10 Racial Discrimination

The onus of proving an allegation of racial discrimination rests with the claimant and the standard of proof is on the balance of probabilities. This is often a heavy burden for complainants given the circumstances in which discrimination often occurs.

As courts have recognised consistently, applicants often face a difficult task establishing the causal nexus to race in circumstances where the evidence as to why a respondent engaged in particular conduct (aside from their proffered explanation) will often lie solely in the possession of the respondent. Because of the difficult standards historically placed on the applicant as to the onus and standard of proof, ‘in the absence of clear proof, litigation is unlikely to succeed’.¹⁵⁴

While s 140(2) of the Uniform Evidence Act (regarding the standard of proof in civil proceedings) may apply to an allegation of racial discrimination, it is not always so and courts have repeatedly cautioned against starting from such an assumption. The touchstone remains the ‘gravity of matters alleged’,¹⁵⁵ something that is to be determined on a case-by-case basis. In relation to s 140(2)(c), which requires a court to take into account the ‘gravity’ of racial discrimination allegations, it has also been recognised that the gravity of the matters in issue in a case ‘cuts both ways’, for example noting the serious impacts of racism upon Aboriginal and Torres Strait Islander people (see 10.13.1 Damages).

For example, in Wotton v Queensland (No 5), allegations that police officers had performed public functions and exercised public power on the basis of race required the Court to be ‘mindful of the three factors set out in s 140(2) of the Evidence Act’.¹⁵⁶ On the other hand, the Court found:

At least in so far as s 140 deals with the ‘improbability’ of such allegations, claimants, practitioners and courts should be aware of the increasing body of evidence (both the accounts of Aboriginal and Torres Strait Islander people, and academic research) which confirms that the majority of the Australian population holds negative views of Aboriginal and Torres Strait Islander people, and that many people act on those views (see 10.1 Introduction).

The ‘inherent improbability’ of an allegation being contrived is relevant. In the context of s 18C of the RDA (see 10.11 Offensive Behaviour Because of Race (s 18C of the RDA)), consideration has also been given to the ‘ordinary course of human conduct’. For example, in Murugesu v Australian Postal Corporation, Judge Burchardt found a history of racist abuse had occurred, saying:

It is often the case that findings of unlawful discrimination will be based on inference.¹⁵⁹ Such inferences must be ‘reasonably available’ on the evidence¹⁶⁰ and capable of being expressed with clarity.¹⁶¹ The circumstances must raise a more probable inference in favour of what is alleged. The appropriate inference to be drawn on the evidence is a question of fact in each case, recognising that

Language, especially unguarded language, can be informative of the attitudes held by people.¹⁶³

In approaching proof in such matters, legal practitioners should recognise the expertise of their clients and their clients’ communities in identifying the ‘circumstances’ that are relevant to any racial discrimination, noting that recognising discrimination is likely to be easier for those who are subject to it than those who are not, and discriminatory impacts are often under-reported.¹⁶⁴

Increasingly, courts are receiving expert evidence that deals with how individual, institutional and systemic discrimination can present in a particular matter. This has been particularly effective in the coronial jurisdiction which has highlighted the impact of discrimination in the circumstances of Aboriginal deaths in both custodial and healthcare settings. This evidence has been used to understand, and identify, the presence of racism, systemic discrimination, unconscious bias and stereotypes.¹⁶⁵ Expert reports have provided these courts with, for example, the definition of concepts such as systemic racism¹⁶⁶ and implicit or unconscious bias,¹⁶⁷ the nature of the historical relationship between Aboriginal and non-Aboriginal societies (and whether it demonstrates systemic discrimination),¹⁶⁸ stereotypes of Aboriginal people¹⁶⁹ and how such stereotypes can ‘lead people to act in particular ways or to form judgments or make decisions influenced by bias or preconceived ideas about a particular group’.¹⁷⁰

Evidence of common stereotypes held by non-Aboriginal people in Australia that be relevant to particular cases. Such stereotypes include that Aboriginal people are primitive, lack complex laws or social organisation and live only in the outback;¹⁷¹ are uneducated and lazy;¹⁷² are drunks, violent and heavily involved in crime;¹⁷³ are overly dependent on (and receive more) social security;¹⁷⁴ and are more likely to use alcohol or drugs.¹⁷⁵

Expert evidence of such matters has been the foundation for Coroners that racial bias has influenced police investigations,¹⁷⁶ that ‘unconscious bias’ had caused a train conductor to decide an Aboriginal person was ‘unruly’ and to call police,¹⁷⁷ that ‘preconceptions or assumptions’ about an Aboriginal woman caused doctors to minimise her complaints (treating them as ‘exaggerated or not entirely genuine’)¹⁷⁸ and leading to ‘premature diagnostic closure’.¹⁷⁹

There are elements of rationality and proportionality in the definition of ‘reasonably’, including the following:

The following matters are relevant to the concept of ‘good faith’, which has both subjective and objective elements:

To be acting in good faith, a person doing the act must ‘exercise prudence, caution and diligence’ with ‘due care to avoid or minimise consequences identified by s 18C’.²²⁷ A reasonable person acting in good faith will make ‘every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views’.²²⁸ In the statutory setting of the RDA, good faith will require ‘honest action and fidelity’ to the prohibition against racial discrimination and that fidelity ‘may extend beyond compliance with the black letter of the law … to the “spirit” of the law’:

The composite phrase ‘reasonably and in good faith’ in s 18D imports a requirement of minimisation of harm and proportionality, in the sense that ‘the measures adopted are rationally connected to the objective of the competing right, and that the means used to impair the protected right is no more than is necessary to achieve the objective of the competing right’.²³⁰

Fair comments must:

The phrase ‘expression of a genuine belief’ imports honesty, which requires that the maker of the comment genuinely believes the comment made.²³⁴ If the maker either knows the comment is untrue or is recklessly indifferent to the truth or falsity of it, they are acting dishonestly.²³⁵

The Court has noted that ‘untruths are at the heart of racial prejudice and intolerance’,²³⁶ and that s 18D did not exempt imputations that:

The plaintiff must prove, on the balance of probabilities, both that ‘the unlawful conduct of the respondent materially contributed to each particular item of loss and damage that is claimed and that the complainant actually sustained those items of loss and damage’.²⁵¹ See 10.9.4 Matters of Proof.

Courts should approach damages in these matters with the understanding that racism towards Aboriginal and Torres Strait Islander peoples produces profound, well-documented harm:

Racism is increasingly recognised as a significant health determinant, including for Aboriginal and Torres Strait Islander peoples²⁵⁴ for whom it is associated with higher rates of psychological distress, depression, anxiety and suicidality compared with non-Indigenous Australians.²⁵⁵

Racism experienced in early life can have profound implications for lifelong health and wellbeing and contribute to intergenerational transmission.²⁵⁶ Early life stressors can undermine the cognitive processes central to lifelong wellbeing, and each instance of racism can compound in its impacts on wellbeing.²⁵⁷

These things interact and compound. For example, increased burden of disease contributes further stressors that families have to navigate individually and collectively. Challenges in emotional dysregulation and mental health increase the incidence of harms through child protection or criminal legal systems, which compound stressors and are associated with exposure to settings that further compound this experience of toxic stress.

In addition, each new impact of racism must be understood in the context of a history of impacts from racism through colonisation, impacts that can be seen in social determinants that have been characterised as ‘cultural wounds’.²⁵⁸

Another unique aspect that arises for Aboriginal and Torres Strait Islander people is the impact of racism that is perpetrated by the social institutions designed to serve all members of a society (e.g. police, health, education). In this context, a single incident of racial discrimination may have disproportionate effects where it occurs in settings that are central to dignity and social participation.²⁵⁹ This is particularly pertinent given the high reported incidence of racism from institutional offenders, including police and government services.²⁶⁰

Section 46PO of the Australian Human Rights Commission Act 1986 (Cth) empowers a court to make ‘an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent’.²⁶¹ The power to order damages under the RDA is a statutory power, and common law approaches may assist, but cannot govern, the power.²⁶²

The following principles are relevant in exercising the statutory power:

It is common practice to look to prior decisions to attempt to identify a ‘scale’ of awards for damages for non-economic loss in discrimination matters. However, care should be taken for a number of reasons.

First, courts have historically awarded only comparatively modest levels of general damages for hurt, humiliation and distress in discrimination matters (commonly in the range of $12,000 to $20,000)²⁶⁷ ‘especially when compared to awards of damages in anti-discrimination litigation in other countries which have similar legal systems to Australia, and when compared to the sums of money which have been awarded in personal injuries litigation’.²⁶⁸

Since 2014, courts have recognised that such awards can be disproportionately low when considered against shifting ‘community standards’. For example in Richardson v Oracle Corporation Australia Pty Ltd, an award of damages for sexual harassment in the amount of $18,000 (which was accepted as within the range of prior awards)²⁶⁹ was nonetheless held to be manifestly inadequate judged against both ‘prevailing community standards’ and increases in other fields of litigation dealing with comparable forms of injury.²⁷⁰ On appeal, the amount was increased from $18,000 to $100,000.²⁷¹ The Full Federal Court noted:

A number of matters should be considered in this context:

For brief summaries of authorities in which awards were made for loss and damage caused by discriminatory conduct, see:

An example of the application of these principles in the case of Wotton (No 5) follows.

