Court ordered sorriness: Judicial perspectives in discrimination cases

Abstract

While the power to order an apology is not in doubt, whether courts should order an apology involves complex legal, ethical and practical considerations. Drawing on recent human rights cases, the article offers a view on how the courts have addressed the tension that arises in ordering an apology against a reluctant litigant despite recognising the role of an apology in redressing the grievance. The preponderance of judicial authority leans away from ordering an apology against a reluctant litigant; the court is also not disposed to ordering an apology against a public officer who is reluctant to give one.

In the context of litigation, academic Prue Vines noted that there was much ‘value’ in an apology, including that an apology might play a part in mitigating damages in defamation or some anti-discrimination law. ¹

There has been much written, particularly against the socio-political backdrop of human rights infractions, about the worth of an apology. This article does not enliven that debate, rather it explores the ‘value’ – to adopt Professor Vines’ language – of an apology from a judicial perspective. ²

Rather than aiming to build upon previous discussions, this article instead highlights the idea that an apology has ‘value’, serving primarily as a contextual basis for examining the jurisprudential treatment of a court ordered apology. Reprising the language of ‘value’, Berryman prefaced his article ³ by asking ‘What is the value of an apology’. ⁴ Drawing on the Canadian experience, he noted an apology may mitigate a court order that might otherwise be made. ⁵ However, this article does not explore Berryman’s point beyond its making – that an apology has ‘value’ as the core – rather, our article will explore whether a judicial officer might be minded to order one against a reluctant litigant.

Vines distinguishes between a ‘full apology’, meaning ‘acknowledging one’s fault’, and a ‘partial apology’ which is a ‘mere expression of regret without such an acknowledgement’. ⁶ This article focuses on what Vines describes as a ‘full apology’.

An apology might be seen as an admission of liability, a point which Vines noted in a separate work ⁷ might be one reason why a litigant is unwilling to apologise. ⁸ This article focuses on cases where there has already been a substantive finding in favour of the plaintiff or applicant, so this aspect does not play a significant part in our analysis.

The authors of the 2016 book, Federal Discrimination Law opined that ‘[d]ivergent views have been expressed by courts as to the appropriateness of ordering an apology’. ⁹ Examples include that such an apology ‘may vindicate the plaintiff’s right, but it may also be a form of redress and solace for emotional harm’ and ‘there may also be a declaratory and deterrent function which educates the public about the wrongdoing in question’; ¹⁰ it could provide ‘vindication’ and compensate ‘for the humiliation and stigmatisation experienced by the complainant’; ¹¹ and an apology could provide closure for the applicant. ¹²

The core of this article addresses whether a court would, in fact, order an apology.

Judicial attitudes to apology

Wotton v Queensland (No 5) (‘Wotton 5’) ¹³ was a class action taken in response to events in November 2004, following the death in custody of Aboriginal man Mulrunji Doomadgee, which led to community concerns, protests and outrage on Palm Island. A large contingent of police, including members of the Special Emergency Response Team (‘SERT’), were deployed in response to the protests. ¹⁴

The applicants brought the class action proceeding on their own behalf, and on behalf of ‘Indigenous people who were ordinarily resident on Palm Island on 19 November 2004 and who remained ordinarily resident there until 25 March 2010’. ¹⁵ A ‘subgroup’, on whose behalf the applicants also brought the proceeding, comprised those who were

affected by an operation carried out by armed officers of the Special Emergency Response Team (SERT) on 27 and 28 November 2004 [and] includes children who were in or near the houses that were entered and searched by SERT officers. ¹⁶

The applicants sought an apology of a ‘specific kind’ ¹⁷ which they submitted should be in the following form:

The terms of the apology should include a formal recognition of the findings of this Court in these proceedings, that the Applicants and the Group Members were required to pursue this litigation because of wilful blindness of the Respondents for over 11 years and that the residents of Palm Island were entitled to appropriate levels of protection as other citizens living in Queensland and subject to the actions of the QPS [Queensland Police Service]. The apology should be made in a formal, public ceremony on Palm Island by an appropriate senior politician or politicians, ideally the Premier and the Minister for Police, accompanied by the Commissioner of Police. ¹⁸

