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Federal Discrimination Law: Chapter 3 - The Race Discrimination Act

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Chapter
3 The Racial Discrimination Act

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3.1 Introduction
to the RDA

3.1.1 Scope of the RDA

The
RDA was the first Commonwealth unlawful discrimination statute to be enacted and
is different in a number of ways from the SDA, DDA and
ADA.[1] This is because it is based to
a large extent on, and takes important parts of its statutory language from, the International Convention on the Elimination of all Forms of Racial
Discrimination[2] (‘ICERD’). A copy of ICERD is scheduled to the
RDA.[3]

Unlike the SDA, the DDA and the ADA, the RDA does not provide a discrete
definition of discrimination[4] and
then identify the specific areas of public life in which that discrimination is
unlawful.[5] Also unlike the SDA, DDA
and ADA which contain a wide range of permanent
exemptions[6] and a process for
applying for a temporary exemption,[7] there are only a limited number of statutory ‘exceptions’ to the
operation of the RDA[8] (see 3.3 below).

Part II of the RDA sets out the prohibitions of racial discrimination and the
right to equality before the law under s 10. Part IIA of the RDA, which was
introduced in 1995, prohibits offensive behaviour based on racial hatred
(discussed in detail under 3.4 below).

(a) The prohibition on discrimination in s
9

Section 9(1) prohibits what is generally known as
‘direct’ race discrimination:

(1) It is unlawful for a person to do any act involving a distinction,
exclusion, restriction or preference based on race, colour, descent or national
or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of any human right or
fundamental freedom in the political, economic, social, cultural or any other
field of public life.

Section 9 makes unlawful a wide range of acts (‘any act’
involving a relevant distinction etc which has a relevant purpose or effect) in
a wide range of situations (‘the political, economic, social, cultural or
any other field of public life’).

Section 9(1A), which was inserted into the RDA in 1990, prohibits
‘indirect’ race discrimination:

(1A) Where:

  • (a) a person requires another person to comply with a term, condition or
    requirement which is not reasonable having regard to the circumstances of the
    case; and
  • (b) the other person does not or cannot comply with the term, condition or
    requirement; and
  • (c) the requirement to comply has the purpose or effect of nullifying or
    impairing the recognition, enjoyment or exercise, on an equal footing, by
    persons of the same race, colour, descent or national or ethnic origin as the
    other person, of any human right or fundamental freedom in the political,
    economic, social, cultural or any other field of public life;

the
act of requiring such compliance is to be treated, for the purposes of this
Part, as an act involving a distinction based on, or an act done by reason of,
the other person’s race, colour, descent or national or ethnic origin.

In addition to the general prohibition on race discrimination in s 9, ss
11-15 of the RDA also specifically prohibit discrimination in the following
areas of public life:[9]

  • access to places and
    facilities;[10]
  • land, housing and other
    accommodation;[11]
  • provision of goods and
    services;[12]
  • right to join trade unions;[13] and
  • employment.[14]

Discrimination for the purposes of these specific prohibitions will
be unlawful when a person is treated less favourably than another ‘by
reason of the first person’s race, colour or national or ethnic
origin’. These sections do not limit the generality of
s 9[15] and have been described
as ‘amplifying and applying to particular cases the provisions of s
9’.[16]

Complaints alleging race discrimination are sometimes considered under both
s 9(1) and one of the specific
prohibitions.[17]

(b) The right to
equality before the law in s 10

Section 10 of the RDA provides
for a general right to equality before the
law:[18]

10 Rights to equality before the law

(1) If, by reason of, or of a provision of, a law of the Commonwealth or of a
State or Territory, persons of a particular race, colour or national or ethnic
origin do not enjoy a right that is enjoyed by persons of another race, colour
or national or ethnic origin, or enjoy a right to a more limited extent than
persons of another race, colour or national or ethnic origin, then,
notwithstanding anything in that law, persons of the first mentioned race,
colour or national or ethnic origin shall, by force of this section, enjoy that
right to the same extent as persons of that other race, colour or national or
ethnic origin.

(2) A reference in subsection (1) to a right includes a reference to a right
of a kind referred to in article 5 of the Convention.

(3) Where a law contains a provision that:

  • (a) authorizes property owned by an Aboriginal or a Torres Strait Islander
    to be managed by another person without the consent of the Aboriginal or Torres
    Strait Islander; or
  • (b) prevents or restricts an Aboriginal or a Torres Strait Islander from
    terminating the management by another person of property owned by the
    Aboriginal or Torres Strait Islander;

not being a
provision that applies to persons generally without regard to their race, colour
or national or ethnic origin, that provision shall be deemed to be a provision
in relation to which subsection (1) applies and a reference in that subsection
to a right includes a reference to a right of a person to manage property owned
by the person.

There is no equivalent to s 10 in other State or Commonwealth
anti-discrimination legislation. Section 10 does not make unlawful any acts,
omissions or practices. It is ‘concerned with the operation and effect of
laws’[19] rather than with
proscribing the acts or conduct of individuals.

The language of s 10(1) does not require the complainant to show that the
infringement of their rights was ‘based
on’[20] or ‘by reason
of’[21] race, colour, or
national or ethnic origin. The question under s 10 is whether the complainant,
because of the operation and effect of law, does not enjoy a right to same
extent as others not of that race. As the Full Federal Court in Bropho v
Western Australia[22] (‘Bropho’) stated:

In general terms, s 10(1) of the RD Act is engaged where there is unequal
enjoyment of rights between racial or ethnic groups: see Ward v Western
Australia (2002) 213 CLR 1. Section 10(1) does not require the Court to
ascertain whether the cessation of rights is by reason of race, with the clear
words of s 10 demonstrating that the inquiry is whether the cessation of rights
is ‘by reason of’ of [sic] the legislation under challenge. Further,
s 10 operates, not merely on the intention, purpose or form of legislation but
also on the practical operation and effect of legislation (Gerhardy v Brown, at 99; Mabo v Queensland [no 1] (1988) 166 CLR 186 at 230-231; Western Australia v Ward at
103).[23]

Therefore, to make a successful claim under s 10 of the RDA, the complainant
must be able to show:

  • by reason of a law of the Commonwealth or of a State or Territory (or a
    provision of the law);
  • persons of a particular race, colour or national or ethnic origin do not
    enjoy a right that is enjoyed by persons of another race; or
  • persons of a particular race, colour or national or ethnic origin enjoy a
    right to a more limited extent than persons of another
    race.[24]

For example, in Mabo v
Queensland[25] the High
Court considered whether the Queensland Coast Islands Declaratory Act 1985 (‘the Queensland Act’) breached s 10 of the RDA. The Queensland Act declared that the Murray Islands, upon first becoming
part of Queensland in 1879, were vested in the Crown in right of Queensland, to
the exclusion of all other rights and claims.

The majority of the High Court held that the Queensland Act discriminated on
the basis of race in relation to the human rights to own property and not to be
arbitrarily deprived of property, in that the native title interests that the
Act sought to extinguish were only held by the indigenous inhabitants of the
Murray Islands (the Miriam people). The majority found that the Queensland Act
impaired the rights of the Miriam people ‘while leaving unimpaired the
corresponding human rights of those whose rights in and over the Murray Islands
did not take their origin from the laws and customs of the Miriam
people’. [26] Therefore, the
Queensland Act was inconsistent with s 10 of the RDA and, by virtue of s 109 of
the Constitution, invalid.

In Bropho, the Full Court held that, in applying s 10, it is necessary
to recognise that some rights, such as property rights, are not absolute in
their nature. Accordingly, actions that impact upon the ownership of property
may not necessarily invalidly diminish the rights to ownership of property. The
Court held that ‘no invalid diminution of property rights occur where the
State acts in order to achieve a legitimate and non-discriminatory public
goal.’[27] The Court noted,
however, that its reasoning was not ‘intended to imply that basic human
rights protected by the [RDA] can be compromised by laws which have an
ostensible public purpose but which are, in truth,
discriminatory’.[28]

In Bropho, the Reserves (Reserve 43131) Act 2003 (WA)
(‘Reserves Act’) and actions taken under it were said to have
limited the enjoyment of the property rights of the Aboriginal residents of the
Swan Valley Nyungah Community (Reserve 43131) by, in effect, closing that
community. The Court held that any interference with the property rights of
residents was effected in accordance with a legitimate public purpose, namely to
protect the safety and welfare of residents of the
community.[29] It therefore did not
invalidly diminish the property rights of the residents.

(c) The interface between ss 9 and 10

Section 9(1) applies to allegations that an act or conduct of a
person[30] is
discriminatory.[31]

Section 10 applies to a law that is alleged to be discriminatory in its terms
or its practical effect.[32] To make
a successful claim under s 10 of the RDA, the complainant must be able to show
that the discrimination complained of arises by reason of a statutory
provision.[33]

The making of laws by the Commonwealth and State and Territory legislatures
or delegated lawmakers cannot be challenged as an act under s
9.[34] Instead, the resulting law or
delegated law can only be challenged under s 10.

Determining whether s 9 or s 10 applies in any particular case is important
because different forms of action are required to be taken by a complainant
depending on whether it is s 9 or s 10 that is said to be breached in a
particular case.

Where s 9 is alleged to have been breached, a complaint of unlawful racial
discrimination may be made to
HREOC.[35] If the complaint cannot
be resolved by conciliation, the President must terminate the
complaint[36] and the person making
the complaint can seek a legally enforceable decision from the Federal Court of
Australia or the Federal Magistrates Court about whether discrimination has
occurred.[37]

In Bropho v Western
Australia,[38] Nicholson J held
that, while ordinarily an applicant claiming racial discrimination under s 9
must follow the procedures for making complaints to HREOC set out in the HREOC
Act, issues as to constitutional validity can be litigated independently of the
HREOC Act.[39]

In contrast to s 9 of the RDA, a person cannot rely upon s 10 to make a
complaint of unlawful discrimination to HREOC. HREOC has no jurisdiction to
inquire into an allegation that a State or Territory law is invalid because it
is inconsistent with s 10(1). Rather, a person must lodge proceedings in either
the Supreme Court of the State or Territory in which the legislation was
made[40] or in the Federal
Court.[41]

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3.1.2 Other unlawful acts and
offences

Under s 17 of the RDA it is unlawful to incite or to
assist the doing of an act of unlawful racial discrimination. To establish a
successful claim the respondent will need to show the respondent was
‘actively inciting or encouraging’ behaviour that is made unlawful
by Part II of the RDA or that the respondent assisted or promoted the doing of
such acts.[42]

Section 16 of the RDA also prohibits the publication or display of an
advertisement that indicates an intention to do an act of unlawful racial
discrimination.

The RDA does not make it a criminal offence to do an act that is made
unlawful by the provisions of Part II or Part IIA of the
Act.[43] However, Part IV sets out a
number of specific offences, including:

  • hindering, obstructing, molesting or interfering with a person exercising
    functions under the RDA;[44] and
  • committing an act of victimisation, namely:
    • refusing to employ another person;
    • dismissing or threatening to dismiss an employee;
    • prejudicing or threatening to prejudice an employee; or
    • intimidating or coercing, or imposing a penalty upon another
      person;

by reason that the other person:

  • has made, or proposes to make a complaint under the HREOC Act;
  • has furnished, or proposes to furnish any information or documents
    to a person exercising powers under the HREOC Act; or
  • has attended, or proposes to attend, a conference held under the RDA
    or HREOC Act.[45]

Conduct constituting such offences is also included in the
definition of ‘unlawful discrimination’ in s 3 of the HREOC Act (see
1.2.1 above), allowing a person to make a complaint to HREOC in relation to
it.

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3.1.3 Interaction
between RDA, State, Territory and other Commonwealth
Laws

Sections 9 and 10 of the RDA interact with State, Territory
and other Commonwealth laws in a number of ways.

(a) Impact of s 10 on enjoyment of rights

Section 10(1) operates to extend the enjoyment of rights under
State, Territory and other federal laws where those laws otherwise fail to make
a right universal. In Gerhardy v
Brown,[46] Mason J stated:

If racial discrimination arises under or by virtue of State law because the
relevant State law merely omits to make enjoyment of the right universal, ie by
failing to confer it on persons of a particular race, then s 10 operates to
confer that right on persons of that particular race. In this situation the
section proceeds on the footing that the right which it confers is complementary
to the right created by the State law. Because it exhibits no intention to
occupy the field occupied by the positive provisions of State law to the
exclusion of that law the provisions of the State law remain
unaffected.[47]

(b) Impact of s 10 on discriminatory State
laws

Section 10(1) operates to make invalid, by virtue of s 109
of the Constitution,[48] State laws that would otherwise operate to discriminate against people of a
particular race by denying them rights or
freedoms[49] regardless of the date
the State law was enacted.[50] As
Mason J in Gerhardy v Brown stated:

When racial discrimination proceeds from a prohibition in a State law
directed to persons of a particular race, forbidding them from enjoying a human
right or fundamental freedom enjoyed by persons of another race, by virtue of
that State law, s 10 confers a right on the persons prohibited by State law to
enjoy the human right or fundamental freedom enjoyed by persons of that other
race. This necessarily results in an inconsistency between s 10 and the
prohibition contained in the State
law.[51]

(c) Impact of s 10 on discriminatory
Territory laws

Section 109 of the Constitution does not
apply to a conflict between a Commonwealth law and a Territory law. A Territory
legislature, established under s 122 of the Constitution, is a
subordinate legislature to the Commonwealth, and is not competent to pass laws
that are repugnant to a Commonwealth law. Therefore, depending on the
legislative scheme in place in a particular Territory, a law of that Territory
may be ‘treated as ineffective’ to the extent that it is
inconsistent with s 10 of the
RDA.[52]

(d) Impact of s
10 on discriminatory Commonwealth laws

Section 10 may operate
to repeal racially discriminatory Commonwealth legislation enacted prior to the
enactment of the RDA on 31 October
1975.[53] Whether repeal of the
inconsistent law has occurred will be determined on a case by case basis.

Section 10 cannot, however, prevent the enactment of a discriminatory
Commonwealth law after 31 October 1975 which expressly or impliedly repeals the
RDA.[54]

Section 10 has been used as a basis for challenging Commonwealth regulations
alleged to deny or impair the enjoyment of rights by members of a particular
national origin.[55]

In Clark v Vanstone,[56] Gray J held that it was necessary, by virtue of s 10 of the RDA (amongst other
factors), to read down s 4A(1) of the Aboriginal and Torres Strait Islander
Commission Act 1989 (Cth) (‘the ATSIC Act’) and cl 5(1)(k) of a
2002 Determination made under it relating to ‘misbehaviour’. This
was on the basis that the effect of these provisions was to impose a higher
standard on office holders under the ATSIC Act (who were more likely to be
Indigenous people) than on those elected or appointed to similar offices and was
therefore discriminatory.

On appeal in Vanstone v
Clark,[57] this aspect of the
decision of Gray J was overturned. Weinberg J, with whom Black CJ agreed, noted
that the 2002 Determination applied to positions held by both Indigenous and
non-Indigenous persons and that ‘it is no answer to the structure and text
of the ATSIC Act to engage in speculation that holders of such officers were
likely to be indigenous’.[58] His Honour stated:

Had the 2002 Determination provided a different test for suspension or
termination of indigenous persons from that applicable to non-indigenous
persons, it would obviously trigger the operation of s 10, and result in an
adjustment of rights, as a matter of construction, as contemplated by the
section... However, that is not the case here. There is no inconsistency of
treatment based upon race within either the Act, or the 2002
Determination.[59]

(e) Impact of s 9 on State laws

Section 9 of the RDA may also render invalid inconsistent State
laws, by virtue of s 109 of the Constitution. As Mason J in Gerhardy v Brown observed:

The operation of s 9 is confined to making unlawful the acts which it
describes. It is s 10 that is directed to the operation of laws, whether
Commonwealth, State or Territory laws, which discriminate by reference to race,
colour or national or ethnic origin... This is not to say that s 9 of the [RDA]
cannot operate as a source of invalidity of inconsistent State laws, by means of
s 109 of the Constitution. Inconsistency may arise because a State Law is a law
dealing with racial discrimination, the Commonwealth law being intended to
occupy that field to the exclusion of any other law: Viskauskas v Niland (1983)153 CLR 280. Or it may arise because a State law makes lawful the
doing of an act which s 9 forbids: see Clyde Engineering Co. Ltd. v Cowburn (1926) 37 CLR 466 at
490.[60]

(f) The RDA does not invalidate State laws
that promote the objects of ICERD

In Viskauskas v
Niland[61] the High Court held
that the RDA was intended to ‘cover the field’ in relation to racial
discrimination in the provision of goods and services. Therefore, Pt II of the Anti-Discrimination Act 1977 (NSW), which dealt with racial
discrimination, was inconsistent and constitutionally invalid.

Following the decision in Viskauskas v Niland, the Commonwealth
introduced s 6A into the RDA which, in ss (1), provides that the RDA ‘is
not intended, and shall be deemed never to have been intended to exclude or
limit the operation of a law of a State or Territory’ which promotes the
objects of the ICERD and is capable of operating concurrently with the
RDA.[62]

However, in University of Wollongong v
Metwally[63] the majority of the
High Court held that this amendment could only have effect from the date it was
enacted as Parliament was unable to deem that an inconsistency that had arisen
by virtue of s 109 of the Constitution had never
existed.[64]

A person is required to choose between making a complaint of racial
discrimination or racial hatred under the HREOC Act and taking action under the
equivalent State or Territory legislation. If action has been taken under the
State or Territory legislation, the person is statute barred from making a
complaint under the HREOC Act.[65]

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3.1.4 Constitutionality

(a) The RDA is supported by the external
affairs power

The constitutional validity of the RDA was
considered in Koowarta v Bjelke
Petersen.[66] In this case, the
Queensland Government refused to approve a transfer of Crown lease to the
Aboriginal Land Fund Commission for the benefit of John Koowarta and other
members of the Winychanam Group. When Mr Koowarta brought proceedings alleging
that the Queensland Government’s refusal to transfer the lease breached s
9 and s 12 of the RDA, the Queensland Government challenged the constitutional
validity of the RDA.

The High Court upheld the validity of s 9 and s 12 of the RDA as an exercise
of the Commonwealth’s power to make laws with respect to external affairs
under s 51 (xxix) of the Constitution. The High Court held that the RDA
was enacted to give effect to Australia’s international obligations under
the ICERD.[67] The majority rejected
the submission that the RDA was supported by s 51 (xxvi) of the Constitution which gives the Commonwealth the power to make laws with respect to the
people of any race for whom it is deemed necessary to make special laws, on the
basis that ss 9 and 12 applied equally to all persons and were not a special law
for the people of any one race.[68]

(b) Part IIA of the RDA does not infringe the
implied right of freedom of political communication

The case of Hobart Hebrew Congregation v
Scully[69] considered whether
Part IIA of the RDA (prohibiting offensive behaviour based on racial hatred)
infringed upon the implied constitutional right of freedom of political
communication. Commissioner Cavanough referred to Lange v Australian
Broadcasting Corporation[70] and Levy v Victoria[71] and found
that while the restrictions imposed by s 18C(1) of the RDA might, in certain
circumstances, burden freedom of communication about government and political
matters, the exemptions available in s 18D meant that Part IIA of the RDA was
‘reasonably appropriate and adapted to serve a legitimate end the
fulfilment of which is compatible with the maintenance of government prescribed
under the Constitution’.[72] The legitimate end included the fulfilment of Australia’s international
obligations under ICERD, in particular article 4.

In Toben v Jones,[73] the
appellant argued that to interpret s 18C of the RDA as extending beyond the
expression of racial hatred would lead to that section being outside the scope
of the external affairs power in s 51(xxix) of the Constitution, as
article 4 of ICERD specifically refers to discrimination because of
‘racial hatred’.

The Full Federal Court held that s 18C of the RDA was constitutionally valid
(and did not need to be read down), as it was reasonably capable of being
considered appropriate and adapted to implement the obligations under ICERD. The
failure to fully implement ICERD (which also requires making racial hatred a
criminal offence) did not render Part IIA substantially inconsistent with that
convention. It was noted that Part IIA of the RDA was directed not only at
article 4 of ICERD but also at the other provisions of ICERD and the International Covenant on Civil and Political Rights, which dealt with
the elimination of racial discrimination in all its forms. [74]

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3.2 Racial Discrimination Defined

3.2.1 Grounds of
discrimination

The RDA makes unlawful discrimination
‘based on race, colour, descent or national or ethnic origin’. [75] While these grounds of
discrimination are not defined in the RDA, their meaning has been considered in
a number of cases.

(a) Race

Courts have
generally taken the view that ‘race’ as described in
anti-discrimination legislation is a broad term and should be understood in the
popular sense rather than as a term of
art.[76] In King-Ansell v
Police[77] (‘King-Ansell’) the New Zealand Court of Appeal rejected a
biological test of race which distinguished people in terms of genetic
inheritance and stated:

The ultimate genetic ancestry of any New Zealander is not susceptible to
legal proof. Race is clearly used in its popular meaning. So are the other
words. The real test is whether the individuals or the group regard themselves
and are regarded by others in the community as having a particular historical
identity in terms of their colour or their racial, national or ethnic origins.
That must be based on a belief shared by members of the
group.[78]

The meaning of ‘race’ was considered in the context of disputes
between Aboriginal people in Williams v Tandanya Cultural
Centre.[79] Driver FM held:

The word ‘race’ is a broad term. Also, in addition to race, the
RDA proscribes discrimination based upon national or ethnic origins or descent.

It will be apparent to anyone with even a rudimentary understanding of
Aboriginal culture and history that the Australian Aborigines are not a single
people but a great number of peoples who are collectively referred to as
Aborigines. This is clear from language and other cultural distinctions between
Aboriginal peoples. It is, in my view, clear that the RDA provides relief, not
simply against discrimination against ‘Aboriginals’ but also
discrimination against particular Aboriginal peoples. There is no dispute that
the applicant is an Aboriginal person. There was some dispute within the Kaurna
community as to the applicant’s links to that community. The alleged acts
of discrimination by the first, second, fifth (and, possibly third) respondents
are all related in one way or another to that dispute and the alleged exclusion
and lack of consultation are all linked by the applicant to his particular
cultural associations within the Aboriginal community. In principle, I am
satisfied that these acts, if found to be discriminatory, could constitute
discrimination against either s 9 or s 13 of the
RDA.[80]

In Carr v Boree Aboriginal
Corporation,[81] Raphael FM
found that the first respondent had unlawfully discriminated against the
applicant in her employment and had dismissed her for reasons ‘which were
to do with her race or non
Aboriginality’.[82] His Honour
concluded that ‘the provisions of the RDA apply to all
Australians’.[83]

(b) Ethnic
origin

Religious discrimination is not, per se, made unlawful by
the RDA.[84] However the term
‘ethnic origin’ has been interpreted broadly in a number of
jurisdictions to include Jewish and Sikh people. The Court in King-Ansell held that Jewish people in New Zealand formed a group with common ethnic
origins within the meaning of the Race Relations Act 1971 (NZ).
Richardson J stated that:

a group is identifiable in terms of ethnic origins if it is a segment of the
population distinguished from others by a sufficient combination of shared
customs, beliefs, traditions and characteristics derived from a common or
presumed common past, even if not drawn from what in biological terms is a
common racial stock. It is that combination which gives them an historically
determined social identity in their own eyes and in the eyes of those outside
the group. They have a distinct social identity based not simply on group
cohesion and solidarity but also on their belief as to their historical
antecedents. [85]

Similarly, the House of Lords held in Mandla v Dowell
Lee[86] that for a group (in
that instance, Sikh people) to constitute an ethnic group for the purposes of
the legislation in question, it had to regard itself, and be regarded by others,
as a distinct community by virtue of certain characteristics.

