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[2001] FCA 123
Federal Court of Australia
2001-02-23
Drummond J, Hely JJ
Original judgment source is linked above.
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.
The decision at first instance 13 Drummond J rejected Mr Hagan's contention that the Trustees' decision not to remove the sign bearing the word "Nigger" was an act reasonably likely in all the circumstances to offend, insult, humiliate or intimidate an indigenous Australian or indigenous Australians generally. In reaching this conclusion, his Honour considered that s 18C(1)(a) of the RDA imposed an objective test. Accordingly, his Honour had regard to the context in which the word "Nigger" complained of was used in this case and to evidence of community perceptions of the sign on the stand. 14 Moreover, his Honour did not accept that the applicant had established that the Trustee's decision not to remove the sign was an act "done because of the race… of the people in the group" so as to come within the requirements of s 18C(1)(b) of the RDA. In reaching this conclusion he referred to the intention of s 18C as evidenced by the Explanatory Memorandum accompanying the Bill which resulted in the inclusion of the section. 15 In his consideration of s 9(1) of the RDA, Drummond J construed it as directed not to protecting the personal sensitivities of individuals, but as rendering acts against individuals unlawful only where those acts involve treating the individual differently and less advantageously than other persons who do not share the membership of the complainant's racial, national or ethnic group. Even then, it is only invoked where the differential treatment has the effect or purpose of impairing the recognition of a basic human right. In reaching this position he referred to Article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination and the discussion in Macedonian Teachers' Association of Victoria Inc v HREOC (1998) 160 ALR 489 and Aboriginal Legal Rights Movement Inc v South Australia (No 1) (1995) 64 SASR 551. 16 His Honour held this ground of the application to be rendered unavailable by the evidence in this case which showed that no distinction had been created by the decision not to remove the sign, which was capable of detrimentally affecting in any way human rights and fundamental freedoms of Mr Hagan.
(a) Application for leave to adduce fresh evidence 17 When the appeal was called on for hearing, Counsel for Mr Hagan sought to adduce further evidence pursuant to s 27 of the Federal Court of Australia Act 1976. The further evidence consists of the affidavits of Elizabeth Conners and David Howard Curtis, each of which was sworn on 7 February 2001. Those affidavits were not filed within the time prescribed by O 36 r 6 of the Federal Court Rules, nor was any explanation proffered as to the late filing of the evidence in question. 18 The further evidence is designed to establish that the sign which is the subject of these proceedings caused offence to the deponents of the affidavits, and to others. 19 The Court declined to receive this evidence. Our reasons for so doing are: - the evidence was produced very late in the piece, without prior warning to the respondent of the intention to adduce it and without any explanation as to the failure to comply with the provisions of O 36 r 6;
20 Reliance was placed on s 46PR of the Human Rights and Equal Opportunity Commission Act 1986 which provides that in proceedings in the Federal Court, the Court is not bound by technicalities or legal forms. The principles relating to the reception of fresh evidence are not technicalities or legal forms. The principles are designed to aid the efficient administration of justice, and to give effect to the general public interest in the finality of litigation. Section 46PR is of no assistance to the appellant.
(b) Offensive behaviour because of race, colour, or national or ethnic origin 21 Section 18C(1) of the RDA makes it unlawful for a person to do an act if the conditions in both par (a) and (b) are satisfied. The first condition relates to the quality of the act in question. The second relates to the reason or reasons for which the act is done (see s 18B). The primary Judge found that neither condition had been satisfied in the circumstances of the present case. 22 Counsel for Mr Hagan identified the relevant "act" as being one or more of the following: - the refusal of the Trustees to remove the sign; - the conduct of the Trustees in allowing the sign to remain displayed on the stand; - the consequential repeated broadcasting of references to "the Nigger Brown stand". 23 Section 18C(1) is not enlivened unless the relevant act is done "because of the race, colour or national or ethnic origin of the person or group likely to be offended by the act". As earlier indicated, the phrase "because of" requires consideration of the reason or reasons for which the relevant act was done. Counsel for Mr Hagan submitted that in discrimination legislation it is accepted that it is unnecessary for a complainant to prove motive or intention. Whether that be so or not, the expression "because of" in par (b) necessitates a consideration of the reasons for which the act in question was done. 24 The evidence established, and the primary Judge found, that the sign was retained in the form it took because the name on it was the name by which the footballer intended to be honoured was known, and because the Trustees formed the opinion that the general view of the local indigenous community was that maintenance of the sign was not offensive to them on any ground, racial or otherwise. 25 In the light of that finding the requirements of par (b) of s 18C(1) are not satisfied. Counsel for Mr Hagan submitted that par (b) is satisfied because one of the reasons for the application of the appellation "Nigger" to Mr Brown in 1902 was Brown's colouring, or the colouring of his shoes, being a colour referred to as "Nigger Brown". In Counsel's submission, there is a clear nexus between the application of the descriptor "Nigger" to Brown, and racial colour. No more is necessary to satisfy par (b). 26 This submission should not be accepted. The issue is not whether the appellation "Nigger" was originally applied because of considerations of colour, but whether the acts of the Trustees were done because of such considerations. 27 In the light of this conclusion, it is unnecessary to consider the submissions put on behalf of Mr Hagan in relation to par (a).
(c) Unlawful racial discrimination 28 The primary Judge accepted that s 9(1) of the RDA protects the basic human right of every person who is a member of a particular racial group to go about his or her recreational and other ordinary activities without being treated by others less favourably than persons who do not belong to that racial group are treated by those others. No criticism was made of that approach by Counsel for the respondent and we are content to proceed upon the assumption that his Honour correctly stated the legal position. 29 Counsel for Mr Hagan said that the acts complained of involved a "distinction" or "preference" based on race, colour or ethnic origin. But the evidence did not establish that the Trustees' actions involved treating members of the Aboriginal race differently, let alone less favourably, from other members of the community. Nor did the evidence establish that those actions involved a preference given to anyone or to anything. We agree with the primary Judge's conclusion that Mr Hagan had failed to make out a case based on s 9(1).
(d) Costs 30 Counsel for Mr Hagan submitted that if the appeal is dismissed, as it will be, the appellant should not be required to pay costs because the appellant is not in receipt of legal aid and because these proceedings concern a public right rather than a private right. The appellant is claiming rights traceable to the International Convention for the Elimination of Racial Discrimination and "should not be discouraged from making bona fide resort to the means offered by Australia for determination of rights under the Convention": Nouredine v Minister for Immigration & Multicultural Affairs (1999) 165 ALR 401, 408. 31 This is not an appropriate case in which to consider whether there should be some departure in human rights litigation from the ordinary principles governing the Court's discretion to order payment of costs. In our view, this appeal should be dismissed with costs because the appeal was without merit, having no realistic prospects of success. In those circumstances, there is no reason why the appellant should not be ordered to pay the costs of the successful respondent. 32 The appeal is dismissed with costs. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.
Hagan
Trustees of the Toowoomba Sports Ground Trust FCA
(1998) 160 ALR 489
(1995) 64 SASR 551
(1999) 165 ALR 401