Mortimer J in Wotton 5 had proposed that, in cases of racial discrimination, the power to order an apology under s 46PO(4) of the Australian Human Rights Commission Act 1986 (Cth) (‘AHRC Act’) was ‘not in doubt’, and could be invoked to require a respondent to ‘perform any reasonable act to redress any loss or damage suffered by an applicant’. ¹⁹ Her Honour qualified her comment by stating that courts have generally been reluctant to exercise the power against a person reluctant to give an apology under either that section or ‘cognate provisions in other statutes’. ²⁰ At the conclusion of her reasoning in Wotton 5, after discussing the suitability of an apology (among other forms of relief), her Honour directed that the parties file further submissions concerning the same. ²¹ Her subsequent reasoning found expression in Wotton v Queensland (No 6) (‘Wotton 6’). ²²

In Wotton 5, Mortimer J declared proven various contraventions of s 9(1) of the Racial Discrimination Act 1975 (Cth), ²³ and noted there would be value in ‘[a]cknowledging the dignity and equal value of Aboriginal people’. ²⁴

Regarding the value of an apology, her Honour noted that an apology might be merited in the interests of

recognising wrongdoing (large or small, moral, personal, social, public or legal) and acknowledging hurt and grievance caused or felt in others because of that wrongdoing [as] a step towards healing [or] towards reconciliation. ²⁵

Her Honour then outlined the ‘critical question’ before her as

whether a court-ordered apology is an act which the Court is satisfied would redress damage suffered by the applicants. Whether more appropriate methods of achieving that redress are available is also relevant. ²⁶

Her Honour took the opportunity to assess whether she should order an apology in the circumstances of the case, having regard both to the value of an apology as well as whether an apology should be merited – against the backdrop of whether an apology should be ordered against a reluctant litigant. ²⁷

Complications arise from the judicial treatment of whether a court would be prepared to grant an apology against a person or entity who was unprepared to give one. In cases of discrimination, particularly racial discrimination, the respondent might be a public officer, government authority, or a representative of government. The latter introduces an additional aspect to this question, specifically whether an apology would be mandated for a public officer or government authority who, in that role, was unwilling to apologise. In Wotton 5, ²⁸ Mortimer J’s reasoning integrates the analysis of these two strands. Mortimer J also gave consideration to the approach of ordering the publication of a notice in lieu of an apology, to overcome this difficulty.

In Wotton 5, Mortimer J endorsed the general proposition that courts were reluctant to order apologies at all. ²⁹ Her view is consistent with the preponderance of academic and judicial opinion. For example, Gaze and Smith, authors of the leading textbook Equality and Discrimination Law in Australia, noted that courts and tribunals have ‘generally been reluctant’ to order an apology or make any other order. ³⁰ Reflecting this same judicial reluctance in Poniatowska v Hickinbotham, ³¹ a case involving sexual harassment and employer discrimination, Mansfield J stated that the adverse findings already made were sufficient recognition of the inappropriateness of the respondent’s conduct and that the principal relief would be monetary compensation, which he was prepared to order, but not an apology. ³²

The judicial reluctance to order an apology is underlined yet further in cases, including those outlined below, ³³ where a court has gone so far as to acknowledge the desirability of an apology yet declined to order one.

For example, in Gama v Qantas Airways Ltd (No 2) (‘Gama’), ³⁴ a discrimination case against Qantas where Mr Gama, an engineer from Goa, claimed that he had been subjected to remarks such as him looking ‘like a Bombay taxi driver’ or references to him walking upstairs ‘like a monkey’, Raphael FM said that

there is value in an exhortation from the court that those responsible at Qantas and Mr Hulskamp [the applicant’s supervisor] read these reasons carefully, appreciate the very unfortunate results of their actions and take it upon themselves to write appropriately to Mr Gama. ³⁵

Raphael FM said that he had made plain in previous decisions ³⁶ that an apology is something which should come from the heart. He stated that he did not think it appropriate for a court to order a person to apologise because such an apology may have little value – despite his own comments concerning the desirability of an apology in such a case.

Driver J expressed similar reasoning in Alexander v Cappello, ³⁷ a sexual harassment case where the employer was held vicariously liable for the actions of its employee under the provisions of the Sex Discrimination Act 1984 (Cth).