Their Lordships indicated that the following characteristics are essential:

  • a shared history, of which the group was conscious as distinguishing it from
    other groups, and the memory of which it keeps alive; and
  • a cultural tradition of its own, including family and social customs and
    manners, often but not necessarily associated with religious observance.

Their Lordships further held that the following characteristics
will be relevant, but not essential, to a finding that a group constitutes an
‘ethnic group’:

  • a common geographical origin or descent from a small number of common
    ancestors;
  • a common language, not necessarily peculiar to the group;
  • a common literature peculiar to the group;
  • a common religion different from that of neighbouring groups or the general
    community surrounding it; and
  • being a minority or an oppressed or a dominant group within a

    larger
    community.[87]

In Miller v Wertheim,[88] the
Full Federal Court dismissed a claim of discrimination under the RDA in relation
to a speech made by the respondent (himself Jewish) which had criticised members
of the Orthodox Jewish community for allegedly divisive activities. The Full
Court stated that it could be ‘readily accepted that Jewish people in
Australia can comprise a group of people with an “ethnic
origin”’[89] for the
purposes of the RDA, and cited with approval King-Ansell. However, in the
present case, the members of the group

were criticised in the speech because of their allegedly divisive and
destructive activities, not because the group or its members were of the Jewish
race, of Jewish ethnicity or because they were persons who adhered to the
practices and beliefs of orthodox
Judaism.[90]

The Court did not discuss further whether or not persons ‘adhering to
the practices and beliefs of orthodox Judaism’ were a recognisable group
for the purposes of the RDA.

There has been no jurisprudence concerning whether or not Muslim people
constitute a group with a common ‘ethnic origin’ under the RDA. It
is noted, however, that the Explanatory Memorandum to the Racial Hatred Bill
1994 (Cth) (which became the Racial Hatred Act 1995 (Cth) and
introduced Part IIA of the RDA which prohibits offensive behaviour based on
racial hatred) suggests that Muslims are included in the expressions
‘race’ and/or ‘ethnic origin’. It states:

The term ‘ethnic origin’ has been broadly interpreted in
comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p.531 and Mandla v Dowell Lee [1983] 2
AC 548 (HL) per Lord Fraser at p.562). It is intended that Australian courts
would follow the prevailing definition of ‘ethnic origin’ as set out
in King-Ansell. The definition of an ethnic group formulated by the Court
in King-Ansell involves consideration of one or more of characteristics
such as a shared history, separate cultural tradition, common geographical
origin or descent from common ancestors, a common language (not necessarily
peculiar to the group), a common literature peculiar to the group, or a religion
different from that of neighbouring groups or the general community surrounding
the group. This would provide the broadest basis for protection of peoples such
as Sikhs, Jews and Muslims.

The term ‘race’ would include ideas of ethnicity so ensuring that
many people of, for example, Jewish origin would be covered. While that term
connotes the idea of a common descent, it is not necessarily limited to one
nationality and would therefore extend also to other groups of people such as
Muslims.[91]

Cases that have considered this issue in other jurisdictions have found that
Muslims do not constitute a group with a common ethnic origin because while
Muslims professed a common belief system, the Muslim faith was widespread
covering many nations, colours and
languages.[92]

(c) National
origin

The term ‘national origin’ has been
interpreted by the courts as being distinct from nationality or citizenship.
‘National origin’ has been characterised as a status or attribute
that is fixed at the time of birth whereas nationality and citizenship have been
described as a ‘transient status’, capable of change through a
person's lifetime. Acts of discrimination based on nationality or citizenship
are not prohibited by the RDA.

In Australian Medical Council v
Wilson[93] (‘Siddiqui’) Sackville J held ‘national origin’
‘does not simply mean
citizenship’.[94] His Honour
cited with approval Lord Cross in Ealing London Borough Council v Race
Relations Board,[95] a case
which had considered the materially similar Race Relations Act 1968 (UK):

There is no definition of ‘national origins’ in the Act and one
must interpret the phrase as best one can. To me it suggests a connection
subsisting at the time of birth between an individual and one or more groups of
people who can be described as ‘a nation’ – whether or not
they also constitute a sovereign state.

The connection will normally arise because the parents or one of the parents
of the individual in question are or is identified by descent with the nation in
question, but it may also sometimes arise because the parents have made their
home among the people in question.

...

Of course, in most cases a man has only a single ‘national
origin’ which coincides with his nationality at birth in the legal sense
and again in most cases his nationality remains unchanged throughout his life.
But ‘national origins’ and ‘nationality’ in the legal
sense are two quite different conceptions and they may well not coincide or
continue to coincide.[96]

Sackville J stated that this view was powerfully supported by article 1(2) of
ICERD, which specifically provides that it is not to apply to distinctions,
exclusions, restrictions or preferences made by a State Party between citizens
and non-citizens.[97]

The Full Federal Court in Macabenta v Minister for Immigration &
Multicultural Affairs[98] (‘Macabenta’) followed Siddiqui and rejected the
submission that ‘national origin’ could be equated with
‘nationality’ for the purposes of ss 9 and 10 of the
RDA.[99] The Full Court held that
the phrase ‘race, colour or national or ethnic origin’ in s 10 of
the RDA should have the same meaning in the RDA as it has in ICERD, under which
the ‘core concern is racial discrimination’. The words
‘colour, or national or ethnic origin’ were intended to give
‘added content and meaning to the word “race”’ and
‘capture the somewhat elusive concept of
race’.[100] The Court
continued:

In our opinion, the description ‘ethnic origin’ lends itself
readily to factual inquiries of the type described by Lord Fraser in Mandla v
Lee [at 562]. For example, is there a long shared history?, is there either
a common geographical origin or descent?, is there a common language?, is there
a common literature?, is there a common religion or a depressed minority? One
can easily appreciate that the question of ethnic origin is a matter to be
resolved by those types of factual assessments. Ethnic origins may once have
been identifiable by reference to national borders, but that time ended hundreds
or perhaps thousands of years ago. To some extent the same can be said of
national origins as human mobility gained pace. It may well also be appropriate,
given the purpose of the Convention, to embark on a factual enquiry when
assessing whether the indicia of a law include national origin as a discrimen.
Ethnic origins may have become blurred over time while national origins may
still be relatively clear. That further reference point of national origin may
be needed in order to identify a racially-discriminatory law. National origin
may in some cases be resolved by a person’s place of birth. In other cases
it may be necessary to have regard to the national origin of a parent or each
parent or other ancestors either in conjunction with the person’s place of
birth or disregarding that factor. If by reference to matters of national origin
one can expose a racially-discriminatory law, then the Convention will have
served its purpose. However, no Convention purpose is in any manner frustrated
by drawing a distinction between national origin and nationality, the latter
being a purely legal status (and a transient one at
that).[101]

In Commonwealth v
McEvoy,[102] von Doussa J
applied Macabenta in finding that the meaning of ‘national
origin’ should be confined to characteristics determined at the time of
birth – ‘either by the place of birth or by the national origin of a
parent or parents, or a combination of some of those
factors’.[103] In that case,
Mr Stamatov, who was of Bulgarian nationality and had lived and worked in
Bulgaria, was required to satisfy security checks for a position with the
Department of Defence. Bulgaria was a country where security checks could not be
meaningfully conducted. This meant that Mr Stamatov was found to be
‘uncheckable’ and therefore refused employment. His Honour held:

The evidence ... was clear that the elements of checkability which caused Mr
Stamatov’s background to be uncheckable concerned checks with security
authorities in the place where the applicant resided. The checks were concerned
with the activities of the applicant and were unrelated to the national origins
within the meaning of that expression as construed in Macabenta. The fact
that Mr Stamatov had been born in Bulgaria of Bulgarian parents was an
irrelevant coincidence. A person of any other national origin that had lived his
or her adult life in Bulgaria, and had followed the educational and employment
pursuits of Mr Stamatov would also have a background that was
uncheckable.[104]

The same approach was taken by Merkel J in De Silva v Ruddock (in his
capacity as Minister for Immigration & Multicultural
Affairs):[105]

Although there are obvious difficulties in any precise definition of
‘national origin’ as that term is used in the [RDA], in my view it
does not mean current nationality or nationality at a particular date which has
no connection with the national origin of the persons
concerned.[106] (emphasis in
original)

Merkel J’s decision was upheld on
appeal[107] and was followed by
Raphael FM in AB v New South Wales Minister for Education &
Training.[108] In that case,
an interim injunction was sought against a decision to deny enrolment in a New
South Wales Government school to a child who was not a permanent resident of
Australia. One ground upon which Raphael FM rejected the application was that
the argument of discrimination was unlikely to succeed on the basis of the
authorities that established the distinction between ‘national
origin’ and
‘nationality’.[109]

In AB v New South
Wales[110] Driver FM dealt
with the substantive issues that had first been litigated before Raphael FM.
Driver FM held that the condition or requirement imposed on the applicant that
he be an Australian citizen or a permanent resident in order to pursue study was
not reasonable in the circumstances. However, because the condition or
requirement was one pertaining to the ‘nationality’ or
‘citizenship’ not ‘national origin’ it was not
discriminatory. In reaching this conclusion, Driver FM noted that
‘national origin’ had the meaning given to it by the Full Federal
Court in Macabenta (see further below 3.2.3).[111]

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3.2.2 Direct
discrimination under the RDA

(a) Section 9(1)

Section 9(1)
prohibits what is generally referred to as ‘direct’ race
discrimination:

(1) It is unlawful for a person to do any act involving a distinction,
exclusion, restriction or preference based on race, colour, descent or national
or ethnic origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of any human right or
fundamental freedom in the political, economic, social, cultural or any other
field of public life.

This broad prohibition is based on the definition of ‘racial
discrimination’ contained in article 1(1) of
ICERD.[112]

To establish a breach of s 9(1), a complainant must establish the following
elements:

  • a person did an act; [113]
  • the act involved a distinction, exclusion, restriction or
    preference;[114]
  • the act was based on race, colour, descent or national or ethnic origin (see
    3.2.2(a)(iii) below); and
  • the act had the purpose or effect of nullifying or impairing the
    recognition, enjoyment or exercise, on an equal footing, of any human right or
    fundamental freedom in the political, economic, social, cultural or any other
    field of public life (see 3.2.4 below).

(i) Proving the elements of s
9(1)

The decision of the Full Federal Court in Baird v
Queensland,[115] emphasises a
number of aspects to the correct approach to proving the elements of s 9(1) of
the RDA.[116] This case concerned
the underpayment of wages to Aboriginal people living in the Hope Vale and Wujal
Wujal communities in Queensland. Those communities were managed, in the relevant
period, by the Lutheran Church (‘the Church’) which was funded by
the Queensland government (‘the Government’) for this purpose.

It was alleged that the payment of under-award wages was racially
discriminatory, contrary to the RDA. The claim covered the period from 1975
until 1986 (after which time Aboriginal people living on Government and
church-run communities were paid award wages). The applicants argued that the
Government was responsible for the discrimination either as the employer through
the agency of the Church, contrary to s 15 of the RDA and/or through the act of
paying grants to the Church which were calculated to include a component for
wages to be paid at under-award rates, contrary to s 9(1) of the RDA.
Significantly, the Church was not a respondent to the case.

At first instance,[117] Dowsett
J found that the claim under s 15 of the RDA failed because the Church, not the
Government, employed the applicants and it did so in its own right. His Honour
also rejected the claim under s 9(1) because there was no basis for asserting
that the calculation of the grants involved a discriminatory element, nor was
there a basis for finding that the payment of grants had the ‘purpose or
effect of depriving the applicants of their proper pay
rates’.[118]

On appeal, the decision of Dowsett J was
overturned.[119] Allsop J (with
whom Spender and Edmonds JJ agreed) found that Dowsett J had erred in requiring
the appellants to firstly, demonstrate an obligation for the Government to make
payments to the Church and secondly, provide a ‘real life
comparator’ or comparison against which to assess the
‘discriminatory element’.

The Full Court held that neither aspect is a necessary element of s 9(1).
Allsop J stated that the purpose of ICERD and the RDA is the ‘elimination
of racial discrimination in all its forms and manifestations – not
merely as manifested by people who are obliged to act in a particular
way’, and that to achieve this broad purpose ‘requires broad and
elastic terminology’.[120] In particular, Allsop J noted that

it is important to treat the terms of s 9(1) as comprising a composite group
of concepts directed to the nature of the act in question, what the act
involved, whether the act involved a distinction etc based on race and whether
it had the relevant purpose or
effect...[121]

Allsop J also noted that s 9(1) does not require a direct comparison to be
available to demonstrate discrimination, observing that ‘[t]hose suffering
the disadvantage of discrimination may find themselves in circumstances quite
unlike others more fortunate than
they’.[122]

The Full Court found that, on the facts as determined by Dowsett J, a breach
of s 9(1) was made out. The acts of calculating and paying the grants by the
Government clearly involved a distinction between award wages and below-award
wages. This distinction was based on race because it was made by
reference to the Aboriginality of the persons on reserves who were to be paid
out of those grants. The Full Court also concluded that the act of the
Government involving the distinction based on race could be seen to have
‘a causal effect on the impairment of the right of the appellants as
recognised by Article 5 of the Convention to equal pay for equal
work’.[123]

(ii) Racist remark as an act of
discrimination

In Qantas Airways Ltd v
Gama,[124] the Full
Federal Court accepted that a racist remark may, depending on the circumstances,
be sufficient to constitute an act of discrimination within the scope of s 9 of
the RDA.

At first instance,[125] Raphael
FM accepted that the making of remarks to the applicant in the workplace that he
looked like a ‘Bombay taxi driver’ and walked up stairs ‘like
a monkey’ denigrated him on the basis of his race and therefore amounted
to acts of race discrimination under s 9.

On appeal, Qantas argued that the racist remarks were not sufficient of
themselves to constitute an act of discrimination. Qantas submitted that as
Raphael FM had rejected the applicant’s other claims of race
discrimination in employment relating to such matters as the denial of
promotions and training opportunities, and there was no evidence of systemic
racial bullying or harassment, there was no nexus between the racist remarks and
any adverse impact on the conditions of his
employment.[126]

The Full Federal Court unanimously rejected Qantas’ submission on this
point.[127] It held that the
making of a remark was an ‘act’ for the purposes of s
9.[128] It also held that, in the
circumstances of the case, the act involved a distinction based on race,
noting:

It may be that the remark involves a distinction because it is made to a
particular person and not to others. The remark may convey no express or
implicit reference to the person’s race, colour, descent or national or
ethnic origin. Nevertheless, a linkage may be drawn between the distinction
effected by the remark and the person’s race or other relevant
characteristic by reason of the circumstances in which the remark was made or
the fact that it was part of a pattern of remarks directed to that person and
not to others of a different race or relevant characteristic. Where the remark,
critical of one person and not others, expressly or by implication links the
criticism or denigration to that person’s race then that linkage
establishes both the distinction and its basis upon race. That was the present
case.[129]

In relation to the final element of s 9, impairment of a person’s
enjoyment on an equal footing of any human right or fundamental freedom, the
Court held:

The denigration of an employee on the grounds of that person’s race or
other relevant attribute can properly be found to have the effect of impairing
that person’s enjoyment of his or her right to work or to just and
favourable conditions of
work.[130]

And further:

Undoubtedly remarks which are calculated to humiliate or demean an employee
by reference to race, colour, descent or national or ethnic origin, are capable
of having a very damaging impact on that person’s perception of how he or
she is regarded by fellow employees and his or her superiors. They may even
affect their sense of self worth and thereby appreciably disadvantage them in
their conditions of work. Much will depend on the nature and circumstances of
the remark.[131]

The Court accepted that the finding at first instance that the relevant
remarks adversely affected the applicant’s conditions of employment was
open to Raphael FM on the
facts.[132]

(iii) ‘Based
on’ and intention to discriminate

Unlawful
discrimination as defined by s 9(1) of the RDA requires that a
‘distinction, exclusion, restriction or preference’ be ‘based
on’ race or other of the related grounds.

Section 18 of the RDA provides that where an act is done for two or more
reasons, and one of the reasons is race (or other ground), the act will be taken
to be done by reason of race (or other ground), whether or not this is the
dominant or even a substantial reason for doing the act. It is sufficient if
race or another ground is simply one of the reasons for doing an unlawful
act.

The meaning of ‘based on’ in s 9(1) was considered at length by
Weinberg J in Macedonian Teachers’ Association of Victoria Inc v Human
Rights & Equal Opportunity
Commission[133] (‘Macedonian Teachers’). In this case, his Honour suggested
that the expression ‘based on’ in s 9(1) of the RDA could be
distinguished from other expressions used in anti-discrimination legislation
such as ‘by reason of’ or ‘on the ground of’ which had
been interpreted elsewhere to require some sort of causal
connection.[134]

After considering Australian and international
authorities,[135] Weinberg J found
that the relevant test imputed by the words ‘based on’ was one of
‘sufficient connection’ rather than ‘causal
nexus’.[136] His Honour held
that while there must be a ‘close relationship between the designated
characteristic and the impugned conduct’, to require a relationship of
cause and effect ‘would be likely to significantly diminish the scope for
protection which is afforded by that
subsection’.[137]

The approach of Weinberg to the meaning of ‘based on’ was
endorsed by the Full Federal Court in Bropho v Western
Australia.[138] This was an
appeal against the decision of Nicholson
J[139] to dismiss claims by a
member of the Swan Valley Nyungah Community Aboriginal Corporation that the Reserves (Reserve 43131) Act 2003 (WA) (‘Reserves Act’) and
actions taken by an Administrator under that Act breached ss 9, 10, and 12 of
the RDA.

The Full Federal Court unanimously dismissed the appeal. However, the appeal
decision identified certain errors in the approach of Nicholson J to the
operation of ss 9 and 10 of the RDA. In particular, the Court noted that
Nicholson J may have dealt with the various allegations of discrimination on the
basis that there was no material distinction between the expression ‘by
reason of’ in ss 10 and 12 and ‘based on’ in
s 9.[140]

The Full Federal Court said there was no reason to doubt the correctness of
the following conclusions of Weinberg J in Macedonian Teachers:

There appears to me to be no authority which binds me to hold that the phrase
‘based on’ in s 9(1) of the Act is to be understood as synonymous
with the other expressions typically used in anti-discrimination legislation
such as, ‘by reason of’, or ‘on the ground of’.

What is established by the authorities is that anti-discrimination
legislation should be regarded as beneficial and remedial legislation. It
should, therefore, be given a liberal construction. I am conscious of the fact
that ‘the task remains one of statutory construction’ and a court
‘is not at liberty’ to give such legislation ‘a construction
that is unreasonable or unnatural’ – see IW v The City of
Perth (1997) 191 CLR 1 at 12 per Brennan CJ and McHugh J. See also Commonwealth Bank of Australia v Human Rights and Equal Opportunity
Commission (1997) 80 FCR 78 at 88 per Davies J. There is, however, nothing
‘unreasonable or unnatural’, in my view, in treating as encompassed
within the phrase ‘based on’ the meaning of ‘by reference
to’, rather than the more limited meaning of ‘by reason
of’.[141]

Despite Nicholson J’s apparent failure to give the expression
‘based on’ in s 9(1) its broader meaning, his Honour’s
decision to dismiss the claims under ss 9 and 12 was
upheld.[142] The Full Federal
Court said that what was important was that his Honour had rejected the
contention that the Administrator had acted to exclude the appellant (and
others) from the reserve ‘by reason of’ race. It was therefore

not a large step to say that, even on the broader meaning of the expression
‘based on’ discussed by Weinberg J in Macedonian Teachers'
Association, the act of the administrator of excluding the appellant was not
taken by reference to the appellant's race. It was taken by reference to her
(and others) as a member of a dysfunctional community in which the young had
been, and continued to be, at risk of serious
harm.[143]

In Macedonian Teachers Weinberg J also stated that s 9(1)
‘should not be construed in such a way as to confine its proscription of
racial discrimination to circumstances where there is an element of the improper
motive [in the act]’.[144] Weinberg J’s conclusion that s 9(1) does not require motivation or
intention to discriminate followed the decision of Australian Medical Council
v Wilson[145] where Sackville
J reviewed the Australian authorities in relation to other anti-discrimination
statutes[146] and found that
‘the preponderance of opinion favours the view that s 9(1) [of the RDA]
does not require an intention or motive to engage in what can be described as
discriminatory
conduct’.[147]

In House v Queanbeyan Community Radio
Station[148] Neville FM found
that the decision of the respondent radio station to refuse the membership
applications of two Aboriginal women contravened s 9(1) of the RDA. The
decision to refuse the membership applications was made at a meeting of the
board of the radio station. The original draft of minutes of that meeting stated

Wayne said he didn’t want any of them as members saying that they
wanted to take over the station and the aboriginals were fighting on street
corners and he didn’t want them. Ron moved that all the applications be
rejected. Ron said we would have to good reason. Brian asked if any memberships
had been refused in the past and Wayne said there had been no refusals.

The minutes were subsequently amended to remove these remarks. The two women
were informed their applications were refused because they had applied for
family membership but they lived at different addresses.

