Legal Advice for the racial discrimination case of Nasir

This memorandum of advice discusses the legal advice for the racial discrimination case of Nasir. It covers the relevant law, issues, factual background, advice, and more. The case is related to the Racial Discrimination Act 1975 and the Anti-Discrimination Act 1977.

Running head: CIVIL LAW
Civil Law
Name of the Student
Name of the University
Author Note

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MEMORANDUM OF ADVICE
TO: Senior Partner, Peter Morgan
FROM: Legal Associate, Summer Andrews
DATE: 18 July 2019
RE: Legal Advice for the racial discrimination case of Nasir
A. BRIEF ANSWER
It is most likely that Sam will be held liable for bulling and racially discriminating
Nasir in the workplace on the basis of skin colour, religion and ethnicity. He shall be made
guilty under the Racial Discrimination Act 1975. The action of the client will most likely be
favoured by the court as the issues could be successfully established by the help of the
evidences of discrimination.
B. ADVICE SOUGHT
Whether the client, Nasir could seek justice for being racially discriminated by his
boss Sam for his distinct ethnicity and skin colour, also against XYZ Co Pty Ltd, his
company that did not provide him with any redressal on his complaint against Sam pertaining
to the racial discrimination incidents.
C. FACTUAL BACKGROUND
1. Nasir worked for XYZ Co Pty Ltd, a construction company where he had been
working for around 3 years now. He is black skinned, Aboriginal by race and Muslim
by religion. He has been a diligent employee; never giving a scope of complaint
pertaining to his job role and duties given to him. He has completed several projects
successfully over the years, with many acclamations to his credit. He has been

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appreciated for his good conduct and decent behaviour in the workplace as well over
the years.
2. Sam, a fair skinned Catholic, British-American by original ethnicity, is a new joinee
in the XYZ Co Pty Ltd. He has joined the company as a project manager, heading the
project to which Nasir was associated. He has been identified as a head-strong and
extremely strict boss by his fellow subordinates. On many occasions he has been
identified to have misbehaved to his juniors and colleagues as well.
3. On January 19, the new project at Brisbane started which Sam was asked to supervise
and Nasir was asked to report Sam on the day-to-day progress of the project. The
project started well on a good note among the professionals. Soon after a couple of
weeks, Nasir could trace an issue with the accounts of expenditure of the project
which was different from what he had submitted to Sam.
4. Nasir reported the issue to the Accounts and Audit Department on February 15,
adding the fact that he thinks Sam might be tampering the account of the project for
his personal gains. Based on this complaint, the Accounts and Audit Department
started enquiring about the matter and questioned Sam on several occasions regarding
the same, throughout the process of the project.
5. Sam was smart enough to understand that it was Nasir who made the complaint
against him and thereby he started harassing and bullying Nasir on every opportunity
he got. On March 5, Sam called Nasir ‘a Muslim terrorist’ in the cafeteria when they
both were fetching coffee.
6. On March 8, Sam called Nasir in his cabin, thrashed him verbally for ‘neglecting’ his
responsibilities and then abused him by calling him a ‘black skinned abomination’
and pushed him out of his cabin. After this occasion, Nasir reported Sam’s action to
the disciplinary body of the XYZ Co Pty Ltd yet did not get much of a response from

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the team. Thus, he seeks legal help from our law firm for bringing a legal action
against Sam and the company.
D. ISSUES
 The primary issue of this case is to determine the way to hold Sam, Nasir’s boss,
liable for racially discriminating Nasir on the grounds of religion, race and skin
colour.
 Sam is to be held liable for bullying Nasir when he reported against his manipulation
of the project account.
 In addition, it needs to be determined as to how the company should be held liable for
not redressing Nasir’s complaint against Sam.
E. RELEVANT LAW
Racial discrimination refers to the discrimination that a person inflicts upon another,
based on race, religion, skin colour, ethnicity, descent, place of birth, et cetera; specifically
insulting a person based on one’s racial orientation. This is a common scenario in Australia,
where Aboriginals are made to face racial discrimination on a regular basis, either at the
workplace or at any public place. In Australia, it is illegal and unlawful to discriminate a
person based on his age, race, disability, gender identity, religion, sexual orientation,
employment or on any other grounds that might hurt the person morally and socially. For this
purpose, the Racial Discrimination Act 1975 protects the citizens of Australia from being
racially discriminated, at a public place, at their workplace or at any situation1. The Racial
Discrimination Act 1975 (Cth) is a landmark legislation in Australia in relation to
safeguarding the Australians from race related issues. It is in relation to the Unites Nation’s
1 Racial Discrimination Act 1975 (Cth), s 18C.

