Controversial remarks by the head of the Bermuda Industrial Union, Derrick Burgess, against the Auditor General, Larry Dennis, do not fall under the Human Rights Act, according to the Human Rights Commission (HRC).

But the human rights watchdog has warned the public that making racial slurs, labelling or implying that someone is a racist could invite legal action.

Mr. Burgess levelled a broadside against the Auditor General shortly after the release last year of Mr. Dennis' report on the Berkeley Senior Secondary School project. In heated remarks to the press, Mr. Burgess inferred that Mr. Dennis was a racist for singling out the Berkeley project for scrutiny.

Mr. Burgess, president of the BIU, which has business links with the project, publicly suggested that Mr. Dennis "shares the all too common belief that people of African descent are illiterate and chained in darkness…"

And he accused Mr. Dennis of conducting investigating the project more thoroughly than he normally would because of their union's involvement and because it involved a black construction company.

Mr. Dennis later complained to the Human Rights Commission, saying that he had been called a racist.

"At the human core of the matter is that public deliberation has once again highlighted the race-related tensions that permeate social, economic, political and historical fabric of Bermuda," says the HRC statement.

"Mr. Dennis brought his concerns to the Commission indicating that as the target of the allegations, he has suffered both personally and professionally. The allegation is a "hot potato" in that from a cursory point of view, it looks like it has the ingredients of a human rights violation: there is public debate on racism, discrimination, and character and there is a subtext of historical, political and racial divides. However, this type of issue is not specifically addressed in the human rights legislation."

Provisions of the Human Rights Act, which forbid discrimination by race and racial incitement, provided the "strongest possibilities" for initiating a complaint.

"The BIU would be alleging that the Auditor General's offices are discriminating against them by more thoroughly investigating capital projects in which they are involved, than others. Of course, in this circumstance, the premise would be that the Auditor General is doing so because the project involves a black construction company."

The BIU, which did not complain to the HRC, would not have had a case under the Act because it did not fall under any of the specific areas defined by the Act.

"Examples of 'areas' are the disposal of premises, provision of goods, facilities and services and employment. Racial discrimination must occur in one of the areas delineated by the Act. For example, if you are a black woman denied an employment opportunity allegedly because of your race, you may have recourse under the Act," according to the statement.

"The Dennis/Burgess exchange, while race and work-related, did not occur in the workplace. By the same token, the Act's section on harassment in the workplace by way of race, colour, ethnic or national origins does not apply."

And Mr. Dennis could not rely on the prohibition of racial incitement because the incitement has to be directed at a "section of the public" and a single person is not a section of the public.

"Although we do not come to it, satisfying the aspect of "intent" would also be a challenge. Saving a thorough investigation, the Commission would be loathe to comment on the specific intent of the BIU's commentary of Mr. Dennis."

The statement, which was issued for public education purposes, goes on to say that while the allegations toward Mr. Dennis are "unpleasant" it could not comment on whether they are defamatory of libellous.

"Be that as it may, the Human Rights Commission wishes to convey the following message and caution. It is inappropriate, unacceptable and possibly unlawful to make racial slurs. Furthermore, it is also risky to publicly label or imply that someone is a racist. To do so may result in legal proceedings in the Courts having jurisdiction where one might have to prove that the allegation is, in fact, true."

Asked for comment, Mr. Dennis sent a written statement which said that he did not bring the complaint to seek retribution or an apology from Mr. Burgess but to get public recognition from the HRC that his comments were "inappropriate and unacceptable".

He said he was pleased with the result if Bermudians understand from the HRC statement that "that Mr. Burgess' comments were racial slurs and therefore inappropriate."

If the Commission "does not provide the platform where racists insults can be addressed in an environment where understanding and reconciliation is the focus, they will be addressed in an environment where retribution and punishment is the focus," the statement continued.

"I have passed on my feeling to the Commission that if it was frustrated in trying to fit my complaint to its legislation, it was my sincere hope that it would retrieve something from this exercise and at some point in the future recommend amendments to its legislation so that it could become the body that Bermudians assume it is."