Gardner, Michelle --- "Racial Vilification Legislation & the Anti-Discrimination Board" [1995] AboriginalLawB 37; (1995) 3(74) Aboriginal Law Bulletin 37

• Racial Vilification Legislation &Amp; The Anti-Discrimination Board
• Background
• The Wagga Wagga Eldridge Complaint
• The First Incident
• The Second Incident
• The Third Incident
• The Reasoning Of The Equal Opportunity Tribunal
• The Significance Of The Decision

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Racial Vilification Legislation & the Anti-Discrimination Board

by Michelle Gardner

Racial vilification law has been in place in NSW since 1989. Currently there is debate between the Federal Government and Opposition on whether similar legislation should be passed through the Commonwealth giving national coverage to racial vilification law. (See Nick Poynder, "Racial vilification legislation" [1995] AboriginalLB 57; 3(71)pg4.) On May 19 the Equal Opportunity Tribunal handed down its first substantive decision upholding a representative complaint of racial vilification by a group of indigenous people.

Background

Since enactment of the 1989 Racial Vilification amendments to the Anti-Discrimination Act 1977, the Anti-Discrimination Board has received in excess of 480 complaints alleging racial vilification. This includes a significant number of complaints from Aboriginal & Torres Strait Islander people who have alleged that they were vilified by someone in a public act because of their race.

Under the Anti-Discrimination Act, the definition of racial vilification extends to any act that happens publicly that could encourage others to hate, have serious contempt for, or severely ridicule a person or group of people because of their race.

While some of the complaints of racial vilification from Aboriginal and Torres Strait Islander people have been conciliated within the board it is not until the Wagga Wagga Action Group (on behalf of Atkinson) and Ors v Eldridge decision that a representative complaint alleging racial vilification has been referred to the Equal Opportunity Tribunal for determination.

The Wagga Wagga Eldridge complaint

The complaints made by a representative body called the Wagga Wagga Action Group on behalf of Mrs Marianne Atkinson and others, Whyman and Christian, were against Mr Jim Eldridge, an Alderman in the Wagga Wagga City Council. The complainants alleged that on three separate occasions Mr Eldridge made public statements about Aboriginal people that constituted racial vilification towards them as Aboriginal people. These were on 11 June 1993 at a local launch of the 1993 International Year for the World's Indigenous People in Wagga Wagga; on 28 June 1993 at the council meeting of the Aldermen of the City of Wagga Wagga and on 2 July 1993 on the Hinch programme.

The First Incident

The Tribunal heard that the Launch of the 1993 International Year for the World's Indigenous People, held at the Wagga Wagga City Council Chambers, was intended to be a public 'meeting of goodwill' between indigenous and non-indigenous Australians. Prime Local News was there to film the Launch, and the respondent, Mr Eldridge accepted their recording of the event as a true record for the purposes of this complaint.

Following a welcome speech from the organiser of the launch, Mrs Atkinson, Mr Eldridge interrupted proceedings, saying, "I have a right to speak for the white people... these half-caste radicals have made a claim upon the city and the people of the city and I have a right to speak on behalf of the white people in this city, against these radical half-castes..." This was ostensibly in response to claims by members of the Aboriginal community over land which included "sovereignty over the city of Wagga Wagga." Mr Eldridge was emotional, waving his arms around and was pointing to Mrs Atkinson when he said, "I refuse to accept the situation and pay over to these radical half-castes." Mr Eldridge left after being spoken to by a police officer, who was also attending the Launch. The Tribunal, however, found that Mr Eldridge attended the Launch with the deliberate intention to cause trouble and that "whilst the whole event took only a few minutes, his pre-planned publicity seeking actions clearly spoilt the whole event for those present."

The Second Incident

At this meeting, Council was dealing with a letter concerning the behaviour of Mr Eldridge on 11 June, written by Mr Christian. For the purposes of establishing the facts to this complaint, the transcript of the Council meeting was provided to the Tribunal. Mr Eldridge made references to Aboriginal people as "half-breeds", and said, "My people came down the river and established this city when nobody other than savages had been here before." He then stated, "for 30 years my people, the white people, have been subject to a reign of terror..." Mr Eldridge claimed that an Aboriginal person had telephoned him and threatened to burn his house down. Mr Eldridge said that the white people in Wagga Wagga "understand that this is a war ... that with God's help my people will win".

