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Nyungar Circle of Elders v West Australian Newspapers Ltd [2001] HREOCA 1 (12 April 2001)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
RACIAL DISCRIMINATION ACT 1975 (CTH)

 

Matter No. H 98/27

BETWEEN:

ALBERT CORUNNA, RICHARD WILKES, VIOLET NEWMAN, MINGLI WANJURRI, LEISHA EATTS, ROBERT BROPHO AND KEN COLBUNG COMPRISING THE NYUNGAR CIRCLE OF ELDERS

Complainants

AND:

WEST AUSTRALIAN NEWSPAPERS LTD

Respondent

REASONS FOR DECISION
of Inquiry Commissioner Graeme Innes AM

Location of Hearing: Perth

Hearing Dates: 29 April 1999

Date of Decision: 12 April 2001

Appearances: Mr Greg McIntyre instructed by Dwyer Durack for the complainants

Mr Wayne Martin QC instructed by Freehill Hollingdale and Page for the respondent

1. INTRODUCTION

This complaint arises from a cartoon entitled “Alas Poor Yagan” (“the cartoon”) published in The West Australian newspaper on 6 September 1997. It is alleged that this cartoon is offensive to Aboriginal people because of their race in breach of s.18C of the Racial Discrimination Act 1975 (Cth) (“the RDA”).

The complaint was lodged on 24 September 1997 by Ms Hannah McGlade on behalf of the Nyungar Circle of Elders.

On 4 March 1998 the Race Discrimination Commissioner (“the Commissioner”), being of the view that the cartoon fell within the exemptions in s.18D of the RDA, declined to continue to inquire into the complaint on the ground that the matter complained of was not unlawful. The complainants required the matter to be referred to the Commission for public inquiry and the matter was so referred by the Commissioner.

During the course of the inquiry, the complainants made application for the joinder of Mr Dean Alston, the cartoonist, as a respondent to the inquiry. By decision of 15 October 1998 (written reasons dated 17 November 1998), Inquiry Commissioner Peter Johnston declined to grant this application. On 29 April 1999 in Perth I conducted a public hearing into the complaint. The following are my reasons for decision.

2. THE CARTOON

A copy of the cartoon is Annexure A to these reasons.

It is alleged that the cartoon breaches s.18C for a number of reasons. First, it presents a demeaning portrayal of Yagan, an ancestor of the complainants. Second, it is alleged that the cartoon contains references to the Waugyl, a religious figure. Third, it treats the issue of death in a manner which causes offence. Fourth, it provides intimate details of the ancestry of individuals and offends them. Fifth, it identifies individuals who are not ordinarily in the public arena and draws them into the arena of public humiliation.
The complainant’s representative, Mr McIntyre, particularised the matters of concern in the cartoon in the following way:

Just to turn to the cartoon itself, and point to the particular matters which we say are of concern.

Firstly, in the first frame it is indicated that this a story from the Dreamtime, which as I’ve already said, is a commonly understood aspect of Aboriginal culture. It indicates that it’s a story about Yagan’s head returning home, and there had been some prior publication of this issue, so that was a matter which was within the public arena and clearly identifies it as being about a matter of Aboriginal cultural concern, given the context of the previous newspaper articles.

In the next frame it’s put in the context of Mr Colbung teaching young people and that, we would suggest, is a cultural pursuit, which is commonly understood to be part of Aboriginal practice. It’s in that frame that the ancestry of Mr Colbung is dissected, and it is put into his mouth to tell the children that some of his ancestors were Danish, so that he’s a Viking Nyungar.

The next frame addresses Mr Bodney, where Mr Colbung is telling the children that Mr Bodney’s people are Jamaican, so he’s a Calypso Nyungar. Then there is the reference to Albert Corunna who is said to be a Pilbara Nyungar, and there are a number of other things happening in that frame. The children respond, “But we thought the Nyungars were from around here”, so there comes the barb, if you like, which suggests that the individuals are in fact dishonestly portraying themselves as being connected to Yagan.

The cartoon has Mr Colbung responding by saying, “Shut up, or the Wagyl will get you” which is the first introduction of the specific religious mythical ancestral figure in a disparaging light. It may be familiar to you, but you’ll hear evidence about the role of the Waugyl as a serpent existing at the time of creation whose role was at that time to create the waterways, and who remains as part of the life force within waters throughout the area, in fact it was said throughout the country, but of a particular identification and name, the Waugyl, in relation to Nyungars of the Swan Valley.

In the next frame there is then some reference to a collection of other people, to Richard Wilkes, whom I haven’t mentioned before, but in terms of being a public figure, probably sits somewhere on the borderline, having had some public exposure but of a limited kind. Mr Robert Bropho is mentioned to – I think it could fairly be said – to have had a fair degree of public exposure. Mingli Wanjurri Nungala, who I suspect has not had any significant public exposure, and Leisha Eatts who will give evidence as to her complete lack of public exposure.

In the next frame there is yet another aspersion cast where Mr Colbung says, “The four of them took off while the going was good” and the innocent child has then had put in its mouth the words, “And while the grant money was good” which of course is another derogatory imputation that the persons who were involved in the matter were merely doing it for reasons associated with greed. There is then a side comment put into the mouth of Mr Colbung, “That Wagyl is getting closer to you lad” which again is just an insulting use of that Dreamtime figure.

It then starts to come to its conclusion where in the next frame Mr Colbung is depicted as saying, “And they brought back Yagan’s head” and the children asking, “And did it unite all the Noongars, Uncle Colbung?” and the response in the next frame, “Well, er.” Now, that seems to be the political comment which it might be said was in the public interest, that there was some disunity among the Nyungars, and it’s clearly done in an inferential way, perhaps in the context of other newspaper articles which had highlighted questions of disagreement among the group as to the process of going and collecting Yagan’s head and bringing it back.

If that was all the cartoon dealt with, we might have less reason to complain. However, it too of course follows a theme of requiring of Aboriginal people degrees of unity which are not required of other sectors of the public in the conduct of their public and private affairs. In that sense it also is a derogatory comment which is not justified in the public interest. Finally, in the final frame there are words put into the mouth of the head of Yagan, apparently sitting in a box in the corner of the frame, where we suggest that to have him speaking at all is some degree of insult; to have him commenting on the scenario is another degree of insult; and the words that he uses is a further degree of insult where it is put into his mouth, “Crikey, give me a warm beer and a quiet pommy pub any day.”

3. THE LEGISLATIVE PROVISIONS

SECTION 18B REASON FOR DOING AN ACT

18B If:
(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.

SECTION 18C OFFENSIVE BEHAVIOUR BECAUSE OF RACE, COLOUR OR NATIONAL OR ETHNIC ORIGIN

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 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.

18C(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.

18C(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.

SECTION 18D EXEMPTIONS

18D 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.

SECTION 18E VICARIOUS LIABILITY

18E(1) Subject to subsection (2), if:

(a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and
(b) the act would be unlawful under this Part if it were done by the person;

this Act applies in relation to the person as if the person had also done the act.

18E(2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.

4. PRELIMINARY MATTERS

At the hearing, Mr McIntyre sought to revisit the issue of the joinder of Mr Alston which had been decided by Commissioner Johnston in October 1998. I ruled that there was no authority in the legislation for me to revisit Commissioner Johnston’s decision.

5. EVIDENCE OF THE PARTIES

5.1 Preliminary evidentiary matters

The respondent objected to the evidence of each of the complainants’ witnesses. In relation to the complainants themselves, the respondent’s representative, Mr Martin submitted that the test in s.18C was objective and evidence of the subjective reactions of the complainants was inappropriate and possibly misleading. Mr Martin submitted the evidence of Dr Mickler was irrelevant because the test looks to the reasonable ordinary reader and an academic assessment may potentially mislead. Thus, it was argued, the only fact the complainants needed to establish was publication and that was admitted. The question of what a reasonable reader, not overly hardened and not overly sensitive, would draw from the cartoon is not a question for evidence.

Mr McIntyre submitted that it was appropriate for me, as decision-maker, to take into account the position of a person affected by the publication, although not necessarily adopting that view. He agreed that the test in s.18C was objective but argued that this should not be construed to amount to a “totally objective person in the sense that the person neither has a race, an ethnic origin, a colour or a nationality”. The legislation requires an assessment of the impact on a particular group and evidence of this impact, which can only be done by “sampling”, is relevant. Mr McIntyre argued that Dr Mickler’s evidence would assist the Commission in its understanding of the “science of … mass communication”.

Having considered the submissions of the parties, I allowed the calling of the complainants’ witnesses. I took the view that, although the relevant test may be an objective one, there was an argument that the views of the complainants may be relevant, and I did not want, by refusing to hear that evidence, to not have those views available to me. I considered the views of Dr Mickler to have a bearing on my determination of what may be reasonable views.

5.2 Evidence for the complainants

5.2.1 Evidence of Albert Corunna

Mr Corunna told the Commission that his mother had passed on to him the tradition of Yagan and how he was related to them. He said that Yagan was only three generations removed from him. He said that he had participated in discussions and legal proceedings regarding the return of Yagan’s head to Australia. He did not go to London to pick up the head but was part of meetings to organise the return.

Mr Corunna said that his mother was from the South-West and he had cultural connections there as well as to the Pilbara region where his father came from. His role in the retrieval of Yagan’s head was because he was regarded as a leader of his people and because he belonged to the area because his mother was born there.

Mr Corunna said the cartoon made him feel “terrible” because it did not give all the facts. For example, it implied Corrie Bodney was part of the delegation to bring the head back. Also, he said that the cartoon portrayed “us as all as half-breeds and that we’re just rushing in there to get money”. The cartoon made jokes of the dead and this was not done in his culture.

The Waugyl was described as the creator of all waterways and as having a major role in the creation Dreamtime story. The Waugyl would protect those who were his people; that is, those who belonged to the area.

Mr Corunna said that he had made a couple of statements to the newspapers in the past.

In cross-examination, Mr Corunna agreed that freedom of speech was important, as long as it was balanced. He agreed that there had been a dispute between him and Corrie Bodney as to who Yagan’s closest living relative was and that there had been press coverage about this. This dispute also related to overlapping land rights claims. Mr Corunna agreed that the issue of the return of Yagan’s head had been in the press almost daily prior to the publication of the cartoon. He also agreed that The West Australian had, in its editorial of 27 August 1997, supported the return of Yagan’s head.

5.2.2 Evidence of Richard Wilkes

Mr Wilkes described his reaction to the cartoon as follows:

Well, my reaction is that it’s very corruptive in the beliefs of our people. Also it gives the opinion that we’re of mixed blood, . . . and then there’s the clip saying “Nyungar”, and then the Pilbara Nyungar, and it’s a diversity thing that is saying that we’re a split race of people, which I don’t believe that we are. We’ve had problems but we’ve overcome them . . . which we always did and we have the elders such as myself and others around the place who tried to bring this togetherness within our communities where we live. It’s based on religion, our culture, and I mean this culture goes 40,000 years, and even it’s said to be more than that, . . . my upbringing was that of being a Nyungar first and foremost and not of any other blood that people seem to think that runs into my veins.

So I don’t class myself in a colour, class or creed or whether I’m a half-caste or a quarter-caste or a whatever caste you want to call me. My upbringing has been that of being a Nyungar person from the Swan River area. I’m a Dumbleyung Nyungar. I belong to the Durbelyuregin and descendant of the Moora and the Bilyar tribes . . with connection to the Bilyu and the Wirrup tribes and tribes that complement this area. . . . what Ken is telling the children, . . . he threatens them with our spirits, with a spiritual influence, being the Waugyl – that’s the Rainbow Serpent, our own serpent, the creator of the waterways and the fresh water, the underground water.