Similarly, a detailed approach to considering damages under s 46PO of the AHRC Act can be seen in Mortimer J’s approach in the recent decision of Kaplan v Victoria (No 8).²⁸¹ In this case, a number of students succeeded in a claim of negligence and breaches of s 9 of the RDA against a school for failing to take action to address antisemitic behaviour (including in some cases serious physical assaults). The applicants in that case were awarded compensation for non-economic loss in amounts ranging from $55,000 to $244,968.²⁸²

In Wotton v Queensland (No 5), Mortimer J asked whether the scope of s 46PO of the AHRC Act might encompass damages for the infringement of the relevant right in addition to extending beyond compensatory damage for actual loss and damage, before noting the applicants had not advanced their case on that basis. Had the argument been developed in that way, her Honour noted that ‘interesting questions’ might have arisen about whether damages might have been awarded for discriminatory behaviours that the applicant had not been able to prove had caused loss or damage (such as the failure to provide an independent and impartial police investigation).²⁸³

Economic losses are recoverable as damages, provided the requisite connection with unlawful discrimination is established.²⁸⁴

Aggravated damages may be awarded where it is proven that additional harm resulted from the manner in which the acts were carried out.²⁸⁵ Such damages might be awarded where the defendant behaved ‘high-handedly, maliciously, insultingly or oppressively’.²⁸⁶ The Federal Court gave extensive consideration to the principles regarding aggravated damages in this context in Tickle v Giggle for Girls Pty Ltd (No 2).²⁸⁷

Current authority suggests that the power under s 46PO of the AHRC Act is limited to compensatory damages and does not include the power to order exemplary damages.²⁸⁸

A dismissal may be an unfair dismissal where an employee has had to ‘leave the place of employment as a direct result of the harassment or discrimination’.³¹⁶ This includes the situation where an employer has, as a result of their failure to investigate and stop acts of discrimination, required the employee to put up with harassment.³¹⁷ Similarly, claims can arise where an employee argues they were terminated as a result of being the subject of a complaint of discrimination or harassment³¹⁸ or, more rarely, where an employee is terminated for refusing to participate in the discrimination.³¹⁹

Employees also have protection from any adverse action taken as a result of their exercise of workplace rights.³²⁰ Relevantly, this would include making a complaint of racial discrimination.

Fixing compensation is a statutory task and the court must not substitute for that task approaches from the common law.³²³ Courts have treated the statutory task similarly under the FWA and Australian Human Rights Commission Act 1986 (Cth)³²⁴ (see [10.13.1 Damages]). However, compensation only arises for the damage suffered as a result of the particular adverse action, and so, care should be taken in pleading the case.

For example, in Han v St Basil’s Homes (No 2),³²⁵ the employment of the applicant was found to have been terminated because she had exercised her workplace rights to make a complaint or inquiry in relation to her employment and because of her Chinese race. However, compensation was not available for damage she had suffered at work prior to her exercising the right, as the case pleaded was not about bullying or less favourable treatment, but her right to complaint about those things.³²⁶ As a result, it was only the personal injury suffered as a result of her termination that was compensable. The Court found that the contraventions had caused ‘real harm of an emotional nature, which has caused her hurt and humiliation and to suffer from mental harm’.³²⁷ As with matters under discrimination legislation, prevailing community standards are a relevant consideration in fixing general damages.³²⁸

Racial discrimination — Anti-Discrimination Act 1977 (NSW) s 8(2)(c) — Appeal — Abuse towards an Aboriginal Project and Policy Officer in meeting — Non-Aboriginal people in meeting also subject to abuse — Differential treatment analysis — Whether appellant treated the respondent less favourably than he would have treated a non-Aboriginal person in similar circumstances

This case considered the application of the differential treatment test in determining a claim of racial discrimination under s 8(2)(c) of the Anti-Discrimination Act 1977 (NSW) (‘ADA’). The Appeal Panel of the Administrative Decisions Tribunal held that the appellant did not treat the Aboriginal respondent less favourably than he would have treated a non-Aboriginal person in similar circumstances during a meeting, as the non-Aboriginal people present in the meeting were also abused and treated with aggression.

Kamilaroi man³⁷⁸ Richard Aldridge was employed as an Aboriginal Project and Policy Officer in the Aboriginal Resources Unit (‘ARU’) at the Department of Corrective Services.³⁷⁹ As part of his role, he was appointed to an Aboriginal Justice Advisory Committee, where his role was to advise on the implementation of the recommendations of the Royal Commission into Aboriginal Deaths in Custody within Corrective Services and generally on issues relating to Aboriginal people.

Mr Aldridge gave evidence that in that role he was

Mr Aldridge was removed from the ARU, notwithstanding that he was ‘the most senior, most experienced, identified Aboriginal person in the Department of Corrective Services in the whole of New South Wales’.³⁸⁰ Neither his ‘commitment to his job … nor his competency’ was challenged in evidence at the hearing.³⁸¹ The ARU was reconstituted as the Indigenous Services Unit which had a position at the same grade and level as Mr Aldridge’s former position, though he was not advised of this.³⁸²

At first instance, where it conflicted, the three-member panel preferred Mr Aldridge’s evidence over that of the respondent,³⁸³ finding that Mr Aldridge had been removed from his position ‘because he made his views on matters known from an Aboriginal cultural standpoint which was not welcomed by the Department and specifically was not welcomed by Assistant Commissioner Woodham’.³⁸⁴ The Tribunal made an order that the Department pay $10,000 by way of compensation, and restore Mr Aldridge to a position where he would have ‘direct contact with indigenous people’.³⁸⁵

The Department appealed the decision. The Appeal Panel of the Tribunal (‘Appeal Panel’) set aside the Tribunal’s decision, finding that the Tribunal had failed to state and apply the correct legal principle which required that Mr Aldridge had to prove, for each act or omission, both that he had been treated differently and that such treatment was because of race. The Appeal Panel’s decision is demonstrative of the highly technical approach to discrimination law that has undermined its efficacy.

This case was reconceptualised as part of the Indigenous Legal Judgments project.³⁸⁶ The authors of the re-imagined decision drew upon critical race and Indigenous methodologies to simulate an appeal judgment by the Supreme Court of New South Wales in response to the judgment of the Appeal Panel. The authors noted, in particular, the importance of examining the totality of the evidence against the dynamic of the institutional racism in corrective services.³⁸⁷ In so doing, the authors adopted what they refer to as a ‘type of purposive and contextual analysis’ demonstrated in Slater v Brookton Farmers Co-operative Company Ltd which allows a ‘tribunal to discern from the totality of the evidence the presence and effect of race within the events examined’.³⁸⁸

In their hypothetical judgment of the Supreme Court determining an appeal against the decision of the Appeal Panel, the authors place the case immediately in the broader context of the recommendations of the Royal Commission into Aboriginal Deaths in Custody, the continuing disproportionate rates of Aboriginal deaths in custody in modern times, the systemic failure to implement the recommendations, and the treatment of Mr Aldridge that flowed from his consistent advocacy for their implementation.

The authors identify this context and the evidence outlined in the case, noting the following:

Racial vilification — Racial Discrimination Act 1975 (Cth) ss 18C, 18D — Offensive conduct based on race — Aboriginal identity — Newspaper articles — Principles for determining imputations conveyed by articles — Whether articles were reasonably likely to offend, insult, humiliate or intimidate — Freedom of expression exception — ‘Reasonably and in good faith’

This case is discussed extensively in the section on 10.11 Offensive Behaviour Because of Race (s 18C of the RDA).

Newspaper articles claiming that Aboriginal persons with fairer skin made a ‘choice’ to identify as Aboriginal in order to obtain advantages were found to have contravened s 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’) as they were reasonably likely to offend, insult, humiliate or intimidate the persons affected by reason of race. As the articles were not made in good faith (as demonstrated by the inclusion of untrue facts, the distortion of the truth and the use of provocative, inflammatory language) the freedom of expression exemption did not apply.

The first respondent, Andrew Bolt, wrote two newspaper articles that were published by the second respondent, Herald and Weekly Times Pty Ltd (‘HWT’), in the Herald Sun newspaper. The articles claimed that there are Aboriginal people constituting a trend who have fairer, rather than darker, skin and who have made a ‘choice’ to identify as Aboriginal.³⁹⁰ One of the articles individually identified 16 Aboriginal people who were alleged to represent the ‘trend’ and asserted that each person has ‘chosen to identify’ as Aboriginal due to political reasons or for career opportunities.³⁹¹

The applicant, Pat Eatock, an Aboriginal woman, brought a claim under s 18C of the RDA.³⁹² Ms Eatock sought an apology, but no damages. The Court had to determine whether it was reasonably likely that Aboriginal people were offended, insulted, humiliated or intimidated by the respondent’s conduct, breaching s 18C of the RDA, and if so, whether the freedom of expression exemption under s 18D of the RDA applied (which involved determining whether the conduct was done reasonably and in good faith).

