Commission submissions: Gama

IN THE FEDERAL COURT OF AUSTRALIA

new south wales DISTRICT REGISTRY                         

No. NSD 2539/2006

On appeal from the Federal Magistrates Court

BETWEEN:

                                                                 QANTAS AIRWAYS LIMITED

Appellant

and

                                                                                WILLIAM GAMA

Respondent

SUBMISSIONS OF THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION IN REPLY TO THE SUBMISSIONS OF THE APPELLANT

Introduction

1. At [10]-[14] of its submissions, filed on 6 September 2007, the Appellant (‘Qantas’) outlines its argument that the Federal Magistrate erred in his conclusion that certain remarks constituted a breach of s.9(1) of the Racial Discrimination Act 1975 (Cth) (‘RDA’).  It submits that it not open to the Federal Magistrate ‘to find that a remark alone’ constitutes a relevant breach (at [11]).  This argument is addressed to ground (2) of the Amended Notice of Appeal. 
2. The Human Rights and Equal Opportunity Commission (‘HREOC’) had not appreciated from ground (2) that the argument outlined by Qantas was to be put in the manner now outlined.  HREOC also seeks leave to make submissions in relation to that issue (ie in addition to the four issues raised in its primary submissions).  If such leave is granted, it puts the following written submissions in reply to Qantas’ submissions. 

Overview of submission

3. In HREOC’s submission:
   
   1. The Federal Magistrate’s application of s.9(1) in respect of a racially derogatory remark in the workplace was correct (see judgment at [77]-[78]).
   2. Whilst not all remarks in the workplace based on an employee’s race impair his or her enjoyment of the right to just and favourable conditions of work, racially derogatory remarks do.
   3. A single racially derogatory remark may, of itself, breach s.9(1). The passage quoted by Qantas from De Souza v Automobile Association [1986] IRLR 103 at 107 (‘De Souza’) does not reflect Australian authorities, or the relevant statutory test in s.9(1), and should not be followed.
   4. It is not necessary to show that racist abuse was ‘sustained’ in order to impair a person’s right to just and favourable conditions of work.

The elements of s.9(1)

4. Section 9(1) of the RDA is in the following terms:
   

   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.

5. This section essentially comprises three elements:
   
   1. There was an ‘act’.
   2. That act involved a ‘distinction, exclusion, restriction or preference based on race, colour, descent or national origin’.
   3. That distinction/exclusion etc 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.’
6. As to (a), the act need only be the act of an employee – for the employer may be liable for such pursuant to s.18A, regardless of any fault on its part.  Nothing in the word ‘act’ requires plurality.  And it does not appear to be in dispute that ‘act’ encompasses speech.  As to (b), that relevantly goes to the character of what was said, and that does not appear to be in issue here with respect to the relevant remarks found by the Federal Magistrate.
7. The issue raised by Qantas goes to element (c). 

A derogatory racial remark may, of itself, breach s.9(1)

8. Relevant rights for the purpose of element (c) include the right ‘to work’, and the right to ‘just and favourable conditions of work’.  These rights are provided by Art 5(e)(i) of International Covenant on the Elimination of All Forms of Racial Discrimination (‘ICERD’) (scheduled to the RDA).1  They were the rights invoked by the Federal Magistrate at [78].
9. For current purposes it is sufficient for element (c) if the act in question had the:
   • purpose/effect
   • of impairing the enjoyment/exercise on an equal footing
   • of the right to work or to just and favourable conditions of work. 
10. In the context of the ICERD and the RDA it is appropriate to understand the reference to enjoyment of ‘just and favourable conditions of work’ as including the freedom to participate in the right to work (also referred to in Art 5(3)(i)) free from racially derogatory remarks.2 
11. The fact that racially derogatory remarks cause hurt, humiliation and distress is well documented.3 A racially derogatory remark is more than merely insulting – it is a manifestation of racism, which ‘injures the dignity and self-regard of the person to whom it is addressed’.4
12. It has been recognised that a racist remark may, of itself, breach s.9(1) of the RDA if it impairs a person’s enjoyment of the right to just and favourable conditions of work. There is no requirement that a complainant also prove that he or she suffered an additionalimpairment of rights or other form of detriment.
13. In Dealey v Australian Leisure and Hospitality Group Limited [1998] HREOCA 10, Commissioner Susan Crennan QC stated:
    

    Racist abuse in the workplace can amount to discrimination pursuant to section 9 set out above if it affects an employee's rights to just and favourable conditions.5

14. Similarly, in the passage from Surti v State of Queensland [1993] HREOCA 3, as quoted in Qantas’ submissions at [13], Commissioner Bryce accepted that a single instance of racist abuse may suffice to breach s.9(1).
15. To the extent that the passage from the English Court of Appeal decision in De Souza cited by Qantas at [14] suggests otherwise it should not be followed.6  That statement was made with respect to a different statutory scheme, it has no foundation in the Australian statutory text, and is not supported by Australian authorities.
16. In Surti, whilst acknowledging that a single remark may suffice, Commissioner Bryce also suggested that racist abuse would ‘generally’ need to be ‘sustained’ to affect an employee’s right to just and favourable conditions of work. HREOC submits that this dictum from Surti should not be adopted here.
17. Qantas seeks to contrast the specific provision made in s.18C of the RDA with respect to racial vilification (subs at [13] fn 4).  That provision is both broader and narrower than a relevant claim under s.9(1).  It is broader in that it applies generally, without being directed to impairment (etc) of rights.  It is narrower in that it does not apply to behaviour ‘in private’.  It is no basis for reading down s.9(1). The same act may breach both s.9(1) and s.18C. As Carr J observed in Toben v Jones (2003) 129 FCR 515 (FFC) at [19]:
    

    I accept the Commonwealth’s submission that acts done in public which are objectively likely to offend, insult, humiliate or intimidate and which are done because of race, colour or national or ethnic origin are likely to ... constitute acts of racial hatred or discrimination. (emphasis added)  

18. A remark in the workplace based on or referable to an employee’s race will only meet the third element of a s.9(1) claim – relating to the requisite purpose or effect – in certain circumstances.  It will raise questions of fact and perhaps degree.  But there is no basis in the statute or Convention for requiring some plurality of remarks or some systemic problem.
19. Where a remark referable to, or based on, an employee’s race is derogatory, such as the use of a racist ‘slur’, HREOC submits that such a remark impairs the employee’s right to ‘just and favourable conditions of work’. As noted above, such a right encompasses the freedom to participate in the right to work free from racially derogatory remarks.
20. That the three elements of unlawful discrimination pursuant to s.9(1) are made out does not, of course, necessarily establish that the complainant should be granted some remedy.  No doubt matters such as the nature and gravity of the remark, the context in which it occurred, whether or not it was a one-off statement, and how (if at all) other employees responded could all be taken into account in that regard.
21. With respect to breach of s.9(1), however, in HREOC’s submission to accept that some level of racial abuse in the workplace is acceptable would be inconsistent with the beneficial objects of the RDA and with the recognition that s.9(1) is to be applied broadly and beneficially.7

12 September 2007

J K Kirk

Counsel for HREOC