We knew of the water running down from the top to the south and the creator helping . . with budjar, with mother earth, ngangka budjar, the mother earth, in creating the father . . . of the six seasons that we have, and creating with the mother and with the Waugyl, creating all these things that kept my people in harmony with the land prior to the coming of other people to this country. These are the things that I’m talking about today, and this is about what this cartoon has disrupted. . .and also Temyu Yagan, that’s my grandfather, and he’s a special . . icon figure within the structure of the Nyungar tribes from around this area, and all Aboriginal people from wherever . . they come from respect the things that Yagan stood for.

. . . we’re trying to carry on the same traditions that Yagan set in negotiating with the present landowners for equality and for rights to live in this country, this great country that we share, that we share in a lesser degree to other Australians. To say that a person like Yagan’s status and stature, to say that, “Crikey, give me a beer in a warm, quiet Pommy pub any day,” is blasphemous in my way of thinking, and I was very, very upset and with The West Australian and with the cartoonist for doing what they did.

Let me say that Nyungar people always draw what they think is right, and our drawings – we never, ever criticise and belittle other people. We just draw spiritually and for the enjoyment of other people to enjoy, and those – and it’s recorded in the rock paintings. It’s in our art, wherever we go and that kind of thing. We never draw character figures such in the sense as what’s been drawn here. We always draw what we see and what’s important to people, not for people to laugh at other people.

Mr Wilkes said he was part of the trip to collect Yagan’s head but made no decisions. He participated in meetings of Nyungar people before the trip was made.

The witness said that he was concerned at the depiction of Aboriginal people as reliant on handouts. He regarded the trip as analagous to the unknown soldier and had no complaints about the money spent on doing that.

Mr Wilkes was aware of the media articles about Yagan’s head prior to the publication of the cartoon. He had not been involved in the litigation with Corrie Bodney although he knew about it while he was in England.

In cross-examination, Mr Wilkes said that he is Mr Corunna’s first cousin and was aware that Mr Corunna had said that they were both living relatives of Yagan. He agreed that a smaller group than originally planned had gone to London because ATSIC and the Federal government withdrew their funding and that there was a concern, because of Mr Bodney’s litigation, that State funding would also be withdrawn.

5.2.3 Evidence of Mingli Wanjurri Nungala

Ms Nungala was a member of the delegation to the United Kingdom to retrieve Yagan’s head. She had been associated with Mr Bropho and the Nyungar Circle of Elders group for 10 years or more and for that reason she went to London. She described her attitude to the cartoon as follows:

Well, I think someone showed it to me, I don’t always get the paper . . . When I first saw just the first few words, “Alas, poor Yagan,” and that just jumped right at me and I couldn’t figure out what this was going to be, so as I read on – I mean, I had to read it a few times, I was quite shocked. I think that I went and showed it to someone else at the house and we were sort of in shock and disbelief and started to cry. We often have things aimed at us, directed towards us – under the banner of free speech, I suppose – but I think this was – I felt that this was one of the worse things that I’d really ever come across in the press and we only have one paper here, which is really unfortunate, not like in the bigger cities, so this view would have been seen by many many people and read, and it humiliated me.

As I said, there were tears and shock about it, disbelief that people could go this far to make fun of us. There are a lot of other things in that cartoon. When we looked at it later, with my daughter particularly – there’s an awful lot in the cartoon. I’ve never really had to examine a cartoon before, but everything derogatory and demeaning to us – even the way that Ken is talking to the children. It brought back memories of what happened to our children – our children now and children before – how children have been used and also just the opposite way of teaching culture is that children don’t pipe up and query things like it’s done there and like when I’m working in schools, sometimes the teachers – sorry.

[Concerning the Waugyl] . . my grandmother reared me and she always taught me mainly by showing . . . She used to show me the water places and there was always – my country is a little way from here, but sometimes there were frogs that were the sacred animals and sometimes there were different snakes, but sometimes there were small sort of carpet snake-type of ones and sometimes there were big water pythons, depending where we were, but always the water places and the Waugyl were important. She used to not always call it that, there are different names for different nations.

[Asked if it was culturally appropriate to use the Waugyl in this way] Well, it’s making fun of it. Our people never – well, they didn’t have to, and my grandmother with me – particularly, I can relate to me – didn’t talk to me that way. When she told me that I couldn’t go there and I couldn’t do that and I had to be careful, I did it. I did what she told me and most people do, most children do, and you pass that down.

[Regarding mixed parentage] Well, that’s – when we talk about mixed parentage and – well, I am one and we’ve come mainly by a relationship from a white man from another country and a black woman of this country and much of it hasn’t been happy, so that doesn’t bring great connotations. That brings about the power struggles between men and women, it brings about the – in my mind, and it did then when we discussed it – it brought about the taking away of the Aboriginal man from his land and the black woman was exposed to the white man and they were either raped and taken by the white men – and that’s what that brings up to me, it’s quite negative, not a happy – – -.

Ms Nungala said that her visit to London to retrieve Yagan’s head was one of the most important, spiritual and religious things she had ever done.

5.2.4 Evidence of Doolan Leisha Eatts

Ms Eatts recalled how she felt when first seeing the cartoon as follows:

. . . it brought deep and great distress in my spirit and it made me sick and depressed for weeks, because I regard Yagan as our ancestor and leader and warrior and, as Aboriginal people, we hold our warriors in high esteem and respect and I felt that for anyone to make a comic joke of our dear departed is an insult to all Aboriginal people. I am a well-respected community elder working in the northern suburbs and it brought me shame and distress to be portrayed in such a comic fashion as I am held in high esteem by my people.

She said that she did not go to London with the delegation but had been involved in preparatory meetings. She had not been involved in the Supreme Court litigation.

In relation to the Waugyl, Ms Eatts said that:

I felt very upset about that because it shows in the picture of the children talking about the Waugyl to Ken Colbung, and in the Nyungar culture children doesn’t talk up to their elder about a Waugyl because the Waugyl is a sacred being for elders and not for children to speak up to the elders – the children stay in their own children’s place.

She said that the reference to the beer stereotyped Aboriginal people as being drunk.

Ms Eatts said that she had only had her name appear in the paper on one occasion prior to this, telling a story about a death in custody. In cross-examination she said that her name was mentioned in the article in The West Australian of 2 September 1997. She said that she had been picked to go to London but had not done so because the money could not be raised. She clarified that her complaint about the depiction of the children in the cartoon is that they were speaking back to an Elder.

5.2.5 Evidence of Kenneth Colbung

Mr Colbung explained that he had heard about Yagan’s head in about 1950 and had been trying to locate it. He said that he was ancestrally connected to Yagan in the tradition of Aboriginal law. His mother was from the Mount Barker area and his father was Danish. He was conceived as the result of the rape of his mother. He has been brought up to consider himself as an Aboriginal person and has never seen himself in any other way.

Mr Colbung said that he knew Mr Bodney but had not been involved in the litigation which had taken place when he was in England. He described the history and organisation of the delegation to retrieve Yagan’s head. He indicated that some people might have felt that they missed out and that there might have been cultural reasons why some people wanted to go in that they might have felt that they missed out on fulfilling their cultural responsibilities.

In relation to the issue of the grant money, Mr Colbung said that ATSIC withdrew its funding.

Mr Colbung told the Commission that he thought the reference to Yagan and the “warm beer” was derogatory and disrespectful, especially to his religion. He compared the situation to the return of the unknown soldier. He also said that the Waugyl was “a spiritual being that started the world” and that he felt “very crooked” about the use of the Waugyl in the cartoon. He said that he considered the human dignity and rights of Aboriginal people to have been overlooked.

In cross-examination Mr Colbung agreed that he had addressed a large crowd of people at the airport to meet the delegation returning from London and had made comments about the recent death of Princess Diana. He said that his comments had been misrepresented in the media.

5.2.6 Evidence of Robert Bropho

Mr Bropho was part of the delegation to retrieve Yagan’s head and had been involved in meetings prior to the delegation leaving. He had been approached by the State government to go. His reaction to the cartoon was that:

The cartoon was very destructive. It hurt the Aboriginal culture, it hurt my feelings. It was slinging off in a very ghastly matter.

In relation to the Waugyl, Mr Bropho said that the cartoon was very insulting because the Waugyl was his “life through my old people which the white man will never know.

Mr Bropho said that Yagan was significant because they were as one through the spiritual dreaming. The connection of Yagan with the “warm beer” was an insult. It was wrong to talk about dead people in a comic way.

In relation to the issue of mixed ancestory, Mr Bropho said that “the mixed blood in Aboriginal people is not the fault of the black man. Again it falls back on the white man for participating in having that done”

5.2.7 Evidence of Dr Stephen Mickler

Dr Mickler, a lecturer in the School of Communication and Cultural Studies at Curtin University of Technology who had completed his PhD thesis on the representation of indigenous people in the WA media, gave evidence to the Commission.

Dr Mickler referred to the findings of the Australian National Opinion Poll (ANOP) Report Winning Middle Australia published in 1985 as informing his analysis. Particularly relevant were the ANOP findings that:

* There was no depth of understanding of Aboriginal culture. “Real” Aboriginal people were considered to be confined to those “full bloods” living a traditional tribal lifestyle.

* Aboriginal people are perceived as a privileged group and as suffering from a handout mentality. White Australians actually regard Aborigines as over-privileged, in receipt of overly generous government handouts and living in the benefit of undeserved concessions.

* There was no widespread understanding of the special significance of the land and only a rudimentary knowledge of sacred sites and the significance of sacred sites and land.

* There was a lack of sympathy for Aboriginal people and a lack of appreciation for their social problems.

* Positive views about Aboriginal people that do exist stem largely from the traditional stereotype of the noble savage.

* Alcohol abuse is seen as the main problem confronting Aboriginal people, before other issues such as unemployment or education.

Dr Mickler indicated that these views are relevant factors in the assessment of the cartoon; for example, the conclusion that there is a rudimentary knowledge of sacred sites would apply to the mention of the Waugyl in the cartoon. Again, the finding about the “handout mentality” is relevant in respect of the mention of the motives of Aboriginal Elders.

Dr Mickler said that the cartoon depicted people who would not ordinarily be depicted in a cartoon of this nature. It included persons who would not constitute public figures who would normally be considered to be “fair game”. He said that he did not believe that a dispute between non-Aboriginal people would be treated in this way. He said that it is not unusual in a political cartoon to have a figure who effectively speaks the opinion of the publisher and that it was not unusual to have children, as the voices of “truth”, in this role.

In cross-examination, Dr Mickler said he could not comment definitively on the use of children as truthsayers in other cultural contexts. He agreed that since the ANOP survey in 1985, media coverage of the dispute over the Swan Brewery site had contained repeated references to the Waugyl and that the term “Waugyl” would be recognised by members of the Perth community.

Asked about his reference to the public status of the complainants, Dr Mickler said that his views had been formed without regard to any specific material from the press during the two weeks prior to the cartoon. He accepted that a person could become a public figure fairly quickly. He did not accept that reviewing the press material was necessary to his conclusions regarding whether the complainants were public figures.