The matter was heard at first instance in the Federal Court and no appeal was brought.

The Federal Court held that the respondents contravened s 18C of the RDA.³⁹³

It held that those people identified by the articles would have been offended and insulted as the newspaper articles were challenging the legitimacy of their Aboriginal identity.³⁹⁴ The fair skin colour and the non-Aboriginal ancestry of the subjects was extensively emphasised in the articles so as to assert a perceived deficiency in the Aboriginality of those people mentioned.³⁹⁵ The Court held that the articles contained untrue statements that explicitly stated or implied that the people mentioned in the article had chosen to identify as Aboriginal and insinuated that this ‘choice’ was not genuine but driven by ulterior motives (including political reasons and career opportunities).³⁹⁶ Many of the individuals named in the article gave evidence that they were raised to identify as Aboriginal, with none of them making a conscious or deliberate choice to identify as Aboriginal.³⁹⁷

In determining whether the freedom of expression exemption in s 18D of the RDA applied, it was held that, objectively, the author’s conduct lacked good faith due to a lack of care and diligence as demonstrated by untruthful statements and distortion of the truth, and the failure to minimise the insult, humiliation and intimidation suffered by the Aboriginal persons in the articles:

The Court ordered the respondents to pay the applicant’s costs.³⁹⁸ The Court also ordered that a corrective notice be published in the Herald Sun newspaper in a prominent position on two separate occasions.³⁹⁹ The notice would serve a wider informational and educative purpose, to ‘inform those most likely to have been exposed to the Newspaper Articles, of the precise conduct of Mr Bolt and HWT which contravened s 18C and why that conduct was found by the Court to have contravened that provision’.⁴⁰⁰

Racial discrimination — Male Aboriginal life expectancy — Entitlement to age pension — Racial Discrimination Act 1995 (Cth) s 10 — Social Security Act 1991 (Cth) — High Court — Special leave

In this case the Full Court of the Federal Court held that, notwithstanding social security legislation set a universal age for access to the age pension and the fact that Aboriginal men generally enjoyed a lower life expectancy, neither the applicant nor the members of the representative class enjoyed the right to the age pension to a more limited extent (as that phrase is understood in relation to s 10 of the Racial Discrimination Act 1975 (Cth) (‘RDA’).

The applicant, Uncle Dennis, was a Wakka Wakka man⁴⁰¹ born on 23 June 1957 and was 66 years old at the time of the hearing. He had made an application for the age pension when he was 64 years old, which was refused. The Social Security Act 1991 (Cth) (‘SSA’) provided that a person born after 1 January 1957 was not entitled to the age pension until they were 67 years old. The applicant argued that he was entitled, nonetheless, to receive the pension because of the shorter life expectancy of Aboriginal men and the proper application of s 10 of the RDA.

Among the facts agreed between the parties as part of the referral of the matter to the Full Court were the following:

This matter was heard by a full Bench of the Federal Court as a referred special case. An application for special leave to the High Court was refused with costs on 7 March 2024.

The Court found that the provisions of the SSA did not have the effect that the plaintiff or other members of the group enjoyed the right to the age pension in a more limited way than non-Aboriginal people, because the proper characterisation of the right was ‘a right to a level of income support, covering the period from when a person reaches “retirement age” until death, however long that period might be’.⁴⁰² Because of that, the relevant connection between the right and its enjoyment was not to race, but to the duration of a person’s life:

In its decision, the Court conducted a useful review of superior court decisions on s 10 of the RDA.

In relation to the requirement that unequal enjoyment of a right must be ‘because of race’:

In relation to the reasons for the difference in health outcomes:

As to what ‘enjoyment’ of a right entails:

As to questions of reasonableness or benefit:

Racial discrimination — s 8 — Special measure — Inconsistency between Commonwealth and state laws — Commonwealth Act prohibiting racial discrimination — State Act granting tract of land to people of particular Aboriginal group — Prohibition of entry by other persons — Whether state Act a special measure — Racial Discrimination Act 1975 (Cth) s 8 — Pitjantjatjara Land Rights Act 1981 (SA) ss 18, 19

In this case, Brennan J held that in determining the existence of a special measure under s 8 of the Racial Discrimination Act 1975 (Cth) (‘RDA’), the wishes of the beneficiaries should be considered in regard to whether the measure supports their advancement.

The Pitjantjajara Lands Rights Act 1981 (SA) (‘Land Rights Act’) was enacted to vest a large area of land in the north-west of South Australia to the Ngaanatjara, Pitjantjatjara and Yungkutatjara people, who were all considered Pitjantjatjara people under the Land Rights Act. Section 18 of the Land Rights Act provided that all Pitjantjatjaras have unrestricted rights of access to the lands and s 19 prescribed penalties to non-Pitjantjatjara people who enter the land without written permission of the body corporate, Anangu Pitjantjatjaraku, of whom all Pitjantjatjaras were members.

The appellant, David Gerhardy, made a complaint that the non-Pitjantjatjara respondent, Robert Brown, was within the Pitjantjatjara land without written permission and thus breached s 19 of the Land Rights Act.

The High Court was to determine whether the Land Rights Act was a ‘special measure’ within s 8 of the RDA. This turned on the question of whether it was reasonable to make the political assessment that the advancement of the Pitjantjatjaras was needed to ensure that they attain effective, genuine equality and that the measure of the Land Rights Act was likely to secure the advancement needed.

The Land Rights Act was held to be a special measure. Brennan J set out the following indicia of a special measure:

Brennan J expressed that the wishes of the beneficiaries regarding whether a measure is for the purpose of their advancement as a group should be taken into account in order to determine the existence of a special measure:

No other judges endorsed Brennan J’s view on taking into account the wishes of the beneficiaries.

The High Court found that a racial minority may need support to preserve their identity, and that without their sense of identity they may not be able to exercise ‘on equal footing’ the human rights and fundamental freedoms that all Australian citizens have the right to possess.⁴⁰³ The Court held that it was reasonable to make the political assessment that advancement of the Pitjantjatjaras was needed to ensure that they attain effective, genuine equality and that the measure was likely to secure the advancement needed.⁴⁰⁴

In Aurukun Shire Council v Chief Executive, Office of Liquor Gaming and Racing in Department of Treasury,⁴⁰⁵ a decision of the Queensland Court of Appeal, McMurdo P found there was ‘considerable force’ in Brennan J’s dicta that consultation is important for special measures,⁴⁰⁶ and Philippides J found that ‘[c]learly, the extent of consultation with the intended beneficiaries and the degree of consideration and accommodation of their views may reflect on whether a measure can be said to be appropriate and adapted to securing their advancement’.⁴⁰⁷

See also the summary of Maloney v The Queen [2013] HCA 28.

Racial discrimination — Omissions — Racial Discrimination Act 1975 (Cth) s 9(1) — Failure to protect students — Antisemitic bullying — Swastika graffiti — Jewish identity — Education — Security of person — Negligence — Non-delegable duty of care — School principal — Damages — Australian Human Rights Commission Act 1986 (Cth)

This decision concerned systemic failures by a Victorian public secondary school to protect Jewish students from persistent antisemitic bullying and harassment. Mortimer CJ held that failures and omissions by the school principal amounted to unlawful racial discrimination under s 9 of the Racial Discrimination Act 1975 (Cth) (‘RDA’), impaired students’ human rights, and also constituted negligence. The decision provides authoritative guidance on omissions-based discrimination, the scope of school authorities’ duties, and the assessment of damages in racial discrimination claims. The decision is significant in that it affirms that systemic inaction can constitute unlawful discrimination, reinforcing protections for minority students and informing analogous claims by Indigenous students alleging institutional neglect or unequal protection in education systems.

The applicants were Jewish students at Brighton Secondary College (‘BSC’) between 2013 and 2020. They were subjected to repeated antisemitic conduct by other students, including swastika graffiti, Holocaust-related taunts, physical harassment, and verbal abuse (eg ‘Heil Hitler’, ‘f—ing Jew’).⁴⁰⁸ Complaints were repeatedly made to teachers and to the principal, Mr Minack, but responses were ad hoc, reactive and ineffective.⁴⁰⁹ Proactive, school-wide measures were taken to protect other minority groups, particularly LGBTQIA+ students, but not Jewish students.⁴¹⁰

The applicants lodged complaints with the Australian Human Rights Commission. After termination, proceedings were commenced in the Federal Court alleging breaches of ss 9 and 18C of the RDA and negligence. Multiple interlocutory decisions preceded the final judgment.⁴¹¹

The primary issues included:

The Court set out the need to address discrimination within institutions and organisations in systemic and proactive ways, using approaches recognised and applied in the context, and enforcing appropriate policies where they existed.

