Lamb v Campbell

Racial Vilification

1. The AD Act renders racial vilification unlawful. Division 3A of the AD Act is in the following terms: Division 3A Racial vilification 20B Definition of "public act" In this Division, public act includes - (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. 20C Racial vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful - (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
2. The key operative provision is s 20C(1), which renders certain conduct unlawful. The surrounding provisions provide a non-exhaustive definition of "public act" (s 20B) and provide exceptions (s 20C(2)). Subsection 20C(2) is not a defence; it is a provision that assists in defining what is unlawful. None of instances described in s 20C(2) arise in this matter.
3. The key matters for the Tribunal to determine are: 1. whether Mr Campbell's conduct from his own veranda constitutes a "public act" within the meaning of s 20B; 2. if so, whether Mr Campbell's public act incited hatred towards Mr Lamb or incited serious contempt for Mr Lamb or incited severe ridicule of Mr Lamb; and 3. if so, whether the public act incited hatred or serious contempt or severe ridicule on the ground of Mr Lamb's race.

Public Act

1. Mr Campbell stood on private property when he said the words in question. Mr Lamb did not enter Mr Campbell's property at any stage during the incident.
2. In Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223 ("Riley") the Tribunal considered whether conduct that took place in a school "muster meeting" was a public act. The muster meeting was a meeting held at the start of each school day attended by staff and contractors (Riley at 32). The Tribunal found at [114]-[118] and [123]-[125]:
3. The general sense of the word "public" is something which is open to all or affecting the community as a whole. We accept Ms Head's evidence that the muster meetings were compulsory for teaching staff, and were open to contractors. They were not open to the general public. As Ward JA has commented, "that the task of construing the racial vilification provisions is one to be approached with conservatism, recognising the high value placed by the common law, and by the legislature, on freedom of expression" (Jones v Trad [2013] NSWCA 389; (2013) 86 NSWLR 241 at 249 [27]; see also Sunol v Collier (No 2) [2012] NSWCA 44; (2012) 260 FLR 414, Allsop P at [59]). The ordinary meaning of "public act" is an act in public. The requirement that it be public (for example, a statement in a place open to all, or a communication to the public generally) is to be understood in light of Ward JA's recognition that the legislature places a high value on freedom of expression. The word "public" in s 20B of the AD Act should not, therefore, be given an unduly confined meaning. In our opinion, an act at a school muster meeting is not a "public act". A member of the public was not entitled to be present at the meeting or to hear what was said at the meeting. We do not accept the applicants' submission that the "'public' can consist of employees and contractors at Delroy College … Here, the communications at muster meetings were made to an audience with whom Ms Head and Ms Bermingham had a pre-existing relationship (generally, a relationship with colleagues, subordinates or workers at Delroy). Further, the communications were in an employment context and a context in which school matters were discussed. This context indicates that the meeting was not public because matters confidential to staff could be discussed, including sensitive matters concerning named children. These factors point to a communication in a muster meeting being a private communication; or, at least, to such a communication not being a "public act". The applicants also rely upon Anderson v Thompson [2001] NSWADT 11, where the former Administrative Decisions Tribunal found that the shouting of words in a stairwell