Mcglade v Lightfoot [1999] HREOCA 1 (21 January 1999)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975 (CTH)

H98/15

BETWEEN:

HANNAH MCGLADE

Complainant

AND:

SENATOR ROSS LIGHTFOOT

Respondent

REASONS FOR DECISION OF INQUIRY COMMISSIONER

PETER JOHNSTON TO DISMISS COMPLAINT PURSUANT TO S.25X OF THE RACIAL DISCRIMINATION ACT 1975 (CTH)

Location of Directions Hearing: Perth

Hearing Dates: 21 January 1999

Date of Decision: 21 January 1999

Date of Reasons: 11February 1999

Appearances: The complainant represented herself.

No appearance by the respondent.

1. INTRODUCTION

The complainant, Ms Hannah McGlade, is an Aboriginal woman. She lodged a complaint with the Race Discrimination Commissioner ("the Commissioner") under the Racial Discrimination Act 1975 ("the RDA") on 16 May 1997. As originally formulated, the complaint related to claims made by the respondent that Aboriginal people were the most primitive people on earth and that many aspects of their culture, including their sexual practices, were abhorrent. These claims were attributed to the respondent in an article appearing in the "West Australian" newspaper dated 13 May 1997. Comments attributed to the respondent were also published in the "Australian Financial Review" newspaper ("the AFR") in an article dated 9 May 1997. In the AFR article, which appeared under the by-line of Damon Kitney, the alleged statements were expressed to be:

"Aboriginal people in their native state are the most primitive people on Earth."

"If you want to pick up some aspects of Aboriginal culture which are valid in the 21^st Century, that aren't abhorrent, that don't have some of the terrible sexual and killing practices in them, I would be happy to listen to those."

The complainant claimed that the comments constituted a breach of section 18C of the RDA.

Section 18C of the RDA reads as follows:

18C(1) [Offensive behaviour unlawful unless in private] It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

18C(2) [When act not performed in private] For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

18C(3) ["public place"] In this section:

"Public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

For reasons concerning parliamentary privilege that will be discussed below, it is relevant to note that, prior to 26 May 1997, the respondent was a member of the Western Australian Parliament and on that day became a member of the Commonwealth Parliament.

In his response to the Commissioner dated 23 October 1997, the respondent stated that the comments to which Ms McGlade objected "clearly fall within section 18D of the Racial Discrimination Act... both (b) and (c)".

Section 18D of the RDA reads as follows:

18D Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work: or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

In a further response dated 12 November 1997, apparently in support of his contention that the matter fell within section 18D of the RDA, the respondent stated that:

"My statement, 'Aboriginal people in their native state are the most primitive people on Earth' is a legitimate opinion based on research and observation."

He added:

"A Member of Parliament discusses many matters and I do not intend to be curtailed in those activities by your complainant".

In a further response dated 10 February 1998, he stated that his comments are "a legitimate, considered opinion based on research and my observations, and is a view held by many respected historians and anthropologists. In this regard, exemption under section 18D(b) and (c) of the Act is clearly appropriate". He also claimed that with regard to the statement "Aboriginal people in their native state are the lowest colour on the civilisation spectrum", parliamentary privilege precluded any action under the RDA. This was because, to the extent the statement complained of had been made in proceedings in the Senate, it could not be the subject of proceedings before the Commission.

Insofar as the complaint before her dealt with statements allegedly made in the Senate, the Commissioner declined to continue her investigation on the ground that it was covered by parliamentary privilege and not unlawful. To the extent that the allegedly offensive statements had not been made in the Senate, the complaint continued on foot.

With respect to the remedies sought by the complainant, the respondent stated, "insofar as it caused anyone offence, a "full and proper apology" was duly delivered by myself to the Senate on 28 May, 1997". He claimed that to demand a further apology would be a denial of the role of the Australian Parliament as the "supreme forum for such discussion in our land".

Since the matter could not be resolved by conciliation, on 24 February 1998 the Commissioner referred it to the Human Rights and Equal Opportunity Commission ("the Commission") for inquiry and determination under section 24E(1)(a) of the RDA. I was appointed as Inquiry Commissioner in respect of the conduct of the inquiry.

2. THE INQUIRY

The inquiry was initially set down for hearing on 17 November 1998. A letter was received from the respondent claiming that electoral responsibilities would prevent him from attending on that date. An adjournment was granted and the matter re-listed to be heard on 21 January 1999 in Perth.

