• Any

DISCRIMINATION LAW -racial discrimination - racial hatred - publicationof photographs - whether objective test to be applied in determining if the actis reasonably likely to offend or humiliate - perspective to be considered -meaning of "because of" - relevance of motive, intentionor purpose - whethercausal connexion required - whether the defence of a "fair and accurate report"would apply - considerationsrelevant to an award of damages.

STATUTES - whether to have consideration of Explanatory Memorandum,section title or heading in interpretation of statutory provisions - whentohave regard to the plain words of a provision

WORDS AND PHRASES - "because of"

Acts Interpretation Act 1901 (Cth)s 13(1)

Anti-Discrimination Act 1977 (NSW)S 24(1), (3)

Crimes Act 1914 (Cth)

Equal Opportunity Act 1984 (Vict)s 17(1)

Racial Discrimination Act 1975 (Cth)ss 9(1), 9(1A), 18B, 18C

Racial Hatred Act 1995

Racial Hatred Bill 1994

Aboriginal Legal Rights Movement v State of South Australia[1995] SASC 5224;(1995) 64SASR 551Cited

Australian Iron & Steel Pty Ltd v Banovic[1989] HCA 56;(1989) 168 CLR 165Discussed

Australian Medical Council v Wilson & Ors(1996) 68 FCR 46Referred to

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

Hagan v Trustees of the Toowoomba Sports Ground Trust[2000] FCA 1615Applied

Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd(1993)46 FCR 301 Cited

James v Eastleigh Borough Council[1990] UKHL 6;[1990] 2 AC 751Referred to

Macedonian Teachers' Association of Victoria Inc v Human Rights and EqualOpportunity Commission[1998] FCA 1650;(1998) 91 FCR 8Referred to

R v Birmingham City Council, ex parte Equal Opportunities Commission[1989] AC 1155Referred to

Waters v Public Transport Corporation[1991] HCA 49;(1991) 173 CLR 349Discussed

Explanatory Memorandum to theRacial Hatred Bill 1994

Report of the National Inquiry into Racist Violence in Australia

The Royal Commission into Aboriginal Deaths in Custody

PATRICIA DONNA CREEK v CAIRNS POST PTY LTD

Q 4 OF 2001

KIEFEL J

BRISBANE (Heard in Townsville)

31 JULY 2001

THE COURT ORDERS THAT:

1.The application will be dismissed.

2.The parties have liberty to apply in relation to the question of costs.

THE COURT DIRECTS:

3.Any application for costs be made by way of written submissions forwarded tomy Associate by 12 noon on Friday 3 August 2001.

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

1On 31 July 1997 The Cairns Post published an article concerning the custodyof a two year old Aboriginal girl, Melita Kepple. The report concerned thedecision of the Queensland Department of Family Services, Youth and CommunityCare, to take the child fromfoster care with a white family and place her intothe care of the applicant, Ms Creek. Ms Creek also had the care of the child'stwo brothers. Their mother, a relative of Ms Creek, had been killed in a caraccident in 1995.

2The principal issue which the article explored was whether the Department'sdecision was a reaction to the"Stolen Generation" report, which hadbeen published earlier that year and had spoken of Aboriginal people having inthe past suffered because of theirremoval from their families. The fosterparents themselves wondered whether this could be so, as they said they wereotherwise ata loss to understand why the child was taken from them. The childhad been in their care since early 1996. They had the supportof someAboriginal elders who considered the child had been given to them according toAboriginal adoption laws. The Departmentexplained its stand - that the childshould be raised in her own community with her brothers; and the view that shewas"home" was echoed by the applicant. The case was said to havedivided the Aboriginal community.

3The report was written by a journalist with the Australian Associated Pressservice. The Cairns Post, the respondent, is a clientof that service andobtained the report from it. No journalist directly employed by the respondentwas involved in the preparationof the report. It was not suggested in finaladdresses that the report was not balanced in its discussion of the variousviews,although the applicant was herself concerned and upset to be describedas a"distant relative". This was the only report shown to have beenpublished by The Cairns Post. The newspaper is circulated in Coen, where theapplicantresides, and in other places in and around Cairns and in NorthQueensland. Other reports were published by The Courier-Mail bothprior to andfollowing The Cairns Post publication. Although the applicant said that TheCourier-Mail is not widely circulated inthe Coen area, it would seem that shebecame aware of the content of some of those reports. They contained commentsto the effectthat she had had alcohol-related problems in the past and hadassaulted someone. These reports are not however the subject of complaintinthese proceedings. Their relevance to the applicant's claim for damages is amatter I shall turn to again later.

