Aegean Macedonian Association of Australia v Karagiannakis

[1999] NSWADT 130

Set aside by Appeal: Set aside by appeal on 27/6/02

CITATION:	Aegean Macedonian Association of Australia and Ors -v- Karagiannakis & Ors [1999] NSWADT 130
DIVISION:	Equal Opportunity
APPLICANT:	Aegean Macedonian Association of Australia, Michael Veloskey, Bill Manus, Victor Bivell, Paul Stephen, Vasil Vlashef
RESPONDENT:	George Karagiannakis, Hellenic Council of New South Wales, The Australian Hellenic Council, Costas Vertzayis, Akis Haralabopoulos
FILE NUMBER:	259 of 1996, 261 of 1996, 262 of 1996, 263 of 1996, 265 of 1996
HEARING DATES:	11/22/1999; 11/23/1999
SUBMISSIONS CLOSED:	11/23/1999
DATE OF DECISION:	10 December 1999
BEFORE:	R J Bartley - Judicial Member L Farmer - Member S Clayton - Member
PRIMARY LEGISLATION:	Anti-Discrimination Act, 1977
APPLICATION:	Vilification - Racial -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: J Oakley of counsel, instructed by S Kozlina, solicitor Respondent: First, Fifth and Sixth Respondents: J Conomos of counsel, instructed by K Garling, solicitor. Fourth Respondent: In person and as agent for the Second and Third Respondents
ORDERS:	1. Each Complaint is dismissed.

1 These matters commenced by complaints lodged with the Anti-Discrimination Board on 9 December 1996. Other similar complaints were added in due course. As of today there are six complainants and six respondents.

2 Ms Janet Oakley, of Counsel, instructed by Mr Simon Kozlina, appeared for the complainants. Mr Conomos, of Counsel, instructed by Mr Kim Garling appeared for the first, fifth and sixth respondents. Mr Costas Vertzayias, appeared in person and as agent for the second and third respondents.

3 Each of the complaints concerns an article published by K Publications Pty Ltd and written by George Karagiannakis (on behalf of the Hellenic Council of New South Wales, a member of the Australian Hellenic Council) in `O Kosmos’ on 19 April 1994 (attached).

"IN OUR OTHER LANGUAGE Tuesday 19 April 1994 Page 15 O KOSMOS

The "Slav-Macedonian" Decision and how it affects us

by George Karagiannakis*

The Australian Hellenic community has been criticised for using its lobbying strength to pressure the Government into placing a label on the community from FYROM, that is "Slav-Macedonian".
The facts behind the decision reveal another perspective. For 20 years, since the advent of the policy of "Multiculturism", any community can call itself what it likes, and the Government has accepted self identification without question.
Does the Government's decision then mean that self identification comes to an end? The answer is a qualified no. Qualified because the Government has realised after careful consideration that it cannot accept the use by a community of a label it gives itself with a view to using that identity to create instability in Australia or another region of the world. Similarly it will not accept propaganda from a community that has its aim to create instability in Australia or in another part of the world.

Naturally, self expression will remain and the "Slav Macedonians" will continue to call themselves "Macedonians". No one can force a person or people to call themselves something they do not accept. The important difference now is that the Government will not accept the term and in time the media will also use "Slav-Macedonian".

What this all means is that the 20 year propaganda campaign of using the "Macedonian" term to:

· distort history by extrapolating from the ancient Macedonians to a modern people who call themselves "Macedonians";

· a claim ancient Macedonian symbols as belonging to them;

· produce maps of 'Greater Macedonia" that encompass the Hellenic province of Macedonia;

· persist with unfounded claims of human rights abuses against the absurd estimate of 300,000 - 1 million "Macedonians" in northern Hellas;


will gradually end with the entrenchment of the term "Slav-Macedonian" because:

· people will say how can the ancient Macedonians, Slavs did not come into the Balkans until 1,000 years after Alexander the Great;

· ancient Macedonian symbols belong to the heritage of Hollas and Hellenes not "Slav-Macedonians";

· Slav Macedonians are related to FYROM and only have title to FYROM not the Macedonia of Hellas which is populated overwhelmingly by Hellenic Macedonians;

· How many Slav-Macedonians are there in northern Hellas? 369. Yes. Not 369,000 nor 36,900 nor 3,690, just 369! How do we know the exact number? Tasos Boulls stood as an independent candidate in the electorate of Florina during the October 1993 national elections in Hellas. He promoted himself as a "Macedonian" and urged all "Macedonians" in Hellas to vote for him to show the world their real numbers. He got his result. 369 voters out of an electorate of 58,000 voters. Florina is claimed by the Slavs as being their stronghold in Hellas. With less than 1% of the vote their claims have been ridiculed.