On 4 December 1998, the Commission sought further particulars from the complainant of the statements on which the complaint was based. By letter dated 16 December 1998, received by the Commission on 23 December 1998, the complainant responded to the Commission's request as follows:

"I refer to your letter of 4 December requesting particulars of the complaint and provide the following information in response.

The date on which and the place where the comments were allegedly made.

The comments were the subject of a newspaper report, The West Australian, published on the 13th of May 1997. A copy of the newspaper report was provided to HREOC with the original complaint.

The person to whom the comments were allegedly made.

The newspaper article was written by reporter Anne Burns. Her article though, is based on an earlier article published in another newspaper, the Australian Financial Review.

The content of the comments made.

The offensive comments or statements complained of are reported in The WestAustralian as follows:

'He had said Aboriginal people in their native state were the most primitive on earth. Many aspects of their culture, including sexual practices, were abhorrent'."

Having received notice of the hearing on 8 January 1999 the respondent wrote to the Commission and indicated that:

* the evidence upon which the complainant sought to rely was defamatory;

* the evidence in earlier correspondence was based on Hansard and was privileged;

* it would be unlawful and improper to hold a hearing based on privileged information; and

* on the grounds of the above, he did not intend to attend the hearing.

At this stage it can be seen that the respondent, having initially relied on defences under s.18D of the RDA, was asserting a wider and more fundamental objection to the effect that his attendance at any proceedings of the Commission would be unlawful.

In the light of the complainant's response to the request for further particulars, I formed the view that if the complainant relied solely on the newspaper article specified in her letter of 16 December 1998 as the basis for pursuing her complaint, the Commission would have no substantial evidence before it on which it could properly make findings necessary to sustain the complaint, nor, without further clarification, could it determine whether or not the statements alleged to have been made by the respondent attracted parliamentary privilege. I therefore directed that I would consider whether to dismiss the complaint under s.25X of the RDA at the commencement of the hearing on 21 January 1999. Section 25X reads:

Where, at any stage of an inquiry, the Commission is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of Part II or Part IIA, it may dismiss the complaint.

I asked the complainant to show cause why the complaint should not be dismissed. I also indicated that, should the matter not be dismissed, a number of preliminary matters involving the admissibility of material and the relevance of the evidence of the complainant's witnesses would be considered.

The complainant, by letter to the Commission dated 18 January 1999, indicated, amongst other things, that the statement to which the complaint refers was made in a personal interview with a newspaper journalist, Damon Kitney, and not in Parliament.This statement was made in the respondent's parliamentary offices. She requested me to issue a summons to Mr Kitney requiring him to attend at the hearing to give evidence on her behalf. In response, I caused the Commission to write to the complainant to the effect that the hearing would be convened as a Directions Hearing to consider the s.25X motion, as well as various evidentiary matters, including the issue of summonses.

Copies of all the above correspondence were sent to the respondent.

At the Directions Hearing on 21 January 1999, the complainant attended. The respondent did not attend nor did he otherwise contact the Commission.

3. REASONS FOR REQUIRING THE COMPLAINANT TO SHOW CAUSE UNDER S.25X OF THE RDA

My principal concerns in directing the complainant, on my own motion, to show cause why the complaint should not be dismissed under section 25X of the RDA were, firstly, that it had appeared to me to be extremely doubtful that the complaint could succeed if it proceeded on the basis of the materials that, as at 16 January 1999, it appeared the complainant would rely at the hearing.

That concern had two aspects. The first was that reliance on the newspaper reports was insufficient to indicate the context in which the statements might have been made and, specifically when, to whom and in what circumstances. Also, the articles themselves were insufficient to indicate whether the occasion on which the statements were made was capable of attracting parliamentary privilege. While it is primarily the responsibility of the respondent to point to material or information that shows some link to a parliamentary proceeding, the Commission is not absolved from ascertaining whether such privilege does apply simply because the respondent has not provided details. The relevant privilege is that of the Parliament, as much as it is of any member individually (Prebble v Television New Zealand Ltd [1994] UKPC 4; [1994] 3 All E R 407 at 416).

The relevant provisions in relation to Commonwealthparliamentary privilege are to be found in section 16 of the Parliamentary Privileges Act 1987 (Cth), section 49 of the Commonwealth Constitution and Article 9 of the Bill of Rights 1689 (UK).

