Hagan v Trustees of the Toowoomba Sports Ground Trust FCA

Introduction 1 The appellant, Mr Stephen Hagan, appeals from a judgment of Drummond J on 10 November 2000 dismissing an application under s 46PO of the Human Rights and Equal Opportunity Commission Act 1986 ("the HREOC Act"). That section of the HREOC Act allows an applicant to apply to this Court in relation to an allegation of unlawful discrimination by a respondent. 2 Mr Hagan claims that an act or acts of the respondents were unlawful under ss 9(1) and 18C of the Racial Discrimination Act 1975 ("the RDA"). These sections provide, respectively, as follows:- "9(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." "18C(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 group of people; and (b) the act is done because of the race, colour or ethnic origin of the other person or of some or all of the people in the group."

Background 3 The appellant is an indigenous Australian being a descendant of the Kullilli and Kooma Tribes of South Western Queensland. 4 Mr Hagan has had an extensive career in the public sector and is currently employed as Chief Executive Officer of the Toowoomba Aboriginal Corporation for the Community Development Employment Program. He is also an elected member of the ATSIC Regional Council for Toowoomba. He has lived in Toowoomba with his wife, who is also of Aboriginal descent, and two children since 1996. He has had a longstanding interest in rugby league both as a player and a spectator. 5 The most important rugby league venue in the Toowoomba area is the Athletic Oval managed by the respondents, the Trustees of the Toowoomba Sports Ground Trust ("the Trust"). One of the two large public stands at the Oval was named in 1960 to honour a distinguished local football player and municipal leader whose given names were Edward Stanley Brown and who died in 1972. Mr Brown, an Australian of Anglo-Saxon descent, was widely known by the nickname "Nigger", for reasons which have not been precisely ascertained. 6 The learned primary Judge summarised as follows the evidence related to the genesis and use during his lifetime of Mr Brown's nickname: "But I think the evidence establishes that the use of the word "Nigger" as part of the name by which Mr Brown went and was known has long been devoid of racial connotation. It is clear that, through most of his life, including his career as a rugby league player and subsequently, Mr Brown himself went by the name "Nigger" Brown and he was known in the Toowoomba community (and more widely) by that name. There is no reason to doubt what the present Chairman of the respondent Trust, who knew Mr Brown personally as "Nigger" Brown, has to say about his researches which reveal that Mr Brown was universally known by that same name. That is how he is referred to in football team photographs and on club trophies and in newspaper articles. His gravestone bears the name "Edward Stanley 'Nigger' Brown". It is, I think, apparent that the use of this nickname both by Mr Brown and of him by the community in which he lived over many years was not a usage intended by Mr Brown to convey or which did convey to any local resident (apart from the applicant) a racist element. Even if the nickname "Nigger" was originally bestowed long ago on Mr Brown in circumstances in which it then had a racial or even a racist connotation, the evidence indicates that for many decades before the applicant's complaint, its use as part of the customary identifier of Mr Brown had ceased to have any such connotation." 7 As a result of the decision, presumably of the then Trustees in 1960, the stand in question carries a large sign, visible from all parts of the ground and from outside it, reading "The ES 'Nigger' Brown Stand". Further, during sports matches at the Oval there is frequent reference, over the public address system in announcements as to availability of facilities and in broadcast match commentaries to "the 'Nigger' Brown Stand". 8 Mr Hagan attended matches at the Oval on about 15 occasions and became increasingly offended by the presence of the word "Nigger". His wife had a similar reaction to the use of and references to, the name of the stand. As a result of the offence which he took, Mr Hagan ceased taking his young children to sporting events at the Oval. 9 On 23 June 1999 Mr Hagan wrote to the Trust requesting that it take immediate action to have "The ES 'Nigger' Brown Stand" public sign removed from the stand because he was personally offended by it whenever he attended football matches at the ground. 10 A special meeting of the Trustees of the Trust was held on 8 July 1999 and the Board of Trustees resolved unanimously not to take action on the applicant's request and to leave the name of the stand unaltered. By letter dated 10 July 1999 the Trustees wrote to the applicant informing him of the decision and stating their reasons for decision which referred to representations and responses made by numerous local indigenous people. 11 On 29 July 1999 a public meeting was chaired by Mr Kevin "Dick" Rose, a prominent member of the Aboriginal community in Toowoomba, who claimed that the 60 or so persons who attended included a cross-section of the Aboriginal community in Toowoomba. Those present unanimously resolved that "the name ES "Nigger" Brown remain on the stand in honour of a great sportsman and that in the interests of the spirit of reconciliation racially derogatory or offensive terms will not be used or displayed in the future". The applicant's complaint received considerable publicity in the local media and was evidently a current topic of much discussion within the Aboriginal and wider community. 12 On 11 May 2000 an application under the HREOC Act alleging unlawful discrimination was filed with this Court by the applicant who claimed compensation of $50,000 for loss and damage, allegedly suffered by Mr Hagan as a result of the decision of the Trust not to remove the sign. The application further sought the removal of the sign and an apology.