5.3 Evidence for the respondent

5.3.1 Evidence of Paul Murray

Mr Murray is the editor of The West Australian and was at the time of the publication of the cartoon. He is responsible for all editorial content in the newspaper.

He gave evidence that the newspaper had published articles on Yagan’s head prior to the publication of the articles referred to in these proceedings. He said that he intended the paper to look deeply into the divisions in the Aboriginal community, an issue in which he had background knowledge. He wanted to pursue the various associations claimed with Yagan. He co-wrote the editorial of 27 August 1997 and it expressed his views. His view was that the return of Yagan’s head was a crucial issue for Aboriginal people and for all West Australians. Mr Murray said that the disputation within the Aboriginal community in WA was damaging to the prospects of its return.

The cartoon was the regular Saturday cartoon of Dean Alston. Mr Alston rang the witness on the Thursday night prior to publication and discussed the idea for the cartoon. Mr Murray said that he told Mr Alston that it would be “very controversial” and asked him to discuss it again the following day. On Friday, Mr Murray looked at the draft sketches and had another discussion with Mr Alston. He told the Commission that he said to Mr Alston that there would be some “flak” over the cartoon. However, he formed a view that the cartoon was a valid comment on recent events and when he was presented by Mr Alston with the final version, he approved it for publication.

The story of the dispute was a story that The West Australian was leading on. Mr Murray did not recall any complaints about the articles. After the cartoon was published there was one letter to the editor complaining about it which was published by the paper.

Mr Murray said that the main “comment” of the cartoon was that the behaviour of the individuals concerned was undignified and that Yagan would not have approved of such a dispute. The previous articles had pursued the issue of infighting and the cartoon questioned their association with Yagan. The reference to “government grant” justified the public interest in running the cartoon. The references to individuals was because the trip was taxpayer funded. A further comment was that the Elders had lost the significance of the return of Yagan’s head which was intended to unify, but only caused division.

Mr Murray told the Commission that The West Australian prides itself on its coverage of Aboriginal issues and in 1994 had won the Louis Johnston award for good reporting of Western Australian Aboriginal issues for a series on native title. He expressed reservations about the ANOP survey, indicating that it was dated and that there had been a “significant shift in the landscape” since 1985, including the High Court native title decisions and the reconciliation process.

The witness said that Mr Alston is regarded as one of Australia’s best cartoonists, is highly experienced and has won many awards. His work, including strip cartoons, has been exhibited in the Gunyulgup art gallery and they are advertised for sale every day in the newspaper.

In cross-examination Mr Murray accepted that people perceive things differently because of their culture and that this was a factor that he took into account in the exercise of his judgment. He produced the newspaper for everyone and took advice on cultural issues from the public. He had no recollection of being provided with material in 1989 and 1991 regarding the Swan Brewery site and he denied that the newspaper had never done an in-depth feature on the site.

Shown two cartoons depicting the Waugyl and two dealing with the death of Princess Diana, all of which had been published in the newspaper, Mr Murray did not agree that Mr Alston did not display sarcasm or derision when dealing with sensitive cultural matters of a European origin but did so when considering the Waugyl. He agreed that the cartoon here in issue was not respectful of the Waugyl and that the two cartoons concerning Princess Diana were “sensitive cartoons”.

In relation to the newspaper’s stance on Aboriginal issues, he agreed that there was a “downside” to their approach and that some articles had upset the Aboriginal community. In re-examination, Mr Murray told the Commission that it was the newspaper’s editorial policy to draw attention to the plight of underprivileged groups in the community, including Aboriginal people, and that it had run articles on these themes on many occasions.

6. SUBMISSIONS OF THE PARTIES

6.1 The complainants’ submissions

In summary, the complainants make the following submissions:

6.1.1 Was the act reasonably likely to have the effects alleged?

It is accepted that the test is objective. However, such an assessment needs to take into account the race, colour or national or ethnic origin of the person or group of persons offended. The ordinary reasonable man on the Clapham omnibus (who is not likely to be an Australian Aborigine from Western Australia of the Nyungar group) is not reasonably likely to be offended by something which is said concerning the culture, deceased ancestor or mixed ancestry of an Australian Aborigine living in Western Australia of the Nyungar group. Thus, the issue is what would be reasonably likely to offend a person who is an Australian Aborigine of the Nyungar group.

It is well accepted that in the application of an objective standard the particular circumstances, special knowledge, personal characteristics or position of the person or, in this case, group are relevant to be taken into account and relevant circumstances in this case include particular knowledge and feelings of the group because of their racial and ethnic background, in particular religious observances, knowledge and sensitivities, and sensitivities about deceased ancestors. In this case, it is a clear inference from the terms of s.18C that it is a necessary element of the act being unlawful that it be offensive, insulting, humiliating or intimidating to a person or group of persons of a particular race, colour or national or ethnic origin.

Application of the objective test does not involve the decision-maker placing himself in the shoes of the offended group, so as to conclude that they ought only to have been offended if he would have reacted in the same way, because to do so might cause him to substitute his own individual strengths or weaknesses.

In making the relevant assessment, the decision-maker should have regard to the principles of substantive equality which are embodied in the RDA.

The evidence demonstrates that the Nyungar people revere the Waugyl as a creation figure, hold their ancestors in high regard, revere the deceased remains of their ancestors and are sensitive about highlighting the racial mix of their ancestory for reasons associated with the history of colonisation. The inclusion in the cartoon of references to the Waugyl, the remains of Yagan, Yagan consuming alcohol and the mixed ancestry of Nyungar people is reasonably likely to offend, insult and humiliate the complainants and Nyungar people in particular.

6.1.2 Ethnic group

The Nyungar people are an ethnic group with a shared history, separate cultural tradition, common geographical origin, descent from common ancestors, a common language and a religion different from the general community surrounding them.

6.1.3 Was the act done because of race or ethnic origin?

The references in the cartoon to Yagan and the Waugyl have no significance but for the race or ethnic origin of the complainants and the Nyungar people. Thus, they were included “because of the race, colour or ethnic origin of the person or some or all of the people in the group” and fall within s.18C(1)(b) of the RDA.

In this regard, the relevant “act” is the cartoon as a whole. However, the elements of the cartoon are significant in assessing the reasons for doing the “act”. At least one of the reasons for including the references to Yagan and the Waugyl is the “race, colour .. ethnic origin” of the complainants and s.18B deems the act as a whole to have been done “because of” their race (etc). Other purposes (such as the use of public funds and internal disputes) do not take the cartoon outside the scope of s.18C.

6.1.4 Exemptions – section 18D

Section 18C only applies to the “discriminatory reasons” and not those such as the expenditure of public funds and internal disputes. Thus, s.18D does not apply to those latter reasons.

It cannot be fair comment or in the public interest to demean the Waugyl and its role in Nyungar religious tradition, to caricature Yagan and to mock the mixed ancestry of Nyungar people (I have compendiously referred to these as the “demeaning comments”). It is irrelevant, therefore, that there was a public interest in the return of Yagan’s head or the internal dispute and that fair comment may have been made on these matters.

To the extent that the cartoon did constitute comment, the demeaning comments were not on a matter of public interest and were not an expression of genuine belief held by the publisher. Section 18D does not apply to the comments on other matters.

In relation to the question of “artistic work”, while the original drawings may constitute such a work, the act of the editor in publishing the cartoon in a newspaper does not constitute the “exhibition or distribution of an artistic work”. Alternatively, the written words accompanying the drawings are not an artistic work.

6.1.5 General approach

The type of comments at issue in this case are analagous to but more serious than those in Wagga Wagga Aboriginal Group v Eldridge (1995) EOC 92-701. The test for s.18C is not as high as that set under the NSW and SA legislation.

The right to freedom of expression is not without limitation and must be balanced with the right to a dignified and peaceful existence without racial harassment. There is no right to freedom of speech which operates as an exception to the prohibitions in the RDA. Sections 18C and 18D express the Parliament’s intention as to the appropriate balance.

6.1.6 Remedies

The complainants sought an apology, an undertaking that respect be shown to Nyungar culture and religion, including their deceased warriors, the implementation of the Royal Commission into Aboriginal Affairs with respect to the media and an award of compensation.

They submit if a breach of the RDA is made out, a sensitive complainant may recover the full extent of his or her loss. Thus, the loss for Ken Colbung would be greater in view of the circumstances in which he became a person of mixed parentage. Also, the sensitivity of the complainants to the association of Yagan with alcohol may increase compensable damage. Finally, the fact that some of the complainants were not public figures would entitle them to a greater measure of damages.

6.1.7 Standard of proof

The relevant standard is proof on the balance of probabilities. In this case it is not criminal conduct which is alleged, and there are no penalties imposed by the legislation. The statutory remedies are analogous to those open in an ordinary civil suit and the degree of satisfaction required in this case is no higher than in an ordinary civil suit.

6.2 The respondent’s submissions

6.2.1 General approach to the complaint

The respondent submitted that this case raised an important issue of freedom of speech and that the RDA should be construed so as not to inhibit the fair and free publication of comment or the free expression of artistic works. In striking the balance, the Commission must give full recognition to the “vital principle of freedom of speech”.

The extrinsic legislative materials shed light upon the balance which the legislature was seeking to strike between the inhibition of offence on racial grounds on the one hand, and the protection of freedom of speech on the other. The Explanatory Memorandum observed that:

The Bill is not intended to limit public debate about issues that are in the public interest. It is not intended to prohibit people from having and expressing ideas .. and maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin.

The Minister’s Second Reading Speech stated that:

The Bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The Bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people.

Mr Martin makes two general points concerning the cartoon both of which indicate that the cartoon must be considered in the context in which it arose. The first is that the essence of the cartoon was a discussion, in the public interest, of a matter which was clearly in the public arena, being the return of Yagan’s head. In particular, the division in the Aboriginal community was a public topic and that this disputation was not assisting the retrieval of the head. The cartoon must be viewed in the context of the public discussion which preceded it. This discussion involved a variety of claims of geneological links with Yagan, some of which are alleged to have been dubious, and the cartoon made satirical comment on these claims.

Second, the inferences sought to be drawn from the cartoon must be reasonable and not strained. Thus, for example, the references to the grant money should be seen in the light of the withdrawal of ATSIC funding and not in regard to generalised views about the reliance of Aboriginal people on government hand-outs. The reference to the “warm beer” is a reference to Yagan wishing the disputation to end and any construction that Aboriginal people can be made to go away with beer is an unreasonable reading of the cartoon.

These matters are referred to in more detail below.

6.2.2 Was the act reasonably likely to have the effects alleged?

The complainants’ concession that the test under s.18C(1)(a) is an objective one was properly made (Bryant v Queensland Newspapers Pty Ltd, HREOC, President Sir Ronald Wilson, 15 May 1997, unreported). The RDA requires a robust approach to the degree of offence required and merely trivial matters do not fall within the section.

The submission that the special cultural characteristics of a particular group are properly taken into account in assessing whether the relevant conduct is reasonably likely to offend (etc) must be rejected as to accept it would mean that liability would depend on the idiosyncratic sensitivities of a particular person or group of persons. This submission is in conflict with cases that apply the objective standard by reference to the audience of the publication (seeEnquiry into Broadcasts by Ron Casey (1989) 3 BR 351; Neal v Sunday News Auckland Newspaper Publications (1985) EOC 76,299).