4What concerned the applicant was not the written report, but the photographof her which accompanied it. Three photographs wereplaced around the heading"Torn between families". In addition to a photo of the child Melita,there was a photo of the couple, Mr and Mrs MacDonald, and one showing theapplicant. The difference between the photographs, and the matter which causedthe applicant to be upset and humiliated, was that the couplewere presented intheir living room with a comfortable chair, photographs and books behind them;the photograph of her showed herin a bush camp with an open fire and a shed orlean-to in which young children could be seen.

5The photographs which accompanied the report were chosen and placed by therespondent after resort to the photographic libraryof News Limited in Sydney.Its editor, Mr Iedema, says that the photograph of the applicant there shownwas the only photograph available. It appears to be the case that thephotograph was taken with the applicant's consent but on an earlier occasion,when the applicanthad assisted in locating some New Zealand backpackers whohad become lost in a remote area. The bush camp is some four hours drivefromCoen and is utilised by the applicant and her family principally forrecreational purposes. The applicant says that the photographportrayed her asa primitive bush Aboriginal and implied that this was her usual lifestyle, onein which Melita would have to live. In reality the applicant at all relevanttimes lived in a comfortable, four-bedroom brick home in Coen with the usualamenities.The newspaper's case is that the photographs were inserted only tointroduce the people involved in the debate to readers and thisis how areasonable reader would have viewed the photographs.

6The fact that the photographs may have wrongly, which is to say inaccurately,portrayed the applicant's usual living circumstancesdoes not itself establishthe complaint. Section 18C(1)Racial Discrimination Act 1975 (Cth)("RDA"), upon which the applicant's complaint is founded, provides:

"Offensive behaviour because of race, colour or national orethnic 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 groupof people; and

(b)the act is done because of the race, colour or national or ethnic origin ofthe other person or of some or all of the peoplein the group."

7Section 18B provides:

"Reason for doing an act

If:

(a)an act is done for 2 or more reasons; and

(b)one of the reasons is the race, colour or national or ethnic origin of aperson (whether or not it is the dominant reason ora substantial reason fordoing the act);

then, for the purposes of this Part, the act is taken to be done because of theperson's race, colour or national or ethnic origin".

8These sections, which were introduced by theRacial Hatred Act1995, appear inPart IIA which is entitled:

"PART IIA - PROHIBITION OF OFFENSIVE BEHAVIOUR BASED ONRACIAL HATRED"

9Part II is entitled"PROHIBITION OF RACIAL DISCRIMINATION".

10Section 9(1) provides that:

"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."

11It may here be observed that s 18C(1)(b) refers to the actcomplained of being "done because of the race ... of the other person"and s 9(1) refers to the act constituting discriminatory conduct as being"based on race ...". Section 9(1A) deals with indirect discrimination,where compliance with certain requirements or conditions would itself effectdiscrimination, it deems the act requiring compliance as involving adistinction based on, or an act done by reason of, the otherperson's race,colour, descent or national or ethnic origin.

12The first enquiry of s 18C is whether the act in question, here thepublication of the photograph of the applicant, can in thecircumstances beregarded as reasonably likely to offend or humiliate a person in theapplicant's position. The test is, as DrummondJ observed inHagan vTrustees of the Toowoomba Sports Ground Trust[2000] FCA 1615 [15],necessarily objective. For this enquiry what brought about the actionconstituting the"behaviour" in question and what the applicant felt arenot relevant.

13It is necessary first to consider the perspective under consideration, whichis to say the hypothetical person in the applicant'sposition or the group ofwhich the applicant is one. A reference to the person's race may be too wide adescription in some cases. That would be so here, where Aboriginal peoples'views, about being portrayed as having a more traditional lifestyle, willdifferdepending upon where and in what circumstances they live. In thatrespect I consider the perspective suggested by the applicant'scounsel insubmissions to be apposite, namely that of an Aboriginal mother, or one caresfor children, and who resides in the townshipof Coen. Such a person would, inmy view, feel offended, insulted or humiliated if they were portrayed as livingin rough bush conditionsin the context of a report which is about a child'swelfare. In that context it is implied that that person would be taking thechild into less desirable conditions. The offence comes not just from the factthat it is wrong, but from the comparison which isinvited by the photographs.That is, I consider, how a reasonable reader would have viewed the photographs.So far as concerns therespondent's submission that a reader would simply lookat the people involved in the drama, it is not just the faces of the partieswhich are shown in the photographs. A background is also provided to them andin each case it conveys what might be taken as theparties' lifestyle. Acomparison is in my view invited.

