Miller v Wertheim & Anor

[2003] HCATrans 760

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S226 of 2002

B e t w e e n -

ELIANA FREYDEL MILLER

Applicant

and

PETER WERTHEIM

First Respondent

STEPHEN ROTHMAN

Second Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 JUNE 2003, AT 12.03 PM

Copyright in the High Court of Australia

MS E.F. MILLER appeared in person.

MR R. REITANO:   If the Court pleases, I appear for the respondents.  (instructed by Geoffrey Edwards & Co)

GLEESON CJ:   Yes, Ms Miller.

MS MILLER:   May it please the Court, special leave to appeal in the High Court is hereby being requested in accordance with the Judiciary Act 1903, section 35A and B, in this matter, under the Racial Discrimination Act 1975, concerning a very important point of public interest.

It is in the interests of administration of justice to undo the errors of the courts below which ignored evidence, common law authorities and legislative guarantees to protect Jewish people from racial discrimination in accordance with Racial Discrimination Act 1975 section 3(3), section 7, section 9(1), (1A), (a), (b) and (c) and (2), section 17(a) and (b), section 18(a) and (b), to ensure people have faith in laws, public acts, records and judicial proceedings, and that all laws made under the Constitution shall be binding on the courts, judges and people of every State, in accordance with Commonwealth of Australia Act, Preamble 5, section 51(xxv), section 118, to ensure that people have the implied and expressed right to equal treatment before tribunals and courts of justice in accordance with all the abovementioned constitutional and legislative guarantees.

GLEESON CJ:   Now, the discrimination of which you complain against Jewish people was practised by the Jewish Board of Deputies?

MS MILLER:   It was practised – the people that I have taken here are the respondents, Mr Peter Wertheim and Mr Stephen Rothman.  Mr Wertheim was at the time standing down as president, and Mr Rothman was the incumbent.

GLEESON CJ:   On page 3 of the application book at line 22, it said:

The respondents –

to a particular application –

were Mr Wertheim and Mr Rothman as well as the entire New South Wales Jewish Board of Deputies.

MS MILLER:   What page is that, your Honour?

GLEESON CJ:   Page 3, line 22.

MS MILLER:   Page 3, yes.  What ‑ ‑ ‑

GLEESON CJ:   Line 22.

MS MILLER:   Line 22?

GLEESON CJ:   Yes.  The sentence beginning with the words “The respondents”. 

MS MILLER:   Yes, well, it is not the entire New South Wales Jewish Board of Deputies.  I wanted to take them, but they are an unincorporated association, and so there was an amended application.  So that was Justice Driver.

GLEESON CJ:   Thank you.  That clears that up, yes.

MS MILLER:   Shall I continue?

GLEESON CJ:   Yes.

MS MILLER:   Evidence has been presented in this very important matter of public interest of the errors of the law of decisions of the courts below. Australia is a signatory to the International Convention on the Elimination of All Forms of Racial Discrimination, and this convention was ratified into Australian law under section 7 of the Racial Discrimination Act 1975. Article 5 of the Convention is a schedule encoded into section 9(1), (1A), (2) of the Racial Discrimination Act and guarantees to racial groups and individuals fundamental human rights and, relevantly, to this matter, in Article 5(a): 

The right to equal treatment before the tribunals and all other organs administering justice;

and in Article 5(e)(vi): 

The right to equal participation in cultural activities.

Both these rights have been denied in this matter of Jewish people’s right to a cultural heritage and the right to be protected from racial discrimination by the Racial Discrimination Act legislation. 

The jurisdiction of the Racial Discrimination Act 1975 has been neglected by the courts below, by the courts’ failure to (a) consider the evidence of Jewish people’s right to a cultural heritage; (b) by ignoring evidence of tampering of the audiotape of proceedings in the Federal Magistrates Court on 22 October 2001, in relation to the Goldberg v G Korsunski Carmel School Case of Western Australia; (c) by ignoring evidence of the misrepresentation of the Korsunski Carmel Case by the Federal Magistrates below – evidence that the applicant in that case was not a Jewish person; and (d) by the unquestioning acceptance by the Federal Courts below of the first respondent’s racially discriminatory words which said that Jewish people were destructive, divisive, a threat, and which falsified and misrepresented Jewish people’s cultural heritage which spans 3,500 years, and which incited against Jewish people, calling on people to stand up to Jewish people, with complicity of the second respondent incitement to that Act.