of an apartment building was a "public act". The Tribunal members found that the words were "overheard, because they were shouted with such force" by persons in other units (at [25]). The Tribunal concluded that those words were communicated to the public (at [25]). It may be that, because the words were shouted loudly, the Tribunal had in mind that a member of the public, passing by the block of units, could have heard them. In any event, we do not consider that it inevitably flows from this decision that words spoken in a school library, at a staff meeting, constitute a public act. We find that none of the pleaded acts was a "public act". [Emphasis added]
4. Arguably it was not an "act in public" when Mr Campbell spoke on his front veranda, at least as far as that term was used in Riley. We note parenthetically that the proper test of course is whether Mr Campbell engaged in a public act, rather than an act in public. We also note that the Tribunal in Riley considered whether the conduct was an act in public as merely one factor relevant to assessing whether the conduct was a public act.
5. It is significant in Mr Lamb's case that Mr Campbell was yelling and abusing him while Mr Lamb stood in the public street. It is even more significant that at least three members of the public on the opposite side of the street observed the situation from three separate properties.
6. In this regard it is open for us to find that Mr Campbell was not merely speaking to Mr Lamb, he was engaging in a "form of communication to the public" per the definition of public act in s 20B(1) of the AD Act.
7. The incident itself is comparable to an incident described by the Court of Appeal in Margan v Manias [2015] NSWCA 388 ("Margan") as follows (at [4]): "…. when Mr Margan was in Oxford Street, Darlinghurst, putting up same-sex marriage posters along Oxford Street. Mr Manias appeared to be following Mr Margan and appeared to be keeping pace with him. Near the corner of Oxford and Brisbane Streets, Mr Manias yelled to the street in general, but no-one particularly [various derogatory statements alleged to be vilification on grounds of Mr Margan's homosexuality]" [Emphasis added]
8. In that case there was a material proximity between Mr Margan's conduct and Mr Manias' words. In the present case there was a material proximity between Mr Lamb standing in a public space and Mr Campbell's words that were shouted into that public space.
9. In Margan the Tribunal at first instance found Mr Manias' conduct was unlawful vilification on the grounds of homosexuality (see Margan v Manias [2013] NSWADT 177 at [47]-[54]). This finding was not challenged on appeal and the Court of Appeal assumed the correctness of the original finding.
10. In this matter we are satisfied that Mr Campbell engaged in a public act because he was communicating to the public. If we are wrong in finding that Mr Campbell's communication was to the public, then his conduct fits comfortably within the definition of a public act in s 20B(b), being "conduct … observable by the public."
11. Recognising that Mr Campbell chose not to participate in the proceedings, and recognising also that Mr Campbell spoke from within his own private property, we make the following additional comments about whether Mr Campbell engaged in a public act: 1. the vilification provisions in the AD Act do not regulate private exchanges between individuals; 2. if the exchange between Mr Campbell and Mr Lamb had taken place completely within a private space, or even in a public space but at a volume that no member of the public could have heard, then Mr Campbell would not have engaged in a "public act"; and 3. people can commit public acts alone in a private location, for example via the internet or other forms of communication. The fact that Mr Campbell was in a private location did not remove him from the reach of the vilification provisions of the AD Act.

