Jacobs v Fardig [1999] HREOCA 9 (27 April 1999)

Last Updated: 18 May 1999

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975 (CTH)

No: H98/86

BETWEEN:

Cedric Jacobs

Complainant

AND:

David Fardig

Respondent

REASONS FOR DECISION OF INQUIRY COMMISSIONER

GRAEME INNES AM

Venue: Perth

Date of Hearing: 27 April 1999

Date of Decision: 27 April 1999

Date of Written Reasons: 13 May 1999

Appearances: Mr McIntyre for the Complainant

Mr Fardig represented himself

1. INTRODUCTION

On 27 January 1997 Mr Cedric Jacobs lodged a complaint under s.18C of the Racial Discrimination Act 1975 (Cth) ("the RDA") alleging that he had been vilified on the ground of his race in breach of that section. The complaint was lodged against Mr David Fardig, a fellow Councillor on the Council of the Shire of Swan ("the Council"), and against the Council, and related to a remark which Mr Fardig is alleged to have made at a workshop for Councillors and senior management on 2 October 1996 about shooting a group of Aboriginal people.

The complaint was referred to the Race Discrimination Commissioner for investigation and conciliation. This was unsuccessful and the matter against Mr Fardig was referred to the Human Rights and Equal Opportunity Commission ("the Commission)" for hearing on 23 July 1998.

Prior to the full hearing of the matter the respondent sought to have the complaint dismissed under s.25 of the RDA. He argued this on four grounds: that the remark was made in private, that it was frivolous, vexatious and lacking in substance.

I made a decision on 26 March 1999 not to dismiss the complaint. The matter was therefore heard in Perth on 27 April 1999.

Prior to the hearing Mr Jacobs sought to be legally represented by the Aboriginal Legal Service and I granted this request. At the time I indicated to Mr Fardig that I would also entertain a similar request from him. However, he chose to appear for himself. Accordingly, throughout the inquiry I took time to explain legal and procedural issues to him, and conducted the inquiry on a more inquisitorial basis so that Mr Fardig's case could be presented in its best possible light.

2. BACKGROUND

The complainant, Mr Cedric Jacobs, is of Aboriginal descent. He was born in 1943. He lived on a Mission in New Norcia. At the time of the hearing he was the President of the local ATSIC Regional Council and has had a long history of involvement in Aboriginal politics and politics in the broader community.

He and the respondent, Mr David Fardig, were both Councillors on the Swan Shire Council. The Shire covers an area north of the City of Perth, mainly metropolitan in nature, but including some semi-rural areas. One of the main streets in the area is Lord Street. At one point in Lord Street, within the Shire, live a well-known group of Aboriginal people. They are known as the Swan Nyungar community and occupy approximately 20 houses in the area.

Messrs Jacobs and Fardig represented the same ward in the Shire. They ran for Council on the same ticket with another Councillor in 1992. Since then Mr Jacobs has been up for re-election on several occasions, but his seat has not been contested.

On 2 October 1996 a Strategy and Planning Workshop was held which Councillors and members of senior management attended. It commenced at about 5.30 pm and ended at about 8.30 pm. It was not a Council meeting and members of the public were not in attendance. Messrs Jacobs and Fardig, along with Ms Shelley Pike (manager of Strategy and Planning) and Mr Mike Foley (Chief Engineer), formed one work-group. It was during the discussions of this group that the remark the subject of this complaint occurred. I have already made my determination that the relevant conversation occurred otherwise than in private for the purposes of s.18C of the RDA so this issue was not in dispute at the full hearing.

3. THE EVIDENCE

3.1 Events at the meeting

Evidence was received from all four people at the relevant table, but the majority of the evidence was not in dispute. It was agreed that Mr Foley, as leader of the discussion, raised the question of what should be done "about the group in Lord Street" or "about Aboriginal people." Whatever he actually said is of little import, because all four witnesses agreed that the conversation at that time, and his question in particular, were referring to the group of Aboriginal people who comprised the Swan Nyungar Community and who lived in Lord Street. Mr Fardig, who responded to Mr Foley's question, said either "Ah, shoot them" or "we shoot them."

