Sometimes an Apology is worth more than Money

By Robyn Carroll | 13 Mar 12

This article is part of our March theme, which focuses on an ongoing challenge to Australian society: Race & Discrimination. Read our Editorial for more on this theme.

Apologies are recognised in Australian law as a legitimate form of redress for individuals who suffer as a result of racial discrimination. Apologies also serve the public interest by raising awareness of the nature and harmful effects of discrimination and vilification. This short article looks at the role that apologies play in anti-discrimination law.

As a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) Australia has undertaken to prohibit and bring to an end racial discrimination by any person, group or organisation. Legislation is identified in the CERD as one means to achieve this goal. The Racial Discrimination Act 1975 (RDA) was enacted by the Commonwealth Parliament to give effect to Australia’s undertaking. The RDA makes it unlawful for a person to engage in racial discrimination or racial vilification. Racial vilification refers to offensive behaviour that is based on racial hatred. Offensive behaviour is defined as an act, otherwise than in private, that is reasonably likely in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people. The States and Territories have also enacted legislation that aims to eliminate racial discrimination and prohibits racial vilification.

In the recent Eatock v Bolt court case journalist Andrew Bolt and the Herald and Weekly Times (HWT) were found to have racially vilified a number of prominent Aboriginal people in two articles published by HWT. Justice Bromberg of the Federal Court of Australia refers to the vilification provisions in the RDA as being “infused by the values of human dignity and equality” and having the objective of “promoting racial tolerance and protecting against the dissemination of racial prejudice.”

One way that the legislative goals of the RDA are pursued is by enabling a person who is aggrieved by an alleged act of unlawful racial discrimination or vilification to lodge a complaint with the Australian Human Rights Commission (AHRC).  Complaints can also be made to Commissions set up under State and Territory legislation. Complaints under the RDA are investigated by the AHRC and efforts are made to resolve the complaint through the process of conciliation. An aggrieved person whose complaint is unresolved can apply to the Federal Court for a binding decision and formal remedies.

The most common and well-known way that the offence and injury caused by racial discrimination is remedied under Australian legislation is by an award of damages (a payment of money) to the victim of the unlawful conduct. But the terms on which complaints are conciliated and the orders sought from courts and tribunals when cases proceed to litigation tell us that victims of racial discrimination are not necessarily just looking for monetary compensation. Sometimes the victim is looking for a remedy that emphasises in a more public way the unlawful nature of the conduct and draws attention to the offence and harm that has been caused. Non-monetary redress is sometimes provided by a court declaration, a corrective notice and sometimes by an order to apologise.

What value is there in ordering a person to apologise if they are not willing to offer the apology voluntarily?

There have been a number of cases in which people who have acted unlawfully have been ordered to make a public apology to the victim of their unlawful racial discrimination. One of the earliest reported cases in which an order of this kind was made was decided by Sir Ronald Wilson as President of the Human Rights and Equal Opportunity Commission, (forerunner to the AHRC) in the White v Gollan case in 1990. The two people who brought the complaint in that case were unlawfully refused service in the public bar of a hotel because they were Aboriginal. The publican was ordered to send a written apology to them and to have the apology published in a newspaper circulating in the district in which the hotel was located. The publican was also required to pay damages by way of compensation for the embarrassment and humiliation suffered.

Apology orders are often sought in racial vilification cases. This is not surprising because of the nature of the offence caused by acts of racial hatred and the difficulties an aggrieved person will face showing that they personally have suffered monetary harm as a result of the offensive conduct. There are numerous examples under state legislation of orders of this kind being made. By way of illustration, in Western Aboriginal Legal Service Limited v Jones & anor, a case decided in 2000, Radio 2UE commentator Alan Jones was ordered by a NSW tribunal to broadcast the following apology during his radio program:

On 28 November 1995, on my breakfast program, I commented on a case in which the Equal Opportunity Tribunal awarded an Aboriginal person $6,000 in respect of a complaint of racial discrimination against a real estate agent.

During the course of that program I broadcast remarks which have been found by the Equal Opportunity Division of the Administrative Decisions Tribunal to be in breach of the racial vilification provisions of the Anti-Discrimination Act.  I apologise to the Aboriginal people of New South Wales for those remarks.

It is unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or a group of persons on the ground of their race.

Apology orders in similar terms have been ordered as a form of redress for racial discrimination and racial vilification against private individuals, a town councillor, a nightclub, the owner of a diner, the NSW Police Service and individual officers of the NSW police service.

What do we know about apology as a remedy for racial discrimination?  What value is there in ordering a person to apologise if they are not willing to offer the apology voluntarily? How can an order of this kind further the aim of eliminating all forms of racial discrimination?

Sometimes the victim is looking for a remedy that emphasises in a more public way the unlawful nature of the conduct and draws attention to the offence and harm that has been caused.

