Federal Anti-discrimination Law - 2004
Book Launch

Speech delivered by the Hon John von Doussa QC

President, Human Rights and Equal Opportunity Commission
Adelaide 24 March 2004

INTRODUCTION

I would like to begin by acknowledging the traditional owners and Elders of the land on which we're meeting today - the Kuarna People.

In May last year I stepped down from my position as a Judge of the Federal Court to accept the role as President of HREOC. It has been a time of new challenges, such as the need to balance the legislative and administrative responsibilities that the Commission has been given by the federal government, with the important role of advocating for the rights of those on the margins of Australian society.

One of my important new functions involves responsibility for the work of the Commission in relation to complaints under the race, sex and disability discrimination Acts. Each Act is designed to give effect to Australia's obligations under international human rights treaties and conventions that the Government has ratified, such as the International Covenant on Civil and Political Rights, the Convention on the Elimination of all forms of Racial Discrimination and the Convention on the Elimination of all forms of Discrimination Against Women, to name only a few.

The race, sex and disability discrimination laws provide an avenue to make a complaint of discrimination or harassment in the workplace and various facets of public life. The Commission has functions of inquiring into and attempting to conciliate complaints received under those acts. During the past year the Commission received over 1,000 complaints under those acts and received inquiries from almost 9,500 people from all over Australia seeking information about the laws we administer, grounds for complaints and the complaint process.

Since April 2000, the Commission has not had the function of hearing complaints. That now rests with the Federal Court and Federal Magistrates Service. However, the Commission does have the functions of promoting an understanding and acceptance of those Acts and of undertaking education programmes for the purpose of promoting their objects.

This may sound a simple task, but the legislation in this area is particularly complex and technical, which has sometime provoked even High Court judges into cries of frustration. For example, speaking of the Western Australian Equal Opportunity Act, Chief Justice Brennan and Justice McHugh said in IW v City of Perth:

...the Act like many anti-discrimination statutes, defines discrimination and the activities which cannot be the subject of discrimination in a rigid and often highly complex and artificial manner.

Not only is the law complex and technical, the jurisprudence is developing constantly. The field is not blessed with large numbers of text books and it is therefore sometimes difficult for practitioners to keep up with new developments.

In that context, Federal Discrimination Law 2004, is an attempt by the Commission to provide up to date and easily accessible information on Commonwealth discrimination law to practitioners and interested members of the public. We intend to keep it current throughout this year via updates which will be available through the Legal Section's page on our website.

The Commission's commitment to this project reflects our view that, while discrimination law can be at times complicated, it is also one of the most important areas of law as it deals with areas of long standing disadvantage and fundamental rights of equality.

The remainder of my presentation focuses on recent decisions in two discrete areas of discrimination law. The first concerns the issue of women returning to work following maternity leave, and the related issue of women in the workforce endeavouring to meet family responsibilities. The second concerns racial vilification.

CASES UNDER THE SEX DISCRIMINATION ACT 1984 (CTH)

Background

Human resource issues in the workplace concerning pregnancy have been well canvassed in recent years, especially in HREOC's report following the National Pregnancy and Work Inquiry entitled "Pregnant and Productive: It's a right not a privilege to work while pregnant", published in August 1999. That report was followed by HREOC publishing Pregnancy Guidelines to help workplace participants to understand and fulfil their obligations under the Sex Discrimination Act 1984 (Cth) ("the SDA"). Those guidelines are available on the HREOC website.

Section 3.4 of the Guidelines deals with the return to work after maternity leave, and correctly makes two observations:

"Under industrial relations laws, awards and agreements as well as the federal Sex Discrimination Act, an employee is generally entitled to return to the position she held prior to commencing leave or to a comparable available position if her original job has ceased to exist ..."; and

"An employee returning from maternity leave may also wish to work part-time or on a job-share basis. Awards, agreements, and some State laws specifically allow for a return to part-time work after maternity leave by agreement with the employer. In some situations, an employer may be deemed to have made a discriminatory decision if a reasonable request for part-time work is refused."

Then follows a comment that there is a growth of precedent in this area. That growth in precedent has continued. In the last two years or so there have been one Federal Court and six Federal Magistrates Court decisions concerning discrimination under the SDA alleged by women either seeking to return to work following maternity leave, or seeking to vary working hours to meet family responsibilities connected with a young child.

The cases are Thomson v Orica Australia Pty Ltd(1), Rispoli v Merck Sharpe & Dohme (Australia) Pty Ltd & Ors,(2)Song v Ainsworth Game Technology Pty Ltd,(3) Escobar v Rainbow Printing Pty Ltd (No. 2),(4) Mayer v Australian Nuclear Science and Technology Organisation,(5) Evans v National Crime Authority(6) and Kelly v TPG Internet Ltd (7)

I shall refer to these cases simply as Thomson, Rispoli, Song, Escobar, Mayer, Evans and Kelly.

Before going to the facts and outcomes of each of these cases I want to look more broadly at points that I think emerge from them.

In each case, except Kelly, in relation to the refusal to offer part-time employment, the employer after a strenuous denial on the issues that went to trial was found to have unlawfully discriminated against the applicant, and significant monetary awards were made.

