Society of University Lawyers

Annual Conference - Adelaide, 21 October 2005

Keynote address - The Hon John von Doussa QC

President, Human Rights and Equal Opportunity Commission

When I was invited to give this address, my first thought was to talk about unlawful discrimination in the context of higher education and, in particular, disability discrimination.

This brought the response from your President that you were all on top of the Purvis decision, 1 as you had heard a comprehensive paper on it last year. This was impressive news, as those of us at the Human Rights and Equal Opportunity Commission (HREOC) who have considered the decision were far from confident that it spoke with clarity on the important question of whether, and to what extent, education authorities were under a positive obligation to provide measures to adjust for, or "accommodate", a student's disability.

Since last year's conference, the Disability Standards for Education have been proclaimed.2 They explicitly state the obligations of an education provider in relation to its students.

I have therefore decided to say a few words about the role of HREOC and a little about the principles under the Disability Discrimination Act 1992 (DDA) that are relevant to universities. Then I shall discuss the racial vilification provisions of the Racial Discrimination Act 1975 (RDA) and the extent to which they may impinge upon, or protect, academic freedom of speech.

HREOC was established by the federal Government when Australia acceded to the International Covenant on Civil and Political Rights (ICCPR). It is the agency responsible for ensuring that Australia fulfills its obligations under the Convention. In broad terms, HREOC's function is to promote and protect human rights in Australia. As you will know in this forum, the Commission has certain complaint handling functions but these are really incidental to its main function of promoting, through education and research, understanding and respect for fundamental human rights and for the corresponding obligations that go with them. The complaints function is, however, a very important aid in this endeavour, as it is a means of coercion that causes those who might otherwise be little interested in complying with human rights principles to take note and adjust their behavior accordingly.

I shall not dwell on the Commission's education programs, or the many ways we go about delivering our human rights message. A visit to the HREOC website3 will give this information.

Complaints of unlawful discrimination under federal anti-discrimination legislation4 must, in the first instance, be made to HREOC. They are then referred to the President.5 They are investigated to the extent necessary to identify the substance of the complaint and the respondent's attitude to the complainant's allegations. If the complaint is not suitable for conciliation or, being suitable, cannot be conciliated, the President will terminate the complaint.6 The notice of termination then triggers the jurisdiction of the Federal Court and the Federal Magistrates' Court to hear and determine the complaint and, if made out, to award a remedy.7

HREOC also has a separate complaints handling function under Part II, Div 4, of the Human Rights and Equal Opportunity Commission Act 1986 in respect of discrimination that impairs equality of opportunity in employment. If such a complaint is substantiated to the satisfaction of the President, HREOC reports to the Attorney- General8 who, in turn, tables the report in Parliament. No other enforceable remedy is available.9

The complaints received by HREOC against universities in the period from 1 July 2002 to 30 June 2005 totaled 92, which is about 2% of all complaints received. In brief, the complaints were as follows:

Sex Discrimination Act - 19 complaints

Education

  • Sex harassment 4
  • Sex discrimination 3
  • Victimisation 1

Employment

  • Sex harassment 4
  • Sex discrimination 4
  • Family responsibility 1
  • Marital status 1
  • Pregnancy 1

Goods, services facilities 1 (accommodation services)

Racial Discrimination Act -19 complaints

  • Access to premises 2
  • Education 1
  • Employment 7
  • Goods, services, facilities 7
  • Racial hatred 2

HREOC Act

1 complaint was received regarding alleged discrimination on the basis of religion in employment (of 428 total HREOCA complaints)

Disability Discrimination Act - 53 complaints

  • Accommodation 1
  • Employment 6
  • Goods, services, facilities 1 (access to university complaint procedures)
  • Education 45

There were no complaints of age discrimination in this period.

Most complaints were made by students alleging disability discrimination (45 - almost half of all complaints). Putting those to one side, of the remainder, more than half were made by employees (25 out of 47), and 6 of those alleged disability discrimination. The new Standards, of course, only apply to students. The general provisions of the DDA continue to apply to staff, and the question of accommodating disability must still be decided with the benefit of Purvis.

Purvis concerned a young man who was first suspended and then expelled from school for violent behavior which was caused by a head injury he suffered as an infant. At first instance, a Hearing Commissioner held that there had been direct disability discrimination, contrary to s 5 of the DDA. Direct discrimination means that a person with a disability is treated less favourably than a person without a disability "in circumstances that are the same, or not materially different."