14The respondent submitted that only very serious and offensive behaviour wasintended as the subject of s 18C. This can be seenfrom the heading tothe Part, which requires the behaviour to be based on racial hatred, the SecondReading Speech and the ExplanatoryMemorandum to theRacial Hatred Bill1994. The Memorandum said that the Bill addressed concerns highlighted bythe findings of the"Inquiry into Racist Violence and the Royal Commissioninto Aboriginal Deaths in Custody" and in doing so, the Bill intended toclose a gap in the legal protection available to the victims of extreme racistbehaviour.

15It needs to be borne in mind, when reviewing speeches or writings about theBill, that in addition to providing for the civilprohibition which becames 18C, it was then intended to create three criminal offences relating toinciting racial hatred or threateningracial violence. Those proposed offencesdid not however survive the federal legislative process and do not appear assections intheCrimes Act 1914 (Cth) as was intended. The Memorandumwent on:

"The Bill is intended to strengthen and support the significantdegree of social cohesion demonstrated by the Australian communityat large.The Bill is based on the principle that no person in Australia need live infear because of his or her race, colour, ornational or ethnic origin."...

"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 s 18C provision was described as"...the proposed prohibition onoffensive behaviour based on racial hatred ...".

16Pursuant to the section the nature or quality of the act in question istested by the effect which it is reasonably likely tohave on another person ofthe racial or other group referred to in par (b) of the subsection. To"offend, insult, humiliate or intimidate" are profound and seriouseffects, not to be likened to mere slights. Having said that, the court wouldof course be conscious ofthe need to consider the reaction from that person orgroup's perspective. If par (a) of the subsection is established, as itishere, it is necessary then to consider the additional requirement relatingto the reason for the act.

17The title says that the prohibition is against behaviour which is based onracial hatred, but the heading to the section simplyrefers to the reason forit being"race, colour or national or ethnic origin." This isreiterated in s 18B, which deals with acts being done for more than onereason. So long as one of those reasons is oneof the four listed in thesubsection, the act in question is taken to be for that reason.

18Headings are to be taken as part of the statute (s 13(1)ActsInterpretation Act 1901 (Cth)). Drummond J inHagan [34]considered that the heading toPart IIA should be taken into account as part ofthe statutory context, referring toCIC Insurance Ltd v Bankstown FootballClub Ltd (1997) 187 CLR 384, 408, where it was said that the modernapproach to statutory interpretation was to consider context at the outsetandthis included the mischief which, it could be discerned, the statute intendedto remedy. Whilst one may accept that hatred ofother races is an evil spokenof in the statute, I do not consider that the heading creates a separate test -one which requiresthe behaviour to be shown as having its basis in actualhatred of race.Sections 18B and 18C make it plain that the prohibition willbe breached if the basis for the act was the race, colour, national or ethnicoriginof the other person or group. Whilst the reason for the behaviour inquestion may be a matter for enquiry, and this is a topic Iwill shortly turnto, the intensity of feeling of the person whose act it is, is not necessary tobe considered, although in somecases it might shed light on what is otherwiseinexplicable behaviour.

19There have been differences of view expressed about the meaning of phrasessuch as "on the ground of" and"by reason of" in the context ofdiscrimination legislation, and as to whether they require a causal connexionbetween the act complained of andthe characteristic or attribute of the personidentified in the legislation, which is to say the reason for the conduct. Insomejudgments it has been held that it does not matter if intention or motiveare absent. This was the view expressed by Deane and GaudronJ inAustralian Iron & Steel Pty Ltd v Banovic[1989] HCA 56;(1989) 168 CLR 165, 176.Their Honours were dealing with provisions of theAnti-Discrimination Act1977 (NSW)(s 24(1) ands 24(3)) which are similar tos 9 ands 9(1A) RDA.Section 24(1) provided that a person discriminated againstanother if,"on the ground of his sex", or"a characteristic thatappertains generally to"or"is generally imputed to persons of his sex,he treats him less favourably than in the same circumstance, or circumstanceswhich arenot materially different, he treats or would treat a person of theopposite sex".Section 24(3) provided for indirect discrimination. And inWaters v Public Transport Corporation[1991] HCA 49;(1991) 173 CLR 349, 359, Mason CJand Gaudron J considered that s 17(1) of theEqual Opportunity Act 1984(Vict), which refers to discrimination "on the ground of thestatus or by reason of the private life of the other person", required onlythat the material difference in treatment be based on the status or privatelife of that person, notwithstandingan absence of an intention or motive onthe part of the alleged discriminator that is related to the status or privatelife of theperson less favourably treated. Such views are in line withR vBirmingham City Council, ex parte Equal Opportunities Commission[1989] AC1155 (HL) referred to inWaters (and see alsoJames v EastleighBorough Council[1990] UKHL 6;[1990] 2 AC 751 (HL)).