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approach of the International Convention on the Elimination of All Forms of Racial
Discrimination, to which Australia is a ratifying member2.
Racial discrimination can be direct or indirect. The Anti-Discrimination Act 1977 of
New South Wales lays down the essentials that constitute racial discrimination which states
that it is unlawful to treat a person less favourably in comparison to another on the similar
circumstance and situation or to make a person do something or to comply to something
which is not applicable for others in the same situation3. However, it must be established that
such a demand must have been unreasonable in order to bring an action against a case of
racial discrimination. The Racial Discrimination Act 1975 (Cth) provides for the provision
that speaks against racial discrimination based on race, colour, nationality and ethnicity under
section 18C4. Section 18C states that it is unlawful for a person to do anything that is likely to
offend, humiliate, insult or intimidate a person, and that too on the basis of race, colour,
nationality, and ethnicity or on the basis of some other way related to the race of such person.
In this regard, a person facing any form of racial discrimination has the right to file a
complaint before the Australian Human Rights Commission under section 46P of the
Australian Human Rights Commission Act 1986, even if such racial discrimination is not of
criminal nature5.
In the case of Eatock v Bolt, the federal court held that the article published by the
journalist Andrew Bolt in The Herald Sun had violative of section 18C of the Racial
Discrimination Act 1975 (Cth) for it had negated white skinned Aboriginals as ‘lesser’
Aboriginals compared to the commonly found black skinned Aboriginals6. Here, it was seen
that the journalist had mocked the white skinned Aboriginals by writing that ‘it’s so hip to be
2 "Australia’S Anti-Discrimination Law | Attorney-General's Department", Ag.Gov.Au (Webpage, 2019)
<https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Australias-Anti-Discrimination-Law.aspx>.
3 Anti-Discrimination Act 1977, s 7
4 Racial Discrimination Act 1975, s 18C
5 Australian Human Rights Commission Act 1986, s 46P
6 Eatock v Bolt [2011] FCA 1103

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black’ and ‘White is the new Black’ in his articles. It was challenged by the petitioner that
the articles of the journalist conveyed offensive messages about white skinned Aboriginal
people stating that they were not genuinely Aboriginals as compared to the black skinned
Aboriginals and that the fair skinned Aboriginals are reaping the benefits of the genuine
Aboriginals, pretending to be one of them7.
The case of Laalaa v Director General, Department of Education and Training
(EOD) specifically dealt with direct and indirect racial discrimination where the demarcation
was reasonably set by the Administrative Decisions Tribunal8. It was challenged by the
petitioner that the Department (defendant) had both directly and indirectly discriminated
against him on the basis of race. However, a thorough enquiry was carried by the Tribunal
which found out that the defendant had valid grounds to ask to have asked the petitioner to
undergo the required assessment and that was not violative of the Anti-Discrimination Act
1977(NSW).
A Maori man working for a Queensland tourism company filed a legal suit against his
employer accusing him for racial discrimination. McDuff Tupetagi filed a racial
discrimination complaint with the Queensland Industrial Relations Commission stating the
fact that he has been bullied by his fellow colleagues by name calling like ‘where is the black
fella’, ‘blackie’ along with frequent ‘black jokes’9. Mr Tupetagi mentioned that he was
discriminated on the grounds of his skin colour by his employer as well when he had asked
for a shade sail which was refused by saying that he was black. On the most recent occasion,
he was given a sunscreen canister by one of his colleagues, which had ‘Black Guy Repellent’
written on it. On being questioned by the commission, Mr Tupetagi’s employer argued that it
7 "Andrew Bolt Loses Racial Vilification Case", Theaustralian.Com.Au (Webpage, 2019)
<https://www.theaustralian.com.au/business/media/andrew-bolt-x-racial-vilification-court-case/news-story/
3c920f44a5d5e4bf26fd3119588c3fb2>.
8 Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56
9 "'Black Guy Repellent': Man Seeks Damages From Company Over Alleged Racial Discrimination", ABC News
(Webpage, 2019) <https://www.abc.net.au/news/2018-08-13/black-guy-repellent-sunscreen-racial-
discrimination-case/10113450>.