Mortimer CJ held:

On the application of s 9 to the facts:

On the impact of the failures:

Constitutional law (Cth) — Race power — Section 51(xxvi) of the Constitution — Special laws — Aboriginal heritage protection — Partial repeal of legislation — Characterisation — Hindmarsh Island Bridge Act 1997 (Cth) — Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) — 1967 referendum — Whether power confined to beneficial laws — Manifest abuse

The High Court held by majority (Kirby J dissenting) that the Hindmarsh Island Bridge Act 1997 (Cth) (‘the Bridge Act’) was a valid exercise of the race power under s 51(xxvi) of the Constitution. The decision turned principally on the characterisation of the Bridge Act as a partial repeal of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) (‘the Heritage Protection Act’), which all parties accepted was itself a valid law made under s 51(xxvi). Because the power to enact a law includes the power to repeal it, the Bridge Act drew the same constitutional support as the law it partially repealed. The Court divided sharply on the broader question of whether s 51(xxvi) is limited to laws beneficial to the people of a race, with that question expressly left unresolved by the joint reasons of Brennan CJ and McHugh J.

The plaintiffs, Doreen Kartinyeri and Neville Gollan, were members of the Ngarrindjeri people, who are members of the Aboriginal race.⁴¹⁸ In July 1994, the Minister for Aboriginal and Torres Strait Islander Affairs made a declaration under s 10 of the Heritage Protection Act protecting an area on and surrounding Hindmarsh Island in South Australia, on which a bridge was proposed to be constructed linking the island to the mainland.⁴¹⁹ That declaration was set aside by the Federal Court in February 1995.⁴²⁰

In December 1995, the plaintiffs and others made a fresh application under s 10 of the Heritage Protection Act to protect and preserve the land and waters within the area.⁴²¹ The Acting Minister’s nomination of Justice Mathews to act as Reporter under s 10 was subsequently held invalid by the High Court.⁴²² Before any further valid steps could be taken in relation to the plaintiffs’ application, the Commonwealth Parliament enacted the Bridge Act, s 4 of which provided that the Heritage Protection Act did not authorise the making of declarations in relation to activities associated with the construction of the bridge, nor did it authorise the Minister to take any action in relation to an application (whether made before or after the commencement of the Bridge Act) that related to such activities.⁴²³

The plaintiffs commenced proceedings in the original jurisdiction of the High Court seeking a declaration that the Bridge Act was invalid.⁴²⁴ Pursuant to s 18 of the Judiciary Act 1903 (Cth), Brennan CJ reserved for the consideration of the Full Court the question whether the Bridge Act or any part of it was invalid as not supported by s 51(xxvi) of the Constitution or any other head of Commonwealth legislative power.⁴²⁵ No head of power other than s 51(xxvi) was relied upon.⁴²⁶

The High Court answered the reserved question ‘No’. Brennan CJ and McHugh J delivered joint reasons; Gaudron J and Gummow and Hayne JJ delivered separate reasons supporting the same conclusion. Kirby J dissented.

Brennan CJ and McHugh J, on the relationship between the power to legislate and the power to repeal:

Gaudron J, on the limits of s 51(xxvi) in its application to Aboriginal Australians:

Gummow and Hayne JJ, on differential operation as the essence of s 51(xxvi):

Kirby J, on the unworkability of the ‘manifest abuse’ test:

Kirby J, on the scope of the race power following the 1967 amendment:

This case was reconceptualised as part of the Indigenous Legal Judgments project, in which Larissa Behrendt and Taryn Lee wrote:

In their rewriting of the judgment, Behrendt and Lee include within their exercise of statutory construction both international law principles and, importantly, a novel duty to ‘see that racism is not allowed to operate within the judicial system’ (citing Murphy J’s judgment in Neal v The Queen)⁴⁵¹ as well as the fiduciary duty owed by the Commonwealth to Aboriginal people⁴⁵² and the resultant duty to consult.⁴⁵³

Racial discrimination — Prohibition of possession of liquor by Indigenous persons — Special measure — Racial Discrimination Act 1975 (Cth) ss 8, 10 — Liquor Act 1992 (Qld) s 168B — Right to own property — Relevance of community consultation — Proportionality — Alternative measures — Reasonable necessity

The High Court held that consultation and free prior informed consent were not definitional prerequisites to a ‘special measure’ under s 8 of the Racial Discrimination Act 1975 (Cth), notwithstanding subsequent international materials suggesting such requirements. The decision also provides guidance on the proportionality analysis undertaken in determining a special measure and the consideration of alternative measures.

Under s 173 of the Liquor Act 1992 (Qld) (‘Liquor Act’), the area of Palm Island (which has an almost exclusively Indigenous population) was declared a restricted area. The effect of the declaration was to restrict the quantity and type of alcohol a resident could possess.⁴⁵⁴ The appellant, an Indigenous resident of Palm Island, was charged with possession of more than a prescribed quantity of liquor in a restricted area under s 168B of the Liquor Act.⁴⁵⁵ The appellant argued the prohibition was invalid because of the operation of s 10 of the RDA.

The appellant was convicted in the Magistrates Court,⁴⁵⁶ and appealed the decision to the District Court, arguing that s 168B of the Liquor Act and sch 1R of the Liquor Regulation 2002 (Qld) (‘the impugned provisions’) were inconsistent with s 10 of the RDA.⁴⁵⁷ The appeal was dismissed by the District Court⁴⁵⁸ and subsequently by the Court of Appeal which split on whether s 10 was engaged but agreed that, in any event, the provisions were special measures under s 8 of the RDA.⁴⁵⁹

The appellant appealed to the High Court arguing that the impugned provisions were not properly characterised as a special measure as there was no genuine consultation with the community,⁴⁶⁰ and that, consistent with developments in subsequent international guidance, a special measure required consultation that ensured the free and informed consent of the affected community.⁴⁶¹

The High Court held that the impugned provisions were discriminatory under s 10 of the RDA, but that they were a special measure.

French CJ further developed the indicia of a special measure from Gerhardy v Brown,⁴⁷⁴ explaining that the Court’s role is to:

Discrimination law — Race discrimination — Disability discrimination — Whether remarks alone can constitute race discrimination in the workplace — Assessment of damages — Racial Discrimination Act 1975 (Cth) ss 9, 18A — Human Rights and Equal Opportunity Commission Act 1986 (Cth) s 46PO — Briginshaw test — Standard of proof — Evidence Act 1995 (Cth) s 140(2)

This case addressed the Briginshaw test on the civil standard of proof⁴⁷⁵ and reaffirmed that there is no standard greater than the balance of probabilities for racial discrimination claims. As established in s 140 of the Evidence Act 1995 (Cth), the strength of the evidence required to establish a fact on the balance of probabilities will vary according to the nature and circumstances of what is sought to be proved, including the gravity of the alleged claim.

Mr Gama, the respondent, made a complaint to the Human Rights and Equal Opportunity Commission (‘HREOC’) for discrimination on the basis of race and disability during the course of his employment as an aircraft maintenance engineer at Qantas between 1981 to 2002.⁴⁷⁶ The respondent claimed that he was the subject of racial taunts and other discrimination at work including being denied access to opportunities for promotion, transfer or training that were made available to other employees.⁴⁷⁷ He sustained multiple injuries due to accidents in his employment which meant that he was incapacitated from working at full capacity at various times and received comments in relation to this which he claimed were discriminatory.⁴⁷⁸ He suffered major depression because of the discrimination.⁴⁷⁹

The President of HREOC terminated the complaint the respondent had made,⁴⁸⁰ as there was no reasonable prospect of the matter being settled by conciliation.⁴⁸¹

The Federal Magistrates Court found that the discriminatory conduct had been a contributing factor to the applicant’s development of a significant depressive illness.⁴⁸² The Federal Magistrates Court ordered Qantas Airways to pay the respondent $71,692.70 for damages, medical expenses and interest for the breaches of s 9 of the Racial Discrimination Act 1975 (Cth) (‘RDA’) and s 15(2)(d) of the Disability Discrimination Act 1992 (Cth) (‘DDA’).⁴⁸³

An appeal of the magistrate’s decision was made by Qantas,⁴⁸⁴ and a cross-appeal was made by the respondent.⁴⁸⁵ The respondent claimed that the magistrate erred in using the principle from Briginshaw v Briginshaw⁴⁸⁶ when applying the balance of probabilities standard, which asserts that what is required in determining the balance of probabilities varies in the circumstances.⁴⁸⁷

The Full Court of the Federal Court held that the magistrate did not err in the application of the standard of proof,⁴⁸⁸ and that the application of the Briginshaw test did not make any difference that was adverse to the respondent.⁴⁸⁹ The Court found that the Briginshaw test does not create a third standard of proof between the civil and criminal standards of proof.⁴⁹⁰ The standard remains on the balance of probabilities, however ‘the degree of satisfaction that is required in determining that that standard has been discharged may vary according to the seriousness of the allegations of misconduct that are made’.⁴⁹¹