Section 49 of the Constitution empowers the Parliament to declare the powers, privileges, and immunities of each House. In the absence of any such legislative declaration, those attributes of the Houses are determined by reference to those of the House of Commons as at 1901. Included among the latter is freedom of parliamentary speech conferred by Article 9 of the Bill of Rights 1689 (UK). It provides that the freedom of speech and debates or proceedings in Parliament should not be impeached or questioned in any court or place out of Parliament. Pursuant to section 49 of the Constitution, the Commonwealth Parliament enacted the Parliamentary Privileges Act in 1987. The purpose of section 16of that Actto make clear the extent to which the Houses possess the privilege of freedom of speech under Article 9 (see Odgers' Australian Senate Practice (8^thed, ed H Evans) ch 2; H Evans "Parliamentary Privilege; Changes to the Law at Federal Level" [1988] UNSWLawJl 10; (1988) 11 UNSW Law Journal 31 at 36-7). Relevantly, section 16(3) of that Act provides:

(3) In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of:

(a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament;

(b) otherwise questioning or establishing the credibility, motive, intention or good faith or any person; or

(c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

The position with respect to parliamentary privilege is complicated by the fact that at the different times relevant to the matters raised in this complaint the respondent was firstly a member of the Parliament of the State of Western Australia and, subsequently, a member of the Federal Senate, having been selected to fill a casual vacancy in the latter body. The conversation that is alleged to have occurred between Mr Kitney and the respondent must be taken to have occurred before 9 May 1997, the date of publication of the AFR article. The respondent was not sworn in as a Federal Senator until 26 May 1997. To the extent that the respondent made statements in the Senate after he was sworn in to the same effect as those forming the basis of the present complaint, it is clear that those made in the Senate were part of a parliamentary proceeding relevantly attracting privilege. This was recognised by the Commissioner in declining the complaint to the extent that it possibly relied on such statements.

Taking the above into account, on the face of the articles there was nothing necessarily to connect the statements to a parliamentary proceeding. Specific evidence as to the circumstances in which the statements were made was essential, as I saw it, to determining whether or not parliamentary privilege was applicable.

The second concern was evidentiary. Although section 25B of the RDA, by providing that the Commission is not bound by the rules of evidence, allows considerable latitude in how a matter might be proved, where something so central to the complainant's case was concerned, namely, the details and circumstances of the statements, the Commission should have regard to the best evidence rule. That is, it should have evidence by way of original sources rather than secondary reports, and direct evidence rather than hearsay. This is particularly so given the potential for newspapers to misquote sources or to be selective and introduce distortions to the meaning of statements. In the present case, the situation was aggravated by virtue of the fact that the statements attributed to the respondent in the West Australian relied on statements earlier reported in the AFR.

It is relevant to note here that the complainant bears the onus of satisfying the Commission that her case has been made out under section 18C of the RDA. For example, it is necessary that she should satisfy me that the comments attributed to the respondent were not made in private (section 18C(1) and (2)).

From the complainant's response of 18 January 1999, together with her request to have Mr Kitney summonsed to appear at the hearing, it became likely that my primary concerns that the complaint could not be substantiated, and hence would be lacking in substance, would be capable of being met (without, of course, pre-judging the outcome). Whereas the report in the West Australian had been the initial source of the respondent's statements, it is the complainant's case that in fact the statements on which she relied were made in the course of a conversation between Mr Kitney and the then Mr Lightfoot, Member of the Legislative Council, in the latter's (State) Parliamentary offices in Perth. If Mr Kitney were called to give evidence, he would be likely to address other matters that would need to be established to my satisfaction, including whether the statements were made in private, or were subject to some embargo on publication. Mr Kitney would also be able to speak to the context in terms of whether it was reasonable to expect that the result of the conversation would lead to publication of the statements in the newspaper. A comparison could also be made between what was discussed and what was reported.

Also significantly, the evidence of Mr Kitney should be able to assist in resolving whether there was any evident connection with a State parliamentary proceeding.

At the Directions Hearing, I inquired of Ms McGlade as to the content of Mr Kitney's evidence, and she confirmed that it would be directed to clarifying matters of the kind to which I have just referred.

4. CONSIDERATION OF THE S.25X MOTION

In considering whether I should dismiss the complaint because it lacks substance or would otherwise be incapable of being proven because essential evidence could not be given except in contravention of parliamentary privilege, I must consider the complainant's case at its highest.