First of all, we know that people who bring court proceedings under the RDA sometimes ask for an apology even when they know it will not be given willingly. This tells us that victims of discrimination are willing to accept an apology that is not made voluntarily and might even be described as being made “through clenched teeth”. Although there has been no empirical research to inform us of the actual reasons that victims of racial discrimination are willing to accept apologies of this kind the courts have identified a number of purposes served by apology orders. These include providing compensation in non-monetary form, vindicating a person’s experience of being wronged and, to use the words of Sir Ronald Wilson in White v Gollan, “to restore the complainants’ sense of dignity and self-worth.”

Secondly, we know that courts are willing in suitable cases to order people who have discriminated on grounds of race to apologise for their unlawful conduct. The order might not be opposed once the court has decided that there has been discriminatory conduct. Even if it is opposed though, courts have made clear that they still have the power to make the order and will do so in appropriate circumstances.

Thirdly, we know there are differing and strongly held views amongst judges and members of anti-discrimination tribunals about the value of an ordered apology in cases involving discrimination and vilification and when it is appropriate to order a person to apologise if they will not do so willingly. While on the one hand some courts and tribunals regard apology orders as furthering the aims of anti-discrimination legislation, others have expressed the view that an ordered apology is meaningless, of no value and therefore an exercise in futility.

This was the view taken by the Federal Court in Jones v Scully and Jones v Toben, cases involving racial vilification of people of the Jewish faith through publications on the internet. Likewise, in Eatock v Bolt, Justice Bromberg declined to order an apology because he was not persuaded that he should compel the newspaper to articulate a sentiment that it did not genuinely hold. In his Honour’s view, an apology requires “an acknowledgement of wrongdoing together with an act of contrition.” Justice Bromberg acknowledged that the complainant sought a public apology at trial from HWT and that some courts are prepared to make orders of that nature but did not regard an apology as an appropriate way to provide the public vindication sought in this case. His Honour ordered instead that a corrective notice be published which referred to the Court’s decision and reasons and declared the conduct described in the notice to be unlawful as a contravention of Section 18C of the RDA.

A different view, expressed by the NSW Administrative Decisions Tribunal in Burns v Radio 2UE Sydney Pty Ltd & Ors (No2) in 2005 and by other state tribunals, is that there is value in ordering an apology even if it is not given willingly and is not heartfelt. According to this view the apology is justified on the basis that a distinction can be drawn between a personal, sincere and heartfelt apology, which cannot be compelled, and an apology that is an acknowledgement of wrongdoing under anti-discrimination legislation and understood as fulfilment of a legal requirement rather than as a statement of genuinely held feelings.

In the end, the more appropriate description of these types of orders might simply be an ‘acknowledgement of wrongdoing’.

What does this mean for the role of apologies in anti-discrimination law and how can they further the aim of eliminating racial discrimination? A number of points can be made. First, it will always be a discretionary question for the court to decide in all the circumstances of the particular case whether there will be sufficient benefits to justify making the order. Second, the opposing views can be reconciled, to some extent at least, by recognising that an apology that is ordered as a legal remedy is not an apology as understood in moral or social terms. There is not likely to be an expectation by anyone that the apology will be heartfelt or remorseful; but the victim and the aims of the legislation may be sufficiently satisfied by the acknowledgement of wrongdoing it embodies to justify the order.

The third point I would raise, is whether it is the description of the court order as an ‘apology’ that causes disquiet and whether there is another way to provide redress by an acknowledgement of unlawful conduct. In the Eatock v Bolt case, Justice Bromberg was of the view that this could be achieved through a corrective notice which he ordered to be published. The purposes that a corrective notice can serve to facilitate, as identified by Justice Bromberg, are “redressing the hurt felt by those injured; restoring the esteem and social standing which has been lost as a consequence of the contravention; informing those influenced by the contravening conduct of the wrongdoing involved; and helping to negate the dissemination of racial prejudice.”

On the other hand some might say that these aims will also be achieved by an apology in the terms described in Burns, that is an “acknowledgement of wrongdoing under anti-discrimination legislation” that is understood as “fulfilment of a legal requirement.” Describing the published statement as a ‘corrective notice’ rather than an ‘apology’ overcomes one concern. But it might not serve the purpose of those who believe that what is owed is an apology, not a correction. In the end, the more appropriate description of these types of orders might simply be an ‘acknowledgement of wrongdoing’.

However the order is described and whether or not in its terms the wrongdoer is required to state that they apologise, it is clear that a court cannot compel a personal or sincere apology. What is also clear is that some form of order that acknowledges in a public way that the person has unlawfully discriminated against another on the basis of race is one way of providing redress and educating the wider community about the harmful effects of discrimination, consistent with the aims of the RDA.

Robyn Carroll, Professor of Law at the University of Western Australia, is the author of a number of articles on apology as a remedy in private law.