We now turn to the second, related strand of our analysis, namely the situation of a public officer or representative of government who had acted in that capacity and who was unprepared to grant an apology.

In addressing this question, Mortimer J extensively referenced an article by Robyn Carroll, now an Emerita Professor at UWA Law School. ³⁸

In that article, Professor Carroll said that ‘recently’ (her article was written in 2010) the distinction had been made between personal apologies, which cannot be compelled, and an apology made for the purpose of fulfilling a statutory requirement, which is not dependent on voluntariness. Her analysis of those decisions was that the aims of anti-discrimination legislation can be served by ordering apologies even when the apology is not heartfelt. She opined that, in construing the legislation in this way, these cases support the view that an apology that is not given voluntarily still has some value in the eyes of the law. ³⁹

Professor Carroll propounded that this was the approach taken by the NSW Administrative Decisions Tribunal in Burns v Radio 2UE Sydney Pty Ltd (No 2) (‘Burns’). ⁴⁰ In this case, Mr Burns’ complaint against Radio 2UE regarded comments made about a same-sex couple that incited hatred or ridicule of homosexuals. The NSW Administrative Decisions Tribunal upheld Mr Burns’ complaint that the comments amounted to homosexual vilification, and the respondents were ordered to make a public apology on air and to print an apology in three major metropolitan newspapers.

Professor Carroll noted that the Tribunal in Burns was ‘clearly sympathetic’ to the view taken by Raphael FM in Evans v National Crime Authority ⁴¹ where a distinction was made between a court-ordered apology and a personal apology. The Tribunal decision, as quoted by Carroll, ⁴² stated that a personal apology which is deemed to be sincere cannot be achieved by a court order, noting:

We agree, therefore, with the respondents’ argument that to compel the publication of an apology is misguided, only to the extent that the argument refers to what we will call a personal apology, rather than an apology that is one made for the purposes of the Anti-Discrimination Act 1977. An apology of the type that meets the purposes of the Anti-Discrimination Act 1977 can, and in this case will be, compelled by order. ⁴³

Professor Carroll noted that the reasoning in Burns has subsequently been adopted and applied in other cases by the NSW Administrative Decisions Tribunal (now the NSW Civil and Administrative Tribunal) and by the Queensland Anti-Discrimination Tribunal (now the Queensland Civil and Administrative Tribunal). ⁴⁴

Professor Carroll discussed two other cases, Grulke v KC Canvas Pty Ltd, ⁴⁵ and Forbes v Australian Federal Police, ⁴⁶ both of which she regarded as cases which raised doubts about the power of the court to make an apology order against a respondent who was not a natural person, respectively a corporation (Grulke) and a statutory authority (Forbes). In Grulke, Ryan J found it inappropriate to exercise the discretion to order an apology as the respondent was not a natural person and the applicant was sufficiently compensated.

In Forbes, the respondent, Australian Federal Police, was initially ordered by the Federal Magistrates Court to provide an apology to the appellant. The appellant appealed, but more relevantly, for present purposes, the Australian Federal Police successfully cross-appealed on the finding of unlawful discrimination. The question of the power to order an apology was not separately raised on the Forbes cross-appeal but, in overturning the finding of unlawful discrimination, the question of whether there was any power to order an apology was correspondingly rendered sterile. The formal orders therefore were that the: ‘Federal Magistrate’s declaration that the respondent discriminated against the appellant be set aside’ ⁴⁷ and that the ‘Federal Magistrate’s order that the respondent apologise to the appellant be set aside’. ⁴⁸

Professor Carroll stated that ‘doubts have been expressed about the power to make an order of this nature [ie, an apology] against an entity that is not a natural person, including government authorities’ citing both Grulke and Forbes to support that proposition, ⁴⁹ and added immediately after as follows,

In other cases however an order has been made against government respondents. Even assuming the power does exist, it has been considered inappropriate on some occasions to make an order against a government authority. ⁵⁰

Professor Carroll’s analysis of whether there was power to make an apology order against an entity that was not a natural person was considered by Mortimer J in Wotton 5. In so doing, her Honour stated that Carroll’s view in respect of Grulke was correct ⁵¹ but also added that,

His Honour [Ryan J] did not develop his reasoning on why it might be relevant that the respondent was not a natural legal person and his approach to that issue has not been followed in other cases. ⁵²

