Sam Kerr, captain of the Australian Women’s Soccer team, has been found not guilty of racially aggravated harassment of a London Metropolitan police officer after calling him “stupid” and “white”. Despite the acquittal, this case has drawn significant attention to whether seemingly unfavourable treatment towards white people can constitute racism and how similar incidents would be handled in Australia.
On 30 January 2023, Sam Kerr and her partner hailed a taxi to take them home after a night out. Both women were allegedly drunk and during that cab ride, Ms Kerr was sick in the taxi. The driver then locked the doors and windows and drove them to the nearest police station on advice of police but without informing the women. Ms Kerr and her partner told the court they feared they were being taken hostage, and shortly before arriving Ms Kerr’s partner smashed one of the taxi windows in an attempt to escape.
Police body camera footage showed police requesting the pair to pay for the damaged window and fare and cleaning fee. During the recorded conversation, Ms Kerr called the officers “f***ing stupid and white”.
The prosecution argued that Ms Kerr’s comments were a deliberate attempt to harm the police officer, were racially motivated and that the police officer felt “humiliated”, “shocked” and “belittled”.
Ms Kerr did not deny calling the police officer “stupid’ or “white”, but told the court she was trying to make a comment about “power” and “privilege” and believed that the officers were treating her differently because of her skin colour on the night of the incident. Ms Kerr is of Indian descent.
The jury unanimously found Ms Kerr not guilty of the charge.
While Ms Kerr has been found not guilty of racially aggravated harassment rather than discrimination, her case has prompted widespread conversation about the myth or existence of “reverse racism”, and whether racism or racial discrimination against white people is permissible under legislation or more socially acceptable.
“Reverse racism” is sometimes used to describe situations where white people believe they are discriminated against or negatively stereotyped because of their whiteness or treated less favourably than people of colour. It is an idea focused on prejudiced attitudes towards a certain racial group or groups, or unequal treatment – namely, discrimination. But it overlooks that power is one of racism’s central indicators.
The Oxford English Dictionary defines racism as “prejudice, discrimination, or antagonism directed against someone of a different race based on the belief that one’s own race is superior.” According to Mario Peucker, Associate Professor and Principal Research Fellow at Victoria University, the concept of “reverse racism” doesn’t work because racism is more than just prejudice. Prejudice and discrimination are inextricably linked with historically entrenched and institutionalised forms of systemic racism and racial hierarchies, injustices and power imbalance1.
State and federal anti-discrimination laws prohibit discrimination and harassment on the grounds of certain protected attributes in certain areas of public life, and in public with respect to vilification. The Racial Discrimination Act 1975 (Cth) (RDA) broadly prohibits discrimination on the basis of race, colour, descent, national or ethnic origin, as well as acts of racial hatred. Acts of racial hatred include public acts that are reasonably likely to offend, insult, humiliate or intimidate a person or group because of their race, colour, or national or ethnic origin. Similar protections exist under state and territory anti-discrimination laws. In Victoria, reforms have been proposed to strengthen anti-vilification laws, which are currently limited to protection from “behaviour that incites hatred, serious contempt, revulsion or severe ridicule for a person or group of people, because of their race or religion”.
White people can be called derogatory names that reference their whiteness. Given this, whiteness may technically be protected from anti-discrimination and anti-vilification laws, and it may be possible for a white person to face discrimination or vilification by people of colour on the basis of their whiteness.
However, while white people may be covered by protections against racial hatred or vilification, there is still a requirement to establish that the alleged conduct was reasonably likely to offend, insult, humiliate or intimidate the complainant. In circumstances where whiteness has existed as the dominant race in Australia and positions of leadership and authority continue to be dominated by white people, this aspect of the legislation is likely to be extremely difficult to substantiate.
Further, there are exceptions under the RDA and state anti-discrimination laws that make otherwise discriminatory conduct lawful, in particular, special measures. Special measures are lawful discriminatory acts aimed at reducing historically entrenched, intergenerational and systemic inequalities. Affirmative action programs are direct responses to structural inequality and an attempt to level the playing field. Positive racial discrimination is based on amelioration, not racial superiority. According to Peucker, regardless of whether positive or affirmative action is lawful or not, the term racism or “reverse racism” would not apply.
