HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
RACIAL DISCRIMINATION ACT 1975 (CTH)
HOBART HEBREW CONGREGATION and JEREMY JONES (in his capacity as Executive Vice-President of the Executive Council of Australian Jewry)
REASONS FOR DECISION OF
MR ANTHONY CAVANOUGH QC
Hearing: Launceston, Tasmania
Date of hearing: 16 November 1998
Date of receipt of
written submissions: Complainants: 28 January 1999
Respondent: 12 April 1999
Date of decision: 21 September 2000
Appearances: Complainants: Mr Stephen Rothman SC instructed by Geoffrey Edwards & Co, Solicitors
Respondent: In person
1.1 The complaint
This inquiry arises out of a complaint to the Race Discrimination Commissioner lodged by Mr Jeremy Jones on behalf of the Executive Council of Australian Jewry with the Human Rights and Equal Opportunity Commission ("the Commission") on 7 August 1996 under the Racial Discrimination Act 1975 (Cth) ("the RDA"). In the complaint, Mr Jones alleged that the respondent, Mrs Olga Scully, had distributed material in letterboxes in Launceston, Tasmania, that contained offensive material based on racial hatred, in particular anti-Semitic literature, and had sold or offered to sell such material at a public market in Hart Street, Launceston. Attached to the complaint were examples of this material which included references to Jews as "leeches" who were involved in "destroying white society" and using "predatory tactics", together with an article in the "Launceston Daily Examiner" of 22 May 1996 entitled "Woman admits sending hate mail" in which Mrs Scully is identified as having placed anti-Semitic material in mailboxes. The complaint alleged that the material had caused a great deal of distress to Jewish and other recipients and that, on her own admission, Mrs Scully was involved in a campaign of disseminating anti–Jewish propaganda. It was put that the "campaign" constituted a public act and was in breach of s.18C of the RDA.
In a written response submitted on her behalf by a solicitor, Mrs Scully admitted placing much of the material in the letter boxes but claimed that the material, in most part, was not reasonably likely to offend and thus did not fall within s.18C. She further claimed that even if the material were offensive, the exemption under s.18D would apply because she had a relevant genuine belief.
The Race Discrimination Commissioner decided that the nature of the complaint was such that it should be referred to the Commission for inquiry under s.24E of the RDA.
The matter was referred accordingly by the Race Discrimination Commissioner to the Commission on 23 March 1997. A report, including annexures of 52 pages, accompanied the referral.
1.2 The Initial Inquiry
The matter first came before Inquiry Commissioner the Hon Robert Nettlefold for inquiry. Commissioner Nettlefold determined that the complainant, named as the Executive Council of Australian Jewry ("the Council"), did not have standing to bring the complaint under s.22(1) of the RDA. On 21 October 1997 he dismissed the complaint accordingly under s.25X of the RDA on the basis that it was misconceived.
Commissioner Nettlefold’s decision was challenged by the Council and Mr Jones in the Federal Court before Wilcox J. His Honour upheld the challenge. On 13 February 1998 his Honour ordered that the decision to dismiss the complaint be set aside and that the Commission hear and determine the complaint according to law: Executive Council of Australian Jewry and Jeremy Jones v Olga Scully (1998) 79 FCR 537. His Honour agreed with Commissioner Nettlefold that because the Council itself, being an unincorporated body, was not a "person" in the eye of the law, it was incapable of being a "person aggrieved" within the meaning of s.22(1) of the RDA and therefore was not a competent complainant (at 548C). However, this did not mean that the complaint was a nullity. It was necessary to go behind the name and consider whether the juristic persons who constituted the incorporated association were "persons aggrieved" by the allegedly unlawful act. If they were, the complaint was competent because in law, though not in name, it was made by them.
One of the members of the Council was the Hobart Hebrew Congregation, an incorporated body which represented the Jewish community throughout Tasmania, including in the Launceston District. Wilcox J said that if there was truth in the allegations made against Mrs Scully, her actions must have had a special impact on members of the Launceston Jewish community (at 548G). His Honour had earlier described the material as "stridently anti-Semitic" (at 539D). His Honour considered that there was no reason to doubt that the Hobart Hebrew Congregation was a "person aggrieved" by the alleged acts (at 549A). His Honour concluded :
"If the Hobart Hebrew Congregation could make a competent complaint under s.22(1)(a) of the Act in its own name, it seems to me the Council (through its members) also may do so. As the Hobart Hebrew Congregation is a constituent of the Council, the Council represents at the national level those members of the Launceston Jewish Community who were specially affected by Ms Scully’s actions. Of course, the Council is not itself a "person", it is an agglomeration of "persons", so any complaint is legally the complaint of its members. In their representative role, if not on an individual basis, those persons were "persons aggrieved" by the alleged unlawful acts. In my opinion, the case falls within par (b) of s.22(1) of the Act."
Wilcox J then turned to Mr Jones’ claim to standing. His Honour held that Mr Jones was a "person aggrieved" because he was the Executive Officer of the national Jewish organization, an organization that represented the interests of Jews throughout the country, including in the Launceston area. Hence the complaint was competently made by him under s.22(1)(a).
Pursuant to the orders of Wilcox J, the complaint was remitted to the Commission for hearing and determination. It was allocated to me as Inquiry Commissioner. It went through a number of interlocutory steps before it came on for hearing.
1.3 The Present Inquiry
1.3.1 Identification of the complainant(s)
One of the matters which arose during the interlocutory proceedings was the need to identify the complainants correctly. The complainants’ solicitors asserted that there were now five complainants, as follows:
"Mr Jeremy Jones, Executive Vice President of the [Council]
The Hobart Hebrew Congregation
Mr Tom Schlesinger, Tasmanian Vice President of the [Council]
Mr George Goldsteen of Launceston
Dr Felix Goldschmied of Launceston
All care of the [Council], 146 Darlinghurst Road, Darlinghurst, NSW, 2010"
It is clear from the judgment of Wilcox J that the Hobart Hebrew Congregation and Mr Jeremy Jones (in his capacity as Executive Vice President of the Council) are appropriately viewed as complainants. The other individuals named by the solicitors are members of the Jewish community living in Tasmania. Two live in Launceston itself. The other, Mr Schlesinger, is the Tasmanian Vice President of the Council. They may well be persons whose interests fall to be represented generally by the Hobart Hebrew Congregation. But I do not think that Wilcox J intended to convey that all or any such individuals should be regarded as existing complainants in this proceeding on that account.
The RDA does not expressly confer any power on the Commission to permit an amendment of a complaint, other than a representative complaint (see s.25N), or to add a complainant or a respondent as distinct from a third party (see s.25D). On the other hand, the Full Court of the Federal Court has held, obiter, in relation to a complaint under the Sex Discrimination Act 1984 (Cth) (the provisions of which are relevantly comparable), that the Commission has power to allow the amendment of complaints and to add and remove complainants upon application by a duly authorized person : Abbott Australasia Pty Ltd v HREOC (1999) 88 FCR 132 at 145.
No explicit application for leave to amend the complaint or to add the named individuals as complainants was made in the present case. Moreover, with respect, I have some doubt as to whether the Commission truly does have power to allow complaints to be amended or to add complainants in an RDA proceeding (other than a representative proceeding) after the complaint has been lodged, particularly after the matter has been referred to the Commission by the Race Discrimination Commissioner pursuant to s.24E of the RDA. To do so would seem to involve some tension with the provisions of Division 2 of Part III of the RDA, which confer discretionary powers on the Race Discrimination Commissioner, as distinct from the Commission, not to inquire into a complaint in certain circumstances and which specify particular avenues for the review of decisions made by the Race Discrimination Commissioner in the exercise of such powers.
In any event, in the present case the recognition or joinder of the three individuals as complainants would be of little or no moment because no additional or special relief is sought on their behalf. Even if I had power to add them as complainants and an application to do so were made, I would be inclined to refuse the application at this stage, as a matter of discretion. In all the circumstances, I have concluded that the complainants should be identified as the Hobart Hebrew Congregation and Mr Jeremy Jones (in his abovementioned capacity) only. These reasons and the accompanying determination have been headed accordingly.
1.3.2 Pre-hearing procedures
It is necessary that I outline some of the pre-hearing steps that took place in this matter.
