Jones v Scully
[2002] FCA 1080
•2 SEPTEMBER 2002
FEDERAL COURT OF AUSTRALIA
Jones v Scully [2002] FCA 1080
HUMAN RIGHTS – racial discrimination – racial hatred – publication and distribution of leaflets – proceedings to enforce determination of Human Rights and Equal Opportunity Commission – de novo hearing – whether publication and distribution of leaflets was reasonably likely to offend, insult, humiliate or intimidate Jews in Australia – objective test to be applied – relevance of evidence of persons actually being offended, insulted, humiliated or intimidated – relevance of truth or falsity of leaflets – offensive behaviour – whether act done “because of” race, colour or national or ethnic origin – meaning of “ethnic origin” – whether Jews in Australia are a group of people with an “ethnic origin” – whether leaflets were published and distributed reasonably and in good faith – whether leaflets were published and distributed for any genuine purpose in the public interest – whether any leaflets were a “fair and accurate report” – whether any leaflets were “fair comment”
CONSTITUTIONAL LAW – Racial Discrimination Act 1975 (Cth) Part IIA – whether invalid – freedom of communication concerning political or government matters – whether Racial Discrimination Act effectively burdens freedom of communication about government or political matters – whether reasonably appropriate and adapted to serve a legitimate end – legitimate end sought to be achieved
DEFAMATION – applicable principles in determining whether material conveys pleaded imputations – whether imputations would be conveyed to an ordinary reasonable reader of the leaflets – characteristics of ordinary reasonable reader
EVIDENCE – historical evidence – admissibility as to facts in issue – general principles – evidence in books and videos – discretion to limit use of evidence – Evidence Act 1995 (Cth) s 136
WORDS AND PHRASES – “because of” – “offend” – “ethnic origin”
Racial Discrimination Act (1975) (Cth) Part IIA, s 18B, 18C, 18C(1)(a), 18C(1)(b), 18D, 18D(a), 18D(b), 18D(c)(i), 18D(c)(ii)
Trade Practices Act 1974 (Cth) s 52
Racial Hatred Bill 1994 (Cth)
Evidence Act 1995 (Cth) s 136
Crimes Act 1914 (Cth)Universal Declaration of Human Rights Article 19
Jones v Scully (2001) 113 FCR 343 referred to
Harris v Caladine (1990-1991) 172 CLR 84 considered, applied
Australian Communist Party v Commonwealth (1951) 83 CLR 1 applied
Ritz Hotel v Charles of the Ritz (1987) 14 NSWLR 107 considered
Bellevue Crescent v Marland Holdings (1998) 43 NSWLR 364 considered
Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 applied
Creek v Cairns Post Pty Ltd [2001] FCA 1007 appliedACCC v Optell Pty Ltd (1998) ATPR 41-640 considered
Patrick v Cobain [1993] 1 VR 290 applied
Worcester v Smith [1951] VLR 316 considered
Ball v McIntyre (1966) 9 FLR 237 considered
King-Ansell v Police [1979] 2 NZLR 531 appliedMandla v Dowell Lee [1983] 2 AC 548 referred to
Commission for Racial Equality v Dutton [1989] 1 QB 783 referred to
Miller v Wertheim [2002] FCAFC 156 followed
Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 applied
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 cited
Versace v Monte [2002] FCA 190 cited
Irving v Penguin Books Ltd [2000] EWHC QB 115 applied
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 referred to
Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 referred to
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 referred to
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 applied
Koowarta v Bjelke-Petersen (1982) 153 CLR 168 considered
Brandy v HREOC (1994-1995) 183 CLR 295 considered
Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273 cited
Oberoi v HREOC [2001] FMCA 34 citedWatson, Blackmore, Hosking Criminal Law (NSW) Vol 2
Fleming The Law of Torts 9th Ed. 1998JEREMY JONES v OLGA SCULLY
N 154 OF 2001
HELY J
2 SEPTEMBER 2002
SYDNEY (HEARD IN LAUNCESTON AND SYDNEY)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 154 OF 2001
BETWEEN:
JEREMY JONES
APPLICANTAND:
OLGA SCULLY
RESPONDENTJUDGE:
HELY J
DATE OF ORDER:
2 SEPTEMBER 2002
WHERE MADE:
SYDNEY (HEARD IN LAUNCESTON AND SYDNEY)
THE COURT ORDERS THAT:
1It be declared that the respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by having distributed the following leaflets in letterboxes in Launceston, Tasmania and by selling or offering to sell such leaflets at a public market in Launceston being the leaflets described as:
(a)“The Inadvertent Confession of a Jew”;
(b)“The Jewish Khazar Kingdom”;
(c)“Russian Jews Control Pornography”;
(d)Untitled document appearing at page 25 of applicant’s affidavit;
(e)“The Most Debated Question of Our Time – Was There Really a Holocaust?”;
(f)Untitled document appearing at page 30 of applicant’s affidavit; and
(g)Untitled document with handwritten annotations appearing at page 35 of applicant’s affidavit.
2The respondent be restrained from repeating or continuing such conduct.
3The respondent be restrained from distributing, selling or offering to sell any leaflet or other publication which is to the same effect as any of the leaflets referred to in Order 1.
4The respondent pay the applicant’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 154 OF 2001
BETWEEN:
JEREMY JONES
APPLICANTAND:
OLGA SCULLY
RESPONDENT
JUDGE:
HELY J
DATE:
2 SEPTEMBER 2002
PLACE:
SYDNEY (HEARD IN LAUNCESTON AND SYDNEY)
REASONS FOR JUDGMENT
On 21 September 2000 the Human Rights & Equal Opportunity Commission (“the HREOC”) determined that Mrs Olga Scully had engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act (1975) (Cth) (“the RDA”) by “distributing anti-Semitic literature in letter boxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston”. The HREOC made declarations that Mrs Scully should not repeat or continue the unlawful conduct and that she should apologise for her unlawful conduct by writing a letter of apology to the complainants in the terms specified in the decision.
By application filed on 21 February 2001 Jeremy Jones instituted proceedings in the Court to enforce that determination. The proceedings were styled:
“Jeremy Jones for himself and for the members for the time being of the Committee of Management of the Executive Council of Australian Jewry”.
For reasons which I gave on 13 July 2001 (Jones v Scully (2001) 113 FCR 343) I directed that the reference in the title to the proceedings to “Members for the time being of the Committee of Management of the Executive Council of Australian Jewry” should be struck out, leaving Mr Jones as the sole applicant. I held that the proceedings were properly constituted even though Mr Jones is the sole applicant.
For the reasons which I there explained, the application falls to be determined in accordance with the provisions of s 25ZC of the RDA notwithstanding the later repeal of that section.
