Bidois v Nielson [1997] HREOCA 1 (9 January 1997)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975 (Cth)

No: H96/79

Between:

Maureen Joyce Bidois

Complainant

And

Leonard Gregory Nielsen

Respondent

REASONS FOR THE DECISION OF INQUIRY COMMISSIONER

THE HON. WILLIAM CARTER Q.C.

Date of Decision: 9 January 1997

Hearing: Brisbane

Dates: 24 July 1996 and 4 September 1995

Appearances: Complainant:

Mr F. Redmond of Counsel, instructed by Macfie Curlewis Spiro, Solicitors

Respondent:

Mr J. Allen of Counsel, instructed by Hardings, Solicitors

1. INTRODUCTION

This is an inquiry pursuant to 25A of the Racial Discrimination Act 1975 (Cth) ("the Act") into a complaint by Ms Maureen Joyce Bidois against Mr Leonard Nielsen.

By a letter from her solicitors dated 18 July 1995 to the Queensland office of the Human Rights and Equal Opportunity Commission ("the Commission"), Ms Bidois complained that she had been the subject of racist remarks made publicly by Mr Nielsen. Attempts by the Commission to conciliate the complaint were unsuccessful, and, on 24 March 1996, the complaint was referred for an inquiry by the Race Discrimination Commissioner, pursuant to s.24E of the Act.

The inquiry was heard by me in Brisbane on 24 July and 4 September 1996.

2. THE LAW

The relevant law in this instance may be found in s.9(1) of the Act, which declares racial discrimination to be unlawful in the following terms:

It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

3. THE EVIDENCE

Ms Bidois was born in Capetown, South Africa, and describes herself as a "Cape Coloured". She later lived in New Zealand where she married a native born New Zealander. She and her husband now live in Australia.

Both Ms Bidois and Mr Nielsen were, at the relevant time, members of the Redland Darts Association. Each was a member of a different team. Ms Bidois was a member of a team known as "the Tryers". Mr Nielsen was a member of a team known as "the Shamrocks". Darts competitions under the auspices of the Redland Darts Association were conducted regularly at the Capalaba Bowls Club. The bowls club insisted on a minimum dress standard which for men included a requirement that they must wear a collared shirt when playing darts in the club. It was this fact which was the catalyst for an angry exchange between Ms Bidois and Mr Nielsen on one occasion prior to 3 October 1994.

Before I turn to deal with the events of 3 October 1994, Ms Bidois alleges that there had been, on the part of Mr Nielsen, a persistent racist attitude adopted towards her which took on the form of racist and derogatory remarks made to her by Mr Nielsen. She alleges that Mr Nielsen frequently referred to her as "blackie" "coon" "bitch" and "banshee" in the presence of others. Mr Nielsen denied that he used racially motivated terms in respect of Ms Bidois. It is conceded that on one occasion he referred to her as "the banshee of the Bowls Club", but asserted that he used the team "banshee" which, he said, was Gaelic for "a wailing woman". In general, he denied any racially determined conduct on his part towards Ms Bidois.

It seems that, for a time, Ms Bidois and her family were on friendly terms with Mr Nielsen and his family. Whatever the cause of the subsequent disharmony it is clear that by 3 October 1994, at the latest, Ms Bidois and Mr Nielsen were bad friends.

I am quite unable to satisfactorily determine the exact state of the relationship between the two, and whether or not the racially based derogatory remarks attributed to Mr Nielsen by Ms Bidois prior to 3 October 1994 were made. Ms Bidois asserts they were; Mr Nielsen denies making any such remarks; and there is no acceptable independent evidence which assists the process of valid fact finding. I can be satisfied only that by 3 October 1994 Ms Bidois and Mr Nielsen were not on friendly terms.

On the occasion of a particular darts competition at the bowls club Ms Bidois was outspoken and critical of the fact that a member of Mr Nielsen's team was not wearing the required collared shirt. This led to an angry exchange and later became the focus for discussion at the monthly delegates' meeting of the Redlands Darts Association which was held on 3 October 1994. Almost all of the evidence at the hearing was concerned with the events of this meeting. Indeed, the core of the complaint, so it seems to me, is really to be found in the meeting of 3 October 1994.