Within the reasons for decision there is discussion of both direct and indirect discrimination. The SDA renders unlawful both types of discrimination in the workplace on the grounds of the sex or marital status of the aggrieved person, and on the ground of pregnancy or potential pregnancy.(8) In the case of family responsibilities, the SDA only renders unlawful direct discrimination on that ground, and then only if the discrimination results in the dismissal of the employee.(9)

This is important as there are different tests for direct and indirect discrimination.

When direct discrimination is alleged the test is whether by reason of one of the prescribed characteristics the alleged discriminator has treated the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without that characteristic.(10) This requires the court to identify a comparator and then to determine whether the aggrieved person has been treated less favourably.

In the case of indirect discrimination the test is quite different. Indirect discrimination occurs where the employer imposes an unreasonable condition, requirement or practice that has or is likely to have the effect of disadvantaging persons who have the prescribed characteristic - sex, marital status or pregnancy.(11) There is no need to inquire if the aggrieved person is being less favourably treated than a comparator. The Act provides that indirect discrimination does not occur where the imposition of the condition, requirement or practice is reasonable in the circumstances.(12) As unlawful discrimination on the ground of family responsibilities can only be direct, in such a case the reasonableness of the different treatment that constitutes discrimination is not a defence.

In five of the seven Federal Magistrates Court cases the employer did not meet a request to work part-time, or to accommodate time off to meet child care requirements. In four of these five cases the refusal of part-time work was held to be discriminatory.

In Escobar and Mayer (and by implication in Song) the court characterised the employers' stance as indirect discrimination on the ground of sex contrary to s5(2) of the SDA as the denial had the effect of imposing a requirement to work full-time or during inflexible times, and such a requirement was likely to disadvantage women. In Escobar and Mayer the court followed observations made by Commissioner Elizabeth Evatt in the well-known case of Hickie v Hunt and Hunt(13) where she inferred "from general knowledge that women are far more likely than men to require at least some periods of part-time work during their career, and in particular a period of part-time work after maternity leave in order to meet family responsibilities."(14)

I do not think that this proposition can be doubted, and it is likely to be accepted by courts in this area without the need for evidence.(15) If that is correct, the issue of contention that will arise in this type of case is whether the imposition of the requirement is reasonable in the circumstances. The SDA directs that in applying the reasonableness test matters to be taken into account include:

  1. the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and
  2. the feasibility of overcoming or mitigating the disadvantage; and
  3. whether the disadvantage is proportionate to the results sought by the person who imposes, or proposes to impose, the condition, requirement or practices."(16)

These non-exhaustive factors indicate that reasonableness involves a balancing of matters affecting both the employer and the employee. The hardship to each must be considered. Section 7C provides: "In a proceeding under this Act, the burden of proving that an act does not constitute discrimination because of section 7B lies on the person who did the act". Unless the employer demonstrates by evidence the reasons why in its business the request could not reasonably be met, and, moreover, demonstrates that it properly understood the situation of the employee and appropriately took it into account, the employer is likely to lose.(17)

A strong message about good management comes out of each of these cases. Significant factors leading to the employee's success were a failure on the employer's part to take time to properly understand the reasons for the employee's request, a failure to properly investigate whether the request could be accommodated, and a failure by the employer to reach its decision fairly on the merits.

Thomson

I turn to the cases. I start with Thomson as it is a Federal Court decision by Allsop J. It is a very long decision largely devoted to sorting out disputed facts. The applicant sought to return after 12 months' maternity leave to her previous position in accordance with the company's Family Leave Policy. She was offered a job with lower responsibility, even though the new position carried the same classification and remuneration. The employer said that there had been a major company reorganisation during her leave and her former position was no longer available, but the new position was an equivalent one. The court held that the reduced responsibilities of the new position rendered it a significant demotion.

The applicant refused to accept the new job. She alleged that she had been directly discriminated against on the grounds of her sex and her pregnancy.

The allegations of pregnancy discrimination were upheld. Being a direct discrimination case, it was necessary to identify a comparator. The comparator was a similarly graded non-pregnant employee with similar experience to the applicant who took 12 months' leave and, having the same rights to return as the applicant had under the Family Leave Policy, wanted to return.(18) It was held that such a person would not have been similarly treated, and the judge noted that no one on behalf of the employer gave evidence that the comparator would have received similar treatment.(19) It was held that the applicant had been arrogantly and shabbily treated by the superior who made the decision. The superior was hostile that she had taken maternity leave when she did, and took the advantage of her absence to move her into a different position during the reorganisation.(20) It could be added that had she been at work the changes would not have happened without consultation with her.(21)

Allsop J held that maternity leave is a characteristic that appertains generally to women who are pregnant.(22) The applicant was discriminated against because she was on maternity leave and accordingly there was direct discrimination on the ground of pregnancy.

His Honour considered that the facts would appear to bring the case within the prohibition against direct discrimination on the ground of sex, but noting a decision of Lockhart J in HREOC v Mount Isa Mines(23) which held that where the pregnancy discrimination provisions applied, they operated to the exclusion of the sex discrimination provisions, he confined his judgment to pregnancy discrimination.