Before the referral, Mrs Scully had been represented from time to time by E J Wall and Associates, Barristers and Solicitors, of Western Australia. Letters from that firm setting out Mrs Scully’s response to the complaint are included in the referral report. However, by the time the matter reached me, Mrs Scully was apparently no longer being legally represented.
The first directions hearing before me took place by telephone on 24 April 1998. I was satisfied that Mrs Scully had had due notice of it. However, she did not take part. Mr Rothman SC appeared for the complainants, as he has done throughout this matter. I appointed Ms Susan Roberts, a senior legal officer of the Commission, as counsel assisting the Commission pursuant to s.25K of the RDA. This meant that both parties were automatically entitled to be legally represented if they chose.
I directed that the complainants file and serve particulars and witness statements by 11 May 1998 and that the respondent do likewise by 1 June 1998. The hearing was fixed for 22-24 June 1998 in Launceston. Mrs Scully was notified in writing of the directions.
On or about 11 May 1998, after the complainants had provided their particulars and witness statements, Mrs Scully made contact with the Commission and commenced to participate in the proceedings. However, she did not file any material by 1 June 1998. She asked for more time. She also sought an adjournment of the hearing. At a telephone directions hearing on 9 June 1998 I granted these requests. The hearing was re-scheduled for 24-28 August 1998.
On or about 2 July 1998 Mrs Scully filed extensive documentation, including statements from five proposed witnesses as well as herself together with attachments. Much of it was, like the material initially complained of, "stridently anti-Semitic" (to use the phrase of Wilcox J). Mrs Scully made it clear that she wanted to demonstrate that the anti-Semitic statements contained in her leaflets and articles, or most of them, were true.
At the next telephone directions hearing on 22 July 1998, Mr Rothman foreshadowed evidentiary objections to much of Mrs Scully’s material. He said that his clients would be seeking advance rulings from me, prior to the hearing, that the material in question not be received in evidence. He said that, depending on my response, the complainants would have to consider putting on rebuttal evidence. It seemed to me that this matter could not be dealt with satisfactorily by telephone. It was subsequently decided by me that the hearing dates be vacated and that a portion of the allocated time be used for a preliminary hearing in person in Launceston.
Such a preliminary hearing did take place on 27 August 1998. Mr Rothman appeared for the complainants. Mrs Scully appeared for herself. In the course of extended discussions, principally with Mr Rothman, I indicated provisionally that I was not inclined to rule, at that stage, that any of Mrs Scully’s material should be rejected in advance as irrelevant (or otherwise).
Ultimately, Mr Rothman did not press the submission that Mrs Scully’s material should be rejected in advance. I gave the parties further time to file and serve further proposed evidentiary material as they may be advised. A further telephone directions hearing was fixed for 17 September 1998 and the final hearing was fixed for 16-20 November 1998. These dates were selected partly in order to accommodate Mrs Scully’s request for sufficient time to arrange for the attendance of her witnesses.
Additional directions for the filing and service of material were given at the telephone directions hearing on 17 September 1998. Both parties did thereafter file and serve further proposed evidentiary material. Such material was continuing to be received by the Commission from or on behalf of Mrs Scully as late as 11 November 1998.
1.3.3 The hearing
This matter duly came on for hearing on 16 November 1998. Mr Rothman announced his appearance for the complainants. Mrs Scully stated that she was appearing for herself and that she had with her an "assistant", a Dr Frederick Toben. (A witness statement of Dr Toben had previously been filed on behalf of Mrs Scully). Unfortunately, counsel assisting had become ill just prior to the hearing and could not attend.
After a short preliminary matter was dealt with, I called on Mr Rothman to open the complainants’ case. But Mrs Scully interrupted with an announcement that came as a surprise to me. The transcript records the following exchange:
"Mrs Scully: Before the case is opened, I’d like to announce that I had intended to bring five witnesses who have prepared a lot of facts and figures to support the accuracy of the historical leaflets that I distribute, but as I have not been given the assurance that truth is a defence in this case I have not brought my witnesses here to this Commission hearing. I claim that widespread ignorance of the truth can be very deeply offensive to Russian and German people because the blame for criminal acts falls on the innocent people instead of on the guilty. My main cause is to defend the Russian people from the accusation that communism was inflicted by them onto their country, and I defend the German people against allegations – lying, deceitful allegations – about gas chambers, gas ovens and extermination policies. I have not been given the assurance that truth is a defence in what I do. I claim I have an inalienable right to freedom of speech given to me by God Almighty. This inalienable right cannot be taken away from me. Our Lord Jesus Christ told us that we shall know the truth and the truth will set us free. Truth is a moral virtue, and if it is not taken into consideration at this hearing then I simply have to withdraw from the hearings because I consider them to be immorally based and perverse.
The Commissioner: Anything else?
Mrs Scully: Well, you see, if the truth is not defence, then the lies will continue to flourish.
The Commissioner: You don’t wish to participate in the hearing any further. Is that right?
Mrs Scully: Well, I have not been given the assurance that truth is a defence, so would you please excuse me because I will then withdraw from the hearing."
Mrs Scully then walked out of the hearing room. Dr Toben withdrew also. Neither returned during the remainder of the proceedings.
In due course Mr Rothman opened the complainants’ case and called the complainants’ evidence. He took me through the documents upon which the complainants relied. Some of them included handwritten annotations made by Mrs Scully. Mr Rothman called as witnesses Felix Goldschmied, Jeremy Sean Jones (the co-complainant), George Hans Goldsteen and Thomas Bernard Schlesinger. Each gave evidence on oath or affirmation. Each adopted as true and correct their respective witness statements which had earlier been filed. These became exhibits. Each witness gave short additional evidence in answer to questions from Mr Rothman and from me. Originals of the photocopied materials attached to the original complaint were tendered and received as exhibits. Some of the materials included coloured highlighting apparently done by Mrs Scully. I received also into evidence an article by Mr Jones entitled "Holocaust Denial, Clear and Present Vilification" and an article by one Mr Michael Shermer entitled "Proving the Holocaust – The Refutation of Revisionism and the Restoration of History".
Mrs Scully having withdrawn, none of the witness statements or attachments previously filed by her became exhibits. In these circumstances, I discussed with Mr Rothman the possible significance of s.25W of the RDA, which provides:
"25W In determining whether an act is unlawful by reason of a provision of
Part II or Part IIA, the Commission is not required to have regard to any exception or exemption provided for in those Parts unless there is evidence before the Commission that the exception or exemption is or may be applicable in relation to that act".
At the conclusion of the evidence I granted leave to the complainants to make submissions in writing. Although Mrs Scully had withdrawn, and notwithstanding the provisions of s.25W, Mr Rothman was content that the complainants’ written submissions be served on Mrs Scully and that she should have time to respond to them in writing if so advised. A timetable for the filing and service of the submissions, any response and any reply to the response was set. The parties did not adhere strictly to the timetable set. The complainants’ submissions were received on 28 January 1999. Mrs Scully’s response, dated 31 March 1999, was received by the Commission on 12 April 1999. The complainants did not file any submissions in reply.
2. STATUTORY PROVISIONS
2.1 Part IIA of the RDA
Part IIA of the RDA commenced operation on 13 October 1995. It is headed "Prohibition of Offensive Behaviour Based on Racial Hatred". The presently relevant provisions are ss.18B, 18C and 18D, which are as follows:
(a) an act is done for 2 or more reasons; and
then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
18C(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
(2) For the purposes of subsection (1), an act is taken not to be done in private if it:
(a) causes words, sounds, images or writing to be communicated to the public; or
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(3) In this section:
"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.
18D Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
2.2 Part IIA of the RDA and the implied constitutional freedom of political communication
Part IIA of the RDA makes unlawful certain defined acts which will generally consist of speech, writing or other forms of communication. This immediately provokes reflection about the relationship between Part IIA and the implied constitutional freedom of political communication referred to in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and other recent cases.
