Jones v Scully

Case [2002] FCA 1080


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 applied

ACCC 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 applied

Mandla 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…

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Details
AGLC
Jones v Scully [2002] FCA 1080
Case
[2002] FCA 1080
Decision Date

CaseChat Overview and Summary

In the case of Jones v Scully, the applicant, Mr. Jones, brought a complaint before the Human Rights and Equal Opportunity Commission (HREOC) and subsequently before the Federal Court of Australia, alleging that the respondent, Mr. Scully, had engaged in racial discrimination by distributing anti-Semitic leaflets in Launceston, Tasmania. The leaflets in question contained content that Mr. Jones and other recipients found offensive and insulting. The primary legal issue before the court was whether Mr. Scully's actions constituted unlawful conduct under Part IIA of the Racial Discrimination Act 1975 (Cth), specifically by distributing the leaflets to both Jewish and non-Jewish individuals.

The court examined the content of the leaflets, which included themes of Jewish conspiracy and portrayed Jews in a negative light, and considered the impact of such material on the recipients. The applicant presented evidence that the distribution of these leaflets caused distress and offense to the recipients, aligning with the definition of racial discrimination under the Act. The court also noted that the material was unsolicited and targeted individuals because of their Jewish heritage. Based on the evidence presented, the court found that Mr. Scully's conduct was indeed unlawful as it incited racial hatred and discrimination against Jewish individuals. Consequently, the court issued a declaration and restraining orders against Mr. Scully, prohibiting him from repeating or continuing such conduct, and mandated that he pay the applicant’s costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

HELY J

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Ratio Decidendi

Legal Principle Established

Established by: HELY J

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