The change in the responsibility of the job was held to constitute constructive dismissal as it was plainly inimical to the continuance of the contract of employment according to its implied terms, and the employee was entitled to treat the contract at an end.

Rispoli

Thomson was cited with approval by Driver FM in Rispoli. In Rispoli, the complainant was employed as a manager in the respondent company. When she returned from maternity leave her position no longer existed, due to a restructure, and she took a role in "special projects". This role was graded two levels lower than her pre-maternity leave position, but she was remunerated according to her original position.

The Federal Magistrate accepted, citing Thomson, that by placing the applicant in a position which was inferior in status, despite paying her at her previous level, she had been treated less favourably than a comparable employee would have been who was not pregnant and who was returning after nine months leave and with the rights of the kind reflected in the maternity leave policy. As such, the employer was in breach of ss 7(1)(b) and 14(2)(a) of the SDA. The Magistrate also found that, although the opportunity to be involved with a new project provided the applicant with the potential for future career advancement, this was insufficient to remedy the breach of the SDA.

In relation to the alleged breach of contract, the Federal Magistrate held that the employer's parental leave policy formed part of the contract for employment which gave the applicant the right to return to a comparable position. However, the Magistrate held that by remaining in the new position and accepting the offer to work on a new project, the applicant 'forgave' the employer's breach of contract. The Federal Magistrate declined to make a finding of constructive dismissal, finding instead that the applicant's resignation was of her own accord and that the confrontation with her supervisor which triggered it was unrelated to the earlier discrimination.

I note that Rispoli has now been appealed to the Full Federal Court, and will shortly be set down for hearing.

Song

In Song, the employer refused to allow the applicant to adjust her hours so that she could take 30 minutes off at 2.55pm to collect her toddler from pre-school and deliver him to another carer. The employee had at first taken this time off with her supervisor's permission, but a director of the employer later disallowed the break, saying it was contrary to the award and there would be difficulties with the workers compensation insurance. When the applicant continued to take the same break, the employer re-classified her as part-time and reduced her wage. Raphael FM held that the reclassification was a constructive dismissal and that there was direct discrimination on the ground of family responsibilities.

The magistrate held that the dismissal by reason of family responsibilities was a discrete ground of unlawfulness, not dependent on proof of discrimination by reason of sex.(24) I think that construction of the Act is plainly correct.

However the Federal Magistrate said that if he were wrong about direct discrimination, the requirement that the applicant work to the employer's fixed hours constituted indirect discrimination on the ground of sex, following the line of reasoning earlier discussed. The requirement was held to be unreasonable for a combination of reasons. In fact there was no award or insurance difficulty and the employer should have clarified that.(25) Further, the employer through a breakdown in communication had failed properly to understand the applicant's position.(26)

On those findings the conclusion of indirect discrimination seems unassailable. However the finding of direct discrimination for family responsibilities is problematic. Whilst the reasons identify a comparator,(27) it seems to me at that they do not provide any convincing explanation why the different treatment given to the applicant was by reason of her family responsibilities. Other findings suggest that the less favourable treatment took place because the employer had a misguided view about the legality of allowing the applicant a mid-afternoon break, and because he misunderstood the actual hours which of the applicant worked. The need for proof of the causal link between the less favourable treatment and the relevant characteristic of the aggrieved person is critical.

Escobar

The next case is Escobar. That case concerned an applicant who had been in full-time employment, but when she sought to return to work at the end of her maternity leave she wanted to work only part-time. The employer was at first prepared to consider the possibility, and said the issue would be discussed later. However this did not occur, and on the day the applicant returned to work she was dismissed as she would not agree to work full-time.

Again the Court found direct discrimination by reason of family responsibilities and as dismissal had occurred made a finding of unlawful discrimination on this basis. The Court also found that the applicant should succeed on indirect discrimination because of her sex.(28)

As with Song, the alternative finding of indirect discrimination seems impeccable given the finding that the imposition of the requirement of full-time work was unreasonable. In making the finding of unreasonableness Driver FM did not expressly address the matters specified in s7B(2). The reasons given for the finding were that the employer's original preparedness to consider and discuss part-time work, and that the employer, knowing that the applicant wanted part time work, nevertheless without reference to her appointed another full-time employee which eliminated the scope for flexibility that had otherwise existed.(29)

The finding of direct discrimination once again is problematic. There is confusion in the judgment about the inter-relationship between the definition of family responsibilities and the provisions relating to discrimination on that ground,(30) and the comparator is not identified.