It has been said with authority that a non-judicial tribunal (such as this Commission) would generally do well to assume or accept the constitutional validity of the legislation which it is administering or applying unless and until a court finds to the contrary: see Re Adams’ and the Tax Agents Board (1976) 12 ALR 239 (per Brennan J, sitting as President of the AAT) and cases there cited; compare Re Boulton; ex parte Construction, Forestry, Mining and Engineering Union (1998) 73 ALJR 129 at 132-133 per Kirby J. Further, there has been no explicit challenge to the validity of Part IIA in the present inquiry, nor have any notices of a constitutional question been given to the Attorneys-General pursuant to s.78B of the Judiciary Act 1903 (Cth) or otherwise. (Since the Commission is not a court, s.78B is not strictly applicable to proceedings before it).
On the other hand, Mrs Scully is no longer legally represented, and her written submissions include a reference in general terms to a case, R v Zundel (1993) 95 DLR (4th) 202, in which the Canadian Supreme Court declared invalid, as contrary to the Canadian Charter of Rights and Freedoms, a law under which Mr Zundel had been charged as a result of his publication of a pamphlet denying the fact of the Holocaust during World War II. In addition, I take into account that Part IIA of the RDA is fairly recent legislation and that there has not yet been any judicial consideration of its constitutional validity.
Even if it is not open to me to treat the provisions of Part IIA as invalid, a consideration of the principles relating to the implied freedom of political communication may properly be undertaken to inform my interpretation and application of those provisions, at least if their meaning or application be in any way unclear or difficult. I raised this matter with Mr Rothman at the hearing, but there is no reference to it in his written submissions. In all the circumstances, I propose to consider the relevant principles.
The test for determining whether a law infringes the constitutional implication is stated in Lange, supra, at 567-8 as follows:
"First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s.128 for submitting a proposed amendment of the Constitution to the informed decision of the people (hereafter collectively "the system of government prescribed by the Constitution"). If the first question is answered "yes" and the second is answered "no", the law is invalid."
See also Levy v Victoria (1997) 189 CLR 579 at 608-609 per Dawson J.
It is conceivable that the restrictions imposed by s.18C(1) of the RDA might in certain circumstances effectively burden freedom of communication about government and political matters. However, it seems to me that, bearing in mind the exceptions or exemptions available under s.18D, Part IIA as a whole is "reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of the system of government prescribed by the Constitution." The Senate Standing Committee which reported on the Racial Hatred Bill 1994 (Cth) considered that the exemptions were "necessary to support the constitutional validity of the Bill": see L McNamara and T Solomon, "The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?" (1996) 18 Adel LR 259 at 269. The "legitimate end" of the law is, or includes, the fulfillment of Australia’s international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination which is scheduled to the RDA, especially Article 4 thereof. In my view, this end is compatible with the maintenance of the system of government prescribed by the Constitution. A similar conclusion was arrived at by the Administrative Decisions Tribunal of New South Wales in relation to a constitutional attack on the racial vilification provisions of the Anti-Discrimination Act 1977 (NSW) in Kazak v John Fairfax Publications Limited (2000) NSW ADT 77, 22 June 2000, unreported. See also, by way of analogy, Brown v Members of the Classification Review Board of the Office of Film and Literature Classification (1998) 154 ALR 67.
R v Zundel, supra, is, of course, distinguishable. It was decided by reference to the Canadian Charter of Rights and Freedoms, which has no direct counterpart in Australia. Further, the Canadian law in question was very different from the provisions of Part IIA of the RDA. It prohibited, on pain of imprisonment, the wilful publication of a "statement, tale or news" that the publisher "knows to be false and that causes or is likely to cause injury or mischief to a public interest". The Court held that this provision infringed s.2(b) of the Charter, which provides:
"Everyone has the following fundamental freedoms:
The Court also held, by majority, that the law was not saved by s.1 of the Charter, which provides:
"The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
The majority held that the law did not amount to a reasonable limit under s.1 of the Charter because it was not shown to relate to an objective of pressing and substantial concern so as to warrant overriding a Charter guarantee. The test of an "objective of pressing and substantial concern" is quite different from, and stricter than, the Australian test, namely that the law in question be "reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government". Further, the conclusion of the majority in Zundel, that the law in question was too broad to be justified as a measure to promote social and racial harmony, was based in part on the existence of a separate prohibition on hate propaganda in the Canadian Criminal Code. Moreover, and rather unhelpfully for any argument that Part IIA of the RDA should be regarded as constitutionally objectionable, in 1990 that Canadian prohibition on hate propaganda had been upheld by the Canadian Supreme Court (by majority) as being consistent with the Charter of Rights and Freedoms: see R v Keegstra (1991) 61 CCC (3d)1, another case relating to anti-Semitic propaganda (see further below).
For these reasons, I will proceed on the basis that Part IIA of the RDA is valid. However, in approaching the construction and application of Part IIA I will bear in mind the existence of the constitutional freedom of political communication. I will also bear in mind that the value currently given by the common law to freedom of expression generally is high, and that this circumstance supports a conservative approach to the construction of statutes which would impair or abrogate it: see Brown supra, at 76-77 per French J. On the other hand, I think I must accept that Parliament has taken into account free speech values and balanced them against other values in formulating the provisions of Part IIA of the RDA and s.18D thereof in particular: compare Ballina Shire Council v Ringland (1994) 33 NSWLR 680 at 698, Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701 at 78,265-78,266; see also S Akmeemana and M Jones, "Fighting Racial Hatred", in Race Relations Commissioner (ed) The Racial Discrimination Act: A Review (AGPS, Canberra 1996) pp. 129-181, M Jones, "Free Speech Revisited: The Implications of Lange and Levy" (1998) Vol 4(1) AJHR, 188; and see generally the various articles on racial vilification collected at (1994) 1 AJHR at pp 141-369, esp K Mahoney, "Hate Vilification Legislation and Freedom of Expression: Where is the Balance?" (1994) 1 AJHR 353.
3.1 The Facts
There was little dispute between the parties as to what Mrs Scully has done by way of the distribution and sale of literature. Based on clear admissions contained in her then solicitors’ letter dated 4 March 1997 sent to the Race Discrimination Commissioner in response to the Commissioner’s letter dated 11 February 1997, I find that Mrs Scully placed or was responsible for placing copies of certain material which had been attached to the original complaint in letterboxes in the Launceston area after 13 October 1995, namely the material described as follows in the Commissioner’s letter:
"(a) "The Inadvertent Confession of a Jew"
(d) "The Jewish Khazar Kingdom"
(e) "Russian Jews Control Pornography"
(f) "The Most Debated Question of Our Time – Was There Really A Holocaust?".
(g) Untitled list of book synopses on which it is written "Books on Sale at Hart St Markets".
(h) Untitled excerpt which begins with the words "The arguments against classroom sex education can best be summarized under three heads ..."
(i) Untitled excerpt on which it is written "Our Christian – Israelite Laws"
(j) Untitled excerpt on which it is written in long hand
(i) "THE WHITE CHRISTIAN NATIONS ARE THE TRUE SEED OF ISRAEL. ‘THE SYNAGOGUE OF SATAN – WHO SAY THEY ARE JUDEAN – BUT ARE LYING FRAUDS’ ARE TRYING TO FORCE THE WHITE RATE TO MONGRELIZE. For good books come to the Hart St Market – Sundays 8.30 – 2 pm (SHOWGROUND)".
Based on admissions in Mrs Scully’s then solicitors’ letter of 4 March 1997, I further find that Mrs Scully wrote the long hand text referred to above as (j)(i) and that she distributed or sold the above-listed material, or some of it, at the Hart Street Market in Launceston. All of this material was included in the exhibits tendered by the complainants.
The complainants also claimed that Mrs Scully was responsible for the distribution and/or sale of certain other material attached to the complaint, namely a document (designated as (b) in the Commissioner’s letter) entitled "A Lesson in Culture" and another (designated (c)) entitled "MFP: What are Japan’s Motives?". However, by her solicitors’ letter, Mrs Scully denied knowledge of the first of these and claimed that she could not comment on the second because a copy of it had not been supplied to her. Although "A Lesson in Culture" contained some material similar to other material admittedly distributed by Mrs Scully, the complainants were unable to adduce any clear evidence that Mrs Scully was responsible for distributing it and I do not find that she was. The document entitled "MFP – What are Japan’s Motives?" contains handwritten annotations which appear to be in Mrs Scully’s handwriting and I find that she did distribute it. I note that Mrs Scully has underlined the names of three individuals mentioned in the article, including that of Mr David Rockefeller of Chase Manhattan Bank, and has written "3 Jews" in the margin next to their names. In a photograph of Mr Rockefeller, Mrs Scully has written "Jew" across his forehead. She has also underlined the word "bankers" in the caption beneath the photograph. Also annexed to the complaint was an excerpt from a document objecting to sex education in schools which Mrs Scully admitted distributing, but I see nothing in that document which might support the present complaint under Part IIA of the RDA.