Neville FM found that the statements made at the Board meeting contravened s
9(1) of the RDA. By virtue of s 18A of the RDA the respondent radio station was
found to be vicariously liable for the acts of its board members. His Honour
added that even if the membership applications had been rejected because they
failed to comply with ‘the somewhat doubtful “family
membership” requirement of the radio station’ that was ‘but
one reason for rejection’. Therefore

Having found that statements contrary to s 9(1) of the Act had been made at
the Board meeting in July 2006, whether or not the family membership
consideration was relevant, by virtue of s 18 of the Act, the racially
discriminatory statements are taken to be the relevant
reason.[149]

His Honour observed that while he did not consider that there was ‘any
malice or intent to be racially discriminatory by any of the Board members of
the respondent radio station towards the applicants, the jurisprudence in
relation to the RDA clearly states that ‘intention is not a pre-requisite
or requirement for an act to be rendered or found to be unlawful for the
purposes of s
9(1)’.[150]

(b) Prohibitions
in specific areas of public life

In addition to s 9(1), ss 11-15
of the RDA prohibit discrimination in specific areas of public life ‘by
reason of the first person’s race, colour or national or ethnic
origin’. [151]

In Purvis v New South Wales (Department of Education &
Training)[152] the High Court
considered the expression ‘because of’ in the
DDA.[153] It would seem settled as
a result of that decision that the appropriate approach to expressions such as
‘by reason of’, ‘on the ground of’ and ‘because
of’ is to question the ‘true basis’ or ‘real
reason’ for the act of the alleged
discriminator.[154]

In Trindall v NSW Commissioner of
Police,[155] the applicant, a
man of ‘mixed Aboriginal/African race’, asserted that his employment
was subject to unreasonable restrictions by reason of his inherited condition
known as ‘sickle cell trait’. In addition to a claim of disability
discrimination, the applicant claimed that sickle cell trait particularly
affects black Africans and therefore the employment condition constituted a
restriction based on race, which impaired his right to
work.[156] Driver FM rejected the
allegation of racial discrimination contrary to s 9(1) and s 15(1)(b) of the
RDA, stating:

While it is true that the sickle cell trait is most common among black
Africans or persons of African descent, the trait occurs in persons of a variety
of ethnic backgrounds, including persons of various Mediterranean backgrounds.
The condition is one that is inherited. While it may well have originated in
Africa, it has spread by natural inheritance through generations all around the
globe. In the case of [the applicant], while the conduct of the NSW Police
Service was based upon [the applicant’s] disability, it was not based upon
his race or ethnicity. His Aboriginality was irrelevant. His black African
heritage was relevant but was not a conscious factor in the actions of the NSW
Police Service. The Police acted as they did because [the applicant] had the
sickle cell trait, not because he was
black.[157]

(c) Drawing inferences of racial
discrimination

The existence of systemic racism has been
routinely acknowledged by decision-makers considering allegations of race
discrimination. The extent to which this enables inferences to be drawn as to
the basis for a particular act, especially in the context of decisions about
hiring or promotion in employment, has been the subject of some consideration.
The cases highlight the difficulties faced by complainants in proving racial
discrimination in the absence of direct
evidence.[158]

In Murray v
Forward,[159] it was alleged
that the respondent’s view that the literacy of the complainant was
inadequate could only be explained by an acceptance of stereotypes relating to
the literacy of Aboriginal people generally. Sir Ronald Wilson stated:

I have not found the resolution of this issue an easy one. Counsel
acknowledges that to accept his submission on behalf of the complainant I must
exclude all other inferences that might reasonably be open. I am sensitive to
the possible presence of systemic racism, when persons in a bureaucratic context
can unconsciously be guided by racist assumptions that may underlie the system.
But in such a case there must be some evidence of the system and the latent or
patent racist attitudes that infect it. Here there is no such evidence.
Consequently there is no evidence to establish the weight to be accorded to the
alleged stereotype.[160]

In Sharma v Legal Aid
Queensland[161] (‘Sharma’), Kiefel J held that a court should be wary of
presuming the existence of racism in particular circumstances:

Counsel for the applicant submitted that an inference could be drawn because
of the known existence of racism combined with the fact that the decision in
question was one to be made between people of different races. It would seem to
me that the two factors identified, considered individually or collectively,
raise no more than a possibility that race might operate as a factor in the
decision-making.[162]

Sharma involved allegations of discrimination in recruitment for
senior legal positions. The Federal Court was referred to the small number of
people from non-English speaking backgrounds employed by the respondent,
particularly at the level of professional staff and the fact that nobody holding
the position for which they applied in any of the respondent’s offices was
from a non-English speaking background. The applicant argued that inferences
could be drawn from this evidence as to the racially discriminatory conduct of
the respondent. Kiefel J stated:

In such cases statistical evidence may be able to convey something about the
likelihood of people not being advanced because of factors such as race or
gender. The case referred to in submissions: West Midlands Passenger
Transport Executive v Jaquant Singh [1988] [2 All ER 873, 877] is one in
point. There it was observed that a high rate of failure to achieve promotion by
members of a particular racial group may indicate that the real reason for
refusal is a conscious or unconscious racial attitude which involves
stereotypical assumptions about members of the group. It will be a question of
fact in each case. Here however all that can be said is that a small number of
the workforce of the respondent comes from non-English speaking
backgrounds.[163]

The Full Federal Court upheld her Honour’s decision on
appeal[164] and agreed that in
appropriate cases, inferences of discrimination might be drawn:

It may be accepted that it is unusual to find direct evidence of racial
discrimination, and the outcome of a case will usually depend on what inferences
it is proper to draw from the primary facts found: Glasgow City Council v
Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation
may be subconscious. There may be cases in which the proper inference to be
drawn from the evidence is that, whether or not the employer realised it at the
time or not, race was the reason it acted as it did: Nagarajan v London
Regional Transport [[2000] 1 AC 501,
510].[165]

Similar issues arose in Tadawan v South
Australia.[166] In this case,
the applicant, a Filipino-born teacher of English as a second language, alleged
victimisation by her employer on the basis of having made a previous complaint
of racial discrimination. It was argued that victimisation could be inferred in
the decision not to re-employ the applicant on the basis of the following
factors: the applicant’s superior qualifications and experience; that the
applicant was ‘first reserve’ for a previous position but was not
given any work; that new employees were taken on in preference to providing work
for the applicant; and the lack of cogent reasons for the preference of new
employees. Raphael FM commented:

In the absence of direct proof an inference may be drawn from the
circumstantial evidence. The High Court has said that ‘where direct proof
is not available it is enough if the circumstances appearing in evidence give
rise to a reasonable and definite inference; they must do more than give rise to
conflicting inferences of equal degrees of probability so that the choice
between them is mere matter of conjecture ... But if circumstances are proved in
which it is reasonable to find a balance of probabilities in favour of the
conclusion sought then though the conclusion may fall short of certainty it is
not to be regarded as a mere conjecture or surmise...’ (Bradshaw v
McEwans Pty Ltd (1951), unreported, applied in TNT Management Pty Ltd v
Brooks (1979) 23 ALR
345).[167]

Raphael FM found that he was unable to infer that the applicant was subject
to victimisation as the decision not to re-employ her was made before she lodged
her complaint.[168]

In Meka v Shell Company Australia
Ltd,[169] the applicant was a
foreign national whose application for employment was not considered by the
respondent. In the absence of any direct evidence as to racial discrimination,
the Court was asked to infer that this was the reason for the decision. However,
counsel for the applicant had not cross-examined the witnesses for the
respondent who had denied that the applicant’s race was a factor in the
decision. In those circumstances, the Court was not prepared to draw the
inferences that the applicant sought to be
drawn.[170]

In Gama v Qantas Airways Ltd (No
2)[171] Raphael FM was also
asked to draw inferences that certain remarks and the treatment of the applicant
in the workplace indicated an entrenched attitude towards the applicant based on
his race. The applicant claimed that he was denied the same conditions of work
and opportunities for training and promotion that were afforded to other
employees on the basis of his race and disability and that certain remarks made
to him by his supervisor and co-workers amounted to unlawful discrimination.

His Honour found that specific statements made to the applicant that he
looked ‘like a Bombay taxi driver’ and that he walked up the stairs
‘like a monkey’ amounted to unlawful discrimination on the grounds
of the applicant’s race. His Honour also observed in the course of his
reasons that ‘there was a general culture inimical to persons of Asian
background’.[172] However,
his Honour was not prepared to accept that this evidence demonstrated that the
rejections of the applicant’s attempts at training and promotion were acts
based on his race.[173]

In his cross-appeal to the Full Federal
Court,[174] Mr Gama submitted that
Raphael FM erred in applying the balance of probabilities test in relation to
the drawing of inferences ‘at such a high level that in the absence of
direct evidence of racial discrimination, the [RDA] is
ineffective’.[175] The court
dismissed this ground of cross-appeal, noting simply that ‘[h]is Honour
has dealt with these matters in his reasons in a way that does not disclose any
error in the application of the standard of
proof’.[176]

The Court also rejected an appeal ground by Qantas that the negative comments
by Raphael FM about a generally racist workplace culture infected his
Honour’s reasons yet were not relevant to his Honour’s ultimate
findings of liability and were not open on the evidence. Further, Qantas argued
that his Honour relied on these comments to make sweeping generalisations about
Qantas’s workplace and some of its witnesses. The Full Court acknowledged
that his Honour’s comments about workplace culture were
‘gratuitous’, but held that they did not play any part in his
determination of liability and therefore did not give rise to any
error.[177]

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3.2.3 Indirect
discrimination under the RDA

(a) Background

The RDA was
amended in 1990[178] to include s
9(1A) which states:

(1A) Where:

  • (a) a person requires another person to comply with a term, condition or
    requirement which is not reasonable having regard to the circumstances of the
    case; and
  • (b) the other person does not or cannot comply with the term, condition or
    requirement; and
  • (c) the requirement to comply has the purpose or effect of nullifying or
    impairing the recognition, enjoyment or exercise, on an equal footing, by
    persons of the same race, colour, descent or national or ethnic origin as the
    other person, of any human right or fundamental freedom in the political,
    economic, social, cultural or any other field of

    public
    life;

the act of requiring such compliance is to be treated, for the
purposes of this Part, as an act involving a distinction based on, or an act
done by reason of, the other person’s race, colour, descent or national or
ethnic origin.

Relatively few cases have considered issues of indirect discrimination under
the RDA. However, some general principles from cases which have considered
indirect discrimination provisions in other anti-discrimination laws are set out
below to assist in the interpretation of the terms of s 9(1A). The development
of these principles in the context of the SDA and DDA is discussed further in
chapters 4 and 5.[179]

The following elements are required to establish indirect discrimination:

  • a term, condition or requirement is imposed on a
    complainant (see 3.2.3(c) below);
  • the term, condition or requirement is not reasonable in the circumstances
    (see 3.2.3(d) below);
  • the complainant does not or cannot comply with that term, condition or
    requirement (see 3.2.3(e) below);
    and
  • the requirement has the effect of interfering with the recognition,
    enjoyment or exercise, on an equal footing, by persons of the same race, colour,
    descent or national or ethnic origin as the complainant of any relevant human
    right or fundamental freedom (see 3.2.4 below).

The onus is on the applicant to make out each of these
elements.[180]

(b) The relationship between
‘direct’ and ‘indirect’
discrimination

Prior to the insertion of s 9(1A) into the RDA, a
body of opinion suggested that the language of s 9(1) and the specific
prohibitions in the RDA were wide enough to cover indirect racial
discrimination. It has been suggested that the section was inserted to remove
doubt that s 9(1) and the succeeding provisions might not cover indirect
discrimination rather than because its terms were not general enough to do
so.[181] However, in Australian
Medical Council v Wilson[182] (‘Siddiqui’), the Full Court of the Federal Court held that
ss 9(1) and (1A) of the RDA should be construed as being mutually exclusive.
Heerey J stated that such an approach was ‘consistent with the language of
the provisions, their legislative history and the preponderance of
authority’.[183] This does
not prevent applicants from pleading both direct and indirect discrimination in
the alternative.[184]

Sections 11-15 of the RDA proscribe discrimination in particular fields of
public life. The definition of ‘indirect discrimination’ in s 9(1A)
explicitly applies for the purposes of Part II of the RDA, which contains ss
11-15. Therefore, it would appear that the definition of ‘indirect
discrimination’ applies to the expression ‘by reason of’ race,
as used in ss 11-15.[185]

(c) Defining
the term, condition or requirement

The words ‘term,
condition or requirement’[186] are to be given a broad meaning. It is still necessary, however, to
identify specifically a particular action or practice which is said to
constitute the relevant requirement. In considering the expression
‘requirement or condition’ in the context of the sex discrimination
provisions of the Anti-Discrimination Act 1977 (NSW), Dawson J
stated:

Upon principle and having regard to the objects of the Act, it is clear that
the words ‘requirement or condition’ should be construed broadly so
as to cover any form of qualification or prerequisite ... Nevertheless, it is
necessary in each particular instance to formulate the actual requirement or
condition with some precision. [187]

A requirement need not be explicit but rather can be implicit. For example, a
service which is provided in a certain manner may, in effect, impose a
requirement that the service be accessed in that
manner.[188]

(d) Not reasonable in the
circumstances

In
the context of other anti-discrimination statutes, it has been held that factors
relevant to assessing reasonableness will include:

  • whether or not the purpose for which the requirement is imposed could be
    achieved without the imposition of a discriminatory requirement, or by the
    imposition of a requirement that is less discriminatory in its
    impact;[189]
  • issues of effectiveness, efficiency and convenience in performing an
    activity or completing a transaction and the cost of not imposing the
    discriminatory requirement or substituting another
    requirement;[190]
  • the maintenance of good industrial
    relations;[191]
  • relevant policy objectives; [192] and
  • the observance of health and safety requirements and the existence of
    competitors.[193]

The
requirement of ‘reasonableness’ under s 9(1A)(a) of the RDA was
considered in Siddiqui. In that matter, Dr Siddiqui sought
unrestricted registration to practice medicine in Victoria. To obtain such
registration, a person was required to be a graduate of a university, college or
other body accredited by the Australian Medical Council (‘AMC’) or
hold a certificate from the AMC certifying that the person was qualified to be
registered as a medical practitioner. To obtain the necessary certificate so as
to fall within this second category, it was necessary (amongst other things) to
sit a written multiple choice question (‘MCQ’) exam and achieve a
result which ranked the candidate within a quota set by the AMC.

Dr Siddiqui was not a graduate of an accredited institution. He sat the MCQ
exam on a number of occasions and, although passing, he was not within the top
200 candidates, which was the quota set by the AMC at the time. Dr Siddiqui
complained, amongst other
things,[194] that the requirement
to sit an exam and pass with a score which placed him within the quota
constituted indirect racial discrimination.

HREOC, at first instance, considered whether or not the requirement was
reasonable. It held that the setting of a quota was reasonable, but the manner
in which it was applied to Dr Siddiqui was unreasonable. HREOC stated:

We are not persuaded that the Health Ministers acted unreasonably in
determining that a quota was necessary nor in fixing it at 200 each year. But we
are persuaded that the AMC acted unreasonably in using it to screen the number
of those doctors who, having successfully met the minimum requirements of the
MCQ, should be permitted to advance to the clinical examination. It was
unreasonable to require the complainant to sit again for the MCQ within a year
or so of his having satisfied the minimum requirements. If those minimum
standards were intended by the AMC to ensure that measure of medical knowledge
considered to be requisite for practice in Australia, then it was unreasonable
to introduce an exclusionary principle based on comparative performance in the
MCQ examination. The evidence has left us with the conclusion that it should
have been possible for the AMC to implement the direction of the Health
Ministers’ Conference in such a way as to minimise the trauma associated
with repeated success in the MCQ followed by repeated failure to be included in
the quota.[195]

On review under the Administrative Decision (Judicial Review) Act 1977 (Cth), the Full Court of the Federal Court found that HREOC had erred in a
number of respects in relation to its findings on reasonableness.

It was held that HREOC had incorrectly reversed the onus of proof:

It approached its task by identifying alternative means of applying the quota
(which would have resulted in Dr Siddiqui’s acceptance) and then finding
that the AMC provided ‘no convincing explanation’ why such
alternatives could not be utilised. However, the onus remained on Dr Siddiqui to
show that the term, condition or requirement in fact applied was not reasonable,
in the sense of being not rational, logical and
understandable.[196]

Further, it was held that HREOC had erred in its approach to reasonableness
and its conclusion that the application of the quota to Dr Siddiqui was
unreasonable.[197] The Court
approved of the following test of
‘reasonableness’[198] articulated by Bowen CJ and Gummow J in Secretary, Department of Foreign
Affairs & Trade v Styles: [199]

The test of reasonableness is less demanding than one of necessity, but more
demanding than one of convenience ... The criterion is an objective one, which
requires the court to weigh the nature and extent of the discriminatory effect,
on the one hand, against the reason advanced in favour of the requirement or
condition on the other. All the circumstances of the case must be taken into
account.[200]

Heerey J observed that the relevant ‘circumstances of the case’
included, but were not limited to, the personal impact of the requirement on Dr
Siddiqui. Also relevant were the reasons for which the AMC had imposed the
requirement.[201] In assessing
whether or not a requirement is ‘reasonable’, the focus is on
‘reason and rationality’ rather than whether the requirement is
‘one with which all people or even most people
agree’.[202]

The Court held that once it was accepted, as HREOC had done, that a quota of
200 could lawfully be imposed, it was ‘impossible to say that it [was] not
a rational application of that quota to select the first 200 candidates in order
of merit’.[203]

In Commonwealth Bank of Australia v Human Rights & Equal Opportunity
Commission,[204] Sackville J
confirmed (in the context of the SDA) that in assessing reasonableness,
‘the question is not simply whether the alleged discriminator could have
made a “better” or more informed
decision’.[205] However, his
Honour cautioned against an over reliance on ‘logic’ in assessing
reasonableness:

The fact that a distinction has a ‘logical and understandable
basis’ will not always be sufficient to ensure that a condition or
requirement is objectively reasonable. The presence of a logical and
understandable basis is a factor – perhaps a very important factor –
in determining the reasonableness or otherwise of a particular condition or
requirement. But it is still necessary to take account of both the nature and
extent of the discriminatory effect of the condition or requirement ... and the
reasons advanced in its favour. A decision may be logical and understandable by
reference to the assumptions upon which it is based. But those assumptions may
overlook or discount the discriminatory impact of the
decision.[206]

In Aboriginal Students’ Support & Parents Awareness Committee,
Alice Springs v Minister for Education, Northern
Territory,[207] HREOC
considered the closing of a primary school in Alice Springs which almost solely
catered to Aboriginal students and was said to be unique in its curriculum and
services. The relevant requirement was said to be that the children attend
another school which was not similarly equipped to meet the needs of Aboriginal
students.

Commissioner Carter noted that the onus is on a complainant to prove the
requirement is not reasonable. The Commissioner noted the competing opinions in
the evidence before him as to the education that the children would receive in
the different schools. While the Commissioner noted that he ‘shared some
of the concerns’ of the complainants, he was not persuaded that the
requirement was ‘not
reasonable’.[208]

In AB v New South
Wales,[209] Driver FM held
that the term, condition or requirement imposed upon the applicant that he be an
Australian or New Zealand citizen or an Australian permanent resident in order
to be eligible for education in a selective school operated by the respondent
was not reasonable in the circumstances. His Honour stated:

I accept that places at selective schools in New South Wales are a scarce
commodity...I also accept that it is reasonable to impose requirements to ensure
that, as far as is practicable, persons entering a selective school are likely
to complete their course of education. However, that purpose could, in my view,
be achieved by a requirement that the student has applied for Australian
permanent residency or citizenship. Making such an application demonstrates a
commitment to live in Australia indefinitely sufficient to meet the expectation
of completion of a course of secondary education.

It is true that the fact that there is a reasonable alternative that might
accommodate the interests of an aggrieved person does not, of itself, establish
that a requirement or condition is unreasonable. The Court must objectively
weigh the relevant factors, but these can include the availability of
alternative methods of achieving the alleged discriminator’s objectives
without recourse to the requirement or condition: Catholic Education Office v
Clarke (2004) 138 FCR 121 at 146 [115]. It is well known that the process of
obtaining permanent residency and citizenship in Australia can be a lengthy one.
Even where an application is refused, the process of review and appeal can take
years. The present applicant has lived in this country for ten years and is
seeking permanent residency. In my view, there is nothing in his circumstances
which render it less likely that he would complete a course of education at
Penrith Selective High School than if he had already been granted permanent
residency or citizenship. The respondent’s condition is unnecessarily
restrictive and is disruptive to the educational expectations of both NSW
residents, and those who may relocate to NSW from other States, which do not
have selective public
schools.[210]

Driver FM held, however, that the applicant had not made out his case of
indirect discrimination: see 3.2.3(e) below.

(e) Ability to
comply with a requirement or condition

An applicant must prove
that an affected individual or group ‘does not or cannot comply’
with the relevant requirement or condition.

As outlined above, the complainant in Siddiqui had failed on a number
of occasions to meet a requirement set by the AMC to sit an exam and pass with a
score which placed him within a certain quota. The Full Federal Court held that
it was correct to find in those circumstances that the complainant ‘does
not’ comply with the relevant requirement. It was not necessary for a
complainant to demonstrate that it was impossible for them ever to comply with
the requirement because of some ‘immutable characteristic’.
Sackville J suggested:

It seems to me that the primary purpose underlying s 9(1A)(b) is to ensure
that the complainant (or someone on whose behalf a complainant acts) has
sustained some disadvantage by reason of the requirement or condition or
requirement under scrutiny. That purpose is satisfied if the relevant individual
in fact does not comply with the condition or requirement, regardless of whether
the non-compliance flows from some immutable characteristic or from a different
cause. Certainly it should not be enough to exclude the operation of s 9(1A)
that a complainant might ultimately be able to comply with a condition or
requirement which discriminates against members of the group to which the
complainant belongs.[211]

In assessing whether or not a person ‘cannot comply’ with a
requirement, it is a person’s ‘practical’ (as opposed to
theoretical or technical) ability to comply that is most relevant.

This issue was considered by the House of Lords in Mandla v Dowell
Lee[212] (‘Mandla’), which concerned the ability of Sikh men to comply
with a dress code:

It is obvious that Sikhs, like anyone else, ‘can’ refrain from
wearing a turban, if ‘can’ is construed literally. But if the broad
cultural/historic meaning of ethnic is the appropriate meaning of the word in
the Act of 1976, then a literal reading of the word ‘can’ would
deprive Sikhs and members of other groups defined by reference to their ethnic
origins of much of the protection which Parliament evidently intended the Act to
afford to them. They ‘can’ comply with almost any requirement or
condition if they are willing to give up their distinctive customs and cultural
rules.[213]

In obiter comments in Siddiqui, Sackville J cited, with
apparent approval, the analysis in Mandla as authority for the
proposition that ‘can comply’ should be understood to mean
‘can in practice’ or ‘can consistently with the customs and
cultural conditions of the racial
group’.[214]

As discussed above, in AB v New South
Wales,[215] the applicant, a
boy of Romanian national origin, was refused enrolment at a selective high
school operated by the respondent, on the basis that he was not an Australian
citizen or permanent resident. He claimed that this amounted to indirect
discrimination on the basis of national origin.

Driver FM found that it was appropriate to make a comparison between persons
of Romanian national origin and persons of Australian or New Zealand national
origin (‘national origin’ being a concept distinct from
citizenship)[216] in determining
whether or not indirect discrimination had occurred.

Driver FM rejected the applicant’s claim on the basis that there was no
evidence that there was a broad class of persons of Australian national origin
who were better able to comply with the respondent’s requirement for
citizenship or permanent residence than persons of Romanian national origin
(whether they were born in Romania or in
Australia).[217]

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3.2.4 Interference
with the recognition, enjoyment or exercise of human rights or fundamental
freedoms on an equal footing

(a) Human
rights and fundamental freedoms defined

Sections 9 and 9(1A) of
the RDA provide protection for a person’s human rights and fundamental
freedoms on an equal footing with persons of other races. Section 10 provides
for the equal enjoyment of rights by people of different
races.[218] The RDA specifically
provides that these references to human rights and fundamental freedoms and the
equal enjoyment of rights include the rights referred to in article 5 of
ICERD.[219]

In considering the meaning of the terms ‘human rights’ and
‘fundamental freedoms’, the Courts have held that article 5 is not
an exhaustive list of the human rights and fundamental freedoms protected by the
RDA.[220] Rather, courts have
taken a broad approach to the rights and freedoms protected. For instance, in Gerhardy v Brown,[221] Mason J held:

The expression ‘human rights’ is commonly used to denote the
claim of each and every person to the enjoyment of rights and freedoms generally
acknowledged as fundamental to his or her existence as a human being and as a
free individual in society ... As a concept, human rights and fundamental
freedoms are fundamentally different from specific or special rights in our
domestic law which are enforceable by action in the courts against other
individuals or against the State, the content of which is more precisely defined
and understood.[222]

Similarly, Brennan J stated:

The term connotes the rights and freedoms which must be recognized and
observed, and which a person must be able to enjoy and exercise, if he is to
live as he was born - ‘free and equal in dignity and rights’, as the
Universal Declaration of Human Rights proclaims ... The conception of human
rights and fundamental freedoms in the Convention definition of racial
discrimination describes that complex of rights and freedoms the enjoyment of
which permits each member of a society equally with all other members of that
society to live in full dignity, to engage freely in any public activity and to
enjoy the public benefits of that
society.[223]

The High Court also considered the meaning of ‘right’ in Mabo
v Queensland,[224] Deane J
stating:

The word ‘right’ is used in s 10(1) in the same broad sense in
which it is used in the International Convention, that is to say, as a moral
entitlement to be treated in accordance with standards dictated by the
fundamental notions of human dignity and essential equality which underlie the
international recognition of human rights: cf. the preamble to the International
Convention.[225]

In Secretary, Department of Veteran’s Affairs v
P,[226] the Federal Court
considered whether entitlement to a war veteran’s benefit (namely a
government-subsidised housing loan) was a right or freedom protected by ss 9(1)
or 10 of the RDA. Drummond J held:

Although it is well-established ... that neither s 9(1) nor s 10(1) of the
[RDA] is confined to the rights actually mentioned in article 5 of the
Convention, those sections are nevertheless concerned only with rights
fundamental to the individual’s existence as a human being. In Ebber v
Human Rights & Equal Opportunity Commission (1995) 129 ALR 455, I
reviewed relevant High Court authority and said (at 475):

Section 9(1) [of the RDA] can only apply where a
discriminatory act based on national origin also affects ‘any human right
or fundamental freedom’. The Act focuses on protecting from impairment by
acts of racial discrimination certain fundamental rights which each individual
has; it does not purport to aim at achieving equality of treatment in every
respect of individuals of disparate racial and national backgrounds...