In addition, as in Song, there are difficulties with the Federal Magistrate's reasoning on the issue of causation. His Honour sought to apply a "but for" test.(31) The "but for" test may represent a useful practical guide to causation, particularly if regarded as a "checking exercise".(32) However, if not used with care, it will tend to obscure the real inquiry.(33) Such a criticism might also be levelled at the reasoning in Escobar. For, on one view of the findings, the reason for the dismissal was that the original job had been filled by the employment of another employee.(34)

Mayer

In Mayer, towards the end of her maternity leave the applicant applied to return to work part-time so that she could meet her child carer needs. The employer refused, and the applicant abandoned her employment. In line with Escobar, the magistrate held that to require the applicant to work full time was to impose a condition likely to disadvantage women, and, subject to the reasonableness test, there had been indirect discrimination.(35) It was held a refusal of part-time work was not reasonable in the circumstances. The director who refused the applicant's request did so on the basis that there was no part-time position available. However internal company documents showed that this was contrary to advice that had been tendered to the director by the applicant's immediate supervisor, and the court found that that there was in fact suitable part-time work available.(36) Here again, there seems to have been a breakdown in internal communications that contributed to the refusal of part-time work, and to the finding of unlawful discrimination.

On the facts as found the conclusion of indirect discrimination seems inevitable. The case is interesting however for other observations and findings made by the magistrate. His Honour found that whilst there had been indirect discrimination on the ground of the applicant's sex, there had not been unlawful discrimination by reason of family responsibilities, even assuming that the applicant had been constructively dismissed. This finding was made because her former job required a full-time person, and she would no longer work full-time. Her dismissal was found to be based entirely on the employer's reasonable business needs, not on the applicant's family responsibilities.(37) She was not treated less favourably because of those responsibilities. She was treated as any other employee would have been who would not fill the position on a full-time basis.

The employer lost the case because it was unreasonable in the circumstances not to provide other available work on a part-time basis.

Incidentally, in Mayer there was also a finding of direct discrimination for pregnancy because the employer, after receiving the applicant's request for maternity leave, extended her employment contract for only one year rather than two years. This was done because the employer was uncertain whether the applicant would return to work, and if so on what terms. By extending the contract for the shorter period it was held that the employer had acted to lessen any potential inconvenience if the applicant did not return to her former position.(38) This was a decision plainly related to her pregnancy and the resulting or maternity leave.

The cases so far reviewed support the general proposition that if the applicant's former position truly requires a full-time person, the employer will not be held to have directly discriminated against that person by not converting the job to a part-time one when the applicant seeks to return from maternity leave.

However, there may be indirect discrimination if the decision not to provide other work on a part-time basis cannot pass the reasonableness test. There may also be indirect sex discrimination if the decision not to permit flexibility in working hours (as in Song) cannot pass the reasonableness test.

I have sought to demonstrate that efforts to treat these kinds of factual situations under the more demanding definition of family responsibilities discrimination (which can only be direct discrimination) may be problematic. If similar attempts are made in future matters, particular care should be exercised in considering whether there is less favourable treatment as compared to an appropriately identified comparator, and whether that less favourable treatment was "by reason of" the person's family responsibilities.

Evans

Evans pays closer attention to those issues than the decisions in Escobar and Song and is, in my view, a more satisfactory approach to allegations of direct discrimination relating to family responsibilities

The applicant in Evans cared for a toddler whose health required her to take days off from time to time, which she did against medical certificates about the child's health or by drawing on a considerable credit of unused holiday leave. In the last three months she had taken eleven days leave.

The applicant's manager expressed his dissatisfaction about her absences, including by giving her a low performance assessment and by saying to her on one occasion that if he had known she had a sick son and could take time off he would not have engaged her. Because of the manager's attitude, and her fear that her contract might be terminated if she required further time off, the applicant relinquished her employment.

The magistrate held that the manager's poor handling of the applicant's situation and her grievances when she protested that she was entitled to take time off in accordance with her contract, constituted constructive dismissal.(39) He held that the dismissal was by reason both of family responsibilities and the applicants' sex.(40)

The findings of direct discrimination were made after consideration of appropriate comparators.(41) The magistrate referred to the significance of the employer not calling evidence on this topic, saying "if the respondent wished to assert that it had no patience whatsoever for people who took their contractual entitlements and did not treat them less favourably than the applicant it could have done so with no difficulty whatsoever."(42)

Kelly

The final decision I wish to mention is Kelly v TPG Internet Pty Ltd.(43) The Federal Magistrate in that case found that the respondent treated the applicant less favourably than it treated or would have treated an employee who was not pregnant when it promoted her to manager in an "acting" position, rather then permanently. This conduct was found to constitute direct discrimination in breach of s 7(1) and s 14(2) (a) and (b) of the SDA.

The complaint also claimed that the refusal by her employer to make available part-time work upon her return from maternity leave amounted to indirect sex discrimination, however she was unsuccessful in this part of her claim. Raphael FM discussed, in particular, the decisions in Hickie and Mayer, and distinguished them from the case before him. His Honour noted that in both of those cases the applicants had been refused benefits that had either been made available to them (as in Hickie) or that were generally available (as in Mayer). In the present case, there were no part-time employees in managerial positions employed with the respondent. In those circumstances, his Honour held that the behaviour of the respondent constituted a refusal to provide the applicant with a benefit, rather than the imposition of a condition or requirement that was a detriment. He held that the respondent did not unlawfully discriminate against the applicant in relation to the refusal to offer her part-time employment on her return from maternity leave.

