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The down side of my love affair with the alluring Section 18C
by Stephen Hagan 1 April 2014
I
f Section 18C was a shy girl waiting for her first dance whilst seated in a dimly lit country barn setting gazing aimlessly at sawdust conspicuously sprinkled on creaking wooden floorboards, I’m sure I’d have a good chance of winning her over such was my persistence to capture her attention as a potential suitor during the past couple of decades. I make this avant-garde analogy of the much maligned Section 18C not to deflect the gravity of those who wish to test their application on racial vilification grounds under that section of the Racial Discrimination Act (RDA), but rather to highlight the often ‘fraught with dangerous’ path one would have to traverse in taking such action.
I’ve had my fair share of wins and losses when filing applications under Section 18C. I had two wins over the fast food outlet McDonald’s: an out of court settlement on a McDonald’s manager who racially vilified a teenage Aboriginal girl who sought my help when he informed her during a coffee break the dark skinned intoxicated man he served was her father – when her father, my cousin, and a serving Queensland Magistrate was over 200 kms away at the time; and a personal triumph in preventing a McDonald’s television advertisement from featuring a tall African American basketballer drinking a so-called ‘short black’ coffee on the grounds that it was racist, despite losing the case to the Advertising Standards Bureau (ASB). In the former case my son Stephen Jnr had a bad experience a
After a 10-year battle, the ‘Nigger’ Brown Stand sign was removed. Rhonda and Stephen Hagan. Image: Daryl Sparkes
decade later when he tried to enter a hotel on turning 18 to listen to friends from his old school play in a band. When asked to show his identification to the doorman, the same former McDonald’s manager – who recognised his name as being the son of the bloke who caused him so much angst all those years ago when the McDonald’s legal team, who flew in from Sydney to fight the case, made him pay the out-of-court settlement on losing - told him he wasn’t allowed in because he wasn’t suitably attired. It was my son’s first encounter of racism as a direct result of his links to me. The good news on that particular night however, is the band packed up, as did the assistant manager of the hotel who also went to the same school as my son, and they all left the hotel
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with him. Suffice to say the hulking doorman lost out again to another Stephen Hagan – who is at present a 4th year law student - and sought bouncer employment elsewhere. In September 2008 I came under heavy racist attacks from sections of the public when I filed, under Section 18C, for Dairy Farmers to remove the brand of cheese called ‘Coon’ sold through food outlets. I argued that ‘Coon’ was the name given to the cheese by Kraft in America ten years before the official patent was provided by Edward Coon in 1926. I told Dairy Farmers I would drop my case if they could prove the veracity of the brand’s origin i.e. show me the academic transcripts of Dr Edward Coon qualification and his history of cheese making publications. Kraft alleged Edward Coon was credited with the patent for introducing humidity into the cooking chamber to speed up the ripening process for the cheese. Through my research I discovered Edward Coon was not a cheese maker but an uneducated recently arrived Russian immigrant who was a factory hand who swept the floors and did odd jobs around the factory. I received numerous letters from old cheese makers in Australia on reading this controversy who claimed they stenciled ‘Ape’ heads on Coon Cheese over half a century ago, thus proving to me, at least, the original racist intent of the name. Despite a lot of nervousness on the part of Dairy Farmers and Kraft who sold the cheese to them, they need not have worried as my case was summarily dismissed by public servants who did very little research on the case and chose to believe a large corporation’s integrity over a so-called radical black stirring up trouble. I haven’t forgotten this case and will take it up as part of my post-doctoral work as soon as I submit my PhD on another subject this year. I also filed cases under Section 18C against two media outlets:
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Skye Manthey at the front of McDonald’s where she was victim of racist remarks by her manager. Image: Courier Mail
the first an electronic media outlet when a journalist called me a pathological liar on a race case and print media for running 30 successive days of full and multiple pages of letters to the editor condemning my stance against racism. Although both cases didn’t go the distance I noted the journalist was transferred to another city soon after I commenced my case on his unsubstantiated claim. The print media case who ran appalling letters to the editor such as ‘next time you see Hagan on the street be sure to throw tomatoes at him, but make sure they’re still in the tin’ dragged on a little longer, but despondently my legal team
baulked at the last hurdle after we had an out-of-court conference. My legal team, which included a lawyer and two barristers was put under the blow torch by a pompous senior counsel who led a team of lawyers for the newspaper when he asked the question: Do you know what car a man like me born on the wrong side of the railway tracks in Newcastle drives today? My senior barrister said he didn’t nor did he wish to but was told anyway. “I drive a Ferrari because I make a lot of money out of these cases … of which I’m yet to lose one.” I’ve filed many other applications under Section 18C of the RDA, but