Section 25ZC(2) provides that if the Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under the RDA, the Court may make such orders (including a declaration of right) as it thinks fit. Section 25ZC(5) provides:
“In the proceedings, the question whether the respondent has engaged in conduct or committed an act that is unlawful under this Act is to be dealt with by the Court by way of hearing de novo, but the Court may receive as evidence any of the following:
(a)a copy of the Commission’s written reasons for the determination;
(b)a copy of any document that was before the Commission;
(c)a copy of the record (including any tape recording) of the Commission’s inquiry into the complaint.”
The applicant placed before me, on the hearing of this application:
·the reference dated 23 March 1997 from the Race Discrimination Commissioner to the HREOC for an inquiry under s 24E of the RDA, and accompanying documents.;
·the transcript of the proceedings before Commissioner Cavanough QC on 16 November 1998 in Launceston;
·the exhibits in the proceedings before Commissioner Cavanough including witness statements on behalf of Mr Jones, Dr Goldschmied, Mr Goldsteen and Mr Schlesinger; and
·the decision of Commissioner Cavanough given on 21 September 2000.
All of the persons who supplied a witness statement in the proceedings before the Commissioner were called for cross-examination in the proceedings in this Court.
Pursuant to directions which I gave prior to the hearing, the applicant filed a document styled “Particulars of Unlawful Conduct” which sets out the documents allegedly published by the respondent, the publication of which the applicant contends constituted unlawful conduct, stating the imputations on which the applicant relies to support the contention of unlawful conduct. Even though the document does not identify which imputation(s) arises from which leaflet, it nonetheless provides a useful framework for the consideration of the issues which arise in these proceedings, hence it is convenient to set it out in full:
“1.The Applicant alleges that after 13 October 1995 the respondent offered for public sale and/or placed or was responsible for placing copies of material, outlined below, in letterboxes in the Launceston area namely the material being:
(a) The Inadvertent Confession of a Jew; [Jones p 10]
(b) The Jewish Khazar Kingdom; [Jones p 19-23]
(c) Russian Jews Control Pornography; [Jones p 24](d)Most Debated Question of Our Time – Was There Really a Holocaust?; [Jones p 26-29]
(e)Untitled list of books synopses on which it is written ‘Books on sale at Hart St Markets’; [Jones p 31]
(f)Untitled excerpt which begins with the words ‘The arguments against classroom sex education can best be summarised under three heads ...’; [Jones p 32-33]
(g)Untitled excerpt on which it is written ‘Our Christian – Israelite Laws’; [Jones p 34]
(h)Untitled excerpt on which it is written in long had ‘THE WHITE CHRISTIAN NATIONS ARE THE TRUE SEED OF ISRAEL. ‘THE SYNAGOGUE OF SATIN (sic) WHO SAY THEY ARE THE JUDEAN – BUT ARE LYING FRAUDS’ ARE TRYING TO FORCE THE WHITE RACE TO MONGRELIZE. For good books come to the Hart Street Market – Sundays, 8.30 a.m. – 200 pm (SHOWGROUND)’. [Jones p 35]
[my additions]
2.The applicant claims that the aforesaid publications impute to persons who are Jewish because of that fact per se attributes being:
(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:
(i)ought be stamped out;
(ii)promotes sodomy and paedophilia;
(iii) is worse than a satanic cult;
(c)that contemporary Jewry is due for a terrible judgment because of its racial origin and the law commands all to own guns and to stamp out Judaism and, by implication, contemporary Jewry;
(d)that Jews, per se, are anti-decent living in the sense that they, by their nature control pornography both in America and Russia;
(e)that Jews, per se, 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 that Jews, per see, are fraudulent, liars, immoral, deceitful and part of a 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; and
(h)that Jews are seeking to control the world, or already have gained that control, with the intention of destroying ‘White Christian Civilisation’ and that Jews are ‘lying frauds ... trying to force the White race to mongrelize.’
3.That publications of the same kind or in or to the same effect and/or imputing the same attributes continue to be published by the Respondent.
4.That the publication and distribution of the documents referred to above and/or the publication and/or distribution of documents containing the imputation as to attributes referred to above is conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975.”
During the course of his evidence, Mr Jones said that the documents referred to in subparagraphs 1(f) and (g) of the particulars are not documents in relation to which he now makes a complaint. The additions which I have made to par 1 of the particulars in square brackets are a reference to the page in the affidavit of Mr Jones of 18 April 2001 where the leaflet in question is reproduced. There are two other leaflets which were the subject of the HREOC complaint and which were relied upon by the applicant in these proceedings. They are the untitled leaflets which appear at p 25 and p 30 of Mr Jones’ affidavit. Those leaflets were not separately listed in the affidavit apparently because of an erroneous belief that the leaflet at p 25 was part of (c) above, and the leaflet at p 30 was part of (e) above. That is the way they were described in Mr Jones’ affidavit. During the course of the proceedings the applicant accepted that the leaflet at p 25 was not connected with the leaflet at p 24, nor was the leaflet at p 30 connected with the leaflet at p 31. Each is a separate document.
The particulars omitted the leaflets at pp 11-16 (“A Lesson in Culture”) and pp 17-18 (“MFP – What are Japan’s Motives?”) of the applicant’s affidavit from the list of documents on which the applicant relies in these proceedings. Those leaflets were relied upon before the HREOC, but not in this Court.
Part IIA of the RDA
Part IIA was introduced into the RDA in consequence of the passage of the Racial Hatred Bill 1994 (Cth) (“the Racial Hatred Bill”). 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:
“Reason for doing an act
18B If:
(a) an act is done for two or more reasons: and(b)one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);
then, for the purpose of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.
Offensive behaviour because of 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 some or all of the people in the group.
(2) ...
(3)…
Exemptions
18DSection 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
(ii)a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”
It is not an offence to do an act, or agree with another person to do an act that is unlawful by reason of a provision of Part IIA: s 26.
The Racial Hatred Bill also provided for the amendment of the Crimes Act 1914 (Cth) to create criminal offences in relation to threats made to people because of their race, colour or national or ethnic origin, and in relation to threats made by a person to damage property because of those reasons, and in relation to the intentional incitement of racial hatred. As Kiefel J noted in Creek v Cairns Post Pty Ltd [2001] FCA 1007 (at [15]) these proposed offences did not survive the federal legislative process, and were not introduced into the Crimes Act.
The parties
The applicant lives in Sydney and is an active member of the Australian Jewish community. He has held various offices with the Executive Council of Australian Jewry (“the ECAJ”), and is currently its president. The ECAJ has served as the elected representative organisation of the Australian Jewish community since its formation in 1944.