Direct discrimination requires the identification of a comparator. One of the central questions in the case was whether the comparator was a person without any of the behavioral issues associated with the underlying organic head injury, or a person without the injury but exhibiting the same violent behavior. The Hearing Commissioner adopted the first interpretation but in the appeal courts, the latter interpretation was applied. The High Court held that there had been no discrimination, as any student who behaved with similar violence would have been treated in the same way.

No doubt the result was a relief to educational authorities and the identification of the relevant comparator seemed clear enough.

Less clear was the question whether, and to what extent, there is an obligation under the DDA on an alleged discriminator to take positive steps to accommodate a disability.

The Hearing Commissioner had held that there was an obligation on the school to take advice on how to manage the student's behavior and to make appropriate adjustments to its policies to deal with his behavioral problems. The school's failure to do so was discriminatory.

Under the new Education Standards, education providers, including universities, are required to provide reasonable adjustments10 and can meet their general obligations under the Standards by doing so. The obligations apply to enrolment, participation in courses and programs, curriculum development and support services. They do not apply if they impose unjustifiable hardship on the provider. I shall assume that you are familiar with the Standards - and if not, they are straightforward to read.

It is important to note, however, that the Standards only apply to students. They do not apply to employees, of whom the universities have many. Here, the question of what accommodation, if any, an employer must make for a disability, remains a live one.

"Disability" is widely defined in the DDA.11 It includes, for example, total or partial loss of mental function. It also includes disorders that result in disturbed behaviour, or affect a person's thought processes, perception of reality, emotions or judgment.

Even in the present workplace environment, stress-related mental illness is a well recognized occupational difficulty. Under the proposed Higher Education Workplace Relations Requirements (HEWRRs), workplace agreements must include a clear and transparent performance management scheme, which not only rewards high performing staff members but also has efficient processes for managing poor performance. The likelihood of mental disabilities, as defined by the DDA, becoming evident in those who exhibit signs of poor performance must be high. How far is a university required to change work practices, the work environment, performance expectations and working hours to accommodate mental disabilities that are the likely cause of poor performance, or are triggered by the performance assessment and management process?

Very generally speaking, disability discrimination principles are intended to bring about substantive equality between people who are not on an equal footing. Legislation in the fields of race and sex discrimination is premised on the belief that there are no inherent differences between the general public and persons in the relevant class. The DDA is quite differently premised; those with a disability are, for that very reason, considered different. Thus, to achieve substantive equality, the disability will often require some degree of accommodation. To treat a disabled person just like everyone else may, in fact, be the source of the discrimination.

From this perspective, you would expect the DDA to impose positive obligations on employers and others to make reasonable attempts to accommodate disability. In the case of indirect discrimination,12 it may be unreasonable and, therefore, discriminatory, to require everyone to meet a particular requirement or condition irrespective of their ability.

One example would be to require everyone to work without an aid of any kind.

Even in the case of direct discrimination, s 5(2) could, at first sight, imply that there is a positive obligation to make accommodation. However, the majority in Purvis held that s 5(2) imposed no positive obligation and operated only in the identification of the comparator. It means only that the fact that a person with a disability may employ some means of accommodating it does not amount to a material difference.13

That finding, though based on a case decided under s 5, has been generally understood in lower courts to mean that the DDA does not impose a positive obligation to provide accommodation, even to an employee in the workplace.14

This seems a strange construction of the DDA, having regard to the object of the Act and to s 15(4), which specifically relates to employment.

It is perhaps not surprising that the Productivity Commission has recommended that the law be changed to impose a requirement on employers to make reasonable adjustments, though not to the extent of causing unjustifiable hardship. That recommendation would have the effect of imposing on employers a similar obligation to the obligation already imposed on education providers under the Education Standards.

In the meantime, I think that there continues to be real uncertainty over the extent of employers' obligations to make reasonable, positive accommodations for disabled employees, notwithstanding some decisions to the contrary.

Offensive Behavior Based on Racial Hatred

I now turn to the racial vilification provisions of the RDA. They are aimed at striking a balance between freedom of speech and the protection of racial minorities from racial vilification.

One object of the balancing exercise is to distinguish between racial vilification, which is dressed up as academic, or pseudo-academic, discourse and genuine academic scholarship, which has the unhappy or unintended consequence of offending one or more racial groups within the community.

