By Dr Nicky Jones, University of Southern Queensland

Editor’s note

When Australian soccer star Sam Kerr called a London police officer ‘f***ing stupid and white’ in January 2023, her words led to an international legal debate about racial language. The February 2025 verdict finding her not guilty of racially aggravated harassment raises key questions: When does mentioning someone’s race constitute racial hatred? Does calling someone ‘white’ carry the same weight as other racial terms?

In a previous post, Associate Professor Andrew Hemming examined the implications of Sam Kerr’s acquittal on free speech legislation in Australia. In this post, Dr Nicky Jones examines the Kerr case through the lens of Australian law. Her examination reveals how courts interpret racial language when directed at historically dominant versus marginalised groups.

Introduction: Racially-charged insults

On 11 February 2025, global media reported the outcome of a five-day trial in the Kingston Crown Court in London. The court had to decide whether Australian soccer player Sam Kerr had made comments that racially harassed a Metropolitan Police officer on 30 January 2023.

Kerr made these comments at the police station when she grew impatient with the police officer who appeared to doubt her version of events. She thereupon called him ‘f***ing stupid and white’. The officer showed no concern about these insults in his first statement shortly after the incident.

However, 11 months later, the officer provided a second statement. This came after the Crown Prosecution Service (‘CPS’) had declined to charge Kerr. In this later statement, he said that Kerr’s comments made him feel ‘shocked, upset and humiliated’.

One year after the incident, the CPS charged Kerr with a racially aggravated offence of intentional harassment under s 4A(1) of the UK’s Public Order Act 1986 and s 31(1)(b) of the Crime and Disorder Act 1998.

Under these sections, a person is guilty of an offence if the person intends to cause another person harassment, alarm or distress by using threatening, abusive or insulting words or behaviour, or disorderly behaviour, that causes the other person harassment, alarm or distress. It is a further offence if the public order offence is racially aggravated.

Australian anti-discrimination provisions use similar language to prohibit offensive behaviour based on racial hatred. Section 18C(1) of the Racial Discrimination Act 1975 (Cth) prohibits an act that was done in public because of another person’s race or colour or national or ethnic origin if the act was reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate the other person. Similar State and Territory laws prohibit racial vilification, and Queensland and some other States impose civil and criminal sanctions on racial vilification.

This post focuses on the racial aspect of Kerr’s comments. It explains how Australian laws would treat similar racial insults. The post will not describe the events that led to Kerr’s trial or the trial itself as these have been well-documented elsewhere. The post draws its information from news reports and video footage filmed by police body cameras that recorded Kerr’s interactions with the police.

These events raise challenging questions about racial insults, hatred and vilification and to whom and how these wrongs apply for the purposes of pursuing legal protections.

Calling a person ‘white’

Is it racially insulting to call someone ‘white’? In important legal respects, calling someone ‘white’ is not a racial insult in an Australian or UK context.

Australian anti-discrimination law requires courts to consider ‘all the circumstances’ of an act or insult. This includes context and (in this case) the historical and cultural situation of white people and whiteness in society.

Legal tests for racial insults

Section 18C(1) of the Racial Discrimination Act 1975 (Cth) sets out two important elements:

1. The impact of an offensive act, assessed objectively; and
2. Causation or the reasons behind the offensive act.

Courts assess impact from the perspective of a hypothetical ordinary, reasonable member of the racial group targeted by the act. Would an ordinary, reasonable member of that racial group have been offended, insulted, humiliated or intimidated by the act?

The words ‘offend, insult, humiliate or intimidate’ carry their ordinary meaning. In Creek v Cairns Post Pty Ltd, Justice Kiefel noted that these are ‘profound and serious effects, not to be likened to mere slights.'[1] Justice French also considered these terms in Bropho v Human Rights and Equal Opportunity Commission,[2] as did Justice Bromberg in Eatock v Bolt.[3]

Establishing that the act produced one of these responses from an ordinary, reasonable member of the targeted racial group is sufficient. When determining impact, the context (‘all the circumstances’) in which the act took place is significant.[4]

Case spotlight: McLeod v Power

The facts in McLeod v Power closely resemble the Kerr incident.[5] This case involved a verbal altercation between an Aboriginal woman and a white correctional officer. The woman swore repeatedly at the officer, calling him names such as a ‘white piece of ****’.

Federal Magistrate Brown noted that in the Australian context, calling someone ‘white’ is not of itself a term of abuse. Undoubtedly the woman swore at the officer because she wished to cause offence and to protest at what she saw as the arbitrary and unreasonable nature of his decision to refuse her entry to the prison so that she could visit her partner.