The Third Incident

A transcript of a segment of the Hinch program was provided to the Tribunal to establish this complaint. Mr Eldridge said the program was a compilation of disparate parts and the comments he made were taken out of context. On the evidence, the Tribunal accepted Mr Eldridge's view and said that it would not be safe to rely on the comments by Mr Eldridge in the program as supporting the complaints. This complaint was therefore dismissed by the Tribunal.

The reasoning of the Equal Opportunity Tribunal

Each of the complaints were brought under section 20C of the Anti-Discrimination Act 1977. Section 20C provides that: "It is unlawful for a person, by public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group."

In the process of making a determination in these complaints, the Equal Opportunity Tribunal addressed the issue of intent as it relates to this section. They said that "intent need not be proved under section 20C(1), nor is proof required that any person was incited." There was no dispute that Mr Eldridge's actions were within the definition of a public act.

In defending his actions, Mr Eldridge relied on his position as a Councillor and his rights to free speech. The Tribunal referred to the case of The Ballina Shire Council v Ringland [(1994) 33 NSWLR 680], where they said that although free speech is an important feature in our society and is a fundamental right, it is not absolute. The Tribunal stressed that the Anti-Discrimination Act 1977 "has been very specific in ensuring section 20C does not interfere with free speech, by providing in subsection (2) that certain matters are not unlawful."

The Tribunal reinforced the view that there is a dividing line and that it arises "when by a public act a person incites others to have hatred towards, serious contempt for or to severely ridicule a person or group of persons on the ground of race."

In Mr Eldridge's case the question for the Tribunal was "Has the dividing line been crossed?"

The Tribunal rejected Mr Eldridge's argument that his motive was "to bring to public attention the claim by the Aboriginal community concerning the Wiradjuri sovereignty claim".

In respect of the first incident on 11 June 1993 and the second incident on 28 June 1993, the Tribunal found that on both occasions Mr Eldridge's actions fell within section 20C(1). They said, "Mr Eldridge's actions were quite objectionable and unnecessary. His words were insulting and were such as would incite others to have serious contempt for the Aboriginal population."

In making its orders for damages, the Tribunal found that the circumstances of the named complainant, Mrs Atkinson, were distinct from the other complainants, due to the fact that she was the organiser of the local Launch of the Year of the World's Indigenous People. The Tribunal ordered Mr Eldridge to pay Mrs Atkinson $3000 by way of compensation for damages suffered because of his conduct. The solicitor, on behalf of the complainants, had asked that any order for financial compensation be directed to the building of an Aboriginal Cultural Awareness Centre for the benefit of the Wagga Wagga community. The Tribunal said that whilst section 113(3) of the Anti-Discrimination Act 1977 would allow them to make such an order if they considered it would be for the benefit of the complainant, they declined the request, leaving it up to Mrs Atkinson to contribute the money she received to the development of the Centre. The Tribunal also instructed Mr Eldridge to "refrain from continuing or repeating any conduct rendered unlawful by the Anti-Discrimination Act 1977 and that Mr Eldridge publish, in two local newspapers, an apology to the Aboriginal community relating to his actions of 11 and 28 June 1993.

The significance of the decision

The Wagga Wagga Action Group (on behalf of Atkinson) and Ors v Eldridge decision is significant for several reasons. The decision overwhelmingly establishes that there is a dividing line between free speech and racially vilifying actions. It sends a very clear message throughout NSW that people who racially vilify others can and will be held accountable for their actions.

For New South Wales this is the first complaint of racial vilification to be sustained by the Equal Opportunity Tribunal since the legislation was introduced in 1989. This landmark decision represents only the second complaint from Aboriginal people in NSW, which the tribunal has decided in favour of Aboriginal complainants and awarded compensation, since the introduction of the Anti-Discrimination Act (the first complaint was Coe & Anor v Bobilak (1984).

For Aboriginal communities in particular this decision will encourage individuals and communities throughout NSW to confront discrimination and vilification with more confidence in the capacity of the law to provide some form of personal and institutional redress.

The NSW Anti-Discrimination Board through the Aboriginal and Torres Strait Islander Outreach team visits communities throughout NSW, to improve Aboriginal and Torres Strait Islander peoples' understanding of what their rights are under the NSW Anti-Discrimination Act 1977. It does this by talking about what Anti-Discrimination laws cover and explaining how indigenous people can access and use the law to make complaints when they feel they have been discriminated against.

If you would like to know more about discrimination, vilification or the Aboriginal & Torres Strait Islander Outreach Programme call Michelle Gardner, Co-ordinator of the Outreach program at the NSW Anti-Discrimination Board in Redfern on [phone].