In this case, the objective standard is to be applied by reference to the purchasers and readers of “The West Australian” who would have read the cartoon in the context of the preceding articles concerning the return of Yagan’s head. These articles reveal that the delegation, its constitution, its timing and its funding were all matters in the public arena, as were the geneological links of the various delegates. The importance of the various articles in The West Australian that preceded publication of the cartoon cannot be overstated as they establish that there was public controversy regarding the return of Yagan’s head including questions about the divisions which the proposal had caused in the Aboriginal community, the dispute as to who should comprise the delegation to retrieve the head, the issue of whether the timing of the delegation was related to the litigation and/or the possible withdrawal of funding for the delegation, the competing claims of various individuals with respect to their relationship to Yagan and whether the money spent on retrieving Yagan’s head could have been better spent.

In the context of this public debate, the inferences suggested by counsel for the complainants are strained and would not be drawn by any reasonable reader. In particular, the reference to the mixed ancestry is a reference to the competing claims of those individuals relating to the return of Yagan’s head and cannot reasonably be construed as a general comment on the mixed ancestry of Aboriginal people. The reference to the grant money is a reference to the issue concerning the timing of the delegation and the fact that some of the grant money was withdrawn as a consequence of the dispute between different sectors of the Aboriginal community. No reasonable reader would construe that portion of the cartoon as a general reference to Aboriginal people being dependent upon handouts. The final panel in the cartoon suggests Yagan would not have wished to be involved in the dispute. No reasonable reader could construe that panel as referring to a general association between Aboriginal people and alcohol.

Further, the complainants’ reaction to the cartoon was partly due to differences in culture; for example, in respect of relationship between children and their elders, the Aboriginal attitude to the Waugyl, the Aboriginal attitude towards drawing and the Aboriginal attitude to the dead. These differences do not lead to a breach of the RDA.

Overall, the question is one which must be determined by the Commission for itself, by reference to the ordinary reasonable reader, not unduly sensitive nor unduly hardened, drawing upon the Commission’s knowledge and experience of ordinary human affairs.
This is not a task which is assisted by a consideration of evidence adduced as to the effect of a particular publication on a particular individual or individuals. Such evidence is likely to distract the Commission from the objective nature of its task.

The fact that a person is the subject of criticism may render them more likely to put an extreme construction on the cartoon and the evidence should be approached cautiously, with this in mind. The RDA does not purport to inhibit criticism as such and reactions to the cartoon which are derived from the ordinary human response to criticism must be necessarily excluded from consideration by the Commission.

In considering the objective test, the Commission should also bear in mind the proposition that the RDA is not intended to unduly constrain freedom of speech and allows a fair degree of journalistic licence (Bryant).

This construction is supported by the extrinsic legislative materials. The Explanatory Memorandum describes the prohibition created by section 18C as analogous to that in relation to sexual harassment and the Second Reading Speech in the Senate expressly referred to an “objective test” to reflect “community standards of behaviour rather than the subjective views of the complainant”.

Thus, s.18C(1)(a) is not invoked because the publication is not reasonably likely in all the circumstances to offend a reasonable reader.

6.2.3 Was the act done because of race or ethnic origin?

Section 18C introduces a purposive, causative element. The act of publication must be done because of the race (etc) of the other person. The fact that it happens to concern a group who have a race (etc) is not sufficient. This construction is supported by the extrinsic material and the approach taken in Awa v Independent Auckland Ltd (a defamation case).

No inference can be drawn from the fact of publication that there was a causal nexus between publication and membership of the group. The cartoon was published because of the public interest in the issue over the previous two weeks. Mr Murray’s evidence was that the cartoon was published to provide satirical comment on a matter of public importance and it was not put to him that it was published because of the ethnicity of the Nyungar people.

Thus, s.18C has no application as the relevant causal nexus is not established.

6.2.4 The exemptions – section 18D

If the Commission does not accept the respondent’s submissions regarding s.18C, the respondent relies on all three subparagraphs of s.18D. In construing this section, the Explanatory Memorandum to the Bill is relevant. The Explanatory Memorandum stated that:

Proposed section 18D provides a number of very important exemptions to the civil prohibition created by proposed section 18C. The exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest. However, the operation of proposed section 18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.

First, there is the exemption which deals with an act that is done reasonably and in good faith in relation to artistic works. This exemption would cover both serious drama and comedy acts. Whilst some of these performances may cause offence to some people, they are presented as entertainment and are not within the scope of the prohibition. …

There is an exemption relating to the making or publishing of a fair report of an event or matter of public interest. The media is entitled to report events as they happen. The publication must be fair. The provision would not effect the accurate reporting of public debate on matters of acknowledged sensitivity, for example, policy on Native Title or Migration.

Finally, there is an exemption for the making or publishing of a fair comment on a matter of public interest. This is qualified by the requirement that the comment be an expression of a genuine belief held by the person making the comment. This is also subject to the overall qualification in section 18D that to be exempt, anything said or done must be said or done reasonably and in good faith.

In relation to all three subparagraphs, the respondent submits that they are all subject to the requirement that the conduct be undertaken “reasonably and in good faith”. There was no evidence to suggest that the publication was done unreasonably or in bad faith and the contrary was never put to Mr Murray.

In relation to subparagraph (a), there is no doubt that this is an artistic work which means something that the general community would regard as a work containing significant artistic content. The cartoon is such a work; each panel contains work of artistic merit. The cartoonist is regarded as an artist and his works are displayed and sold as such. There is no evidentiary basis for a contrary finding. The complainants’ attempt to distinguish between the words and drawings does not reflect the terms or intention of s.18D.

Second, in relation to subparagraph (b), the cartoon has a genuine purpose in the public interest, that is, to encourage public debate on issues of public interest. Lange v ABC [1997] HCA 25; (1997) 189 CLR 520 stresses the public interest in free debate on matters of public controversy. The publication of cartoons is an important aspect of such debate. There can be no suggestion that the cartoon was published for anything other than a genuine purpose in the public interest. No such proposition was put to Mr Murray.

Third, in relation to subparagraph (c)(ii), the content of the cartoon is fair comment on a matter of public interest. It is not the publication itself which must be in the public interest, but the content of the publication. The content of the publication – the return of Yagan’s head – was a matter of public interest.

Further, the law of defamation provides guidance in respect to whether the comment is fair. Thus, comment that is hyperbolic, strong or unjust may still be fair. That the Commission may disagree with it also does not render comment unfair.

In relation to the genuine belief of the newspaper, the relevant belief is that of its editor, Mr Murray. Mr Murray gave uncontested evidence of his beliefs and this is corroborated by the editorial of 27 August 1997.

6.3 Complainants’ submissions in reply

In summary, the complainant made the following submissions in reply:

* The objective standard in s.18C is referable to the persons likely to be offended and not the audience. The Casey test is not appropriate although the Neal test does focus on the affected group.

* The views of a section of the community should not be dismissed because they are a minority group.

* The “substantive differences in cultural approach” are precisely the kind of matters which human rights legislation is designed to protect. Section 18C is intended to make unlawful “racist defamation”.

* The peculiar sensitivities of an individual are relevant for the purpose of quantification of damages (the “eggshell skull rule”).

* This case is not about disagreement with a cultural attitude or practice, as in the Awa case. In this case, the publication complained of makes “sarcastic side-swipes” at matters of Nyungar culture in the course of commenting on the conduct of individuals.

* It is not necessary for there to be evidence that Mr Murray had subjectively considered as a reason for publishing the relevant material that the group were of a particular racial or ethnic group in order to meet the requirements of s.18C(1)(b). The only reasonable inference open is that the references to the ancestry of the complainants, the Waugyl and Yagan had no meaning but for their racial or ethnic significance in relation to Nyungar people.

* If the Commission were to reach a conclusion that the work of Alston is capable of being considered to be “an artistic work”, the reproduction or publication of this work in hundreds of thousands of copies of the newspaper is not the “distribution of an artistic work” within the terms of s.18D(a).

* It is not denied that there were matters of public controversy referred to in the cartoon which could be said to have been published for a genuine purpose in the public interest, or to be a comment based on a genuine belief. However, this does not make it “reasonable” or “fair”, as is required to sustain the exemption in s.18D, to include within the cartoon published the references to ancestry, the Waugyl and Yagan, in the form in which they appeared.

7. FINDINGS OF FACT

I have considered the evidence before the Commission and make the following factual findings.

Firstly, the cartoon in question, titled “Alas Poor Yagan”, and annexed to this decision, was published in The West Australian newspaper on 6 September 1997. It was drawn and written by Dean Alston, an employee of the newspaper, and clearly published with the support of the newspaper’s editor Paul Murray. These facts are not disputed by the respondent. Mr McIntyre for the complainants summarised the cartoon and the way in which the various frames breached the relevant provisions of the legislation. I adopt that summary as representing the views generally of the complainants, as detailed in their evidence. I do not adopt the summary as representing what the cartoon portrays. It is a complex work, and represents different things to different people.

Mr Alston did not give evidence, but even if he had it seems to me that his view, too, could only represent one person’s view of the cartoon, albeit that he was the person who drew and composed it. However, as indicated earlier, the evidence of the complainants is relevant in my assessment of the objective test for the purposes of my decision. I particularly note the evidence of those of the complainants who were members of the delegation who travelled to England to bring back Yagan’s head. I accept their evidence that this was a very spiritual experience for them, and that this cartoon would have been particularly distressing. A number of the witnesses, both in the delegation and not, compared the return of Yagan’s head to the symbolic return to Australia of the body of the unknown soldier from Gallipoli, and I find this to be a valid analogy.

I accept the evidence of Paul Murray, confirmed by the complainants, that much material relating to the return of Yagan’s head had been published in The West Australian in the few weeks prior to the publication of the cartoon. The people referred to in the cartoon had been referred to on previous occasions. Some litigation had occurred regarding the matter, and the preparations for and trip of the delegation had received much publicity. The West Australian had, editorially, recognised the importance of the return of Yagan’s head as a means of unifying the Aboriginal community, and had been critical that its return had become the subject of further division.
8. FINDINGS ON THE LAW

8.1 General approach to the interpretation of Part IIA

8.1.1 Introduction

The Racial Hatred Act 1995 (Cth) (the “RHA”) inserted Part IIA into the Racial Discrimination Act 1975 (Cth).

Part IIA deals with the prohibition of offensive behaviour based on racial hatred making it unlawful to do a public act which is likely to “offend, insult, humiliate or intimidate another person or group of people” where the act is done because of their race, colour or national or ethnic origin (s.18C).

The Racial Hatred Bill 1994 (the “Bill”) was introduced largely to address concerns highlighted by the Human Rights & Equal Opportunity Commission’s National Inquiry into Racist Violence (1991) (“NIRV”) and the Royal Commission into Aboriginal Deaths in Custody (1991) (“RCADC”).

The NIRV found, inter alia, that “racist violence on the basis of ethnic identity in Australia exists at a level that causes concern and it could increase in intensity and extent unless addressed firmly…”(p. 387). The RCADC noted that Aboriginal people suffered verbal abuse constituting racial vilification as part of systemic discrimination, particularly at the point of contact with the police (p. 71).

The Bill was thus introduced to “close a gap in the legal protection available to the victims of extreme racist behaviour” (see House of Representatives, Explanatory Memorandum).

The Bill generated considerable debate within the Australian community before it was passed by the House of Representatives on 16 November 1994. The debate focussed on how laws purporting to provide protection to victims of racist behaviour impact upon freedom of speech.

