Editors --- "Bropho v Human Rights & Equal Opportunity Commission - Case Summary" [2003] AUIndigLawRpr 6; (2003) 8(1) Australian Indigenous Law Reporter 59

• Bropho V Human Rights &Amp; Equal Opportunity Commission
• Facts:
• Held, Dismissing The Application:

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Court and Tribunal Decisions - Australia

Bropho v Human Rights & Equal Opportunity Commission

Federal Court of Australia (Nicholson J)

4 December 2002

[2002] FCA 1510

Human rights — application for review — publication of cartoon — uncontested findings of offensive behaviour — application of exemption — protecting certain forms of freedom of expression — no error of law in application of reasonableness and good faith test — no failure to take into account various matters

Facts:

The applicant applied for review of a decision of the first respondent, the Human Rights & Equal Opportunity Commission, (the ‘Commission’) in which the Commission had dismissed a complaint made by the applicant and others (constituting the Nyungar Circle of Elders) against the second respondent (West Australian Newspapers Limited) pursuant to the provisions of the Racial Discrimination Act (1975) (Cth) (the ‘RDA’).

The applicant’s complaint related to the publication of a cartoon entitled ‘Alas Poor Yagan’ published in the second respondent’s newspaper (‘The West Australian’) on 6 September 1997.

The Commission found that the reasonable Nyungar or Aboriginal person would have found the contents of the cartoon offensive, insulting, humiliating or intimidating. The Commission formed this view because the cartoon presented a demeaning portrayal of Yagan, an ancestor of the complainants; contained derogatory and demeaning references to the Waugyl, a religious figure; treated the issue of death in a manner offensive to Aboriginal people; suggested a diminishing of the race by the racial mixing of Aboriginal and non-Aboriginal which may not have been consensual, and reinforced a misinformed and stereotypical view of Aboriginal people of taking advantage of government grants.

The Commission found that one of the reasons for the publication of the cartoon was the race of the persons referred to in the cartoon. This made the cartoon unlawful under s 18C of the RDA.

The Commission found however that the act was exempted from the operation of s 18C by s 18D of the RDA because the publication was reasonable and in good faith. The Commission also found that the cartoon was an artistic work and that it was published for a genuine purpose in the public interest.

The applicant submitted that the Commissioner had erred in not requiring positive evidence of good faith on the part of the publisher, rather than absence of evidence of bad faith, and that there was an absence of evidence to establish that those aspects of the cartoon which were offensive, insulting, humiliating or intimidating were said or done reasonably and in good faith. Secondly, the applicant submitted that the Commissioner had erred in failing to take into account the relevant consideration that the matters of public interest did not include the aspects of the cartoon that were offensive, insulting, humiliating or intimidating. Thirdly, it was alleged that the Commissioner erred in law when he failed to consider that the content of the cartoon was severable into parts.

Held, dismissing the application:

1. Section 18D of the RDA is concerned to protect aspects of freedom of speech. There is nothing in either the explanatory memorandum or second reading speech which suggests the section should be given anything other than full force and effect. The exemption should be read broadly: [10], [11], [29]-[31]. Bryl & Kovacevic v Nowra & Melbourne Theatre Company (1999) (Commissioner Johnston, 21 June 1999, Human Rights & Equal Opportunity Commission) referred to. Jones v Scully [2002] FCA 1080 referred to.

2. The onus is on the respondent to satisfy each of the elements under s 18D: [10], [32]. Bryl & Kovacevic v Nowra & Melbourne Theatre Company (1999) (Commissioner Johnston, 21 June 1999, Human Rights & Equal Opportunity Commission) referred to. Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512 considered.

3. To determine the meaning of the phrase ‘good faith’ it is necessary to consider its statutory setting: [27]. Cannane v J Cannane Pty Ltd (in liquidation) [1998] HCA 26; (1998) 192 CLR 557 followed.

4. The good faith requirement in s 18D is to be met by an objective consideration of all the evidence and is not to be based on the subjective state of mind of the person doing the act: [33]. Cannane v J Cannane Pty Ltd (in liquidation) [1998] HCA 26; (1998) 192 CLR 557 followed.

5. The conduct of the respondent is not presumed to be unreasonable or in bad faith. If there is no evidence on this point, it is not necessary for the respondent to produce evidence to positively prove the requirement of ‘good faith’. The objective test applies: [13], [36]-[37]. Bryl & Kovacevic v Nowra & Melbourne Theatre Company (1999) (Commissioner Johnston, 21 June 1999, Human Rights & Equal Opportunity Commission) referred to.

6. It is incorrect to apply the requirements of reasonableness, good faith and genuine purpose to separate parts of the act that constitute the offensive behaviour. Findings of reasonableness, good faith and genuine purpose under s 18D relate to the act as a whole and are based on an objective construction of all the evidence: [39]-[45].