In obiter, Branson J expressed further views on the issues of the appropriate standard of proof and noted that the expressions the ‘Briginshaw standard’ and the ‘Briginshaw test’ have the ‘tendency to mislead’.⁴⁹² His Honour expressed that, rather than relying on the Briginshaw case, s 140(2) of the Evidence Act 1995 (Cth) (‘Evidence Act’) reflects the common law position as to the strength of evidence necessary to establish satisfaction on the balance of probabilities in civil proceedings.⁴⁹³

Section 140(2) of the Evidence Act provides that the matters to be taken into account in determining whether the case has been proved on the balance of probabilities include:

In applying s 140 of the Evidence Act, the strength of the evidence to establish a fact on the balance of probabilities will vary according to the nature and circumstances:

In obiter, Branson J considered that the nature of the cause of action included how the HREOC must first hear discrimination complaints before the Court can which reflects recognition that the practical implications of human rights may not be well understood and which means that claims may lack substance, and discrimination may occur, without the actor intending to breach the principles.⁴⁹⁴ The nature of the subject matter of the proceeding was that the RDA was enacted as a form of beneficial and remedial legislation.⁴⁹⁵ In terms of gravity of the matter his Honour expressed, ‘without wishing to diminish the significance of the factual allegations, ‘more serious allegations of racial discrimination can be brought to mind’.⁴⁹⁶

The Court held that the magistrate did not err in his finding that racial discrimination occurred, but did err in his finding that there was disability discrimination as it was not demonstrated that the remarks towards the respondent constituted less favourable treatment due to a disability.⁴⁹⁷

Racial discrimination — Direct discrimination — Alleged discrimination against contract workers of an Aboriginal cultural awareness mentorship program for Indigenous youths — Racial vilification — Victimisation — Anti-Discrimination Act 1977 (NSW) — Whether laugher and comments at school staff meeting constituted a public act and incited contempt — Whether an Aboriginal mentor was reprimanded due to his Aboriginality

The NSW Civil and Administrative Tribunal determined whether staff members at a school were racially vilificatory and discriminatory towards Aboriginal employees of an Indigenous mentorship program. The conduct included laughing at an Indigenous mentor’s presentation, reprimanding an Aboriginal mentor and cancelling the program’s contract. The complaints were dismissed as the laughing was not a ‘public act’ or capable of inciting contempt and it was not established that the reprimanding of the mentor or cancelling of the program was done because of the applicants’ Aboriginality.

Robert Riley and James Riley, the first and second applicants, respectively, were partners of a business providing a cultural awareness mentorship program to Indigenous youths at a school and the third applicant was a mentor for this program.⁴⁹⁸ The applicants were Aboriginal.⁴⁹⁹ On one occasion, the third applicant was presenting at a staff meeting about an upcoming excursion planned for a careers day where he was taking Indigenous students to a police station.⁵⁰⁰ During the presentation, a staff member started laughing and the third applicant understood that the laughter was suggesting that Indigenous children were more likely to be locked up by police than to become police officers.⁵⁰¹

On another occasion, the first applicant said in a meeting that ‘we can all be part of the solution not the problem’.⁵⁰² The principal interpreted this to mean that she and other teachers could not effectively manage Indigenous students and found it to be highly offensive.⁵⁰³ The applicants claimed that, after this, the principal excessively reprimanded the third applicant on a number of occasions which included harshly criticising him for bringing one of the business’s employees to the school without the principal’s approval,⁵⁰⁴ and for taking the students on excursions without any other supervision.⁵⁰⁵ The principal also rejected projects proposed as part of program,⁵⁰⁶ and informed the applicants that there would not be enough funding for their program to continue into the next school term.⁵⁰⁷

A complaint was made to the NSW Civil and Administrative Tribunal that the first respondent, the State of New South Wales, acting through the Department of Education, discriminated against the third applicant, breaching s 10(d) of the Anti-Discrimination Act 1977 (NSW) (‘ADA’) and racially vilified all of the applicants through the staff meeting conduct of laughing at their presentation, breaching s 20C of the ADA.⁵⁰⁸ It was also claimed that, after the first applicant informally complained about the conduct, they were victimised by the staff, breaching s 50 of the ADA.⁵⁰⁹

The complaints alleging racial vilification, discrimination and victimisation were dismissed.

Racial discrimination — Aboriginal applicant — Unlawful discrimination by second respondent under Racial Discrimination Act 1975 (Cth) ss 9, 18C — Co-worker made several racially derogatory statements to applicant during work — Default judgment — Aggravating fake apology — Psychological harm suffered — Damages

By way of default judgment, the Federal Circuit and Family Court held that a co-worker who made racially derogatory statements to an Aboriginal worker while working on roadside worksites had breached both the prohibition against racial discrimination in s 9(1) and the prohibition on racial hatred in s 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’). The respondent was ordered to pay $70,000 for past and future loss and damage to the Aboriginal worker.

The applicant, Mr Riley, who was Aboriginal, was employed as a Traffic Controller by the first respondent, SJ Traffic Management Pty Ltd, and worked with a fellow worker, the second respondent, Mr Collins.⁵²⁰ While working on roadside worksites, the second respondent made several racially derogatory statements to the applicant including:

The second respondent continuously failed to appear and comply with court orders; as a result, the Court was satisfied that it was appropriate to proceed by way of a default judgment hearing.⁵²²

The Court found that the second respondent had breached both ss 9 and 18 of the RDA.⁵²³ The Court applied Vata-Meyer v Commonwealth⁵²⁴ in identifying the following three elements under s 9(1):

In relation to the breach of s 18C, the Court again applied Vata-Meyer v Commonwealth,⁵²⁵ stating that

While the Court did not substantially address the material facts, the Court observed that, in relation to an act where the second respondent used a racial slur, the text message admission of the second respondent was a fake and aggravating alleged apology.⁵²⁶

Discrimination law — Racial vilification — Anti-Discrimination Act 1977 (NSW) ss 4B, 53 — Liability — Employee — Police officer an employee of Commissioner of Police — Commissioner liable for discriminatory acts of officer

In this case, the NSW Court of Appeal held that the Commissioner of Police is vicariously liable as ‘employer’ or ‘principal’ of police constables who breach the provisions of the Anti-Discrimination Act 1977 (NSW) (‘ADA’).

An Aboriginal man, Edward Russell, was driving a stolen utility vehicle and was being pursued by a number of police vehicles when the utility vehicle collided with a police vehicle.⁵²⁹ Mr Russell was arrested and while being detained was hit on the arm with a police baton, deliberately trodden on while he was on the ground, punched several times, had his head bashed against the vehicle by the police, and was subjected to ‘abusive, foul and racist language’.⁵³⁰ Mr Russell filed a complaint alleging that, in carrying out his apprehension and arrest, the police officers unlawfully discriminated against him due to his race and subjected him to unlawful racial vilification.⁵³¹

The Equal Opportunity Division of the NSW Administrative Decisions Tribunal (‘the Tribunal’) found that the police constables, a sergeant and a detective unlawfully discriminated against Mr Russell on the basis of his Aboriginality under s 7(1)(a) of the ADA as there was excessive force and abusive language which was causally connected with his Aboriginality.⁵³² This connection was demonstrated through the racially charged and offensive language including the use of the phrase ‘you black bastards are causing all the trouble around here’.⁵³³ The fact that the police officers rammed Mr Russell’s head against the back of the police car while shouting ‘he’s trying to escape’ and laughing⁵³⁴ supported the Tribunal’s finding that the conduct also constituted racial vilification under s 20 of the ADA as it incited ‘hatred towards, serious contempt for and severe ridicule of Mr Russell on the grounds of his Aboriginality’.⁵³⁵

On referral to the Supreme Court of Appeal, a question arose as to the vicarious liability of the Police Commissioner for the acts of the arresting officer, in the context of s 53(1) of the ADA (which provides for the liability of an ‘employer’ or ‘principal’).⁵³⁶

The Commissioner of Police was held to be liable as employer of the constables who breached the provisions of the ADA.⁵³⁷

In the Court of Appeal, Spigelman J considered s 4B of the ADA which provides:

Spigelman J reasoned that the reference in s 4B(1)(b) to ‘employment’ in the phrase ‘in relation to employment’ was intended to encompass both ‘officers’ and ‘employees’ and provided a ‘strong textual indicator that the word “employee”, where otherwise appearing in the Act, should not be given a narrow definition’.⁵³⁸ It was found that the word ‘employee’ in s 53 of the ADA should not be confined to situations in which there is a contract of employment, but should extend to the situation of a police officer.⁵³⁹

Discrimination — Race — Perceived characteristics of race — Goods, services and facilities — Vicarious liability — Whether refusal to serve applicant in pub was because he was Aboriginal — Anti-Discrimination Act 1992 (NT) ss 41, 105

The NT Civil and Administrative Tribunal held that a bartender had discriminated against the applicant on the basis of race because she had attributed an unpleasant smell to him on the basis of his Aboriginality. The Tribunal also noted the bartender’s view that Aboriginal people were more likely to become violent when asked to leave as support for its finding of discrimination.

