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Critical Case Note McGlade v Lightfoot [2002] 124 FCR 1061 Court: The Federal Court of Australia2 Judges presiding: Carr J Material Facts: This case revolves around racial discrimination and ultimately, human rights. The respondent, Senator Ross Lightfoot, made racial and derogatory statements to a journalist, Mr Kitney, during an interview in a parliamentary office about Aboriginals. The statements made were published in an article in the Australian Financial Review and further republished in the West Australian newspaper. Alongside this evidence, Mr Kitney also taperecorded the interview. The applicant, Hannah McGlade, sought a declaration and an order that the respondent donate to the Aboriginal Advancement Council. Her motion was dismissed in June 2002, yet, she appealed the court’s decision which was heard in November 2002. Procedural History: The case was first established on 16th May 1997, where the applicant filed with the Human Rights and Equal Opportunity Commission a complaint3 regarding the statements made by Senator Ross Lightfoot. Despite McGlade’s complaint being dismissed, it was resubmitted at a time where amendments were made to the Human Rights Legislation Amendment (HRLA) 1999 (Cth) and a new commissioner was assigned, so s13 of the HRLA did not apply. The amendments enabled the removal of the previous commissioner’s words and conferred the matter to the Federal Court.4 The respondent’s solicitors filed a notice of motion to strike out the application on the basis that it did not disclose any reasonable cause of action. The motion was heard on 12th June 2002 and dismissed 13th June. On October 3rd the parties were notified that the matter was listed for hearing on 7th November 2002, where the respondent claimed he could not make it due to a business trip, he also did not provide any witness statements. The counsel for the applicant stated that his client was content to have the respondent’s 4th November 2002 letters be treated as a set of submissions. The applicant gave short oral evidence as did the journalist, Mr Damon Kitney, who wrote the article. Legal issues: In relation to s 18C of the Racial Discrimination Act 1975 (Cth), the court had to answer whether the respondent’s act was reasonably likely to offend, insult, humiliate or intimidate another person or a group of people.5 Also, whether the respondent’s act was 1 McGlade v Lightfoot (2002) 124 FCR 106. 2 Ibid. 3 Ibid [2]-[14]. 4 Ibid. 5 Racial Discrimination Act s 18C (1).

done because of the race, colour or national of ethnic origin of the other person6, whether the respondent’s act was done “otherwise than in public”7 and whether any of the statutory exemptions apply.8 Ultimately, the question posed in front of the court in the present case, which is the subject of this case note, was whether the act caused “such words to be communicated to the public”.9 Legal reasoning: The court concluded that the respondent’s act was communicated to the public. Carr J used his discretion to conclude that Mr Lightfoot knew that there was a reasonable likelihood that the information obtained by the interviewer would be published in the Australian Financial Review.10 This is further supported by the fact that there was no evidence that suggested the respondent did not want his statements to be kept confidential or hidden. Despite the respondent having no control of the publishment of the newspaper, the court found that his words were communicated to the public under s 18C(2)(a). The court found that the respondent’s act was reasonably likely to offend, insult, humiliate or intimidate another person or a group of people.11 Carr J found that the group of people being targeted were the Aboriginal and said, “there is no need to construe s 18C(1)(a) restrictively”.12 The respondent’s statements were seen as offensive “…in the sense of causing them to be wounded or hurt and to feel displeasure or annoyance…”.13 They would also be humiliated by the statements “…by having their pride or self-respect lowered”.14 Section 18B of the Racial Discrimination Act 1975 (Cth) was satisfied as it is obvious the respondent made those statements because of the Aboriginal race. Lastly, according to Carr J, by not choosing to submit any evidence before the court, the respondent has “failed to discharge the onus of proof that any of the statutory exemptions apply.”15 Orders: The court declared that the respondent had engaged in conduct rendered unlawful by Part 2A (s 18C) of the Racial Discrimination Act 1975 (Cth). The court ordered the respondent to make a substantial donation to the Aboriginal Advancement Council on an indemnity basis.16

CRITICAL ANALYSIS 6 Ibid s 18B. 7 Ibid 1 [38]-[40]. 8 Racial Discrimination Act s 18D. 9 McGlade v Lightfoot- Case Summary [2002] AUIndigLawRpr 42; (2002) 7(3) Australian Indigenous Law Reporter 15; 10 McGlade v Lightfoot (2002) 124 FCR 106 [34]. 11 Racial Discrimination Act s 18B. 12 McGlade v Lightfoot (2002) 124 FCR 106 [46]. 13 Ibid. 14 Ibid. 15 Ibid [74]. 16 McGlade v Lightfoot (2002) 124 FCR 106.