Jewish people, including the applicant, have been denied basic fundamental human rights to cultural heritage and equal treatment before the courts, which are both guaranteed through the abovementioned legislative and constitutional guarantees.  In accordance with the Judiciary Act 1903 section 80, common law to govern, common law authorities affirm fundamental human rights. These were ignored by both the courts below. In Australian Medical Council v Wilson, Justice Sackville, at page 70D, said:

It follows that the human rights or fundamental freedoms protected by s 9(1) are not necessarily limited to those specified in Art 5 of the Convention.

At page 76E, line 6, he said:

Even where the act or distinction is not expressly based on national origin, if the criterion actually applied by the alleged discriminator is national origin that is enough to attract the legislation.

The Federal Courts below made an error of law denying procedural fairness to Jewish people, by ignoring the causal relationship established for his discriminatory act by the first respondent himself.  The first respondent vilified Jewish people when they had “made out that the Board is not representative of Orthodox interests”.  The right to say – when anything is not Jewish culture, the right to say that something is not representative of Orthodox Jewish interests is a fundamental human right of every Jewish person.

In addition, the Federal Courts below ignored evidence presented of the public face of the Board, showing that many of the Board’s activities were contrary to Jewish heritage, values, behaviours and traditions, consonant with Racial Discrimination Act 1975 section 9(1), having:

the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

Authorities also acknowledge the right of Jewish people to a cultural heritage.  In King Ansell v Police, Justice Richardson, at page 543, lines 46 to 48, said:

but they are a people “who concede the rightness or the correctness of certain beliefs, certain customs, and certain habits, and these are the origins of their beliefs and perhaps their world views”.

Also, Justice Richmond concurred in the same case.  At page 535, line 25, regarding Jewish people, he said:

the concept of a group of persons in New Zealand having common ethnic origins would include a group marked off from the generality of our society by shared beliefs, customs and attitudes of the kind attributed by Dr MacPherson to the Jews –

Dr MacPherson being a specialist witness.  Again, authorities affirm cultural rights.  In Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission, Justice Weinberg said at page 40A, line 4:

it assumes that there is another Macedonian standard language when the evidence suggests that there is not –

when referring to the racially discriminatory renaming of the Macedonian language to Macedonian‑Slavonic.  The first respondent fulfilled the criteria of Racial Discrimination Act section 18C of:

Offensive behaviour because of race, colour or national or ethnic origin –

Section 18C(1) reads:

It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

Both respondents fulfil the criteria of an unlawful act under section 17, that is: 

Unlawful to incite doing of unlawful acts.

It reads:

It is unlawful for a person:

(a) to incite the doing of an act that is unlawful by reason of a provision of this Part; or

(b) to assist or promote whether by financial assistance or otherwise the doing of such an act.

Section 3(3) of the Racial Discrimination Act defines that:

refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure.

The first respondent incited against Jewish people by asking people to stand up to them.  The second respondent had a special responsibility to safeguard the interests of a group as the incumbent of the Board, and refused or failed to exercise his special responsibility by remaining silent.  This is affirmed in authorities.  In Perth City v D, Justice Murray, at page 65, line 44, said, in relation to the Equal Opportunity Act 1984 section 160:

“A person who causes, instructs, induces, aids, or permits another person to do an act that is unlawful under this Act shall for the purposes of this Act be taken also to have done the act.”

Other authorities also support this view.  In Executive Council of Australian Jewry v Scully, counsel for the appellant, at page 546E, line 5, said:

an unincorporated association must have members and rules creating a contract between the members –

In the same case, Justice Wilcox said at page 549F, lines 1 to 3:

The identification seems to depend on the view that anti‑Semitism anywhere in Australia affects all Australian Jews.  This is a respectable view . . . a person may be a “person aggrieved” because of a special responsibility to safeguard the interests of a group. 

