, disused mineshafts in the Kalgoorlie Goldfields region of Western Australia – he says, “I would use these scum as land fill”.
308 I have no hesitation in finding that this latter expression, in the context of all the commentary on the website up to that point, and in the context of words used in the comment itself would be read by the reasonable reader as including the Aboriginal boys who had died in the car crash. Any other reading would be contrived and artificial. While “low life” are deserving of “real punishment”, “these scum” deserve to be used “as land fill”. The expression “these scum” may refer to all “low life” but it should particularly be taken to include the deceased Aboriginal boys.
309 The word “scum” is used here in its most pejorative way. The relevant definition of “scum” in the Shorter Oxford English Dictionary is “worthless, despicable people; the most contemptible part of the population of a place, society etc”. This is exactly what the comment conveys. The boys are considered to be so despicable they should be used to fill a disused mineshaft near Kalgoorlie – that is to say, disposed of without trace. This comment is so deeply offensive, insulting and humiliating that it is breathtaking. For the respondent to suggest it was not meant to be taken literally and should be treated as “just a turn of phrase” is, to say the least, unacceptable.
310 I have no doubt that the words used in peroration are likely, in all the circumstances, to offend, insult and humiliate the reasonable victim. The sentiments expressed in this comment – that the boys were such “scum” that they deserved to be placed in a unmarked grave, being a disused mineshaft in Kalgoorlie, condemns the boys, in effect, as hardened habitual criminals without any likely hope of redemption and for whom complete eradication, even in death, was the only fitting result for their contravention of the law. Absolutely nothing in the context of what the respondent had reported in its newspaper or that it had published on the perthnow website, or in any of the other readers’ comments can justify such an utterly offensive, insulting and humiliating comment.
311 I also consider the comment was made “because of” race. While Aboriginal people are not mentioned expressly, the context in which the comment was published, in which concerns about the commission of juvenile crime by Aboriginal youths was a topic of general discussion following the stealing of a car by the Aboriginal boys in this case, leads me to infer that it was only made because of the Aboriginal race of the boys.
312 The comment, particularly that portion of it that states, “I would use these scum as land fill”, is an extreme example of a gratuitously insulting and offensive remark. The gravity of the comment is extremely severe and there is nothing in this particular aspect of the comment that makes it appear relevant to the apparent thrust of the earlier part of the comment which seeks to deride the effort of law makers to mete out real punishment to extreme criminals.
313 While the respondent justifies the publication of this comment as with all others on the basis that it was facilitating and encouraging public debate and discussion on matters of public importance, including as to the parental responsibility of persons in the Aboriginal community in relation to the prevalence of juvenile crime in the Aboriginal community, the posting of this comment which concludes with such a breathtakingly gratuitous insult concerning what should be done with “these scum”, which expression as I have found should be taken to include the deceased Aboriginal boys, is indefensible. It was not reasonable for the respondent to publish the comment and the publication of it contravenes s 18C.
314 For the same reasons this comment was not published reasonably or in objective good faith for the purposes of s 18D of the RD Act.
315 I find that the publication of Comment 29 of 114 on the perthnow website by the respondent contravenes s 18C of the RD Act and is not exempt under s 18D of the RD Act.
comment 134 of 179
316 The applicant complains about the publication by the respondent of the further reader’s comment, which as published reads:
yeah,yeah i feel sympathetic to the families of these car thieves,but i don’t give a rats arse about the fact that they died stealing a car and speeding away from police. I couldnt care lees if it was a white prickwho did it or in this case some black pricks who did it............AT THE END OF THE DAY WHEN THE DUST SETTLES AND YOU ALL HAVE A LITTLE THINK ABOUT IT. THEY BROKE THE LAW AND MY THANKS GO OUT TO THE PARENTS FOR DOING A LOUSY JOB RAISING AND EDUCATING YOUR CHILDREN,SHAME ON YOU!!!!
Posted by DOCTOR OF PERTH of 1.08pm July 18, 2008
Comment 134 of 179
(As in original.)
317 On behalf of the respondent, senior counsel submits that this is another crude, badly expressed comment by a person with little education. Senior counsel submits that what the reader is effectively saying here is, “I feel very sorry for the family, but bear in mind I can’t have much sympathy given that they have died in stealing a car, speeding away from police”. That may be distasteful but it is not an unreasonable thing to say. In fact the reader goes on to say that it is immaterial to him whether it was a white person who died stealing a car or a black person.
318 As to the capitalised comments directed to “the parents”, senior counsel submitted that comments were made on the basis that the commenter did not care whether the parents were white or black and so there was no racial discrimination in that comment”.