Orders made

The outcome of these cases was not insignificant for each of the employers. For example, in the Federal Magistrates' court matters, in Rispoli $10,000 in damages for non economic loss were awarded, and the employer was ordered to give a written apology. In Song a reinstatement order was made returning her to full-time work with orders for the payment of lost wages in the meantime and $10,000 for hurt and distress.(44) In Escobar there was a monetary award for economic and non-economic losses totalling $7,325. In Mayer the total award was $39,294 including $5,000 for distress. In Evans the total award was almost $54,500 including $25,000 for non-economic loss as the employer's treatment of the applicant caused her to suffer clinical depression for some months.

RACIAL VILIFICATION CASES UNDER THE RACIAL DSICRIMINATION ACT 1975 (CTH)

In Australia, offensive behaviour which is based on race is prohibited by Part IIA of the Racial Discrimination Act 1975 (Cth). Part IIA was inserted into the Act by the Racial Hatred Act 1994, and commenced operation on 13 October 1995. Sections 18C and 18D of Part IIA are attached at the conclusion of this paper.

No criminal sanctions

I mention at the outset that whilst Part IIA allows people who are victims of racial hatred to complain to HREOC, it does not provide for criminal sanctions.

The original Racial Hatred Bill 1994 which was introduced to address some of the recommendations of HREOC's 1991 Report of the National Inquiry into Racist Violence, did contain both civil and criminal sanctions. However, the criminal sanctions were removed by the Senate before it passed the Bill.

By failing to provide for criminal sanctions, the Racial Hatred Act 1994 fell short of implementing Australia's obligations under article 4(b) of the International Convention on the Elimination of Racial Discrimination.

However, I note that criminal sanctions are available under NSW and WA legislation. Consequently, acts of racial hatred in those jurisdictions will still be subject to criminal sanctions.

Balancing the competing rights

When the Racial Hatred Bill 1994 was introduced into Parliament, an issue of considerable concern was whether or not section 18C, the section that outlaws racial vilification, would unduly restrict freedom of speech.

The Explanatory Memorandum to the Racial Hatred Bill 1994 stated that this balance between competing rights was carefully considered in the drafting of the legislation. As the Explanatory Memorandum noted, s 18D is specifically concerned to protect aspects of freedom of speech:

Proposed section 18D provides a number of very important exemptions to the civil prohibition created by proposed section 18C. The exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest.

However, the operation of proposed section 18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.

Bropho - v - Human Rights and Equal Opportunity Commission [2004] FCAFC 16

There have been a number of cases before the Federal Court and Federal Magistrates that have dealt with the issue of racial vilification. However, the recent decision of the Full Court of the Federal Court in Bropho - v- Human Rights and Equal Opportunity Commission (Bropho) is an interesting and important one, particularly as it considers how the expression 'reasonably and in good faith' should be interpreted and, in that context, looks at the tension between, on the one hand, the right to freedom of speech and, on the other, the prohibition of racial vilification.

This decision, which I will now discuss, was delivered on 6 February 2004 (and is too recent to be included in "Federal Discrimination Law and Practice 2004").

Historical context

The case concerns a newspaper cartoon and its treatment of the retrieval from the UK of the remains of Yagan, a prominent Aboriginal leader at the time of the early settlement of the colony of WA. Yagan has been variously reported as a man of "impressive physique and of high degree in tribal law" [7](45), and in the context of conducting a corroboree was said to be a man who "acquitted himself with infinite dignity and grace".

The historical background to this case, as outlined in the judgment of French J, can be summarised as follows:

In 1832 Yagan was arrested in connection with the killing of a white man and transported to Carnac Island off the coast of WA. He subsequently escaped. In 1833 Yagan's brother was shot and killed whilst breaking into a building in Fremantle. Shortly after, Yagan, whilst in company with his elderly father and others, killed 2 settlers. Yagan's father was arrested and executed by hanging. In July 1833 Yagan was befriended by two young men named Keats, one of whom, William Keats, shot and killed Yagan. William Keats was in turn speared to death by other Aborigines at the scene.

Yagan's head was removed from his body and placed in the wedge of a smoking tree in order to preserve it. It was later taken to England and until 1964 was on display at the Royal Institute in Liverpool. Eventually it was buried in Everton Cemetery. In 1990, the Western Australian Nyoongar community asked the British government to exhume the head. Permission was finally granted. It was brought back to Australia for burial according to Nyoongar custom.

French J commented, "The story of the Western Australian Aboriginal leader, Yagan, and his death at the hands of two young settlers in 1833 is a tale of colonial tragedy. It has sadly familiar overtones of mutual incomprehension, fear, prejudice and retribution. The sequel to his death, the severing and smoking of his head and its removal to England for display in a museum, demonstrated a contempt for his humanity which is striking even at this historical remove [1]."