Inciting hatred, serious contempt or severe ridicule

1. In Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40], the Tribunal set out the ordinary meaning of "serious", "contempt", "severe" and "ridicule", as defined in the Macquarie Dictionary and Oxford Dictionary: • ""serious" means "important, grave" (Oxford); "weighty, important" (Macquarie); • "contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account" (Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie); • "severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme" (Macquarie); • "ridicule" means "subject to ridicule or mockery; make fun of, deride, laugh at" (Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie).
2. In Sunol v Collier and Anor (No 2) [2012] NSWCA 44 ("Sunol No 2") the NSW Court of Appeal considered the meaning of "incite" in the homosexuality vilification provisions of the AD Act. The Chief Justice found at [28]: "Although it is clear from this review of the authorities that the word "incite" can cover a wide variety of conduct, it must be borne in mind that it is not sufficient to attract the operation of s 49ZT that the words simply express hatred, serious contempt for, or severe ridicule of a person on the grounds of homosexuality; the relevant public act must be one which could encourage or spur others to harbour such emotions." [citations omitted].
3. President Allsop found at [61]: Further, satisfaction of s 49ZT(1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience.
4. Justice Basten found at [79]: Applying this approach, I agree with the construction of s 49ZT of the Anti-Discrimination Act 1977 (NSW) outlined by Bathurst CJ. The critical aspect of s 49ZT for present purposes is the requirement that to be unlawful the conduct must incite "hatred towards, serious contempt for, or severe ridicule of" persons within the protected class. Mere insults, invective or abuse will not engage the prohibition. [Emphasis added]
5. In Margan the Court of Appeal adopted the findings in Sunol No 2 and also noted that: 1. there can be no incitement in the absence of an audience (at 76); 2. the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited by Mr Campbell's public act (at 78); 3. it is not necessary that any person actually be incited (at 12); and 4. it is necessary that the words used are capable of inciting hatred, serious contempt, or severe ridicule (at 11).
6. In Sunol No 2 at [41(a)] the Court of Appeal found that incite means "to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement".
7. It is clear from the authorities above that inciting hatred, serious contempt, or severe ridicule involves more than merely expressing hatred, contempt or ridicule. It is necessary for the Tribunal to find that the words are capable of encouraging or spurring others.
8. There is no evidence that any of the people in the vicinity on the day of the incident were actually incited by Mr Campbell's words, however we are satisfied on the evidence that Mr Campbell's public act was capable of inciting hatred towards, serious contempt for, or severe ridicule of Mr Lamb.
9. What distinguished Mr Campbell's conduct from mere personal abuse was that he made a public scene. He abused Mr Lamb in a manner that was publicly demeaning, publicly hateful and was severe ridicule when Mr Lamb was in a public space. By doing these things so publicly Mr Campbell could easily have incited others to do the same.
10. The use of extremely derogatory terms such as "nigger" and "nigger cunt", being terms with obvious connection to Mr Lamb's race, are easily capable of rousing, stimulating, urging, spurring on or stirring up others.
11. Hopefully no observer on the day was actually persuaded to change their view of Aboriginal people because of Mr Campbell's public act, but it is quite conceivable that observers who share some or all of Mr Campbell's dreadful views were incited towards hatred or the like.
12. It is open to find that an ordinary member of the audience that day, being an ordinary member of the public in a suburban street in regional New South Wales, could have been incited to contempt towards Mr Lamb, and/or incited to severe ridicule of him. We so find.