While the limits of protection from racial harassment, discrimination and vilification have not been comprehensively tested in Australia’s current social climate, Ms Kerr’s case demonstrates that such claims need to be considered in the context of social, cultural and historical factors that shape individual experiences and responses, not just the letter of the law.
In Ms Kerr’s case, the words were said in the context of:
In both the UK and Australia, legal claims do not exist within a vacuum and as shown in Ms Kerr’s case, these sociopolitical factors can be pivotal in determining the outcome of the case.
Our Safeguarding and Discrimination Team has extensive experience supporting organisations to create safe and inclusive environments for all individuals, as well as navigating complaints and disputes if they arise. We can assist with tailored advice on your discrimination and safeguarding obligations to diverse groups, as well as development and delivery of policies and training to proactively address these issues.
Please contact us for more detailed and tailored help.
Subscribe to our email updates and receive our articles directly in your inbox.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
The recent Federal Court case of Roxanne Tickle v Giggle for Girls provides a unique opportunity to obtain greater clarity on the scope of anti-discrimination protections for transgender people in Australia.
Roxanne Tickle lodged a discrimination claim in the Federal Court against Giggle for Girls on the basis of her gender identity, and is seeking damages of $200,000. Giggle for Girls is a social networking app developed exclusively for women to share experiences and speak freely in a “safe space”. Roxanne Tickle was assigned male at birth, but now identifies as female and has a birth certificate designating her sex as female. Ms Tickle downloaded the app and was required to upload a selfie as part of the registration process. Artificial intelligence assessed her photo as being of a woman and she was able to access the app. However, Ms Tickle was later removed from the app by Giggle for Girls’ CEO, on the basis that she was male and her onboarding selfie appeared to be of a man.
Ms Tickle claims that Giggle for Girls has discriminated against her under the Sex Discrimination Act 1984 (Cth) (Sex Discrimination Act) on the basis of her gender identity by treating her less favourably in the course of providing goods and services. Ms Tickle argued that she was treated less favourably than cisgender women (being women whose gender identity corresponds with their sex assigned at birth), because of her gender identity of being a transgender woman.
Giggle for Girls are defending the case on the basis their refusal to allow Tickle to use the app constituted lawful sex discrimination as a special measure. A special measure is an action taken to advance equality of a particular group that would otherwise experience disadvantage, in this case females. Because Giggle for Girls perceives Ms Tickle as male, they consider it is lawful to discriminate against her on the basis that it is part of a special measure.
Australia’s Sex Discrimination Commissioner also made submissions in this case, noting that ‘for a person to be of the female “sex”, it is sufficient if that sex is recorded on the person’s birth certificate and/or they have undergone gender affirming surgery to affirm their status as female’.
Notwithstanding this, the evidence provided to date suggests Ms Tickle, as a trans woman, was treated differently to how the respondents treated people with a different gender identity, namely cisgender women.
Judgment has been reserved and we are awaiting the decision in this case.
This case has provided the Court with the ability to determine the extent to which the Sex Discrimination Act protects transgender people from discrimination on the basis of their gender identity. The Sex Discrimination Act was reformed more than a decade ago to add protections for transgender and gender diverse people, however, this is the first time these laws are being tested in court.
This case also highlights the distinction between sex discrimination and gender identity discrimination, and the challenging overlap when special measures to rectify one form of disadvantage, in this case on the basis of sex, intersect with other areas of discrimination.
Sex is not defined in the Sex Discrimination Act, however, generally refers to the sex assigned at birth as male, female or intersex, which is based on physical features such as chromosomes, hormones and organs. Gender identity is defined as the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person (whether by way of medical intervention or not), with or without regard to the person’s designated sex at birth. As such, this case serves as a prime opportunity to clarify this distinction as it relates to instances of discrimination.
In addition, the need for greater protections for transgender people are now at the forefront of public discourse.
The Trans Justice Project and Victorian Pride Lobby’s collaborative report into anti-trans hate in Australia published in August 2023 was the largest ever investigation into anti-trans hate in Australia. Their study found that 49.2% of transgender participants directly experienced online anti-trans abuse, harassment or vilification in the 12 months prior to the report, and 1 in 6 transgender participants experienced anti-trans violence in the previous 12 months.