He continued,

"The recovery of Yagan's head from a graveyard in Liverpool and its return to Australia with a group of Aboriginal elders in 1997 was accompanied by a degree of sometimes undignified acrimony over who had the appropriate cultural claims, by descent, to bring the remains back. The conduct of those involved in the controversy was lampooned in a cartoon published in the Western Australian newspaper in September 1997. The cartoon reflected upon the mixed ancestry of some of the Aboriginal people involved. It implied an unseemly desire on the part of some of them to take advantage of public funding to travel to England and it suggested that their conduct had caused disunity amongst Nyoongar people in the Perth area. It implied the frivolous use by an Aboriginal leader of the dreamtime serpent, the Wagyl, to frighten a child who was cynical about the publicly funded trip to England. It also depicted the head of Yagan in a cardboard box expressing a desire to return to England [2]."

The complaint

A complaint was made to the Human Rights and Equal Opportunity Commission by seven Nyoongar Elders that distribution of the cartoon contravened s 18C of the Racial Discrimination Act as it constituted conduct that was reasonably likely to offend, insult, humiliate or intimidate Nyoongar people and was done on account of their race.

The framework of the racial vilification provisions is that s18C(1) provides that it is unlawful to do an act otherwise than in private if the act is "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group" and "the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group." Section 18C(2), which was not in issue in this case, explains when "an act is taken not to be done in private".

As mentioned, s 18D sets outs the exemptions to 18C(1). In short, the exemptions cover "anything said or done reasonably and in good faith" in the context of artistic works, genuine scientific and academic debate and discussion and fair comment on matters of public interest.

HREOC's decision

Hearing Commissioner Innes found that s18C was contravened. He was satisfied that, based on what he termed "the reasonable victim test", a reasonable Nyoongar or Aboriginal person would have found the contents of the cartoon offensive, insulting, humiliating or intimidating. He found that a reasonable person not necessarily of Nyoongar or Aboriginal descent would have found the cartoon offensive or insulting [35].

In support of this conclusion the Commissioner relied upon the presentation by the cartoon of 'a demeaning portrayal of ancestor' and particularly the reference to a 'warm beer' and a 'quiet pommy pub'. This was in the context, it was said, of wide-spread community views with respect to the relationship between alcohol and Aboriginal people [36].

Then the Commissioner said that the cartoon contained derogatory and demeaning references to the Wagyl which was a religious figure and that it treated the issue of death in a manner which caused offence to Aboriginal people. It provided intimate details of the ancestry of individuals in circumstances where the intercourse was not a matter of choice for the Aboriginal women concerned and suggested a diminishing of the race by the resultant racial mix. It also reinforced a misinformed and stereotypical view of the Aboriginal people as people who took advantage of government grants [37].

However, the Commissioner found that the cartoon fell within the exemption in s 18D as it was an artistic work under s 18D(a) and its distribution was done 'reasonably and in good faith'. Commissioner Innes was satisfied that the respondent acted reasonably and in good faith as:

" The cartoon concerned was published after a series of articles and editorial comments dealing with this issue. It was an issue of importance for the West Australian community in general, as well as to the Aboriginal community, and was treated as such by the newspaper. In publishing the cartoon I am satisfied that the newspaper did not act outside Commissioner Johnston's "margin of tolerance" [a reference to Commissioner Johnston's decision in Bryl and Kovacevic v Nowra and Melbourne Theatre Company (1999) Human Rights & Equal Opportunity Commission, 21 June 1999]. Testing the cartoon against "moral and ethical considerations, expressive of community standards" I am satisfied that the newspaper acted reasonably. While it may be argued that the cartoon could be characterised as "exaggerated" or "prejudiced", I do not consider that it was sufficiently exaggerated or prejudiced (having regard to the surrounding circumstances) to breach the standard of reasonableness. Paul Murray gave evidence that he had made a judgement call, knowing that the cartoon would receive some opposition, but forming the view that it was appropriate to represent an important community issue in this way. My view in this area is strengthened by reading the other material in The West Australian published on this issue, which provided a balanced report of what took place, and an opinion which, in the main, encouraged unity in, and support of, the Aboriginal community. There was no evidence before me which suggested that the conduct of the respondent smacked of "dishonesty or fraud" to follow Commissioner Johnston's formulation for the good faith requirement. Nor was there evidence of "malice" on the part of the respondent. [38]

Accordingly, as there was no unlawful discrimination Commissioner Innes dismissed the complaint.

A challenge to the Commissioner's decision by way of judicial review was dismissed by a single judge of the Federal Court.

Appeal to the Full Court of the Federal Court

The appeal to the Full Court of the Federal Court, which was made on a number of grounds, was dismissed by a majority comprised of French and Carr JJ, with Lee J in dissent. The primary issue before the court was the meaning of the term 'reasonably and in good faith' which qualifies exempted behaviour under s 18D.

The judgment of French J

In the Full Court, French J wrote the main judgment.

In considering the meaning of 'reasonably and in good faith' his Honour found it useful to consider the relevant international law [57]. In doing so he discussed the tension that exists between the right to freedom of speech and the need to prohibit racial vilification.

Freedom of speech

His Honour referred to the drafting of Art 4 of the Convention on the Elimination of all Forms of Racial Discrimination, the Convention which underpins the racial vilification provisions. He noted that the drafting was "difficult and emerged from a lengthy process of discussion and compromise." He said, "There is a tension between the obligation to prohibit racial vilification and racist organisation for which it provides and the requirements of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights for freedom of expression and association. The requirement [in Art 4] that States pay 'due regard to the principles embodied in the Universal Declaration of Human Rights' reflects that tension. It is a requirement intended to meet the objection that Art 4, expressed without qualification, could encroach upon freedom of speech and association [61]."