The meeting was chaired by Mr Sandy Nicholson and attended by Ms Ann Leslie, the Secretary of the Association. The meeting was fairly well attended, and Mr Nicholson raised as business for the meeting the earlier exchange concerning collared shirts and the unseemly incident which this had provoked at the Capalaba Bowls Club. It seems that Mr Nicholson was concerned to uphold the image of the Association and the game of darts. In the course of his discussion of the matter it seems common ground that Mr Nicholson inquired whether Ms Bidois' team had played Mr Nielsen's team, and in the course of raising the query, the chairman had confused the identity of the particular teams. I will come back to this point later.

Ms Bidois alleges that in response to the Chairman's query and in the hearing of all who were in attendance at the meeting Mr Nielsen replied to the Chairman - "I don't play blacks". As will appear it is now extremely difficult to know precisely what was said by Mr Nielsen and what was heard by the various listeners. Clearly on the evidence Mr Nicholson was sufficiently concerned about what he heard said by Mr Nielsen to reprimand him. The incident fuelled the existing hostility which had by then characterised the state of the relationship between Ms Bidois and Mr Nielsen. But it did not end there.

By letter dated 11 October 1994, Ms Leslie informed Mr Nielsen that the Management Committee "has given consideration to the manner in which you have conducted yourself in your involvement with the Association". The letter referred to "comments made by yourself at the monthly meeting.... held on 3 October 1994". In the light of what followed the letter was in substance, although not in fact, a notice to Mr Nielsen to show cause why he should not be expelled from the Association. The letter had simply requested the attendance of Mr Nielsen at a meeting of management committee on 31 October 1994.

Mr Nielsen attended this meeting and the events of the meeting held on 3 October 1994 were revisited. He denied that he had referred to Ms Bidois as one of " the blacks" but rather that, in answering the Chairman's query, as he heard it, he had replied to the effect "no we're Shamrocks we're not All Blacks". He insisted that he had used the term "All Blacks" for two reasons. Firstly, the Tryers team to which Ms Bidois belonged wore black coloured shirts and, secondly, because Ms Bidois and her husband had come from New Zealand he used the terms "All Blacks" - a reference to the well known national rugby team in New Zealand. Mr Nielsen maintained at the hearing the same version of what he alleged he had said at the meeting.

The Management Committee in fact expelled Mr Nielsen from the Association. The validity or otherwise of this decision is irrelevant to the inquiry into this complaint.

From the outset of this complaint, the major factual dispute has centred on what Mr Nielsen said to the meeting concerning Ms Bidois on 3 October 1994. It was Ms Bidois's contention that Mr Nielsen had said words to the effect that he did not play with "blacks" that being a reference to Ms Bidois and the shaded colour of her skin. Mr Nielsen maintained that his use of the term "blacks" was spoken on a different and entirely innocent context.

A major concern was encountered in the course of the hearing. Whilst cross-examining witnesses on the point, counsel for Mr Nielsen sought to introduce a tape recording of the relevant part of the meeting of 3 October 1994 - which, it was alleged, was made by Mr Nielsen at the time - together with a typewritten transcript. My concern was immediate and was based on the fact that in correspondence which the solicitor for Mr Nielsen had had with the Commission over a significant period prior to the hearing no reference had been made to the fact that Mr Nielsen had a tape recorded contemporaneous record of what had been said. Nor had there been any apparent reference to the recording during the conciliation conference. The Commission had at all times prior to the first day of hearing remained entirely ignorant of the fact that Mr Nielsen allegedly had in his possession a tape recording which, from the outset, could conceivably have resolved the factual difference between the parties as to what had been said. Therefore, its late introduction into the dispute at the hearing, at the very least raised the prospect of its being a recent invention. The very fact that the existence of the tape had not been disclosed to the Commission either by Mr Nielsen or his solicitor at any time prior to the hearing was obviously a matter of major concern. The fact that conciliation had been genuinely attempted on this issue in circumstances which would normally have brought into the open the existence of the recording, but which did not, heightened that concern. Reference to the tape at the time of conciliation might very well have resolved the questions in dispute. The evidence of the solicitor given in the hearing concerning it was at best unconvincing.