All four witnesses, including Mr Fardig, agreed that the comment was inappropriate and offensive. Mr Fardig asserted that it was made flippantly, although this was not the evidence of the other three. Mr Jacobs and Mr Fardig agreed that in response Mr Jacobs said words to the effect of "that's not very nice David". After a period of silence the conversation continued, although Ms Pike gave evidence that Mr Jacobs was "fairly quiet" for the rest of the meeting.

3.2 Events subsequent to the meeting

Mr Jacobs gave evidence that he was seriously upset by the comment. He stated that he was very angry, and that he wanted to push Mr Fardig's chair over, and hit him. He also realised that as a Councillor and a leader of the Aboriginal community he had a responsibility to behave appropriately so he refrained from taking any of these actions. He said that he went home and chatted to his wife about what had taken place and that he did not sleep well that night.

The next day Mr Jacobs said that he reported the incident to the CEO of the Council, Mr Lumsden, as did Mr Foley. Mr Jacobs also reported the matter to the Shire President, Mr Gregorini.

This is confirmed by Mr Fardig's evidence. He said that both of these people spoke to him about the incident some time later and encouraged him to apologise. Mr Fardig's response was that he did not know that Mr Jacobs had a problem with his comment. He said that he had an understanding with Mr Jacobs (made as part of their agreement to run on the same ticket) that because of his lack of understanding of Aboriginal issues Mr Jacobs should come to him and discuss anything that Mr Fardig said which may be a problem. He felt that if Mr Jacobs had a problem with the remark he should come and talk to him about it. He refused to apologise. In retrospect, Mr Fardig recognised this as a mistake on his part.

Mr Fardig said that nothing further occurred relating to the incident until some time after Christmas 1996. At that time Mr Jacobs contacted Mr Fardig and asked him to run on the same ticket with him at the forthcoming Council elections in May. Mr Jacobs said he did not recall that he made this request.

On 27 January 1997 Mr Jacobs lodged his complaint with the Commission.

Prior to the end of March, when nominations closed for the election, Mr Jacobs approached Mr Fardig and made the same request. Mr Jacobs agrees with that evidence. Again, Mr Fardig refused the request.

During the election campaign the remark received publicity in the local newspaper and in the West Australian. Both parties were interviewed and Mr Fardig asserted that it had been a "flippant remark". At a subsequent meeting of Council Mr Jacobs raised the matter with Mr Fardig and, after some discussion involving the Shire President, Mr Fardig apologised to Mr Jacobs for the remark. Mr Jacobs did not accept the apology.

The election took place. Mr Fardig was re-elected to Council, but Mr Jacobs was unsuccessful.

After the election Mr Fardig publicly apologised for his remark at a meeting of Council on 8 October 1997.

4. THE LAW

The relevant section of the RDA is s.18C. It provides:

(1) 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.

(2) 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.

(3) 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.

5. FINDINGS

In order to determine whether this section has been breached I must consider three issues.

Firstly, I must determine that the act occurred otherwise than in private. I made this decision in my preliminary finding of 26 March 1999 in the affirmative.

Secondly, I must consider whether, in all the circumstances, the act was reasonably likely to offend, insult, humiliate or intimidate Mr Jacobs. There is no doubt in my mind that, in all of the circumstances, Mr Fardig's remark did offend, insult and humiliate.

I do not accept Mr Fardig's evidence that the remark was "flippant". However, even if I did, the remark suggesting the use of a gun to injure or kill a group of people is so odious as to make it offensive even if said flippantly.

All witnesses agreed that the remark was offensive. However, as determined by Sir Ronald Wilson in Bryant -v- Queensland Newspapers Pty Ltd, 15 May 1997, Human Rights and Equal Opportunity Commission, the test is an objective one, and the feelings of the individuals involved is not the determining factor.

Suggesting that a particular group of people, whether because of their race or not, should be shot is simply offensive. It is made more so when such a suggestion is made by the holder of a public office who has no doubt sworn an oath to appropriately serve all of the people in the ward which he represents. Although this was not a meeting of the Council, the remark was made to two staff who were his subordinates and demonstrates a disregard for the office which Mr Fardig held.