His Honour considered that Art 4 "allows States to strike a balance between the need to prohibit the evil of racial vilification and hatred and the need to protect freedom of speech and association within their reasonable limits. He said that Part IIA of the RDA which contains the racial vilification provisions "reflects a like balance in the prohibitions imposed by s 18C and the exemptions it allows by s 18D [62]."

His Honour saw the exemptions under s18D as being exemptions to an exception. His Honour said that whilst the immunities created by s18D were described in the parliamentary materials as 'exemptions' "[t]he proscription in s 18C itself creates an exception to the general principle that people should enjoy freedom of speech and expression." His Honour noted that, "That general principle is reflected in the recognition of that freedom as fundamental in a number of international instruments and in national constitutions. It has also long been recognised in the common law albeit subject to statutory and other exceptions [72]." His Honour was of the view that "[a]gainst 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." He said, "It is appropriate therefore that s 18D be construed broadly rather than narrowly [73]."

'reasonably'

His Honour considered that 'reasonableness' and 'good faith' are properly considered as separate elements of the exemption.

In determining the meaning of 'reasonably' his Honour noted that "[a] thing is done 'reasonably' in one of the protected activities in par (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things 'reasonably'. The judgment required in applying the section, is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D and a recognition of the two competing values that are protected by those sections [70]."

He concluded "[a]n 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 [80]".

'good faith'

His Honour then considered the meaning of the requirement of 'good faith' in the expression 'done reasonably and in good faith'.

He noted that in the context of s18D 'good faith' requires 'honest action and fidelity' and may require 'adherence to the spirit of the law'. He said, "A good faith provision offers a warning that game playing at the margins of a statutory proscription or obligation may attract a finding of liability". [93] His Honour said, "The freedom [that s18D] protects is broadly construed. But, given that its exercise is assumed to insult, offend, humiliate or intimidate a person or group of persons on the grounds of race, colour or national or ethnic origin, there is no legislative policy which would support reading 'good faith' more narrowly than its ordinary meaning [94]."

His Honour concluded that the interpretation of 'good faith' "requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section. The good faith exercise of that freedom 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 [95]." He said "a person who exercises the freedom 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 [102]."

French and Carr JJ did not find that the Commissioner had erred in his understanding of 'reasonably and in good faith'. They dismissed the appeal.

The dissenting judgment of Lee J

Lee J took a contrary view to the majority. He found that the respondent had not acted 'reasonably and in good faith'.

In reaching his decision his Honour focused on the issue of the harm that may result from the contravention of s18C. He believed that the reasonableness of the act must be judged against the possible degree of harm that it may cause. His Honour said,

"[T]he Commission found that the cartoon was reasonably likely to offend, insult, humiliate or intimidate an Aboriginal person. Therefore, the act of distribution that was the subject of complaint, was at the most serious end of the spectrum with a corresponding onus on WA Newspapers to show that in those circumstances the act had been done reasonably and in good faith. The reasonableness of the act could only be judged against the possible degree of harm it may cause. Such harm, in the context of the Act, would be the extent to which that part of the community which consisted of persons who held racially-based views destructive of social cohesion, or persons susceptible to the formation of such opinions, may be reinforced, encouraged or emboldened in such attitudes by the publication, on the ground of race, of a cartoon which, irrespective of the intent of the artist and of the purpose of the publisher, was capable of being seen by such persons as providing support or justification from an authoritative source for views grounded on racial antipathy [136]."

His Honour referred to the competing public interests in freedom of expression and the prohibition of the mischief of racial vilification. In that regard, his Honour noted the serious ramifications of the act of publication. He said,

The Act is a statement, first, that acts done because of race promote a significant mischief in the community, sufficient to require intervention by statutory prohibition, and second, unless good cause is shown for the conduct concerned, it is in the greater public interest that the right of free expression be controlled by removing from public discourse racially based acts that offend, insult, humiliate or intimidate members of a race within the community thereby tending to set one part of the community against another. [137]

The act of publication was not an act of offensive behaviour in a minor degree in respect of a limited group of people. It was found to be an act reasonably likely to offend, insult, humiliate or intimidate any Aboriginal person. Humiliation or intimidation involves more than destruction of self-perception or self-esteem of a person. It affects others in the community by lowering their regard for, and demeaning the worthiness of, the person, or persons, subjected to that conduct. It stimulates contempt or hostility between groups of people within the community and it is the intent of the Act that such socially corrosive conduct be controlled. [138]

His Honour considered that the expression '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. That is, the greater the impact the more difficult it will be to establish that the public act was reasonable. [139]

'good faith'

His Honour stated that in looking at the requirement that an act to which s 18D applies must be shown to have been done 'in good faith' as well as 'reasonably' regard must be had to "the subjective purpose of the publisher but overall it is an objective determination as to whether the act may be said to have been done in good faith, having due 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 Act". [141]

In that regard his Honour was of the view that the Commissioner, in considering whether the respondent had acted 'reasonably and in good faith', had failed to take into account the harm that the respondent's action would cause to the community. His Honour was critical of the Commissioner apparently being of the view that the consequences of the publication of the cartoon was in some way redressed by prior articles and editorial comment published by the respondent newspaper[142].