8.1.2 Freedom of speech

Since 1992 there have been a series of decisions handed down by the High Court of Australia which have become collectively known as the Free Speech Cases (Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1; Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104; Cunliffe v Commonwealth [1994] HCA 44; (1994) 182 CLR 272).

While these cases do not enunciate a right to free speech per se, they do find that the representative nature of the Australian democracy is reflected in the Constitution and that the protection of political speech and communication is an inherent requirement of the democratic structure. (Theophanous v Herald & Weekly Times [1994] HCA 46; (1994) 182 CLR 104 at 121 per Mason CJ, Toohey and Gaudron JJ).

However, around the time that the Bill was introduced the above formulation was accepted by many as giving rise to a broader implied right to freedom of speech. The argument was that because government may legislate on a wide range of matters, nearly every area of life is political. Thus “ . . the freedom of communication on public affairs and political discussion is, in truth, no different from freedom of speech”. (see Sir Maurice Byers, “Free speech a certain casualty of race law”, The Australian 21 November 1994, p.11; see also the Explanatory Memorandum to the Bill which notes, inter alia, that “the High Court has recently established an implied guarantee of free speech inherent in the democratic process enshrined in our Constitution”).

In this regard it should be noted that since the Bill was passed there have been two further High Court decisions which have relevantly limited the right (Levy v State of Victoria (1997) 189 CLR 579; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520). The limitation is explained by McHugh J in the following terms:

“The freedom protected by the Constitution is not … a freedom to communicate. It is a freedom from laws that effectively prevent members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided by the Constitution…[O]ur Constitution does not create rights of communication. It gives immunity from the operation of laws that inhibit our right or privilege to communicate about political or government matters” (Levy v State of Victoria (1997) 189 CLR 579 at 622 per McHugh J)

The protected freedom is therefore the freedom to communicate about political or government matters so as to enable people to exercise a free and informed choice as electors. The sections of the Constitution from which that freedom is implied preclude the curtailment of the freedom by legislative or executive power, but they do not confer a personal right to the individual of freedom of speech (Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 560).

Even if a right to free speech existed, there are several legal limitations to it. As Freckleton notes, “…an enormous array of legislation regulates what may and may not be said” (“Censorship and Vilification Legislation” (1994) 1 Australian Journal of Human Rights 327 at pp. 334-335). Libel laws and obscenity and indecency laws are just a few examples of such limitations (see also the Explanatory Memorandum which notes that there is no unrestricted right to say or publish anything regardless of the harm that can be caused; see also Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701 at 78,266 where the Tribunal noted that the right to free expression “has never been an absolute or unequivocal right”).

Nevertheless, at the time the amendments were debated there was, and probably still is, a public perception that a right to free speech exists. The debate therefore was whether a legislative proscription of acts which may be seen to be racially vilifying was an unfair intrusion on freedom of speech.

8.1.3 The debate surrounding the introduction of vilification legislation

On a general level free speech proponents argued that legislation purporting to regulate expressions which may be seen as racially vilifying impedes the proper expression of contrary points of view. Freckleton argues that “passionate denunciation or the use of caricature can easily enough merge into the giving of offence, the exposure to ridicule and the expression of reasoned and unreasoned intolerance. The line between criticism and abuse all too often is blurred. A danger that exists in this regard is that vilification laws may be used by subgroups within racial minorities to suppress proper expression of disagreement” (Freckleton, op cit. at p. 339; see also R v Keegstra(1991) 61 CCC (3d) 1 at 120, where a minority of the Canadian Supreme Court questioned intrusions by government departments into freedom of speech where it would never have been previously allowed but for the introduction of similar legislation in Canada. Some of the examples cited include the banning of Leon Uris’ 1984 novel, The Haj on the basis that it was pro-Zionist and Salman Rushdie’s Satanic Verses on the basis that it violated s.319.2 of the Canadian Criminal Code (wilful promotion of hate against an identifiable group)).

This argument is often termed the ‘tolerance argument’ and is based on the notion that people should be tolerant of all view points no matter how offensive or undesirable the opinion expressed might be.

The argument further states that by allowing hate speech to be heard, “we are reminded of how undesirable it is, our commitment to “tolerance” is reinforced, and we are theoretically forced to combat hate speech as a community” (McNamara and Solomon, “Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?” (1996) Adelaide Law Review 259 at p 285). On this view, the way to fight hate speech is to counteract it with more speech, not by legislative proscription.

Other arguments put forward in a similar vein are the ‘truth seeking and ‘market place of ideas’ arguments.

The rationale of the truth seeking argument is that all ideas and views, no matter how unpalatable for some, should be expressed as a way of seeking the truth. Building on this the ‘market place of ideas’ argument holds that the expression of all ideas is necessary not only for seeking truth, but for upholding the democratic process as a whole. As Freckleton argues:

“The input of multiple voices into the democratic process is fundamental to the integrity of government decision-making. Expression is an integral part of the development of ideas, of extending the boundaries of knowledge and of understanding the human condition. It is vital that dissenters, in particular dissenters whose discord is politically unwelcome or iconoclastic, not be suppressed from involvement in the process. Once the freedom to contribute to public debate is significantly restricted, the integrity of the democratic fabric loses a vital element” (op cit. at p. 338).

On the other side of the equation, those in favour of legislation proscribing racially vilifying conduct denounce the use of the free speech doctrine for attacking legislation designed to protect victims of racial hatred.

In the first instance they deny that there is an entrenched constitutional right to free speech. In light of the High Court decisions in Levy and Lange this argument probably holds more sway. However, they argue if there exists a right to free speech it should not be used to allow the denigration of victims of racial hatred (see JR v Wholesale Travel Groups Inc (1991) 3 SCR 154; R v Zundel (1992) 95 DLR (4th) 202 cited in Mahoney, “Hate Vilification Legislation and Freedom of Expression” [1994] AUJlHRights 21; (1994) 1 Australian Journal of Human Rights 353 at p. 359). As Mahoney argues, “this misunderstands the proper role of governments and free speech” (ibid.).

With respect to tolerance based arguments, proponents of racial vilification legislation say that such arguments tend to portray the victims of hate speech as intolerant, rather than focussing on the behaviour of the perpetrator(s) and its consequences. They also tend to portray incidents of racial intolerance as isolated. This skews the way in which society perceives racially motivated incidents because they are seen as harmless pranks in which the victim is simply being overly sensitive. As McNamara and Solomon point out, “tolerance” then becomes an excuse for “non-responsiveness and non-regulation” whenever incidents of racial hatred occur (“Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?” (op cit at p 285). In this equation the victim’s context is ignored and the actual harm suffered by the victim is denied.

A racially motivated incident is generally not seen by the victim as an isolated incident. In most cases, even though the victim may not have previously suffered a personal attack, it is likely that other members of the victim’s community, or the community as a group, have been targeted before. In this way “…it is logical [for the victim] to link together several thousand real life stories into one tale of caution”: Matsuda, “Public Response to Racist Speech: Considering the Victim’s Story” (1989) 87 Michigan Law Review 2320 at p. 2331. For the victim, therefore, incidents of racial hatred are not inconsequential but real, and increased vigilance (or ‘over sensitivity’) is not only justified but necessary.

In terms of the harm suffered, the negative effects of hate speech are very real. As Matsuda observes, “[v]ictims of hate propaganda have experienced physiological symptoms and emotional distress ranging from fear in the gut, rapid pulse rate and difficulty in breathing, nightmares, post-traumatic stress disorder, hypertension, psychosis and suicide” (op cit at p.2336). Professor Patricia Williams refers to the psychic impact of racist speech on the victim as “spirit murder” (“Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law’s Response to Racism” (1987) 42 Miami Law Review 127 at 129 cited in Matsuda).

Some commentators observe that the effects of hate speech are such that it is not uncommon for victims to do whatever they can to avoid receiving hate messages, to the extent of moving home or leaving a job. In this way the victim’s freedom can be completely curtailed as a result of hate speech (see Matsuda, op. cit at p.2336-2338; Sake Akmeemana and Melinda Jones, “Fighting Racial Hatred” in Racial Discrimination Act 1975: A Review, Race Discrimination Commissioner”, AGPS, 1995 129 at p.150).

On a group level, racist speech has the effect of subordinating a particular group, the ultimate aim of which is to exclude that group from participating freely and without fear in the body politic (see Akmeemana and Jones, supra); McNamara and Solomon, op cit. at p.286). In the extreme case, the subordination of the group can lead to conduct of a violent nature such as rape, torture and genocide. History and more recent events have proved that these harms are real.

In light of these harms, proponents of racial vilification legislation have also denounced the ‘truth seeking’ and ‘market place of ideas’ arguments.

With respect to the truth seeking arguments, they say that speakers and writers of racist speech purposely misquote and fabricate evidence. As such, “rather than serving as a means to discover the truth, hate propaganda conceals the truth about the target groups and takes away or chills their speech through a system of … racism. (Mahoney, op cit. at p.361). On this basis, hate speech is often the antithesis of truth seeking and should not be used as a justification for non-regulation of racial vilification.

In relation to the market place of ideas argument, some commentators argue that the barriers in accessing the public forum which exist for most disadvantaged groups, particularly ethnic minorities, are completely ignored. There is an assumption that all groups in society enjoy equal access to information and the opportunity to communicate and be heard (see Mahoney op cit. at p.361-362 and McNamara and Solomon, op cit. at p.286). However, as Mahoney argues, “[b]ecause equality of access to the media does not exist between advantaged and disadvantaged groups, reliance on the “marketplace” to protect the disadvantaged from the promotion of hatred against them is guaranteed to fail” (op cit. at p.361). Therefore, the only way to protect victim communities from racial hatred is for the State to legislatively proscribe hate speech.

8.1.4 The Balancing Exercise

The enactment of Part IIA of the RDA was intended to answer that call. However, in crafting that legislative response, the Commonwealth Parliament appears to have intended to strike a balance between two rights: the right to freely express or communicate certain matters and ideas and the right to live free from vilification.

That intention may be discerned from the Explanatory Memorandum, where it was stated:

“The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour, national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour, or national or ethnic origin.”

The structure of the legislation provides the framework within which this balancing exercise must take place.

The general protection for individuals or groups from harassment or fear because of their race, colour, national or ethnic origin is set out in s.18C. Section 18D then sets out what can be viewed as a protection of freedom of particular forms of expression, by outlining certain exemptions to which the general prohibition of s.18C will not apply. The exemptions, which are discussed further below, aim at preventing the stifling of activities which, although likely to offend etc are done reasonably and in good faith.

In practical terms then:

“It is for the complainant to establish that the respondent’s act was reasonably likely to offend, insult, humiliate or intimidate another person or group, and that the act was done because of the race, colour, or national or ethnic origin of the complainant or group of people of which the complainant is a member. However, if so established, the onus then rests with the respondent to show, on the balance of probabilities, that his or her action falls within one of the exemptions in section 18D” (Explanatory Memorandum).

It is against this background that I must construe the provisions set out in Part IIA.

8.2 Who are the complainants?

The original complaint was lodged by Ms McGlade “on behalf of the Nyungar Circle of Elders”. Commissioner Johnston was of the view that, as the Elders had no specific legal personality, the complainants needed to be separately named. Mr McIntyre put to me that the complainants were “a collection of individuals on behalf of the Nyungar Circle of Elders who are representative of that group or at least a portion of that group”.