However, in the context of the matter, a reasonable correctional services officer with a pale skin would not have been offended, humiliated or intimidated by the addition of the words ‘white’ or ‘whites’ to the respondent’s verbal abuse. The words were not of themselves offensive words or terms of racial vilification. White people are the dominant people historically and culturally in Australia. They are not in any sense an oppressed group whose political and civil rights are under threat.

… in the Australian context, calling someone ‘white’ is not of itself a term of abuse… white people are the dominant people historically and culturally in Australia and are not in any sense an oppressed group whose political and civil rights are under threat.

Brown FM dismissed the officer’s complaint. Although a reasonable prison officer might find the words offensive generally, they would not have been offended by the racial implication specifically. It did not constitute racial hatred or vilification.[6]

Conclusions

Kerr clearly intended to insult the London police officer when she called him ‘stupid and white’. She admitted this under cross-examination.

News reports repeated the police constable’s second statement that the words made him feel ‘upset’, ‘belittled’ and ‘shocked’. He said ‘they went too far and I took great offence to them’. Even Judge Peter Lodder KC noted after the trial that ‘[Kerr’s] own behaviour contributed significantly to the bringing of this allegation.’

Nevertheless, the UK jury quickly found Kerr not guilty of racially aggravated harassment.

Australian courts would likely reach the same conclusion under racial hatred provisions. Adapting Brown FM’s detailed reasoning in McLeod v Power, Kerr used insulting comments ‘to express her frustration at what she perceived as being a power imbalance between herself and [the officer]’ in a ‘stark and confrontational manner’.[7]

The words offended, but they did not exemplify the racial hatred that the Racial Discrimination Act aims to prohibit. As Brown FM stated:[8]

it is drawing a long bow to use the Racial Discrimination Act in this way and was certainly not the primary purpose of the legislature in enacting legislation of this kind.

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References

[1] (2001) 112 FCR 352, [16].

[2] (2004) 135 FCR 105, [67]–[69].

[3] (2011) 197 FCR 261, 323–5.

[4] See Drummond J’s comments on this point in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, [15], [18]–[31]. See also Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, [12]-[16].

[5] (2003) 173 FLR 31.

[6] Ibid [59]-[60], [69].

[7] Ibid [62].

[8] Ibid.

Image attribution: Spotlight icons created by mavadee – Flaticon

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About the author

This post is the first in a series of academic posts examining Queensland’s Liberal National Party’s ‘adult crime, adult time’ policy. The posts are designed to ignite thoughtful discussion and debate. Associate Professor Andrew Hemming begins the conversation with a provocative analysis, with Mrs Kirstie Smith set to offer her response in the following post.

By Associate Professor Andrew Hemming, University of Southern Queensland

Introduction: A Policy That Doesn’t Go Far Enough

David Crisafulli’s announcement of the Queensland Liberal National Party’s ‘adult crime, adult time’ policy to combat youth crime has one major limitation: it does not go far enough. The stumbling block is the misleadingly entitled Youth Justice Act 1992 (Qld) which is essentially a ‘get out of jail free card’ to Queensland’s youth. The legislation is based on the outdated neuroscience that juvenile offenders should face lesser sentences than adults because they are liable to make irrational decisions on account of peer pressure and emotional immaturity causing them to engage in high-risk behaviour.

Outdated Neuroscience: A Flawed Foundation for Youth Sentencing

The most recent neuroscience (2022) emanating from the United States is focused on the teenage brain. The old assumption that adolescents were risk machines lacking the decision-making powers of a fully developed prefrontal cortex is being challenged:

There is growing recognition that what was previously seen as immaturity is actually a cognitive, behavioral, and neurological flexibility that allows teens to explore and adapt to their shifting inner and outer worlds.

Zara Abrams, ‘What neuroscience tells us about the teenage brain’ (2022) 53(5) American Psychological Association 66.

This means that neuroscientists are now not viewing the developing brain as broken, immature or contributing to problematic behaviour, but rather as ‘malleable, flexible and promoting many positive aspects of development in adolescence’ (ibid, Abrams).

The Inadequacies of the Youth Justice Act: Protecting Offenders, Not Victims

The inadequacies of the Youth Justice Act are fundamental, commencing with the definition of a child as a person under 18 years of age. As a society, we are prepared to allow a young person to be in unsupervised control of a motor vehicle, a potentially lethal weapon, at 17 years of age, but are content to leave the age of adult criminal responsibility at 18 years of age. Why?

Perversely, under the Youth Justice Act young offenders cannot be identified, yet many seek celebrity status by boasting and posting videos on social media about their successes in stealing cars, destroying other people’s property and the like. Why should the identity of such blatant amoral publicity seekers be protected?