This issue is also pertinent to schools, with Equality Australia’s report ‘Dismissed, Denied and Demeaned: A national report on LGBTQ+ discrimination in faith-based schools and organisations’ finding that many independent schools had enrolment policies that required enrolment based on a student’s assigned sex at birth, and provided teachings that openly condemned homosexuality and transgender people and encouraged their school communities to hold similar beliefs.
The Australian Law Reform Commission’s recent report, Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws1, has recommended changes to narrow the circumstances in which religious educational institutions can discriminate against students and workers. While the ALRC report recognises that institutions should be allowed to preference staff in line with their beliefs so long as it is proportionate and ‘reasonably necessary’ to maintaining a community of faith and does not breach existing discrimination laws, it recommends amendments to the Sex Discrimination Act and Fair Work Act 2009 (Cth) to ensure students and staff do not face discrimination on the basis of their gender identity among other attributes.
Many organisations grapple with the delicate balance of upholding the rights and dignity of transgender people in their communities, whilst respecting and addressing the responses they receive from others in their community when supporting transgender people. In religious organisations, the balance can be even harder to achieve.
Steps taken to support and accommodate transgender people may range from navigating access to bathrooms, participation in sport, use of pronouns and the extent to which organisations provide education and/or public support on issues involving the transgender community. However, it is important to recognise that these issues feed into a range of legal obligations held by organisations, whether it be the duty of care that schools owe to all students, the obligation to address bullying and harassment on the basis of gender identity, privacy obligations relating to unauthorised disclosure of medical information pertaining to transgender and gender diverse individuals, or discrimination in the course of various areas of public life.
This case provides a timely reminder of the need to ensure your organisation proactively considers the implications of actions aimed at improving gender representation and inclusion, to ensure they are not unintentionally exclusionary of transgender people.
Further, while the initial use of artificial intelligence in this case reached a finding that aligned with Ms Tickle’s gender identity, it is also crucial for organisations to be conscious of how they use artificial intelligence and the potential risks of discrimination with these models. For schools, you can read more about the tips and traps for managing the risks associated with artificial intelligence in our recent article.
Rather than wait for an issue to arise, we recommend that organisations:
Our Safeguarding team can assist with drafting or amending policies and guidelines tailored to your organisation’s needs, and delivering training to ensure you understand your obligations and opportunities to implement best practice.
1ALRC, Summary Report – Maximising the Realisation of Human Rights: Religious Educational Institutions and Anti-Discrimination Laws, Report 142, December 2023.
In the case of Kaplan v State of Victoria (No 8) [2023] FCA 1092, five Jewish former students at Melbourne’s Brighton Secondary College (College) received compensation of $435,000 after the Federal Court found they had been subjected to anti-Semitic bullying and harassment, and that the State of Victoria and the Principal of the College breached the Racial Discrimination Act 1975 (Cth) (Act) by failing to properly address anti-Semitism at the College. This case highlights the significant discrimination and child safety implications of a school’s failure to proactively address discriminatory bullying and harassment against its students on an individual and systemic level.
The applicants, five former students from the College, filed a claim against the State of Victoria, the Principal of the College, and two teachers from the College. The claim alleged:
In summary, the applicants alleged that:
Finally, the applicants alleged that the Principal contravened the anti-vilification provisions of the Act in respect of at least one speech he gave to a full school assembly, where the applicants allege he made remarks that offended, insulted, humiliated or intimidated Jewish students and were offensive more generally to Jewish people.
Each of the five applicants left the school as a result of the above.
The Court upheld the applicants allegations in part, and found that State of Victoria was vicariously liable for the Principal’s failure to adequately respond to anti-Semitic bullying and harassment by students.
The applicants succeeded on some of their claims under section 9(1) of the Act and negligence claims. Specifically, the Court found that:
The Court accepted the applicants’ claim that the Principal failed to address anti-Semitic bullying and harassment in a systemic and proactive way using recognised and established approaches in Australian secondary schools and approaches that were used at the College for other vulnerable students.