20Their Honours' reasoning was also that the first of the discriminationprovisions, similar in effect to s 9 RDA set out above,extend to acts ofindirect discrimination. In cases of indirect discrimination motive orintention play no part. The judgmentsof Dawson and Brennan JJ inBanovic (184, 171) and Dawson, Toohey and McHugh JJ inWaters(392-3, 401-2) however hold that provisions like ss 9 and 9(1A) RDA aremutually exclusive of each other. Such a conclusion is notdirectly relevantto any issue here concerning s 18C RDA, but it may well explain theconstruction placed on phrases such as"on the ground of" and"byreason of" by Mason CJ, Deane & Gaudron JJ. McHugh J inWaters(400-1) considered that the examples given by Deane and Gaudron JJ inBanovic, where intention or motive could not be said to be a necessarycondition of liability, were cases falling within the concept of indirectdiscrimination dealt with under the separate subsection. His Honour expressedthe following, contrary view of the meaning to begiven to the words of therequirement:

"The words "on the ground of the status or by reason of theprivate life of the other person" in s. 17(1) require that the act ofthealleged discriminator beactuated by the status or private life of theperson alleged to be discriminated against.

...

The words "on the ground of" and "by reason of" require a causal connexionbetween the act of the discriminator which treats a personless favourably andthe status or private life of the person the subject of that act ("thevictim"). The status or private lifeof the victim must be at least one of thefactors which moved the discriminator to act as he or she did."

21His Honour went on to say that, whilst those determining whetherdiscrimination has occurred are not bound by"the verbal formula" whichthe alleged discriminator has used, if they would in any event, have acted inthe way they did or if they acted genuinely ona non-discriminatory ground,they cannot be said to have acted "on the ground of the status or by reasonof the private life" of the victim.

22In my view this accords with the reasoning of Dawson J inBanovic,which described the enquiry as one as to the"true basis"or "trueground" of the action in question. His Honour also held that thesubsection was not to be supplied subjectively, which I take to mean notbyreference only to what the person whose conduct in question provides as aground or basis for the action. The enquiry considerswhat was in truth likelyto have given rise to it, when regard is had to all the circumstances, andthis would include the natureof the conduct and the words and expressionsused.

23Such an approach would also seem to me to address the concerns expressed byDeane and Gaudron JJ (Banovic, 176) that discrimination legislationoperates with respect to unconscious acts and that it is not necessary thatthere be a consciousappreciation, on the part of the discriminator, of theiractions. Accepting this, it is not apparent that a search for thetruereason would limit the application of the legislation. A statement bytheir Honours appears to accept that this is the proper enquiry (at176-177):

"And there may be other situations in which habits of thoughtand preconceptions may so affect an individual's perception of personswithparticular characteristics that genuinely assigned reasons for an act ordecision may, in fact, mask the true basis for thatact or decision. Thus, inthe ascertainment of the true basis of an act or decision it may well besignificant that there is somefactor, other than the ground assigned, which iscommon to all who are adversely affected by that act or decision. In certainsituationsthat common factor may well be seen to be the true basis of the actor decision. And that may also be the case where some factoris identified ascommon to a significant proportion of those adversely affected.

24In my respectful view the approach taken by McHugh J gives meaning towords such as"on the ground of" and"because of". The need tohave regard to the plain words of the sections was discussed in some detail byLockhart J inHuman Rights and Equal Opportunity Commission v Mt Isa MinesLtd(1993) 46 FCR 301, 322. Beyond that the matter is one of factualenquiry.

25InAustralian Medical Council v Wilson & Ors(1996) 68 FCR 46, 58(Full Court) Heerey J referred to the judgment of Doyle CJ inAboriginalLegal Rights Movement v State of South Australia[1995] SASC 5224;(1995) 64 SASR 551, 553where his Honour held that the enquiry under s 9 RDA:

"...is into whether the racial distinction is a material factorin the making of the relevant decision or the performing of the relevantact."

26I do not understand this view to be contrary to that of McHugh J. WhilstDoyle CJ had said that it did not mean that the inquiryis one as to motive,his Honour later refers to the question whether race is exposed "as the truebasis of the decision".