The complaint was not lodged as a representative complaint and there was no evidence before me that the legislative requirements for such complaints have been met. Consequently, I am of the view that the complainants in this matter are the seven named Nyungar Elders, being Albert Corunna, Richard Wilkes, Ken Colbung, Robert Bropho, Leisha Eatts, Mingli Wanjurri and Violet Newman.

8.3 Was there an “act” within s.18C(1)?

The relevant act is the act of publication of the cartoon and this is not in dispute. This is noted in my findings of fact.

8.4 Was the act reasonably likely to have the effects alleged?

In considering this question, I have taken into account the evidence of the complainants, and Dr Mickler to a limited extent. The RDA clearly specifies an objective test and the case law supports this construction (See the comments of Sir Ronald Wilson, the then President of the Commission, in Bryant v Queensland Newspapers Pty Ltd, op cit).The President formed this view because of the words “reasonably likely” and indicated that a complaint would not be successful merely because a complainant was offended by a particular action.

Commissioner Wilson appeared to assume that the question of whether a person would be reasonably likely to be offended by a particular action should be asked in terms of whether the complainant or persons of the race, colour, or national or ethnic origin of the complainant would be reasonably offended. The Commissioner stated:

But are the words reasonably likely to offend, insult, humiliate or intimidate the complainant or some people of English origin ? (p 3)

This suggests that the “reasonable person” may be a reasonable person of a particular race, ethnic origin etc. However, it is not clear what characteristics would be considered relevant for the purposes of the objective test. Commissioner Wilson indicated that assessment of whether a particular action would be reasonably likely to offend would be “a question of fact in every case, depending on the context in which the allegedly offensive word or words is used.”

Although section 20C of the New South Wales Anti-Discrimination Act 1977 (the “ADA”) makes it unlawful to incite hatred towards, serious contempt for or severe ridicule of a person or group on the ground of their race, that section involves a consideration of the concept of the reasonable person which is useful in the current context. The case of Harou-Sourdon v TCN Channel Nine Pty Ltd (1994) EOC 92-604 followed the Australian Broadcasting Tribunal’s decision in the Inquiry into Broadcasts by Ron Casey (1989) 3BR 351. The test for whether a person had engaged in acts that would “incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of race of the person or members of the group” (s. 20 C(1) ADA) was considered to be an objective one based on a hypothetical listener or viewer. In Harou-Sourdon, the Equal Opportunity Tribunal referred to the statement made in the Ron Casey decision:

The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal’s view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views. (Inquiry into Broadcasts by Ron Casey at 357)
The description of the reasonable person in defamation law by Hunt J. in Farquhar v Bottom (1980) 2 NSWLR 380 at 385-6 is often relied upon-

I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation … I must proceed upon the basis that the ordinary reasonable reader is a person of fair average intelligence …who is neither perverse … nor morbid or suspicious of mind… nor avid for scandal… and does read between the lines in the light of his general knowledge and experience of worldly affairs…. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer

In Western Aboriginal Legal Service v Jones (2000) NSW ADT 102 the Tribunal, interpreting the equivalent NSW legislation which is differently worded, said

The question of what standard to apply in determining whether a statement is defamatory has not been answered uniformly. The criterion commanding the widest verbal support seems to be the reaction aroused in citizens of “fair average intelligence” or “ordinary decent folk in the community taken in general”. The test is not identical with “reasonable” still less with “ideal” …the increasing diversity of beliefs and attitudes in modern (Australian) society precludes an appeal to a single standard of “right-thinking” people, and suggests as sufficient that the allegation was calculated to stir up adverse feelings among a substantial and respectable group of the community, though not in other quarters …. On the other hand, it is not sufficient that the words are regarded as prejudicial by only a small minority whose standards are so anti-social that it would not be proper for courts to recognise them.”
This decision was overturned on appeal, but not on this point.
Some interesting comments are made in the article by Akmeemana and Jones (op cit). This article deals briefly with the objective standard contained in s.18C of the RDA:

The section requires an objective consideration of the context, of the circumstances or environment in which the act occurred. The question arises as to whether the evaluation of the offensive nature of the comments should be based on the view of the ‘reasonable victim’ as to what is offensive, or that of the reasonable person in the general public. Unless the ‘reasonable victim’ standard is adopted, the standards of the dominant class are merely perpetuated and there is no sensitivity to cultural difference…The adoption of the ‘reasonable victim’ standard can be interpreted as a means of eliminating a systemic barrier. Complainants will no longer be subject to the views of the dominant group concerning the types of comments that are offensive. (p168).

This view seems to confirm and expand on the comments made by Sir Ronald Wilson in the Queensland Newspapers case referred to above. In Stadnyk v Canada Employment and Immigration Commission, the Canadian Human Rights Tribunal adopted the “reasonable victim” perspective in determining whether particular questions asked of the complainant in a job interview and refusal to employ the complainant constituted sexual harassment or sex discrimination. The complainant was a well known media figure because of a previous human rights complaint relating to sexual harassment in a traditionally male dominated occupation. In a job interview with the Canada Employment and Immigration Commission, the complainant was asked for her response to a number of hypothetical situations of sexual harassment and was questioned extensively about her relationship with the media.

The court referred to a United States Court of Appeal decision, Ellison v Brady which went “beyond merely the reasonable person/objective standard” to adopt the “reasonable victim’s perspective” (at D/192). The Court of Appeal stated:

..we believe that in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim…If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of re-enforcing the prevailing level of discrimination. Harassers could continue to harass merely because a particular discriminatory practice was common, and victims of harassment would have no remedy.

We therefore prefer to analyze harassment from the victim’s perspective. A complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that men consider unobjectionable may offend women…

In the Ellison case, the test was the perspective of the “reasonable woman”:

In order to shield employers from having to accommodate the idiosyncratic concerns of the rare hypersensitive employee, we hold that a female employee states a prima facie case of hostile environment sexual harassment when she alleges conduct a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment..

We adopt the perspective of a reasonable woman primarily because we believe that a sex-blind reasonable person’s standard tends to be male-biased and tends to systematically ignore the experiences of women.

In Stadnyk v Canada Employment and Immigration Commission, the Tribunal Chairperson was prepared to adopt the reasonable victim test for the purposes of the case and assume “a heightened degree of sensitivity and concern about sexual harassment by the reasonable person (in this case, a reasonable woman)”. (p D/193). However, the Tribunal Chairperson did not find the conduct of the interview or the denial of the opportunity offensive and considered the complainant to fit the definition of the “rare hyper-sensitive employee” referred to in the Ellison case. In the appeal of the Stadnyk decision in 1995, the Canadian Human Rights Review Tribunal specifically referred to the standard of the reasonable woman used by the Tribunal Chairperson and found no error in law (p D201).

It seems to me that, in the context of remedial legislation such as the RDA, and noting the comments in Australian cases and articles, and US and Canadian cases, the reasonable victim test is the appropriate test to adopt. This addresses the difficulty inherent in the reasonable person test of continuing the dominance of the dominant class or group, yet recognises that the views of a hypersensitive “victim” or member of the relevant class will not prevail. It is a matter for me to decide whether a reasonable victim, in all the circumstances, would have experienced the effects alleged.

In this context, I have considered the evidence of the complainants as relevant to the reaction of a reasonable Nyungar person to the cartoon. While the reactions of the complainants are not determinative of the question I have to decide, they are clearly relevant.

I have also taken into account the evidence of Dr Mickler in so far as it provides an analytical context for the understanding of communications regarding indigenous persons in the Western Australian media. I have not used Dr Mickler’s evidence for any broader purpose.

I agree with the submission of the respondent that the context in which the article appeared; that is, the preceding articles in The West Australian are relevant to consideration of the questions before me and I have taken them into account where appropriate. For this reason, I am not persuaded that the cartoon introduces people to the public arena who have not previously been there. The respondent’s submissions are particularly relevant in respect of consideration of s.18D and they are discussed below in this context.

I am satisfied that, based on the reasonable victim test, a reasonable Nyungar or Aboriginal person would have found the contents of the cartoon offensive, insulting, humiliating or intimidating. In fact, although my findings above make it unnecessary to take the further step, I also find that a reasonable person, not necessarily of Nyungar or Aboriginal descent, would also have found the cartoon offensive or insulting. Perhaps they would not have found it humiliating or intimidating if they were not of those races, but a finding on the first two would be enough to satisfy the statute. I have formed this view because-

Firstly, the cartoon presents a demeaning portrayal of Yagan, an ancestor of the complainants – particularly the reference to a warm beer and a quiet pommie pub in the context of the widespread community view regarding the relationship between alcohol and Aboriginal people.

Secondly, the cartoon contains derogatory and demeaning references to the Waugyl, a religious figure.

Thirdly, it treats the issue of death in a manner which causes offence to Aboriginal people.

Fourthly, it provides intimate details of the ancestry of individuals in circumstances where the intercourse was not a matter of choice for the Aboriginal women concerned, and suggests a diminishing of the race by the resultant racial mix.

Fifthly, it reinforces a misinformed and stereotypical view of Aboriginal people of taking advantage of government grants.

8.5 Was the act done because of race or ethnic origin?

Section 18B provides that this must only be one of the reasons for the doing of the act, and not necessarily the dominant or substantial reason. I must therefore determine whether it was one of the reasons for the publication of the cartoon.

There is no doubt in my mind that one of the reasons for the publication of the cartoon was the race of the persons referred to in the cartoon, and of the complainants. Yagan is a well-recognised and highly regarded ancestor of the Nyungar people. The cartoon was an attempt to laughingly and mockingly represent the issues around the return of Yagan’s head to Perth. Whilst it was dealing with this as an issue important to all members of the Western Australian community, there was a clear causal connection between this and Aboriginality.

Further, there are numerous allutions in the cartoon to traits or sectors of Aboriginal people and society – elders, the Waugyl, and Yagan himself. Finally, all of the people referred to in the cartoon are involved with the issue because of their Aboriginality.

8.6 Was The Act Done Otherwise Than In Private
Section 18C (2) (a) provides that an act is done otherwise than in private if it “causes words, sounds, images or writing to be communicated to the public”. There are few better ways of communicating something to the public than publishing it in a statewide newspaper such as The West Australian. The legislators clearly intended this exception to relate to private situations, where such behaviour is not regulated. There has been some discussion in earlier cases of more borderline situations such as words spoken on private property but heard in public places, or whether employment is otherwise than in private. This is not one of those borderline situations, and there is no doubt that this act was done otherwise than in private.

8.7 Exemptions

8.7.1 Introduction

As mentioned in 7.1 above section 18D sets out certain exemptions which can be viewed generally as protecting expressions or communications of a certain nature to which the general prohibition of s18C will not apply.

Section 18D provides:

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.

As stated in the explanatory memorandum to the amending legislation, “the exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest.”

8.7.2 Approach to exemptions

Where a respondent seeks to claim the benefit of the exemptions under s.18D they have to satisfy the Commission that each element necessary to succeed has been established: Bryl and Kovacevic v Nowra and Melbourne Theatre Company (1999) Human Rights & Equal Opportunity Commission, 21 June 1999, per Commissioner Johnston at p.15 (Bryl).

In deciding whether those elements have been satisfied, the exemptions should be read broadly rather than narrowly (Bryl at p15). Bryl related to the performance of a play which the complainants argued offended, insulted, humiliated and intimidated a group of about 40 people “loyal to the lawful republic of Bosnia-Herzigovina”. The complainants claimed that the characters in the play were portrayed in an offensive manner because of their national or ethnic origin.