Putting aside documents (b) and (h) but including document (c), I accept the submission of Mr Rothman that each of the relevant publications has a consistent and seemingly overriding theme; and that the theme relates to the actions of Jews as such and the characteristics of Jews as such.
Mr Rothman puts forward a list of the imputed attributes of Jews as conveyed by the publications. The list is as follows:
(a) that they are anti-democracy, anti-freedom, pro-tyranny;
(b) that the philosophy and teachings and practice of Jews is based upon a learning (the Talmud) which:
. ought to be stamped out;
. promotes sodomy and paedophilia;
. is worse than a satanic cult;
(c) that contemporary Jewry is due for a terrible judgement because of its racial origin and that the law commands all to own guns and to stamp out Judaism and, by implication, contemporary Jewry;
(d) that Jews, by their nature, are anti-decent living in the sense that they, by their nature, control pornography both in America and Russia;
(e) that Jews exhibit a moral attitude which is antithetical to Australian values (described as "anti-Christian");
(f) that the ethnic group who live as Jews have perpetuated and are perpetuating a myth for their own political purposes, being the Holocaust perpetrated by the leaders of the Nazi Party in Germany, which allegation by the respondent imputes to Jews that they are fraudulent, liars, immoral, deceitful and part of a giant conspiracy to defraud the world (or the remainder of it);
(g) that part of the conspiracy of world Jewry was the Bolshevik revolution in 1917 and that Jews perpetrated the purges in the Soviet Union thereafter;
(h) that Jews are seeking to control the world, or already have gained such control with the intention of destroying "White Christian civilization" and that Jews are "lying frauds ... trying to force the White race to mongrelize."
I accept that this is a fair characterization of the imputations in the relevant publications, and I accept that the publications have a consistent theme being the vilification of Jews as such.
It was not in dispute that Jews in Australia should be regarded as a group with common ethnic origins for the purposes of Part IIA of the RDA. As Mrs Scully’s former solicitors themselves noted (letter dated 4 March 1997, p 10), the Court of Appeal of New Zealand has held in King-Ansell v Police  2 NZLR 531 that Jews in New Zealand formed a group with common ethnic origins for the purposes of the Race Relations Act 1971 (NZ). The reasoning of Richardson J in that case was applied by the House of Lords in Mandla v Dowell-Lee  2 AC 548, a case under the Race Relations Act 1976 (UK) concerning the position of Sikhs in England. The NSW Equal Opportunity Tribunal followed the New Zealand and English decisions in Phillips v Aboriginal Legal Service (1993) EOC 92-502 and held that being "Jewish" amounted to being "of a certain race" for the purposes of the Anti-Discrimination Act 1977 (NSW). See further S Akmeemana and M Jones, "Fighting Racial Hatred", in Race Relations Commissioner (ed) The Racial Discrimination Act: A Review (AGPS, Canberra 1996) pp 173-174. Finally, the Explanatory Memorandum for the Racial Hatred Bill 1994 (Cth) expressly notes (at pp 2-3) that the term "ethnic origin" has been "broadly interpreted" in comparable jurisdictions (mentioning King-Ansell and Mandla in particular), and proceeds:
"It is intended that Australian courts would follow the prevailing definition of ‘ethnic origin’ as set out in King-Ansell ... This would provide the broadest basis of protection for peoples such as Sikhs, Jews and Muslims.
The term ‘race’ would include ideas of ethnicity so ensuring that many people, of, for example, Jewish origin would be covered."
Accordingly, I find that Jews in Australia form a group with a common ethnic origin for the purposes of Part IIA of the RDA.
In her written submissions in reply to those of Mr Rothman, Mrs Scully states "emphatically", in regard to the contents and claims of the leaflets, that she genuinely believes that the "claims of improper, evil behaviour, by certain Jews, are true". She says that she knows that there are (and have been) "many decent Jews" in the world and that her criticisms are not of them but of those "Talmudic/Zionist/Communist Jews responsible for the evil behaviour and the extremes of deceit (eg the "holocaust" myth) referred to in my leaflets". She says she makes a clear distinction between "Talmudic/Zionist/Communist Jews" and "good" Jews. I reject this argument. For the most part, at least, the leaflets make no such distinction. They attack Jews generally. In any event, the so-called distinction would hardly lessen the offensiveness, to Jews especially, of the imputations conveyed by the leaflets. The message remains that Jews, in particular, are people who by their very nature and culture are, or have been, drawn to or involved in the alleged evils of Communism, Zionism and Talmudism.
In the complaint, and in the evidence given by the complainants’ witnesses, it was asserted that the material distributed by Mrs Scully had caused a great deal of distress to Jewish and other recipients. There was no challenge to this assertion, nor any evidence to the contrary. I accept it.
It was further asserted that, on her own published admission (see the newspaper article attached to the complaint), Mrs Scully was involved in a "campaign" of disseminating anti-Jewish propaganda. Mr Jones deposed that as Executive Vice-President of the Council he receives on a regular basis telephone calls, letters and electronic communications from individuals complaining of anti-Jewish propaganda distributed in Tasmania by Mrs Scully. It was not disputed by Mrs Scully that she had regularly and frequently distributed material of the same general kind as the abovementioned relevant material in the period between the commencement of Part IIA of the RDA, 13 October 1995, and the date of lodgement of the complaint, 7 August 1996. Indeed she admits that she has continued to do so. In the circumstances I accept that her activities are properly described as a campaign of disseminating anti-Jewish propaganda.
3.2 Section 18C of the RDA
In my opinion, Mrs Scully’s acts fall within s.18C of the RDA.
Section 18C is set out above. It must be read together with s.18B, which provides that where an act is done for 2 or more reasons it is sufficient for the purposes of Part IIA that one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is a dominant reason or a substantial reason for doing the act). In the present case, the complainants rely upon the reason of "ethnic origin". I will return to this.
It is clear that Mrs Scully’s distribution of the material represents an act done "otherwise than in private" within the meaning of s.18C(1).
Under paragraph (a) of s.18C(1), it must be shown that the act is "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people". This sets up an objective test or standard, because of the words "reasonably likely": see Bryant v Queensland Newspapers Pty Ltd, HREOC, President Sir Ronald Wilson, 15 May 1997, unreported; Shron v Telstra Corporation Limited, HREOC, Commissioner Innes, 10 July 1998, unreported; and De La Mare v Special Broadcasting Service; HREOC, Commissioner McEvoy, 18 August 1998, unreported. Although the test is objective, it may be that the alleged vilifier must take the other person or group as he or she finds them: compare Jordan v Burgoyne  2 QB 744 at 748-9. However, given the inflammatory tone of the publications and the extreme nature of the imputations conveyed by the material in question in the present case, I do not find it necessary to decide to what extent allowance for unusual sensitivity may have to be made generally.
In my opinion, taking into account the abovementioned imputations against Jews which I have accepted are conveyed by the leaflets in question and the inflammatory tone of the leaflets, it is reasonably likely that Mrs Scully’s public campaign of distributing such leaflets, unsolicited, in letterboxes in the Launceston area and selling and offering them for sale at a public market in Launceston, would, in all the circumstances, offend, insult, humiliate and intimidate Jewish persons who received the material or who became aware of the campaign, especially those living in or near Launceston. The evidence of the complainants’ witnesses as to the actual effect on them of the campaign is consistent with and confirmatory of the proposition that the material was, objectively, "reasonably likely" to offend etc. I note that in their letter of 4 March 1997 (which Mrs Scully adopted in her final submissions) the respondent’s then solicitors admit that some, at least, of the publications would or may fall within s.18C of the RDA. In my opinion, paragraph (a) of s.18C(1) is satisfied.
In arriving at this conclusion, I do not overlook Mrs Scully’s claims that her campaign should be seen as an effort by her to defend the honour and reputation of the Russian and German people against alleged misinformation and alleged historical inaccuracy spread by others. However, some of the material in question does not even mention the Russian or German people, and even where it does, the content of the material and its inflammatory tone (of outright hostility towards and vilification of Jews) are such that the material would remain deeply offensive to many Jewish people even if they could also see in it expressions of a genuine belief in the truth of the statements made or expressions of a genuine belief that the Russian or German people had been misrepresented.
The next question is whether Mrs Scully’s acts were done "because of the ... ethnic origin of the other person or some or all of the people in the group" within the meaning of paragraph (b) of s.18C(1). As mentioned above, it is enough that ethnic origin be one reason for the act. It need not be the dominant reason or even a substantial reason: s.18B.
In Bryl and Kovacevic v Nowra and Melbourne Theatre Company, HREOC, Commissioner Johnston, 21 June 1999, unreported ("MTC"), the complainants alleged that Mr Nowra, by writing the play "Miss Bosnia", and the Melbourne Theatre Company, by producing and presenting it to the public, offended, insulted, humiliated and intimidated a group of about 40 people "loyal to the lawful republic of Bosnia-Herzegovina". They claimed that this was contrary to s.18C of the RDA because the characters in the play were portrayed in an offensive manner on account of their national and ethnic origin. The Commission dismissed the complaint under s.25X of the RDA on the basis, in part, that it could not be shown that any offensive conduct of the respondents was done "because of race, national origin, etc. ...".
In that case, Commissioner Johnston rejected the respondents’ submission that the relevant inquiry was as to the motive of the respondents. Referring to Australian Legal Rights Movement Inc v South Australia (No. 1) (1995) 64 SASR 551 at 557, the Commissioner held that an act could be said to be because of race even if race was not the motivating factor. However, having regard to the judgment of Weinberg J in Macedonian Teachers Association of Victoria Inc v HREOC and State of Victoria (1998) 91 FCR 8 (appeal to Full Court dismissed: State of Victoria v Macedonian Teachers Association Inc and HREOC (1998) 91 FCR 47), the Commissioner held that the phrase "because of" was not a synonym for "based on", and that it required the establishment of a causal connection between the conduct and the element of race (or national or ethnic origin). It was not enough in the case before him, the Commissioner held, that race was merely part of the circumstances that formed the background against which the events and incidents of the play were written. The Commissioner continued:
"On this narrower approach the inquiry becomes, relevantly: was national or ethnic origin a cause which contributed to the conduct in writing or presenting the play?"
Applying this "narrower" test, the Commissioner concluded:
"Even if I accept that a consequence of the presentation of the play is that some members of the Bosnian community in Australia have experienced offence and insult as a result of the play it is clear that that is not enough to satisfy this requirement. Something more by way of evidence needs to be produced to indicate that race, or national or ethnic origin was a causative factor that contributed to the writing or putting on of the play (see legal discussion above).
Speculation and conjecture aside, I find nothing in the materials furnished to the Commission that could be identified with this element. That the characters in the play have a particular racial, national or ethnic background is not sufficient to satisfy this requirement. It cannot be said, in my view, that those background factors caused the conduct of writing and performing the play. Since I would not be able to make such a finding if the complaint went to hearing, I must accede to the application to dismiss the complaint on the ground that it is misconceived. The complainants could not, on the materials presented to the Commission, make out their claim under section 18C so far as the need to show race or national origin was a factor in the acts of each of the respondents."
The Commissioner then went on to make findings, for the sake of completeness, that the complainants would have failed by reason of s.18D in any event.
With respect, I think that the approach taken in MTC to the operation and effect of the phrase "because of" in s.18C may not always be appropriate. I would agree that it is necessary to show a relationship of cause and effect between the act complained of and the race, colour, national or ethnic origin of a relevant person or group of people. But, at least in a case where the very thing complained of is the vilification of a person or group of persons expressly by reference to their race or ethnic origin, it is important not to over-analyse the case so as to discern a further or separate requirement that that act of racial/ethnic vilification be engaged in because of the race/ethnicity of the victim(s). To do so may introduce a double requirement which is not actually contained in s.18C(1) on a fair reading of it. Compare, in relation to the expression "by reason of" as used in other parts of the RDA and in the Sex Discrimination Act 1984 (Cth), the observations of Lockhart J in HREOC v Mount Isa Mines Ltd (1993) 46 FCR 301 at 322-323 and 324-325, and see, in particular, the examples there mentioned by his Honour of certain kinds of "inherently discriminatory" or "obviously discriminatory" criteria adopted by alleged discriminators.
Perhaps the key is to characterize the "act" or "acts" appropriately. In the present case, the relevant act is the distribution of material which vilifies certain persons (done repeatedly as part of a public campaign). The Jewishness of the persons vilified is not a mere "background factor" (cf. MTC). It brought about the vilification. The authors of the documents (and Mrs Scully is amongst them to the extent of her annotations and highlighting on the documents) disparaged the persons referred to in them because those persons were Jews. Further, by distributing, selling and offering to sell the documents, Mrs Scully became responsible for their contents. She became a party to the disparaging of particular persons and groups of persons because they are Jews. In my opinion, paragraph (b) of s.18C(1) is also satisfied.
3.3 Section 18D of the RDA
Mrs Scully has claimed, in her final submissions and previously, that by virtue of the operation of s.18D of the RDA any actions of hers which might otherwise have infringed s.18C of the Act were not unlawful. The terms of s.18D are set out above. In my view, s.18D is a section which provides for an "exception or exemption" within the meaning of s.25W. (That section is also set out above). In my view, s.25W applies in this case, with the result that I am not required to have regard to the exception or exemption provided for in s.18D.
By virtue of s.25W, s.18D need not be considered unless there is "evidence before the Commission" that that section is or may be applicable. I note that Parliament has used the expression "evidence", as distinct from the wider expression "evidence or other material" which appears in certain other Commonwealth legislation, such as ss.5(1)(h) and 5(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and ss.476(1)(g) and 476(4)(a) of the Migration Act 1958 (Cth). This does not mean that legally admissible evidence is required. The Commission is not a court and is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit: s.25V(1)(a). However, the use of the word "evidence" rather than "evidence or other material" suggests that a mere claim is not enough.
Further, in my view, to be "evidence before the Commission" a thing or statement would need to have been received and accepted as evidence by the Inquiry Commissioner at the inquiry. The Commission has a discretion as to what it will treat as evidence. In conformity with the principles of natural justice and with its obligations under s.25E(1) of the RDA, the Commission may decline to receive material where to receive it, at a particular stage or at all, would be unfair to one or more of the parties; for example, where such party or parties would have no proper opportunity to cross-examine the witness concerned, or otherwise to test or comment on the statement or thing proffered.
Witness statements or other documents filed by a party pursuant to directions of the Commission do not necessarily become "evidence before the Commission" at the inquiry. The main purpose of such directions is to give each party advance notice of the nature of the evidence proposed to be relied upon by the other party or parties (so as to give each party an adequate opportunity to assemble their own evidence and to prepare to meet the case against them). However, in the absence of a specific direction to the contrary given by the Inquiry Commissioner, any witness statements or other documents would not become "evidence before the Commission" unless and until they were accepted as such at the formal inquiry. Where there is a dispute about the authenticity or accuracy of any document or witness statement, the Commission will usually require that the document or witness statement be appropriately verified (as far as reasonably possible) by the party relying on it before the Commission will receive it as "evidence". A disputed statement by a person who is available to be called as a witness will not generally be treated as evidence unless the witness verifies it on oath or affirmation and attends for cross-examination at the hearing if required.
I am not prepared to depart from these principles in the present case. I think that they should apply with full vigour in a case, like the present, where the relevant "exception or exemption" is one which calls for the Commission to be satisfied that statements which would otherwise be unlawful were made "reasonably and in good faith", and to be satisfied, to the extent that s.18D(1)(b) and (c) are relied on, that the relevant "genuine purpose" requirements are met (among other things). These are cumulative requirements, partly objective ("reasonably") and partly subjective ("in good faith", "genuine purpose"). They involve matters which will usually be peculiarly within the knowledge of the respondent.
In the present case, the need for actual evidence of reasonableness, good faith and genuineness of purpose (among other things) was heightened further by the inflammatory tone and extreme nature of the publications concerned, together with the width of the range of subject matters which became vehicles for anti-Semitic slurs. Whether looked at individually or together, the leaflets do not bear on their face the appearance of reasonableness, good faith and genuineness of purpose. Rather, the leaflets appear to be intended to defame and injure Jews, whether or not they have any other purpose. If they are so intended, reasonableness, good faith and genuineness of purpose would not be found for the purposes of Part IIA of the RDA; compare, in the defamation context, Laughton v The Bishop of Sodor and Man (1872) LR4PC 495 at 504-5, 508-510, Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 at 205 (per Brennan CJ dissenting) and at 228 (per Dawson, McHugh and Gummow JJ).
Mrs Scully was given every opportunity to present her case as she saw fit. At the interlocutory hearing on 27 August 1998 the complainants had made an application for rulings which would have prevented Mrs Scully from calling witnesses to give evidence along the lines of their witness statements. But they did not press this application after I gave indications during argument that I was not inclined to make any such rulings. Thereafter, timetables were set to accommodate Mrs Scully and her witnesses. Four days were set aside for the hearing, with more time to be made available if necessary. Then, on the first scheduled hearing day, and without even the courtesy of prior notice, Mrs Scully announced that she had not brought her witnesses and would be taking no further part in the hearing. She gave as a reason that she had not been assured that "truth was a defence". But Mrs Scully had been aware for some months that I was not prepared to give any advance rulings either way on the scope of the s.18D "defences". She knew that the hearing was to be at large.
I note that in her final submissions Mrs Scully now claims that the Commission should summon the five persons who were to be her witnesses and hear from them in person in support of her claims and should order, pursuant to s.25T of the RDA, that their fares and accommodation be paid by the Commonwealth. It must have been obvious to Mrs Scully that any such request should have been made before the scheduled hearing, not afterwards. It is possible that the real reason, or one reason, why no formal evidence was heard from Mrs Scully and her witnesses is that they did not wish to face questioning on their claims. I note that on the few occasions of which I am aware where purveyors of anti-Semitic propaganda have endeavoured to justify their materials in court on the facts and the merits, they have been singularly unsuccessful: see eg R v Keegstra supra, at 12, 74; R v Zundel supra, esp at 207-215, 254 and, in relation to "Holocaust denial" in particular, see Irving v Penguin Books Limited and Lipstadt, unreported, High Court of Justice (UK) Queen’s Bench Division, Gray J, 11 April 2000.
In any event, in my view, there is nothing which amounts to "evidence before the Commission" (within the meaning of s. 25W) that any part of Mrs Scully’s campaign of anti-Jewish propaganda has been carried on "reasonably and in good faith", for "genuine" purposes and otherwise in such a way that s.18D is or may be applicable. Hence, I conclude that I am not required to have regard to s.18D any further.
In case I am wrong in that conclusion I propose to consider, substantively, whether s.18D is applicable on the material before me. Text books suggest that the onus of proof in relation to a provision like s.18D lies on the respondent: see CCH Equal Opportunity Reporter, para 84-700; C Ronalds, Discrimination Law and Practice, 1998, pp 137, 182. The abovementioned provisions of s.25W appear to be at least consistent with this view.
Moreover, although proceedings before the Commission are called "inquiries" and the procedure to be adopted is within the discretion of the Commission, there is clear authority that an inquiry under s.25A of the RDA is "an adversarial, not an inquisitorial, proceeding": Ebber v HREOC (1995) 129 ALR 455 at 467 per Drummond J. Ebber was a case relating to a complaint of alleged racial discrimination as defined in Part II of the RDA, but the same principles should apply to a proceeding under s.25A relating to a complaint under Part IIA of the RDA (like the present proceeding). Durmmond J referred to the complainant having an "onus of proof" in relation to "the matters that must be established before the Commissioner can reach a conclusion that unlawful discrimination has occurred" (at 467), and see also the cases there cited. Ebber was referred to with approval by Weinberg J in Macedonian Teachers Association v HREOC and the State of Victoria (1998) 91 FCR 8. On appeal (The State of Victoria v Macedonian Teachers Association (1999) 91 FCR 47 at 50), the Full Court expressed some doubt about the use made of Ebber by Weinberg J in relation to questions concerning the standard of proof, but no doubt was thrown on the underlying assumption that Ebber was correct in respect of there being a burden of proof on the complainant. Nothing was said expressly in any of these cases about any burden on respondents, but I think that it follows from the characterisation of proceedings under s.25A as adversarial rather than inquisitorial that, depending on the proper construction of the relevant statutory provisions, a burden of proof may fall on a respondent in relation to a particular issue or issues: see Vines v Djordjevitch (1955) 91 CLR 512 at 519-520; compare Minister for Immigration v Hughes (1999) 86 FCR 567.
In my view, on the proper construction of s.18D (in its context), it is for the respondent to show that s.18D applies. A complainant is not required to show that s.18D does not apply. In this sense, the burden of proof under s.18D is on the respondent.
Since the rules of evidence do not apply before the Commission, the actual requirements of the "burden of proof" in proceedings before the Commission may not be precisely the same as in curial proceedings. Authorities relating to the review by tribunals of administrative decisions indicate that the concept of a legal onus of proof (as understood in ordinary civil litigation) may not be applicable in such reviews: see McDonald v Director General of Social Security (1984) 1 FCR 354, Bushell v Repatriation Commission (1992) 175 CLR 408 at 425 per Brennan J, Minister for Immigration v Hughes (1999) 86 FCR 567. But that is mainly because such proceedings, unlike the present, are of an inquisitorial, rather than adversarial, nature. Even in such proceedings, as a matter of common sense, where facts are peculiarly within the knowledge of a party to an issue, a failure by that party to produce evidence as to those facts may properly lead to an unfavourable inference being drawn. The same may be said of a case where a good deal of evidence pointing in one direction is before the relevant decision-maker and any intelligent observer can see that unless contrary material comes to light that is the way the decision is likely to go: see McDonald, supra, per Woodward J at 358. And, in the same vein, see Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 673 per Callinan J.
In any event, I consider that the risk of non-persuasion of the matters referred to in s.18D falls on the respondent and that the respondent is responsible for adducing evidence or other material upon which a finding in the respondent’s favour under s.18D can be made.
I have considered all of the (voluminous) material filed by or on behalf of Mrs Scully, as well as the material filed by the complainants. Having done so, I am not satisfied that Mrs Scully’s activities are rendered lawful by s.18D.
I am not satisfied that Mrs Scully’s campaign of distributing anti-Jewish propaganda was done "reasonably and in good faith" in, or in the course of, the doing of any of the things listed in paragraph (a) or (b) or (c) of s.18D. The observations made above concerning the failure of Mrs Scully to adduce any formal evidence, despite the particular and obvious need for her to do so and despite the ample opportunity she was given, have obvious relevance for present purposes also.
I have already found that Mrs Scully’s actions were reasonably likely to "offend, insult, humiliate or intimidate" Jews as such and hence that they fell within s.18C. It was not necessary for the purposes of s.18C to determine whether Mrs Scully’s actions were deliberately intended to bring about that result. However, as mentioned above, the extreme nature of the imputations made, the intemperate and inflammatory tone of the leaflets and the great variety of subject matters which have been made vehicles for the imputations against Jews combine, in my opinion, to suggest a lack of the reasonableness and good faith required by s.18D and also (so far as paragraphs (b) and (c) of s.18D are concerned) a lack of the requisite "genuineness" of purpose. I note that Mrs. Scully has not denied the quote attributed to her in the newspaper article attached to the complaint to the effect that she does what she does:
"Because I believe in the truth. People should know the truth". "There’s always someone to blame".