Additional errors of the courts below, which it is in the interests of the administration of justice and also of public interest to correct, according to section 35A of the Judiciary Act 1903, is that records and judicial – is that faith should be restored in laws, public acts, records and judicial proceedings. Contrary to constitutional guarantees of the Commonwealth of Australia Constitution Act, these matters were not attended to.

Preamble 5 of the Constitution Act of Australia, section 51(xxv) and section 118 were not fulfilled, and deny the right to procedural fairness to any person in judicial process.  Such errors are evidence of excisions from the audiotape of the Federal Magistrates Court proceedings of 22 October 2001 in this matter, related to the Western Australian case, Goldberg v G Korsunski Carmel School, where the words “non‑Halachically Jewish” have been excised twice from the tape.

The applicant informed the Federal Magistrates Court that “non‑Halachically Jewish” meant that the applicant in the Korsunski Carmel Case was not Jewish.  I have evidence here in the application book, if you have seen it, your Honours.  People must be confident that a practice is put into place to prevent any such tampering with judicial proceedings in accordance with Judiciary Act 1903, section 33(1)(c).

A further error in the courts below, which it is in the interests of the administration of justice to correct, again, subject to Judiciary Act 1903, section 35A, and in accordance with constitutional guarantees of the Commonwealth of Australia Act, Preamble 5, section 51(xxv), section 118, is the misuse of that case, Goldberg v G Korsunski Carmel, by the Federal Magistrate below, to “subgroup” Jewish people to deny them race, by using the model of a non‑Jewish child to whom the word “non‑Halachically Jewish” was applied, and against whom there was found no racial discrimination – to use that model and transpose it onto Jewish people.

The school, G Korsunski Carmel, did not impose special conditions on any Jewish student whatsoever, contrary to what the Magistrate said in his reasons for judgment, nor are there subgroups within the Jewish people for the purposes of race, which would deny the right to claim racial discrimination and protection to Jewish people.

The enrolment conditions of the child in the Goldberg v G Korsunski Case, at page 34, line 22 to 26:

were imposed . . . because of the binding effect of the Orthodox tradition which required him to be viewed as not a Jewish person.

The Tribunal found at page 34, line 23 to 26:

that the term “adherents” extends to all those regarded as Orthodox Jews by those in authority, irrespective of their current level of commitment –

Again, the Tribunal noted at page 15, line 16:

Thus, the school’s enrolment policy as of [15] August 1992 was to allow the enrolment of children who are Halachically Jewish and, subject to the approval of the Halachic authority, other children.

“Halacha” means Jewish law.  In Carmel Korsunski, the basis of Jewish civilisation, Halacha and matrilineal descent of Jewish people, Orthodox interest was challenged by a non‑Jewish person and did not succeed.

It could not be said and it is not the intention of constitutional and legislative guarantees and common law authority to disenfranchise Jewish people from our cultural heritage, which is based in Torah, Halacha and matrilineal descent to this day, nor to leave me and Jewish people unprotected from racial discrimination and incitement and misinterpretation, misrepresentation and falsification of our cultural heritage.

Enforcing jurisdiction in this matter of great public importance, which is also in the interests of the administration of justice to correct errors of the courts below, in order to give protection to Jewish people from racial discrimination – these are the fulfilment of the promises of the Constitution, judiciary and legislature of this land of Australia.

GLEESON CJ:   Thank you. 

This is an application for special leave to appeal against a judgment of the Full Court of the Federal Court of Australia given on 27 May 2002.  We have considered the written submissions filed on behalf of the parties and the applicant’s oral submissions.  We have come to the conclusion that there is no reason shown to doubt the correctness of the decision of the Full Court of the Federal Court and the application is dismissed with costs. 

AT 12.20 PM THE MATTER WAS CONCLUDED