When Losing a Case Means Winning a Cause: Reflections on Justice and Indigenous Rights

As we recently celebrated NAIDOC Week—a time to honour the history, culture, and achievements of Aboriginal and Torres Strait Islander peoples—it’s important to reflect on the long journey toward justice and equality in Australia. One story from former High Court Justice The Hon Michael Kirby’s early legal career reminds us how standing up for what is right can spark change, even when the courtroom outcome seems like a loss.

The 1965 Walgett Cinema Case: A Snapshot of Discrimination

In 1965, a young Aboriginal university student named Owen Westcott challenged a deeply discriminatory policy in a small town cinema in Walgett, New South Wales. Aboriginal patrons were only allowed to sit downstairs on vinyl seats with linoleum floors, while the upstairs grand circle with carpet and velvet seats was off-limits.

Owen bought tickets for himself and fellow Aboriginal students and demanded entry to the upstairs area. When the cinema manager refused and police were called, Owen was arrested and charged with trespass.

“You know the rules,” the manager said, pointing to the Aboriginals. “You can go downstairs, you're welcome downstairs, but you can't go upstairs.” Owen replied, “But I've got tickets.”

Legal Advocacy and the Fight for Justice

The Hon Michael Kirby, then a young solicitor, took on Owen’s case with a team of barristers, including Gordon Samuels QC and Malcolm Hardwick, who agreed to work pro bono. Despite strong legal arguments based on precedent, the court found Owen guilty, though no penalty was imposed.

Kirby later reflected on the case:

“That case brought it home to me that, despite the high aspirations we have of our legal system, the law in Australia was sometimes quite discriminatory. It was discriminatory against women, people of colour, and Aboriginal Australians. I knew discrimination extended also to me, as a gay man, at a time when the law criminalised gay activity. But it also taught me how important it was for lawyers to stand up for the right cases. Sometimes, even losing the case can have consequences that are beneficial for the state of the law.”

The Impact Beyond the Courtroom

Though Owen lost the case, the fight was not in vain. Two weeks after the court decision, the cinema manager announced an end to the discriminatory seating policy, allowing Aboriginal patrons to sit anywhere in the cinema.

Years later, the magistrate who presided over the case wrote to Kirby, expressing admiration for the legal team’s defence and regret that he could not uphold their arguments at the time.

This story is a powerful reminder that legal battles can be about more than just winning in court—they can raise awareness, challenge injustice, and inspire social change.

Continuing the Journey: Indigenous Rights Today

As we honour NAIDOC Week, we celebrate the courage of people like Owen Westcott who stood against systemic racism and exclusion. While Australia has made significant progress since 1965, Indigenous communities still face challenges including health disparities, land rights struggles, and ongoing discrimination.

The Hon Michael Kirby’s story reminds us that standing up for justice, even when the odds seem against us, can win the cause and inspire future generations to continue the journey toward equality.

Owen lost his case, but he won his cause.

Read the original story by The Hon Michael Kirby on the Law Society of NSW website.

Editor's Note: Recent correspondence clarifies that Owen Westcott was not Aboriginal, but a university student whose father was a judge. Owen dedicated much of his life to social services, particularly supporting people affected by the early HIV crisis. He was remembered as kind and handsome, passing away about ten years ago. This context enriches our understanding of the case and its impact.

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