The decision of the Government is based on the principles of communities coexisting peaceably and respecting each other's culture. On our part, the Australian Hellenic community must accept that the term "Slav Macedonians" is a middle ground compromise. History and geography have given a group of Slavs an identification with the geographic region of Macedonia. For their part they must accept that they are Slavs and be proud of it; they must also accept that there are Macedonians who are ethnically Hellenic (and have no connection with Slavs) and want to retain their affiliation with the Hellenic province of Macedonia, just as Cretans, Athenians, Kytherians, Kastellorizians etc, retain their regional affiliations.
As a further move, this decision of the Government is meant to put a stop to the abominable creation of so called "Aegean Macedonian" groups. These groups in Australia used the term concocted by the Yugoslav communists to describe Hollas Macedonia. The term was used to deny the word "Hellenic" from Hellenic Macedonia and to identify that the Yugoslavs (and Bulgarians) wanted an outlet into the Aegean. This expansionist view continues to prevail within these groups.

Their propaganda has intensified over the last two years with ridiculous claims that the 28,000 Hellenic children abducted during the Hellenic civil war of 1946-1949 were "Macedonian" children who were evacuated to protect them from the "Hellenic nationalists". As documented by the United Nations reports at the time, the substantial majority of children were kidnapped and were Hellenes. A number of Hellenic children left with their parents who were communists or sympathisers, and a number were of Slavic descent whose parents fought on the side of the Hellenic communists.

The Government will not accept the term "Aegean Macedonian" as describing a group of people. We must be vigilant and complain to the Federal authorities of any use of that term and the associated propaganda of maps of 'Greater Macedonia' and the 'Star of Vergina'.

Our community was slow, very slow, to react to the near 50 years of propaganda. When we did it was with a sense of common purpose and unity. We have let all Australians know that Hellenic history is not negotiable. It is a gift to the World that should be used to enlighten our lives and we are more than happy to see it used for this purpose as did Alexander the Great. But we will not let any group abuse it for nationalistic ends.


As rightful inheritors of Hellenic civilisation we have an obligation to protect and promote it; if we don't I am sure others will but don't count on them calling it Hellenic; more likely 'Anatollan' or 'Alexandrian'.



*Mr George Karagiannakis writes on behalf of the Hellenic Council of New South Wales, a member of the Australian Hellenic Council."

4 The complaint fell to be decided under Section 20C of the Anti-Discrimination Act which is as follows:

20C Racial vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.
(2) Nothing in this section renders unlawful:
(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter comprising a

publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is

otherwise subject to a defence of absolute privilege in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or

research purposes or for other purposes in the public interest, including discussion or debate

about and expositions of any act or matter.
5 Sensibly the evidence was generally confined to the effect of the article, with the mass of material tendered simply backgrounding the complaints.

6 Ms Oakley’s submissions that the article fell within section 20C(1) of the Anti-Discrimination Act 1997 were set out in her opening address.

7 She submitted:

"On 14 March 1994, Senator Evans announced in Parliament that Australia would recognise the Former Yugoslav Republic of Macedonia, and I will, if the Tribunal will permit me, take the Tribunal to the particular part of his statement that is recorded in Hansard . It appears at page 178 of the bundle.

The immediately preceding pages refer to the decision about recognition. I won't read those to the Tribunal but I will, if I may, take the Tribunal to page 178 and the last column on the left-hand side of that page, where it says:

We propose, accordingly, that Australian government departments and agencies use the description 'Slav-Macedonians' when referring to people who live in, or originate from, the FYROM. 'Slav-Macedonians' is in quite common descriptive usage, and should not have any offensive connotations - other than for those to whom any qualification of the word 'Macedonian' is unacceptable. It is the case that some FYROM people - including most obviously the Albanian minority - are of non-Slav ethnic origin, but 'Slav' in the present context should be taken not so much as an ethnic reference but simply as shorthand for the country's name, the 'Former Yugoslav Republic of Macedonia'.