27I should add that Lockhart J inHuman Rights and Equal OpportunityCommission v Mt Isa Mines(321-2) equated the words"by reason of"with"because of","due to", "based on","or words of similarimport which bring something about or cause it to occur"; although it seemsto me that"because of" perhaps marks out the causal requirement moreclearly. I am aware that Weinberg J inMacedonian Teachers' Association ofVictoria Inc v Human Rights and Equal Opportunity Commission[1998] FCA 1650;(1998) 91 FCR8, 30 has expressed the view that"based on" in s 9(1) RDAencompasses a broader, and perhaps a non-causative relationship, but it is notnecessary for me to deal with that questionfurther here (and see alsoAustralian Medical Council v Wilson).

28In the present case the question is whether anything suggests race as afactor in the respondent's decision to publish the photograph. The context ofthe article is of course race, but merely to publish a photograph of a personinvolved in the story could not meanthat considerations of race can be takento have actuated the publication. It is something which commonly occurs inmedia reports. Rather the enquiry is whether the publication of a photograph,showing the applicant's apparent living circumstances, was motivatedbyconsiderations of race.

29There is nothing in the article itself which provides an insight on thisquestion. I have said before that a reader might reasonablydraw a comparisonbetween what is depicted in the two photographs. The reader might assume thephotograph to accurately portraythe applicant's living circumstances. Ifthere was anything to suggest that the respondent, in arriving at its decisionto includethe photograph, had acted upon an assumption that this was the case,or if it had chosen the photograph when others depicting thetrue circumstanceswere available, I consider that the requirement of race as a cause may wellhave been satisfied. The evidencedoes not suggest this. It is also possiblethat the respondent's employees just did not turn their mind to what thephotograph conveyed,in addition to the portraits of the parties. That is tosay the respondent may be guilty of thoughtlessness, but that does not qualifyits conduct as unlawful under the section. The second requirement is notestablished and the applicant's complaint is not thereforemade out.

30It is strictly unnecessary to consider the defence raised, but since thematter remained in this Court because such a defencewas thought not previouslyto have been considered I should comment briefly upon its application.

31Section 18D contains exemptions which include the following:

"18D.Section 18C does not render unlawful anything said or donereasonably and in good faith:

...

(c)in making or publishing:

(i)a fair and accurate report of any event or matter of public interest; or

(ii)a fair comment on any event or matter of public interest if the comment isan expression of a genuine belief held by the personmaking thecomment."

32The section, by the Explanatory Memoranda, is said to balance the rightto free speech and the protection of individuals. The sectionhas borrowedwords found in defamation law. I do not think the notion of whether somethingis in the public interest is to be regardedas in any way different and here itis made out. For a comment to be "fair" in defamation law it would needto be based upon true facts and I take that to be the meaning subscribed to inthe section. Whatis saved from a requirement of accuracy is the comment,which is tested according to whether a fair-minded person could hold thatviewand that it is genuinely held. Subpar (c)(i), upon which the respondent wouldrely, incorporates both the concepts of fairnessand accuracy. It is thelatter requirement that the photographs cannot fulfil if they are taken as a"report" on the living conditions pertaining to the applicant.

33For completeness I am obliged to consider the orders I would have made,including, damages I would have awarded, had the applicantmade out her case.

34It does not seem to me, after a lapse of almost four years, that anextensive apology would be particularly worthwhile with respectto the widerreadership. It may however have helped to vindicate the applicant in the eyesof her own community and for that reasonI would have been minded to order ashort apology. The applicant's claim for damages is now limited to those whichmight compensateher for the distress she had felt as a result of this report,since she no longer pursues a claim for economic loss. A difficultyispresented by the other reports which were published before and after this oneand which were likely to have caused the applicantmuch anxiety when she cameto hear about them because of the references to her alleged past conduct. Thewhole debate was upsettingto the applicant. I accept however that this reportwas likely to have been circulated more widely amongst her community. Whilstsome would have known the truth about her living conditions, I take it from theapplicant's evidence that any publicity which portrayedher in a less thanfavourable light was likely to cause discussion amongst others. She said thatshe felt this so strongly at herworkplace that she was obliged to take sometime off and although she returned, she ultimately left her positionpermanently. Theapplicant had held high positions in her community and Iaccept the hurt to her would have been greater through perceived loss oftheregard in which she was formerly held.

35A finding of contravention would have meant that the respondent had actedfor racist reasons. Its failure or inability to acknowledgethis and thewithholding of an apology are matters to be taken into account in assessing theextent of the injury felt by the plaintiffand the compensation to be awardedto redress that. It is not in my view necessary to consider separate andadditional awards ofaggravated damages. I would have awarded $8,000 damages.

36The application will be dismissed.

Associate:

Dated:31 July 2001