In expressing the opinion that a broad interpretation was necessary, Commissioner Johnston stated:

This is consistent with the presumption that a fundamental tenet of the common law is freedom of expression (Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109 at 283; Brown v Classification Review Board (1998) 154 ALR 67 at 76-77). Incursions by statute into freedom of expression should not be lightly assumed. A statutory provision that purports to have that effect should be strictly construed (Coco v R [1994] HCA 15; (1994) 179 CLR 427 at 437).

Freedom of expression is not, of course, absolute. It is, when viewed in relation to a provision like section 18D, a consideration to be taken into account when determining whether conduct is exempt, even if it otherwise would contravene section 18C. Section 18D is a corrective provision to prevent government from stifling non-conformity or ideas that may displease, or which some find offensive.

Some commentators have argued that the breadth of the exemptions undermines the protection afforded by s 18C: (Akmeemana and Jones, op cit; Eastman, “Drafting Racial Vilification Laws: Legal and Policy Issues” (1995)Australian Journal of Human Rights 285; Solomon, “Problems in Drafting Legislation Against Racist Activities” [1994] AUJlHRights 17; (1995) 1 Australian Journal of Human Rights 265). One could also argue that a broad interpretation of the exemptions is contrary to the presumption that exemptions in beneficial legislation should be construed narrowly rather than broadly.

The exemptions are, however, to be read in conjunction with the overriding consideration as to whether the relevant act complained of was said or done “reasonably and in good faith”, which may, to some extent, confine the scope of the exemptions.

8.7.3 The overriding requirement that the act be ‘reasonable and in good faith’

The Explanatory Memorandum states:

The operation of … s.18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes what he or she is saying.

The respondent bears the onus of demonstrating that they acted reasonably and in good faith.

In Bryl and Kovacevic v Nowra and Melbourne Theatre Company Commissioner Johnston noted with respect to the requirement of reasonableness that “a margin of tolerance” should be exercised in deciding what is reasonable, and that the Commission should “not find the threshold of what is unreasonable conduct too readily crossed”. He further stated that “moral and ethical considerations, expressive of community standards, are relevant in determining what is reasonable”.

With respect to the requirement of good faith Commissioner Johnston stated that a finding that a respondent committed an act lacking good faith:

requires the Commission to identify 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 … reflect the true situation, is not capable of grounding an adverse finding of bad faith for the purposes of section 18D” (p.19)

Those comments were made in the context of considering a dismissal application pursuant to section 25X of the RDA. However, I consider that they have more general application.

Some useful guidance may also be obtained by considering the defence of fair comment. In Western Aboriginal Legal Service v Jones (supra) the defamation law fair comment defence was contrasted with the NSW exemption relating to matters done “reasonably and in good faith”. The Tribunal stated:

It is apparent that the common law defence of fair comment is broader or more liberal than the exception in section 20C(2)(c) that the public act be “done reasonably and in good faith”. For a comment or statement to be “reasonable”, as opposed to “fair”, it must be one which the ordinary, reasonable person would consider to be reasonable in the circumstances of the case. In contrast, as Professor Fleming indicates … “a comment which is fair need not be reasonable …it may be exaggerated, obstinate or prejudicial, provided it is honestly held”. It follows that a comment or statement which is exaggerated, obstinate or prejudiced, is unlikely to be “reasonable”.If a statement is made in “good faith” that would appear to be the converse of acting with malice. “Good faith” appears to imply the absence of spite, ill-will or other improper motive. As with malice, “good faith” appears to be a state of mind, and the crucial factor in determining the presence of “good faith” would seem to be “whether the commentator honestly believed in the truth of what he or she said”.

I am satisfied that, in this instance, the respondent acted reasonably and in good faith. The cartoon concerned was published after a series of articles and editorial comments dealing with this issue. It was an issue of importance for the West Australian community in general, as well as to the Aboriginal community, and was treated as such by the newspaper. In publishing the cartoon I am satisfied that the newspaper did not act outside Commissioner Johnson’s “margin of tolerance”.

Testing the cartoon against “moral and ethical considerations, expressive of community standards” I am satisfied that the newspaper acted reasonably. While it may be argued that the cartoon could be characterised as “exaggerated” or “prejudiced”, I do not consider that it was sufficiently exaggerated or prejudiced (having regard to the surrounding circumstances) to breach the standard of reasonableness. Paul Murray gave evidence that he had made a judgement call, knowing that the cartoon would receive some opposition, but forming the view that it was appropriate to represent an important community issue in this way.

My view in this area is strengthened by reading the other material in The West Australian published on this issue, which provided a balanced report of what took place, and an opinion which, in the main, encouraged unity in, and support of, the Aboriginal community. There was no evidence before me which suggested that the conduct of the respondent smacked of “dishonesty or fraud” to follow Commissioner Johnston’s formulation for the good faith requirement. Nor was there evidence of “malice” on the part of the respondent. I am therefore satisfied that the respondent is able to make out the first requirements of s 18D.

8.7.3.1 Section 18D(a): something said or done in the performance, exhibition or
distribution of an artistic work

What falls within the exemption relating to artistic works depends on the interpretation given to the term ‘artistic work’.

The only area of law where the meaning of ‘artistic work’ has been considered in any detail is the area of copyright law.

Section 10 of the Copyright Act 1968 (Cth) (“Copyright Act”) defines an artistic work as:

“(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;

(b) a building or a model of a building, whether the building or model is of artistic quality or not; or

(c) a work of artistic craftsmanship to which neither of the last two preceding paragraphs applies;

but does not include a circuit layout within the meaning of the “Circuit Layouts Act 1989“.

It is not clear how much use such a definition might be in this jurisdiction, suffice to say that what appears to have been considered as an artistic work for the purposes of attracting copyright protection, is different to what Parliament appears to have contemplated as an ‘artistic work’ under the exemption in s.18D(a) of the RDA.

The reference to the ‘performance’ of an ‘artistic work’ in the RDA appears to contemplate that an artistic work can be a dramatic work of some description, such as a play or a film. Certainly this was the case in Bryl where the offending form of expression was a play.

However, the definition of artistic work in the Copyright Act, does not contemplate the performance of a play or a film. To the contrary the Copyright Act draws a distinction between ‘artistic works’ and what it defines as a ‘dramatic work’.

Nevertheless, the type of works which are considered artistic works under the Copyright Act are rather broad in themselves, and need not necessarily possess artistic quality, unless it is a work of artistic craftsmanship. With respect to the latter the House of Lords considered that to be of artistic quality, the work must have come into existence as the product of an author who is consciously concerned to produce a work of art: George Hensher Ltd v Restawile Upholstery (Lanes) Ltd [1975] RPC 31. This approach takes into account the creator’s subjective intention which, it is submitted, serves to broaden the type of works which may be considered ‘artistic works’.

Furthermore, as Akmeemana and Jones note, “a court would not be likely to introduce a distinction between ‘real artistic works’ and ‘pseudo artistic works'” (p171), particularly in this jurisdiction where freedom of expression is at issue as much as racial vilification.

In light of the above, it seems that ‘artistic work’ under the RDA would have to be interpreted broadly rather than narrowly.

This is precisely what some commentators fear will allow hate propagandists to spread their word behind the veil of art (see for example Akmeemana and Jones (p171)). Whilst I share the views of Akmeemana and Jones in this regard, it seems to me that there is no doubt that a cartoon is an artistic work in the sense intended by the legislators. Putting aside for the moment any views as to the content of the cartoon, the drawings and words relating to them are works of artistic merit. The cartoonist, Dean Alston, is regarded by the community as an artist, and has been recognised by the receipt of various awards as a successful one. Cartoons, as with paintings, drawings and sculpture, are widely acclaimed by society as works of art.

The complainants argue that while the original drawings may constitute an artistic work, their publication in a newspaper does not constitute exhibition or distribution and thus the publication is not protected by the exemption. This argument appears to me to be a nonsense. Such publication is the standard way in which cartoons are made available to the public. The newspaper is sold to the public, and prints of the original cartoons are sold separately. No doubt the cartoons are exhibited for the purpose of sale. In all of these ways the cartoon is distributed or exhibited.

The complainant’s alternative argument is that while the drawings may constitute an artistic work the written words accompanying them do not. Again, I cannot accept this argument. The words and the drawings together constitute the cartoon. To attempt to separate the two would be straining the meaning in the extreme. It would be analogous to suggesting that the cinematography in a movie was an artistic work, but the script or soundtrack were not. Whilst I agree that this exemption limits the racial hatred provisions of the RDA to a large degree it seems to me that the intent of the legislators is very clear.

8.7.3.2 Other Exemptions and Public interest considerations

Whilst my finding above means that the complaint will be dismissed, I have also considered the application of the second and third subparagraphs of the exempting section. Those sub-paragraphs include requirements that the communication or expression be in or involve matters of public interest.

The question of what is in the public interest has been considered in the context of the defamation law defences of fair comment and privilege. In that context, it has been held that whenever a matter “is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on, or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make a fair comment”: London Artists Ltd v Littler [1968] EWCA Civ 3; [1969] 2 QB 375 at 391; [1968] EWCA Civ 3; [1969] 2 All ER 193 at 198 per Lord Denning MR (CA). I consider that that approach to the question of what is in the public interest is of some assistance in the interpretation of the RDA.

However, for the reasons set out below, I consider that a direct application of the concepts of defamation law to the exemptions in the RDA would be unwise, because the two bodies of law safeguard two quite different sets of rights.

Section 18C of the RDA seeks to protect a person or a group from fear, humiliation or intimidation because of their race, colour or national or ethnic origin. Defamation seeks to protect an individual’s reputation. It arises where a person (the defendant) communicates any matter to a third party which would negatively impact upon the reputation of another person (the plaintiff) in the eyes of the third party.

While unjustifiable attacks on an individual’s reputation should not be countenanced, it is ultimately the individual who suffers the impact of the offence as he or she is personally affected. With breaches of racial hatred legislation, however, the impact differs. As mentioned elsewhere, matters constituting vilification , even if levelled at an individual, are rarely perceived as isolated incidents. The impact of the vilification is often felt by the racial or ethnic group to which the individual belongs.

In any event the RDA contemplates that breaches of the provisions of Part IIA can be levelled at groups as well as individuals. Such breaches therefore appear to have a wider social impact.

On this basis, different considerations will apply when seeking to determine what is in the public interest for the purposes of defences to the tort of defamation as opposed to exemptions to breaches of part IIA of the RDA.

One such consideration would be the social impact of the tort or breach. Justifying breaches of racial hatred legislation by reference to a ‘public interest’ in the free communication of information has the potential to be more socially divisive than justifying, on the same basis, an attack against an individual’s reputation. The public interest aspect of the exemptions in the RDA should therefore be read more narrowly, and the public interest of the racial group in question should be taken into account when considering the general public interest.

8.7.3.3 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.

The Explanatory Memorandum contains no guidance as to the purpose or breadth of this exemption. It does, however, appear that the exemption is rather broad. Certainly, the breadth of the exemption would be governed by the interpretation given to the term “genuine”, but the RDA does not explain which factors might be considered in determining what is a “genuine” purpose. The Explanatory Memorandum does nothing to clarify the position by simply substituting the term “genuine” with “worthwhile”. This prompts the question, what is a worthwhile purpose in the public interest?In my view “genuine” or “worthwhile” must contain some element of honesty of purpose. By way of example, if something is said or published with the primary intention of furthering a discussion or debate, then it would be genuine. If, in contrast, it was said or published with the intention of inciting hatred of a particular racial group, then this exemption could not apply.