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was a friendly banter between old friends at work and that it was nothing to do with racial
discrimination. However, the Industrial Advocate Miles Heffernan counter-argued that such
an action by Mr Tupetagi’s colleagues was not a sign of friendship and such racially
discriminating jokes are an act of cruelty. Further inquiries were made by the employer on
this matter and it was found that the behaviour of the other employees were ‘abhorrent and
totally unacceptable’, as held by Barry Downs, the general manager of the tourism
company10.
F. ADVICE
Following the references of the above-mentioned case studies, it could be held that
Nasir’s case could be fairly portrayed before the court citing the examples of the relevant
case studies. In Eatock v Bolt, it was seen that the journalist had mocked the white skinned
Aboriginals and the court rightfully held the journalist liable for he had negated white
skinned Aboriginals as ‘lesser’ Aboriginals compared to the commonly found black skinned
Aboriginals. While, in Laalaa v Director General, Department of Education and Training
(EOD), the aggrieved party had pointed out both direct and indirect discrimination which was
confirmed by the Tribunal against the department of Education and Training. Lastly, the
recent case of McDuff Tupetagi in Queensland gives hope to Nasir’s case for bringing an
action of racial discrimination against his boss Sam. In both of these cases, the facts are quite
similar and therefore it would be easier for the counsel to prove his point with ease and
conviction.
In this case, it is advised that Nasir, our client must provide with all the necessary
details and evidence of him being racially discriminated by his boss, Sam. It is extremely
important to establish before the court that Nasir was discriminated by Sam on the grounds of
race, religion and skin colour and there were no judicious reasons for him to do so
10 Ibid.

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professionally or personally. The criteria laid down under Section 18C of the Racial
Discrimination Act 1975 (Cth) must be satisfied in order to bring an action against Sam.
Also, Nasir needs to provide with sufficient proof as to the company being indifferent
towards him pertaining to his complaint against Sam. Phrases like ‘black skinned
abomination’ and ‘a Muslim Terrorist’ is enough to prove that Sam did verbally
discriminated Nasir in the grounds of race, skin colour and religion which is completely
violative of Section 18C of the Racial Discrimination Act 1975 (Cth). In this regard, Nasir
shall have the right to bring action before the Australian Human Rights Commission for
seeking a redressal against Sam. However, Sam may defend himself by stating that all of
such gestures were out of professional hazards and that he did not mean to discriminate Nasir
racially, yet the Racial Discrimination Act 1975 (Cth) clears the doubt that any comment or
gesture that hurts, annoys or humiliate a person on the grounds of race, religion, skin colour,
ethnicity, nationality or descent would be held liable for racial discrimination, at any situation
be it a public place or at workplace.

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BIBLIOGRAPHY
Legislation
Racial Discrimination Act 1975 (Cth)
Anti-Discrimination Act 1977 (NSW)
Australian Human Rights Commission Act 1986
Cases
Eatock v Bolt [2011] FCA 1103
Laalaa v Director General, Department of Education and Training (EOD) [2009]
NSWADTAP 56
Official Websites
"Australia’S Anti-Discrimination Law | Attorney-General's Department", Ag.Gov.Au
(Webpage, 2019)
<https://www.ag.gov.au/RightsAndProtections/HumanRights/Pages/Australias-Anti-
Discrimination-Law.aspx>
Newspaper Articles
"Andrew Bolt Loses Racial Vilification Case", Theaustralian.Com.Au (Webpage, 2019)
https://www.theaustralian.com.au/business/media/andrew-bolt-x-racial-vilification-court-
case/news-story/3c920f44a5d5e4bf26fd3119588c3fb2
"'Black Guy Repellent': Man Seeks Damages From Company Over Alleged Racial
Discrimination", ABC News (Webpage, 2019)
<https://www.abc.net.au/news/2018-08-13/black-guy-repellent-sunscreen-racial-
discrimination-case/10113450>