On the ground of

1. It is obvious that the conduct towards Mr Lamb was on the ground of Mr Lamb's race. Mr Campbell did not know Mr Lamb and did not know anything about him except the colour of his skin.
2. Mr Campbell's abusive words were laden with references to Mr Lamb's race.

Conclusion on vilification

1. Accordingly, we find that Mr Campbell did act unlawfully in contravention of s 20C of the AD Act by inciting hatred towards, serious contempt for, or severe ridicule of Mr Lamb on the ground of Mr Lamb's race by way of a public act.

Compensation

1. Section 108 of the AD Act sets out the orders the Tribunal may make: 108 ORDER OR OTHER DECISION OF TRIBUNAL (1) … (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, … (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), … (g) decline to take any further action in the matter. (5) In making an order for damages concerning a complaint made on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons.
2. Any order for a payment of compensation is limited to "compensation for any loss or damage suffered by reason of the respondent's conduct".
3. In Burns v Smith [2019] NSWCATAD 56 at [83] to [86] the tribunal said: 83. The Tribunal may award compensation in appropriate cases pursuant to s108(2) of the Act and is obliged to avoid making an award that, by being excessively low in monetary terms, would tend to trivialise or diminish respect for public policy, as stated in Alexander v Home Office [1998] 1 WLR 968 at 975 and frequently referred to and applied in this Division of NCAT and its predecessor, the Administrative Decision Tribunal. 84. In R v D & E Marinkovic [1996] EOC 92-841 two awards of $25,000 each were made in relation to vilification. Since then other cases such as Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers [2001] NSWADT 32 an award of $15,000 for racial vilification was made as well as an award of $15,000 in relation to racial discrimination. These awards were not disturbed upon appeal. In Carter v Brown [2010] NSWADT 109 orders was made for compensation of $20,000 by one Respondent and $15,000 by another arising from homosexual vilification and victimisation, which consisted of a number of incidents. In Margan v Taufaao [2017] NSWCATAD 216 an award of $10,000 was made in relation to homosexual vilification consisting of words and a vicious assault. In Burns v Sunol (No 2) 2018 NSWCATAD 120 this Tribunal made an award of $2,500.00 in relation to homosexual vilification suffered by the Applicant. Thus, awards in vilification matters have varied, depending on the circumstances of the case. 85. Compensation pursuant to the Anti-Discrimination Act is sui generis. Awards in one case do not bind a later Tribunal, which must make a decision based on the facts before it. 86. Each case must be assessed in light of its own circumstances. One of those circumstances to be considered in this case is the failure to lead medical or up to date psychological evidence, which would have greatly assisted the Tribunal to determine the severity of the impact of this post and the conduct which followed on the Applicant.
4. Mr Lamb is retired from work because of certain health conditions. He has a passion and talent for creating Indigenous artwork. Mr Lamb paints outside his house and displays pieces of art as he completes them. He greets everyone as they walk past, and they often stop and talk to him about his work. However, since the incident Mr Lamb says he rarely sits out the front of his house painting and talking to people. He has retreated as people who feel fearful and unprotected do. Mr Lamb has not visited Mr Boyd's house since the incident, and he has asked his daughter and grandchildren not to go there for fear that they will be vilified on the grounds of race by Wayne Campbell.
5. Mr Lamb says that the incident has had, and is likely to continue to have, significant and negative impact on his psychological health.
6. However the present matter is comparable to Comensoli v Passas [2019] NSWCATAD 155 viz: [57] There was no medical evidence provided by the Applicant justifying an award of compensation, and no evidence of any specific pecuniary losses or damage suffered by the Applicant as a result of the Respondent's conduct. In Margan v Taufaao [2017] NSWCATAD 216, after reviewing the cases involving complaints of unlawful vilification under the Anti-Discrimination Act where damages for "non-pecuniary harm" were awarded, the Tribunal concluded at [99] that the awards were in the range of $1,500 to $20,000. [58] The timing context of the Respondent's conduct on 15 November 2017 is relevant to the determination of the level of non-pecuniary harm suffered by the Applicant. As the Applicant submitted, 15 November 2017 should have been a day of unfettered celebration of the Yes vote, the occasion when the rights of homosexual persons to marry whom they wish were finally publicly acknowledged and accepted. [59] While the Tribunal accepts that the Applicant experienced feelings of upset, hurt and anger as a result of the Respondent's contravention of the AD Act, the available evidence does not justify an award of damages in the sum of $10,000. In our view, considering all of the circumstances an award of $2,500 in conjunction with a published apology by the Respondent is appropriate.
7. Mr Lamb's submissions refer to research that suggests when Aboriginal and Torres Strait Islander people experience racism it impacts their mental health, putting them at greater risk of developing depression and anxiety, substance abuse and attempted suicide. The research indicates that Aboriginal and Torres Strait Islander people are nearly three times more likely to be psychologically distressed than other Australians and twice as likely to die by suicide. This research records a dreadful reality for too many Aboriginal and Torres Strait Islander people, but it does not necessarily assist the tribunal to assess the damage caused to Mr Lamb.
8. In all the circumstances we find that the appropriate remedy is that Mr Campbell be required to pay compensation to Mr Lamb of $2,250 by way of non-economic loss.