Mortimer J, however, disagreed that Forbes should be read as a case where doubts were expressed about the power to make an apology order, stating:

The Full Court's comments were addressed to the fact that ‘the Australian Federal Police’ was not a legal person. The Court made no comment on the appropriateness of apology orders generally, whether against government authorities or otherwise. It did not, for example, say that an apology order cannot be made against the Commonwealth. ⁵³

Ultimately, her Honour held that she would not order an apology against the Commissioner of Police for Queensland (‘the Commissioner’). ⁵⁴ Her Honour’s reasons (with respect) appear somewhat abrupt, given her apparent initial predisposition to accept that a public officer was in a different position to a private individual. ⁵⁵ Additionally, Mortimer J did not cite Burns, and did not confront the reasoning in it.

In so doing, what she questioned was the ‘appropriateness of ordering a public office holder to give an apology’ adding that ‘the premise underlying an order is that the public office holder will not, of her or his own accord, apologise’. Her Honour noted that ‘[t]here is something of an analogy with the difference between an undertaking and an injunction, although the analogy is imperfect because an injunction is a remedy to enforce legal rights.’ ⁵⁶

Mortimer J did not specifically elaborate on her reasons for those observations. An attempt is nonetheless made here to work out, as best as we can, what was meant, and how it impacted on her Honour’s subsequent reasoning.

An ‘injunction’, as her Honour recognised, is a remedy to enforce a legal right. She could perhaps have been thinking that there was an analogy between an injunction and an order to apologise because, in both cases, the respondent would be compelled to do an act. However, in the case of an apology, the analogy was (arguably) imperfect because an apology, at least in the present case, was not directed to enforcing any specific ‘legal right’. Rather, her Honour was more concerned whether an order of apology would be merited, more broadly, in the interests of recognising wrongdoing and acknowledging hurt and grievance. ⁵⁷

An ‘undertaking’ on the other hand was a promise, voluntarily proffered to perform a certain act. There was in that sense an analogy with an apology, insofar as in both cases the entity in question would undertake to perform a certain act. In the present case, based on her Honour’s comment that she was conscious the ‘public office holder will not, of her or his own accord, apologise’, ⁵⁸ then the analogy with an undertaking was immediately imperfect since an undertaking was a promise given voluntarily.

Her Honour’s comments concerning the analogy of an apology and the difference between an undertaking and an injunction, albeit imperfect, might have explained why she ultimately considered a course of action whereby the Court would require the Commissioner to decide whether to issue an apology, reasoned against the premise that ‘the public office holder will not, of her or his own accord, apologise’. ⁵⁹ Her Honour additionally noted that if the Commissioner, having decided not to apologise, would then be ‘accountable publicly’ for the decision to apologise or not, and must ‘sincerely and genuinely decide to offer one; or explain why he will not’. ⁶⁰

In other words, the Court’s direction for the Commissioner to decide whether to apologise might have provided the impetus to consider whether the public office holder should apologise voluntarily when they would not have done so of their own accord. A subsequent decision to apologise, offered sincerely as a result of responding to the direction to decide whether to do so, might have been one of several ‘appropriate methods of achieving that “redress”’ for the aggrieved applicants – reprising her Honour’s own language. ⁶¹ Such a decision would then have straddled the benefits of ordering an apology against a reluctant litigant as though the proceedings at hand were akin to an injunction but without the complications that would have been caused by the fact that the apology (unlike an undertaking) was not one that they would otherwise have been considered by the litigant ‘of their own accord’ but rather in response to a direction that they consider whether or not to do so.

It needs to be noted also that Mortimer J, in Wotton 5, did not make any finding about the ‘wilful blindness’ of the State of Queensland, one of the terms in the apology sought. For that reason alone, the refusal to order an apology in the terms sought was inevitable. More significantly, however, is that Mortimer J’s reasoning did not indicate if she might otherwise have been prepared to order an alternatively worded apology which did align with the findings of the court, or whether she would have been prepared to countenance a mechanism to resolve its form and substance. ⁶²