319 In my view, this comment may be described as a particularly heartless comment. On the one hand, the reader expresses sympathy to the families of boys who have stolen the car and died in the accident, saying, in effect that they have sympathy regardless of the fact that the boys had stolen a car and regardless of the fact that they were Aboriginal. The point of the comment appears to be the uppercase comments that follow, which express anything but sympathy, and which criticise the parents of children who died in such circumstances for failing to bring their children up properly. Thus, whilst on the one hand there is some sympathy expressed for the families of the deceased children, there is also criticism of a cynical kind directed at the parents for failing to bring their children up properly.
320 But for all of its heartlessness, I do not consider that the comment, particularly the uppercase criticism of the parents, is one that is reasonably likely, in all the circumstances, to offend, insult or humiliate the reasonable victim. The reasonable victim would no doubt consider the comments heartless in the manner I have described, and may well consider it uninformed. But they would also accept that the reader is addressing a question of how it can happen that children can be involved in car stealing unless parents are not providing an adequate upbringing for their children. To imply blame for parents may be uninformed and heartless in the circumstances as they prevailed at the time the comment was made, but such a comment is not reasonably likely, in all the circumstances, to offend, insult or humiliate a reasonable victim.
321 As a result, I find that the posting of Comment 134 of 179 on the perthnow website by the respondent does not contravene s 18C of the RD Act.
comment 96 of 179
322 The applicant complains about the further reader’s comment, which comment as published reads:
Look if you’re hopeless at mothering, recognise you are hopeless and don’t breed. Saves an awful of of people, including yourself , the offspring, their victims a bucket to trouble, heartbreak and other peoples money.
Posted by: Marge of 10:26am July 18, 2008.
Comment 96 of 179
(As in original.)
323 On behalf of the respondent, senior counsel submits that this is another comment which is, “intemperately expressed”. Senior counsel points out that 179 comments were posted relating to the online article published on 17 July 2008 concerning the funeral of the applicant’s three boys. Some were supportive but many were not. The respondent accepts that this comment would have been “hurtful” to the applicant but it was not unreasonable for the respondent to publish it. Senior counsel submits the point the reader was making, and “making unkindly” is that “these children…may not have been properly disciplined, they may not have been properly brought up, and, at the end of the day…the opinion that has been expressed is, people who aren’t very good at being parents probably shouldn’t be parents”. Senior counsel submits that if the comment had been put that way, with a bit more restraint and a bit more refinement, it would still have been hurtful but it would not have been an unreasonable comment for a person to make and therefore for the respondent to publish.
324 The applicant contends that this is a statement which the applicant could regard as having been directed to her personally. It effectively makes a judgment about her as a mother. The comments are to this point on the website about the Aboriginal community and are not in some broader context. As a result, this is an extreme comment about an Aboriginal woman, about whether or not she was capable of raising children and whether or not she ought to have any children. Her mothering skills are decried. It is an extremely derogatory comment and does not contribute to debate on any matters relating to public interest concerning the responsibility of parents in the Aboriginal community.
325 In my view, the way in which the respondent seeks to recast this comment is contrived. It plainly is capable of being construed as a direct attack on the applicant. I consider this comment is reasonably likely, in all the circumstances, to offend and insult the reasonable victim. Not only would the reasonable victim be offended and insulted by the attack on the applicant, but they would also read the comment quite reasonably as an attack on mothers in the local Aboriginal community who have behavioural trouble with their children. They would reasonably take offence and be insulted by the statement that many such mothers are “hopeless” and that they should not “breed”. The offence and insult is compounded by the demand that such mothers should save a range of people a lot of trouble, heartbreak and other peoples’ money by not having children. This is no mere impolite, badly worded, unsophisticated statement about a matter of public interest. This is personal abuse against mothers in the local Aboriginal community, including the applicant, who have children who have proved difficult to control.
326 There is also, in my view, little doubt that, in the context of comments posted on the website to that point, where the discussion has been about the car crash involving the death of the Aboriginal boys, issues of parenting in the Aboriginal community and the responsibility of parents in the Aboriginal community, that this comment was directly aimed at Aboriginal mothers, including the applicant, and not mothers in the general community. As a result, race was a factor in the making of the comment.
327 In these circumstances, it was not reasonable for the respondent to publish this comment and the publication of it contravenes s 18C.
328 For those same reasons the comment was not published reasonably or in objective good faith for the purposes of s 18D.
329 As a result I find that the posting of Comment 96 of 179 on the perthnow website by the respondent contravenes s 18C of the RD Act.
Remedies
330 I have found that the respondent contravened the RD Act in respect of the publication of the following comments:
(1) Comment 108 of 114;
(2) Comment 66 of 114;
(3) Comment 29 of 114;
(4) Comment 96 of 179.
331 The power of this Court to provide a remedy following contravention of the RD Act arises under s 46PO(4) of the AHRC Act:
(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:
(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;
(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;
(c) an order requiring a respondent to employ or re-employ an applicant;
(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;
(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;
(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.