His Honour stated, "The evidence of the editor, 'that he had made a judgment call, knowing that the cartoon would receive some opposition' did not show that the racially offensive consequences of the act of publication, an act done because of race, had been duly considered and on its own that evidence was incapable of satisfying the onus on WA Newspapers to show that the act of publication had been done reasonably and in good faith" [143].

He concluded that "the words 'in good faith' as used in s.18D import a requirement that the person doing the act exercise prudence, caution and diligence, which, in the context of the Act would mean due care to avoid or minimize consequences identified by s.18C [144].

Lee J believed the Commissioner misunderstood the proper construction of the Act. He would have remitted the matter to the Commission.

The decision of the Full Court is the subject of a special leave application to the High Court. In the application the appellant asserts the majority of the Full Court "erred in law by failing to conclude that a jurisdictional error was made by the [Commission] in that it failed to address the correct legal question when arriving at its decision". The particulars are that "the Commission misdirected itself as to the matters to be taken into account in determining that the act of publication of [WA Newspapers] was an act done reasonably and in good faith".

CONCLUSION

We will await with interest the outcome of the High Court proceedings to know whether the majority view of the Full Court correctly states the law.

Attachments

RACIAL DISCRIMINATION ACT 1975 - SECT 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.

Note: Subsection (1) makes certain acts unlawful. Section 46P of the Human Rights and Equal Opportunity Commission Act 1986 allows people to make complaints to the Human Rights and Equal Opportunity Commission about unlawful acts. However, an unlawful act is not necessarily a criminal offence. Section 26 says that this Act does not make it an offence to do an act that is unlawful because of this Part, unless Part IV expressly says that the act is an offence.

  1. 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

    b) is done in a public place; or

    c) is done in the sight or hearing of people who are in a public place.

  2. In this section:

    public place includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

SECT 18D - Exemptions

Section 18C does not render unlawful anything said or done reasonably and in good faith:

  1. in the performance, exhibition or distribution of an artistic work; or
  2. 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
  3. 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.

END


  1. (2002) EOC 93-227; [2002] FCA 939.
  2. [2003] FMCA 160.
  3. (2002) EOC 93-194; [2002] FMCA 31.
  4. [2002] FMCA 122, digest of decision appears at (2002) EOC 93-229.
  5. [2003] FMCA 209.
  6. [2003] FMCA 375.
  7. [2003] FMCA 584.
  8. See SDA, ss 5, 6 and 7
  9. See SDA, ss7A and 14(3A).
  10. See SDA, ss 5(1), 6(1), 7(1) and 7A.
  11. See SDA, ss 5(2), 6(2) and 7(2).
  12. See SDA, s 7B.
  13. [2003] FMCA 375.
  14. See paragraph 6.17.10, which does not appear in the reported version of this decision.
  15. But if evidence is needed, see the statistics referred to in Evans at [105].
  16. See s 7B (2) of the SDA. This provision was inserted by the Sex Discrimination Amendment Act 1995 (Cth) which also, inter alia, inserted s7C and amended the definitions of indirect discrimination. In his second reading speech, the Attorney General indicated that those reforms were introduced because "the indirect discrimination provisions of the Act...have proven complicated and difficult to apply in practice and...have been criticised for being overly technical, legalistic and complex" (Hansard (House of Representatives), 28 June 1995 at 2460).
  17. For example, see Evans at [105].
  18. At [122].
  19. At [163].
  20. At [97], [123] and [163].
  21. This was the conclusion reached by Sir Ronald Wilson in a similar case, Gibb v Australian Wool Corporation (1990) EOC 92-327.
  22. At [165].
  23. (1993) 46 FCR 301 at 326.
  24. At [66].
  25. See at [55], [57] and [60].
  26. See at [55]-[56].
  27. See at [72].
  28. Under s5(2) of the SDA.
  29. See at [32] and [37].
  30. See at [34].
  31. See at [36]. His Honour cites the decision of Lockhart J in Mt Isa Mines v HREOC (1993) 46 FCR 301 as supporting that approach. However, in that decision, Lockhart J discusses the dangers in too readily applying the "but for" test (see at 326).
  32. See Mt Isa Mines v HREOC (1993) 46 FCR 301 at 326 per Lockhart J.
  33. See Thomson at [155].
  34. See at [36].
  35. See at [69]-[71].
  36. See at [75]-[76].
  37. See at [68].
  38. See at [62].
  39. See at [106].
  40. See at [101] to [105] and [108]. The reference to s7 in [98] seems to be a mistake for s5.
  41. See at [105] and [108].
  42. At [105].
  43. [2003] FMCA 584.
  44. Song was appealed, but settled on a confidential basis prior to the Full Court's decision being handed down.
  45. The [ ] references are to the numbered paragraphs of the judgment.

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