You would all be familiar with some of the more famous examples of racial vilification in academia. Holocaust denial is a particularly serious example, and has been examined under Australian racial vilification laws in Toben v Jones.15 The development of the now discredited scientific discipline of eugenics is another example.

From a legal perspective, the balance is determined by the interaction of s18C, which defines and proscribes racial vilification and s18D, which sets out permissible exceptions to the prohibition. As a consequence of s18D, acts which may be racially offensive are permitted because, by their nature, they are deemed to be in the overwhelming public interest.

Interpretation of section 18C

In essence, section 18C(1) defines racial vilification as a public act that is reasonably likely, in all circumstances, to offend, insult, humiliate or intimidate another person, and is done because of that person's race, colour, nationality or ethnicity.

There are six distinct elements to a claim of racial vilification:

First, a specific act must have been done. In the academic world, this may include the publication of a paper, an address given at a conference, or a class debate. There are no limits on the types of acts that may be capable of vilifying another.

Second, the act must have been done "otherwise than in private". This is a curious turn of phrase. It was inserted into the Act to ensure that private communications, stories, jokes or opinions did not fall foul of the legislation. The decision to exempt private acts stems from two related philosophical considerations. The first is that freedom of speech is a personal, as well as public, right. According to Michael Chesterman, the personal component of this right is "directly attributable to the fact that all people are independently endowed with their own separate capacity for self-expression [which is] indispensable if they are to develop their moral and intellectual capacities to the full."16The second is that governments should not legislate to restrict individual freedom unless it is strictly necessary for the maintenance of public order and good governance. Arguably, public order will not be threatened by a private conversation, even one that is racially offensive or abusive. This concept is reflected in the common law principle that "everybody is free to do anything, subject only to the provisions of the law."17

Section 18C(2) of the Act indicates when an act is done "otherwise than in private." It applies whenever anyone:

  • (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.

Sub-section (3) defines "public place" as "any place to which the public has access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place."

The Court has held that s 18C (2) is not an exhaustive statement of the meaning of "otherwise than in private". In Gibbs v Wanganeen,18 Driver FM took a broad interpretative approach on the basis that, "[t]he legislation is remedial and its operation should not be unduly confined."19

It is probable that most academic activity is public. The very nature of academia involves the transmission of ideas and arguments in the public domain. On the other hand, the Court has recognised that there are situations in which a conversation that is intended to be private but takes place in a quasi public place, such as a prison, may be considered private.20 I am not suggesting that an academic institution should be compared to a prison (although, of course, some students might think so). Rather, I suspect that, like a prison, a university has both public and private domains and the dividing line between the two is not self-evident. Naturally, the characterisation of every act as public or private depends upon the facts of the case. However, as university lawyers, it is probably safer to assume that most parts of a university fall into the category: "other than private".

Third, the act must be offensive, insulting, humiliating or intimidating.

These words have been given their ordinary meaning by the Courts. In Bropho v Human Rights and Equal Opportunity21 (a case to which I will return), French J accepted the meaning given in the Shorter Oxford English Dictionary -

  • "offend" means "to vex, annoy, displease, anger, to excite personal annoyance, resentment, or disgust "
  • 'insult" means "to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront [or] outrage..."
  • " humiliate" means to make low or humble in position, condition or feeling, to humble... to subject to humiliation; to mortify;" and
  • " intimidate" means "to render timid, inspire with fear; to overawe, cow, to force to or deter from some action by threats or violence."

Lee J observed that these adjectives covered a broad spectrum of abuse, ranging from the relatively mild (namely, offence) to the seriously harmful (humiliation). 22

It is interesting to note that the range of conduct covered by s 18C far exceeds the type of abuse prohibited under international law. International law tends to focus on racial hatred and clear manifestations of racial superiority. For example, Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination states:

"States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination "

Similarly, in Article 20(2) of the ICCPR, States are required to prohibit:

"... any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence..."

As Allsop J noted in Toben v Jones, the likely rationale for Australia's more prohibitive approach is that the Parliament "intended to pursue a policy of eliminating race discrimination and promoting understanding among races."23 Such an objective can only be pursued if vilification is nipped in the bud, since offensive comments breed the kind of contempt that foments discrimination.