332 The expression “unlawful discrimination” is relevantly defined in s 3 of the AHRC Act as meaning any act that is unlawful under Pt II of Pt IIA of the RD Act. Section 18C, which I have found the respondent contravened in respect of the publication of the above four comments, is in Pt IIA.
333 There is efficacy in the Court making an order declaring that the respondent has committed unlawful discrimination by contravening s 18C of Pt IIA of the RD Act in that it confirms the contraventions found, is likely to bring a sense of justice to those who have suffered as a result of discrimination, including the applicant, and reminds the respondent and media outlets generally, of the importance of the requirements of the RD Act.
334 It would also appear appropriate in the circumstances to direct the respondent not to repeat or continue such unlawful discrimination. An order to this effect will ensure that the discriminatory posts, if they are still able to be accessed by the public on the perthnow website, are promptly taken down.
335 In the circumstances of this case, orders pursuant to s 46PO(4)(b) and (c), s 46PO(4)(e) and s 46PO(4)(f) are not called for.
336 The applicant, however, seeks an order pursuant to s 46PO(4)(d) requiring the respondent to pay the applicant damages by way of compensation for loss and damage suffered because of the conduct of the respondent, comprising damages for offence, insult and humiliation, and exemplary damages.
337 It is generally accepted that an order for damages by way of compensation for loss or damage suffered “because of” the conduct of a respondent may be made under s 46PO(4)(d) where actual loss or damage has been suffered and there is an appropriate causal relation between the loss or damage suffered and the conduct of the respondent.
338 In this case the evidence shows and I find that the applicant is a person who was directly offended, insulted and humiliated by the contravening conduct found and suffered such economic loss.
339 It is generally accepted that under para (d) of s 46PO(4) damages may be awarded for both economic and non-economic loss, including for offence, insult and humiliation or the like: see Fetherston v Peninsula Health [2004] FCA 485 at [98], per Heerey J.
340 There is dispute, however as to whether exemplary damages are recoverable under para (d): see Hughes (formerly De Jager) v Car Buyers Pty Ltd [2004] FMCA 526; (2004) 210 ALR 645, where Federal Magistrate Walters considered contending authorities and found they are not. I note also that in Qantas Airways Limited v Gama [2008] FCAFC 69; (2008) 247 ALR 273 (Gama) at [94], French and Jacobson JJ stated that the damages which can be awarded under s 46PO(4)(d) are “entirely compensatory”. The applicant, however, draws attention to the Court’s broad power under s 46PO(4) to make such orders “as it thinks fit” and submits that this power should not be limited by the terms of para (d). There is academic support for this view: see for example, see Rees N, Lindsay K & Rice S, Australian Anti-Discrimination Law (The Federation Press, 2008) at [11.4.1]. No argument seems to have been put to their Honours in Gama in this regard. I note, however, that in Employment Services Australia Pty Ltd v Poniatowska [2010] FCAFC 92, at [133], a Full Court of this Court left this precise question open. In this case, however, for reasons explained below, the question does not need finally to be decided by me as I am not satisfied exemplary damages would be appropriate in this case even if the Court has the power to award them.
341 The applicant submits that generally damages should be awarded to compensate her for the devastating effect the respondent’s “media campaign” and resulting media commentary had upon her. The applicant says that the degree to which the media commentary adversely affected her reputation in the local community in Western Australia, near Perth, in which she lived, and criticism of her which it attracted forced her to leave her home and move interstate to Adelaide where her brother lived.
342 Assuming the Court has the power to award exemplary damages for breach of the Pt IIA of the RD Act, I do not consider that this is an appropriate case in which to do so. The reason for so finding is that while contraventions of the RD Act have been found, they are not as extensive as alleged. This, I consider, reflects the fact that the respondent endeavoured at material times to “moderate” or vet comments before publishing them to avoid precisely the type of claim made against it in this proceeding. It certainly has not adopted a cavalier approach to the publication of such readers’ comments. The process has not proved fool-proof, as my findings show, but it seems to have been applied with a degree of seriousness. The evidence tendered by the respondent identifies a range of comments that were culled by moderators in this case and never published. In these circumstances, the respondent’s conduct in contravention of the RD Act does not warrant an award of exemplary damages, assuming the Court has the power to award such damages.
