Section 18C of the RDA speaks of "race, colour, or national or ethnic origins". In my view the term "white" does not itself encompass a specific race or national or ethnic group. It is too wide a term for that.
Using these definitions in the Australian context, being "white" per se is not in my view descriptive of any particular ethnic, national or racial group. Nor is it of itself a term of abuse. White people are the dominant people historically and culturally within Australia. They are not in any sense an oppressed group, whose political and civil rights are under threat.
There seems no other satisfactory explanation for the use of the words "white" or "whites" by Ms Power in the context of this case other than that she wished to express her frustration at what she perceived as being a power imbalance between herself and Mr McLeod. He being a person of light coloured skin and a correctional services officer who was refusing her entry to the prison and she being a person of dark coloured skin, who was being foiled in her desire to enter it. She wanted to do this in as stark and confrontational manner as she could. This perhaps is analogous to the situation described by Lord Fraser of Tullybelton when he described the Normans and Anglo Saxons following the Battle of Hastings in terms of being distinct ethnic groups. In this sense only were the words "white" and "whites" used by Ms Power because of Mr McLeod's "race, colour or national or ethnic origins". As a consequence of section 18B of the RDA this brings the matter within the purlieu of Part IIA of the Act. However in my view it is drawing a long bow to use the RDA in this way and was certainly not the primary purpose of the legislature in enacting legislation of this kind.
In the context of this matter, I do not believe that a reasonable correctional services officer with a pale skin would have been offended, insulted, humiliated or intimidated by the addition of the words "white" or "whites" to the abuse used by Ms Power outside the gatehouse of the Yatala Labour Prison on 8 April, 2001. The abuse, although unpleasant and offensive was not significantly transformed by the addition of the words "white" or "whites". These words are not of themselves offensive words or terms of racial vilification. This is particularly so because white or pale skinned people form the majority of the population in Australia. The fact that Mr McLeod was upset because he felt that he was being portrayed unfairly as a stereotypical white, racist prison officer by Ms Power is not, to my mind sufficient to bring the incident complained of within the ambit of section 18C of the RDA.
As you can see, this case clearly demonstrates that 18c does not include abuse directed at ‘white people’ and this precedent has now been set in law. This case has been used as a precedent many times in anti-discrimination court cases.