However, the protection afforded by s 18C is not triggered by trivial acts. In the words of Attorney-General Lavarch, it "deals with serious incidents only".24 In Creek v Cairns Post Pty Ltd25, Keifel J made a similar observation. The conduct, she said, must have "profound and serious effects not to be likened to mere slights."26

Fourth, the act must have been likely to cause offence, insult, humiliation or intimidation. This question relates to the standard of proof required to make out the claim. It does not appear to have been conclusively decided by the courts. The choice is between the balance of probabilities on the one hand, or the more permissive standard of a "real chance" on the other. In Bropho, French J observed that it would be better to adopt the more rigorous balance of probabilities test, since the effect of the legislation was to restrict a fundamental right. In Toben v Jones, Carr J adopted the same standard.27

I am inclined to agree with French J's approach for another reason. Racial vilification is an accusation of serious misconduct. No one should be found liable unless they engage in conduct that has a better than even probability of causing offence. From an academic perspective, a finding of racial vilification could have a lasting impact upon an individual's academic career. It should do, if it is truly vilifying. But if there is a chance that it is not, there are clear arguments in favour of giving that person the benefit of the doubt.

Fifth, a reasonable person in the victim's shoes must think the act was offensive, insulting, humiliating or intimidating. This has been referred to as the "reasonable victim" test. It is objective, although evidence of the actor's subjective state of mind may be relevant.28 The purpose of the test is to allow the court to measure the act against community standards. The Act does not state that the "reasonable victim's" perspective will be considered. It merely says that the act must be "reasonably likely, in all circumstances" to cause the prohibited consequence. However, the courtshave refined the test to reflect the victim's perspective in recognition of the fact that ordinary members of the public may be wholly unsympathetic, or simply unaware, of the plight of racial minorities.

Finally, the act must have been done because of the person or group's race, ethnicity, nationality or ethnicity. This is simply a question of causation.

There will be many instances where an act, be it an oral statement or a document, will come within the parameters of s18C and constitute offensive behaviour. It is not difficult to imagine a legitimate lecture room discussion taking a turn in the wrong direction. Even a discussion in a law or politics lecture about the facts of a case concerning racial vilification may offend a person of a particular group.

However, it should not be forgotten that racial vilification laws are not meant to be triggered by conduct which has 'trivial' consequences. Nor is the test of reasonable likelihood subjective.

Exceptions to s 18C

If a person has been to found to have committed an act that falls under s 18C, the next question is whether they are, for some legitimate reason, exempt from liability under 18D.

Defining Academic Freedom

Academic freedom is one of the classes of exception contained in s 18D. Its inclusion indicates that the Parliament considers academic freedom to be of sufficient importance in the public interest to warrant protection.

The idea that academics require special protection from interference may be an anathema to many Australians today. And yet academic freedom has traditionally been considered one of the indispensable pillars of a liberal society. Independence of the Academy, like independence of the Judiciary, is to ensure that the voices of dissent can never be silenced. For millennia, scholars have helped to protect our present and guarantee our future. As thinkers, they were the drivers of social change and political innovation. As teachers, they created "the foundation of every State [through] the education of its youth."29

William O'Douglas, the longest serving member of the United States Supreme Court said, "The most important aspect of freedom of speech is freedom to learn. All education is a continuous dialogue - questions and answers that pursue every problem on the horizon. That is the essence of academic freedom."

Construction of section 18D

Despite the seemingly inviolable nature of academic freedom, it is not absolute. It is subject to three qualifications under Australian law:

  • It must be genuine;
  • It must be reasonable; and
  • It must be done in good faith.

Section 18D of the Racial Discrimination Act relevantly states:

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

(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 "

Reasonableness and good faith are conditions attaching to all classes of exemption, while proof of "genuine purpose" relates specifically to s 18D(b).

I believe that there is still some ambiguity over the proper construction of s 18D. Two interpretive approaches may be taken. The court may consider whether the act was reasonable and in good faith as a threshold question. Or, it may first determine whether the conduct fits within one of the classes of exemption.

The courts have tended to favour the first approach. Perhaps that is because it is in a lawyer's nature to deal with first things first. Perhaps it is because it gives the court greater discretion.

It may be better to approach matters the other way around. It is more logical to consider whether an act is capable of exemption before deciding whether, on the grounds of reasonableness and good faith, it is, in fact, exempt. More importantly, considering reasonableness and good faith first may add, at least in some cases, an avoidable level of complexity to the inquiry because it is difficult, if not impossible, to apply either term without a thorough analysis of all the facts of the case.

