McGlade, Hannah --- "Race Vilification Before the Human Rights and Equal Opportunity Commission" [2001] IndigLawB 18; (2001) 5(7) Indigenous Law Bulletin 8

Racial Vilification Before the Human Rights and Equal Opportunity Commission

By Hannah McGlade.

In April and May of this year, the Human Rights and Equal Opportunity Commission (‘the HREOC’) handed down two decisions concerning cases of race vilification under section 18C of the Race Discrimination Act 1975 (Cth) (‘the RDA’). Prohibition of racial vilification under the RDA was effected by the Race Hatred Act 1995 (Cth), which attempts to implement more fully Australia’s obligations under the International Convention on the Elimination of All Forms of Racial Discrimination. The amendments were also recommended by the HREOC National Inquiry into Racist Violence (1991) and the Royal Commission into Aboriginal Deaths in Custody (1991). Very few cases of racial vilification have been determined by HREOC and the two decisions of Commissioner Innes are therefore significant in developing the application of the legislative prohibition.

The Complaints

Both the complaints were lodged in 1997. Although the respondents refused to conciliate, the cases themselves were not actually heard by the Commission until 1999. The complainants, a number of Nyungar Elders, were required to wait another two years before the actual decisions were handed down. One of the Elders was deceased by that time. There was a determination made in favour of the Elders in Wanjurri but because it is a HREOC decision, it is not enforceable.

Albert Corunna v West Australian Newspaper Ltd

The case of Albert Corunna and others v West Australian Newspaper Ltd (‘Corunna’)[1] concerned a cartoon published by ‘Alston’ in the daily newspaper, The West Australian. The cartoon concerned the return of the head of the ancestral warrior, Yagan, from a British museum.[2] In doing so, it drew explicitly upon offensive stereotypes concerning Aboriginal people, and referred directly to the complainants by name. Before the cartoon was published, the newspaper had published a series of articles which focused not on the broader more important issue of the return of Aboriginal human remains, but on the fairly minor conflict occurring in the Nyungar community over the British delegation. It has even been submitted that the newspaper itself contributed to the divisions in the community.

In Corunna, Commissioner Innes adopted the ‘reasonable victim test’ and found that there was a breach of section 18C which prohibits acts which are ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate ...’ peoples on the basis of race. This was based on his findings that the cartoon:

• Presents a demeaning portrayal of Yagan;
• Contains derogatory and demeaning references to the Waugyl, a religious figure;
• Treats the issue of death in a manner which causes offence to Aboriginal people;
• 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 race by the resultant racial mix;
• Reinforces a misinformed and stereotypical view of Aboriginal people taking advantage of government grants.[3]

However, the Commissioner went on to conclude that the cartoon was exempted under section18D of the Act on the basis that the respondent acted ‘reasonably and in good faith’. He referred to the series of newspaper articles published before the cartoon and found that they ‘provided a balanced report of what took place’. He further found that there was no ‘dishonesty or fraud’ or ‘malice’ on the part of the paper.

It is extremely difficult to reconcile the serious finding of breach under section18C with the subsequent finding of reasonableness under section 18D. Although Commissioner Innes appears to have rejected other HREOC dicta to the effect that these exemptions should be construed broadly, rather than narrowly, his findings concerning dishonestly, fraud and malice suggest otherwise. The case highlights the concerns that have been raised by a number of academic commentators about the legislative exemptions, in particular, that their breadth could effectively undermine the protection offered by section18C.[4]

Mingili Wanjurri v Southern Cross Broadcasting Ltd

In the case of Mingli Wanjurri and others v Southern Cross Broadcasting Ltd and Howard Sattler (‘Mingli Wanjurri’),[5] there was a successful determination made in favour of Nyungar Elders. This case concerned the radio station 6PR (owned by media chain Southern Cross), and the controversial announcer, Howard Sattler. It stemmed from a segment of the Sattler program ‘Taxi Talk’ in which two taxi drivers ‘Hughie’ and ‘Vince’ (both regular guests on the program) made extremely derogatory statements concerning Nyungar culture and religion. The broadcast was also directed at the Nyungar protests of the re-development of the old swan brewery site. The site is recognised by Nyungars as Goonininup, the resting place of the Waugal or Rainbow Serpent.[6]

Howard Sattler participated in the discussion, and encouraged the taxi drivers in their comments. Although he was technically able to ‘dump’ or delete the offensive broadcast, he did not.

Commissioner Innes again determined that there was a breach of section 18C. He formed this view because the comments the subject of the broadcast suggested that:[7]

• Nyungar people lie about the existence of religious sites;
• The Waugyl’s interest in alcohol is such that there was only a protest when alcohol was no longer produced at the site;
• The Nyungar people, for whom the Waugyl is a metaphor, have such an interest in alcohol that there was only a protest when alcohol was no longer produced at the site;
• The Waugyl should have been killed with a shovel;
• Nyungar religious sites are deserving of the same level of respect as a place where a person had his first sexual experience;
• Nyungar people engaged in urinating, defecating and fornicating in a manner disrespectful of the site’s religious significance.

The ‘derogatory comments about significant religious figures’ comments could not be exempted –and the suggestion that ‘people would behave in the ways described on a religious or sacred site’ were in no way reasonable. Rather, they showed a ‘culpably reckless and callous indifference toward the Nyungar people’.

Southern Cross, owner of the radio station, was held to be vicariously liable. The evidence from the station’s general manager was that he supported Sattler’s judgement (although as a ‘pretty devout’ Christian, he would not have if the comments concerned Jesus Christ). Importantly, the Commission also found that the station appeared not to have implemented any training with regard to their responsibilities under the RDA.

In considering damages, it was noted that the evidence of the Elders at hearing was that they continued to be very hurt and upset by the broadcast, which related to religious and cultural matters of great significance to them, and were very derogatory and insulting. The public nature of the comments, the fact that they were made to many thousands of listeners, was also relevant. In light of these circumstances it was determined that an appropriate award was $10,000 for each complainant, a total amount of $50,000.

The cases Corunna and Wanjurri are significant precedents that mark the HREOC response to the serious problem of racial vilification by the media toward Indigenous peoples. The upholding of the complaint in Wanjurri, and the level of damages awarded, shows that the RDA may be able to protect Indigenous peoples’ right to freedom from racial vilification.[8] The Australian media have been alerted to the legislative prohibition and their corresponding obligations.

Although the differences between the two cases, in particular, the findings of reasonableness, appear somewhat arbitrary, it is a huge relief to see the potential protection offered by this new area of the law.

Hannah McGlade is a Nyungar lawyer who lodged the complaints on behalf of the Elders.

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[1] (2001) Matter No. 98/27 (Unreported, Commissioner Innes, 12 April 2001).

[2] See Hannah McGlade, ‘The Repatriation of Yagan: A Story of Manufacturing Dissent’ (1998) 4.1 Law, Text, Culture 252.See also Cressida Fforde & Lyndon Ormond-Parker, Repatriation Developments in the UK (2001) 5(6) ILB 9.

[3] Corunna, above n 1, 24.

[4] Ibid 26.

[5] (2001) Matter No. 98/69 (Unreported, Commissioner Innes, 7 May 2001).

[6] See Martha Ansara, Always Was Always Will Be (1989).

[7] Mingli Wanjurri, above n 6, 21.

[8] This problem is considered by Steve Mickler, The Myth of Privilege: Aboriginal Status, Media Vision, Public Ideas (1999).