Apology

1. Section 108(2)(d) of the AD Act allows the Tribunal to make an order that a respondent publish an apology or retraction (or both) in respect of the subject matter of the complaint. There is much debate in the authorities about the appropriateness and usefulness of an ordered apology. As Hely J observed in Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 at [245]: "the idea of ordering someone to make an apology is a contradiction in terms."
2. In Wotton v State of Queensland (No 5) [2016] FCA 1457, (2016) 352 ALR 146 at [1550]- [1597] Mortimer J provides a comprehensive review of the power to order an apology. Her Honour's analysis includes: [1550] The applicants seek a specific kind of apology. They submit such an apology is necessary because "the Applicants' damage has been prolonged and exacerbated" by the absence of such an apology…. [1551] Separately, the applicants submit an apology would acknowledge the community's grievances and allow the community to move on…. … [1553] … while the power to order an apology is not in doubt, courts have generally been reluctant to exercise that power … in Jones v Scully [2002] FCA 1080; 120 FCR 243 at [245] that "the idea of ordering someone to make an apology is a contradiction in terms". That observation has some force and it has been followed in a number of other decisions of this Court to which the parties did not refer. In Jones v Toben [2002] FCA 1150; 71 ALD 629, Branson J said (at [106]) that "I do not consider it appropriate to seek to compel the respondent to articulate a sentiment that he plainly enough does not feel". In Jones v The Bible Believers' Church [2007] FCA 55, Conti J similarly said (at [65]) that such an order would be "inappropriate". [1554] All three of those cases dealt with claims of offensive behaviour based on race arising under s 18C of the RDA, but the approach taken by Hely J in Jones v Scully has also been followed in cases dealing with other types of discrimination. In Forest v Queensland Health [2007] FCA 1236, which dealt with disability discrimination, Collier J expressed the view (at [13]) that "a court-ordered apology serves little purpose". The Full Court allowed an appeal from her Honour's decision in Queensland v Forest [2008] FCAFC 96; 168 FCR 532 without reference to her Honour's comments regarding an apology. In Poniatowska v Hickinbotham [2009] FCA 680, a sex discrimination case, Mansfield J expanded on the view that an ordered apology might be inappropriate, focusing on whether such an order would go further than was necessary to "recognise" wrongdoing and whether it would result in an apology that lacked sincerity (at [324]-[325])… [1584] Drawing these authorities together, I consider that in the current proceeding the critical question is whether a court-ordered apology is an act which the Court is satisfied would redress damage suffered by the applicants. Whether more appropriate methods of achieving that redress are available is also relevant.… [1589] The need for an apology, and the nature of any apology, as Mr Ralph implies, is context dependent. In any context, an apology is a way of recognising wrongdoing (large or small, moral, personal, social, public or legal) and acknowledging hurt and grievance caused or felt in others because of that wrongdoing. An apology is intended, as Mr Ralph said, to be a step towards healing. Or, as the Constitutional Court put it in Le Roux, a step towards reconciliation. [1590] It may well be the case that the observations made in cases such as Jones v Scully and Eatock v Bolt are apposite for controversies which arise between private parties. If an apology is seen as some kind of admission of personal responsibility or wrongdoing, or a statement of personal regret, then in a dispute between private individuals (or entities) it may well be inappropriate to force an individual to say something she or he does not really mean. Between private individuals, sincerity has a different and more immediate quality, in the sense of an individual taking personal responsibility for wrongdoing and acknowledging hurt or grievance caused to or felt by others… [1596] Another option I am prepared to consider is that an order be made for the Commissioner to make a public statement about the Court's findings in this case in lieu of an apology, but to be published in the same way as the apology would have been published. The statement could be in similar form to that ordered in Eatock v Bolt (No 2), adapted to the circumstances of this case.
3. We think it is appropriate that Mr Campbell make a public apology for his public act. We think it is appropriate that in his public apology he acknowledge that he racially vilified Mr Lamb.
4. We are concerned, however, that making an order to this effect will have only limited utility. We recognise that Mr Campbell has not expressed any actual remorse for his appalling behaviour, nor revealed any insight into the consequences of his action.
5. Instead we will make an order that Mr Campbell make a public statement about the Tribunal's findings. Section 108(2)(c) of the AD Act allows the Tribunal to order "the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant", and we find that a public statement is a reasonable act to partially redress damage suffered by the complainant.
6. The public statement is to be published in the Manning River Times within two months of the date of this decision in the main section of the publication, not the classifieds.
7. We are of the view that such a statement will publicly demonstrate that the law recognises the detrimental effects of racial vilification and provides remedies. The statement will also be educative, for both the Aboriginal and non-Aboriginal communities, and may act as deterrence.
8. Section 108(7) of the AD Act also allows the Tribunal to make an order that a respondent pay further damages in default of an order to apologise and similar orders. The order to make a public statement is an order for the benefit of Mr Lamb for the reasons outlined above. If Mr Campbell defaults on that order we make it will be appropriate that Mr Lamb receive further damages that reflect the consequences of Mr Campbell's default.

Orders

1. Accordingly, we make the following orders: 1. The complaint of unlawful racial vilification is substantiated. 2. Pursuant to s 108(2)(a) of the AD Act, the Respondent is to pay to the Applicant the sum of $2,250 as damages for the harm caused to him within four weeks of the publication of this decision. 3. Pursuant to s 108(2)(c) of the AD Act, the Respondent is to publish a public statement in the Manning River Times within two months of the date of this decision in the main section of the publication, not the classifieds in the following terms: "Racial Vilification On 18 April 2020 in Taree I said things to Mr William "Billie" Lamb who is a Wiradjuri man of the Dubbo clan. The NSW Civil and Administrative Tribunal found that I breached the Anti-Discrimination Act 1977 by vilifying Mr Lamb on the grounds of his race. The Tribunal found that my statements were vile, racist and homophobic and that Mr Lamb did nothing to invite or deserve the treatment he received. Public acts that incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group are unlawful under the Anti-Discrimination Act 1977. Wayne Campbell Taree 1. Pursuant to s 108(7) of the AD Act, if the Respondent does not comply with Order 3 above within the time specified, the Respondent must pay further damages of $2,250 within three months of the date of this decision. 2. Liberty to apply in relation to the terms of the apology and its publication within seven days.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 April 2021