The Court found that the Principal contravened s 9 of the Act by failing to take reasonable and appropriate steps to discourage swastika graffiti and the anti-Semitic bullying and harassment of students. Appropriate and reasonable steps could have included taking disciplinary action against students who engaged in bullying and harassment, and taking systemic approaches to address the issue through school-wide campaigns. The Court found that at a leadership and systemic level the Principal took a different, and less favourable, approach to anti-Semitic bullying and harassment of Jewish students than he took, or would have taken, to the bullying and harassment of other vulnerable minority student groups. As a result, this different and less favourable approach to anti-Semitism was also adopted by College staff.
The Court observed an inexplicable and unusual tolerance for anti-Semitic graffiti and a preparedness to ignore, downplay and take less seriously the complaints made by Jewish students and their families. There was also a disinclination to adopt any systemic, school-wide steps to address anti-Semitic student behaviour, despite this having been done, appropriately, to protect LGBTQIA+ students and to encourage tolerance and acceptance of students who identified in that way or who were exploring their identity.
In relation to the claims made in negligence, the Court upheld the negligence claims made by four of the five applicants.
Damages and compensation orders were made against the State totalling approximately $435,000.
In its orders, the Court also provided a declaration to be made outlining the above findings of discrimination. The Court also prescribed some steps to be taken between the parties to negotiate a form of apology from the State of Victoria that is compatible with the Court’s reasons.
Our safeguarding team has expertise in both child safety and discrimination matters. We are well placed to assist with incidents raising either or both of these issues and can provide peace of mind in navigating any allegations or investigations that may arise.
The Minimum Practice Standards: Specialist and Community Support Services Responding to Child Sexual Abuse (Standards) were launched on Wednesday 6 September 2023 under the National Strategy to Prevent and Respond to Child Sexual Abuse 2021-2030.
The Standards embed the three core values of being victim and survivor centered, trauma-informed, and culturally safe, across the six standards.
The Standards apply to specialist and community support services responding to child sexual abuse, including:
The Standards are not intended to apply to:
However, all organisations and services will benefit from drawing from the Standards to improve their responses to child sexual abuse.
Helpfully, under each standard are ‘standard indicators’ which organisations can draw from to implement each standard within their own practices and services.
Our Safeguarding team can assist your organisation to draw on the Standards to strengthen your organisation’s practices when responding to and preventing child sexual abuse. Our team of experts can support your entire organisation to comply with the Standards, from providing guidance to your Board, through to policy development and delivering staff training. Contact Skye Rose or Cecelia Irvine-So for more information about how we can support your organisation to take this incredibly important step to providing a safe environment for all children.
We know that discrimination negatively impacts on the ability of students with a disability to participate and maximise their potential in the school environment.
In our experience, schools work hard to provide a broad range of reasonable adjustments to support students with disabilities. Schools are generally familiar with the requirements under state and federal anti-discrimination laws that students with a disability have access to education on the same basis as their peers.
What schools may be less familiar with is the vulnerability of students with a disability to child abuse or risk of harm. This vulnerability is well documented. The Royal Commission into Institutional Responses to Child Sexual Abuse heard evidence that children with a disability can face additional barriers to disclosure of child abuse or harm. Students with a disability are also more likely to be subjected to restraint or seclusion and are more likely to be bullied. The importance of protecting the safety, welfare and best interests of children with a disability is reflected in the National Principles for Child Safe Organisations, which includes a key principle that equity is upheld, and diverse needs respected in policy and practice. Ministerial Order 1359, which implements the Child Safe Standards for Schools in Victoria, reinforces this principle by legally requiring schools to pay particular attention to the needs of students with disabilities.
So what does this all mean and what actions can schools take to ensure child safety for students with a disability?
Below are just a few tips for schools to ensure child safety for students with a disability and comply with their legal obligations:
Our Child Safety team can help you to develop a best practice Child Safety Policy and Procedure and Child Safety Code of Conduct. We can also run some of the leading child safety training in Australia for both staff and for older students. If a child safety issue arises, we can support you in your response and investigation. Contact to us to hear more about these services.
Conducting investigations in relation to employee conduct always requires careful consideration and compliance with requirements of procedural fairness. However, when the conduct being investigated involves children, this raises several additional complexities which must be considered by employers.