The respondent was born in Russia in 1942. Her family had suffered under the Soviet regime. Soon after the respondent was born, her family fled to Germany, which was then under Nazi control, and devastated by World War II.
The evidence of Mr Sladd, the respondent’s brother, is that the journey was a hazardous one, and that the family were dependent upon the goodwill of German soldiers and the German people en route. On arrival in Germany, the family was accommodated in a displaced persons’ camp where they remained for about four years.
The respondent lives in Launceston. She is a retired school teacher. The respondent has not received any formal education in the Jewish religion, nor has she had any lessons in relation to that religion from a practising Jew.
Distribution of the leaflets
The respondent is not the author of the leaflets the subject of these proceedings. It was common ground, however, that she distributed those leaflets. Some of the leaflets bear handwritten annotations made by the respondent which were placed on the leaflets prior to their distribution. The respondent distributed the leaflets by putting them in people’s letter boxes in Launceston. The letter boxes were chosen at random. The leaflets were distributed in 1995 and 1996 whilst the respondent was a school teacher, but in her spare time.
The respondent received some complaints from people to whom the leaflets were distributed. She received some requests that she not distribute that material again. The respondent’s evidence was that “once or twice” she distributed further leaflets to persons who had requested her not to distribute them, but this occurred “by mistake”.
The respondent conducts a stall at the Hart Street Market in Launceston. Some of the leaflets were available at that stall. The respondent also sold books at this stall. The books on sale at the stall included books about Jews.
The HREOC proceedings
Mrs Scully placed written material before the HREOC but, on the day fixed for the hearing of the proceedings she withdrew, giving as her reason for so doing that she had not been given an assurance that “truth is a defence in this case”. The Commissioner took the view that as Mrs Scully had withdrawn, none of the witness statements or attachments previously filed by her should become exhibits. Notwithstanding that withdrawal, Mrs Scully was permitted to lodge written submissions with the Commission, which she did.
Commissioner Cavanough made the following findings of fact:
·Jews in Australia form a group with a common ethnic origin for the purposes of Part IIA of the RDA (this was not in dispute before the HREOC);
·the respondent placed or was responsible for placing copies of the leaflets in letter boxes in the Launceston area after 13 October 1995 (the date of commencement of Part IIA of RDA) and distributed or sold the leaflets, or some of them, at the Hart Street Market in Launceston;
·the respondent regularly and frequently distributed material of the same general kind as the leaflets between 13 October 1995 and the time of lodgement of the complaint on 7 August 1996, and that she continues to do so;
·the leaflets have a consistent theme being the vilification of Jews as such and the imputations referred to in par 2 of the “Particulars of Unlawful Conduct” referred to above are a fair characterisation of the imputations in the leaflets;
·the material distributed by the respondent had caused a great deal of distress to Jewish and other recipients;
·the respondent's activities are properly described as a campaign of disseminating anti-Jewish propaganda;
·the respondent's contention that she makes a clear distinction between “Talmudic/Zionist/Communist Jews” and “good” Jews is rejected. For the most part, the leaflets make no such distinction. They attack Jews generally;
·in any event, the so-called distinction would not lessen the offensiveness, to Jews particularly, 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.
Having made those findings, the Commissioner said:
“… 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 Commissioner made the following specific findings in relation to ss 18C and 18D of the RDA:
· the respondent’s distribution of the material represents an act done “otherwise than in private” within the meaning of s 18C(1);
· taking into account the imputations against Jews conveyed by the leaflets, and their inflammatory tone, it is reasonably likely that the respondent’s distribution of the material would, in all the circumstances, offend, insult, humiliate and intimidate Jewish persons who received the material or who became aware of the material, especially those living in or near Launceston, and accordingly s 18C(1)(a) was satisfied;
· that the authors of the documents (including the respondent, to the extent of her annotations and highlighting on the documents) disparaged the persons referred to in the documents because those persons were Jewish. The Jewishness of the persons vilified is not a mere “background factor”. It brought about the vilification. By distributing, selling and offering to sell the documents, Mrs Scully became responsible for their contents, and accordingly became a party to the disparaging of particular persons and groups of persons because they are Jews. Accordingly, the respondent’s acts were done “because of the … ethnic origin of the person or some or all of the people in the group” within the meaning of s 18C(1)(b);
· that the leaflets do not bear on their face the appearance of reasonableness, good faith or 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;
· there is nothing which amounts to “evidence before the Commission” that any part of the respondent’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: see s 25W of the RDA;
· in any event, the burden of proof under s 18D is on the respondent, and Mrs Scully had not established that her 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 s 18D(a), (b) or (c);
· that a racial vilifier could not 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 believed 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;
· that nothing in the material lodged by the respondent persuaded the Commissioner that the respondent’s actions had been carried out “reasonably”;
· that none of the leaflets in question was an “artistic work” within the meaning of s 18D(a);
· that none of the respondent’s activities were carried out for any “genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest” within the meaning of s 18D(b);
· that leaflets of the kind in question, even if they were “fair and accurate”, are not “reports” within the meaning of s 18D(c)(i); and
· it was doubtful that any of the publications represents a “comment” within the meaning of s 18D(c)(ii);
In summary, the Commissioner found that the respondent had breached s 18C of the RDA, and that none of the exemptions in s 18D were made out.
The proceedings in this Court
As noted above, s 25ZC(5) provides that the question whether the respondent has engaged in unlawful conduct under the RDA is to be dealt with by way of hearing de novo, subject to the Court’s entitlement to receive specified types of documents as evidence. The nature of a hearing de novo was described by Dawson J in Harris v Caladine (1990-1991) 172 CLR 84, 124 as follows:
“An order made by a Registrar is reviewable by way of a hearing de novo. That means that the court reviewing the order begins afresh and exercises for itself any discretion exercised below by the Registrar. The parties commence the application again, subject to any restrictions in the rules upon the calling of evidence or provisions relating to the use before the court of evidence called before the Registrar. A hearing de novo involves the exercise of the original jurisdiction and ‘the informant or complainant starts again and has to make out his case and call his witnesses’”. (citations omitted)
It is therefore necessary for me to have regard to the evidence which was adduced before the HREOC, as well as that introduced for the first time in this Court.
Applicant’s evidence before the HREOC
In a witness statement filed before the HREOC dated 6 May 1998, the applicant gave evidence that he receives “on a regular basis telephone calls, letters and electronic communication from individuals complaining of the anti-Jewish propaganda distributed in Tasmania by the respondent”. He said that recipients of such material communicated to him that they found the material “offensive, insulting and distressing”. The material was received by both Jewish and non-Jewish people, and was unsolicited.