The applicant, Rex Sultan, who was Aboriginal, was refused service at a bar by the second respondent, Ms Batt, who believed Mr Sultan had an offensive smell and therefore did not comply with the hotel’s hygiene and dress policy.⁵⁴⁰ At the time, Mr Sultan was one metre away, with several other bar patrons standing close by.⁵⁴¹ The second respondent told the applicant that she would not serve him because he smelt and that he and his wife (who was also Aboriginal) had to leave the hotel.⁵⁴²

Two questions arose for the Tribunal:

The conduct of the second respondent was held to be racially discriminatory under ss 41(a) and (d) of the ADA.⁵⁴³

The applicant and his wife told the Tribunal that the applicant had showered at home shortly before arriving at the hotel and was well dressed.⁵⁴⁴ The only direct evidence that the applicant smelt bad was that of the second respondent.⁵⁴⁵ The Tribunal held that the applicant did not smell and, if there was an unpleasant smell, the source of the smell had to have been someone or something else.⁵⁴⁶

The Tribunal held that the second respondent’s attribution of the smell to the applicant was a ‘product of an assumption by her’ that the applicant was the most likely source of the smell because the applicant was Aboriginal.⁵⁴⁷ In doing so, the Tribunal relied upon an admission by the second respondent that she ‘most probably’ attributed the smell to the applicant because he was Aboriginal.⁵⁴⁸

The Tribunal noted further evidence by the second respondent which (while not directly related to the discriminatory conduct alleged by the applicant) ‘demonstrates a tendency on her part to ascribe characteristics to people on account of their being Aboriginal’,⁵⁴⁹ namely that her decision to refuse service to the applicant’s wife along with the applicant was because ‘[w]hen I kick out an Aboriginal person, they tend to get angry at their other kind and then they start fighting so it’s better if I just do it altogether’.⁵⁵⁰

Under s 105 of the ADA, the first respondent, which owned and operated the hotel, was held to be vicariously liable for the discriminatory conduct.⁵⁵¹

Human rights and discrimination law — Racial discrimination — Reasonably likely to offend, insult, humiliate or intimidate — Whether the publication was done ‘because of’ the race or ethnic origin of a group of people — Meaning of ‘because of’ — Whether publication done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest

In determining whether there is a casual connection between an offensive act and race under s 18(C)(1)(b) of the Racial Discrimination Act (Cth) (‘RDA’), race must be one, but need not be the only, reason for the act.

A group of individuals comprising the ‘Adelaide Institute’ was dedicated to contesting and investigating the Holocaust, in particular whether ‘Germans systematically killed six million [J]ews, four million alone at the Auschwitz concentration camp’.⁵⁵² Their website included statements that they ‘are justifiably sceptical about the homicidal gas chamber claims’ and that they ‘proudly proclaim that to date there is no evidence that millions of people were killed in homicidal gas chambers’.⁵⁵³

Both the Human Rights and Equal Opportunity Commission and (subsequently) the Federal Court found the appellant, representing the Adelaide Institute, had engaged in conduct that was unlawful under s 18C of the RDA by publishing material on the internet that was found to be ‘racially villificatory of Jewish people’.⁵⁵⁴

In the Full Court of the Federal Court, it was argued the act was not done ‘because of’ the race of the group offended (being the members of the Australian Jewish community), as required by s 18C(1)(b) of the RDA.⁵⁵⁵ It was also argued that the act was done reasonably and in good faith in the course of discussion made for any ‘genuine academic purpose’ or ‘genuine purpose in the public interest’ (within the meaning of s 18D(b) of the RDA).⁵⁵⁶

The Court dismissed the appeal, holding it is sufficient for race to only be ‘one reason’ why the publication was made.⁵⁵⁷ The phrase ‘because of’ involves consideration of the motive and true reasons for the act which may be apparent from what is said or done or from other circumstances which throw light upon the reasons for the action.⁵⁵⁸ As there were frequent references in documents authored by the appellant to Jewish people, and the ‘whole tenor’ of the document offended and insulted those who maintain that the Holocaust occurred, including Jewish people, the publication was made ‘because of’ Jewish people.⁵⁵⁹

In determining whether the publication was made in good faith, the Court found that ‘a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views’.⁵⁶⁰ However, in this instance no such effort was made by the appellant, and the document was found to be ‘deliberately provocative and inflammatory’, designed to paint in a bad light.⁵⁶¹

Kiefel J noted the following considerations when determining the motive for an act:

Because there was no proof that the publication was done reasonably or in good faith,⁵⁶² it was not necessary to consider whether the publication was done for any genuine academic purpose or other genuine purpose in the public interest.⁵⁶³

Indirect discrimination — Equal Opportunity Act 1984 (Vic) — Discrimination claim relating to people with disability — Public transport system — Condition of scratch tickets and removal of conductors from trams — Whether imposition of requirement or condition reasonable — Relevant considerations

This case set out the test for indirect discrimination, albeit in the context of a discrimination on the ground of disability. It held that determining whether a condition or requirement is reasonable involves weighing all the relevant factors of the case (including the factors that support the imposition of the condition).

The respondent, the Public Transport Corporation, introduced a number of changes to the public transport system in Victoria which included two changes which were the subject of the appeal: the introduction of new ‘scratch’ tickets; and the removal of conductors from some trams. The scratch tickets were validated by the traveller making a scratch mark in certain places to indicate the journey to be taken. The appellants, who were both individuals with disability, and community organisations which represented the interests of disabled persons, argued the new changes indirectly discriminated against disabled persons. The appellants, who were both individuals with disability, and community organisations which represented the interests of people with disability, argued the new changes indirectly discriminated against people with disability. The changes were claimed to be discriminatory on two grounds: it was exceedingly difficult for many people with disability to use the scratch tickets; and some of the complainants could not travel on trams which do not have conductors as they require assistance due to their disabilities including while boarding and alighting from the tram, finding a seat and identifying their travel route.

At first instance, the Equal Opportunity Board found that the public transport changes were discriminatory. On appeal, the Supreme Court of Victoria allowed the appeal and dismissed the complaint.

The Equal Opportunity Act 1984 (Vic) prohibited indirect discrimination by a person who imposed a requirement or condition that another person could not comply with, and the requirement or condition was not reasonable. There were two main issues on appeal to the High Court:

The High Court allowed the appeal and remitted the matter to the Board for consideration.

Alleged contravention of Racial Discrimination Act 1975 (Cth) (‘RDA’) s 18C — Whether s 18D exemption is made out — Implied freedom of political communication — Whether RDA pt IIA is constitutionally invalid — whether Constitution s 116 prevents laws ‘for prohibiting the free exercise of any religion’

A series of speeches delivered and published by the respondents was found to be in breach of s 18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’). The Court rejected the respondents’ reliance on exceptions under s 18D of the RDA on the basis that the speeches were not made reasonably and in good faith. The Court further rejected the respondents’ constitutional challenges to the RDA, confirming that ss 18C and 18D do not infringe upon the implied freedom of political communication and pt IIA is not contrary to s 116 of the Constitution.

The applicants, both of whom are Jewish, alleged that the respondents had contravened s 18C of the RDA in the speeches delivered by the first respondent, an Islamic preacher, and its publication to social media accounts associated with the second respondent, Al Madina Dawah Centre Inc.⁵⁶⁸

The applicants claimed that the lectures ‘constitute[d] acts … that were reasonably likely in all the circumstances, to offend, insult, humiliate and intimidate Jewish people in Australia and they were done because of the race or ethnic origins of Jewish people in Australia’.⁵⁶⁹

The respondents relied on two exemptions under s 18D of the RDA:

Alternatively, the respondents raised two constitutional defences with respect to pt IIA of the RDA (which contains ss 18C and 18D):

The Federal Court held that both respondents had contravened s 18C of the RDA.⁵⁷⁴ Stewart J began by objectively assessing the alleged imputations of the speeches through the perspective of ‘the hypothetical representative in relation to the claim that the group of people were offended’.⁵⁷⁵ His Honour concluded that the applicants’ allegations of racist imputations were established in the respondents’ lecture series.⁵⁷⁶ Applying each of the s 18C elements as stated in Faruqi v Hanson,⁵⁷⁷ his Honour concluded that all elements were met in the delivery and publication of the lecture series.⁵⁷⁸

Racial discrimination — Direct discrimination — Racial Discrimination Act 1975 (Cth) s 9(1) — Police investigation of Aboriginal death in police custody — Rights to equality before the law — Protests against police officers and Aboriginal community following death — Declaration of emergency situation under Public Safety Preservation Act 1986 (Qld) s 5 — Emergency search and entry powers

The Federal Court found that the Queensland Police Service (‘QPS’) engaged in unlawful racial discrimination under s 9(1) of the Racial Discrimination Act 1975 (Cth) (‘RDA’) as a result of policing actions taken on Palm Island,⁵⁹⁰ following protests about the death in custody of an Aboriginal man.⁵⁹¹