Both terms have core meaning, but their specific content depends upon the conduct, or purpose, to which they relate. The question is whether an act done for a genuine academic purpose is reasonable and in good faith. What is reasonable and bona fide, in a general sense, may not be reasonable and bona fide in an academic context.

This brings one to the question what is a "genuine academic purpose"?

The meaning of "genuine academic purpose"

What is an "academic purpose"? No Court has yet decided the question. The nominative form of the word "academic" is "academy". The origin of the word "academy" is akademeia, or Akademos, who was a legendary figure of Greek mythology. Akademeia was the name given by Plato to the garden outside the walls of the ancient city of Athens where he taught philosophy each day.

The historical connection with Plato perhaps tells us all we need to know about the true nature of academia. It involves the pursuit of knowledge and the communication of ideas for the sake of learning, knowing and seeking the truth. An "academic purpose" is therefore anything done within the academy, by an academic, with the intention of contributing to the development of learning and ideas.

The purpose of the word "genuine" is, I think, to distinguish between real academia and false, or pseudo, academia.

The word "genuine" is not, so far as I am aware, a legal term of art. Therefore, in keeping with conventional principles of statutory interpretation, it is appropriate to give it its ordinary meaning in the context in which it appears and having regard to the purpose of the legislation.

According to the Concise Oxford English Dictionary30 "genuine" means "(1) truly what is said to be; authentic; (2) sincere or honest"

"Genuine" has been used at random in several other statutory contexts. It is used in the context of dispute resolution to determine between a "genuine dispute" and a spurious dispute.31 Some statutes use the word to suggest that something is real, rather than fake. For example, the QueenslandGaming Machine Act 1991 and Wine Industry Act 1994 make it unlawful to deal wrongfully with "genuine" evidence of age. Section 163 of the Protection of the Environment Operations Act 1997 (NSW) is directed towards ensuring that unleaded petrol is genuine. "Genuine" is not defined but the section makes it an offence to have unlawful levels of lead or phosphorus present in petrol. "Genuine" in this context therefore relates to the concept of "real" or "true" unleaded petrol. The Victorian Fuel Prices Regulation Act 1981 uses the word "genuine" to differentiate between real and forged invoices. The Australian Capital TerritoryCriminal Code 2002 also uses it to refer to documents that the offender believes to be real in forgery cases.

In these contexts, "genuine" has overtones of legitimacy and acceptability from a moral standpoint.

I think it follows that the composite expression "genuine academic purpose" must be interpreted in a way that allows the Court to accurately identify academic mischief makers. For example:

  • An academic who makes a comment in a personal rather than professional capacity should not be entitled to protection merely because he or she is an academic. This is because s 18D(b) applies to work done for an academic purpose, meaning, the furtherance of knowledge and learning. Personal remarks do not necessarily contribute to that end.
  • An academic who produces a well-reasoned article in order to disguise personal prejudices should not be entitled to protection because the real purpose of the article is to advance a prejudiced opinion. In that sense, it is fake;
  • An academic who produces lazy research should not be entitled to protection because it is not of sufficiently high quality to warrant the label "academic". I think that in cases such as these, a quality check is required because the exemption is a privilege and, like any privilege, it should be earned.

The range of potential mischief suggests that a Court should take into account both subjective and objective evidence when considering whether an act was done for a "genuine academic purpose".

Objective indicia, such as a high level of research, consideration and acknowledgement of contrary views, thorough review of the literature, accurate footnotes and a moderate tone, would tend to suggest that a publication is genuine. Other indicia might include that the publication had been subjected to objective peer review.

In terms of subjective indicia, it would be relevant, for example, if there was evidence that the academic had voiced personal prejudices. True academic work should be dispassionate.

Dispassionate, conscientious thinking by scholars whose work accords with conventionally accepted notions of rigour and rationality are ultimately the hallmark of genuine academia.

The facts in Toben v Jones32 present a clear example of a case of illegitimate academic discourse. It concerned the publication of an article on the internet that denied the existence of the Holocaust. Carr J described the article as "a very sick inversion [of the facts] and an exercise in sophistry " Its central thesis was "not confined to a dispassionate, scientific investigation " At one point, the article referred to those who held a contrary view as "intellectual midgets but materialistic giants who have their snout in the trough of the Holocaust racket." Allsop J held that it was "inflammatory contrived to smear Jews and that the tenor of the document was to offend and insult".33 Unsurprisingly, the Court refused to consider that the article was exempt under s 18D(b).

Toben v Jones was not a difficult case to decide. The difficulty, of course, lies in identifying less obvious forms of academic dishonesty.

Reasonableness and good faith

I turn now to the meaning of reasonableness and good faith. These are separate tests. They perform different functions - reasonableness is an objective test that focuses on the act itself, while good faith focuses on the actor. If the tests are conflated, as they have been in some early cases, they will not serve their statutory function and the mischief towards which the Act is directed will go unpunished.

The leading case on reasonableness and good faith is Brohpo v Human Rights and Equal Opportunity Commission.34 The case concerned the return of the severed head of an Aboriginal leader called Yagan. Yagan was a member of the Nyoongar tribe of Western Australia. He was captured, killed and beheaded in 1833 and his head was sent to England to be displayed in the Royal Institute in Liverpool. After being the object of curiosity for 133 years, it was taken to a cemetery and buried. In 1990, the Nyoongar people discovered its whereabouts and requested that it be exhumed and returned for proper burial according to Nyoongar law. The return of the head, which should have been an opportunity for celebration and unity, sadly caused great division between several members of the community, who argued over who should join the delegation that would go to England. The whole affair was publicized in the Western Australian newspaper.

The act of vilification was not the publication of one of the articles that concerned the event but rather a cartoon strip that appeared in the paper on 6 September 1997. It depicted an Aboriginal elder and three children. The cartoon was called "Alas Poor Yagan". A complaint was brought to the HREOC. A Hearing Commissioner found that while the cartoon was vilifying, it was also exempt under s 18D(a), which relates to the distribution of art.

The unsuccessful complainants made an application for judicial review on the basis that the Commissioner had used the wrong test when determining whether the publication of the cartoon was reasonable and in good faith. The Court dismissed the application. The applicants then appealed in the Full Federal Court which, by a majority (French and Carr JJ, Lee J dissenting), dismissed it.

Reasonableness

In the initial complaint, the Commissioner held that the publication of the cartoon was reasonable and bona fide because:

  • It was an issue of importance to the WA community generally, not just the Aboriginal community;
  • While the cartoon was exaggerated and prejudiced, it was not a breach of the standard of reasonableness because it fell within a "margin of tolerance";
  • The editor gave evidence that he had made a judgment 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"; and
  • Other articles had been published in the West Australian, which provided a balanced report of what took place.
  • The Commissioner also added that there was no evidence of dishonesty or malice on the part of the respondent.

This is an example of a case in which the notions of reasonableness and good faith were conflated.

On appeal to the Full Federal Court, French J described the test of reasonableness as an objective one. I understand this to mean that the act is measured against the standards of the general community, taking into consideration, "the normative elements of ss 18C and 18D and [recognising] the two competing values that are protected by those sections."35

This means that reasonableness does not depend on the opinion of the victim which, in any event, is taken into account in s 18C. Similarly, the opinion of the vilifier is not relevant because that is considered during the inquiry into "good faith". Nor are the standards of the academic community relevant to reasonableness, because that is the crux of the "genuine purpose" test.

According to French J, the term "reasonable" has overtones of rationality and proportionality. For an act to be reasonable, it must bear a rational relationship to the purpose and must not be disproportionate to the purpose. He gave two examples36 that are relevant to the academic purpose test:

  • The discussion of an offensive academic paper at a conference dealing with the topic would be a reasonable response to the academic purpose of the author.
  • In contrast, a discussion of the same paper at a meeting convened by a racist organisation would not satisfy the test because it is very difficult to see, from a rational perspective, how it could advance the academic merit of the paper. For the same reason, it could be considered disproportionate.

Lee J introduced an additional idea into this formulation. He distinguished between different levels of vilification under the legislation. For acts of relatively minor offence, it would be easier to establish that the decision to do the act was reasonable. For acts of more serious vilification, a higher evidentiary burden would be imposed on the person seeking the benefit of the exemption. In other words, "the reasonableness of an act could only be judged against the possible harm it may cause."37

This seems to be a slightly different test to the one propounded by French J because it focuses on the impact on the victim and the breach of the Act, rather than the academic purpose of the actor.