It is not proposed that any legislation be enacted to compel any particular usage by government departments and agencies or anyone else. How ordinary members of the respective communities choose to describe themselves, and in particular how they choose to describe their ethnicity, in the census or anywhere else, will remain up to those individuals and communities themselves. We recognise, for example, that there are Australian citizens of Greek geographic origin, but not of Greek ethnic background, who may choose to identify themselves as Macedonians.
So it is apparent, it will be my submission in due course, that what Senator Evans was talking about in the directive, or the requirement, to government departments was people who originated from the Federal Republic, the Former Yugoslav Republic of Macedonia, and not Macedonians who lived elsewhere in Europe.

As I mentioned earlier, there were large groups of Macedonians who resided in Bulgaria and groups of Macedonians who resided in Greece and who originated in Greece because the larger territory of Macedonia had been carved up between, essentially, those three powers and quite apart from the fact, of course, that there are large groups of Macedonians living in Australia and Canada, but what was being referred to here was people who originated from the Former Yugoslav Republic of Macedonia.

Immediately following the statement in Parliament, an article, and it is the offending article, appeared in O Kosmos on 19 April 1994, and I have handed a copy of the article up. I would just like to read through that. The first paragraph of the article:

The Australian Hellenic community has been criticised for using its lobbying strength to pressure the Government into placing a label on the community from FYROM, that is "Slav- Macedonia".

That is not the subject of any particular complaint. It identifies the ministerial announcement as relating to people from the former Yugoslav Republic. It then goes on to say:

The facts behind the decision reveal another perspective. For 20 years, since the advent of the policy of "Multiculturalism" --

It is not clear why that is in inverted commas, but, nevertheless:

Any community can call itself what it likes, and the Government has accepted self identification without question.

The next paragraph goes on to purport to give reasons for the Government's decision. It says:

Does the Government's decision then mean that self identification comes to an end? The answer is a qualified no. Qualified because the Government has realised after careful consideration that it cannot accept the use by a community of a label it gives itself with a view to using that identity to create instability in Australia or another region of the world. Similarly it will not accept propaganda from a community that has its aim to create instability in Australia or in another part of the world.

I appreciate that the Tribunal has not read the whole of the ministerial statement to Parliament by Senator Evans, but it made no mention of those as being the reasons behind the decision.

Furthermore, it will be my submission in due course that what that paragraph is, in effect, saying is that Macedonians call themselves Macedonians to create instability in Australia and in other parts of the world and, furthermore, it appears to be saying that the Government has realised that that is the Macedonians' intention and has decided not to allow them to call themselves Macedonian. The next paragraph goes on to state:

Naturally, self expression will remain and the "Slav-Macedonians" will continue to call themselves "Macedonians". No one can force a person or people to call themselves something they do not accept.

Again, no complaint is made about that. But the next sentence goes on to say:

The important difference now is that the Government will not accept the term and in time the media will also use "Slav-Macedonian".

Suggesting that there is some government directive that Macedonians can't call themselves Macedonians any more but must call themselves Slav-Macedonians, which is not, in my submission, what Senator Evans said. The article then goes on to say:

What this all means is that the 20 year propaganda campaign of using the "Macedonian" term to:

* Distort history by extrapolating from the ancient Macedonians to a modern people who call themselves "Macedonians";

* claim ancient Macedonian symbols as belonging to them;

* produce maps of "Greater Macedonia" that encompass the Hellenic province of Macedonia;

* persist with unfounded claims of human rights abuses against the absurd estimate of 300,000 - 1 million "Macedonians" in northern Hellas;

* will gradually end with the entrenchment of the term "Slav-Macedonian" because:

* People will say how can the ancient Macedonians have anything to do with Slav-Macedonians". Slavs did not come into the Balkans until 1,000 years after Alexander the Great;

* ancient Macedonian symbols belong to the heritage of Hellas and Hellenes not "Slav- Macedonians";

* Slav Macedonians are related to FYROM and only have title to FYROM not the Macedonia of Hellas which is populated overwhelmingly by Hellenic Macedonians;

* How many Slav Macedonians are there in northern Hellas? 369. Yes. Not 369,000 nor 36,900, nor 3,690, just 369! How do we know the exact number? Tasos Boulis stood as an independent candidate in the electorate of Florina during the October 1993 national elections in Hellas. He promoted himself as a "Macedonian" and urged all "Macedonians" in Hellas to vote for him to show the world their real numbers. He got his result. 369 notes out of an electorate of 58,000 voters. Florina is claimed by the Slavs as being their stronghold in Hellas. With less than 1% of the vote their claims have been ridiculed.

So it appears that what is being said in that paragraph is that the mere use of the name, "Macedonian", or the term, "Macedonian" automatically associates you with making these statements, but once people are required to use the term "Slav Macedonian" then all of these things will follow. It really is, it will be my submission in due course, that this is serious ridicule of a people on the basis of their national origin. The article goes to on to say:

The decision of the Government is based on the principles of communities coexisting peaceably and respecting each other's culture. On our part, the Australian Hellenic community must accept that the term "Slav Macedonians" is a middle ground compromise. History and geography have given the group of Slavs an identification with the geographic region of Macedonia. For their part they must accept that they are Slavs and be proud of it; they must also accept that there are Macedonians who are ethnically Hellenic (and have no connection with Slavs) and want to retain their affiliation with the Hellenic province of Macedonia, just as Cretans, Athenians, Kytherians, Kastellorizians, et cetera, retain their regional affiliations.

So there is a grouping together in that paragraph of all Macedonians as only having any entitlement to claim kinship with a country. They are denied any entitlement to claim kinship with Greece in this part of the article and are now required by the author of the article to claim kinship with a former Yugoslavian republic. The article then goes on to say that:

As a further move, this decision of the Government is meant to put a stop to the abominable creation of so-called "Aegean Macedonian" groups. These groups in Australia use the term concocted by the Yugoslavian communists to describe Hellas' Macedonia. The term was used to deny the word "Hellenic" from Hellenic Macedonia and to identify that the Yugoslavs (and Bulgarians) wanted an outlet into the Aegean. This expansionist view continues to prevail within these groups.

So we get to the heart of the article and it talks of groups of Aegean Macedonians as being abominations, effectively a Yugoslav communist concoction and associates them with an expansionist view which will promote an innovation of part of Greece. The article then goes on to say:

Their propaganda has intensified over the last two years with ridiculous claims that the 28,000 Hellenic children abducted during the Hellenic civil war of 1946-1949 were "Macedonian" children who were evacuated to protect them from the "Hellenic nationalists". As documented by the United Nations reports at the time, the substantial majority of children were kidnapped and were Hellenes. A number of Hellenic children left with their parents who were communists or sympathisers, and a number were of Slavic descent whose parents fought on the side of the Hellenic communists.

The Government will not accept the term "Aegean Macedonian" as describing a group of people.

Well, it will be my submission in due course that that is a simple and flat mis-statement of the ministerial statement. If anything, the ministerial statement acknowledged the right of Aegean Macedonians to call themselves Macedonians:

We must be vigilant and complain to the Federal authorities of any use of that term and the associated propaganda maps of Greater Macedonia" and the "Star of Vergina".

Our community was slow, very slow to react to the near 50 years of propaganda. When we did, it was with a sense of common purpose and unity. We have let all Australians know that Hellenic history is not negotiable. It is a gift to the world that should be used to enlighten our lives and we are more than happy to see it used for this purpose as did Alexander the Great. But we will not let any group abuse it for nationalistic ends.

As rightful inheritors or Hellenic civilisation we have an obligation to protect and promote it; if we don't, I am sure others will but don't count on them calling it Hellenic; more likely "Anatolian" or "Alexandrian"."

It would be my submissions to the tribunal in due course that the article is racially villifying and does not come within the exceptions provided in the legislation.

Issues

8 The issues in the case were:

i. Is the article referred to earlier a `public act’?

ii. Was it written by George Karagiannakis?

iii. Was it written on behalf of the Hellenic Council of NSW, a member of the Australian Hellenic Council?

iv. Did it fall within section 20C(1) of the Anti-Discrimination Act?

v. If so, did the defences set out in sections 20C(2)(a) and (b) apply?

vi. Did anyone aid and abet the publication?

9 Mr Conomos admitted the publication was `a public act’ and the article was written by Mr Karagiannakis.

10 First of all it is convenient for the Tribunal to consider whether the article falls within section 20C(1).

11 All of the complainants gave evidence as did three of the Respondents.

12 Mr Karagiannakis, the author of the article gave evidence and was cross-examined as to the article he had written. He was challenged as to the accuracy of various statements but maintained the inferences put on them by the cross-examiner were not correct.

13 It is difficult to summarise concisely the situation existing between the parties but the Tribunal is of the view that Senator Evans in his Ministerial Statement of 14 March 1994 has fairly put the then position.

He said:

"Thus we have been asking those whose origins lie in the Former Yugoslav Republic of Macedonia to acknowledge frankly that their country occupies only part of the territory embraced by ancient Macedonia; and that, accordingly, the use of symbols like the Star of Vergina or (more provocatively still) the White Tower of Thessaloniki, or the use of names or the circulation of maps which in effect lay claim to the whole territory and cultural heritage of ancient Macedonia, are bound to be deeply offensive to any person of Greek origin who cares for the territorial and cultural heritage of his or her original homeland.

Equally, we have been asking those of Greek origin to recognise that Slav-Macedonians - those originating in the FYROM - do have legitimate claims to part of the territory and cultural heritage of ancient Macedonia, and are stressed by demands that they renounce use of the name "Macedonia" entirely. We have asked also that Greek Australians, and Greece itself, accept that the outstanding issues are ones that can only be resolved by peaceful negotiations, and not by confrontation and conflict. We have asked that they recognise the unfairness of FYROM being denied a recognised place in the community of nations when it does satisfy normal criteria for recognition. And we have asked that they acknowledge the unfairness of Slav-Macedonians living in Australia being denied normal consular services necessary to maintain human links with their original homeland.

It is not always easy to look at a problem through the eyes of your traditional opponent, but it is always right to try to do so. There is invariably a measure of right and justice on both sides, and the present dispute is no exception. Responsible community leaders from both sides have been prepared to acknowledge that - even if regrettably, sometimes only privately. I hope very much for the sake of the future of community relations, and multiculturalism in this country, that that approach prevails in the days and weeks ahead."

14 It was fairly obvious to the Tribunal that the article has been preceded by centuries and decades of arguments, dissention and debate, both parochially, domestically and internationally. The problems arising between the two races, Macedonians and Greeks are obvious.

15 On both sides of the Macedonian-Greek debate in New South Wales, there are people who have lived only in Australia and people who have fought for Australia in the Second World War.

16 It is quite clear their views are irreconcilable and that tensions will continue to exist between the two races.

17 The article was but another step in their continuing unhappy relationship.

18 Mr Conomos has submitted that the article should be read as a whole and not dissected.

19 In his final submission Mr Conomos referred to an extract from Wagga Wagga Aboriginal Action Group -v- Eldridge (1995 CCH 92-701) (Page 70266):

Section 20C does not make unlawful the use of words that convey hatred towards a person or a group of persons on the grounds of race of that particular person, or members of the group; nor does it make unlawful the expression of serious contempt on the grounds of race of a particular person or groups of persons; nor does it make unlawful severe ridicule on the grounds of race of a particular person or group of persons.

The use of such words may be found to be unpleasant or obnoxious, but this section does not make their use unlawful.

The dividing line arises when, by public act, a person incites others to hatred towards, serious contempt for, or
to severely ridicule a particular person or group of persons on the grounds of race.
20 In accordance with Eldridge's case Mr Conomos has submitted the key word in interpreting Section 20C is "Incite".

21 He further submitted the article as a whole does not incite hatred towards, serious contempt for or severe ridicule of the Complainants on the grounds of the race of the Complainants or members of the group.

22 The Tribunal is of the view this article taken as a whole is not an act of incitement, it is more a part of the continuing acrimonious debate between the parties and those they represent.

23 All the resources of the Commonwealth Government have to this date not brought the parties together. This, unfortunately, is regrettable. This case has always been about the article. The complainant to succeed cannot simply show that statements in the article are incorrect or wrong; or that the author has misquoted Government statements, or the article could be possibly inflammatory in parts or illustrative of bad conduct.

24 The Tribunal is of the view that the article whilst possibly upsetting to some does not incite hatred towards, serious contempt for, or severely ridicule a particular person or group of persons on the grounds of race.

25 In view of the basis of this decision it is not necessary to deal with the other submissions made in the case.

26 The Complainants sought costs but as the application has been dismissed they are not entitled to costs.

27 Each complaint is dismissed.