Annexed to his witness statement are copies of leaflets received by individuals in their homes in Launceston, which were passed on to the applicant. Some of these leaflets are the subject of the present proceedings, and are discussed below. The applicant describes the leaflets as “unambiguously anti-Jewish and stridently anti-Semitic” and states they contain “untrue and offensive comments”. The applicant also states that the ECAJ has received a number of complaints regarding the receipt of similar material since the date the complaint was lodged by him with the HREOC. He further stated that it is his contention that the material “clearly seeks to insult, offend and create ill will towards individuals because they are Jewish”.
In oral evidence given before the HREOC, Mr Jones said that the material taken together evidenced a theme of a Jewish conspiracy, and sought to portray Jews as having dishonestly concocted a conspiracy. The applicant said the material “basically identifies any anti-social behaviour with something to do with Jews”.
Dr Felix Goldschmied also gave evidence for the applicant before the HREOC. Dr Goldschmied is an orthodontist who conducts his practice in Launceston. In a witness statement sworn on 3 May 1998 and filed before the HREOC, Dr Goldschmied said that he had received “unsolicited offensive and anti-Semitic material” in his letterbox. As a survivor of the Holocaust, he said he was “deeply offended and hurt by the continued distribution of such prejudiced anti-Semitic material”.
Dr Goldschmied also gave oral evidence before the HREOC that some of his staff (who were not Jewish) complained to him about material they had received in their letterboxes. He said that his staff told him that they found the material offensive. Dr Goldschmied referred in particular to a document entitled “The Jewish Khazar Kingdom”, which he says he received on 17 February 1998. He said he could not recall the dates he received other documents, but said he received such documents on an “intermittent basis” within the three years leading up to November 1998. Such material was said to be received by him once every four to six months. In his oral evidence, Dr Goldschmied said that he found the material “offensive and hurtful” and said he perceived an “anti-Semitic, anti-Jewish” sentiment in the material.
Mr George Hans Goldsteen also gave evidence for the applicant before the HREOC. In a witness statement sworn on 3 May 1998, Mr Goldsteen stated that he has been a member of the Jewish community in Launceston since 1985, and from 1986-1992 held a variety of elected positions on the Board of Management of the Launceston Hebrew Congregation. He said he first became aware of the activities of the respondent when he received one of her pamphlets in his letterbox. He subsequently started to receive telephone calls from non-Jewish Launceston residents who had also received material from the respondent in their letterboxes. Mr Goldsteen said that these people expressed their disgust about the material, and forwarded the material on to him. He said that the material first arrived in his letterbox during 1991.
Mr Goldsteen said that the respondent’s material mostly consisted of pamphlets, but that the respondent also “regularly dropped audio tapes” in peoples’ letterboxes. He said he also received some video tapes, and managed to obtain some booklets that were purchased from the respondent’s stall at the Hart Street market. Mr Goldsteen said that the majority of this material was “grossly anti-Semitic”. According to Mr Goldsteen, the respondent’s activities are aimed at discrediting the Jewish people and making derogatory generalisations about them. In his oral evidence, Mr Goldsteen said that the material distributed by the respondent has a detrimental effect on him, and is inciting hatred and dislike of Jewish people. He said he was “very upset, insulted and disgusted” and often became depressed by the respondent’s material.
Mr Thomas Bernard Schlesinger also gave evidence for the applicant before the HREOC. In a witness statement sworn on 6 May 1998, he said that he had been a businessman in Tasmania for decades and is well-known throughout the state of Tasmania. He said that among the materials that the respondent has sold and distributed are “many allegations that Jewry deals in an underhand manner with other people and is not to be trusted”. He found the material as being likely to affect his standing both as a businessman and as a private individual, and as an office bearer of the Jewish community in Tasmania. He further stated that he found it “most offensive” that the material distributed by the respondent reproduced misleading information about the Holocaust, in particular concerning the number of Jews who died in the Holocaust.
In his oral evidence before the HREOC, Mr Schlesinger said he had not received material distributed by the respondent personally, but had seen such material when it was passed on to him by friends in Launceston. He also said that he had a conversation with the respondent, who admitted that she was the person who was distributing the material. Mr Schlesinger said that he found the material to be “disgusting”.
Much of the applicant’s evidence before the HREOC suffers from the deficiency that it lacks particularity. It does not identify the specific leaflets alleged to have been distributed by the respondent, nor does it attempt to explain why particular passages of those leaflets are said to be offensive to the applicant or to others. Instead, the applicant and the witnesses called by the applicant gave evidence as to why the respondent’s material as a whole was offensive. Neither the applicant, nor the witnesses called on the applicant’s behalf, gave any reasons before the HREOC for coming to the subjective conclusions which they expressed. This deficiency was to some extent rectified by the evidence given by the applicant before me. I deal with this evidence below.
The applicant’s evidence before the Court
In oral evidence before the Court, the applicant said that he found the respondent’s material deeply offensive, hurtful, and a challenge to his right to participate in Australian society as a full and equal citizen. The applicant said that he believed that the material was designed to inflame the opinions of other Australians against him and against other Jewish Australians. He said that other people who had seen the material had been hurt, offended and upset by it. When asked in cross-examination for his definition of the term “anti-Semitism”, the applicant replied that he believed the term referred to the behaviour of people who were seeking to diminish the right of Jewish people to participate fully and equally in society. As to the leaflets generally, the applicant said that in his opinion, the leaflets say that “if there is something with which [the respondent] finds disagreeable, there is going to be a Jewish person behind it”.
Mr Schlesinger was also called to give oral evidence. Mr Schlesinger said that the comments in his witness statement as to the offensiveness of the materials distributed by the respondent related in particular to the documents that are the subject of these proceedings.
Dr Goldschmied also gave evidence. Although he could not recall having seen the document entitled “Was There Really a Holocaust?”, Dr Goldschmied gave evidence that he found the other documents that are the subject of these proceedings offensive and anti-Semitic. Dr Goldschmied also tendered a further document which he said named him personally, and was written by the respondent. The document, which became Exhibit 1 in the proceedings, reproduces a newspaper article written by Dr Goldschmied in The Examiner newspaper and the respondent’s handwritten response to that newspaper article. The applicant did not seek to rely on Exhibit 1 in the course of submissions or to explain its significance.
Dr Goldschmied gave oral evidence that the material offended him because he found it anti-Semitic, and said that the dissemination of the material is hurtful to him especially given his background as a Jewish person who escaped Europe in World War II. Without going to particular leaflets, Dr Goldschmied said that he found the “tone” of all of the respondent’s publications and unsolicited material offensive and described the material as “anti-Semitic, vilifying, hate material”.