343 As to the broad submission made on behalf of the applicant that the respondent conducted an unjustifiable and sustained “campaign” against her by the flow of articles and readers’ comments published in The Sunday Times and particularly online, I should make the following observations. Proceedings like this tend to involve a primary clash between the exercise of the right of free speech, on the one hand, and the right of a person such as the applicant to be accorded the protections granted by Pt IIA of the RD Act, on the other. The respondent at material times acted within its free speech right to report on the accident that involved the tragic death of four Aboriginal boys and publish readers’ comments about it and its implications for the community. Reports of this kind were almost bound to be upsetting for the applicant and the families of the deceased boys. It may be unreasonable to expect that a media outlet would ever refrain from reporting and facilitating comment on such a tragic event. Given the strong concerns in the general community at material times concerning the prevalence of juvenile crime in the local Aboriginal community and questions being raised about parental responsibility in that regard, it was unlikely any media outlet would fail to report the accident or refrain from discussing and facilitating discussion of its implications for the general community. Those questions, as the applicant accepts, were at material times valid issues of public concern that justified public discussion.
344 The most that one can, perhaps, hope for from a media outlet, or any person in the community dealing publicly with such a tragic event, is that they bear in mind that loved ones will be grieving in unimaginable ways in the immediate aftermath of their loss, and take care, as a matter of common decency, not to add unthinkingly to the hurt and pain they would be experiencing. However, as I say, public discussion of the accident involving the boys in this case was probably inevitable.
345 The remaining questions are what damages by way of compensation for offence, insult and humiliation would seem to be appropriate in favour of the applicant, whether aggravated damages should be awarded, and whether there is evidence of any other actual damage or loss suffered by the applicant.
346 Some years have now passed since the publication of the offensive comments. While the passage of time may have helped to heal the hurt suffered by the applicant at the time, time is unlikely have completely healed all emotional wounds. The applicant has recounted how she felt compelled to leave Western Australia and move interstate to Adelaide for a period to avoid the opprobrium of people in the general community. She has attested to the shame and humiliation she felt, which evidence is not challenged by the respondent. That said, it is only the hurt that flows from the contravening acts for which a remedy can now be provided. Even so, the hurt that flowed from the publication of Comment 29 of 114 and Comment 96 of 179, in particular, must have been severe. I consider they would have been the comments that cut the deepest. By themselves, they would justify a mother wanting to hide from the community in which she lived. I consider an award of damages in the sum of $12,000 is appropriate for the offence, insult and humiliation suffered by the applicant as a result of the four contravening acts considered as a whole.
347 The applicant barely, if at all, presses a case for aggravated damages. Aggravated damages are given to compensate a person where the harm suffered was aggravated by the manner in which the act was done. In this, they are different from exemplary damages, which are intended to punish a wrongdoer and deliver a measure of moral retribution or deterrence: see Uren v John Fairfax & Sons Pty Limited [1996] HCA 40; (1966) 117 CLR 118 at 149, per Windeyer J, whose observations to this effect were quoted with apparent approval in Gray v Motor Accident Commission [1998] HCA 70; (1998) 196 CLR 1 at [6], per Gleeson CJ, McHugh, Gummow and Hayne JJ.
348 The applicant in her written submissions properly notes that the Court should avoid awarding double compensation by making distinctions which do not exist in the present circumstances between general damages, including for contravening conduct which offends, insults or humiliates, and aggravated damages and refers to such authorities such as Spencer v Dowling [1997] 2 VR 127 at 144-145. Certainly the point is well made that if aggravated damages were to be awarded by reason of the hurt, distress and humiliation suffered by the applicant, then the same considerations cannot also be used to justify a separate order for aggravated damages, because to do so would in effect involved “double dipping”.
349 There are, however, a wide, additional range of circumstances in discrimination cases which may give rise to an award of aggravated damages, a number of which are discussed in Elliott v Nanda & Commonwealth [2001] FCA 418; (2001) 111 FCR 240 at 297-298 by Moore J. Those circumstances might include, for example, the manner in which a party maintained its defence of a claim, or unjustifiably cross-examined an applicant thereby exacerbating the hurt and injury suffered from the primary discrimination.
350 In this case, I am not satisfied by the evidence that the respondent has conducted these proceedings in any way which would justify an order of aggravated damages, and senior counsel for the applicant makes no submissions that the Court should award damages on such a basis or any other basis that would support an award of such damages.
351 There is no claim made for any other particular loss.
orders
352 In these circumstances the Court will make orders to the following effect:
(1) The Court declares that the respondent contravened s 18C of the Racial Discrimination Act 1975 (Cth) by publishing the following comments:
(a) Comment 108 of 114;
(b) Comment 66 of 114;
(c) Comment 29 of 114;
(d) Comment 96 of 179.
(2) The Court orders the respondent forthwith to remove the contravening publications from its perthnow.com.au website and any other sites maintained by it.
(3) The Court orders that the respondent pay damages by way of compensation to the applicant for the offence, insult and humiliation she has suffered in respect of the contravening acts in the sum of $12,000.
(4) The Court will hear from the parties as to the final terms of these orders and on the question of pre-judgment interest and costs.
| I certify that the preceding three hundred and fifty-two (352) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. |
Associate:
