• Any

RACIAL DISCRIMINATION - complaint by one member of local indigenouscommunity that public display of the word "Nigger" in the name on a sign on thestandat the sports ground infringes theRacial Discrimination Act 1975(Cth) - stand at sports ground named after well known local sportsman - thename includes the nickname "Nigger" long used as partof the common identifierof the sportsman - sports ground trustees decide to keep the sign in placeunaltered after inquiring andascertaining that, apart from the complainant,the local indigenous community did not object to its continued display - nobreachofss 9(1) or18C of theRacial Discrimination Act 1975(Cth)

Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO

Racial Discrimination Act 1975 (Cth)ss 9 and18C,Part IIA

Acts Interpretation Act 1901 (Cth)ss 13,15AA,15AB

International Convention on the Elimination of All Forms of RacialDiscrimination, Article 5

Macedonian Teachers' Association of Victoria Inc v Human Rights and EqualOpportunity Commission[1998] FCA 1650;(1998) 160 ALR 489 referred to

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384cited

Ebber v Human Rights and Equal Opportunity Commission[1995] FCA 1134;(1995) 129 ALR 455referred to

Aboriginal Legal Rights Movement Inc v South Australia (No 1)[1995] SASC 5224;(1995) 64SASR 551 cited

The Australian National Dictionary

The Macquarie Dictionary, 3^rd ed

Dictionary of Afro-American Slang (International Publishers, New York,1970)

The Oxford English Dictionary, 2^nd ed, (Clarendon Press,Oxford, 1989)

STEPHEN HAGAN v TRUSTEES OF THE TOOWOOMBA SPORTS GROUND TRUST

Q 35 OF 2000

DRUMMOND J

BRISBANE

10 NOVEMBER 2000

THE COURT ORDERS THAT:

1.The application be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the FederalCourt Rules.

1This is an application pursuant to s 46PO theHuman Rights and EqualOpportunity Commission Act 1986 (Cth) for compensation of $50,000 for lossand damage alleged to have been suffered by the applicant because of theconduct of therespondent in breach ofss 9 and 18C theRacialDiscrimination Act 1975 (Cth).

2The applicant contends that the Trust which controls the Toowoomba AthleticOval has contravened these provisions of theRacial Discrimination Actby the decision of the Trust's Committee at its special meeting of 8 July 1999not to remove the word "Nigger" from a sign on a standat the Athletic Oval.The sign displays a person's name; it consists of the words "The ES `Nigger'Brown Stand". The minutes ofthe Trust record that the applicant's letter ofcomplaint of 23 June 1999 was received and that the trustees made the followingdecision:

"After discussion it was moved by Ian Knight and seconded byDianne Thorley that a letter of reply be sent to Mr Hagan thanking himfor hisletter dated 23^rd June 1999 and received by us on 8^thJuly 1999 requesting the removal of the word `Nigger' from the sign and toinform him that all members of the Trust regret that heis personally offendedby the name when attending football matches at the Toowoomba Athletic Oval.However, based on representationand responses made by numerous indigenouspeople to all members of the Trust, the Board unanimously resolved that nofurther actionbe taken."

3The Trust chairman, by letter of 10 July 1999, informed the applicant ofthis decision.

4The applicant is of Aboriginal descent. He has lived with his family inToowoomba for the past four years. He has had an extensivecareer in variousareas in the public sector. He is currently employed as Chief ExecutiveOfficer of the Toowoomba Aboriginal Corporationfor the Community DevelopmentEmployment Program and has been elected a member of the ATSIC Regional Councilfor the Toowoomba area. He has had a longstanding interest in rugby leagueboth as a player and as a spectator.

5The Athletic Oval is the most important rugby league venue in the Toowoombaarea. All major representative games are played there. During the firstcouple of years the applicant lived in Toowoomba, he attended matches at theOval on about fifteen occasions. There are two large public stands. Onecarries, in a prominent position, the sign I have referred to. It seats about600 people. The applicant describes the sign as "very large" and visible fromall parts of the ground and also from outside the ground. Duringmatches,there is frequent reference, both in announcements as to the availability offacilities for the public at the Oval and inmatch commentaries, to "The`Nigger' Brown Stand". The applicant became increasingly offended at thedisplay of the word "Nigger"in the sign on the stand and at the frequentmention during games of the word "Nigger", in the context of references overthe publicaddress system to "The `Nigger' Brown Stand". His wife, who hasaccompanied him to the ground, has had the same reaction. He usedto take hisyoung children to the Oval on occasions, but because of his own reaction to thepresence of the word "Nigger" in thesign on the stand and the oral referencesat the Oval to the word as part of the name of the stand, he has stopped doingthat. Ultimately,he decided to complain to the Trust. He did this by hisletter of 23 June 1999, in which, while acknowledging his respect for ESBrownand his family, the applicant asked the Trust to take immediate action to have"The ES `Nigger' Brown Stand" public sign removedfrom the grandstand becausehe was personally offended by it whenever he attended football matches at theground. He drew the Trust'sattention to his entitlement to make a complaintunder theRacial Discrimination Act to the Human Rights and EqualOpportunity Commission, if his request was not complied with.

6The applicant says that the word "nigger" is deeply offensive to him"whatever the context the word is used" in. He adds thathe cannot think of asingle instance in which the term could have an innocuous or neutralmeaning.

7The word "nigger", though perhaps more closely associated with the UnitedStates of America, has long been used in Australia torefer, in a derogatoryway, to indigenous people, as reference toThe Australian NationalDictionary demonstrates. There can be no doubt that use of the word"nigger" is, in modern Australia, well capable of being an extremely offensiveracist act. If someone were, for example, to call a person of indigenousdescent a "nigger", that would almost certainly involveunlawful racially-basedconduct prohibited by theRacial Discrimination Act. I say "almostcertainly" because it will, I think, always be necessary to take into accountthe context in which the word is used,even when it is used to refer to anindigenous person. This is shown by the fact that the applicant volunteersthat he is awareof suggestions that some aborigines refer to each other as"nigger" "in a joking way", (though he himself has never heard the wordsoused). It would, I think, be very unlikely for there to be any breach of theRacial Discrimination Act if an Aborigine were to refer to a fellowAborigine in such a way as a "nigger". Though neitherThe MacquarieDictionary, 3^rd ed, norThe Australian NationalDictionary make any reference to this use of the term within indigenouscommunities in Australia, such a use is well documented in the USA andtheUnited Kingdom. Clarence Major points out in hisDictionary ofAfro-American Slang (International Publishers, New York, 1970) that whenthe word "nigger" is used by a white person in addressing a black person, itisusually offensive and disparaging, but "used by black people among themselves,it is a racial term with undertones of warmth andgoodwill - reflecting, asidefrom the irony, a tragicomic sensibility that is aware of black history".The Oxford English Dictionary, 2^nd ed, (Clarendon Press,Oxford, 1989) also recognises this ironic usage in some black communities. Itgives the following as the primarymeaning of the word:

"A Negro. (colloq. and usu. contemptuous)Except inBlack English vernacular, where it remains common, now virtually restrictedto contexts of deliberate and contemptuous ethnic abuse." (emphasisadded)

8This all serves, in my opinion, to show how essential it is to have regardto the context in which even a word that usually hassuch a strong raciallyoffensive connotation as "nigger" is used, in assessing whether it is in factused on a particular occasionin a derogatory way. I do not think any absoluterule can be stated: it will, I think, all depend upon the circumstances inwhichthe particular use of the word occurs, a truism reflected ins 18C(1)(a) of the Act. I do not therefore accept the applicant'scontention that its use whatever the context must invariably be raciallyoffensiveand a breach of theRacial Discrimination Act.

9It is apparent that this case has nothing to do with whether theRacialDiscrimination Act is breached because an indigenous person has been calleda "nigger". The issue for decision is quite different. It is whether thepublic display of the word "Nigger" in a context which does not, on theevidence, have any racist connotation or racist message contravenestheRacial Discrimination Act.

10It is necessary, in order to explain why I have characterised the questionfor decision in this way, to say something about theperson whose name is onthe sign. Edward Stanley Brown was born in 1898 and died in 1972. He was ofAnglo-Saxon descent. He becamea very well known Toowoomba identity primarilybecause of his career as a footballer. He was Toowoomba's first rugby leagueinternationalplayer, President of the Toowoomba Rugby League in the early1950s and a member and then Chairman of the respondent Trust duringa twentyyear period ending in the late 1960s. He was a City Alderman at the time ofhis death. In 1960, the trustees of the AthleticOval voted to name the stand"The ES `Nigger' Brown Stand", plainly to honour Mr Brown as a distinguishedlocal sportsman. It hascarried that name ever since.

11The evidence is unclear as to precisely when and in what circumstances thenickname "Nigger" became attached to Mr Brown. Thereare various theories inthe evidence as to why it was bestowed on him. One suggestion is that a familyfriend named him "Nigger"as a child because he was a blonde haired andfair-skinned boy. (There was a practice, once common in Australian vernacularspeech,of giving a person a nickname that attributed to the person physicalcharacteristics opposite to those he in fact possessed, eg,bald men weresometimes called "Curly".)The ABC of Rugby League by Malcolm Andrewscontains the following in the entry for "Edwin (sic) `Nigger' Brown":

"Edwin Brown's nickname would, for obvious reasons, never becountenanced today. The name had nothing to do with the colour of Brown'sskin. It came about because of his snappy dressing and penchant for wearingdeep brown shoes. This colour was known in the shoeshops as - `niggerbrown'."

12The Oxford English Dictionary, 2^nd ed, refers in theentry for "Nigger" to its use in combination with other words "to denote a darkshade of colour, asnigger-brown". Examples of this usage between 1914and 1973 in relation to various colours of clothing material are given.

13If either explanation describes the genesis of Mr Brown's nickname, a racialconnotation may well have then been involved. ButI think the evidenceestablishes that the use of the word "Nigger" as part of the name by which MrBrown went and was known has longbeen devoid of racial connotation. It isclear that, through most of his life, including his career as a rugby leagueplayer andsubsequently, Mr Brown himself went by the name "Nigger" Brown andhe was known in the Toowoomba community (and more widely) by thatname. Thereis no reason to doubt what the present Chairman of the respondent Trust, whoknew Mr Brown personally as "Nigger" Brown,has to say about his researcheswhich reveal that Mr Brown was universally known by that same name. That ishow he is referred toin football team photographs and on club trophies and innewspaper articles. His gravestone bears the name "Edward Stanley `Nigger'Brown". It is, I think, apparent that the use of this nickname both by MrBrown and of him by the community in which he lived overmany years was not ausage intended by Mr Brown to convey or which did convey to any local resident(apart from the applicant) aracist element. Even if the nickname "Nigger" wasoriginally bestowed long ago on Mr Brown in circumstances in which it then hada racial or even a racist connotation, the evidence indicates that for manydecades before the applicant's complaint, its use aspart of the customaryidentifier of Mr Brown had ceased to have any such connotation.

14It is convenient to deal with the applicant's case in so far as it is basedons 18C theRacial Discrimination Act first. This provides:

"(1)It is unlawful for a person to do an act, otherwise than inprivate, 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 ethnicorigin of the other person or of some or all of the people in thegroup.

(2)For the purposes of subsection (1), an act is taken not to be done inprivate if it:

(a)causes words, sounds, images or writing to be communicated to thepublic;

(b)is done in a public place; or

(c)is done in the sight or hearing of people who are in a publicplace.

(3)In this section:

`public place' includes any place to which the public have access as of rightor by invitation, whether express or implied and whetheror not a charge ismade for admission to the place."

15It is apparent from the wording ofs 18C(1)(a) that whether an actcontravenes the section is not governed by the impact the act is subjectivelyperceived to have by a complainant. An objective test must be applied indetermining whether the act complained of has the necessary offensive,insulting, humiliatingor intimidatory quality for it to be within thesub-section. The question so far ass 18C(1)(a) is concerned is not: howdid the act affect the particular complainant? But rather would the act, in allthe circumstances in whichit was done, be likely to offend, insult, humiliateor intimidate a person or a group of people of a particular racial, nationalorethnic group?

16It also seems clear enough from the use of the phrase "if ... the act isdone because of the race ..." ins 18C(1)(b) that there must be a causalrelationship between the reason for the doing of the act and the race of the"target" person or group.Section 18C(1)(b) can, in this respect, becontrasted withs 9(1), which requires only that the act there proscribedbe "based on race", ie, that the act has a sufficient connection, notnecessarilycausal, with considerations of race, etc. SeeMacedonianTeachers' Association of Victoria Inc v Human Rights and Equal OpportunityCommission[1998] FCA 1650;(1998) 160 ALR 489.

17The applicant contended that the act he complains of, in so far as itconsists of the decision of the trustees taken in privatemeeting, wasnevertheless an act done "otherwise than in private" because, in terms ofs 18C(2)(a), that decision to allow the offending word "Nigger" in thename of the stand to remain on display at the Oval thereby caused thatword tobe communicated to the public. That may be right. In any event, to overcomeany possible difficulty in showing that anoffending act was done "otherwisethan in private", the applicant, at the hearing and without objection from therespondent, alsocontended that the Trust had breached theRacialDiscrimination Act by keeping the offending sign in place on the stand atthe Oval, plainly itself a "public place" withins 18C(3).

18However, the applicant's case based ons 18C(1) fails. He cannot, inmy opinion, prove that the trustees' decision is an act withins 18C(1)(a).

19As the trustees' decision records, it was arrived at only after they hadconsidered the views of numerous members of Toowoomba'sindigenous community.Mr McDonald, the present Chairman of the trustees, refers to inquiries he madeof Mr Kevin "Dick" Rose, a prominentmember of the Aboriginal community inToowoomba. He says he was told by Mr Rose that the Aboriginal community had noobjection tothe name and, in fact, supported retention of it on the stand atthe Oval. Ms Thorley, another trustee and currently Mayor of Toowoomba(whodisputed in part the applicant's account of the conversation he had with her inmid June 1999 about the naming of the stand),said that before attendingthe meeting at which the trustees' decision in question was made, she canvassedthe opinion of the Aboriginalcommunity and formed the view that, as a whole,it was "not against the retention of the name". She mentions that, until theapplicant'scomplaint, no complaints had ever been made to the Trust withrespect to the name of "The ES `Nigger' Brown Stand". Mr Arthur Beetson,aprominent rugby league identity of Aboriginal descent now resident in Sydneybut who in past years played rugby league on the DarlingDowns, commented onthe applicant's complaint in this way:

"It is my understanding that Mr E.S. Brown was known as `Nigger'by his friends, colleagues and the wider community. I take the viewthat thisname is simply part of history and have no problem with this name when used inthe context of honouring the late Mr Brown."

20Mr Rose, to whom the Trust's Chairman spoke, gave evidence. He isheavily involved in and well known among the Toowoomba Aboriginalcommunity.He has also been an outstanding Toowoomba rugby league player and remains anactive supporter of rugby league there. Like Mr Beetson, he takes no offenceat the presence of the word "Nigger" in the name of the ES "Nigger" BrownStand. He says:

"I know from experience that many people referred to the lateEdward Brown simply as `Nigger'. The naming of the stand is to honourMr Brownand I do not have a problem with the use of the word `Nigger' in thiscontext."

21It is not without significance that a little while ago Mr Rose wasinvolved in the running of the State Aboriginal Championshipswhich were playedat the Toowoomba Athletic Oval. He says that, over the course of the weekendof the championships, approximately6,000 people, many of them of Aboriginaldescent, attended. He adds that there was not one complaint, so far as he isaware, aboutthe display of the sign in question though, as the applicant says,it is highly visible.

22That the trustees, in deciding to retain the name unaltered despite theapplicant's objection, did form a reasonably accuratepicture of the views ofthe Toowoomba Aboriginal community about the presence of the word `Nigger' inthe name in the sign on thestand in the course of making their decision tokeep it in place is also confirmed by the evidence of what took place at thepublicmeeting held on 29 July 1999, ie, a few weeks after the trustees'decision the subject of the applicant's complaint.

23Mr Rose chaired this meeting. It was attended, according to his evidence,by a cross-section of the Aboriginal community inToowoomba as well as theMayor, Ms Thorley. The Chairman of the respondent Trust, Mr McDonald, wasinvited to join the meeting aftera decision, recorded in a resolution, hadbeen reached. About sixty people were in attendance. That is, on theevidence, a largeroll-up for such a meeting. I accept that the meeting washeld in circumstances where it was widely known among the Aboriginal communitythat it was to be convened. The applicant's complaint had received veryconsiderable publicity in the local media, which commencedin early June 1999.This publicity included interviews which the applicant gave to the media and atleast one photograph of the applicantstanding against the sign which was alsopublished in theToowoomba Chronicle. Mr Rose says that was a topic ofa lot of discussion among the Aboriginal community prior to 29 July. I alsoaccept that sucha meeting, of as many as sixty people, does enable areasonably reliable view to be formed of the opinions of the local indigenouscommunity on the matter in issue. The formal decision of the meeting iscontained in the following resolution, unanimously passed:

"That the name `E.S. NIGGER BROWN' remain on the stand in honourof a great sportsman and that in the interest of the spirit of reconciliation,racially derogatory or offensive terms will not be used or displayed in future.This community affirms that it does not and willnot condone any form ofdiscrimination towards any peoples."

24The wording of the resolution can be said to convey an undercurrent ofconcern at the public usage of the word "Nigger" in thename on the stand. Theapplicant relies on that to show that the trustees' decision was an "act ...done because of race" withins 18C(1)(b) in that it caused concern toindigenous people. But that undercurrent is not present in the general run ofcomments made at themeeting and recorded in the detailed minutes of what tookplace. Nor is it reflected in the evidence of Mr Rose and Ms Thorley aboutwhat occurred at this meeting. The resolution does not, I think, capture thesense of what the various speakers said. Almost all,including a number whoapparently regularly attend the Oval, stated their absence of objection to thename on the stand. One view,fairly widely expressed, was that the name of thestand was not directed at Aboriginal people but was a person's nickname and, assuch, could not be regarded as having a derogatory meaning.

25There is no reason why I should confine my attention to the formalresolution passed at this meaning in so far as that mightbe thought to throwlight on the views of the Aboriginal community: the meeting was simply of agroup of indigenous citizens, notof an organisation such as a council or acorporation which can only act by formal resolution and whose decisions mustthereforebe gathered from the terms of the resolutions passed by theirgoverning bodies. Despite the terms of the resolution, I am not thereforeprepared to find that the use of the word "Nigger" in the sign on the stand atthe Oval does, in fact, give offence to members ofthe Toowoomba indigenouscommunity, apart, that is, from the applicant and members of his immediatefamily.

26I accept that Mr Hagan personally became increasingly offended at thepresence of the word "Nigger" in the name of the standat the Oval during hisattendances at the Oval. But the evidence as to the word being thelong-established nickname which Mr ESBrown went by throughout most of his lifeand by which he was widely known in the Toowoomba community, as a respectedmember of thatcommunity, makes it difficult to find that the objective testcontained ins 18C(1)(a) is satisfied with respect to the use of the wordcomplained of here: even if the nickname was originally bestowed on Mr Brownincircumstances in which the word had a racial or even racist connotation, theevidence shows that his nickname had lost that connotationwithin the widerToowoomba community many decades before Mr Hagan made his complaint. This is,I think, demonstrated by the evidenceI have referred to of the views widelyheld in the Toowoomba Aboriginal community about the sign, including the viewsexpressed atits meeting on 29 July 1999.

27The applicant does not contend that the display of the word "Nigger" in thecontext of Mr Brown's name in the sign was itselfracially motivated or was adeliberate racist gesture. As I understand his case, he does not dispute theview presented by the massof evidence that, the long use by Mr Brown himselfof the nickname as part of his common name and its widespread recognition amongthe Toowoomba community as identifying him and the incorporation of that wordin Mr Brown's name on the sign marking the stand ascommemorating Mr Brown andhis achievements, all show that the word in that particular context has longceased to have any racialconnotation, even if it once did have that. Hisobjection is to the use of the word, irrespective of its context, as aninvariablyoffensive act.

28The evidence from witnesses of Aboriginal descent of their own views and asto the views of a larger grouping of indigenous membersof the Toowoombacommunity about the acceptability of the use of the word "Nigger" in theparticular context here in question isa combination of direct evidence bymembers of the particular group said to be offended by the act that eachwitness was not, infact, offended and opinion evidence by them as to thelikely response of other members of that same group who did not themselvesgiveevidence to the use of the word in the particular context here in question.That opinion evidence was put before me withoutobjection and goes to the sameissue opened up by the applicant's own opinion evidence as to the likely impactof the use of theword "Nigger" here in question on indigenous Australiansother than himself and his family. I consider all this evidence is relevanttowhether the trustee's decision comes withins 18C(1)(a). See ss 78and 80 theEvidence Act 1995 (Cth).

29The objective circumstances by reference to which it must be determinedwhether the act possesses the necessary quality of offensivenessto bring itwithin s 18C(1)(a) include too, the following facts: the sign has been onpublic display at the Oval for forty years;the Oval is a heavily frequentedvenue and many persons of Aboriginal descent must have observed the sign overthose years. Thepast forty years is a period during which sensitivities toand readiness to speak out about racially offensive behaviour have becomeincreasingly sharper and more pronounced among people in the general Australiancommunity, as well as among indigenous people. Thisis evidenced, by way ofexample, by the enactment of theRacial Discrimination Act itself, thevolume of litigation under that Act since 1975 and by the comments of theMinister in his second reading speech of 28November 1994 on the Bill thatresulted in the introduction ofs 18C into theRacial DiscriminationAct. Despite all this, at no time during this long period has there everbeen any objection to this sign by anyone, apart from the applicant.

30The circumstances of the word's use also include the fact that it appears ina sign as an integral part of the name of a personwho is clearly beinghonoured by having his name publicly applied to the stand. That is, the word"Nigger" is used in the contextof giving public recognition to theachievements of a particular person associated with the Athletic Oval and thesporting activitiescarried on there. Visitors unaware of Mr ES Brown'spersonal history would, I think, take this into account in evaluating themessageconveyed by the word "Nigger" in that context: I think they would bemore likely to see the display of the word in this contextas publicrecognition of a particular person's perceived civic worth by the communitythan they would be to read it as a show ofracist bigotry or insensitivity.This is a consideration that tells against the proposition put in argument onbehalf of the applicant(but without any evidentiary support) that anuninformed visitor might think that that use of the word conveyed a raciallyoffensiveconnotation.

31On the evidence before me and when regard is had to the context in which theword "Nigger" complained of here is used, somethingrequired by the words ofs 18C(1)(a), I do not consider that the applicant has established that thetrustee's decision is an act reasonably likely in all the circumstancestooffend, insult, humiliate or intimidate an indigenous Australian or indigenousAustralians generally.

32No do I accept that the applicant has established that the trustees'decision was an act "done because of the race ... of thepeople in the group"withins 18C(1)(b). This is a further reason why the application, in sofar as it is based ons 18C, must fail.

33I have rejected the applicant's contention that the resolution passed at thecommunity meeting of 29 July 1999 is evidence ofa body of opinion in theToowoomba Aboriginal community that the use of the word "nigger" here inquestion is offensive to membersof that community. The applicant'salternative case unders 18C(1)(b) is that the trustees' decision was, onthe respondent's own evidence, only made because of the views which theyascertained membersof the Aboriginal community held to the effect that it wasappropriate to keep the sign in place. That fact, it is said, is sufficienttoshow that the trustees' decision was causally related to the race of a group ofpeople, viz, indigenous members of the Toowoombacommunity.

34It can be accepted that at least one of the reasons the trustees had formaking their decision to keep the sign in place wasrelated to race in thesense that they acted as they did because they formed the opinion that thegeneral view of the local indigenouscommunity was that maintenance of thesign was not regarded as offensive to them on any ground, racial or otherwise.But to gives 18C(1)(b) such a mechanical application is to ignore thestatutory context and purpose ofs 18C. It is inPart IIA of the Actheaded "Prohibition of Offensive Behaviour based on Racial Hatred". It isnecessary to take this heading into accountin seeking the true meaning ofs 18C(1)(b): that heading is part of the statutory context of the phrase,"act done because of the race ...", in this sub-section. Sees 13(1) theActs Interpretation Act 1901 (Cth) andCIC Insurance Ltd v BankstownFootball Club Ltd (1997) 187 CLR 384, where it was said at 408 that "themodern approach to statutory interpretation ... insists that the context beconsidered in the first instance, not merely at some later stage when ambiguitymight be thought to arise ...". An act done by aperson only after he or shehas in good faith taken care to avoid offending the members of a racial groupand which, when done, isnot, on an objective view, likely to offend members ofthat group is not, in the context ofPart IIA of theRacial DiscriminationAct, an "act done because of the race of" any of the persons in that groupwithin the meaning of that expression ins 18C(1)(b). Thats 18C(1)(b) should not be given the wide meaning upon which the applicantrelies is supported by the Explanatory Memorandum accompanying theBill whichresulted in the inclusion ofs 18C in theRacial Discrimination Actby Act No 101 of 1995 and by the Minister's second reading speech on the Bill.Regard can be had, in seeking the true meaning ofs 18C to this materialby force of ss 15AA and 15AB(1)(b)(i) and (ii) theActs InterpretationAct. The Memorandum states:

"The Bill addresses concerns highlighted by the findings of theNational Inquiry into Racist Violence and the Royal Commission intoAboriginalDeaths in Custody. In doing so, the Bill closes a gap in the legal protectionavailable to the victims of extreme racistbehaviour.

...

The Bill is not intended to limit public debate about issues that are in thepublic interest. It is not intended to prohibit peoplefrom having andexpressing ideas. ...

The Bill maintains a balance between the right to free speech and theprotection of individuals and groups from harassment and fearbecause of theirrace, colour or national or ethnic origin. The Bill is intended to preventpeople from seriously undermining tolerancewithin society by inciting racialhatred or threatening violence against individuals or groups because of theirrace, colour or nationalor ethnic origin.

...

... the civil prohibition in clause 6 of the Bill [ie, s 18C] addressesacts done because of race, colour or national or ethnicorigin, otherwise thanin private, which are reasonably likely to offend, insult, humiliate orintimidate people. ... The proposedprohibition on offensive behaviour basedon racial hatred would be placed within the existing jurisdiction of theCommission to conciliateand/or determine complaints alleging breaches of theRDA. This victim-initiated process is quite different from the criminaloffenceregime where the initiative for action generally involves police andprosecution authorities."

35The Minister, in his second reading speech, said: "The Bill is intendedto close a gap in the legal protection available to thevictims of extremeracist behaviour."

36It would give s 18C an impermissibly wide reach to interpret it asapplying to acts done specifically in circumstances wherethe actor has beencareful to avoid giving offence to a racial group who might be offended. Theapplicant's case based on s 18Cand the trustees' decision of 8 July 1999fails. For similar reasons, if the act of the trustees said to infringes 18C is describedas their conduct in keeping the sign in placeunaltered, the applicant also fails to make out his case.

37The applicant relies on s 9(1) theRacial Discrimination Act asa second basis for fixing the respondent with liability under the Act. Itprovides:

"It is unlawful for a person to do any act involving adistinction, exclusion, restriction or preference based on race, colour,descentor national or ethnic origin which has the purpose or effect ofnullifying or impairing the recognition, enjoyment or exercise, onan equalfooting, of any human right or fundamental freedom in the political, economic,social, cultural or any other field of publiclife."

38This section is not directed to protecting the personal sensitivities ofindividuals. It makes unlawful acts which are detrimentalto individuals, butonly where those acts involve treating the individual differently and lessadvantageously to other persons whodo not share membership of thecomplainant's racial, national or ethnic group and then only where thatdifferential treatment hasthe effect or purpose of impairing the recognitionetc of every human being's entitlement to all the human rights and fundamentalfreedoms listed in Article 5 of theInternational Convention on theElimination of All Forms of Racial Discrimination or basic human rightssimilar to those listed in Article 5. Sees 9(2) theRacialDiscrimination Act andEbber v Human Rights and Equal OpportunityCommission[1995] FCA 1134;(1995) 129 ALR 455 at 471 and 475 - 477.

39In theMacedonian Teachers' Association case, Weinberg J held thatthe phrase "based on" ins 9(1) should not be read as requiring a causalrelationship between the act complained of and race, etc, but should rather beread as meaning"by reference to", ie, as capable of being satisfied by a lessdirect relationship than that of cause and effect. Althoughs 9(1) doesnot require proof of a subjective intention to discriminate on the grounds ofrace (though that would suffice), there must besome connection between the actand considerations of race. As Weinberg J points out at 512, even though anact may not be donewith a racially discriminatory motive, if it in factoperates to treat the members of a particular racial group less favourably thanthe community generally, it can fairly be described to be an act based on racewithins 9(1). See alsoAboriginal Legal Rights Movement Inc v SouthAustralia (No 1)[1995] SASC 5224;(1995) 64 SASR 551 at 553 where Doyle CJ, with whomBollen J agreed, said, ofs 9 theRacial Discrimination Act:

"... that section is not attracted unless an act ... is donewhich in fact produces a distinction on the base of race ... and theexistenceof that racial discrimination is the basis of the relevant act in the sensethat the act occurred by reason of or by referenceto the racial distinction.This does not mean that the inquiry is one as to motive. The inquiry is intowhether the racial distinctionis a material factor in the making of therelevant decision or the performing of the relevant act."

40It can be accepted thats 9(1) protects the basic human right ofevery person who is a member of a particular racial group to go about hisrecreational and otherordinary activities without being treated by others lessfavourably than persons who do not belong to that racial group are treatedbythose others.

41But there are a number of difficulties for the applicant in making out acase based ons 9(1). On the evidence in this case, I do not accept thatthe trustees' decision to keep the sign in place unaltered was an act thatinvolvedtreating members of the Aboriginal race differently, let alone lessfavourably, from other members of the community. I have referredto theevidence that the word complained of is only used in the sign as part of thecustomary identifier of a well-known and respected,now deceased member of thegeneral Toowoomba community and that, in the context of that use, it has longceased to have any racialor racist connotation (if it ever did have that). Ihave referred to the evidence confirming this to the effect that the generalview of the Toowoomba Aboriginal community is that the use of the wordcomplained of in this particular context causes no offenceto such personsconsidered as a racial group.

42Even if, contrary to what I believe to be the case, the act of the trusteescan be said to have been based on race, that canbe so only in the sense thatracial considerations provided the, or at least one motive for the doing of theact. But since thoseracial considerations were taken into account to satisfythe trustees that maintenance of the sign would not give offence to Aboriginalpersons generally, as distinct from offence to Mr Hagan personally, it cannotbe said that the act, even if based on race, involvedany distinction etchaving either the purpose or effect of nullifying or impairing the recognition,enjoyment or exercise, on anequal footing, of any human right or fundamentalfreedom of the kind referred to ins 9. Only Mr Hagan's personal feelingswere affected by the act. Because there was no distinction etc produced by theact capable ofaffecting detrimentally in any way any human rights andfundamental freedoms, there was no racial discrimination involved in theact.

43The application is dismissed.

Associate:

Dated:10 November 2000