Case Studies: The Price of Leniency

David Crisafulli declared that the soft policing of teenagers and a dearth of serious consequences after committing serious crimes had created ‘a generation of untouchables’. Crisafulli is correct in his assertion. For example, under s 183(1) of the Youth Justice Act the default position is that ‘a conviction is not to be recorded against a child who is found guilty of an offence’. Under limited circumstances, a conviction may be recorded at the discretion of the court.

Similarly, under s 155 of the Youth Justice Act, mandatory sentence provisions in any other Queensland legislation are inapplicable and the court must disregard them. If an adult is found guilty of murder, under s 305 of the Criminal Code 1899 (Qld), the mandatory sentence is imprisonment for life with a non-parole period of 20 years. However, if a 17-year-old is convicted of murder, s 155 of the Youth Justice Act requires the court to disregard s 305 of the Criminal Code 1899 (Qld). In its place, s 176(3)(a) of the Youth Justice Act sets out the default position for a life offence of a period of imprisonment of not more than 10 years. Only if the court considers the offence ‘to be a particularly heinous offence having regard to all the circumstances’ may the court sentence a ‘child’ murderer to more than 10 years imprisonment. The teenager aged 17 years and 8 months when he murdered Emma Lovell was found by the court to have committed a particularly heinous offence and was given a head sentence of 14 years imprisonment but is only required to serve 70 per cent of that in custody and will be released in 2032.

A further high-profile example of the leniency of the court when sentencing two juvenile offenders under the Youth Justice Act can be seen in the violent knife attack on former rugby union great Toutai Kefu and his family in their Brisbane home in 2021. Before breaking into the Kefu home, one of the boys remarked: ‘If someone wakes up, just stab them’. Despite the judge finding the stabbing attack was particularly heinous, the two offenders were sentenced in June by Justice Peter Davis to seven and eight years respectively, but due to ‘special circumstances’ are only required to serve 50% of their sentences. To boot neither had a conviction recorded. Unsurprisingly, the Queensland Attorney-General Yvette D’Ath has lodged an appeal over the sentences on the ground they are manifestly inadequate, especially given the finding the offences were particularly heinous and in light of the maximum possible life penalty.

Critics of the ‘Adult Crime, Adult Time’ Policy: Missing the Mark?

After Crisafulli announced his ‘adult crime, adult time’ policy, the media gave prominence to the predictable chorus of disapproval from the usual sources. Queensland Council for Civil Liberties vice president Terry O’Gorman attacked the policy because the necessary supporting policy work had not been completed:

Law and Order slogans are one thing. Doing the hard work to fix Queensland’s juvenile justice system is quite another.

In the same vein, Queensland Law Society president Rebecca Fogerty said the policy would do little to address the systemic issues at the root of youth crime offending:

Calling for longer sentences in a struggling detention system will not fix the problem of youth crime. It will need to more overcrowding, more violence, more lockdowns, less education and less rehabilitation. This will compound the issues we know give rise to serious repeat offending.

Of course, in the eyes of such critics the blame is never to be attached to the individual violent youths involved in these serious offences, but on their disadvantaged backgrounds and their experience of domestic violence. Therefore, the proposed solution is always allegedly to be found in vast public expenditure on social housing, better schools, more welfare support systems and a myriad of programs all to be paid for by the long-suffering taxpayer.

It is unrealistic and disingenuous to pretend such massive public expenditure will ever eventuate and the community has lost patience with the endless revolving door policy of serial youth offenders. As the then Queensland Attorney-General, Shannon Fentiman observed in 2021:

We know that 46 per cent of youth crime is committed by a small group of recidivist offenders.

Ironically, existing Queensland government policies, such as school exclusions, are contributing to the problem. There is a documented progression whereby short informal exclusions develop into longer, formal suspensions because exclusionary school discipline does not address the wider factors underlying the anti-social behaviour of children and can reinforce such behaviour (Inquiry into Suspension, Exclusion and Expulsion Processes in South Australian Government Schools, Final Report, The Centre for Inclusive Education, 26 October 2020). Exclusionary school discipline contributes to the ‘school-to-prison pipeline’.

Conclusion: Repealing the Youth Justice Act—A Necessary Step

Any proper risk analysis points to one sensible conclusion: the need to take such violent offenders out of circulation in the community for which they clearly have no respect. The alleged outcomes outlined by Fogerty will not eventuate if suitable additional youth detention centres are built, which does represent expenditure the community will support. Belatedly, the Queensland government has recognised this reality by finally committing to build two new youth detention centres in Woodford and Cairns, while also constructing the Wacol Youth Remand Centre which is scheduled to open at the end of 2024.

In sum, the Youth Justice Act 1992 (Qld) needs to be repealed and more appropriate legislation introduced. Youth justice does not equal victim justice under the current Youth Justice Act.

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