I concluded (at 476-477):

the rights and freedoms protected by ss 9(1) and 10(1) [of the RDA] do not
encompass every right which a person has under the municipal law of the country
that has authority over him or every other right which he may claim; rather are
those sections limited to protecting those particular rights and freedoms with
which the Convention is concerned and those other rights and freedoms which,
like those specifically referred to in the Convention, are fundamental to the
individual’s existence as a human
being.[227]

Drummond J held that the right to the war veteran’s benefit in question
‘cannot be characterised as a right of the kind which is the concern of s
9 and s 10’ of the RDA as the benefit, being ‘confined to those
persons who have served the interests of one nation against the interests of
other nations, stands outside the range of universal human
rights’.[228] Further, the
benefit ‘cannot be regarded as falling within the kind of right to social
security and social services mentioned in para (e)(iv) of Article 5’ of
ICERD as para (e)(iv) ‘deals only with State-provided assistance to
alleviate need in the general community and with benefits provided to advance
the well-being of the entire community of the kind that many national states now
make available to their
citizens’.[229]

In Macabenta v Minister of State for Immigration and Multicultural
Affairs,[230] Tamberlin J
held:

Although Article 5 of the Convention is cast in wide terms in respect of the
right to residence, it does not follow that every non-citizen who lawfully
enters Australia has any claim by way of a right to permanently reside here. The
equality envisaged in the enjoyment of the enumerated rights does not encompass
circumstances where a government, on compassionate grounds, has declined to
return a group of persons from certain states to their national states.
Therefore, the law does not unequally affect persons from other countries who do
not have a similar history and who are differently affected because of that
history.[231]

In Australian Medical Council v
Wilson[232] (‘Siddiqui’), Heerey J expressed doubt that there
existed a right to practise medicine on an unrestricted
basis.[233]

In Hagan v Trustees of the Toowoomba Sports Ground
Trust,[234] Drummond J
considered a complaint or racial discrimination brought in relation to the
maintenance of a sign saying ‘The ES “Nigger Brown”
Stand’ at an athletic oval. His Honour held, citing Ebber v Human
Rights & Equal Opportunity
Commission:[235]

[Section 9(1)] is not directed to protecting the personal sensitivities of
individuals. It makes unlawful acts which are detrimental to individuals, but
only where those acts involve treating the individual differently and less
advantageously to other persons who do not share membership of the
complainant’s racial, national or ethnic group and then only where that
differential treatment has the effect or purpose of impairing the recognition
etc of every human being’s entitlement to all the human rights and
fundamental freedoms listed in Article 5 of [ICERD] or basic human rights
similar to those listed in Article 5.

...

It can be accepted that s 9(1) protects the basic human right of every person
who is a member of a particular racial group to go about his recreational and
other ordinary activities without being treated by others less favourably than
persons who do not belong to that racial
group...[236]

Drummond J ultimately held that the maintenance of the sign did not,

even if based on race, [involve] any distinction etc having either the
purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of any human right or fundamental freedom of the
kind referred to in s 9. Only Mr Hagan’s personal feelings were affected
by the act. Because there was no distinction etc produced by the act capable of
affecting detrimentally in any way any human rights and fundamental freedoms,
there was no racial discrimination involved in the
act.[237]

In AB v New South
Wales,[238] Driver FM accepted
that Article 5 of ICERD ‘establishes that the right to education and
training is a fundamental right protected by [ICERD]’.

In the matter of Bropho v Western
Australia,[239] Bella Bropho,
a member of the Swan Valley Nyungah Community Aboriginal Corporation
(SVNC’) and former resident of Reserve 43131 (‘the Reserve’),
complained that the Reserves (Reserve 43131) Act 2003 (WA)
(‘Reserves Act’) and actions taken by an Administrator appointed
under that Act interfered with the enjoyment and exercise of the
Applicants’ human rights and fundamental freedoms.

The Reserve had been designated in 1994 for the use and benefit of Aboriginal
persons. In response to concerns about the sexual abuse of women and children,
the Reserves Act was introduced in 2003. Amongst other things, the Reserves Act
removed the power of care, control and management of the Reserve from the SVNC
and placed it with an Administrator who was empowered to make directions in
relation to the care, control and management of the Reserve.

The Administrator acted under the Reserves Act to direct all persons to leave
the Reserve and prohibited entry to the Reserve. The applicants claimed that the
Reserves Act and the actions of the Administrator were in breach of ss 9(1), 10
and 12(1)(d) of the RDA. They claimed that the Reserves Act interfered with,
amongst other things, their enjoyment of the right to own property.

On appeal, the Full Federal Court took a broad approach to identifying the
rights protected by the RDA. Contrary to the approach taken at first
instance,[240] the Court held that
neither the RDA nor ICERD supported the conclusion that rights to property must
be understood as ‘ownership of a kind analogous to forms of property which
have been inherited or adapted from the English system of property law or
conferred by
statute’.[241]  

Instead, the Court considered international law to help determine the content
of the right to own property. In support of the proposition that the right to
own property contained in ICERD encompassed indigenous forms of property
holdings, the Court cited the jurisprudence of the Inter-American Court of Human
Rights which had recognised the proprietary nature of communal rights in
several Latin American indigenous
communities.[242]

However, the Full Federal Court concluded that in this case s 10 did not
invalidate the Reserves Act because the property rights in question were not
absolute and, in fact, ‘no property right, regardless of its source or
genesis, is absolute in nature, and no invalid diminution of property rights
occurs where the State acts in order to achieve a legitimate and
non-discriminatory public
goal’.[243] Therefore, it
was not inconsistent with s 10 to limit property rights in order to achieve a
legitimate and non-discriminatory public goal such as, in this case, protecting
the safety and welfare of women residing at the
Reserve.[244]

(b) Equal footing

To breach
ss 9(1) and 9(1A)(c) of the RDA, a requirement must have the purpose or effect
of impairing the recognition, enjoyment or exercise, ‘on an equal
footing’, by people of the same race of any relevant human right or
fundamental freedom. Section 10 requires an applicant to prove that they
‘do not enjoy’ a right, or do so ‘to a more limited
extent’ than persons of another race.

That expression ‘on an equal footing’ requires a comparison
between the racial group to which the complainant belongs and another group
without that characteristic (usually referred to as the
‘comparator’).

In Siddiqui, the Full Federal Court considered the meaning of
‘equal footing’ in s 9(1A)(c). As outlined above, the case concerned
the requirement that overseas trained doctors submit to an examination as a
requirement of registration to practice medicine in Australia. This did not
apply to doctors trained at an accredited institution.

The case was argued on the basis that the appropriate comparison in
determining the question of whether or not rights were being enjoyed on
‘an equal footing’ was between the group to which Dr Siddiqui
belonged (either defined as ‘overseas trained doctors’ or
‘overseas trained doctors of Indian national origin’) and applicants
from accredited medical schools who were not required to sit the
examination.[245]

Black CJ[246] and Sackville
J[247] (Heerey J
dissenting)[248] held that it was
not necessary for the groups that are compared to have been subject to the same
requirement.[249] Sackville J
stated:

In my opinion, the language used in s 9(1A)(c) is satisfied if the effect of
a requirement to comply with a particular condition is to impair the exercise of
a human right by persons of the same group as the complainant, on an equal
footing with members of other groups, regardless of whether or not those other
groups are required to comply with the same condition. Of course, the usual case
of alleged discrimination involves the disparate impact of a particular
requirement or condition upon two or more groups, each of which is identified by
reference to race, colour, descent or national or ethnic origin. But there may
well be cases in which members of a group are impaired in the exercise of a
human right precisely because they must comply with a condition to which members
of other groups are not
subject.[250]

Black CJ and Sackville J were, however, of the view (expressed in obiter
comments) that the examination and quota requirements applied in that case did
not have the proscribed effect on human rights and fundamental freedoms.
Sackville J stated that the evidence did not establish that persons of Indian
origin were denied relevant opportunities, or disadvantaged by the requirements
for registration.[251]

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3.3 Exceptions

3.3.1 Special measures

The
RDA contains very limited exceptions to the operation of the
Act,[252] unlike the SDA, DDA and
ADA which contain a wide range of permanent
exemptions[253] and the mechanism
for a person to apply for a temporary
exemption.[254] The exception
relating to special measures in s 8(1) of the RDA has received the most
attention in the case law. Section 8(1) provides:

(1) This Part does not apply to, or in relation to the application of,
special measures to which paragraph 4 of Article 1 of the Convention applies
except measures in relation to which sub-section 10(1) applies by virtue of
sub-section 10(3).

As set out in s 8(1), the special measures exception does not apply in the
circumstances referred to in s 10(3) of the RDA, namely provisions in a law
authorizing property owned by Aboriginal persons to be managed by another
without their consent or preventing or restricting an Aboriginal person from
terminating the management by another person of the Aboriginal person’s
property.

ICERD provides for special measures in two contexts – in article 1(4)
as an exception to the definition of discrimination, and in article 2(2) as a
positive obligation on States to take action to ensure that minority racial
groups are guaranteed the enjoyment of human rights and fundamental freedoms.

Article 1(4) of ICERD, with which s 8(1) is concerned, states:

(4) Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring such
protection as may be necessary in order to ensure such groups or individuals
equal enjoyment or exercise of human rights and fundamental freedoms shall not
be deemed racial discrimination, provided, however, that such measures do not,
as a consequence, lead to the maintenance of separate rights for different
racial groups and that they shall not be continued after the objectives for
which they were taken have been
achieved.[255]

(a) Gerhardy v Brown

The High
Court first considered the meaning of s 8(1) in Gerhardy v
Brown.[256] The case concerned
an alleged inconsistency between South Australian land rights legislation and
the RDA. The Pitjantjatjara Land Rights Act 1981 (SA) (‘the SA
Act’) vested the title to a large area of land in the north-west of South
Australia in the Anangu Pitjantjatjaraku, a body corporate whose members were
all persons defined by the SA Act to be Pitjantjatjara. The SA Act provided
unrestricted access to the lands for all members, while it was made an offence
for non-Pitjantjatjara people to enter the lands without a permit. Robert Brown,
who was not Pitjantjatjara, was charged with an offence after entering the lands
without a permit. He claimed that restricting his access to the lands was a
breach of the RDA and, by reason of s 109 of the Constitution, that part
of the SA Act was invalid.

The High Court held that whilst the SA Act discriminated on the basis of
race, it constituted a special measure within the meaning of s 8(1) of the RDA.
Brennan J identified five characteristics to be satisfied in order for a measure
to come within s 8(1):

  • the special measure must confer a benefit on some or all members

    of a
    class;
  • membership of this class must be based on race, colour, descent, or national
    or ethnic origin;
  • the special measure must be for the sole purpose of securing adequate
    advancement of the beneficiaries in order that they may enjoy and exercise
    equally with others human rights and fundamental freedoms;
  • the protection given to the beneficiaries by the special measure must be
    necessary in order that they may enjoy and exercise equally with others human
    rights and fundamental freedoms; and
  • the special measure must not have achieved its
    objectives.[257]

Brennan
J also considered how to determine whether a measure was for the
‘advancement’ of the beneficiaries. His Honour stated:

‘Advancement’ is not necessarily what the person who takes the
measure regards as a benefit for the beneficiaries. The purpose of securing
advancement for a racial group is not established by showing that the branch of
government or the person who takes the measure does so for the purpose of
conferring what it or he regards as a benefit for the group if the group does
not seek or wish to have the benefit. The wishes of the beneficiaries for the
measure are of great importance (perhaps essential) in determining whether a
measure is taken for the purpose of securing their advancement. The dignity of
the beneficiaries is impaired and they are not advanced by having an unwanted
material benefit foisted on
them.[258]

The other members of the Court neither supported nor dismissed Brennan
J’s views on this
point.[259] The Court applied the
five criteria identified by Brennan J and concluded that the permit provisions
of the SA Act satisfied these criteria and therefore qualified as a special
measure.[260]

(b) Applying Gerhardy

In Bruch v Commonwealth,[261] a non-indigenous Australian student claimed that the Commonwealth had unlawfully
discriminated against him in contravention of ss 9 and 13 of the RDA by virtue
of his ineligibility for ABSTUDY rental assistance benefits. McInnis FM held
that the ABSTUDY rental assistance scheme did not cause the Commonwealth to
contravene the RDA because it constituted a ‘special measure’ for
the benefit of Indigenous people within the meaning of s 8(1) of the
RDA.[262]

His Honour found that the five indicia identified by Brennan J were satisfied
because:

  • the ABSTUDY rental assistance scheme conferred a benefit on a clearly
    defined class of natural persons made up of Aboriginal and Torres Strait
    Islander people;
  • that class was based on race;
  • the sole purpose of the ABSTUDY rental assistance scheme was to ensure the
    equal enjoyment of the human rights of that class with respect to
    education;
  • the rental assistance component of the ABSTUDY scheme was necessary to
    ensure that the class improved its rate of participation in education and, in
    particular, tertiary education; and
  • the objectives for which the ABSTUDY rental assistance scheme was introduced
    had not been
    achieved.[263]

In the
matter of Vanstone v
Clark,[264] the Full Court
considered whether or not a section of the Aboriginal and Torres Strait
Islander Commission Act 1989 (Cth) (‘the ATSIC Act’) and a
Determination made under it relating to ‘misbehaviour’ were
inconsistent with s 10 of the RDA (see 3.1.3(d) above). The Full Court also considered, in
obiter comments, a suggestion by the appellant that a particular
provision of the ATSIC Act, insofar as it prevented persons other than
Aboriginal persons or Torres Strait Islanders from being appointed as
Commissioners, constituted a ‘special measure’ under s 8 of the RDA.
It could not, therefore, be impugned as being racially discriminatory and nor
could the Determination made under it relating to misbehaviour.

Weinberg J, with whom Black CJ agreed, held as follows:

The Minister submitted that once it is conceded that s 31(1) is a
‘special measure’, any limits inherent in or attached to the office
designated by that section are part of the special measure, and cannot be
separately attacked as racially discriminatory. According to that submission the
terms on which a Commissioner can be suspended from office, including the power
to specify the meaning of misbehaviour, are part of the terms of that office. In
my view, this submission cannot be accepted. It involves a strained, if not
perverse, reading of s 8 of the RDA, and would thwart rather than promote the
intention of the legislature. If the submission were correct, any provision of
an ancillary nature that inflicted disadvantage upon the group protected under a
‘special measure’ would itself be immune from the operation of the
RDA simply by reason of it being attached to that special
measure.[265]

In Bropho v Western
Australia[266] Nicholson J
held that the whole of the Reserves Act was a special measure pursuant to s 8 of
the RDA.[267] His Honour did not
consider whether particular elements of the Reserves Act need to be appropriate
or adapted to the protective purpose of the special measure or if it is possible
for one element of a purported special measure to be separately attacked as
racially discriminatory.[268]

In concluding the Reserves Act was a special measure, Nicholson J considered
the list of elements in article 1(4) of the ICERD, as set out by Brennan J in Gerhardy v Brown,[269] and stated:

(a) The Act conferred a benefit upon some of the Aboriginal inhabitants who
were women and children by removing the manager being the community believed by
Government to be the source of failure to protect them and by empowering an
Administrator to take steps to remove the threatening environment. The benefit
conferred upon them was to establish a system which would enable them to access
such protection as they may require in common with the access enjoyed by
Aboriginal or non-Aboriginal persons living outside the Reserve. The advancement
conferred was the removal of what was reasonably perceived by Government to be
the impediment to their equal enjoyment of their human rights and fundamental
freedoms.

(b) The class from which the individuals the subject of the measure came was
based on race, namely the Aboriginality of the inhabitants of the Reserve. (This
is a different question to whether the Reserves Act contains provisions
addressed to both Aboriginal and non-Aboriginal persons or to whether the effect
of the Act is disproportional in its impact on Aboriginal persons so as to give
rise to indirect discrimination).

(c) The sole purpose of the Act was to secure adequate advancement of the
beneficiaries in order that they could enjoy and exercise equally with others
their human rights and fundamental freedoms.

(d) The enactment occurred in circumstances where the protection given to
the beneficiaries by the special measure was necessary in order that they may
enjoy and exercise equally with others their human rights and fundamental
freedoms. [270]

His Honour noted that a large number of the women living on the Reserve did not agree with the enactment of the Reserves Act and had made their
objection known in an open letter to the Premier of Western
Australia.[271] However, Nicholson
J held that the wishes of the beneficiaries of a purported special measure were
not necessarily a relevant factor in determining whether something was a special
measure. The contrary view expressed by Brennan J in Gerhardy v Brown was
not, in Nicholson J’s view, supported by the other members of the High
Court in that case and was therefore not
followed.[272]

On appeal, the Full Federal Court found it was unnecessary to consider
whether this aspect of Nicholson J’s reasoning was
correct.[273]

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3.3.2 Reasonable
justification

In Bropho v Western
Australia,[274] Nicholson J
found that in considering whether an allegation of racial discrimination can be
established, regard can be had to the reasonableness of the enactment in
question.[275]

The approach of Nicholson J differs from the approach of the High Court in Gerhardy v Brown where the Court accepted that all differential treatment
was prima facie discriminatory unless it was saved as a special
measure.[276]

In Gerhardy v Brown, the Solicitor-General for South Australia
submitted, in the context of s 9 of the RDA, that there is no discrimination
‘when there is an objective or reasonable justification in the
distinction, exclusion, restriction or preference. For there to be
discrimination the distinction or differentiation must be arbitrary, invidious
or
unjustified’.[277]

That submission was not upheld and was specifically rejected by two members
of the
Court.[278] Questions
of proportionality and reasonableness were not relevant to the Court’s
consideration of s 10(1) in Gerhardy v Brown. Subsequent decisions of the
High Court and Federal Court have not included considerations of reasonableness
and proportionality in their analysis of s 10 or s 9(1) of the
RDA.[279]

On appeal, in Bropho v State of Western Australia, the Full Federal
Court took a different approach to Nicholson J to the question of
proportionality and
reasonableness.[280] Instead of
incorporating a general test of proportionality into the application of s 10,
the Court considered whether the rights that were subject to interference had
been legitimately limited. They concluded that the ‘the right to occupy
and manage the land conferred by the statute was subject to the contingency that
the right would be removed or modified if its removal or modification was
necessary to protect vulnerable members of the
community’.[281] The Court
also stated:

We accept that it will always be a question of degree in determining the
extent to which the content of a universal human right is modified or limited by
legitimate laws and rights recognized in Australia. We also emphasis that these
observations are not intended to imply that basic human rights protected by the
RD Act can be compromised by laws which have an ostensible public purpose but
which are, in truth, discriminatory. However we doubt very much that this is
such a case.[282]

On this basis, the Court held that s 10 did not invalidate the Reserves Act
because the property rights in question were not
absolute.[283] Therefore, it was
not inconsistent with s 10 to limit property rights in accordance with the
legitimate public interest to protect the safety and welfare of women and
children residing at the
Reserve.[284]

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3.4 Racial
Hatred

3.4.1 Background

Racial
hatred provisions were introduced into the RDA in
1995.[285] The majority of cases
decided under the RDA in recent years have involved consideration of those
provisions.

Section 18C of the RDA provides:

18C Offensive behaviour because of
race, colour or national or ethnic origin

(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend,
insult, humiliate or intimidate another person or a group of people; and

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

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

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

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

(b) is done in a public place; or

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

(3) In this section:

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

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3.4.2 Significance
of term racial hatred

Although the term ‘racial
hatred’ appears in the heading in Part IIA of the RDA, the term does not
appear in any of the provisions under this heading. It has been held that an
applicant is not required to prove that the impugned behaviour had its basis in
‘racial hatred’ in order to establish a breach of Part
IIA.[286]

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3.4.3 Persons
to whom the provisions apply

Section 18C(1) of the RDA operates
to protect a person or group of a particular ‘race, colour or national or
ethnic origin’.[287]

It is not necessary to establish that all people
in a racial group may be offended by the acts the subject of complaint. It will
be sufficient to show that a particular group may reasonably be affected by the
conduct. For example:

  • in McGlade v
    Lightfoot    ,[288] the relevant
    group was defined as ‘an Aboriginal person or a group of Aboriginal
    persons who attach importance to their Aboriginal
    culture’;[289]
  • in Creek v Cairns Post Pty
    Ltd    ,[290] the group was
    defined as ‘an Aboriginal mother, or carer of children, residing in the
    applicant’s
    town’;[291] and
  • in Jones v
    Toben    ,[292] the subset of
    people was defined as ‘members of the Australian Jewish community
    vulnerable to attacks on their pride and self-respect by reason of youth,
    inexperience or psychological
    vulnerability’.[293]

In McLeod v Power,[294] the
applicant, a Caucasian prison officer, complained that the respondent, an
Aboriginal woman, had abused him in terms including ‘you fucking white
piece of shit’ and ‘fuck you whites, you’re all fucking
shit’. Brown FM stated that the term ‘white’ did not itself
encompass a specific race or national or ethnic group, being too wide a
term.[295] Brown FM also found
that the term ‘white’ was not itself a term of abuse and noted that
white people are the dominant people historically and culturally within
Australia and not in any sense an oppressed group, whose political and civil
rights are under threat.[296] His
Honour suggested that it would be ‘drawing a long bow’ to include
‘whites’ as a group protected under the
RDA.[297]

In Kelly-Country v
Beers,[298] Brown FM held
that, when considering the material of a comedian which circulated throughout
the country generally, the appropriate group for the purposes of the assessment
required by s 18C(1) was ‘ordinary Aboriginal people within Australian
society’. His Honour stated that it was not appropriate to otherwise place
any geographical limitation on the
group.[299]

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3.4.4 Causation
and intention to offend

Section 18C(1)(b) requires that the
offending act must be done ‘because of’ the race, colour or national
or ethnic origin of the complainant or some or all of the people in the relevant
group. This wording differs from that in s 9(1) which uses the expressions
‘based on’ and ss 11-15 which uses ‘by reason
of’.[300]

Section 18B provides that the complainant’s race, colour or national or
ethnic origin need not be the dominant or substantial reason for the act.

