'Black babies' comment offensive; not discriminatory

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'Black babies' comment offensive; not discriminatory

A complaint of racial discrimination has been rejected on the basis a government department acted reasonably in a matter involving racially offensive remarks. No breach of the Racial Discrimination Act 1975 was established.

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A complaint of racial discrimination has been rejected on the basis a government department acted reasonably in a matter involving racially offensive remarks. No breach of the Racial Discrimination Act 1975 was established.

[Full text of this case: V v Commonwealth of Australia & Ors [2014] FCCA 463 (10 September 2014)]

Inappropriate comments made in the workplace


A woman employed in the Indigenous Graduate Recruitment Program of the Australian Public Service felt she encountered racial discrimination from her supervisor and other co-workers.

She claimed her supervisor had insulted, humiliated, harassed and intimidated her on the basis of her race at a meeting in August 2011. At another incident in September 2011, a member of a workshop the woman attended kept offering her chocolate flavoured jelly babies, calling them “black babies”. Continuing to be provocative, the same man also said he particularly liked Coon cheese.

On 4 October 2011, the woman complained in writing to the department secretary about the remarks made by the man at the workshop. An officer given the task to investigate the woman’s complaints eventually persuaded the man to apologise and accepted the genuineness of his apology.

Feeling that the apology had not been sincere, the woman wrote at least two more letters complaining about racial discrimination, workplace bullying and harassment, and about the lack of disciplinary action from management.

On 3 April 2012, she lodged a complaint with the Australian Human Rights Commission.

Claim before Federal Circuit Court


Eventually, by application on 2 November 2012, the woman applied to the Federal Circuit Court (Driver J). She claimed the Commonwealth of Australia was vicariously liable for the unlawful acts of the individuals who had engaged in racial discrimination against her, contrary to the Radial Discrimination Act 1975.

She sought relief in the form of redeployment to another department, compensation, a written apology from the persons concerned and an order that they undergo training in anti-discrimination, anti-bullying and harassment. The Commonwealth denied the alleged breaches of the act and denied vicarious liability.

No disadvantage


The court acknowledged the woman was a passionate and articulate advocate for her case and noted that, although she alleged racial discrimination, she did not claim racial vilification.

The court also acknowledged it could reasonably be supposed that the act of inviting an Aboriginal person to eat “black babies” was likely to cause offence. The man who had done it was deemed to be unsophisticated and obtuse. However, the court accepted he had apologised and showed genuine remorse when the offensive nature of his remarks had been made clear to him.

The court found the incident between the woman and her supervisor had merely involved miscommunication. No inference was available that there had been any intention to disadvantage the woman because of her race.

The court accepted the employer had acted adequately in counselling the man who had made offensive remarks. It had been reasonable to deal with the matter informally rather than on a formal disciplinary basis.

The actions taken by departmental officers had been part of the ordinary administration of the department in question. It was not useful to debate whether the various situations could have been handled better.

The court concluded the woman had failed to establish any breach of the Racial Discrimination Act 1975. Consequently her application was dismissed.

The bottom line: An important aspect of a discrimination claim is that the complainant be able to show there was disadvantaged suffered. The complainant failed to show this in this case.

V v Commonwealth of Australia & Ors [2014] FCCA 463 (10 September 2014)

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