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the biggest case that elevated my level of notoriety came with my 10-year-long battle over the E. S. “Nigger” Brown Stand. Justice Drummond dismissed my application to have the word ‘Nigger’ removed from the public sign/epitaph E. S “Nigger” Brown Stand that was positioned at the apex of the southern grandstand of the Athletic Oval in my hometown of Toowoomba, Queensland in the Federal Court hearing of 10 November 2000 ruling: It is apparent that this case has nothing to do with whether the Racial Discrimination Act is breached because an Indigenous person has been called a “nigger”. The issue for decision is quite different. It is whether the public display of the word “Nigger” in a context which does not, on the evidence, have any racist connotation or racist message contravenes the Racial Discrimination Act. The case was dismissed with Justice Drummond ruling: Only Mr Hagan’s (‘the applicant’) personal feelings were affected by the act. Because there was no distinction etc produced by the act capable of affecting detrimentally in any way any human rights and fundamental
One of the many letters received from the KKK.
freedoms, there was no racial discrimination involved in the act. The subsequent appeals were also dismissed on similar grounds at the Full Bench of the Federal Court on 23 February 2001 by Justices Ryan, Dowsett and Hely JJ :
I filed, under Section 18C, for Dairy Farmers to remove the brand of cheese called ‘Coon’.
Counsel for Mr Hagan (‘the applicant’) said that the acts complained of involved a “distinction” or “preference” based on race, colour or ethnic origin. But the evidence did not establish that the Trustees’ actions involved treating members of the Aboriginal race differently, let alone less favourably, from other members of the community. Nor did the evidence establish that those actions involved a preference given to anyone or to anything. We agree with the primary Judge’s conclusion that Mr Hagan (‘the applicant’) had failed to make out a case based on s 9(1). And on seeking leave to appeal to the High Court of Australia on 19 March 2002 by Justices Gaudron J and Hayne J: We see no error in the approach of the Full Federal Court to the interpretation and application of sections 9, 18B and 18C(1)(b) of the Racial Discrimination Act
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(Cth). That being so, the question whether further evidence should have been admitted by the Federal Court, which is raised in the applicant’s written submissions, is academic. So far as concerns the costs of the Federal Court proceedings, that was a matter within the discretion of the Full Federal Court and is not a matter which of itself would justify the grant of special leave to appeal. Accordingly, special leave should be refused. We see no sufficient reason to depart from the usual practice with respect to costs in this Court. The order will be special leave is refused with costs. Concurrence with the original determination by Justice Drummond in the Federal Court by superior judicial representatives in the Full Bench of the Federal Court and High Court of Australia would be routinely sanctioned by the broader community if it had not been for the decision passed by the United Nation’s Committee on the Elimination of Racial Discrimination (CERD), under article 14 of the International Convention on the Elimination of All Forms of Racial Discrimination, at its Sixty second session, 3-21 March 2003 in Geneva when they ruled: The Committee therefore notes with satisfaction the resolution adopted at the Toowoomba public meeting of 29 July 1999 to the effect that, in the interest of reconciliation, racially derogatory or offensive terms will not be used or displayed in the future. At the same time, the Committee considers that the memory of a distinguished sportsperson may be honoured in ways other than by maintaining and displaying a public sign considered to be racially offensive. The Committee recommends that the State party take the necessary measures to secure the removal of the offending term from the sign in question, and to inform the Committee of such action it takes in
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this respect. Community angst generated by my campaign to remove the offending word ‘Nigger’ from the sign in question created unprecedented racist vitriol that took me by surprise and exposed Toowoomba’s racist underbelly. It was that alliance of disparate groups, of different racial and social backgrounds, yet incongruous ideological outlook, that adds to the intrigue associated with this case. ‘Don’t snigger nigger the Klan is getting bigger’, and ‘Low-life nigger mongrel’ and ‘troublesome coon’ were threats made from person(s) alleging to represent the Ku Klux Klan during the domestic court hearings. It wasn’t until after the 2003 United Nation’s favourable decision that the full weight of community rage became apparent when media and political muscle were unleashed to marginalise me. On 24 April 2003 Alan Jones, on Channel Nine’s Today Show, launched a scathing attack on the United Nation’s decision: Well, some dunce who calls himself an Aboriginal activist has been petitioning the United Nations Committee on the Elimination of Racial Discrimination, thank you very much, to have the word “nigger” removed.