Drummond J held in Hagan v Trustees of the Toowoomba Sports Ground
Trust[301] that s 18C(1)(b)
implies that there must be a causal relationship between the reason for doing
the act and the race of the ‘target’ person or
group.[302] His Honour also held
that s 18C(1)(b) should not be interpreted mechanically. It should be applied in
light of the purpose and statutory context of s 18C – namely, as a
prohibition of behaviour based on racial
hatred.[303] Drummond J concluded,
after examining the Second Reading Speech of the RDA, that ‘it would give
s 18C an impermissibly wide reach to interpret it as applying to acts done
specifically in circumstances where the actor has been careful to avoid giving
offence to a racial group who might be
offended’.[304]

Kiefel J held similarly in Creek v Cairns Post Pty
Ltd[305] (‘Creek v Cairns Post’) that s 18C(1)(b) requires a
consideration of the reason for the relevant act. However, her Honour held that
the reference in the heading of Part IIA to ‘behaviour based on racial
hatred’ does not create a separate test requiring the behaviour to have
its basis in actual hatred of race. Sections 18B and 18C establish that the
prohibition will be breached if the basis for the act was the race, colour,
national or ethnic origin of the other person or group. Whilst the reason for
the behaviour may be a matter for enquiry, the intensity of feeling of the
person committing the act need not be considered (although it may explain
otherwise inexplicable
behaviour).[306] The key question
is whether ‘anything suggests race as a factor’ in the relevant
act.[307]

In Jones v
Toben,[308] Branson J
adopted the approach of Kiefel J in Creek v Cairns Post to the words
‘because of’ in s
18C(1)(b).[309] Branson J
considered the material before her which, amongst other things, conveyed the
imputation that there was serious doubt that the Holocaust occurred. Her Honour
found that it was ‘abundantly clear that race was a factor in the
respondent’s decision to publish the material’.

The material includes many references to Jews and events and people
characterised as Jewish. It is particularly concerned with the Holocaust and
with the conduct of German forces during World War II, matters of particular
importance to Jewish people. It is, in my view, plainly calculated to convey a
message about Jewish people (see Jones v Scully per Hely J at [116] -
[117]).[310]

In Miller v
Wertheim,[311] the Full
Federal Court held that a speech made by the first respondent may have been
reasonably likely, in all the circumstances, to offend a small part of the
Orthodox Jewish community. However, this did not, in itself, satisfy the
requisite causal relationship of s 18C:

The group and its members were criticised in the speech because of their
allegedly divisive and destructive activities, and not because the group or its
members were of the Jewish race, of Jewish ethnicity or because they were
persons who adhered to the practices and beliefs of orthodox
Judaism.[312]

In McGlade v
Lightfoot,[313] an interview
was reported in a newspaper in which the respondent made comments that were
alleged to breach the racial hatred provisions. Carr J found that

the evidence establishes that the respondent’s act was done because of
the fact that the persons about whom the respondent was talking were of the
Australian Aboriginal race or ethnic origin ... there could be no other reason
for the respondent’s statements than the race or ethnic origin of the
relevant group of people.[314]

In Kelly-Country v
Beers,[315] Brown FM
considered the performance of a comedian who portrays an Aboriginal character
‘King Billy Cokebottle’ for the duration of his routine, much of
which involves jokes with no specific racial element. In doing so, the
respondent applies black stage make-up, has an unkempt white beard and moustache
as well as ‘what appears to be a white or ceremonial ochre stripe across
his nose and cheek bones... [and] a battered, wide brimmed hat, of a kind often
associated with Australian, particularly Aboriginal people, who live in a rural
or outback setting’.[316]

His Honour noted that ‘the intention of the person perpetrating the act
complained of is not relevant... an act that would otherwise be unlawful is not
excused if its originator meant no offence by
it’.[317] However, his
Honour suggested that the portrayal of the character ‘King Billy
Cokebottle’ was not an act done ‘because of’ race:

I have some difficulty in reaching the conclusion that Mr Beers performs his
act because of Aboriginal people any more than I could conclude that Barry
Humphries assumes the character of Edna Everage because of women in Moonee
Ponds... King Billy Cokebottle is a vehicle for his particular style of comedic
invention.[318]

In Silberberg v The Builders Collective of Australia
Inc[319] the applicant, who
was Jewish, alleged a breach of the racial hatred provisions of the RDA in
respect of two postings on an internet discussion forum. The claim was brought
against the individual who posted the relevant postings, as well as against the
incorporated association which hosted the forum as part of its website.

Gyles J held that it was reasonably likely that a person of the
applicant’s ethnicity would have been offended, insulted, humiliated or
intimidated by the messages. Accordingly, his Honour upheld the complaint
against the individual respondent and ordered a restraint against him publishing
the same or similar material.[320]

In relation to the website host, his Honour held that the failure to remove
material ‘known to be offensive’ within a reasonable time would
breach s 18C(1)(a).[321] However,
his Honour found that the evidence in this case did not establish that the
failure to remove the message was connected to the race or ethnic origin of the
applicant. His Honour stated:

there is substance to the argument that the failure to remove the offensive
material has not been shown to have any relevant connection with race or ethnic
origin of the applicant or indeed any other Jewish person as required by
s 18C(1)(b) of the Act. The failure of the unidentified administrator to
remove the Second Message on and after 1 July 2006 was the clearest case of
failure to act. I cannot conclude that such failure was attributable, even in
part, to the race or ethnic origin of the applicant. If Dwyer is accepted, the
message should have been removed if its offensive nature was understood.
However, failure to do so is just as easily explained by inattention or lack of
diligence. Drawing the necessary causal connection would be speculation rather
than legitimate inference. The same reasoning would be more obviously applicable
to the systematic failure to monitor and remove offensive postings. Absent the
necessary causal connection there is no breach of Pt IIA by the
Collective.[322]

Gyles J therefore found the organisation had not acted unlawfully by allowing
the offensive material to be copied, or by failing to delete it from the website
promptly.

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3.4.5 Reasonably
likely to offend, insult, humiliate or intimidate

(a) Objective
standard

The test of whether a respondent’s act was
‘reasonably likely in all the circumstances to offend, insult, humiliate
or intimidate another person or a group of people’ is an objective
one.[323] It is not necessary for
an applicant to prove that any person was actually offended, insulted,
humiliated or intimidated by the
conduct.[324]

In Creek v Cairns Post Pty
Ltd[325] (‘Creek v
Cairns Post’), the respondent had published an article concerning the
decision by the Queensland Department of Family Services, Youth and Community
Care to place a young Aboriginal girl in the custody of the applicant, a
relative of the child’s deceased mother and guardian of the child’s
two brothers. The child had previously been in the foster care of a
non-Aboriginal family. The article focused on whether the Department’s
decision was a reaction to the 1997 ‘Stolen Generation’
report,[326] which had spoken of
the suffering of Aboriginal people as a result of the past practice of removing
Indigenous children from their families.

The basis for the complaint was the photographs which accompanied the story.
The photograph of the non-Aboriginal couple showed them in their living room
with photographs and books behind them. The photograph of the applicant showed
her in a bush camp with an open fire and a shed or lean-to in which young
children could be seen. The respondent obtained the photograph (which had been
taken on an earlier occasion in relation to a different story) from a
photographic library.

The applicant complained that the photograph portrayed her as a primitive
bush Aboriginal and implied that this was the setting in which the child would
have to live. In reality the applicant at all relevant times lived in a
comfortable, four-bedroom brick home with the usual amenities. The bush camp was
four hours drive from the residence of the applicant and was used by her and her
family principally for recreational purposes.

Kiefel J held that the act in question must have ‘profound and serious
effects, not to be likened to mere
slights’.[327] Her Honour
noted that the nature or quality of the act in question is tested by the effect which it is reasonably likely to have on another person of the
applicant’s racial or other group. Kiefel J stated that the question to be
determined is whether the act in question can, ‘in the circumstances be
regarded as reasonably likely to offend or humiliate a person in the
applicant’s
position’.[328]

Although rejecting the application on the basis that the publication was not
‘motivated by considerations of race’, Kiefel J held that a
reasonable person in the position of the applicant would

feel offended, insulted or humiliated if they were portrayed as living in
rough bush conditions in the context of a report which is about a child’s
welfare. In that context it is implied that that person would be taking the
child into less desirable conditions. The offence comes not just from the fact
that it is wrong, but from the comparison which is invited by the
photographs.[329]

In relation to the comments made by Kiefel J that the act in question must
have ‘profound and serious effects, not to be likened to mere
slights’, Branson J in Jones v Toben stated that she did not
understand Kiefel J to have intended that a ‘gloss’ be placed on the
ordinary meaning of the words in s 18C:

Rather, I understand her Honour to have found in the context provided by s
18C of the RDA a legislative intent to render unlawful only acts which fall
squarely within the terms of the section and not to reach to ‘mere
slights’ in the sense of acts which, for example, are reasonably
likely to cause technical, but not real, offence or insult (see also Jones v
Scully per Hely J at [102]). It would be wrong, in my view, to place a gloss
on the words used in s 18C of the
RDA.[330]

Kiefel J’s statement in Creek v Cairns Post that conduct must
have ‘profound and serious effects not to be likened to mere
slights’ to be caught by the prohibition in s 18C was cited with
approval by French J in Bropho v Human Rights & Equal Opportunity
Commission.[331] French J also
stated, in obiter comments:

The act must be ‘reasonably likely’ to have the prohibited
effect. Judicial decisions on s 18C(1) do not appear to have determined whether
the relevant likelihood is a greater than even probability or a finite
probability in the sense of a ‘real chance’. It might be thought
that the threshold of unlawfulness should be defined by reference to the balance
of probabilities rather than a lesser likelihood having regard to [the]
character of s 18C as an encroachment upon freedom of speech and
expression.[332]

(b) Subjective
effect on applicant

Evidence of the subjective effect on the
applicant of an impugned act may be relevant and is admissible in determining
whether a respondent’s act was ‘reasonably likely in all the
circumstances to offend, insult, humiliate or intimidate another person or a
group of people’. However, it is ‘not determinative in answering the
question’. [333]

In Horman v Distribution Group
Ltd,[334] the applicant
submitted that the use of the word ‘wog’ in relation to the
applicant and others was offensive and discriminatory to the applicant. There
was evidence that the applicant used the word herself with respect to another
employee. This did not, however, disqualify the applicant from the protection of
s 18C. Raphael FM stated:

the very words used indicated that when she used them she intended to insult
[the other employee]. It follows from this that she believed that the word
‘wog’ could be used in an insulting manner, and I am prepared to
find that in the instances in which I have accepted that it was used, that it
was used in that way with respect to the
applicant.[335]

(c) Reasonable
victim test

In McLeod v
Power,[336] Brown FM described
the objective test as one of the ‘reasonable
victim’,[337] adopting the
analysis of Commissioner Innes in Corunna v West Australian Newspapers
Ltd.[338] In that case, the
applicant, a Caucasian prison officer, complained that the respondent, an
Aboriginal woman, had abused him in terms including ‘you fucking white
piece of shit’ and ‘fuck you whites, you’re all fucking
shit’ upon being refused entry to the prison for a visit. Brown FM found
as follows:

The abuse, although unpleasant and offensive, was not significantly
transformed by the addition of the words ‘white’ or
‘whites’. These words are not of themselves offensive words or terms
of racial vilification. This is particularly so because white or pale skinned
people form the majority of the population in Australia... I believe that a
reasonable prison officer would have found the words offensive but not
specifically offensive because of the racial implication that Mr McLeod says he
found in them.[339]

In Kelly-Country v
Beers[340] (‘Kelly-Country’), the applicant, an Aboriginal man,
complained of vilification in relation to a comedy performance (see 3.4.4 above). The applicant described himself as an
‘activist’. Brown FM stated that:

it is possible that such an activist may search out material for the purpose
of being offended and so may be regarded as being unduly susceptible or even an
agent provocateur in respect of the material complained of... A mere slight or
insult is insufficient. This is the so-called ‘reasonable victim’
test.[341]

His Honour also noted that in applying the ‘reasonable victim’
test it is necessary to be informed by community standards and consider the
context in which the communication is made:

In applying the reasonable victim test, it is obviously necessary to apply a
yardstick of reasonableness to the act complained of. This yardstick should not
be a particularly susceptible person to be aroused or incited, but rather a
reasonable and ordinary person and in addition should be a reasonable person
with the racial, ethnic or relevant attributes of the complainant in the
matter.

....

[A] joke about a historically oppressed minority group, which is told by a
member of a racially dominant majority, may objectively be more likely to lead
to offence. As a result, a joke told by an Aboriginal person about other
Aboriginal people may not be so likely to transgress the provisions of the RDA,
because the teller of the joke itself and its subject are not in a situation of
power imbalance, but are each members of the same subset of disadvantaged
people...[342]

His Honour concluded, however, on the evidence that the act complained of was
not unlawful as ‘no reasonable Aboriginal person, who was not a political
activist’ would have been insulted, humiliated or intimidated by it (see
below 3.4.5).[343]

(d) Context

Context is an important consideration in determining whether a
particular act breaches s 18C. For example, in Hagan v Trustees of the
Toowoomba Sports Ground Trust,[344] Drummond J considered whether or not the use of the word
‘nigger’ was offensive to Indigenous people in the naming of the
‘ES “Nigger” Brown Stand’. His Honour
stated:

There can be no doubt that the use of the word ‘nigger’ is, in
modern Australia, well capable of being an extremely offensive racist act. If
someone were, for example, to call a person of indigenous descent a
‘nigger’, that would almost certainly involve unlawfully
racially-based conduct prohibited by the [RDA]. I say ‘almost
certainly’ because it will, I think, always be necessary to take into
account the context in which the word is used, even when it is used to refer to
an indigenous person.[345]

Drummond J suggested that the use of the word ‘nigger’ between Australian Indigenous people would be unlikely to breach
the RDA. His Honour cited the views of Clarence Major, to the effect that the
use of the word ‘nigger’ between black people in the USA could be
considered ‘a racial term with undertones of warmth and goodwill –
reflecting, aside from the irony, a tragicomic sensibility that is aware of
black history’.[346]

In the case before Drummond J, it was significant that ‘nigger’
was the accepted nickname of ES Brown who was being honoured in the naming of
the stand. In this context, His Honour found that the word had ceased to have
any racist connotation.[347]

In Kelly-Country, considerations of context played an important part
in the reasoning of Brown FM who held that the performance of the respondent in
the character of ‘King Billy Cokebottle’ (see 3.4.4 above), did not
contravene s 18C of the RDA. His Honour noted the significance of the fact that
Aboriginal people had been ‘the subject of racial discrimination and
prejudice throughout the European settlement of Australia’. He
continued:

However, the setting of the particular communication or act complained of
must also be analysed. A statement by an Australian Senator to a journalist
employed by a nationally circulating newspaper is clearly different to a joke
exchanged between two friends in the public bar of a hotel. The former has a
clear political context and the latter is an exchanged act of entertainment. Mr
Beers’ act and tapes are designed to be entertaining for members of a
paying audience, which has a choice whether or not to attend the performances or
buy the tapes concerned. They do not have an explicit political content.
Clearly, the jokes told by Mr Beers are not intended to be taken literally.
However, any joke by its nature, has the potential to hold at least someone up
to scorn or ridicule. Accordingly, there may be situations when a joke does
objectively incite racial
hatred.[348]

His Honour concluded:

I accept that Mr Beers’ act and tapes are vulgar and in poor taste. I
also accept that Aboriginal people are a distinct minority within Australian
society and so objectively more susceptible to be offended, insulted, humiliated
and intimidated because of their disadvantaged status within Australian society.
However, Mr Beers’ act is designed to be humorous. It has no overt
political context and the nature of the jokes or stories within it are intended
to be divorced from reality. The act is not to be taken literally or seriously
and no reasonable Aboriginal person, who was not a political activist, would
take it as such.

King Billy Cokebottle himself does not directly demean Aboriginal people,
rather he pokes fun at all manner of people, including Aboriginal people and
indeed in many of his stories, Aboriginal people have the last laugh. I do not
think that an Aboriginal person, who had paid expecting to hear a ribald comedic
performance, would believe that the subject of either the act itself or the
recorded tapes was to demean Aboriginal people
generally.[349]

In Campbell v
Kirstenfeldt,[350] Mrs
Campbell, an Aboriginal woman, alleged that her neighbour, who was white, abused
her and called her names on six separate occasions. These names included
‘nigger’, ‘coon’, black mole’, ‘black
bastards’ and ‘lying black mole cunt’. She was also told to
‘go back to the scrub were you belong’. The Court held all six
incidents contravened s 18C of the RDA. The respondent was ordered to make a
written apology and damages were awarded to Mrs Campbell.

(e) Truth
or falsity of statement not determinative of offensiveness

The
truth or falsity of a statement is not determinative of whether the relevant
conduct is rendered unlawful by s 18C of the RDA. A true statement can
nevertheless be offensive in the relevant
sense.[351]

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3.4.6 Otherwise
than in private

Section 18C applies only to acts done
‘otherwise than in
private’.[352]

Section 18C(2) provides that:

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

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

(b) is done in a public place; or

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

Section 18C(3) further provides:

(3) In this section:

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

Commissioner Innes in Korczak v Commonwealth (Department of
Defence)[353] (‘Korczak’), observed that the focus in s 18C is on the
nature of the act, rather than its physical location per se: an act does not
need to have occurred in a ‘public place’ for it to satisfy the
requirement that the act has occurred ‘otherwise than in private’.
The Commissioner stated that, reading the RDA as a whole, the phrase
‘otherwise than in private’ should be read consistently with the
broad concept of ‘public life’ that appears in s 9 of the RDA and
article 5 of ICERD.[354]

In both Gibbs v
Wanganeen[355] (‘Gibbs’) and McMahon v
Bowman,[356] the FMC cited
with approval the decision of Commissioner Innes in Korczak for the
proposition that the act must be done otherwise than in private, but need not be
done ‘in public’.

Driver FM in Gibbs noted that s 18C(2) of the RDA ‘is inclusive
but not exhaustive of the circumstances in which an act is to be taken as not
being done in private’.[357] His Honour took a broad interpretive approach to the provision, stating that
‘[t]he legislation is remedial and its operation should not be unduly
confined’.[358] His Honour
suggested that it was ‘not possible for Parliament to stipulate all
circumstances where a relevant act is to be taken as not being done in
private’.[359]

Driver FM found certain comments made in a prison were made ‘in
private’.[360] In doing so,
his Honour considered the Victorian case of McIvor v
Garlick[361] which addressed
the meaning of a public place under the Summary Offences Act 1966 (Vic)
and noted that the case was a material guide to the meaning of the words
‘public place’ at common
law.[362]

He also noted that a prison is a closed community to which access and egress
are strictly regulated.[363] His
Honour suggested that because prisoners live there, it has some of the
attributes of a private home[364] and he concluded that it is not in general a public place, although some parts
may be a public place depending on the circumstances. Further, it is possible
that an act done within a prison may be done otherwise than in private,
depending upon the circumstances, even if done in a place that is not a public
place.[365] For example, an act
may take place there otherwise than in private if members of the public, meaning
‘persons other than prisoners or correctional staff’, were actually
present in the area at the place where the act occurred, when it occurred, or at
least within earshot.[366] Driver
FM also referred to the ‘quality of the conversation’. His Honour
noted that ‘the exchange was intended by the respondent to be a private
one’ and concluded that the statements were not made ‘otherwise than
in private’.[367]

In McMahon v Bowman, words shouted across a laneway between one house
and another were taken to be in the sight or hearing of people in a public place
for the purpose of s 18C(2)(c) as it would be ‘reasonable to conclude that
they were spoken in such a way that they were capable of being heard by some
person in the street if that person was attending to what was taking
place’.[368] It was not
necessary to prove that the people who were present in the street at the time of
the incident heard what
occurred.[369]

In McGlade v
Lightfoot,[370] Carr J held,
in dismissing an application by the respondent for summary dismissal, that it
was ‘reasonably arguable’ that the act of a politician giving an
interview to a journalist and ‘using the words complained of was an act
which caused the same words to be communicated to the
public’.[371] Moreover, Carr
J held that ‘[t]he same applies, in my view, to the subsequent
‘picking up’ by a local newspaper of the original article published
in a national
newspaper’.[372]

In the substantive hearing in that
matter,[373] Carr J found
that the respondent had, in giving an ‘on the record’ interview with
a journalist, ‘deliberately and intentionally engaged in conduct, the
natural consequence of which was the publication of his words’ and
accordingly that the comments were made ‘otherwise than in
private’.[374]

It has also been held that the distribution of leaflets to people in a
certain area, including placement of material in their letterboxes, was an act
done ‘otherwise than in
private’.[375]

In Jones v Toben,[376] Branson J held that the ‘placing of material on a website which is not
password protected is an act which, for the purposes of the RDA, is taken not to
be done in private’.[377] In
that case the respondent had placed material on the internet which was found to
be anti-Semitic. Her Honour stated that her conclusion as to the public nature
of the relevant act was supported by the fact that a search of the World Wide
Web using terms such as ‘Jew’, ‘Holocaust’ and
‘Talmud’, which were likely to be used by a member of the Jewish
community interested in Jewish affairs, lead the searcher to one or more of the
websites containing the material the subject of the
complaint.[378] The decisions in Jones v Toben[379] (at first instance) and in Toben v
Jones[380] (on appeal) were
followed in Jeremy Jones v The Bible Believers’
Church[381] (see 3.4.7(c)(i) below) and Silberberg v
Builders Collective of [382]Australia(discussed at 3.4.4).

In Campbell v
Kirstenfeldt,[383] Lucev FM
held that incidents where a man called his neighbour names, including
‘niggers’, ‘coons’, ‘black mole’,
‘black bastards’ and ‘lying black mole cunt’, were not
taken to be done in private. The Court found that the incidents:

  • occurred over a neighbourhood fence; or
  • were at least capable of being heard between one property and another;
    or
  • were capable of being heard in public because they were said to people
    either on a public footpath or in a public reserve; or
  • given that each of the houses faced onto a footpath and road, capable of
    being heard in a public place, being either the footpath, or the road or the
    park reserve.

Lucev FM said exchanges in these circumstances were
not made in private, but exchanges heard by the complainant and members of her
family, people who were not members of her family, or ‘generally capable
of being heard in
neighbourhood’.[384]

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3.4.7 Exemptions

Section 18D
of the RDA provides for the following exemptions from the prohibition on racial
hatred in s 18C:

18D Exemptions

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

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or
held for any genuine academic, artistic or scientific purpose or any other
genuine purpose in the public interest; or

(c) in making or publishing:

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

interest; or

(ii) a fair comment on any event or matter of public interest if the comment
is an expression of a genuine belief held by the person making the comment.

(a) Onus
of proof

The
weight of authority suggests that the respondent bears the onus of proving the
elements of s 18D.[385]

However, in Bropho v Human Rights & Equal Opportunity
Commission[386] (‘Bropho’), French J, in obiter comments, suggested that
‘the incidence of the burden of proof’ was not ‘a question
that should be regarded as
settled’.[387] This was
based on his Honour’s view that s 18D was not ‘in substance an
exemption’[388] (see further
3.4.7(b) below). French J concluded by suggesting that any burden on a
respondent may only be an evidentiary one:

If the burden of proof does rest upon the person invoking the benefit or s
18D, then that burden would plainly cover the proof of primary facts from which
assessments of reasonableness and good faith are to be made. But the process of
making such assessments is not so readily compatible with the notion of the
burden of proof.[389]

In Kelly-Country v
Beers[390] (‘Kelly-Country’), the issue of the onus of proof was not
explicitly raised, but Brown FM appears to have accepted that the onus of proof
is on a respondent to satisfy s
18D.[391]

(b) A
broad or narrow
interpretation?