This case concerned police conduct following the death of Aboriginal man Cameron Doomadgee, posthumously known as Mulrunji, who died in police custody on Palm Island, a predominately Aboriginal community, in November 2004.⁵⁹² He was arrested for allegedly swearing at another officer in the presence of the arresting officer, Senior Sergeant (‘SS’) Christopher Hurley.⁵⁹³ Officers investigating the death in custody did not treat SS Hurley as a suspect and allowed him to continue to perform policing duties,⁵⁹⁴ and Aboriginal witnesses were treated as less reliable.⁵⁹⁵ A statement was made in public about the release of the preliminary autopsy report which revealed that Mulrunji sustained injuries from a fall in his cell, but the statement omitted the report’s finding that SS Hurley’s use of force could provide an adequate explanation for the injuries caused.⁵⁹⁶ Following this public statement, there were protests in the community about Mulrunji’s death which included deliberately lit fires and property damage.⁵⁹⁷

An emergency declaration was made under s 5 of the Public Safety Preservation Act 1986 (Qld) (‘PSP Act’).⁵⁹⁸ Officers in tactical gear, including riot squad members, raided homes, and young children, men and women were terrorised as armed, masked police entered their houses.⁵⁹⁹ The island was placed under heavy police control with helicopters overhead and QPS officers overwhelming the area.⁶⁰⁰ Reports emerged of excessive force, derogatory language, and allegations of harsh interrogations and intimidation.⁶⁰¹

The applicants, Lex Wotton, Agnes Wotton and Cecilia Wotton, who were arrested during the period of the emergency declaration and subjected to excessive force and entries and searches of their homes, lodged a discrimination claim with the Australian Human Rights Commission on behalf of themselves and the Palm Island community.⁶⁰² The proceedings were transferred to the Federal Court,⁶⁰³ where the applicants claimed that the respondents, the State of Queensland and the Commissioner of the QPS, had breached s 9 of the RDA, due to the inadequate police investigation into the death in custody of Mulrunji, and the making of the emergency declaration which allowed for the arrests, searches and entries to be carried out.⁶⁰⁴

The Court held that the QPS had been discriminatory towards the Aboriginal community in Palm Island under s 9(1) of the RDA, and that the Queensland Government bore vicarious liability for the conduct of the QPS.⁶⁰⁵

Mortimer J emphasised the preference to take a ‘holistic approach’ to s 9(1) where numerous, interconnected instances of discrimination have occurred in a ‘cumulative way’.⁶⁰⁶ Her Honour identified the following acts as constituting direct discrimination:

On the fact that, notwithstanding the seriousness of the riots, the seriousness of the circumstances was not one-sided:

On the finding that police officers would not have treated a non-Aboriginal or white community in the same way as the Palm Island Aboriginal community:

On the misconduct and lack of impartiality of the police investigation into Mulrunji’s death:

The numerous case authorities cited to explain the application of s 9(1) of the RDA:

On the fact that Parliament did not intend for the human rights set out in the RDA to be ignored:

On the indifference of investigating and other police officers to the perception of the Palm Island community:

On the investigators’ disregard of the evidence of Aboriginal witness that inculpated a white police officer:

In relation to the actions of police officers following the riot:

Chapter 2: Warfare to Welfare: Genocide to Racial Discrimination (pages 20–46)

Chapter 11: Racial Discrimination and the Law (pages 217–30)

Chapter 3: Direct and Indirect Discrimination — Direct Discrimination under the RDA (pages 133–4)

Chapter 5: Race Discrimination (pages 217–91)

Chapter 13: Vilification — Racial Vilification (pages 684–747)

Chapter 17: Remedies (pages 892–951)

Chapter 17: Discrimination in the Fair Work Act (pages 952–993)

Chapter 2: Grounds or Attributes of Discrimination (pages 15–30)

Chapter 3: Definitions of Discrimination — Equality before the Law (pages 30–55)

Chapter 6: Harassment — Racial Harassment (page 88–104)

Chapter 7: Vilification and Racial Hatred (pages 105–117)

Chapter 14: Remedies (218–231).

Chapter 15: Industrial Laws (232–249).

Part III: Racism and Discrimination (pages 129–87)

The ILO Convention (No 169) concerning Indigenous and Tribal Peoples outlines minimum standards for the rights of Indigenous peoples.⁶¹¹ Australia has not ratified the Convention. It built upon an earlier convention, which was the first contemporary international human rights document that recognised Indigenous peoples as having distinct issues of international concern.⁶¹²

Importantly, ILO 169 develops the right of Indigenous self-determination. The preamble states the Convention’s intention to recognise

The right of self-determination itself is then defined in art 7:

The Convention also articulates a framework for consultation and participation rights. Article 6 imposes a broad consultation requirement:

Specific consultation requirements are set out in arts 15, 17, 22, 23, 27 and 28. Article 16 expressly mentions the concept of ‘free and informed consent’:

The International Bill of Human Rights consists of the Universal Declaration of Human Rights,⁶¹³ the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’),⁶¹⁴ and the International Covenant on Civil and Political Rights (‘ICCPR’) and its two Optional Protocols. The ICCPR and the ICESCR build on the rights established in the Universal Declaration of Human Rights and were adopted on 16 December 1966 by General Assembly Resolution 2200A (XXI). Both instruments protect rights such as freedom from discrimination, and the right to equality between men and women. The ICCPR recognises a suite of civil and political rights including the right to life, freedom from torture, freedom from slavery, the right to liberty and security of person, the right to be treated with humanity in detention, the right to a fair trial, the right to recognition before the law, and the right to equality before the law. The ICESCR sets out economic, social and cultural rights including the right to work, the right to social security, the right to education, the right to health, the right to an adequate standard of living, and the right to take part in cultural life. Australia has signed and ratified both covenants.

The international covenants also represent early recognition of the right of self-determination, with Article 1 of each prescribing: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’

The ICCPR also protects the rights of Indigenous peoples in the following provisions:

The International Convention on the Elimination of All Forms of Racial Discrimination (‘ICERD’) is an international human rights treaty adopted by the United Nations, to which Australia became a ratifying party in 1975. ICERD provides a definition of ‘racial discrimination’ and imposes an obligation on states parties to ensure equality for all, regardless of a person’s race or ethnicity. Two rights particularly relevant to the discussion contained in this chapter are:

The United Nations Declaration on the Rights of Indigenous Peoples (‘UNDRIP’) is the most comprehensive and authoritative international instrument detailing (in art 43) the ‘minimum standards’ for the fundamental rights of Indigenous peoples. These rights are primarily guided by four key principles:

UNDRIP operationalised the right of self-determination by enshrining the rights to participation, consultation and consent, including through explicit recognition of the right to free, prior and informed consent (‘FPIC’).

Articles 3 and 4 define the right of self-determination:

UNDRIP recognises FPIC as either a prospective right, or as the basis for providing Indigenous peoples with redress for past wrongs, in provisions on:

Article 40 provides:

Relevantly, specific cultural rights of Indigenous peoples include the recognition and preservation of their relationship to the natural environment and its resources. Article 29(1) provides:

There have been a number of complaints to treaty bodies alleging Racial Discrimination (10.17 International Advocacy and Critiques).

This article draws on the Indigenous Legal Needs Project which found that (depending on jurisdiction) between 28% and 41% of participants encountered race-based discrimination over a two-year period, describing it as ‘long-standing’ and ‘omnipresent’. The article notes that, notwithstanding parliamentary statements to the effect that Commonwealth legislation should provide strong safeguards and legal protections for Indigenous communities in particular

This conclusion is supported by other research which found that, between 2010 and 2013, only 129 race discrimination or vilification complaints were lodged with the Anti-Discrimination Commission Queensland (‘ADCQ’) (now the Queensland Human Rights Commission).

Even where First Nations complaints were made, many were refused: of the 129 complaints lodged with the ADCQ, only around half were accepted. Also, during 2019, of the 18 race-related complaints received from Aboriginal and Torres Strait Islander applicants, 11 were rejected as ‘not under the Act’, 4 were conciliated, 2 failed to be conciliated and only 1 was referred to the Queensland Civil and Administrative Tribunal. The authors note that, of the small number of complaints that do make it to litigation, ‘few yield a positive outcome for the complainant’.

Australian courts have been criticised for an ‘excessively formalistic’ approach to discrimination and for ‘failing to grapple with the difference between differential treatment (recalling that this is not necessarily contrary to the principle of equality) and discrimination’. (46). The Author believes that such an approach would accord with international law at the time of Gerhardy v Brown [1985] HCA 11 which accepted that laws could be predicated on racial distinctions and result in differential treatment without being discriminatory because such laws effected relative equality and only discriminated where references to race lacked ‘an objective and reasonable basis or legitimate purpose’ (page 46 quoting Sarah Pritchard (1995) ‘Special measures’ in Race Discrimination Commissioner (ed) Racial Discrimination Act 1975: A Review (Canberra, Australian Government Publishing Service) 183–230, 198)).

Hunyor believes there is support for that approach in s 10 of the Racial Discrimination Act 1975 (Cth), which refers to ‘equality’ rather than discrimination. Such an approach would arguably focus the court more appropriately on the core concern of s 10, which is to ensure equality rather than prohibit discrimination. Nonetheless, he notes that the High Court has continued to adopt this approach in subsequent decisions.