I accepted the tape as an exhibit and had the Commission arrange for the making of a transcript of it by an independent source. The transcript tendered had been made by Mr Nielsen's wife. The internal evidence of that document supports a finding that it was made some significant time after the date of the meeting.

A perusal of both transcripts generally supports the version of events given by Mr Nielsen. I should add that, before the tape was sought to be introduced, apparently credible evidence from Ms Leslie and a Mr Michael John O'Connell, both of whom were present at the meeting, had been given which tended to support Ms Bidois.

The transcript made by Mr Nielsen's wife records Mr Nicholson's query:

"You're Tryers aren't you?"

And Mr Nielsen responded:

"No No. Pigs foot. We're Shamrocks not All Blacks"

The transcript made on behalf of the Commission records Mr Nicholson's query as "(indistinct)" and Mr Nielsen's response as "No No (that's it sport/pigs foot) we're Shamrocks we're not all blacks".

The tape recording is imperfect and the background noise make it difficult to hear exactly what was said. The critical passage where the term "blacks" is used appears, however, to support the assertion of Mr Nielsen rather than that of Ms Bidois.

The question remains as to the genuineness of the tape. I have given this matter considerable thought after entertaining a substantial doubt initially. I had also considered whether the matter ought to be referred for investigation by the Australian Federal Police. More mature consideration led me away from that proposed course. I am satisfied that the tape is genuine, and attempts to record the proceedings of the meeting. I am satisfied that Mr Nielsen has made a habit of recording such events but, more importantly, I am not prepared to find that Mr Nielsen had the capacity or the required cooperation to create a false scenario. To do that would be difficult and would require considerable support. I prefer the conclusion that this recording was made simultaneously with the holding of the meeting on 3 October 1994.

Some interpretation of the statement - "we're Shamrocks we're not all blacks'" is called for. This was a statement sensibly made in response to Mr Nicholson's query - "You're Tryers aren't you?". It seems Mr Nicholson was at the time confused about the identity of individual players and individual teams. However the alleged use of the phrase "all blacks" requires some assessment.

The suggestion by Mr Nielsen that the phrase "all blacks" was used on account of Ms Bidois' connection with New Zealand is not convincing. The use of the phrase in that context is not particularly meaningful. There may be an element of reconstruction in Mr Nielsen's assertion. On the other hand, if the emphasis is placed on the word "all" in the sentence, the meaning intended is significantly different. The phrase "we're not all blacks" may mean that the speaker's intent is to exclude himself and his team from those whom he calls "blacks". This may at the same time be intended to include Ms Bidois with the intention that she was one of those who are "blacks". Again, even if that were the intention, the phrase remains equivocal. Was the use of the term "blacks" a reference to skin colour, or a reference to the fact that one of the teams was distinguishable by the black coloured shirts?

I have somewhat anxiously reflected on such matters and, in the result, find myself unable to arrive at a firm conclusion which, in my mind, I am comfortable with. In short, whilst I am satisfied as to the use of the sentence "we're not all blacks", I remain unsatisfied as to whether the words used have a racially derogatory connotation or an innocent one. My difficulty has been compounded by the thoroughly adverse impression which I formed of Mr Nielsen in the course of the evidence. His demeanour and attitude was, to say the least, quite unsatisfactory. His sole intention appeared to that of self-justification and his assertion that "all blacks" was simply a reference to a New Zealand rugby team was somewhat manipulative.

Of course, in order for Ms Bidois' complaint to succeed, I must also be satisfied that the words used by Mr Nielsen involved a "distinction, exclusion, restriction or preference" on the basis of Ms Bidois' race, and that the conduct otherwise came within the ambit of s.9(1) of the Act.

4. FINDING

Having regard to the exigencies of proof in a matter such as this I am unable to make a finding that the language used, although generally referable to Ms Bidois and her team, was made in the context of a distinction, exclusion, restriction or preference on the basis of her race.

It follows that I am unable to make a finding of racial discrimination of her by Mr Nielsen. Therefore, the complaint is not substantiated and is dismissed.

DATED at Brisbane this day of January 1997

...............................

W. Carter

Hearing Commissioner