Of the cases cited by Mortimer J addressing the idea that an apology should not be ordered against a reluctant respondent, particularly detailed treatment was given to Eatock v Bolt (No 2) (‘Eatock’). ⁶³ Bromberg J in Eatock ⁶⁴ had noted that there was ‘force’ in the respondent’s contention that an apology which was not genuinely held should not be compelled. ⁶⁵ Mortimer J had expressed that view at [1563] of her own judgment, but the significance of Mortimer J’s treatment of Eatock went beyond this observation; rather, it stemmed from the fact that Bromberg J had determined an apology was ‘but one means to redress the public vindication’ sought and that to order the respondent to publish a corrective notice would ‘fulfil the purposes […] identified’. ⁶⁶

Eatock ⁶⁷ concerned the publication of two newspaper articles found to contravene s 18C of the Racial Discrimination Act 1975 (Cth). ⁶⁸ It was alleged that the articles were reasonably likely to offend, insult, humiliate or intimidate some Aboriginal persons of mixed descent who have fairer, rather than darker skin; Bromberg J ordered a corrective notice (rather than an apology) to be published twice in the Melbourne Herald Sun newspaper and for the corrective notice to include a reference to the Court’s reasons. ⁶⁹

Thus, in Eatock, the court sanctioned the order of a corrective notice rather than an apology in a matter involving unlawful discrimination. The respondents had opposed the order for such a notice, arguing that it would be punitive, basing their arguments on decisions on corrective advertising. Bromberg J in Eatock said that there were ‘significant differences’ between corrective advertising in commercial cases and a notice to be ordered in the type of case at hand, and also cautioned that it needed to be borne in mind that they served ‘different purposes’. ⁷⁰ Bromberg J identified four purposes an order would facilitate in the case before him, being: to redress the hurt felt by those injured; restore the esteem and social standing which had been lost because of the contravention; inform those influenced by the contravening conduct of the wrongdoing involved; and help to negate the dissemination of racial prejudice. ⁷¹

Additionally, Bromberg J drew support from the fact that such purposes were relied upon by the Canadian Human Rights Tribunal’s grant of remedies under an Act proscribing communication likely to expose a person to hatred or contempt by reason of race. ⁷²

Mortimer J then directed her attention in the case before her to the question of whether an order should be made that the respondent make a public statement reflecting the court’s findings in lieu of an apology and published in the same way an apology would have been published, using the form in Eatock ⁷³ as a model. ⁷⁴ Her Honour was evidently enthused by the reasoning in Eatock ⁷⁵ when she noted:

His Honour therefore ordered that a corrective notice be published instead of requiring an apology: Eatock v Bolt (No 2) at [17]. As with the earlier decisions to which I have referred above, the salient point to draw from his Honour’s reasons is that an ordered apology may be an appropriate way of redressing loss and damage caused by racial discrimination, including by achieving ‘public vindication’ of those injured by it, but may not be appropriate where such an order would compel the articulation of a sentiment that is not genuinely held. ⁷⁶

Mortimer J stated that she would be prepared to consider an order of the type in Eatock as ‘an option’. ⁷⁷ The intended objectives for which an apology was sought in Wotton 5 align closely with the reasons for ordering the Eatock notice. An order that a respondent publish an Eatock-type notice, in addressing the purposes for which the court might otherwise have considered ordering an apology, overcomes two potential complications:

First, it overcomes the problem of the judicial refusal to order an apology where the respondent is not prepared to give one. Although Mortimer J acknowledged that a government representative would not be treated in the same way as a private individual or entity, her judgment in truth (with respect) could be seen as offering very limited guidance as to when a court would order an apology in that situation.

Secondly, a corrective notice overcomes one difficulty which arose from Wotton 5, ⁷⁸ namely that the apology sought did not align with the findings of the court. Rather than confront the question of whether the findings of the court might support the terms of an apology or need to address the complications in trying to craft an apology which did align with the findings of the court, an order that the respondent publish a notice reflecting the terms of the judgment would effectively give notice of the grievance sought to be redressed to the same audience to which the apology would have been directed.

Mortimer J’s endorsement of Bromberg J’s view in Eatock – that an order of a notice could ‘fulfil the purposes’ outlined earlier – thus was seemingly the catalyst to her own reluctance to engage more closely with the question of whether a court-ordered apology should be made against a public officer or government representative where that person (or their office) was not prepared to offer such an apology.