At its highest, subject to anything the respondent might have adduced to show otherwise, it would appear that the evidence of Mr Kitney would not entail a breach of parliamentary privilege. At the time at which the conversation between Mr Kitney and the respondent occurred, the respondent was still a member of the Legislative Council of the Western Australian Parliament. Issues of privilege would therefore fall to be determined by section 1 of the Parliamentary Privileges Act 1891 (WA), section 36 of the Constitution Act 1889 (WA) and ultimately Article 9 of the Bill of Rights 1689 (Imp) (see Aboriginal Legal Service of WA (Inc) v Western Australia (1993) 9 WAR 297).

The Commission, of course, does not have the benefit of any communication from the respondent as to why the conversation now relied on by the complainant entailed any connection with, or was incidental to, a particular parliamentary proceeding. None has been identified to this point. I am therefore not able to uphold the respondent's claim that he is not answerable or accountable under the RDA so far as the complaint relates to statements made to Mr Kitney that could reasonably be expected to be published in the AFR.

Further, insofar as the complainant seeks to rely on the direct evidence of Mr Kitney, the Commission would be able to make substantive findings as to the making and the nature of the statements the subject of the complaint.

Consequently, with respect to whether the complaint should be dismissed under section 25X of the RDA on the grounds that it is lacking in substance or is not unlawful, my decision is that the complaint should not be so dismissed.

However, that does not end the matter. There is a further set of considerations concerning whether the complaint should be dismissed under section 25X on the alternative ground that, even if well founded at the time of its lodgment, to continue with it would be misconceived.

To "misconceive" something is to "conceive wrongly" (Macquarie Dictionary, 3rd Ed) or have "a wrong idea of" or "misunderstand" it (Concise Oxford Dictionary). In the present case, misconception for the purposes of s.25X of the RDA is capable, in my view, of embracing a situation where the complaint was instituted with a view to securing certain relief, which the complainant still seeks to obtain, but where, having regard to supervening events, the Inquiry Commissioner forms the view that it would be inappropriate to make declarations under the Act by way of remedy.

In deciding whether the complaint is misconceived I can, as I understand it, also have regard to other discretionary considerations including the overall appropriateness of pursuing an action under the RDA given the fact that the statements to which objection is taken were essentially a matter of personal opinion rather than objective fact and were made by a member of Parliament who, in accordance with the principles of representative democracy, is answerable to the electors through the Parliament of which he is, at the relevant time, a member.

A crucial fact in this regard is that Senator Lightfoot (as he had by then become) delivered an apology in the Senate on 28 May 1997 in the following terms:

I refer to a statement I made earlier today. I wish to unreservedly apologise to any Australians who may have been given offence by the remarks I made. I regard all Australians, irrespective of their race or ethnic background, as being completely equal and entitled to equality of treatment without discrimination of any kind. Any views to the contrary which I may have expressed in the past I no longer hold. I respect the Aboriginal people of Australia and strongly support practical measures to address their disadvantage. I wish to make it clear that I did not intentionally wish to give offence to anyone.

Although the Commission may, as I understand it, have regard to the fact that the apology was made, and also to its terms, the Commission, by virtue of subsection 16(3) of the Parliamentary Privileges Act 1987 (Cth), is unable to question the Senator's intentions, motive, or canvass it in any way, including drawing any inferences in relation to it (Odgers, above, at 37).

The Commission must consider, if the matter were to proceed to a hearing, whether it would be able or appropriate for it to grant any meaningful relief, assuming that on the evidence it could conclude that the statements made by the respondent in the course of the discussion with Mr Kitney satisfied the conditions of section 18C of the RDA and that his action or statements as such were not excused under s.18D.

In deciding whether, at this time, to continue with the complaint would be misconceived, I take into account the following. Though made in a Commonwealth House of Parliament, the apology rendered by the respondent in the Senate constitutes on its face a repudiation of views of the kind implicit in the statements which form the grounds of this complaint. Strictly speaking, there is a clear and separate identity to the statements as they may have been made to Mr Kitney and the statements made in the Senate which were the occasion for the apology in that House. The former statements do not of themselves attract parliamentary privilege, either of the Senate as an institution, or of the respondent as a member, nor has a basis been shown that they are subject to State parliamentary privilege. Nevertheless, the consequence as a matter of fact is that the respondent as a public figure has, on a reasonable reading of his apology, publicly repudiated views of the kind that have given rise to offence in this case. It is relevant in my opinion that the statements to which offence has been taken pre-dated the parliamentary apology and have not been publicly reiterated since. The Commission is unaware of any public statement made subsequently which constitutes a repetition of the views which were the subject of the apology. Furthermore, the respondent continues to be accountable for his political view to the Commonwealth Parliament.