The case of Gulliver v Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane [2023] FCA 823 (Gulliver) highlights the need for a sensitive approach to these types of allegations, balanced with compliance with any processes set out in an enterprise agreement. This case resulted in an employer being required to pay over $50,000 in penalties as a result of failure to comply with a direction from the Fair Work Commission (FWC), in accordance with its obligations under the applicable enterprise agreement. While this case drives home the need for employers to properly consider requests for further information in accordance with relevant industrial instruments, it also highlights the complex child safety and privacy obligations that must be carefully considered, which vary between jurisdictions.
The applicant was a teacher employed at a school managed by the respondent, who traded as Brisbane Catholic Education, for over 15 years. The employment relationship between the teacher and Brisbane Catholic Education was governed by the Catholic Employing Authorities Single Enterprise Collective Agreement — Diocesan Schools of Queensland 2019–2023 Agreement (Enterprise Agreement). The Enterprise Agreement was a workplace instrument and an Enterprise Agreement for the purposes of the Fair Work Act 2009 (Cth) (FWA).
By letter dated 7 February 2023, the teacher was advised by Brisbane Catholic Education that an investigation had been commenced in relation to the teacher’s conduct in the course of her employment. The alleged conduct involved the teacher tugging the earlobes of two students when demonstrating the appropriate sleeper earrings to be worn in accordance with the school’s policy. In further correspondence from Brisbane Catholic Education, the teacher was informed that the allegations had been substantiated.
The teacher subsequently sought details of the evidence being relied upon in the investigation, however, was only provided with select, paraphrased information in relation to the allegations being investigated. The teacher then applied to the FWC seeking a range of remedies, including an injunction preventing Brisbane Catholic Education from terminating her employment until completion of the dispute resolution procedures set out in the Enterprise Agreement. Notably, the Enterprise Agreement contained status quo provisions which stated:
2.4.8 Whilst all of the above procedure is being followed, normal work shall continue except in the case of a genuine safety issue.
2.4.9 The status quo existing before the emergence of the grievance or dispute is to continue whilst the above procedure is being followed.
The FWC, in its reasons found that the Enterprise Agreement’s guidelines surrounding complaints against employees did not “compel” Brisbane Catholic Education to provide the teacher with the material sought. However, the FWC recommended in the particular circumstances of this case, that “the sensible course is for [Brisbane Catholic Education] to provide to the [teacher] to the full extent that is permissible, any material that will be put before the decision maker before a final decision is made”.
Brisbane Catholic Education failed to provide any further details in relation to the conduct, and subsequently terminated the teacher on the basis of the alleged conduct on 31 May 2023.
The teacher therefore claimed that Brisbane Catholic Education contravened s 50 of the FWA by contravening the status quo maintenance provisions contained in her Enterprise Agreement.
The Court held that there was a contravention of s 50 of the FWA on the basis of the contravention of the Enterprise Agreement requiring the status quo to be upheld during the dispute resolution process set out in the Enterprise Agreement.
The Court found that the teacher was “left in a position of not knowing, prior to her dismissal, whether or not [Brisbane Catholic Education] would act on the recommendation” made by the FWC.
“Had [Brisbane Catholic Education] chosen to act on the recommendation by communication to her, even if only to the extent of stating, “You already have, by correspondence of particular dates, the following material and this is the only material which will be placed before the decision-maker”, she would then have had the choice of whether or not to accept that this was in fulfilment of the recommendation or, had she chosen to want more, to press for an arbitrated outcome.”
Instead, the Court found that by failing to do so, Brisbane Catholic Education, by the termination the teacher’s employment without providing any indication of its position in relation to the recommendation, was to interrupt the status quo.
Consequently, the Court was satisfied that the contravention had been made out, being a violation of a status quo required by clause 2.4.9 of the Enterprise Agreement.
As a result of this contravention and having found liability, the Court awarded $28,832.76 compensation for economic loss and a further $25,000 penalty for the breach of s 50 of the FWA.
We advise clients on employment and safeguarding investigations across Australia and can provide assistance on the best way to navigate these complex issues, consistent with relevant laws and industrial instruments. With our expertise in both workplace relations and child safety, Moores are well-placed to assist with managing misconduct investigations that overlap with reportable conduct in relation to children. Please contact Skye Rose for further advice or information.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.