The
question of whether the exemptions to racial hatred in s 18D should be broadly
or narrowly construed was considered in Bropho. In that matter, the
Nyungah Circle of Elders claimed that a cartoon published in the West Australian
newspaper breached s 18C as being offensive to Aboriginal people. At first
instance, Commissioner Innes found that the cartoon fell within the exemption
for artistic works in s
18D(a).[392] This was upheld on
review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) by RD Nicholson J, [393] who
held that s 18D should be broadly interpreted:

There
is ... nothing in either the explanatory memorandum or second reading speech
reference to which is permissible within the provisions of s
15AB of the Acts
Interpretation Act 1901 (Cth) to suggest that the exemption provisions in s
18D should be read other than in a way which gives full force and effect to
them.[394]

On appeal, French J agreed with the broad approach to the exemptions in s
18D. His Honour reasoned that s 18C was, in fact, an exception to the general
principle recognised in international instruments and the common law that people
should enjoy freedom of speech and expression. Section 18D was therefore
‘exemption upon
exception’.[395] French J
stated:

Against that background s 18D may be seen as defining the limits of the
proscription in s 18C and not as a free speech exception to it. It is
appropriate therefore that s 18D be construed broadly rather than
narrowly.[396]

An alternative construction has been advanced by many Australian commentators
who have argued that the breadth of the exemptions undermines the protection
afforded by the racial hatred provisions and that a broad interpretation of the
exemptions is contrary to the presumption that exemptions in beneficial
legislation should be construed narrowly rather than
broadly.[397]

In Kelly-Country, Brown FM (who did not make reference to the decision
in Bropho on this issue) held that as part of remedial legislation, the
exemption in s 18D should be narrowly construed:

Essentially, those who would incite racial hatred or intolerance within
Australia should not be given protection to express their abhorrent views
through a wide or liberal interpretation of the exceptions contained within
section 18D. A broad reading of the exemptions contained in section 18D could
potentially undermine the protection afforded by the vilification provisions
contained in section 18C of the
RDA.[398]

(c) Reasonably
and in good
faith

(i)
Objective and subjective elements

Courts have approached ‘reasonableness’ and ‘good
faith’ as separate elements of the exemption in s 18D. It appears that
whether an act is done ‘reasonably’ will be answered by reference to
the objective circumstances of the act, whereas ‘good faith’
requires a consideration of the intention of the respondent.

In Bryl v Nowra,[399] Commissioner Johnston stated that good faith was a subjective element and that
the absence of good faith required

conduct that smacks of dishonesty or fraud; in other words something
approaching a deliberate intent to mislead or, if it is reasonably foreseeable
that a particular racial or national group will be humiliated or denigrated by
publication, at least a culpably reckless and callous indifference in that
regard. Mere indifference about, or careless lack of concern to ascertain
whether the matters dealt with in the artistic work reflect the true situation,
is not capable of grounding an adverse finding of bad faith for the purposes of
section 18D.[400]

RD
Nicholson J in Bropho v Human Rights & Equal Opportunity
Commission[401] appeared to
disagree with that formulation and suggest that the test required by s 18D
was purely an objective one:

I do not consider that a commissioner applying s 18D is required to inquire
into the actual state of mind of the person concerned. That is not to say
evidence of such state of mind may not be relevant. It is to say that the focus
of inquiry dictated by the words involves an objective consideration of all the
evidence and not solely a focus on the subjective state of mind of the person
doing the act or making the statement in question.

....

The characterisation of the use of the good faith requirement in conjunction
with the reasonableness requirement as requiring the objective approach
precludes the possibility of the application of the requirement for a respondent
to a complaint to positively establish its state of mind in that respect as a
necessary part of the
evidence.[402]

However, on appeal to the Full Court, both French and Lee JJ held that the
expression ‘reasonably and in good faith’ required a subjective and
objective test.[403] Carr J
expressed his agreement with the primary
Judge.[404]

On the objective test of ‘reasonableness’, French J noted the
relevance of proportionality:

There are elements of rationality and proportionality in the relevant
definitions of reasonably. A thing is done ‘reasonably’ in one of
the protected activities in par (a), (b) and (c) of s 18D if it bears a rational
relationship to that activity and is not disproportionate to what is necessary
to carry it out. It imports an objective judgment. In this context that means a
judgment independent of that which the actor thinks is reasonable. It does allow
the possibility that there may be more than one way of doing things
‘reasonably’. The judgment required in applying the section, is
whether the thing done was done ‘reasonably’ not whether it could
have been done more reasonably or in a different way more acceptable to the
court. The judgment will necessarily be informed by the normative elements of ss
18C and 18D and a recognition of the two competing values that are protected by
those sections.[405]

Lee J stated that reasonableness can only be judged against the possible
degree of harm that a particular act may cause. His Honour cited, with apparent
approval, the decision of the NSW Administrative Decisions Tribunal in Western Aboriginal Legal Service Ltd v
Jones[406] to the effect that
the greater the impact of an act found to be otherwise in breach of s 18C, the
more difficult it will be to establish that the particular act was
reasonable.[407]

On the question of ‘good faith’, French J held that s 18D

requires a recognition that the law condemns racial vilification of the
defined kind but protects freedom of speech and expression in the areas defined
in pars (a), (b) and (c) of the section. The good faith exercise of that freedom
will, so far as practicable, seek to be faithful to the norms implicit in its
protection and to the negative obligations implied by s 18C. It will honestly
and conscientiously endeavour to have regard to and minimise the harm it will,
by definition, inflict. It will not use those freedoms as a ‘cover’
to offend, insult, humiliate or intimidate people by reason of their race or
colour or ethnic or national origin.

....

[G]ood faith may be tested both subjectively and objectively. Want of
subjective good faith, ie seeking consciously to further an ulterior purpose of
racial vilification may be sufficient to forfeit the protection of s 18D. But
good faith requires more than subjective honesty and legitimate purposes. It
requires, under the aegis of fidelity or loyalty to the relevant principles in
the Act, a conscientious approach to the task of honouring the values asserted
by the Act. This may be assessed
objectively.[408]

His Honour continued:

Generally speaking the absence of subjective good faith, eg dishonesty or the
knowing pursuit of an improper purpose, should be sufficient to establish want
of good faith for most purposes. But it may not be necessary where objective
good faith, in the sense of a conscientious approach to the relevant obligation,
is required. In my opinion, having regard to the public mischief to which s 18C
is directed, both subjective and objective good faith is required by s 18D in
the doing of the free speech and expression activities protected by that
section.[409]

Lee J adopted a similar approach:

The question whether publication was an act done in good faith must be
assessed, in part, by having regard to the subjective purpose of the publisher
but overall it is an objective determination as to whether the act may be said
to have been done in good faith, having due regard to the degree of harm likely
to be caused and to the extent to which the act may be destructive of the object
of the Act.[410]

....

Having regard to the context provided by the Act, the requirement to act in
good faith imposes a duty on a person who does an act because of race, an act
reasonably likely to inflict the harm referred to in s 18C, to show that
before so acting that person considered the likelihood of the occurrence of that
harm and the degree of harm reasonably likely to result. In short the risk of
harm from the act of publication must be shown to have been balanced by other
considerations. The words “in good faith” as used in s 18D
import a requirement that the person doing the act exercise prudence, caution
and diligence, which, in the context of the Act would mean due care to avoid or
minimize consequences identified by
s 18C.[411]

In Kelly-Country, Brown FM acknowledged that
‘reasonableness’ has ‘an overall objective flavour’
while ‘good faith’ is ‘more
subjective’.[412] His Honour
found that the respondent’s comedy performance (see 3.4.4 above) was done ‘in good faith’.
His Honour accepted the evidence of the respondent that he ‘personally
does not intend to hold Aboriginal people up as objects of mockery or
contempt’ and means ‘no particular spite towards Aboriginal people
and, indeed, many people of indigenous background have enjoyed his
performance[413].413

In Jeremy Jones v The Bible Believers’
Church[414] the Court
rejected the respondent’s submission that material published on the
internet denying the existence of the Holocaust had been published in good
faith, noting that the deliberate use of provocative and inflammatory language
together with a careless disregard for the effect of such language upon the
people likely to be hurt by it was a clear indication of a lack of good faith on
the respondent’s behalf. Conti J cited with approval the statement by
French J in Bropho v Human Rights & Equal Opportunity Commission that
the expression ‘reasonably and in good faith’ required a subjective
and objective test.[415]

(ii) Context
and artistic works

The nature of the artistic work and the context of the impugned act within it
may also be relevant to an assessment of its reasonableness.

In Bryl v
Nowra,[416] Commissioner Johnston stated that in drawing a line between what is
reasonable, and what is not, when publishing and performing a play, a judge
‘should exercise a margin of tolerance and not find the threshold of what
is unreasonable conduct too readily
crossed.’[417] The conflict
between artistic license, as a form of freedom of expression, and political
censorship requires that a judge take

a fairly tolerant view in determining what is reasonable or not. Topics like
the Holocaust can be the subject of comedy, as in the film ‘Life is
Beautiful’, even if offensive to some Jewish survivors of concentration
camps who see it as trivialising the horror of that situation. In many instances
marked differences of opinion may be engendered, as in the case of the painting
by Andres Serrano ‘Piss Christ’ (as to which see Pell v Council
of Trustees of the National Gallery of Victoria [1997] 2 VR
391).[418]

Moral and ethical considerations, expressive of community standards, are
relevant in determining what is
reasonable.[419]

In Bropho, French J similarly noted that the context in which an act
is performed will be relevant in determining its reasonableness, offering the
following example:

The publication of a genuine scientific paper on the topic of genetic
differences between particular human populations might, for one reason or
another, be insulting or offensive to a group of people. Its discussion at a
scientific conference would no doubt be reasonable. Its presentation to a
meeting convened by a racist organisation and its use to support a view that a
particular group of persons is morally or otherwise ‘inferior’ to
another by reason of their race or ethnicity, may not be a thing reasonably done
in relation to par (b) of s
18D.[420]

Also relevant to questions of context, Lee J considered whether or not the
publication of a range of views could effectively counter-balance the
publication of an offensive view. His Honour stated:

Contemporaneous, or prior, publication of anodyne material would not, in
itself, make an act of publication done because of race and involving racially
offensive material, an act done reasonably and in good faith. A publisher of a
catholic range of opinions could not rely upon past publication of diverse
material to show that it acted reasonably and in good faith by publishing,
because of race, a work or material that is offensive, insulting, humiliating or
intimidating to persons of that race, if it acts without regard to whether the
act of publication would cause the harm the Act seeks to prevent, and does not
attempt to show how the risk of harm from the otherwise prohibited act, was
counterbalanced, or outweighed, by matters showing the act to have been done
reasonably and in good
faith.[421]

In Kelly-Country, Brown FM considered the application of the exemption
in s 18D to the comedy performance of the non-Aboriginal respondent, in which he
portrayed an apparently Aboriginal character ‘King Billy Cokebottle’
(see 3.4.4 above) and stated:

In the particular context of this case, I bear in mind that Mr Beers was
appearing as the character of King Billy Cokebottle, who in many ways is a
grotesque caricature. As such, the character has more licence than a politician
or social commentator to express views. In the context of a stand-up comedy
performance, the offence implicit in much of Mr Beers’ material does not
appear to me to be out of proportion. I do not believe that there is a high
degree of gratuitous insult, given that the comedic convention of stand-up is to
give offence or make jokes at the expense of some member or members of the
community. In this regard, the character does not use slang terms, which are
likely to give particular offence to any particular ethnic or racial group. In
my view, Mr Beers keeps his performance within the constraints and conventions
of stand-up comedy and when viewed objectively, it is
reasonable.[422]

(d) Section 18D(a): artistic
works

French J in Bropho considered the coverage of the
term ‘artistic work’ in s 18D(a). It was accepted in that case that
a cartoon was an ‘artistic work’. His Honour noted that the
Commissioner who had first heard the matter ‘appeared to accept... that
the term did not require a distinction to be made between “real” and
“pseudo” artistic
works’[423] and went on to
note that the term ‘does seem to be used
broadly’.[424] His Honour
further stated that ‘[i]t must be accepted that artistic works cover an
infinite variety of expressions of human
creativity’.[425]

In Kelly-Country, Brown FM had no doubt that a comedy performance fell
within the term ‘artistic works’, noting that the explanatory
memorandum makes specific reference to ‘comedy
acts’.[426]

(e) Section
18D(b): Statement, publication, debate or discussion made or held for any
genuine academic, artistic, scientific purpose or other genuine purpose in the
public interest

This exemption was considered in Walsh v
Hanson.[427] In that case
complaints were brought against Ms Pauline Hanson and Mr David Etteridge, of the
One Nation Party, in relation to an allegedly racist book. Commissioner Nader
dismissed the complaints, partly on the basis that the statements in the book
were not made because of the race, colour or national or ethnic origin of the
complainants, but rather because of a perception that the Aboriginal community
as a whole was being unfairly favoured by governments and courts. By way of
obiter comments, Commissioner Nader added:

If I happen to be wrong on that score, it is clear from what I have said that
section 18D would operate to exempt the respondents. I have said enough to
indicate that, being part of a genuine political debate, whether valid or not,
the statements of the respondents must be regarded as done reasonably and in
good faith for a genuine purpose in the public interest, namely in the course of
a political debate concerning the fairness of the distribution of social welfare
payments in the Australian
community.[428]

In Jeremy Jones v The Bible Believers’
Church,[429] the
applicant claimed that the respondent discriminated against Jewish people
by publishing on the Bible Believers’ Church website a denial (amongst
other things) of the existence of the Holocaust. The respondent claimed
an exemption under s18D of the RDA (‘acts done reasonably and in good
faith’) arguing that matters about which the complaints had been made
formed part of an academic or public interest discussion in relation to
‘Zionist’ policies and practices. Conti J dismissed the claim,
holding:

I have not been able to identify, much less rationalise, however, the
existence of any such discussion in the context of the present proceedings and
of the conduct complained of by the application which has led
thereto.[430]

(f) Section
18D(c): Fair and accurate reports in the public interest and fair comment on
matter of public interest where comment is a genuinely held
belief

What will constitute a ‘fair and accurate
report’ for the purposes of s 18D was considered by Kiefel J in Creek v
Cairns Post Pty Ltd.[431] Her
Honour suggested, in obiter, that defamation law was a useful guide in applying
s 18D(c):

[s 18D], by the Explanatory Memoranda, is said to balance the right to free
speech and the protection of individuals. The section has borrowed words found
in defamation law. I do not think the notion of whether something is in the
public interest is to be regarded as in any way different and here it is made
out. For a comment to be ‘fair’ in defamation law it would
need to be based upon true facts and I take that to be the meaning subscribed to
in the section. What is saved from a requirement of accuracy is the comment,
which is tested according to whether a fair-minded person could hold that view
and that it is genuinely held. Subpar (c)(i), upon which the respondent would
rely, incorporates both the concepts of fairness and accuracy. It is the latter
requirement that the photographs cannot fulfil if they are taken as a
‘report’ on the living conditions pertaining to the
applicant.[432]

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3.5 Victimisation

Section
27(2) of the RDA prohibits victimisation in the following manner;

(2) A person shall not:

(a) refuse to employ another person;

(b) dismiss, or threaten to dismiss, another person from the other

person’s employment;

(c) prejudice, or threaten to prejudice, another person in the other person’s employment; or

(d) intimidate or coerce, or impose any pecuniary or other

penalty upon, another person;

by reason that the other person:

(e) has made, or proposes to make, a complaint under this Act or
the Human Rights and Equal Opportunity Commission Act 1986;

(f) has furnished, or proposes to furnish, any information or documents to a person exercising or performing any powers or functions under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or

(g) has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986.

Penalty for an offence against subsection (2):

(a) in the case of a natural person—$2,500 or imprisonment for 3 months, or both; or

(b) in the case of a body corporate—$10,000.

A breach of s 27(2) may give rise to civil and/or criminal
proceedings.[433] Whilst s 27(2)
is contained within Part IV of the RDA that deals with offences, an aggrieved
person may bring a civil action for a breach of s 27(2) because the definition
of ‘unlawful discrimination’ in s 3 of the HREOC Act specifically
includes conduct that is an offence under s 27(2) of the RDA.

There is limited case law concerning s
27(2).[434] However, the provision
is in similar terms to s 94 of the SDA and s 42 of the DDA, discussed at 4.8 and
5.6 respectively.

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3.6 Vicarious
Liability

An employer can be held vicariously liable for the
actions of an employee or agent if during the course of their employment they
carry out an act that would be unlawful under Part
II[435] or IIA of the
RDA.[436] To avoid liability the
employer has to show that all reasonable steps have been taken to prevent the
employee or agent from doing the
act.[437]

In Gama v Qantas Airways Ltd (No
2)[438] Qantas was held
to be vicariously liable for actions of its employees in discriminating against
another employee, Mr Gama, on the basis of his race and disability. Statements
made towards Mr Gama that he looked ‘like a Bombay taxi driver’ and
walked up the stairs ‘like a monkey’ were found to amount to
unlawful racial discrimination. Qantas was found to be vicariously liable for
each of these incidents on the basis that the remarks were made by, or in the
presence of, a supervisor of Mr Gama and therefore condoned.

However, Mr Gama’s claim that Qantas was vicariously liable for the
actions of its employees in denying or limiting his access to the opportunities
for promotion was unsuccessful. While Raphael FM found there ‘was a
general culture inimical to persons’ of certain racial backgrounds, he
found there was insufficient evidence to persuade him that there were systemic
problems at Qantas or a culture in Mr Gama’s workplace leading to the
denial of his applications for
promotion.[439]

As discussed above at 3.2.2(a)(ii), the above findings of Raphael FM were
upheld on appeal to the Full Federal
Court.[440] One of Qantas’
grounds of appeal submitted that the following passage by Raphael FM misapplied
s 18A of the RDA:

I am satisfied that whilst Mr Hulskamp may not have made the ‘walk up
the stairs’ remark he was the senior employee and he condoned the making
of the remark in a way which would place liability on Qantas pursuant to s
18A.[441]

Qantas argued that this effectively treated the failure of an employer to
take reasonable steps to prevent unlawful discrimination as a separate ground of
liability of itself, rather than as a defence to liability. The Full Court
agreed in principle with Qantas’ submission, noting:

It is not prima facie unlawful to fail to take steps to prevent
discrimination. Rather, s 18A operates to excuse a respondent from liability
imposed via s 18A(1) if reasonable steps were taken to prevent its employee or
agent from doing the act which would otherwise attract that liability. On its
proper construction s 18A would not make Qantas liable for
‘condoning’ a remark made by an unidentified
person.[442]

However, the Court went on to note that Qantas had not relied on the defence
under s 18A(2), so Raphael FM’s comments in relation to that defence were
of no consequence to his findings on liability. The appeal ground therefore
failed.[443]

In House v Queanbeyan Community Radio
Station[444] a community radio
station was found vicariously liable for the racially discriminatory action of
its board members in refusing the membership applications of two Aboriginal
women.

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[1] For a comprehensive overview of
the introduction of the RDA see Race Discrimination Commissioner, Racial
Discrimination Act 1975: A Review, (1995).

[2] Opened for signature 21
December 1965, 660 UNTS 195 (entered into force generally 4 January 1969 and in
Australia 30 September 1975). ICERD also creates the United Nations Committee on
the Elimination of All Forms of Racial Discrimination (CERD Committee), an
international body of experts responsible for monitoring state party
implementation of ICERD through the examination of States reports and/or
complaints from individuals about alleged violations. The work of the CERD
Committee is available at <http://www2.ohchr.org/english/bodies/cerd/>.

[3] The courts have held that where a statute, such as the RDA, gives effect to an
international treaty (in this case, ICERD) the statute is to be construed in
accordance with the corresponding words in the treaty: Koowarta v
Bjelke-Peterson (1982) 153 CLR 168, 264-265 (Brennan J). See further 6.17.

[4] For example, ss 5-7A of the
SDA; ss 5-9 of the DDA; ss 14-15 of the
ADA.

[5] For example, pt II of the
SDA; pt 2 of the DDA; pt 4 of the
ADA.

[6] See pt II, div 4, SDA; pt
2, div 5 DDA; pt 4, div 5 ADA.

[7] See s 44 of the SDA; s 55 of the DDA; s 44 of the
ADA.

[8] See ss 8(1) (special
measures); 8(2) (instrument conferring charitable benefits); 9(3) and 15(4)
(employment on a ship or aircraft if engaged outside Australia); 12(3) and 15(5)
(accommodation and employment in private dwelling house or
flat).

[9] Note that the RDA has
been held not to have extra-territorial operation: Brannigan v
Commonwealth (2000) 110 FCR
566.

[10] Section
11.

[11] Section
12.

[12] Section
13.

[13] Section
14.

[14] Section
15.

[15] Section 9(4).

[16] Gerhardy v
Brown (1985) 159 CLR 70, 85 (Gibbs
CJ).

[17] See, for example, Carr v Boree Aboriginal Corporation [2003] FMCA 408.

[18] Section 10 implements the
obligation imposed by article 5 of ICERD to ‘guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin,
to equality before the
law’.

[19] Mabo v
Queensland (1988) 166 CLR 186, 230 (Deane J).

[20] See s
9(1).

[21] See ss
11-15.

[22] Bropho v Western
Australia [2008] FCAFC 100. HREOC was granted leave to appear as intervener
and its submissions are available at <http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html>.
See further 3.3.2(a)(iii), 3.2.4(a) and 3.3.2 below.

[23] [2008] FCAFC 100,
[73].

[24] Sahak v Minister
for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35]
(Goldberg and Hely JJ).

[25] (1988) 166 CLR 186.

[26] Mabo
v Queensland (1988) 166 CLR 186, 218 (Brennan, Toohey and Gaudron JJ); see
also 231 (Deane J); Bropho v Western Australia [2008] FCAFC 100, [61],
[70].

[27] [2008] FCAFC 100,
[83]; see generally
[80]-[83].

[28] [2008] FCAFC 100,
[82]. See further discussion at 3.2.4(a) below.

[29] The Court noted that
the ‘overwhelming evidence’ of a number of inquiries into the
circumstances of the community was that ‘sexual and other forms of
violence were pervasive’: ibid
[82].

[30] ‘Person’
includes ‘a body politic or corporate as well as an individual’: Acts Interpretation Act 1901 (Cth) s
22(1)(a).

[31] This includes
action taken by a person to implement a Commonwealth, State or Territory law
where that person has discretion about whether to implement the law in a
discriminatory or non-discriminatory manner. However, s 10 would appear to
apply to a discriminatory action taken by a person which is required by a
Commonwealth, State or Territory law. See Gerhardy v Brown (1985) 159 CLR
70, 92 (Mason J), 81 (Gibbs CJ); Aboriginal Legal Rights Movement v South
Australia (1995) 64 SASR 558, [12] (Doyle CJ); Western Australia v Ward (2002) 213 CLR 1, 97-98 (Gleeson CJ, Gaudron, Gummow and Hayne JJ). HREOC
was granted leave to intervene in Western Australia v Ward (2002) 213 CLR
1 and its submissions are available at
<http://www.humanrights.gov.au/legal/submissions_court/guidelines/submis…;.

[32] See Gerhardy v Brown (1985) 159 CLR 70, 81 (Gibbs CJ), 92-93 (Mason J) and 119 (Brennan J); Mabo v
Queensland (1988) 166 CLR 186, 198 (Mason CJ), 204 (Wilson J), 216 (Brennan,
Toohey and Gaudron JJ) and 242 (Dawson J); Western Australia v Ward (2002) 213 CLR 1, 98 [103] and 107 [126] (Gleeson CJ, Gaudron, Gummow and Hayne
JJ); Bropho v Western Australia [2008] FCAFC 100,
[73].