Against this, Ms McGlade contends that it would be significant, if nothing else, if the Commission were to make a determination that the respondent's comments did constitute unlawful discrimination in the form of racial vilification under s.18C of the RDA. She submitted that the comments had offended, insulted, intimidated and humiliated many Aboriginal people in Perth. She put it to the Commission that:

"The legislation was enacted to fulfil our obligation under the International Convention on Elimination of Racial Discrimination ... which prohibits racial vilification, so I don't see it as any answer to say that when racial vilification takes place it's better to leave it to Parliament to deal with...."

and continued:

"I think for a lot of people, it still would be a very strong message for any finding, whether it's enforceable or not, particularly for Aboriginal people and non-Aboriginal people to be aware that you can't racially vilify and for Aboriginal people to feel that there is some recourse against racial vilification."

The complainant therefore strongly pressed the point that, even if I were to take the view that it would be inappropriate to direct that the respondent should apologise for the statements and to pay damages in respect thereto (because the matter was essentially political and has been dealt with in a forum pre-eminently established under the Constitution for that purpose), if nothing more, a mere declaration that the respondent engaged in racial vilification contrary to section 18C of the RDA would be significant. It would provide a measure of relief not only to herself, but to other Aboriginal persons who have long been burdened with the hurt, intimidation, lack of esteem and disrespect for dignity that is the product of racial vilification.

She also contends that if I were to dismiss this complaint, it would represent a finding that politicians are privileged or immune from the provisions of the RDA, at least if they apologise to Parliament. That, however, is to misunderstand the effect of the decision that I now make.

5. FINDINGS UNDER S.25X

I recognise the force of the complainant's contentions and do not seek to dismiss the issues raised in this complaint as trivial or without substance. I am prepared to accept that if this inquiry proceeded to a hearing it might well lead to a finding that the respondent relevantly engaged in racial discrimination. But, nevertheless, I am satisfied that, in this instance, the attempt to continue to engage the processes available under the RDA is misconceived.

My decision to dismiss the complaint on that ground is founded on reasons which are specific and only relate to the case in question. Given that the respondent's remarks were made in a political context and were the subject of a later apology in the Commonwealth Parliament, representing a rejection of opinions of the kind that had given offence in this case, and balancing that in the situation where such matters are accessible to public debate and repudiation by right-thinking persons, it seems to me inappropriate and an exercise in futility to proceed to a determination of this complaint.

The complainant invited me to draw a distinction between the statements made by the respondent in the Senate (which could be taken to be covered by the apology) and his prior statements (which were arguably not). Section 16(3) of the Parliamentary Privileges Act 1987 (Cth) itself presents some difficulties in that regard. As was observed by Sir Clarrie Harders in "Parliamentary Privilege - Parliament versus the Courts" (1993) 67 ALJ 109, section 16 entails a high degree of rigidity and a tribunal like the Commission must be wary lest in reading the apology too narrowly it may be taken to be canvassing the respondent's intentions, including his sincerity and motivation. Be that as it may, in my view the terms of the apology may reasonably be read as addressed to the substance and subject matter involved not only in his Senate comments but in his similar prior remarks.

This decision does notconstitute a statement of principle that politicians are immune from the RDA because they are subject to and accountable to the democratic process and parliamentary scrutiny. Nor does it represent a finding that simply because an apology is made it is totally dispositive of the matter. Further, it is not intended in any way to address wider constitutional issues of the implied freedom of political communication derived from the Commonwealth or Western Australian Constitutions (an issue considered by the Full Federal Court in Laurance v Katter (1996) 141 ALR 447). But in the circumstances of the present case, as offensive and abhorrent as the views expressed by the respondent were to the complainant and other persons such as the witnesses she proposed to call and, indeed, arguably to all right-thinking people, it is misconceived, in my view, to pursue the matter by way of further inquiry into the complaint.

In so dismissing it, I should make it perfectly clear that I do not regard the matter as either trivial or vexatious, nor that it was necessarily misconceived at the time of its inception. It is based on the view I have formed that the matter has been appropriately dealt with under the processes of Parliament and that it should be laid to rest.

Dated this 11^th day of February 1999. .

___________________________________

Peter Johnston

Inquiry Commissioner