In accordance with the ejusdem generis rule of statutory interpretation, “other genuine purpose in the public interest” would have to be of the same kind or nature of purpose as those already particularised. Whether this might include a political purpose or the purpose of furthering public debate has not been considered. It is, however, likely that such purposes would be covered. Eastman suggests that this exemption and the fair comment exemption (discussed below) were intended to cover political and public interest debates at all levels. She further argues that even if these exemptions did not exist, a respondent could still mount a defence on constitutional grounds given the implied freedom of political communication: see Eastman op. cit. p. 293. In my opinion it is therefore difficult to see what benefit might be gained from trying to exclude such purposes from the ambit of this exemption.

The respondent argues that this cartoon was published in the course of encouraging public discussion or debate about the return of Yagan’s head to Australia. Mr Murray gave evidence to the effect that that was his purpose in publishing the cartoon and it was not suggested to him that he was pursuing some other purpose. It was further asserted by the respondent that such a purpose could be characterised as a “genuine purpose in the public interest”. I accept those arguments, taking into account my view that one adopts a narrow interpretation of what is in the public interest in the context of the RDA. As indicated in my consideration of the “reasonable” and “good faith” provisions I have come to this view considering the cartoon in the context of other material published in The West Australian on this issue. Therefore, this second subparagraph would also exempt the cartoon from the application of s.18C.

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

The Explanatory Memorandum provides little guidance as to how the two exemptions in 18D(c) should be interpreted. In relation to fair reporting it states:

The media is entitled to report events as they happen. The publication must be fair. The provision would not affect the accurate reporting of public debate on matters of acknowledged sensitivity, for example, policy on native title or immigration.

Little is said regarding fair comment except that the exemption is qualified by the requirement that the comment be an expression of genuine belief held by the person making the comment and that the exemption is subject to the overall requirement of reasonableness and good faith.

It is clear, however, that these exemptions are intended to protect the free communication of both the details of and opinions about any matter of public interest.

Subject to the concerns expressed above regarding the application of “public interest” definitions derived from defamation law, I consider that defamation law provides some assistance in the interpretation of these exemptions.

What constitutes a fair report?

What might constitute a fair report in the context of the RDA exemptions has concerned some commentators. Eastman, for example, questions:

Is it fairness all round? Fairness to the victim, fairness to the reporter, or the manner in which the issue or event is reported ? (Eastman, op.cit. p 294).

In defamation law, the fairness or accuracy of a report has been considered largely in relation to reports of parliamentary and judicial proceedings. In relation to parliamentary proceedings:

. . . for a report to be fair it must not be slanted or distorted, although it will not lose that attribute by comprising a summary or sketch of any part of the proceedings which is of special interest: Cook v Alexander [1974] QB 279;[1973] 3 All ER 1037 (CA). Punctilious accuracy is not essential, so long as the report does not give a misleading impression of what was said or written in the legislature: Jones v John Fairfax & Sons Ltd (1986) 4 NSWLR 466 (CA). A report being essentially descriptive, is limited to an account of events which have happened, [and] cannot properly include comments or opinions of the reporter: Burchett v Kane (1976) [1980] 2 NSWLR 266 at 273 (Balkin & Davis, Law of Torts, Butterworths (1996), 2nd ed., p. 564)

Similarly, in relation to judicial proceedings it has been considered that to be fair and accurate, a report of such proceedings must not give a misleading picture of what happened at the proceedings: Jones v John Fairfax & Sons Ltd(1986) 4 NSWLR 466 (CA); Federal Capital Press of Australia Pty Ltd v Edwards (1992) 108 FLR 118 per Gallop J.

It is also clear that a report will not be fair if there is some mala fides involved in the writing or publication of the report. For example, a report in which the writer knowingly makes a false statement, or is influenced by spite or ill-will directed towards the person or people about whom the report is written would be unfair: see Wright v Woodgate [1835] EngR 354; (1835) 2 Cr. M&R 573 at 577; [1835] EngR 354; 150 ER 244 at 246 per Parke B, quoted in Lord Shaw in Adam v Ward [1917] AC 309 at 349 (HL) which discusses the instances in which qualified privilege in defamation law will be lost by abuse of the privilege.

It seems to me that the general view of a report would not include a cartoon. A cartoon by its nature is the satirisation of, or comment upon, something known to the audience of the cartoon. It goes further than reporting the details of events, although this may be a component. For that reason, the “fair report” provision does not, in my view, apply to the present matter.

Fair Comment

Although the cartoon is arguably a comment (as opposed to a report), the respondent did not lead any evidence regarding the belief of the maker of the cartoon (being Mr Alston). Section 18D(c)(ii) appears to require that I be satisfied that the comment represented the “genuine belief” of the person making the comment, as opposed to the publisher. In adopting that interpretation of section 18D(c)(ii), I note the distinction drawn at the beginning of section 18D(c) between “making” and “publishing” a comment or report. It therefore seems clear from the statutory context that Parliament intended that the locus of the relevant “genuine belief” was to be the person in the position of Mr Alston.
In those circumstances and in light of my findings above, I need not further consider the application of section 18D(c)(ii). I have, however, set out below my views regarding the interpretation of that section.

What constitutes ‘fair comment’?

In defamation law, a comment will be a fair comment if it is:
* based on a matter of public interest;
* a statement of opinion not fact;
* based on true facts; and
* honestly held.

Subject to the public interest concerns previously outlined, I see no reason why the above factors should not be used as a guide in determining whether a comment is a fair one for the purposes of applying the fair comment exemption under the RDA.

Matter of public interest

As noted above, the scope of the term “public interest” in the context of alleged breaches of Part IIA is narrower than in the field of defamation. The public interest of the racial group in question should be taken into account when considering the general public interest. Nevertheless, it would be my view (were it necessary to decide the issue) that the matters canvassed by the cartoon fall within that narrower definition of the public interest.

Statement of opinion not fact

It has been held that to be fair, a comment must appear to be “a deduction, inference, conclusion, criticism, judgment, remark or observation” as opposed to a “direct statement concerning, or description of ” a matter of public interest: Clarke v Norton [1910] VicLawRp 83; [1910] VLR 494 at 499 per Cussen J; Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 704 per Hunt J cited in Balkin and Davis op.cit p. 551.

The above formulation draws a distinction between a ‘comment’ on a matter of public interest as opposed to simply a ‘description of’ that same matter. This is the distinction between a fair report and a fair comment.

There is no reason why a comment should be limited to verbal expressions only. A written opinion can also constitute a comment for the purposes of the exemption. To the extent that a cartoon or caricature can convey an opinion or attitude, I see no reason why they too would not be covered by the exemption.

Based on true facts

As stated elsewhere, a report in which the writer knowingly makes a false statement would not constitute a fair report. Similarly, an opinion based on false statements would render a comment based on such statements an unfair one: Hunt v Star Newspaper Co Ltd [1908] 2 KB 309 at 319 per Fletcher Moulton LJ (CA); Thompson v ‘Truth’ & ‘Sportsman’ Ltd (1932) 34 SR (NSW) 21 at 25 (PC). However, there is some suggestion that the facts upon which the comment is based need not be precisely accurate as long as they are substantially true: Jeyretnam v Goh Chok Tong [1989] 1 WLR 1109 at 1114 (PC).

I need not express a concluded view on this point in light of my findings above.

Honestly held

Under s 18D(c)(ii), a comment will be fair if it is “an expression of a genuine belief held by the person making the comment”. In this context a “genuine belief” is synonymous with “a belief honestly held”.

As noted above, I am unable to be satisfied in relation to this element of the defence by reason of the fact that the respondent has not sought to adduce any evidence regarding Mr Alston’s state of mind. However, I have set out below some further comments regarding this element.

In terms of what may constitute a belief honestly held the prevailing view seems to be that most comments would be acceptable provided that the person making the comment honestly believed that what he or she was saying was true:

Every latitude must be given to opinion and prejudice…Mere exaggeration, would not make the comment unfair. However wrong the opinion may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limits: Merivale v Carson (1887) 20 QBD 275 at 280-1 per Lord Esher MR (CA).

The existence of the genuine belief component to the fair comment exemption has greatly concerned some commentators. Eastman, for example, argues that “[a] respondent to a complaint … merely need assert that his or her comments reflect their beliefs and they will be excused” (op. cit at p 289). Solomon further adds that this “…places more importance upon protecting the perpetrator’s statements or acts, no matter how evil-intentioned or reckless, than upon the harm caused to the targeted persons or group and to society generally”: Solomon op. cit. at p.276-277.

Despite the apparent latitude that must be given to opinion and prejudice, there are some limits placed on such comments.

Firstly, with respect to vilification offences, there are different public interest considerations as discussed above. While the matter on which the comment was made may be a matter of public interest, it may not be in the public interest to uphold the legitimacy of those comments because of the wider social harm that may be caused.

Secondly, there are situations in which the honesty of an opinion can be questioned. Where the comment is based on facts which the person making the comment knows to be false, then the opinion cannot be said to be a genuinely held belief. Furthermore, if the person making the comment is acting out of malice, then he or she cannot be said to be expressing their real opinion: see Renouf v Federal Capital Press of Australia Pty Ltd (1977) 17 ACTR 35 at 54 per Blackburn J. While these limits have only previously been applied in defamation cases, I see no reason why they should not apply in the context of the RDA exemption particularly bearing in mind that the comment is not protected unless it is made reasonably and in good faith.

Vicarious liability

At common law it appears that a publisher will be vicariously liable for opinions expressed by the author of a comment unless the publisher expressly states that it does not adopt the views expressed: Lyon v Daily Telegraph Ltd[1943] KB 746; [1943] 2 All ER 316 (CA); McLeod v Jones [1977] 1 NZLR 441; Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699; Telnikoff v Matusevitch [1992] UKHL 2; [1992] 2 AC 343 at 355; [1992] UKHL 2;[1991] 4 All ER 817 at 824-5 per Lord Keith (HL); Perran v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 at 328-9; [1993] HCA 64; 117 ALR 569 at 581-2.

This position is further enhanced by the provisions of s 18D of the RDA. Clearly, Mr Alston was the agent, if not the employee, of the respondent. Further, Mr Murray adopted his opinions in publishing the cartoon. This is not in issue, though, as the exemptions apply.

9. CONCLUSION

Whilst I am satisfied that the publication of the cartoon with which this matter deals is in breach of s.18C of the RDA, based on my findings in relation to the exemptions set out in s.18D the complaint is not made out. Accordingly, I dismiss the complaint the subject of this inquiry. In so doing I am conscious of the distress caused by this cartoon to the complainants, and I am satisfied that their evidence was a genuine expression of that hurt.

I am also cognisant of the commitment of the editor of the respondent, Mr Murray, to fairly report and comment on Aboriginal issues, and his genuine belief that the return of Yagan’s head should have been a unifying rather than a divisive process.

In the process of public debate the balancing of the sensitivities of the non-dominant racial group against the importance of commenting appropriately on issues of the day is a fine one. While this cartoon crossed that line, and made inappropriate references to Nyungar ancestors and beliefs, it did not breach Part IIA of the Racial Discrimination Act.

Dated this day of 12 April 2001

GRAEME INNES
INQUIRY COMMISSIONER

ANNEXURE A

 

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