The case is significant as it provides for the interpretation of, specifically s 18, of the Racial Discrimination Act 1975 (Cth) and has since then become a precedent decision for other cases such as Kelly-Country v Beers (2004) and Eatock v Bolt (2011). The court recognised that it was “…not necessary to establish that all Aboriginal people may be offended…”.17 Additionally, the objective test used to determine that the respondent’s act did humiliate, intimidate, insult and/or offend the Aboriginal highlighted that “it is not necessary for an applicant to prove that any person was actually offended…”.18 The court’s consideration of the humiliation the Aboriginal people felt upon reading the derogatory statements made by Senator Lightfoot has become of great precedential value. It encourages equality and provides fair treatment for the Aboriginal whose rights have been diminished since the colonialism of Australia in the 1800s. From a Critical Race Theory perspective, experiencing racism is the norm for people of colour.19 The respondent’s comments had the potential to fuel the tension between white and Indigenous Australians, and encourage racism. His inclusion of the word ‘primitive’ highlight the ever-growing issue of superiority embedded within the white society since the colonialism of Australia. This case is evidence of the structural injustice faced by Aboriginals who have been labelled as ‘savages’ and ‘backward people’. It provides the colonisers with a reason to believe they are doing the ‘right’ thing by colonising as they are trying to ‘help’. However, all colonialism does is create a conflicted and divided society where the colonist imposes his values. In this case, the court’s assertion that the statements humiliated, offended and insulted the Aboriginal community, and that the statements were made in public reflect a move towards a discrimination free society for Aboriginals who clearly have a different legal status to the wider society.20 Critical Race Theory also critiques on liberalism21, which has given rise to the debate involving freedom of speech and racism. An examination of the Racial Discrimination Act (RDA) 1975 (Cth) s18C and whether it is constitutionally invalid, “…by virtue of the implied freedom of political communication”22, has taken place since the outcome of this case. On the other hand, it is seen that freedom of speech is just an excuse to be racist.23 This has escalated since Andrew Bolt, a columnist and political commentator, was found to have breached s18C of the RDA for his crude comments about Aborigines and their entitlements.24 This highlights the significance of McGlade v Lightfoot in being of great precedential value in ensuring the rights of Aborigines are protected as they have been treated as primitive beings since the colonisation. 17 John Morris Kelly Country, ‘Submissions of the Aboriginal and Torres Strait Islander Social Justice Commissioner and acting race discrimination commissioner’, Submission in Kelly- Country v Beers 2004, 15 April 2004, [10]. 18 Ibid [7]. 19 Marett Leiboff and Mark Thomas, Legal Theories: contexts and practices (Thomson Reuters, Rozelle, NSW, 2nd ed, 2014) [485-507]. 20 Andrew Bolt, ‘No surprise: Aboriginal activists now want treaty, even apartheid’, The Herald Sun, 12 December 2016. 21 Above n 19. 22 Larissa Welmans, ‘Section 18C and the implied freedom of political communication’ (2018) 42(3) University of Western Australia Law Review, 1. 23 Sarah Gill, ‘Freedom of speech? More like freedom to be a racist’, The Sydney Morning Herald, 23 November 2016. 24 Kerrie Ritchie, ‘Bolt breached discrimination act, judge rules’, ABC News (online), 29 September 2011

Hence, the court’s and Carr J’s decision to charge Senator Lightfoot under s18 of the RDA was highly significant and persuasive as it encouraged an anti-discriminatory society for Aborigines. Despite some backlash for diminishing freedom of speech, it is important as it acts as a constraint on racism and ensures Indigenous Australians are safe from the prejudice they have been subject to for being ‘primitive’ since the colonisation....