This article explores Australian and English case law regarding the evidentiary burden of complainants in racial discrimination cases in employment and suggests reforms to address the high standard of proof required by the complainant. It discusses the application of the Briginshaw principle in racial discrimination cases which asserts that, depending on the circumstances, a higher standard of proof may be required to draw an inference against the respondent. It is suggested that, while acknowledging that racial discrimination is still very serious, complainants may benefit from an approach which does not find that the consequences are ‘so grave’ to require a higher burden of proof, particularly in circumstances where there is underlying racial prejudice.

Jonathon Hunyor also advocates that the respondent should provide explanatory statements which could be carefully analysed, accounting for the complexities of systemic bias, to determine the presence of racial discrimination. He emphasises that requiring an explanation is not an ‘unduly great burden’ to place on the respondent and would not reverse the onus of proof. These proposals would help improve the ability of a plaintiff to meet the burden of proof and provide a remedy to address the presence of racial discrimination more effectively in employment.

Quandamooka scholar Dr Aileen Moreton-Robinson critically examines the role of discrimination law in Australia through the lens of an individual case. The article explores in a practical way how systemic discrimination occurs in institutions in Australia, the public resistance to recognising the operation of race in Australia, and the limitations inherent in the law’s capacity to date in recognising the existing and impact of systemic discrimination. The article sets out powerfully how systemic discrimination can be identified practically in the context of a race discrimination complaint.

Reported experiences of discrimination among Indigenous Australians may reflect an implicit bias inherent in Australian society. Such a bias may predispose vast swathes of the population to consider Indigenous Australians through a negative lens, perhaps unconsciously. This article explores previously unpublished data, from the internationally renowned Implicit Association Test, which attempts to measure the implicit biases that Australians may hold against Indigenous peoples. Other data collections on this issue focus on self-reported experiences of discrimination from the victims of verbal or physical racially motivated abuse (e.g. the Australian Reconciliation Barometer).

This new data source, which comes from the social psychology domain, provides a means to measure the positive and negative implicit associations that Australian participants make about Indigenous and Caucasian Australians.

The data reported in this paper contains observations from 11,099 unique individuals captured over the last decade across different cross-sections of the Australian population, including based on gender, age, ethnic background, education level, occupation, religion and political leaning. The findings of this article suggest that most Australian participants on average — regardless of background — hold an implicit bias against Indigenous Australians. A regression analysis of the results confirm that largely immutable characteristics such as gender, age, ethnic background, religion and political leaning have a statistically significant effect on a person’s average level of implicit bias, as measured in this article. The data could potentially explain why Indigenous Australians continue to experience some of the poorest socio-economic conditions and living standards in this country — not necessarily through fault on the part of Indigenous Australians, but rather perhaps because of the lens through which they may be viewed by the rest of Australia.

This article discusses the applicability of s 9(1) of the Racial Discrimination Act 1975 (Cth) as a remedy to address deaths in custody and other state-inflicted racial violence. It is proposed that the concepts in s 9(1), including differential treatment and denial of rights, may be used to establish that conduct which occurs before death is unlawful racial discrimination. The case Wotton v Queensland (No 5)⁶¹⁶ is recognised as a guide for applying s 9(1) due to the case’s application of this provision in assessing conduct following a death in custody.

Section 9(1) prohibits differential treatment on the basis of race. In this article Alan Zheng argues that, due to the flexibility of the provision’s text, the most suitable method to determine a breach of this provision is an unstructured comparative method. In determining the presence of racial bias, it is reasoned that an unstructured comparative method is more beneficial as an analytical tool than the complex comparative methods which exist in other anti-discrimination legislation. An unstructured comparison may be applied to compare police policies and the actual conduct of police powers in order to identify any distinctions between the two. Section 9(1)’s prohibition on the denial of rights is also explored and it is argued that the concepts of arbitrariness and proportionality may be used to analyse the conduct and discretion of police.

The Call It Out First Nations Racism Register was developed by the Jumbunna Institute for Indigenous Education and Research in partnership with the National Justice Project to record reports of all forms and levels of racism and discrimination experienced by Aboriginal and Torres Strait Islander people. The Register is designed to allow respondents the freedom to share any experiences they consider relevant to shape a comprehensive representation of First Nations peoples’ lived experiences of racism and discrimination. Call It Out is an ongoing, respondent generated initiative with a national focus. It provides a simple and secure online mechanism where anyone can report incidents of racism experienced directly or witnessed.

Over the 12-month period from 21 March 2023 to 20 March 2024, Call It Out received 479 registrations, with the most common reports being of negative attitudes or stereotyping (23%) and discrimination (15%), followed by hate speech (13%) and non-recognition of cultural rights (11%). Aggressively racist behaviour was also evident: taken together, physical violence, verbal abuse, hate speech, threats, intimidation, bullying and damage to property comprised 35% of responses.

Overall, online and in the media was the most commonly reported location of racism (32%), followed by public places (13%) and workplaces (12%). Notably, 22% of reports identified government and private institutions or services as the location of incidents, including in legal, education, health and transport. In the legal system, patterns of behaviour within policing was a focus, including use of excessive force and racial profiling.

Reporting demonstrated that the perpetrators of racism emanate from all social classes, and age and cultural groups. One in five reporters identified that nothing could be done about racism and/or that they did nothing as they weren’t sure what action to take. A sense of powerlessness, fear of repercussions and other barriers make it very hard to call racism out, and doing so may fail to produce a sense of justice or other constructive outcomes.

The Anti-Racism Framework project involved five reports, including a survey of anti-racism policies throughout federal, state and local governments. Of particular concern was a refusal of the federal government and multiple state governments to engage with the review. The report noted an ‘incredibly limited’ connectivity between government policies and ‘hugely limited’ transparency on funding, with departmental officers refusing to share such information.

The report recommends:

The Indigenous Legal Needs Project (‘ILNP’) studied and reported on five Australian jurisdictions:

The ILNP was the first extensive study in Australia to specifically address Indigenous legal need and access to justice in civil law areas.⁶¹⁷ The ILNP travelled to 40 urban, regional and remote communities across five states and territories to speak directly with First Nations community members and legal services and other stakeholders about legal issues arising and responses to these issues.

The ILNP identified discrimination as one of seven priority areas of legal need. The percentage of First Nations participants identifying recent experiences of discrimination was relatively high (e.g. 29.3% in Victoria, 40.9% in Western Australia). This, however, represents an undercount of its incidence, as discrimination was frequently evident (but not identified as such) in many other areas considered in the research (such as neighbourhood disputes, employment). More structural forms of discrimination were also often under-identified by First Nations participants (as in housing and other government policy).

The extent to which participants sought legal or other help or took any type of action in response to discrimination was low (e.g. 11.6% in Victoria, 15.6% in Queensland). Reasons identified included high levels of resignation to omnipresent experiences of racism in First Nations communities, fear of retaliation, a significant lack of knowledge of legal rights, and an absence of legal support in this area. Culturally inappropriate and otherwise challenging complaints mechanisms, significant distrust of the legal system as a mechanism that protects rights, and concerns about proof related to discriminatory incidents or issues were also found to inhibit access to justice in relation to discrimination.

ILNP recommendations included better funding for Aboriginal and Torres Strait Islander Legal Services to increase culturally informed legal information and advice in relation civil law areas such as discrimination and review of existing formal discrimination complaints mechanisms.

Gari Yala, which means ‘speak the truth’ in the Wiradjuri language, is based on a survey of over 1,000 Aboriginal and/or Torres Strait Islander workers across Australia. The report noted:

Significant racism and exclusion is often felt at work:

However, workplace supports are often ineffective:

This report explores the data gathered in the 2020 report Gari Yala (Speak the Truth): Centring the Experiences of 1Aboriginal and/or Torres Strait Islander Australians at Work with a focus on gender. The analysis investigates the differing experiences of Indigenous women and men in the Australian workforce.

The findings reveal that Indigenous women who are carers are experiencing ‘triple jeopardy’ — that is, the combination of these three aspects of their identity are amplifying their experiences of discrimination and exclusion at work. These Indigenous women with caring responsibilities are:

The 2021 gendered insights Gari Yala report also highlights the need for managers to create safe workplaces for Aboriginal and Torres Strait Islander workers. Leading organisations who prioritise inclusion and diversity see less staff turnover and higher rates of employee satisfaction for Indigenous staff.

On the other hand, women in culturally unsafe workplaces were over 10 times more likely to be often, or very often, treated unfairly at work than Indigenous women who work in culturally safe businesses, and around 20 times more likely to hear racial or ethnic slurs.

This report includes among its findings that 60% of Aboriginal and Torres Strait Islander people had experienced at least one form of racial prejudice in the past six months (compared to 52% in 2020 and 43% in 2018), and that only 17% of non-Indigenous people had socialised with Aboriginal and Torres Strait Islander people.