And, are you sitting down? An 11-page judgement by this same outfit, most probably made up of freedom loving people from Cuba, the Middle East and the darkest and despotic parts of Africa, has said the term was offensive and insulting. A bit like their 11-page report. These sentiments, although not as odiously expressed in correspondence, were endorsed by the office of the then Federal Attorney General, Daryl Williams: ‘The committee did not find that Australia had breached any of its obligations under the International Convention on the Elimination of All Forms of Racial Discrimination’ and in a lighter, yet equally dismissive note when Queensland Premier Peter Beattie also found the sign, ‘Would be inappropriate today, but it is not inappropriate in terms of history’. Despite her Premier’s assertion that the sign was inappropriate and ‘Brown was a football legend from years ago and it was now time to move on’, Queensland’s antidiscrimination commission Susan Booth said she was pleased by the decision: I think it’s important that we continue to look at what words mean in today’s climate. I think that it would be very unfair both to Mr
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Hagan (‘the applicant’) and to all those other people who have gone through due process and who have had some success in the UN if their ruling wasn’t considered seriously. As reported in Australia’s only national daily newspaper, ‘All the courts in Australia said “nigger” wasn’t offensive, and now they’ve been told by more learned judges that it is’ was a welcome change from the avalanche of personal attacks made against me by wide ranging media reports. Despondently the favourable 2003 United Nation’s decision, despite its authoritative support of my legal campaign, only added supplementary fuel to an out-of-control fire of community xenophobia that sustained intensified personal attacks on me and consequentially my family. The question that begs to be asked: Why did so many people, from unemployed Australians to social commentators and politicians fight so frenziedly, and at great personal, emotional and for some, financial cost, to preserve a universally offensive public sign? I’m pleased to report today that the grandstand, along with the offending ‘nigger’ sign, no longer stand - but at great cost. I’ve had attacks by the KKK who flooded my mailbox with ‘Don’t snigger Nigger, the Klan is getting bigger’ and had a man jailed for threatening to shoot me when the CIB found and convinced a judge that he used a public carriage – leaving several threatening messages on my telephone voice mail - to make the threats. Making threats against my life on top of the fact he shot and killed his neighbor’s dog week’s earlier because it wouldn’t stop barking made it easier for the prosecutor to win the case for custodial sentencing. My success rate in all my applications under Section 18C would’ve been less than 20% because of the subjective position
Stephen Hagan Jnr and Snr at a rally to have the “N” word removed.
left up to ultra conservative white public servants and members of the judiciary to make. These decision makers have never and will never in the future be the subject of racial vilification. Their lack of empathy for my actions is breathtakingly scary in their naivety that racial discrimination is just not happening in mainstream society to the extent I alleged it was. Any changes to the RDA by Senator George Brandis QC will only reduce the chances of success for action taken under Section 18C by individuals or groups to a meager figure of less than 10%. One thing is certain and that is more Indigenous Australians will be incarcerated as a result of changes to Section 18C due to them aggressively retaliating against name calling by rednecks in public
places of ‘you black coon, nigger, boong, abo, ape’ and a plethora of similarly toxic and deeply offensive names. Clearly all efforts by this current government on strategies to reduce alarming Indigenous incarceration rates around the nation will be for naught if Senator Brandis’ changes to Section 18C are successful passed through both houses of parliament. However, on a lighter more utopian notion, if Section 18C was a shy girl waiting for her first dance whilst seated in a dimly lit country barn setting gazing aimlessly at sawdust conspicuously sprinkled on creaking wooden floorboards I’m sure I’d have a good chance of winning her over such would’ve been my persistence to capture her attention as a potential suitor during the past couple of decades.
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