[33] Sahak v Minister
for Immigration & Multicultural Affairs (2002) 123 FCR 514, 523 [35]
(Goldberg and Hely JJ); Bropho v Western Australia [2008] FCAFC 100,
[64[, [73].

[34] Gerhardy v
Brown (1985) 159 CLR, 81 (Gibbs CJ), 92-93 (Mason J), 120 (Brennan J); Mabo v Queensland (1988) 166 CLR 186, 197 (Mason CJ), 203 (Wilson J) and
216 (Brennan, Toohey and Gaudron JJ); Western Australia v Ward (2002) 213
CLR 1, 97-98 [102] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Bropho v
Western Australia [2008] FCAFC 100,
[70].

[35] Human Rights and
Equal Opportunity Commission Act 1986 (Cth) (‘HREOC Act’) s 46P.
HREOC’s complaint handling regime is the exclusive means by which a person
can obtain a remedy for alleged direct or indirect discrimination in breach of s
9. The courts therefore cannot grant remedies for a breach of s 9 unless a
complaint has first been made to HREOC: Re East; Ex parte Nguyen (1998)
196 CLR 354, 365 [26] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan
JJ); Bropho v Western Australia [2004] FCA 1209, [52]. See further 6.5
below.

[36] HREOC Act s
46PH.

[37] HREOC Act s
46PO.

[38] [2004] FCA
1209.

[39] See further 6.5 below.

[40] As occurred in the context
of the SDA in Pearce v South Australian Health Commission (1996)
66 SASR 486.

[41] As occurred in
the context of the SDA in McBain v Victoria (2000) 99 FCR 116.

[42] Obieta v NSW Department
of Education & Training [2007] FCA 86,
[232].

[43] Section
26.

[44] Section
27(1).

[45] Section
27(2).

[46] (1985) 159 CLR
70.

[47] (1985) 159 CLR 70, 98.
See also Western Australia v Ward (2002) 213 CLR 1, 99-100 [106] (Gleeson
CJ, Gaudron, Gummow and Hayne
JJ).

[48] Section 109 of the Constitution provides: ‘When a law of a State is inconsistent with
a law of the Commonwealth, the latter shall prevail, and the former shall, to
the extent of the inconsistency, be
invalid’.

[49] See, for
example, Mabo v Queensland (1988) 166 CLR 186, 198 (Mason CJ), 204
(Wilson J), 216 (Brennan, Toohey and Gaudron JJ) and 242 (Dawson J); Western
Australia v Ward (2002) 213 CLR 1, 98 [103] and 107 [126] (Gleeson CJ,
Gaudron, Gummow and Hayne JJ).

[50] This arises from the
wording of s 109 of the Constitution which does not place any temporal
limitations on the consideration of the relevant inconsistency. See, for
example, Ward v Western Australia (2002) 213 CLR 1, 209 [468, [point 6]]
(Gleeson CJ, Gaudron, Gummow and Hayne
JJ).

[51] (1985) 159 CLR 70,
98-99; Western Australia v Ward (2002) 213 CLR 1, 100 [107] (Gleeson CJ,
Gaudron, Gummow and Hayne
JJ).

[52] Western Australia v
Ward (2002) 213 CLR 1, 108 [129] (Gleeson CJ, Gaudron, Gummow and Hayne JJ).

[53] See generally D Pearce and
R Geddes, Statutory Interpretation in Australia, (6th ed,
2006) [7.9]-[7.13].

[54] Pareroultja v Tickner (1993) 42 FCR 32,
42.

[55] See, for example, Macabenta v Minister for Immigration & Multicultural Affairs (1998)
90 FCR 202, 209-213 and Sahak v Minister for Immigration &
Multicultural Affairs (2005) 123 FCR 514, 522-526 [31]-[55] (Goldberg and
Hely JJ).

[56] (2004) 211 ALR
412.

[57] (2005) 147 FCR 299.

[58] (2005) 147 FCR 299, 352
[198].

[59] (2005) 147 FCR 299,
352 [199].

[60] (1985) 159 CLR
70, 92-93. See also 121 (Brennan J); 146 (Deane
J).

[61] (1983) 153 CLR
280.

[62] Racial
Discrimination Amendment Act 1983 (Cth). Similar provisions exist in the SDA
(ss 10(3), 11(3)), the DDA (s 13(3)) and the ADA (s
12(3)).

[63] (1984) 158 CLR
447.

[64] (1984) 158 CLR 447,
455-458 (Gibbs CJ), 460-463 (Murphy J), 478 (Deane J), 475 (Brennan J).

[65] Section 6A(2). Provisions
to this effect are also found in the SDA (ss 10(4), 11(4)), the DDA (s 13(4)),
and the ADA (s 12(4)).

[66] (1982) 153 CLR 168.

[67] (1982)
153 CLR 168, 211-221 (Stephen J), 222-235 (Mason J), 237-242
(Murphy J), 253-261 (Brennan J).

[68] (1982) 153 CLR 168, 210-211
(Stephen J), 186-187 (Gibbs CJ), 245 (Wilson J), 261-262 (Brennan J).
The scope of the ‘race power’ in s 51(xxvi) of the Constitution was considered by the High Court in Kartinyeri v Commonwealth (1998) 195 CLR 337.

[69] Unreported, HREOC, Commissioner Cavanough QC, 21 September 2000 (extract at
(2000) EOC 93-109).

[70] (1997)
189 CLR 520.

[71] (1997) 189 CLR
579.

[72] Unreported, HREOC,
Commissioner Cavanough QC, 21 September 2000, 12-14 (extract at (2000) EOC
93-109).

[73] (2003) 129 FCR 515.

[74] (2003) 129 FCR 515, 524-525
[17]-[21] (Carr J), 528 [50] (Kiefel J), 534- 551[83]-[144] (Allsop
J).

[75] The grounds of unlawful
discrimination in the sections of the RDA that prohibit discrimination in
specific areas of public life, are ‘race, colour or national or ethnic
origin’, omitting the ground of ‘descent’: see ss 10, 11, 12,
13, 14, 15 and 18C.

[76] Ealing London Borough Council v Race Relations Board [1972] AC 342, 362
(Lord Simon).

[77] [1979] 2 NZLR
531.

[78] [1979] 2 NZLR 531, 542
(Richardson J).

[79] (2001) 163
FLR 203.

[80] (2001) 163 FLR 203,
209 [21].

[81] [2003] FMCA
408.

[82] [2003] FMCA 408, [9].
The decision does not disclose what the race of the applicant is, other than
being ‘non-Aboriginal’.

[83] [2003] FMCA 408, [14].
Note, however the discussion at 3.4.3 below of the decision in McLeod v Power (2003) 173 FLR 31 in the context
of the racial hatred provisions in which Brown FM stated that the term
‘white’ did not itself encompass a specific race or national or
ethnic group, being too wide a term, 43 [55]. His Honour did, however, find that
the word ‘white’ was used in that case because of the ‘race,
colour or national or ethnic origins’ of the applicant, 44
[62].

[84] Note, however, that
complaints about religious discrimination in employment may be made to HREOC
under the ILO 111 discrimination provisions of the HREOC Act, although this does
not give rise to enforceable remedies: see 1.2.2. HREOC has recommended that a
federal law be introduced making unlawful discrimination on the ground of
religion or belief and vilification on the ground of religion or belief: Human
Rights and Equal Opportunity Commission, Isma – Listen: National
consultations on eliminating prejudice against Arab and Muslim Australians (2004), 129.

[85] [1979] 2 NZLR
531, 543.

[86] [1983] 2 AC
548.

[87] [1983] 2 AC 548,
562.

[88] [2002] FCAFC
156.

[89] [2002] FCAFC 156, [14].
See also Jones v Scully (2002) 120 FCR 243, 271-273 [110]-[113], Jones
v Toben [2002] FCA 1150, [101], Jeremy Jones v Bible Believers
Church [2007] FCA 55, [21] and Silberberg v Builders Collective of
Australia Inc [2007] FCA 1512, [22] where it was also found, in the context
of complaints of racial hatred under Part IIA of the RDA, that Jews in Australia
are a group of people with a common ‘ethnic origin’ for the purposes
of the RDA.

[90] [2002] FCAFC
156, [13].

[91] Explanatory
Memorandum, Racial Hatred Bill 1994 (Cth),
2-3.

[92] See, for example, the
UK decisions of Tariq v Young (Unreported, Employment Appeals Tribunal,
24773/88) and Nyazi v Rymans Ltd (Unreported, Employment Appeals
Tribunal, 6/88). See also a discussion of the term ‘ethno-religious’
(a ground of discrimination in the Anti-Discrimination Act 1977 (NSW))
and the Muslim faith in Khan v Commissioner, Department of Corrective
Services [2002] NSWADT 131.

[93] (1996) 68 FCR
46.

[94] (1996) 68 FCR 46, 75.
Note that Black CJ and Heerey J did not specifically consider the meaning of
‘national
origin’.

[95] [1972] AC
342.

[96] [1972] AC 342, 365
(Lord Cross), cited in Australian Medical Council v Wilson (1996) 68 FCR
46, 75.

[97] (1996) 68 FCR 46,
75.

[98] (1998) 90 FCR
202.

[99] (1998) 90 FCR 202,
210-211. See also Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455.

[100] (1998) 90 FCR 202, 209-210. A similar approach was taken to the word
‘colour’ in s 18C of the RDA by Brown FM in McLeod v Power (2003) 173 FLR 31, 43 [56], although his Honour did not mention the decision
in Macabenta v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 202: ‘The meaning of the word “colour” in
section 18C is to be derived from its statutory context: Project Blue Sky v
ABA (1998) 194 CLR 355, 368, 381. In my view it is to be interpreted in the
context of the words that surround it in section 18C and the whole of the RDA
itself’.

[101] (1998) 90
FCR 202, 209-211.

[102] (1999)
94 FCR 341.

[103] (1999) 94 FCR
341, 352 [34].

[104] (1999) 94
FCR 341, 352 [35].

[105] [1998] FCA 95.

[106] (1999)
94 FCR 341, [18].

[107] De
Silva v Minister for Immigration (1998) 89 FCR
502.

[108] [2003] FMCA
16.

[109] [2003] FMCA 16,
[13]-[14]. It is noted that complaints about discrimination in employment on the
basis of nationality may be made to HREOC under the ILO 111 discrimination
provisions of the HREOC Act, although this does not give rise to enforceable
remedies: see 1.2.2.

[110] (2005) 194 FLR 156.

[111] (2005) 194 FLR 156, 174 [52].

[112] Article 1(1) of ICERD
provides: ‘In this Convention, the term ‘racial
discrimination’ shall mean any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin which
has the purpose or effect of nullifying or impairing the recognition, enjoyment
or exercise, on an equal footing, of human rights and fundamental freedoms in
the political, economic, social, cultural or any other field of public
life’.

[113] ‘Person’ includes ‘a body politic or corporate as well as an
individual’: Acts Interpretation Act 1901 (Cth) s
22(1)(a).

[114] In the absence
of any significant judicial consideration, it seems that these terms should be
given their ordinary meaning: for example, this would appear to be the approach
of Sackville J in Australian Medical Council v Wilson (1996) 68 FCR
46.

[115] (2006) 156 FCR 451.

[116] For a discussion of this
case see Jonathon Hunyor, ‘Landmark decision in Aboriginal wages
case’ (2007) 45 (1) Law Society Journal 46.

[117] Baird v Queensland
(No 1) (2005) 224 ALR
541.

[118] (2005) 224 ALR 541,
576 [142].

[119](2006) 156 FCR
451. HREOC was granted leave to intervene in the appeal. HREOC’s
submissions are available at
<http://www.humanrights.gov.au/legal/submissions_court/intervention/bair…;.

[120] (2006) 156 FCR 451, 468 [62] (emphasis in
original).

[121] (2006) 156 FCR
451, 468 [61].

[122] (2006) 156
FCR 451, 469 [63].

[123] (2006)
156 FCR 451, 471-472 [74] (Allsop
J).

[124] [2008] FCAFC 69.
HREOC was granted leave to appear as intervener in the appeal and its
submissions are available at <http://www.humanrights.gov.au/legal/submissions_court/intervention/qantas_v_gama.html>
and
<http://www.humanrights.gov.au/legal/submissions_court/intervention/gama.html>.

[125] Gama v Qantas Airways Ltd (No 2) [2006] FMCA
1767.

[126] [2008] FCAFC 69,
[73].

[127] [2008] FCAFC 69,
[76] (French and Jacobson JJ, with whom Branson J generally agreed,
[122]).

[128] [2008] FCAFC 69,
[76].

[129] [2008] FCAFC 69,
[76]

[130] [2008] FCAFC 69,
[77]. For a further discussion of this element of s 9(1), see 3.2.4 below.

[131] [2008] FCAFC 69,
[78].

[132] [2008] FCAFC 69,
[78].

[133] (1998) 91 FCR
8.

[134] (1998) 91 FCR 8,
29.

[135] (1998) 91 FCR 8,
24-41.

[136] (1998) 91 FCR 8,
33.

[137] (1998) 91 FCR 8, 33.
The Full Federal Court on appeal indicated their agreement with Weinberg
J’s construction of s 9(1): Victoria v Macedonian Teachers’
Association of Victoria Inc (1999) 91 FCR 47. So too did Drummond J in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615.
His Honour there stated that although s 9(1) ‘does not require proof of a
subjective intention to discriminate on the grounds of race (although that would
suffice), there must be some connection between the act and considerations of
race’, [39].

[138] [2008]
FCAFC 100. HREOC was granted leave to appear as intervener and its submissions
are available at <http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html.

[139] Bropho v Western
Australia [2007] FCA
519.

[140] Bropho v Western
Australia [2008] FCAFC 100, [66].

[141] Macedonian Teachers, 29-30 cited in Bropho v Western Australia [2008] FCAFC 100, [68].

[142] Bropho v Western
Australia [2008] FCAFC 100,
[71]-[72].

[143] [2008] FCAFC
100, [71].

[144] (1998) 91 FCR
8, 39.

[145] (1996) 68 FCR
46.

[146] Australian Iron
& Steel Pty Ltd v Banovic (1989) 168 CLR 165, considering the Anti-Discrimination Act 1977 (NSW); Waters v Public Transport
Corporation (1991) 173 CLR 349, considering the Equal Opportunity Act
1984 (Vic).

[147] (1996) 68
FCR 46, 74. See also Bropho v Western Australia [2007] FCA 519 where
Nicholson J at [447] noted a breach of s 9 can be found ‘regardless of the
motive or intent of the act’. This aspect of Nicholson J’s
reasoning was cited, without demur, by the Full Federal Court on appeal: Bropho v Western Australia [2008] FCAFC 100, [67].

[148] [2008] FMCA 897.

[149] [2008] FMCA 897,
[109].

[150] [2008] FMCA 897,
[110].

[151] Note also that in
relation to the racial hatred provisions contained in the RDA, s 18C provides
that the relevant act must be done ‘because of’ race or other
grounds: see 3.4.4 below.

[152] (2003) 217 CLR 92.

[153] See 5.2.2(a)(i) of the
DDA chapter.

[154] (2003) 217
CLR 92, 102 [14] (Gleeson CJ), 144 [166] (McHugh and Kirby JJ), 136 [236]
(Gummow, Hayne and Heydon JJ). It remains to be seen whether the distinction
drawn by Weinberg J between the expression ‘based on’ and the other
formulations appearing in the RDA, SDA and DDA (see 3.2.2(a)(iii)) will be
significant in future
cases.

[155] [2005] FMCA
2.

[156] [2005] FMCA 2,
[4].

[157] [2005] FMCA 2,
[183].

[158] See Batzialas v
Tony Davies Motors Pty Ltd [2002] FMCA 243; Chau v Oreanda Pty Ltd [2001] FMCA 114; Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767; Qantas Airways Ltd v Gama [2008] FCAFC
69.

[159] [1993] HREOCA 21
(extract at EOC 92-545). See also Jonathon Hunyor, ‘Skin-deep: Proof and
Inferences in Racial Discrimination in Employment’ (2003) 25 Sydney Law
Review 537.

[160] [1993]
HREOCA 21 4.

[161] [2001] FCA
1699.

[162] [2001] FCA
1699.

[163] [2001] FCA 1699,
[60].

[164] Sharma v Legal
Aid Queensland [2002] FCAFC
196.

[165] [2002] FCAFC 196,
[40].

[166] [2001] FMCA 25. See
also Oberoi v Human Rights & Equal Opportunity Commission [2001] FMCA
34, [23]; Maghiar v Western Australia [2001] FMCA 98, [15] and on appeal Maghiar v Western Australia [2002] FCA 262,
[24]-[25].

[167] [2001] FMCA
25, [52].

[168] [2001] FMCA 25,
[52]-[59].

[169] [2005] FMCA
250.

[170] [2005] FMCA 250,
[22]-[23].

[171] [2006] FMCA
1767. For a discussion of this decision, see Christine Fougere, ‘Vicarious
liability for race and disability discrimination in the workplace’, (2007)
45(3) Law Society Journal 37.

[172] [2006] FMCA 1767,
[97].

[173] [2006] FMCA 1767,
[97].

[174] Qantas Airways
Ltd v Gama [2008] FCAFC 69. HREOC was granted leave to appear as intervener
in the appeal and its submissions are available at <http://www.humanrights.gov.au/legal/submissions_court/intervention/qantas_v_gama.html>
and
<http://www.humanrights.gov.au/legal/submissions_court/intervention/gama.html>.

[175] Qantas Airways Ltd v Gama [2008] FCAFC 69, [49].

[176] [2008] FCAFC 69, [113]
(French and Jacobson JJ, with whom Branson J generally agreed,
[122]).

[177] [2008] FCAFC 69,
[64].

[178] By the Law and
Justice Legislation Amendment Act 1990 (Cth) which came into effect on 22
December 1990.

[179] See 4.3
and 5.2.3 respectively.

[180] Australian Medical Council v Wilson (1996) 68 FCR 46, 62 (Heerey J with
whom Black CJ agreed on this issue, 47), 79 (Sackville
J).

[181] See Race
Discrimination Commissioner, Racial Discrimination Act 1975: A Review:
Community Consultation Guide (1995),
61.

[182] (1996) 68 FCR
46.

[183] (1996) 68 FCR 46, 55.
Black CJ agreed with his Honour’s reasoning in this regard, 47. Sackville
J expressed the same view, 74.

[184] See, in the context of
the DDA, Minns v New South Wales [2002] FMCA 60, [245]; Hollingdale v
Northern Rivers Area Health Service [2004] FMCA 721, [19]. See also
discussion at 6.8.

[185] Note,
however, that in Bropho v Western Australia [2007] FCA 519, Nicholson J
held that indirect discrimination has no application to s 12(1)(d) (ibid [468]).
The decision of the Full Federal Court on appeal did not express a view on the
correctness or otherwise of this aspect of Nicholson J’s reasoning: see Bropho v Western Australia [2008] FCAFC 100, [38]. HREOC appeared as
intervener in this case and submitted that s 12(1)(d) prohibited both direct and
indirect discrimination. HREOC’s submissions are available at <http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html>.

[186] The term ‘requirement’ will be used as shorthand for the expression
‘term, condition or
requirement’.

[187] Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 168.
Similarly, in the context of the DDA, see Waters v Public Transport
Corporation (1991) 173 CLR 349, 393 (Dawson and Toohey JJ), 406-407 (McHugh
J); Daghlian v Australian Postal Corporation [2003] FCA 759,
[110].

[188] See Waters v
Public Transport Corporation (1991) 173 CLR 349, 360 (Mason CJ and Gaudron
J), 407 (McHugh J).

[189] (1991) 173 CLR 349, 363-364 (Mason and Gaudron JJ), 378 (Brennan J), 395 (Dawson
and Toohey JJ).

[190] (1991)
173 CLR 349, 378 (Brennan
J).

[191] (1991) 173 CLR 349,
395 (Dawson and Toohey JJ); Secretary, Department of Foreign Affairs &
Trade v Styles (1989) 23 FCR 251, 263-264 (Bowen CJ and Gummow J).

[192] (1991) 173 CLR 349, 410
(McHugh J).

[193] (1991) 173
CLR 349, 395 (Dawson and Toohey JJ). See also Daghlian v Australian Postal
Corporation [2003] FCA 759, [111]. In the context of the DDA, the Full
Federal Court has provided a confirmation and summary of the principles to be
applied to assessing ‘reasonableness’ which is likely to be relevant
in the context of the RDA: see Catholic Education Office v Clarke (2004)
138 FCR 121, 145 [115] (Sackville and Stone
JJ).

[194] Dr Siddiqui’s
complaint of direct discrimination was dismissed by HREOC on the basis
that the relevant distinction drawn by the AMC was not based on race, but rather
whether or not a person trained in an accredited medical school. See Siddiqui v Australian Medical Council (1995) EOC 92-730.

[195] Siddiqui v
Australian Medical Council (1995) EOC
92-730.

[196] (1996) 68 FCR 46,
62.

[197] (1996) 68 FCR 46,
62.

[198] (1996) 68 FCR 46, 60
(Heerey J, with whom Black CJ generally agreed, 47, and with whom Sackville J
agreed on the issue of reasonableness,
79).

[199] (1989) 23 FCR
251.

[200] (1989) 23 FCR 251,
263.

[201] (1996) 68 FCR 46,
60.

[202] (1996) 68 FCR 46, 61.

[203] (1996) 68 FCR 46, 62
(Heerey J, with whom Black CJ generally agreed, 47, and with whom Sackville J
agreed on the issue of reasonableness,
79).

[204] (1997) 80 FCR
78.

[205] (1997) 80 FCR 78,
113.

[206] (1997) 80 FCR 78,
112.

[207] (1992) EOC
92-415.

[208] (1992) EOC
92-415, 78,968. See also discussion by Drummond J in Ebber v Human Rights
& Equal Opportunity Commission (1995) 129 ALR
455.

[209] (2005) 194 FLR
156.

[210] (2005) 194 FLR 156,
169-170 [41]-[42].

[211] (1996)
68 FCR 46, 80 (see also Heerey J, 62, with whom Black CJ agreed,
47).

[212] [1983] 2 AC
548.

[213] [1983] 2 AC 548,
565.

[214] (1996) 68 FCR 46,
80. A similar approach has been taken in the context of the DDA: see, for
example, Travers v New South Wales (2001) 163 FLR 99, 103 [17]; Clarke v Catholic Education Office (2003) 202 ALR 340, 352-353
[49].

[215] (2005) 194 FLR
156.

[216] See 3.2.1(c).

[217] (2005) 194 FLR 156, 175
[56]-[57].

[218] See 3.1.1(b) and 3.1.3 for a discussion of the
application of s 10.

[219] See
ss 9(2) and 10(2).

[220] Gerhardy v Brown (1985) 159 CLR 70, 85 (Gibbs CJ), 101 (Mason J) and 126
(Brennan J); Secretary, Department of Veterans’ Affairs v P (1998)
79 FCR 594, 596 (Drummond J). The CERD Committee has also indicated that the
list of rights set out in article 5 should not be taken by States as being an
exhaustive list: General Recommendation XX (Article 5), UN Doc
HRI/GEN/1/Rev.5, 188-189 [1] available at
<http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/8b3ad72f8e98a34c8025651e004c8…;.