In my view, the RDA generally, including Part IIA, proceeds on the general basis that deliberate racism in public affairs is not to be tolerated: compare Article 4 of the Convention scheduled to the Act. In other contexts, the phrase "in good faith" may simply mean "honestly" or "sincerely": see eg the Macquarie Dictionary, 3rd edition. However, I do not think that a racial vilifier can be heard to say that he or she is acting "in good faith" for the purposes of s.18D merely because he or she honestly or sincerely believes that persons of the race (or ethnic group) concerned are inferior or evil by nature and that they should be made to suffer for that reason: compare R v Keegstra supra, at 62 per Dickson CJC, but compare also Hellenic Council of NSW v Apoleski, Equal Opportunity Tribunal of NSW, No. 10 of 1995, unreported, 25 September 1997.
Even if I am wrong in that regard, there is the additional requirement in s.18D that the conduct be done "reasonably" (as well as the other requirements of s.18D). I accept Mr Rothman’s submission that some guidance as to the import of the requirement of reasonableness may be gained by analogy with the law of defamation and in particular by reference to cases concerning the defence of "reasonableness in the circumstances" in s.22 of the Defamation Act 1974 (NSW). I accept that it has been held that relevant considerations in determining reasonableness include:
(a) the reasonableness of the assertions made;
(b) the care taken by the publisher prior to publication to establish the truth of the assertions;
(c) the basis of the publisher’s belief in the assertions and in this respect:
. the amount of information obtained by the publisher, usually through its journalists;
. the nature of the information obtained;
. the means by which that information has been checked for accuracy;
. the circumstances, being all of the circumstances, in which the information was obtained and in particular the special knowledge of the informant who has provided the information;
(d) whether the person against whom the allegation has been made has been given an opportunity to respond to it.
See Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354, Wran v Australian Broadcasting Commission  3 NSWLR 241 at 250-251, Morgan v John Fairfax & Sons Ltd (No. 2) (1991) 23 NSWLR 374 at 387-388. (With respect, I would not apply to s.18D of the RDA the decision of the Equal Opportunity Tribunal of NSW in Hellenic Council v Apoleski, supra, to the effect that the reasonableness or unreasonableness of the assertions themselves is necessarily irrelevant to the question whether the acts complained of were done "reasonably".)
Mrs Scully did not make herself available to be questioned on matters analogous to or comparable with those listed above, or at all. Further, nothing in the material actually lodged by Mrs Scully persuades me that her actions have been carried out "reasonably". The material is unverified and lacking in persuasiveness. It is of the same "stridently anti-Semitic" character as the leaflets. If anything, it is worse. I give it no weight in terms of supporting Mrs Scully’s claims as to the "truth" of her assertions about Jews or certain Jews. In my view, it only damages Mrs Scully’s claims that her actions were carried out "reasonably and in good faith" and for a "genuine" purpose.
Although it is unnecessary to go further, for the sake of completeness I record that I am not satisfied that any of the leaflets in question was an "artistic work" within the meaning of s.18D(a). Nor am I satisfied that Mrs Scully’s activities were carried out for any "genuine academic, artistic or scientific purpose or any other purpose in the public interest" within the meaning of s.18D(b). By enacting Part IIA of the RDA, the Australian Parliament has indicated that, under our law, courts and tribunals should be slow to accept that in particular circumstances the promulgation of hate propaganda has a purpose "in the public interest". In this regard I note what was said by Dickson CJC (writing for the majority) in R v Keegstra, supra, at 44:
"The message of the expressive activity covered by s. 319(2) [a provision which prohibits, subject to certain qualifications, the wilful promotion of hatred against any identiable group] is that members of identifiable groups are not to be given equal standing in society, and are not human beings equally deserving of concern, respect and consideration. The harms caused by this message run directly counter to the values central to a free and democratic society, and in restricting the promotion of hatred Parliament is therefore seeking to bolster the notion of mutual respect necessary in a nation which venerates the equality of all persons".
And at 45:
"The nature of Parliament’s objective is supported not only by the work of numerous study groups, but also by our collective historical knowledge of the potentially catastrophic effects of the promotion of hatred ...".
And again, at 48:
"... in my opinion, there can be no real disagreement about the subject matter of the messages and teachings communicated by the respondent, Mr. Keegstra: it is deeply offensive, hurtful and damaging to target group members, misleading to his listeners, and antithetical to the furtherance of tolerance and understanding in society".
Finally, at 49:
"There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided."
See also R v Zundel, supra at 227-230, 269.
I note that those responsible for the drafting of the Racial Hatred Bill 1994 (Cth) were aware of R v Keegstra, supra. During debate on the Bill before the Legal and Constitutional Committee of the Senate on 17 February 1995, a senior government legal counsel quoted a passage from p 59 of the judgment of Dickson CJC concerning the meaning of (racial) "hatred" (see Hansard, Senate L & C, 17 February 1995, p 278). It is true that, ultimately, Parliament rejected those parts of the Racial Hatred Bill 1994 (Cth) which would have introduced criminal sanctions for racially based threats and for the incitement of racial hatred. But I consider that substantial guidance as to what may be encompassed by the phrase "public interest" in the present context may nevertheless be gained from a consideration of the observations of Dickson CJC in R v Keegstra, supra, especially where, as here, the material complained of is of such an extreme nature that it answers the description "hate propaganda". See also, generally, the various articles on racial vilification referred to above (at the end of the section headed "Part IIA of the RDA and the implied constitutional freedom of political communcation").
So far as paragraph (c)(i) of s.18D is concerned, I would not regard leaflets of the kind in question here, even if they were "fair and accurate", as amounting to "reports" (of anything) within the meaning of s.18D(1)(c)(i). As to whether they are reports of "any event or matter of public interest", I note Mr Rothman’s submission that the meaning of the phrase "event or matter of public interest" is illuminated by the judgment of the High Court in Bellino, supra. That case concerned the interpretation of certain statutory provisions of the State of Queensland which defined a "lawful excuse" for the publication of defamatory matter. Central to the definition was the phrase "a subject of public interest". The majority of the Court held that broad topics, such as "the world-wide conflict between Communism and non-Communism" or "organized crime and corruption in Queensland" were not within the statutory concept. The subsection in question protected a defamatory imputation made in the course of or for the purposes of discussing the conduct of a person whose conduct, inherently, expressly or inferentially, invited public criticism or discussion. The subject of public interest could not be some general abstraction unrelated to the conduct of particular individuals. There is no doubt that the language of paragraph (c) of s.18D borrows heavily from the language of the law of defamation. However, I prefer to leave for a case in which it needs to be decided the question whether the phrase "any event or matter of public interest" in s.18D(c) should be interpreted as narrowly as was the phrase in question in Bellino, supra: compare Hellenic Council of NSW v Apoleski and Macedonian Youth Association, Equal Opportunity Tribunal of NSW No. 10 of 1995, unreported, 25 September 1997; Hellenic Council of NSW & Anor v Apoleski, Equal Opportunity Tribunal of NSW, No.s 9 and 11 of 1995, unreported, 25 September 1997.
As to s.18D(c)(ii), I doubt that any of the publications represents a "comment" at all. Further, the requirement that the comment be "fair" seems to be additional to the requirement that it be an expression of a "genuine belief" held by the person making the comment. Hence the defamation cases relating to the defence of "fair comment" may not be directly applicable: compare Gillooly, The Law of Defamation in Australia and New Zealand, 1998, at p 133. In any event, I would not be satisfied that the attacks on Jews contained in the leaflets represent "fair comment on any matter or event of public interest" even if this expression should be interpreted in accordance with the common law defence of "fair comment": see Gillooly, op cit at pp 124-134. No broader interpretation seems likely to be correct. Hence, in my view, paragraph (ii) of s.18D(c) would seem to be inapplicable in any event.
For these reasons, I find that s.18D does not apply to the conduct of Mrs Scully, which I have found to be in breach of s.18C.
I conclude that the complaint has been substantiated.
Section 25Z(1)(b) of the RDA provides for the kinds of determination which the Commission may make after holding an inquiry and finding the complaint substantiated. The complainants seek determinations under sub-paragraphs (i) and (ii) of s.25Z(1)(b) only. Those provisions authorize determinations of the following kinds:
"(i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;
(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant;..."
The complainants expressly decline to seek monetary compensation (for which provision is made by sub-paragraph (iv) of s.25Z(1)(b)).