Mr Goldsteen also gave oral evidence. Without going into any detail about the material distributed by the respondent, Mr Goldsteen simply relied on his witness statement sworn on 3 May 1998 (referred to above). Many of the questions asked of Mr Goldsteen in cross-examination were rejected by me as they were completely irrelevant to the proceedings. Of the questions that were allowed and were answered, very few had relevance to the present complaint and the content of the evidence given does not need to be reproduced here.
The respondent’s evidence
The respondent neither gave, nor called evidence before the HREOC as she withdrew from the proceedings in the manner described earlier in these reasons.
The respondent filed an affidavit in these proceedings sworn on 21 May 2001. The affidavit is some 111 pages in length. The whole of the affidavit was objected to by counsel for the applicant. Little, if any, attempt is made in the affidavit to establish the relevance or admissibility of much of the material contained in it, or even in many cases, what the material is, or where it came from. To take one example, p 5 appears to be a copy of, or a compilation of, one or more unidentified documents containing an assertion that “JEWS ARE THE WORST MASS MURDERERS THE WORLD HAS EVEN SEEN”. Clearly that is not a matter of which the respondent is able to give evidence. Pages 4–111 consist of a voluminous amount of seemingly unconnected material. It is almost impossible to summarise the material in or annexed to the affidavit, and I will not attempt to do so here.
There are sections of the affidavit which might be of some relevance. One section (p 10) is headed “My defence” and other sections commencing at pp 13, 30, 46, 65, 76, 97 and 103, address the particular leaflets the subject of these proceedings, although even these sections of the affidavit suffer from the deficiencies referred to earlier, and are argumentative rather than probative in character.
Bearing in mind that material even if otherwise inadmissible, might be admissible in relation to the respondent’s defences under s 18D of the RDA, I formed the view that the fairest course was to receive the whole of the affidavit over the applicant’s objection, and to indicate as part of my final decision what if any reliance I placed upon it.
The respondent was cross-examined as to her views of Jewish people. When asked for her definition of “Jew”, the respondent said that the term includes a range of people who do not necessarily adhere to Judaism as a religion. She said that the term included Talmudic Jews, and defined “Talmudic Jew” as a person who was raised under Talmudic traditions. As to the particular attributes she ascribed to Jewish people, the respondent gave evidence that:
·Jews are the descendents of Esau and the Edomites, and are accordingly due for Biblical punishment;
·they are anti-democratic, anti-freedom, and pro-tyranny;
·Jews control pornography in both the United States and Russia and do so because the Talmud instructs them to;
·Jews and world Jewry are seeking to control the world and have already gained large parts of it;
·Jews have the intent of destroying white Christian civilisation;
·Jews in powerful positions are lying frauds trying to force the white race to mongrelise;
·Jews as a group have perpetrated the myth of the Holocaust and in so doing are acting fraudulently; and are lying, acting immorally, and are deceitful;
·a “significant part” of the Jewish leadership is part of a conspiracy to defraud the world; and
·Jews take on Christianity in order to deceive.
Further, in the respondent’s opinion, the Bolshevik Revolution in Russia was a conspiracy of world Jewry, and she believes that Jews as a group perpetrated the purges in the Soviet Union, and that the “vile deeds of Communism” perpetrated on the Russian people were done by Jews. The respondent also gave evidence that in her opinion, World War II was fought by the Allies at the behest of Jews who controlled western civilisation, and that Jews were the only beneficiaries of World War II.
The respondent also gave evidence that she believed that the philosophy and teaching and practices of Jews is based on the Talmud, and that those philosophies, teachings and practices ought to be stamped out; promote paedophilia; and are worse than a Satanic cult. She admitted, however, to having no formal education in the Jewish religion, that she was not an expert in the Talmud, and that she had not spoken to any experts.
As to her views on Jews and the attributes she ascribed to Jews listed above, the respondent said that she confined some of these views only to Jews in “powerful positions” or to the “Jewish leadership” and did not ascribe all of those attributes to all Jews or to Jews as a group. She said that the context of the leaflets always limits the references to certain people. The respondent said on a number of occasions in cross-examination that she never targeted Jews as a whole, but only certain Jews. However, to the extent that these attributes were restricted only to Jews in powerful positions or the Jewish leadership, it was difficult to discern from her answers which attributes were so confined, and many of the attributes seemed to have been given by the respondent to Jews as a group. For example, on p 18 of Mrs Scully’s affidavit it is “Jews” and “World Jewry” who are said to be responsible for the matters there complained of.
The respondent also called four witness to give evidence on her behalf. Each witness provided a statutory declaration or a witness statement which were only provided to the Court and to the applicant on the second day of the hearing. This occurred despite directions given by me on 12 October 2001 that any further affidavits on which the respondent proposed to rely were to be filed by 30 November 2001. None of the respondent’s witness statements relate to any of the particular leaflets distributed by the respondent.
The respondent sought to expand on the contents of the witness statements in her examination-in-chief. In general, each examination-in-chief consisted of the respondent asking each of her witnesses open-ended questions relating to general themes which were of the respondent’s choosing. It is not easy to discern, let alone summarise, what the respondent was seeking to obtain from each of her witnesses. The applicant’s counsel objected to the statutory declarations provided by the respondent’s witnesses and to many of the questions asked by the respondent of her witnesses, largely on two bases; first, that the evidence was not probative of any issue before the Court; and secondly, on the basis that the witnesses were not competent to give the evidence that was adduced in their witness statements or that was sought to be adduced in oral evidence.
The first witness called by the respondent was Mr Kenneth James McCaffery. Mr McCaffery is a retired pensioner and a resident of Tasmania who describes himself as being of “partial Jewish descent”. In a statutory declaration dated 29 April 2002, Mr McCaffery states that the respondent has been known to him since 1996. He said he first came across the respondent at the time the respondent had a general vendor stall at the “Launceston Sunday Markets”. Mr McCaffery said he was attracted to the respondent’s literature, which he describes as covering general topics, including finance reform; inoculation of children; Jewish power in banking circles and politics in Australia and overseas; the Holocaust; and Biblical archaeology. He states that he has also had several conversations with the respondent and has checked on her statements and their historical veracity and has “always found them to be truthful and verifiable in all degrees, particularly her statements concerning the ‘Holocaust’, which … has been seriously and dangerously overblown by a Jewish controlled media”.
Mr McCaffery also gave oral evidence at the hearing. Many of the questions asked of Mr McCaffery by the respondent were objected to and rejected by me on the basis of the competence of Mr McCaffery to answer the questions that he was asked, as well as on the grounds of relevance. Much of the admissible evidence given by Mr McCaffery related to his opinions concerning the truth of the material distributed by the respondent. Mr McCaffery said he believed the material to be “honest and absolute history”; that the respondent does not just concentrate on criticising Jews and Jewish policy, but also disseminates information relating to other topics, including “inoculation of young children, anti-homosexual activities and things like that”; and that the respondent does not specifically target Jews. Mr McCaffery also gave evidence that the respondent “seems to be very well liked in the community despite all this propaganda telling … what a terrible person” she is, and seems to have “tremendous friends everywhere”.