[221] (1985) 159 CLR
70.

[222] (1985) 159 CLR
70, 101-102.

[223] (1985) 159 CLR
70, 125-126.

[224] (1988) 166 CLR
186.

[225] (1988) 166 CLR
186, 229. See also 217 (Brennan, Toohey, Gaudron JJ): ‘right’ is
not necessarily a legal right enforceable at municipal law.

[226] (1998) 79 FCR
594.

[227] (1998) 79 FCR 594,
599-600. In Ebber v Human Rights & Equal Opportunity Commission (1995) 129 ALR 455, to which his Honour refers, Drummond J held that the
applicants’ claim that their German educational qualifications (in
architecture) should be accepted as sufficient for the purposes of registration
under Queensland law was not of itself a claim to a human right or fundamental
freedom of the type protected by ss 9 and
10.

[228] (1998) 79 FCR 594,
600.

[229] (1998) 79 FCR 594,
601.

[230] (1998) 154 ALR
591.

[231] (1998) 154 ALR 591,
600.

[232] (1996) 68 FCR
46.

[233] (1996) 68 FCR 46,
59-60, citing Jamorksi v Attorney-General (Ontario) (1988) 49 DLR
(4th) 426.

[234] [2000] FCA 1615.

[235] (1995)
129 ALR 455.

[236] [2000] FCA
1615, [38]. Drummond J’s approach was upheld on appeal: Hagan v
Trustees of the Toowoomba Sports Ground Trust (2000) 105 FCR 56, 61 [28].
Note that following the refusal of special leave to appeal to the High Court
(Hagan v Trustees of the Toowoomba Sports Ground Trust B17/2001 (19 March
2002)) the applicant lodged a communication with the United Nations Committee on
the Elimination of Racial Discrimination (Hagan v Australia,
Communication No. 26/2002: Australia 14/04/2003. CERD/C/62/D/26/2002) which
found a violation of certain articles of
ICERD.

[237] [2000] FCA 1615,
[42].

[238] (2005) 194 FLR
156.

[239] [2008] FCAFC 100
(Ryan, Moore and Tamberlin JJ); [2007] FCA 519 (Nicholson J).

[240] Bropho v Western
Australia [2007] FCA 519,
[378].

[241] [2008] FCAFC 100,
[78]. HREOC, appeared as intervener in this case and made submissions on this
issue: see <http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html>.

[242] [2008] FCAFC 100, [79].

[243] [2008] FCAFC 100, [83].

[244] [2008] FCAFC 100, [82].

[245] (1996) 68 FCR 46, 63.

[246] (1996) 68 FCR 46, 47.

[247] (1996) 68 FCR 46, 80-82.

[248] (1996) 68 FCR 46, 63. His Honour stated that the ‘two groups compared have
to be subject to the same term, condition or
requirement’.

[249] Note
that the terms of s 9(1A) of the RDA differ to the terms of other
anti-discrimination legislation which require a comparison of the ability of
different groups to comply with the relevant requirement or condition: see for
example s 6 of the DDA.

[250] (1996) 68 FCR 46, 81.

[251] (1996) 68 FCR 46, 82-83 (Sackville J), 48 (Black
CJ).

[252] See ss 8(1) (special
measures); 8(2) (instrument conferring charitable benefits); 9(3) and 15(4)
(employment on a ship or aircraft if engaged outside Australia); 12(3) and 15(5)
(accommodation and employment in private dwelling house or
flat).

[253] See pt II, div 4,
SDA; pt 2, div 5 DDA; pt 4, div 4
ADA.

[254] See s 44 of the SDA;
s 55 of the DDA; s 44 of the
ADA.

[255] Article 2(2) of
ICERD provides: States Parties shall, when the circumstances so warrant, take,
in the social, economic, cultural and other fields, special and concrete
measures to ensure the adequate development and protection of certain racial
groups or individuals belonging to them, for the purpose of guaranteeing them
the full and equal enjoyment of human rights and fundamental freedoms. These
measures shall in no case entail as a consequence the maintenance of unequal or
separate rights for different racial groups after the objectives for which they
were taken have been achieved.

[256] (1985) 159 CLR
70.

[257] (1985) 159 CLR 70,
133.

[258] (1985) 159 CLR 70,
135.

[259] See, for example, Wilson
J at 113 who refers to the consultation with the beneficiaries of the
measure.

[260] Subsequent cases
have also considered whether legislation that provides for the recognition of
land rights or native title amounts to a special measure within s 8(1). See, for
example, Pareroultja v Tickner (1993) 42 FCR 32; Western Australia v
Commonwealth (1995) 183 CLR
373.

[261] [2002] FMCA
29.

[262] [2002] FMCA 29,
[51].

[263] [2002] FMCA 29
[54].

[264] (2005) 147 FCR 299.

[265] (2005) 147 FCR 299, 354
[208]-[209].

[266] [2007] FCA
519.

[267] [2007] FCA 519,
[579]-[580].

[268] This is in
contrast to Nicholson J’s approach to s 10 where he stated: ‘I have difficulty in being invited to make a judgment on whether the
Reserves Act was discriminatory in globo. This is for two reasons. First, both
ss 9 and 10 of the RDA apply with respect to a particular human right. Second,
as s10 applies in relation not only to the laws as a whole but also to the
provisions of the law, attention should be directed to the specific provisions
of the Reserves Act in reaching a view whether, in relation to a particular
human right, there is not any inconsistency with the RDA. There are a variety of
provisions in the Reserves Act. This is not a case where the law under scrutiny
is of such uniform effect it can be addressed globally’. [2007] FCA 519,
[312].

[269] 159 CLR 70,
133.

[270] [2007] FCA 519,
[579].

[271] [2007] FCA 519,
[570].

[272] [2007] FCA 519,
[569].

[273] Bropho v State
of Western Australia [2008] FCAFC 100. Note that the submissions of HREOC as
intervener argued that Nicholson J’s reasoning was in error on this issue:
see <http://www.humanrights.gov.au/legal/submissions_court/intervention/bella_bropho.html>

[274] [2007] FCA 519.

[275] [2007]
FCA 519, [544]-[551].

[276] This aspect of the Court’s reasoning has been the subject of academic
commentary: see Sarah Pritchard, ‘Special Measures’, in Racial
Discrimination Act 1975: A Review, Race Discrimination Commissioner, 1995;
Wojciech Sadurski, ‘Gerhardy v Brown v The Concept of Discrimination:
Reflections on the Landmark Case that Wasn’t’, (1986) 11 Sydney
Law Review 5.

[277] (1985)
159 CLR 70, 72.

[278] (1985)
159 CLR 70, 113-114 (Wilson J), 131 (Brennan
J).

[279] See, for example, Western Australia v Ward (2002) 213 CLR 1; Jango v Northern
Territory (2006) 152 FCR 150; Mabo v Queensland (1988) 166 CLR
186.

[280] [2008] FCAFC
100.

[281] [2008] FCAFC 100,
[82].

[282] [2008] FCAFC 100,
[82].

[283] [2008] FCAFC 100,
[83].

[284] [2008] FCAFC 100,
[82]-[83].

[285] Racial
Hatred Act 1995 (Cth), commenced 13 October
1995.

[286] Creek v Cairns
Post Pty Ltd (2001) 112 FCR 352, 357 [18]; Toben v Jones (2003) 129 FCR 515, 549 [137] (Allsop
J).

[287] See 3.2.1 above in relation to the interpretation of
these terms.

[288] (2002) 124
FCR 106.

[289] (2002) 124 FCR
106, 117 [46].

[290] (2001)
112 FCR 352.

[291] (2001) 112
FCR 352, 356 [13].

[292] [2002]
FCA 1150.

[293] [2002] FCA
1150, [95]-[96].

[294] (2003)
173 FLR 31.

[295] (2003) 173
FLR 31, 43 [55].

[296] (2003)
173 FLR 31, 44 [59].

[297] (2003) 173 FLR 31, 44 [62]. See, however, Carr v Boree Aboriginal
Corporation [2003] FMCA 408, in which Raphael FM found that the first
respondent had unlawfully discriminated against the applicant in her employment
and had dismissed her for reasons ‘which were to do with her race or
non-Aboriginality’, [9]. Raphael FM stated that ‘the provisions of
the RDA apply to all Australians’, [14]. See also Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA
23.

[298] (2004) 207 ALR
421.

[299] (2004) 207 ALR 421,
444 [100].

[300] See ss 11-15.
The issue of causation generally under the RDA is discussed at 3.2.2(a)(iii) and 3.2.2(b) above.

[301] [2000] FCA
1615.

[302] [2000] FCA 1615,
[16].

[303] [2000] FCA 1615,
[34].

[304] [2000] FCA 1615,
[36].

[305] (2001) 112 FCR
352.

[306] (2001) 112 FCR 352,
357 [18].

[307] (2001) 112 FCR
352, 359 [28].

[308] [2002] FCA
1150.

[309] See also Hely J in Jones v Scully (2002) 120 FCR 243, 273
[114].

[310] [2002] FCA 1150,
[99]. Her Honour’s approach was approved on appeal in Toben v Jones (2003) 129 FCR 515.

[311] [2002] FCAFC 156.

[312] [2002]
FCAFC 156, [12]-[13].

[313] (2002) 124 FCR 106.

[314] (2002) 124 FCR 106, 121
[66].

[315] (2004) 207 ALR 421.
The Acting Race Discrimination Commissioner was granted leave to appear as
amicus curiae in this matter. HREOC’s submissions are available at <http://www.humanrights.gov.au/legal/submissions_court/amicus/kelly_country.html>.

[316] (2004) 207 ALR 421, 426
[30].

[317] (2004) 207 ALR 421,
441 [85]. Note, however, that his Honour’s decision suggests that
intention is relevant to determining the meaning and offensiveness of a
particular act: 446 [111], 446
[114].

[318] (2004) 207 ALR
421, 446 [110].

[319] [2007]
FCA 1512.

[320] [2007] FCA
1512, [37].

[321] [2007] FCA
1512, [34].

[322] [2007] FCA
1512, [35].

[323] McGlade v
Lightfoot (2002) 124 FCR 106, 116-117 [43]; Hagan v Trustees of the
Toowoomba Sports Ground Trust [2000] FCA 1615; Creek v Cairns Post Pty
Ltd (2001) 112 FCR 352, 355 [12]; Jones v Scully (2002) 120 FCR 243,
268-269 [98]-[100]; Jones v Toben [2002] FCA 1150, [84]; Obieta v NSW
Department of Education and Training [2007] FCA 86 [223]; Silberberg v
Builders Collective of Australia Inc [2007] FCA 1512, [21].

[324] Jones v Scully (2002) 120 FCR 243, 269
[99].

[325] (2001) 112 FCR
352.

[326] Human Rights and
Equal Opportunity Commission, Bringing Them Home: Report of the National
Inquiry into the Separation of Aboriginal and Torres Strait Islander Children
from their Families (1997).

[327] (2001) 112
FCR 352, 356-357 [16].

[328] (2001) 112 FCR 352, 355
[12].

[329] (2001) 112 FCR 352,
356 [13].

[330] [2002] FCA
1150, [92].

[331] (2004) 135
FCR 105, 123. See also Kelly-Country v Beers (2004) 207 ALR 421, 441-442
[88].

[332] (2004) 135 FCR 105,
124 [70].

[333] McGlade v
Lightfoot (2002) 124 FCR 106, 117 [44]; Hagan v Trustees of the Toowoomba
Sports Ground Trust [2000] FCA 1615, [28]; Jones v Scully (2002) 120 FCR 243, 269
[99]-[100].

[334] [2001] FMCA
52.

[335] [2001] FMCA 52,
[55].

[336] (2003) 173 FLR
31.

[337] (2003) 173 FLR 31, 45
[65].

[338] (2001) EOC
93-146.

[339] (2003) 173 FLR
31, 46-47 [69].

[340] (2004)
207 ALR 421.

[341] (2004) 207
ALR 421, 441 [87].

[342] (2004)
207 ALR 421, 442
[90]-[92].

[343] (2004) 207 ALR
421, 446 [111].

[344] [2000]
FCA 1615.

[345] [2000] FCA
1615, [7].

[346] [2000] FCA
1615, [7]. citing Clarence Major, Dictionary of Afro-American Slang,
1970.

[347] [2000] FCA 1615,
[27]. His Honour also noted evidence from witnesses of Aboriginal descent that
neither they, nor members of the broader Toowoomba Aboriginal community, were,
in fact, offended by the use of the word in this context. Drummond J further
took into account the fact that the allegedly offensive word had been displayed
for 40 years and there had never been any objection to it prior to the relevant
complaint, [28]-[29]. As noted above, the United Nations Committee on the
Elimination of Racial Discrimination subsequently found that certain articles of
ICERD had been violated: Hagan v Australia, Communication No. 26/2002:
Australia 14/04/2003. CERD/C/62/D/26/2002,
[7.1]-[8].

[348] (2004) 207 ALR
421, 444 [99].

[349] (2004) 207
ALR 421, 446 [111]-[112]. See also his Honour’s comments as to the nature
of a comedy performance: ‘Humour to be effective must often sting and
insult. It would, in my view, be unreasonable and necessary consequence of the
Racial Discrimination Act for all humour, especially stand-up humour, to be
rendered anodyne and innocuous by virtue of the provisions of the Act’,
443 [93].

[350] [2008] FMCA
1356.

[351] Jones v Toben [2002] FCA 1150, [89]; Jones v Scully (2002) 120 FCR 243, 270
[104]; Creek v Cairns Post (2001) 112 FCR 352, 355
[6].

[352] As for the other
elements of s 18C, the onus is on the applicant to prove that the relevant act
was done ‘otherwise than in private’: see Gibbs v Wanganeen (2001) 162 FLR 333, 335
[7].

[353] Unreported, HREOC,
Commissioner Innes, 16 December 1999 (extract at (2000) EOC
93-056).

[354] Unreported,
HREOC, Commissioner Innes, 16 December 1999 (extract at (2000) EOC 93-056,
74,176)

[355] (2001) 162 FLR
333.

[356] [2000] FMCA
3.

[357] (2001) 162 FLR 333,
336 [11].

[358] (2001) 162 FLR
333, 336-337 [12].

[359] (2001)
162 FLR 333, 336-337
[12].

[360] (2001) 162 FLR 333,
337-338 [18].

[361] [1972] VR
129.

[362] (2001) 162 FLR 333,
337 [13].

[363] (2001) 162 FLR
333 337 [14].

[364] (2001) 162
FLR 333 337 [15].

[365] (2001)
162 FLR 333 337 [14].

[366] (2001) 162 FLR 333, 337
[17].

[367] (2001) 162 FLR 333,
337-338 [18]. In McLeod v Power (2003) 173 FLR 31, Brown FM cited with
approval the decision in Gibbs v Wanganeen (2001) 162 FLR 333 and
the analysis in Korczak v Commonwealth (Department of Defence) (Unreported, HREOC, Commissioner Innes, 16 December 1999 (extract at (2000)
EOC 93-056)), in drawing a distinction between the nature of an act and where it
takes place: 45 [65], 47-48 [72]-[73]. His Honour held that, depending upon the
circumstances, an act can occur in a public place but nevertheless be in a
context such that it is not ‘otherwise than in private’. In that
case, abuse delivered by the respondent in a public place (outside a prison in
an area where other visitors may have been present) was found not to be covered
by s 18C. Relevant to his Honour’s decision was the fact that the
respondent was not ‘playing to the grandstand’ and had intended the
conversation to be a private one: 47-48 [70]-[73]. Note, however, that Brown
FM’s decision on this point appears to be inconsistent with the terms of s
18C(2)(b) which provides that ‘an act is taken not to be done in private
if it ... is done in a public place’. For acts done in a public place the
intentions of the actor are arguably not
relevant.

[368] [2000] FMCA 3,
[26].

[369] Raphael FM based
this view on other cases dealing with ‘public place’ in a summary
offences context: R v James Webb [1848] 2 C & K 933 as applied in Purves v Inglis [1915] 34 NZLR 1051. In Chambers v Darley [2002]
FMCA 3, [10] Baumann FM referred approvingly to the analysis of Raphael FM.

[370] (2002) 124 FCR
106.

[371] (2002) 124 FCR 106,
[26].

[372] (2002) 124 FCR 106,
[34]. Note, however, that these views were expressed as being provisional and
subject to re-consideration at the final hearing of this matter,
[37].

[373] McGlade v
Lightfoot (2002) 124 FCR
106.

[374] McGlade v
Lightfoot (2002) 124 FCR 106, 116
[38]-[40].

[375] Hobart
Hebrew Congregation v Scully (Unreported, HREOC, Commissioner Cavanough QC,
21 September 2000 (extract at (2000) EOC
93-109)).

[376] [2002] FCA
1150.

[377] [2002] FCA 1150,
[74].

[378] [2002] FCA 1150,
[74]. Her Honour’s findings on this point were not challenged on appeal: Toben v Jones (2003) 129 FCR 515.

[379] [2002] FCA
1150.

[380] (2003) 129 FCR 515.

[381] [2007] FCA 55.  

[382] [2007] FCA
1512, [19].

[383] [2008] FMCA
1356.

[384] [2008] FMCA1356,
[29].

[385] Jones v
Scully (2002) 120 FCR 243, 276 [127]-[128]; McGlade v Lightfoot (2002) 124 FCR 106, 121 [68]-[70]; Jones v Toben [2002] FCA 1150, [101]; this point was not challenged on appeal: Toben v Jones (2003)
129 FCR 515, 528 [41] (Carr
J).

[386] (2004) 135 FCR
105.

[387] (2004) 135 FCR 105,
126-127 [75].

[388] (2004) 135
FCR 105, 127 [76].

[389] (2004)
135 FCR 105, 128 [77].

[390] (2004) 207 ALR 421.

[391] (2004) 207 ALR 421, 448-449
[125].

[392] Corunna v West
Australian Newspapers Ltd (2001) EOC
93-146.

[393] Bropho v Human
Rights & Equal Opportunity Commission [2002] FCA 1510.

[394] [2002] FCA 1510, [31].
See also the discussion of this issue in Bryl v Nowra [1999] HREOCA 11
(extract at (1999) EOC
93-022).

[395] (2004) 135 FCR
105, 125 [72].

[396] (2004) 135
FCR 105, 125 [73]. The other members of the Court, Lee and Carr JJ, did not
express any view on this
issue.

[397] See, for example,
S Akmeemana and M Jones, Fighting Racial Hatred in Racial Discrimination Act
1975: A Review (1995); Eastman, ‘Drafting Racial Vilification Laws:
Legal and Policy Issues’ (1995) Australian Journal of Human Rights 285; Solomon, ‘Problems in Drafting Legislation Against Racist
Activities’ (1995) Australian Journal of Human Rights 265.

[398] (2004) 207 ALR 421,
447 [116].

[399] Bryl v
Nowra [1999] HREOCA 11 (extract at (1999) EOC
93-022).

[400] [1999] HREOCA 11

[401] [2002] FCA
1510.

[402] [2002] FCA 1510,
[33], [36].

[403](2004) 135
FCR 105, 132-133 [96]-[102] (French J), 142 [141] (Lee J). Note that Lee J was
in dissent as to the result of the appeal. It appears, however, that his
approach to the legal issues in the case is substantially consistent with that
of French J. A similar approach was taken by the NSW Administrative Decisions
Tribunal in Western Aboriginal Legal Service v Jones (2000) NSWADT 102,
considering s 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW),
which includes the words ‘done reasonably and in good faith’. The
Tribunal held that ‘good faith’ implies a state of mind absent of
spite, ill-will or other improper motive, [122]. Note that this decision was set
aside on appeal on the basis of procedural issues relating to the identity of
the complainant: Jones v Western Aboriginal Legal Service Ltd (EOD)
[2000] NSWADTAP 28.

[404](2004)
135 FCR 105, 149 [178]. Note that special leave to appeal against the decision
of the Full Federal Court was refused by the High Court: Bropho v Human
Rights & Equal Opportunity Commission [2005] HCATrans
9.

[405] (2004) 135 FCR 105,
128 [79].

[406] [2000] NSWADT
102.

[407](2004) 135 FCR 105,
142 [141]. Similarly in Toben v Jones (2003) 129 FCR 515, Carr J held
that the appellant had not acted ‘reasonably and in good faith’ in
publishing material expressing views about the Holocaust, and stated: ‘In
the context of knowing that Australian Jewish people would be offended by the
challenge which the appellant sought to make, a reasonable person acting in good
faith would have made every effort to express the challenge and his views with
as much restraint as was consistent with the communication of those
views’: 528 [44].

[408] (2004) 135 FCR 105, 131-132 [95]-[96] (French
J).

[409] (2004) 135 FCR 105,
133 [101].

[410] (2004) 135 FCR
105, 142 [141].

[411] (2004)
135 FCR 105, 143 [144].

[412] (2004) 207 ALR 421, 450
[131].

[413] (2004) 207 ALR
421, 450 [131].

[414] [2007]
FCA 55.  

[415] [2007] FCA 55, [49] citing French J in Bropho v Human Rights & Equal
Opportunity Commission (2004) 135 FCR 105, 132-133 [96],
[102].

[416] [1999] HREOCA 11
(extract at (1999) EOC
93-022).

[417] [1999] HREOCA 11
(extract at (1999) EOC
93-022).

[418] [1999] HREOCA 11
(extract at (1999) EOC
93-022).

[419] [1999] HREOCA 11
(extract at (1999) EOC
93-022).

[420] (2004) 135 FCR
105, 128 [80].

[421] (2004) 135
FCR 105, 128 [80]. 142 [142].

[422] (2004) 207 ALR 421, 449
[127].

[423] (2004) 135 FCR
105, 114 [40].

[424] (2004) 135
FCR 105, 134 [104].

[425] (2004) 135 FCR 105, 134
[106].

[426] (2004) 207 ALR
421, 448 [121].

[427] Unreported, HREOC, Commissioner Nader, 2 March
2000.

[428] Unreported, HREOC,
Commissioner Nader, 2 March 2000,
28.

[429] [2007] FCA
55.

[430] [2007] FCA 55,
[63].

[431] (2001) 112 FCR
352.

[432] (2001) 112 FCR 352,
360 [32].

[433] See, for
example, Ellenbogen v Federated Municipal & Shire Council Employees Union
of Australia (1989) EOC
92-252.

[434] See, for example, Shaikh v Campbell & Nivona Pty Ltd [1998] HREOCA 13; L v Quall [1998] HREOCA 27; Hassan v Hume [2004] FCA
886.

[435] Section
18A(1).

[436] Section 18E(1).

[437] See ss 18A(2),
18E(2).

[438] [2006] FMCA 1767.
For further discussion of this case see Christine Fougere, ‘Vicarious
liability for race and disability discrimination in the workplace’, (2007)
45(3) Law Society Journal, 37.

[439] [2006] FMCA 1767, [97].

[440] [2008] FCAFC 69. His
Honour’s findings in relation to disability discrimination, however, were
overturned: [84]-[92]. HREOC was granted leave to appear as intervener in the
appeal. HREOC’s submissions are available at <http://www.humanrights.gov.au/legal/submissions_court/intervention/qantas_v_gama.html>
and
<http://www.humanrights.gov.au/legal/submissions_court/intervention/gama.html>.

[441] [2006] FMCA 1767, [78].

[442] [2008] FCAFC 69, [81] (French and Jacobson JJ, with whom Branson J generally
agreed, [122]).

[443] [2008]
FCAFC 69, [83].

[444] [2008]
FMCA 897.