There is no difficulty to the extent that a declaration is sought, under sub-paragraph (i), that Mrs Scully has engaged in conduct rendered unlawful by the RDA. I propose to make such a declaration. I mean to encompass in it every act of distribution, sale or offering for sale of the particular anti-Semitic publications listed above which I have found were distributed by Mrs Scully between 13 October 1995 and 7 August 1996.
The complainants also seek what they describe as a "restraining order" under the second limb of sub-paragraph (i). I have given considerable thought to the question of whether any and what kind of "order" should be made in this respect. Bearing in mind the high value placed on freedom of expression by the common law, as mentioned above (see Brown, supra, at 76-80 per French J), and also the general principles governing injunctions issued by courts (see eg Redland Bricks Ltd v Morris  AC 652, Mikasa (NSW) Pty Ltd v Festival Stores (1972) 127 CLR 617; compare Sinnapan v State of Victoria  1 VR 421 at 436-444, and State of Victoria v Sinnapan (No. 2)  2 VR 242), I have been concerned that any restraint should be reasonably clear and should not be too wide. Further, I am conscious of the reluctance of courts to grant injunctions (especially interlocutory injuctions) to restrain threatened or proposed defamation: National Mutual Life v GTV (1989) VR 247, Bryanston Finance v de Vries (1975) 1 QB 703 at 724-5, Gillooly, op cit at p 320-329.
On the other hand, I recognize that the Commission is not a court and does not make "orders" as such; that, rather, sub-paragraph 25Z(1)(b)(i) provides for the making of a "declaration" that the respondent "should not" repeat or continue the unlawful conduct, that determinations made by the Commission are not binding or conclusive between the parties (s.25Z(2) and see Brandy v HREOC (1995) 183 CLR 245) and that, unlike injunctions issued by courts, determinations of the Commission are not liable to be enforced by way of contempt proceedings. Even in the field of defamation, a final injunction will generally be granted if the plaintiff’s cause of action is proved, future publication is likely and future publication will constitute an actionable wrong (ie. will not be protected by privilege or otherwise): Gillooly, op cit at p 320-321. Further, appeal courts have extended a substantial degree of liberality in relation to the framing of orders and declarations by tribunals in anti-discrimination matters, even where such orders or declarations are binding on the parties: see Waters v Public Transport Corporation (1991) 173 CLR 349, esp at 397, Sinnapan (No. 2), supra, at 266-267, 272. Nevertheless, s.25ZC provides for an application to be made to the Federal Court to enforce a determination made by the Commission. Although a proceeding in the Court proceeds by way of a hearing de novo, and the Court may make "such orders as it thinks fit (including a declaration of right)", I think it behoves the Commission not to make determinations of a kind which are too far removed from orders of the kind which the Court itself might be willing to make.
In the present case, once certain specified conduct of the respondent is declared to have been unlawful, I think it would be appropriate further to declare, simply, that the respondent should not repeat or continue such unlawful conduct: compare the simple order made by the Equal Opportunity Tribunal of New South Wales in Wagga Wagga Aboriginal Action Group v Eldridge, supra, at 78,268-9 and compare also the injunction upheld by the High Court in Mikasa (NSW) Pty Ltd v Festival Stores supra, see esp at 631-632 per Barwick CJ).
This declaration would mean that Mrs Scully should cease the unlawful distribution, sale or offering for sale of further copies of the literature on which the primary declaration was based or any other similar literature the distribution, sale or offering for sale of which is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate persons of Jewish ethnic origin. The restraint extends only to the "unlawful" doing of these things, because, first, it is only meant to cover conduct which breaches s.18C of the RDA and, second, because I consider that I should not, by a declaration, purport to foreclose the possibility that a particular future act of distribution, etc of a particular publication, even of the character mentioned, might not, in particular circumstances, be able to be justified by Mrs Scully by reference to s.18D of the Act or otherwise.
The complainants also seek a declaration that the respondent should apologise for her unlawful conduct. I have hesitated about granting this form of relief. The respondent has shown little or no sign of remorse for her actions and I have no confidence that any apology she may give pursuant to a declaration (or a court order) would be genuine or sincere. A similar situation was one of the reasons that an apology was not ordered in Lynton v Maugeri (1995) EOC 92-754, although another reason in that case was that an award of damages was to be made.
In the field of defamation, at common law, courts do not, save perhaps in rare cases, order unwilling defendants to correct, or apologise for, slanders or libels: see Gillooly, op cit at p 331, although a failure to apologise may affect the quantum of damages: ibid, 287-288, 298-299; and statutory provision is made in some jurisdictions for the publication by news media of retractions or replies: see eg s.25 of the Defamation Act 1992 (NZ).
However, the situation is different in the field of discrimination law. Ronalds notes in Discrimination Law and Practice, 1998, at p 201 that an apology is a form of order which is being made with increased frequency in discrimination matters. As the learned author mentions, public apologies were ordered in Bull v Kuch (1993) EOC 92-518, Wagga Wagga Aboriginal Action Group v Eldridge, supra, and Krepp v Valcic (trading as Capel Bakery) (1993) EOC 92-520.
I have had particular regard to the remarks of Commissioner Castan QC in Bull v Kuch, supra. In that case, Commissioner Castan QC regarded the refusal by the respondents to rent a caravan to the complainants because they were Aboriginal as a serious and blatant case of racial discrimination and he judged that the respondents were not genuinely remorseful or contrite. In these circumstances, the Commissioner determined that the case was appropriate to be resolved by a significant public apology and a substantial payment of damages for the pain and humiliation inflicted on the complainants because of their race.
In my view, the present case is comparable. As no damages are sought, an apology is all the more appropriate. The complainants have put forward a particular form of words for a letter to Mr Jones which would involve not only a broad apology but also a broad undertaking on the part of Mrs Scully to cease distributing anti-Jewish material. In my opinion, taking into account (among other things) the other declarations that the Commission will make, it is unnecessary and inappropriate to include the requested undertaking. Otherwise, and subject to certain other verbal modifications, I propose to declare that an apology as sought should be given.
The complainants also seek an order that the respondent, at her own expense, undertake a course of counselling by a conciliation officer of the Commission as to her rights and responsibilities under the RDA. Whilst I express the hope that the respondent will, through these proceedings or otherwise, come to a better understanding of her responsibilities under the RDA, I do not propose to make any such order. I am informed that the Commission does not provide courses of the kind contemplated. In any event, I would not have regarded it as necessary or appropriate to include a further requirement along these lines.
For these reasons, I propose to make a decision as follows:
(a) finds that the complaint has been substantiated;
(b) declares that the respondent, Mrs Olga Scully, by distributing anti-Semitic literature in letterboxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston, has engaged in conduct rendered unlawful by Part IIA of the RDA;
(c) declares that the respondent, Mrs Olga Scully, should not repeat or continue such unlawful conduct;
(d) declares that the respondent, Mrs Olga Scully, should apologise for her unlawful conduct by writing to the complainants a letter of apology in the following terms:
"Mr. Jeremy Jones
Executive Vice President
Executive Council of Australian Jewry
146 Darlinghurst Road
DARLINGHURST NSW 2010
I, Mrs Olga Scully, do hereby unreservedly apologise to you and to the Hobart Hebrew Congregation for my conduct in distributing anti-Semitic literature in letterboxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston in contravention of the Racial Discrimination Act 1975 (Cth)".
DATED this 21st day of September 2000
ANTHONY CAVANOUGH QC
I certify that this and the preceding thirty-five (35) pages is a true copy of the Reasons for Decision of Mr Anthony Cavanough QC, Inquiry Commissioner.
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© The Nizkor Project, 1991-2012
This site is intended for educational purposes to teach about the Holocaust and
to combat hatred.
Any statements or excerpts found on this site are for educational purposes only.
As part of these educational purposes, Nizkor may
include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and
provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist
and hate speech in all of its forms and manifestations.
This site is intended for educational purposes to teach about the Holocaust and to combat hatred. Any statements or excerpts found on this site are for educational purposes only.
As part of these educational purposes, Nizkor may include on this website materials, such as excerpts from the writings of racists and antisemites. Far from approving these writings, Nizkor condemns them and provides them so that its readers can learn the nature and extent of hate and antisemitic discourse. Nizkor urges the readers of these pages to condemn racist and hate speech in all of its forms and manifestations.