The third issue that I must determine is whether the act was done because of the race of the members of the Swan Nyungar community. Again, there is no doubt in my mind on this issue. Whether Mr Foley's question referred to Aboriginal people, or to the group in Lord Street, it is clear from the context that the conversation related to Aboriginal people. I can draw no other conclusion than that Mr Fardig made the comment because of their race. There is no evidence that he suggested, flippantly or not, shooting other groups of residents. It was made in response to a question about this group, whose race was clearly known to all. No other reason suggests itself or has been suggested for the making of the remark.

I note that s.22(1) of the RDA requires the complaint to be made by a person aggrieved and, on the basis of Mr Jacobs' Aboriginal descent and his connection with the Aboriginal community, I find him to be such a person.

I therefore find that Mr Fardig's remark was in breach of s.18C of the RDA, and that Mr Jacobs' complaint is made out.

6. DAMAGES

I have weighed the issue of damages based on the principles set out in Hall -v- Sheiban Pty Ltd & Ors [1989] FCA 72; (1989) EOC 92-250 and in the context of the comments in Horne -v- Press Clough Joint Venture and Anor (1994) EOC 92-556 that "awards compensating for injured feelings should not be too low so as to diminish respect for public policy shown by the Act." There are no clear precedents for the awarding of damages under this provision of the RDA. The complainant in his submissions took me to cases in which damages were awarded for refusal of accommodation, and refusal of service in hotels, but I am of the view that they are of a slightly different nature to this decision.

Mr Jacobs presented to the hearing a report from a psychologist, Dr Phil Watts, who had assessed him, and the impact of Mr Fardig's comments on him, on 25 February 1999. It stated relevantly:

In conclusion, this is a somewhat unfortunate situation in that Mr Jacobs's early life experience as a result of the government policies of the day, and his treatment by people when he was a child has meant Mr Jacobs has much unresolved trauma and anger. It seems to me that the relatively minor but insensitive comment triggered a response far in excess of what would normally be expected. However, that comment acted as a trigger to a past network of trauma memories. These trauma memories are similar to the comment in the sense that they stem around racial prejudice and shooting.

This report confirms Mr Jacobs' evidence of the impact that the remark had. He gave evidence of memories when he was a child of a white farmer pointing a rifle at his grandfather, father and himself in the bush. The psychologist's report also referred to the chanting of white school children referring to the shooting of Aboriginal people.

In juxtaposition to this evidence is the evidence that Mr Jacobs sought to run on the same ticket as Mr Fardig in the Council elections. Whilst Mr Jacobs viewed this as politically expedient, I cannot reconcile the two issues. It seems to me tantamount to contradiction that Mr Jacobs could feel so strongly about this complaint on the one hand, and on the other, seek to publicly announce his alliance with Mr Fardig. This seriously lessens the weight that I am prepared to give to this portion of Mr Jacobs' evidence.

Mr Fardig's comment was clearly inappropriate and in breach of the RDA. It is made worse by coming from the holder of an important public office.

Against this, the remark, whilst made otherwise than in private, was made to a small group of Councillors and staff. Whilst Mr Jacobs was clearly offended and upset by it, he only complained to Council officials the next day. He did not lodge his complaint with the Commission for more than three months, and around the same time he requested Mr Fardig to run with him on the same ticket.

Because of the time that has passed, the non-acceptance by Mr Jacobs of Mr Fardig's private apology, and Mr Fardig's later public apology, a direction that further apologies should be made seems to me inappropriate. I also note that Mr Fardig has recently completed cultural awareness training, so a direction along those lines would be somewhat redundant. I am therefore only minded to make an award of financial compensation. In all of the circumstances I have formed the view that damages of $1000 is an appropriate award. This is in the context of the special circumstances of this case and the contradiction in the evidence to which I have referred. It also takes note of Mr Fardig's previous apologies and the fact that he has already undergone cultural awareness training. Finally, Mr Fardig has been admirably frank in recognising the inappropriateness of his conduct and has attempted to put the matter behind him.

I trust that this decision today will allow the parties to put the matter behind them. I direct that the amount of $1000 be paid to Mr Jacobs by Mr Fardig within 28 days of the date of this hearing.

Written reasons dated this 13^th day of May 1999 at Sydney.

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

Graeme Innes AM

Hearing Commissioner