But, with respect to Mortimer J, the order of a notice would still not satisfy one of the purposes for which an apology may otherwise be ordered – namely, being an acknowledgment of the grievance caused. This was one of the reasons that Mortimer J had stated should underpin the need for an apology (that it would ‘acknowledge’ the hurt and grievance caused because of a wrongdoing). ⁷⁹

When the matter was relisted for the making of formal orders in Wotton 6, Mortimer J revisited both questions. Her Honour, having already indicated in Wotton 5 that she was not prepared to order an apology ⁸⁰ but would explore the ‘possible course’ of requiring the Commissioner to make a choice whether to make an apology, the focal points in Wotton 6 were then whether such an order should be made, and/or if her Honour should order the publication of a notice.

Her Honour ultimately declined to order the Commissioner to make a choice whether to make an apology. Her reasons for refusal were as follows: first, that it would do more harm than good to direct the Commissioner to consider whether to make an apology, and the reasons given – to apologise or not – might be unpalatable or offensive to individuals or group members of the community. ⁸¹

The second reason was a concern that directing the Commissioner to consider whether to apologise or not could be seen as an impermissible delegation of the judicial function. ⁸²

The final reason for Mortimer J’s refusal to order the Commissioner to consider whether or not to make an apology was that, while one or more of the other class members and/or sub-group members could be afforded relief related to an apology, making apology orders piecemeal, before the claims of those class members and sub-group members could be determined, would be premature. ⁸³

As to the order for the publication of a notice, her Honour reprised the view she expressed in Wotton 5, ⁸⁴ that such a notice might redress the sense of injustice the class members felt and would likely assist them to feel that their complaints had been vindicated. ⁸⁵ Her Honour here nevertheless reprised the view, expressed in relation to her refusal to order that the Commissioner consider whether to make an apology, that different class members might have different grievances. Consequently, her Honour then similarly declined to order the publication of a notice because the proceedings, as a class action, were ‘yet to be completed’. ⁸⁶

Conclusion

This article has noted the judicial disinclination to order an apology against a reluctant litigant where they are a private entity.

Professor Carroll drew attention to cases in which doubt had been cast on a court’s power to order an apology against a government authority. ⁸⁷ Despite Mortimer J’s apparent initial willingness to accept that a public officer was in a different position to a private entity, she was still unprepared to order an apology against the Commissioner of Police. Her reasons, as argued above, appeared somewhat abrupt, stating that she questioned the ‘appropriateness’ of ordering a public officer to give an apology. It is ultimately suggested that the same disinclination to order an apology against a private entity would extend to a public officer.

In cases where an apology would not be ordered against an unwilling respondent then an order in the terms set out in Eatock ⁸⁸ and considered by Mortimer J in Wotton5 ⁸⁹ might at least redress the loss and damage caused by racial discrimination by achieving ‘public vindication’ of those injured. ⁹⁰ While her Honour declined to make such an order in Wotton 6, the reason for so declining was that it would be premature to do so. ⁹¹ The corollary is that, in an appropriate case, her Honour might yet have been prepared to order the publication of a notice of the same type as in Eatock.

As opposed to a court order of an apology, the Australian Human Rights Commission (‘the AHRC’) will frequently recommend the making of an apology pursuant to s 35(2) of the AHRC Act’. ⁹² However, conciliation by the AHRC precedes court determination. Within the framework of the AHRC Act, upon the lodgement of a complaint with the AHRC, ⁹³ an investigation of the complaint will be undertaken and an attempt to resolve the complaint by conciliation may be made. ⁹⁴ The President of the AHRC may terminate a complaint on various grounds, including that the complaint is trivial or lacks substance, or would be better dealt with elsewhere, or if conciliation fails. ⁹⁵ Only at this stage is the complainant at liberty to take the action to court. ⁹⁶

The recommendation of an apology under the AHRC Act does not give rise to the same difficulties as the order of an apology where the respondent is unprepared to give one. Such court-sanctioned recommendations were made, for example, in TM v Linfox Australia Pty Ltd, ⁹⁷ and in Swamy v Percival. ⁹⁸ How the litigant responds to such a recommendation gives rise to complex and varied subsidiary questions which are outside the scope of this article. ⁹⁹

What can at least be said, with certainty, is that Wotton 5 has reinforced the judicial disinclination to order an apology.