Good faith

The nature of good faith was discussed at some length by French J. He explained, and gave examples of, the many different statutory uses of the term.

The ordinary meaning of the term "good faith" suggests loyalty and adherence to a commitment. The United States Second Restatement on Contracts confirms this approach. It states that it has two elements: "faithfulness to an agreed common purpose and consistency with the justified expectations of the other party."38

However, while the idea of good faith remains consistent irrespective of its use, its precise content depends upon its statutory context. For this reason it is, in the words of French J, both "relational" and "ambulatory."39

Subjective or Objective

One ground of appeal in Bropho was that the Commissioner wrongly applied a subjective test as to the good faith and reasonableness of the act of publishing the cartoon. You will recall that one of the factors taken into consideration by the Commissioner when deciding to grant the exemption was that there was no evidence of dishonesty or malice on the part of the respondent. Malice and dishonesty are subjective considerations.

Since it was clear from the Commissioner's reasons that he had in reality adopted an objective test, the Full Court dismissed the appeal on that ground. The Court nevertheless discussed at length what the correct test should be.

French J40 noted good faith can have a subjective meaning, an objective meaning, or both. He referred to an extract from the judgment of Kirby J in Cannane v J Cannane Pty Ltd (In liquidation),41 in which his Honour explained each meaning:

"The first is a broad or subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produce it. The second involves the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence. The particular interpretation apt to the use of the words in a given legislative context will depend on the decision-maker's elucidation of the purpose of the legislature."42

French J held (in my view, correctly) that good faith in the context of s 18D of the Racial Discrimination Act required both a subjective and objective assessment of the conduct in question.

Malice and dishonesty indicate a total lack of subjective good faith. In the absence of evidence of malice or dishonesty, the court must nevertheless consider whether the actor exhibited positive signs of honesty and legitimate purposes.

The objective aspect of the test requires the court to go beyond the actor's subjective good will and consider whether he or she "has taken a conscientious approach to exercising [the freedom conveyed by the exception] in a way that is designed to minimize the offence or insult, humiliation or intimidation suffered by [the victim]."43 At this point, the tests of "genuine academic purpose" and "good faith" may merge somewhat.

If the exercise of the freedom does not indicate a conscientious approach, but rather carelessness which disregards, or is willfully blind to, its effect upon people who will be hurt by it, that could lead to a finding that the respondent was not acting in good faith.

It appears that Lee J adopted the same test.44

Should s 18D be given a broad or narrow interpretation?

Despite the fact that French J and Lee J applied the same test, they arrived at different conclusions.

This seems to be because they took a different view of whether s 18D should be broadly or narrowly interpreted. French J clearly holds the view that freedom of speech should be limited only so far as the language of the Act demands. He considers s 18D should be broadly construed.45 Lee J did not comment on the matter expressly. However, he emphasized the purpose of the Act and the harm caused by racial vilification in an insistent manner that suggests he would prefer a robust application of the Act to a weak one.46

The issue is clearly undecided.

There are arguments in favour of both approaches. Racial vilification is a serious charge of misconduct, and the stigma would follow an academic through his or her life. If there is any cause for doubt, the usual practice in the law is to protect the accused person's individual liberty.

On the other hand, the very purpose of a test such as good faith is to instill an element of moral responsibility into the law. As French J said in Bropho, "A good faith provision offers a warning that game playing at the margins of statutory proscription or obligation may attract a finding of liability."47 Given the potential ramifications of racial vilification for the individual victim, his or her racial group and society as a whole, it may be more important to adopt a narrow approach.

I do not necessarily have an answer to this problem. In truth, it is a question of policy for which the courts are not suited. It is a matter best decided by Parliament.

What can universities do to protect themselves?

Universities will face a dilemma. On one hand, they will want to protect academic freedom. On the other, they will not want to be complicit in, or even distantly associated with, acts of serious misconduct.

In the United Kingdom, the Council for Industry and Higher Education and Universities has published guidelines which identify the problems that universities face (including problems of racial vilification) and ways of preventing or managing them from an ethical perspective. The Council's report is called Ethics Matters.48 It does not seek to impose a common standard on universities but instead urges them to develop standards of their own. Guidelines, directed specifically towards eradicating discriminatory language, exist in most universities.49 I have not explored how far they extend to racial vilification generally. There is, however, a very good reason why they should deal with racial vilification. Section 18E of the RDA imposes vicarious liability on an employer for the acts of employees and agents in the course of their duties, unless the employer can discharge the onus of establishing that it "took all reasonable steps to prevent the employee or agent from doing the act."

To satisfy the "all reasonable steps" test, it is not sufficient for the employer to show it had no knowledge that vilification took place.50 The employer has a responsibility to take active steps to prevent the conduct in the first place.51 Naturally, knowledge of ongoing vilification and failure to stop it will render an employer vicariously liable.52 The same would apply if an employer knew that vilification was about to take place.

An employer has to anticipate vilification and put in place measures to prevent it. In Gilroy v Angelov,53 a sex discrimination case, the judge noted that the test may have been satisfied if the employer had established a procedure of providing all employees with a brief document pointing out the nature of discrimination, the sanctions that attach to it and the course to be followed if an employee feels harassed. Clear information about the racial vilification provisions of the RDA, and clear guidelines to avoid contravention would seem an essential if the employer is to avoid a finding of vicarious liability.

Drafting guidelines of this kind should keep you busy until your Conference next year!


Endnotes

  1. Purvis v State of New South Wales (2003) 217 CLR 92
  2. On 18 August 2005
  3. At: www.humanrights.gov.au
  4. The RDA, the DDA , the Sex Discrimination Act 1984, and the Age Discrimination Act 2004.
  5. s 46PD, Human Rights and Equal Opportunity Commission Act 1986
  6. On one of the grounds specified in s46PH of the Human Rights and Equal Opportunity Commission Act.
  7. s 46PO, Human Rights and Equal Opportunity Commission 1986.
  8. s 29, Human Rights and Equal Opportunity Commission 1986.
  9. Although the Report may make recommendations, including as to the payment of compensation. See s35.
  10. s 4.2, Education Standards.
  11. S 4, DDA
  12. S 6, DDA
  13. Purvis at [217-218]
  14. See Fetherston v Peninsular Health [2004]FCA 485, especially at[69]-[82]
  15. (2003) 199 ALR 1
  16. Michael Chesterman, Freedom of Speech in Australian Law, Ashgate Dartmouth, Sydney, 2000, p 20.
  17. Lange v Australian broadcasting Corporation (1997) 189 CLR 520 at 560.
  18. (2001) 162 FLR 333
  19. Ibid at 336-37.
  20. McIvor v Garlick [1972] VR 129
  21. (2004) 135 FCR 105
  22. Ibid at [135 - 136]
  23. (2003) 199 ALR 1 at [36]
  24. Parliamentary Debates, House of Representatives, 15 November 1994 at 3337.
  25. (2001) 112 FCR 352
  26. Ibid at [16].
  27. Above note 15 at [43].
  28. McGlade v Lightfoot (2002) 124 FCR 106 at 177.
  29. Diogenes Laertius, 3 rd century biographer of ancient Greek philosophers.
  30. 10 th Edition, revised, Oxford University Press, 2002.
  31. For example, s 89A of the Workplace Relations Act 1996 (Cth)
  32. Above note 15.
  33. Above note 15 at [161] per Carr J.
  34. Above note 21.
  35. Above note 21 at [79] per French J.
  36. Above note 21 at [80]
  37. Above note 21 at [136] per Lee J.
  38. At [205].
  39. Above note 21 at [91]
  40. Above note 21 at [97]
  41. (1998) 192 CLR 557
  42. Ibid at 596
  43. Above note 21 at [102] per French J.
  44. Above note 21 at [141]
  45. Above note 21 at [73].
  46. See for example, his description of the harm caused by racial vilification at [137].
  47. Above note 21 at [93].
  48. Unfortunately, it is not yet possible to download the report from the website. A copy can be purchased at: http://www.cihe-uk.com/publications.php
  49. For example, Guidelines for Communicating without Bias, Charles Sturt University; Non-Discriminatory Presentation and Practice, UNSW; and non-Discriminatory Language Guidelines, University of Sydney.
  50. Boyle v Ozden (1986) EOC 92 - 165
  51. Ibid.
  52. Gilroy v Angelov (2000) 181 ALR 57
  53. (2000) 181 ALR 57. This was a decision under s106 of the SDA which is in similar terms to s 18E of the RDA

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