Mr Michael Sladd also gave evidence for the respondent at the hearing. Mr Sladd is a resident of Hobart who describes himself as a retired scenic artist. In a witness statement dated 30 April 2002, Mr Sladd states that he was born in Russia in 1935 but fled to Germany in 1944 and resided in a “Displaced Persons” camp from 1945 to 1949. He said that the camp also housed former inmates of concentration camps, including Auschwitz. Mr Sladd said that “I never heard anything from them about gas chambers or mass executions of any kind”. He said that he came to Australia in 1949 and continued his close contact with many camp survivors, but in the early 1960s began “hearing stories about extermination of Jews by gassing in gas chambers and it puzzled me very much”. Mr Sladd further stated that he believed that the respondent “is doing a great service to the community in exposing lies which have been recorded as history”.
In his oral evidence, it was revealed that Mr Sladd is in fact the respondent’s brother. He said that some members of his family were killed by Russian revolutionaries who he believed were Jewish. He also said that he believed that German concentration camps were not exclusively occupied by Jews, but that Jews were only a small minority. Mr Sladd was asked many questions by the respondent in examination-in-chief, but again many of these questions were rejected by me on the basis that the questions asked were not within Mr Sladd’s personal knowledge, or were not relevant to the proceedings.
Mr Denis Wilfred Collins was also called to give evidence. Mr Collins is a resident of Launceston and is semi-retired. In a statutory declaration sworn on 29 April 2002, Mr Collins states that he is a former Assistant Principal of Alice Springs High School and was a member of the Legislative Assembly of the Northern Territory from 1980-1994. Mr Collins describes himself as a student of history, “particularly Biblical history, also Biblical prophecy with a particular interest in what has happened to the Israelite peoples”. He said that he became very keen to understand the term “anti-Semitic” when he was accused by an ABC journalist of being anti-Semitic, and details some of the studies that he has done into the term and into the history of the “Israelite people”.
Many of the questions asked of Mr Collins by the respondent were objected to by the applicant’s counsel and rejected by me on the grounds that they were irrelevant, or that Mr Collins was not competent to answer the questions. As to the admissible evidence given by Mr Collins, he said that he had not been offended by the literature that the respondent has distributed. He also said that his view of the respondent is that “she is one of the bravest people that I have ever met. She has the courage of her convictions to spread information. She is a watchman of Israel. She is spreading what I believe most assuredly is the truth and whether people accept it or reject it, that is totally their right but I have the highest regard and I believe she is doing a great service to the freedom of speech and the God given rights of the people of this country”.
The last person called to give evidence for the respondent was Mr Leon Philip Gregor. In a statutory declaration sworn on 29 April 2002, Mr Gregor describes himself as a veteran pensioner. He was a soldier in the Australian Regular Army from 1961-1967, and worked in the construction industry for approximately 20 years and as a taxi driver for some 9-10 years before he retired in May 1999. He states that he has read a great deal of literature, including material which is the subject of the present proceedings, “which reveal and trace the sources to the present day maladies particularly endured in the western nations”. He says he believes that the respondent acts with “high moral purpose” and without any racist intent.
Again, many of the questions that were asked of Mr Gregor by the respondent were objected to and rejected on the grounds of relevance, or because Mr Gregor was not competent to answer the questions. When asked of his opinion of the respondent, Mr Gregor replied that it was his conviction that what she was doing “is a proper duty and function under the … Christian law.”
Videos tendered by the respondent
The respondent also tendered in evidence a number of videos, being:
· “David Cole interviews Franciszek Piper”;
· “Holocaust Revisionism for Beginners”;
· “Photographic Evidence”;
· “Judea declares war on Germany”;
· “Eisenhower’s Death Camps”; and
· “The Other Israel”.
The respondent said that she tendered these videos because they formed part of the basis upon which her views were formed, and which led to the leaflets being published. In cross-examination, the respondent said that the videos were only a small portion of the wide range of materials that she had upon which she formed her opinions, but given that some of the videos postdate 1996, it was possible that she came to possess some of the videos after the leaflets were distributed. It seems as though the respondent also sought to tender the videos on the basis that the people interviewed in the videos were experts in their particular field, and that their evidence was therefore expert evidence.
With the consent of both parties, the case was conducted on the basis that the admissibility of these videos would be determined as part of my final decision, rather than as they were tendered. It was particularly necessary to adopt this course because of the duration of the videos and the stage of the proceedings at which they were tendered. I was then sitting in Launceston to hear the evidence of Tasmanian witnesses. I have now viewed each video. To the extent that it is possible, I have attempted to summarise their contents below.
(a) “David Cole interviews Dr Franciszek Piper”
This video, narrated by Mr David Cole, is concerned with the labour camps maintained by the Germans in World War II in which Jews and other enemies of the Third Reich were interned. Mr Cole tells us that the purpose of the video is to raise for debate the issue “how do we know if the Holocaust happened?”. For most of the video, which is set at the Auschwitz Concentration Camp, Mr Cole takes viewers on a “guided tour” of the camp, and puts forward a number of assertions, the gist of which is that the proof presented in support of the Holocaust has an innocent explanation, namely that the camps were labour camps (and not extermination centres) and that many of the inmates died from malnutrition and disease particularly when conditions in Germany broke down towards the end of the War. The video also consists of a study of the gas chamber and the crematorium at Auschwitz by Mr Cole. This study is based upon the proposition that the gas chamber was not a gas chamber at all, but was rather a building which was reconstructed after the War and made to look like it was a gas chamber. The study also includes a number of interviews between Mr Cole and tour guides at Auschwitz, including an interview between Mr Cole and Dr Piper, who is described as the Head Curator of the Auschwitz complex. The respondent alleges that the statements made by Dr Piper in his interview with Mr Cole confirm that there was never a gas chamber at all at Auschwitz during World War II.
This video seems to have been made in 1992. There is almost nothing in the video apart from the films of Auschwitz and plans of the camp, and assertions made by Mr Cole coupled with statements made by Dr Piper which Cole attempts to refute. It is clear that very selective parts of the interview have been used. At no stage is there any direct enquiry of Dr Piper designed to provoke an answer to the question as to whether or not the Holocaust occurred. The respondent said that she relied on the fact that Dr Piper was the Head Curator of the Auschwitz complex as a matter upon which she relied as constituting his expertise, and also as the basis upon which she sought to tender this video as admissible evidence.
The applicant objected to this video on a number of bases; first, on the basis that it did not go to issues in the proceedings; secondly, that there was no evidence that the persons interviewed or doing the interviewing are in any sense persons who have the competence to make the comments they make; third, none of those persons were called as witnesses in the proceedings; and fourth, that the video does not prove the premise upon which it is said to be relevant, which is that Jews are party to a world wide conspiracy which is the hoax of the Holocaust.
(b) “Holocaust Revisionism for Beginners”
This video is narrated by Mr David McCalden, who describes himself as a Holocaust revisionist. It consists of three parts. In the first part, Mr McCalden attempts to present a number of propositions and historical “facts” which he alleges prove that the concentration camps in Germany were not places of extermination, but were rather labour camps. Mr McCalden also takes viewers on a tour of Auschwitz, where he said he went in 1987. Aspects of the gas chamber are filmed and there is a commentary by Mr McCalden to the effect that the physical construction and features of the building are inconsistent with its use as a gas chamber.
The second part of the tape is headed “Free Speech”. It presents a number of interviews by Mr McCalden with a Mr Bradley Smith, who is apparently an author and bookseller at a bookstore in Hollywood Boulevard. The theme of the interview is that whilst Christians are not opposed to the discussion of revisionist scholarship, Jewish groups and individual Jews are. Mr Smith says that Jewish people suppress the expression of revisionist thought and cannot understand why anyone would question the Holocaust.
The third part of the video consists of Mr McCalden being filmed at a number of former concentration camps in what is now Poland. These camps include Majdanek, Belzec, Treblinka and Sobibor. Mr McCalden asserts that much of the evidence given by Holocaust historians in relation to these and other camps, and the claims of Holocaust survivors, are inconsistent with the physical evidence that Mr McCalden puts forward as the truth. The respondent has stated that this video, like the previous video, disproves the existence of homicidal gas chambers in wartime Germany and Eastern Europe.
(c) “Photographic evidence”
This video takes the form of a discussion between a Mr Ernst Zundl and a Mr John Ball, who is said to be a geologist and air photograph interpreter. Mr Zundl is from an organisation known as “Voice of Freedom”. Mr Ball tells Mr Zundl that his examination of aerial photographs taken of the Auschwitz and Treblinka camps in 1944 show that the photos have been altered in order to make the camps look like extermination camps. Mr Ball also discusses an area known as Babi Yar ravine, which was said to be an exhumation and cremation site during World War II. Mr Ball asserts that his photographic study of the ravine proves that there is no evidence of mass cremations taking place at this site during World War II. Again, the respondent states that this video disproves the existence of homicidal gas chambers being used by the Germans in World War II. She also said that she relied on Mr Ball’s expertise in photographic analysis as a basis for the admissibility of the video.
(d) “Judea Declares War on Germany”
This is a film presented by Dr Toben of the “Adelaide Institute”. Its general theme is that stories told of life in the Nazi death camps in World War II have been proved to be totally false. Dr Toben takes viewers on a tour of Auschwitz which he conducted in 1997. He tells us that the evidence that he examined at Auschwitz proves that the Holocaust was a hoax. Dr Toben then conducts a number of interviews with various persons including an unnamed cremation expert, and conducts a number of “experiments”, which interviews and experiments are said to disprove many of the claims made by Holocaust historians and survivors.
(e) “Eisenhower’s Death Camps”
This video is a BBC documentary concerned with the internment camps apparently built by the US Army to house German prisoners during and after World War II. The respondent stated that this video shows pictorial evidence of the death camps established by US President Eisenhower in which mass deaths occurred due to deliberate starvation and neglect.
(f) “The Other Israel”
This video is narrated by a Mr Ted Pike, who introduces the video by saying that he proposes to examine the causes of conflict between Arabs and Jews. In order to resolve that conflict, Mr Pike has recourse to and comments on Jewish scriptures, including the Talmud, and the Jewish Encyclopaedia. Mr Pike selects certain parts of the Talmud and the Jewish Encyclopaedia in order to demonstrate that the teachings of the Jews permit, among other things, the seduction and marriage of three year old girls and sexual practices by adults on young boys. The Talmud is also said by Mr Pike to teach that Gentiles are classed as barbarians and are forever beneath the Jew. The video then goes on to give what is described as an historical account of Jewish involvement in (among other things), the French Revolution in 1789, the Russian Revolution in 1917, the formation of Communism in Russia in 1919, and the involvement of Jews in various movements and organisations in America. Mr Pike concludes the video by saying that his study of the Talmud and the Jewish Encyclopaedia shows that there is a tendency towards Jewish domination of society throughout history.
All of these videos are inadmissible as proof of the underlying matters referred to in them. Insofar as they have relevance to the proceedings, they consist of assertions by people who were not called to give evidence in the proceedings, and whose alleged expertise has not been established by the respondent. What is said by persons in the videos is hearsay. Further, in relation to the first video, the respondent stated in cross-examination that she was aware of Dr Piper’s allegation that the video misrepresented what it is he said to Mr Cole. The respondent also said that she was aware that Mr Cole recanted the position that he put in relation to Auschwitz in the video. It is clear that many of the views put forward in the videos are polemical in character, and that the presenters are attempting to push a particular point of view from a very one-sided and unbalanced perspective. Apart from establishing that some people talk about the subject matter comprising the videos, and express views similar to views expressed in some of the leaflets, none of the videos can be received as proof of any underlying matters that are asserted in them. Although the Court is not bound by technicalities in proceedings of this type, (see s 46PR of the Human Rights & Equal Opportunity Commission Act 1986 (Cth)) there is nothing that the respondent has put to me in relation to the videos that persuades me that I can or should receive them as proof of any of the underlying matters which are asserted in them.
By a document dated 26 June 2002 and filed with the Court on 1 July 2002 the respondent put submissions in relation to a list of 15 videos. The 6 videos referred to above form part of that list. The other videos were not tendered by Mrs Scully, and I have not taken into account the submissions she has made in relation to them.
Newspaper extract by Winston Churchill
The respondent tendered a photocopy of an article entitled “Zionism versus Bolshevism – Struggle for the Soul of the Jewish People” written by Winston Churchill. She stated that this article was photocopied from the “Illustrated Sunday Herald” of 8 February 1920. This article became Exhibit B in the proceedings. The article is said by the respondent to document the “Jewish creation of Bolshevism by a writer who can hardly be accused of being a ‘Nazi’”. The respondent has asked me to receive this article in evidence as a document upon which she relied in forming the opinions she expresses in the material she distributed. It was received by me on that basis. The applicant objected to the article’s tender if it was sought to establish the truth of its contents. I agree with the applicant in this respect. Simply because an article has been written on a particular topic by a particular person, even by Winston Churchill, does not establish the truth of what is stated therein.
Books tendered by the respondent
On p 3 of the respondent’s affidavit, under the heading “Further Legal Justification”, the following appears:
“The Constitution of Australia – The implied right to freedom of speech
(Lange v A.B.C.)The Ultimate Authority - “Ye shall know the Truth and the Truth shall set you free” Our Lord Jesus Christ.
Sir Ronald Wilson – “If truth be our measure we have nothing to fear from the Human Rights Commission”.
PM John Howard - “There is no human right to lie or mislead to to (sic) be ignorant, whether deliberately or by omission to find out the facts”.
Article 19 of the Universal Declaration of Human Rights – Everyone has the
right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media regardless of frontiers.
IF TRUTH IS OUTLAWED THEN LIES WILL CONTINUE TO
FLOURISH”
(bold and underlining in original)
I have already dealt with her purported argument concerning the Constitution. In addition, her “justifications” based on what is said in the Bible, and what has been said by Sir Ronald Wilson and John Howard, do not establish that she is entitled to any exemptions from the operation of s 18C. The same can be said for her purported reliance on Article 19 of the Universal Declaration of Human Rights. A Convention or treaty ratified by Australia does not become part of Australian law unless its provisions have been validly incorporated into municipal law by statute. Although it is now settled that ratification in itself may provide an adequate foundation for a legitimate expectation that administrative decision-makers will act conformably with the Convention or treaty (see Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273), the present case is not concerned with administrative decision-making. Rather, it is concerned with the application of a valid Commonwealth statute to certain actions of the respondent that are said to contravene that statute. In those circumstances, it is difficult to see how the Universal Declaration of Human Rights is relevant to these proceedings.
Relief
The applicant seeks the following orders:
1.A declaration that the respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by having distributed the following literature in letterboxes in Launceston, Tasmania and by selling or offering to sell such literature at a public market in Launceston being the literature described as:
(a)“The Inadvertent Confession of a Jew”;
(b)“The Jewish Khazar Kingdom”;
(c)“Russian Jews Control Pornography”;
(d)Untitled document appearing at page 25 of applicant’s affidavit;
(e)“The Most Debated Question of Our Time – Was There Really a Holocaust?”;
(f)Untitled document appearing at page 30 of applicant’s affidavit;
(g)Untitled list of book synopses; and
(h)Untitled document with handwritten annotations appearing at page 35 of applicant’s affidavit.
2.An order that the respondent be restrained from repeating or continuing such conduct and the publication or distribution of the said material in or to the same effect.
3.An order that the respondent forthwith deliver to the applicant, Jeremy Jones, a written statement of apology, signed by the Respondent, in the following terms:
“I, Mrs Olga Scully, do hereby unreservedly apologise to you and to the Hobart Hebrew Congregation for my conduct in distribution 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)”.
4.An order that the respondent pay the applicant’s costs.
5.Such further or other orders as the Court may deem appropriate.
In relation to the proposed orders, the applicant submits:
·the Court is empowered to make orders (Human Rights and Equal Opportunities Commission Act 1986 (Cth) s 46PO(4) as amended) requiring a respondent to perform “any reasonable act or course of conduct to redress any loss or damage suffered by an applicant”. State legislation makes specific reference to the publication of an apology (see for example, Anti Discrimination Act (NSW) s 113(1)(b)(iiia));
·further, sections 22 and 23 of the Federal Court of Australia Act 1976 (Cth) grant power to the Court to make any orders which would resolve the issues between the parties. If an apology is not appropriate because there is no “genuine contrition” (to take from the area of contempt) then the Court clearly does have the power to order the publication of a retraction in the same or similar terms; and
·if neither a retraction nor apology were available then the only appropriate order (other than the declaration and injunction) would be damages, which would need to be compensatory but could include aggravated (as distinct from exemplary) damages.
Apology and retraction
During the course of submissions I suggested to the applicant’s counsel that, prima facie, the idea of ordering someone to make an apology is a contradiction in terms. Mr Rothman accepted this. Although an apology has been ordered in proceedings of this type in the past (see, for example, Oberoi v HREOC [2001] FMCA 34), I do not think that an order that the respondent publish an apology is appropriate in these proceedings. Nor do I consider that ordering the publication of a retraction is appropriate. In my opinion, a retraction is only appropriate where it has been established by an applicant that what has been published or disseminated by a respondent is false. The present proceedings were not concerned with the truth or falsity of what was distributed by the respondent; rather, it was concerned with whether her leaflets were reasonably likely to offend, insult, humiliate or intimidate Jews in Australia. Although I appreciate that the truth or falsity of what is contended in the respondent’s leaflets is relevant to this question, as I have explained above at [104] the fact that false assertions are made in a leaflet does not of itself establish a contravention of s 18C. In addition, the applicant’s case was that it was the imputations that arose from the leaflets that were said to cause the requisite offence rather than the leaflets themselves. In those circumstances, it has not been necessary for me to determine whether what is said in the respondent’s leaflets is in fact true or false. In those circumstances, a retraction is not appropriate.
Damages
The applicant has not specified the loss that he is said to have suffered as a result of the publication and dissemination of the leaflets, nor has he provided me with a quantification of any such loss. I do not consider that damages would be either an adequate or an appropriate remedy in these proceedings.
Orders
I accordingly make the following orders:
1.It be declared that the respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by having distributed the following leaflets in letterboxes in Launceston, Tasmania and by selling or offering to sell such leaflets at a public market in Launceston being the leaflets described as:
(a)“The Inadvertent Confession of a Jew”;
(b)“The Jewish Khazar Kingdom”;
(c)“Russian Jews Control Pornography”;
(d)Untitled document appearing at page 25 of applicant’s affidavit;
(e)“The Most Debated Question of Our Time – Was There Really a Holocaust?”;
(f)Untitled document appearing at page 30 of applicant’s affidavit; and
(g)Untitled document with handwritten annotations appearing at page 35 of applicant’s affidavit.
2.The respondent be restrained from repeating or continuing such conduct.
3.The respondent be restrained from distributing, selling or offering to sell any leaflet or other publication which is to the same effect as any of the leaflets referred to in Order 1.
4.The respondent pay the applicant’s costs.
I certify that the preceding two hundred and forty-seven (247) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate:
Dated: 2 September 2002
Counsel for the Applicant: Mr S Rothman SC Solicitor for the Applicant: Geoffrey Edwards & Co The respondent appeared in person Date of Hearing: 29, 30 April, 1, 2 May 2002 and 11, 12, 13 June 2002 Date of Judgment: 2 September 2002
69
4
0