Veloskey v Karagiannakis

[2002] NSWADTAP 18

Appeal Panel

CITATION:	Veloskey & Anor -v- Karagiannakis & Ors (EOD) [2002] NSWADTAP 18
PARTIES:	1. APPELLANT Michael Veloskey 2. APPELLANT Victor Bivell 1. RESPONDENT George Karagiannakis 2. RESPONDENT Hellenic Council of NSW 3. RESPONDENT The Australian Hellenic Council 4. RESPONDENT Costas Vertzayias 5. RESPONDENT Akis Haralabopoulos 6. RESPONDENT K Publications Pty Ltd
FILE NUMBER:	009002
HEARING DATES:	26/10/2000
SUBMISSIONS CLOSED:	10/26/2000
DATE OF DECISION:	06/27/2002
DECISION UNDER APPEAL:	Aegean Macedonian Association of Australia and Ors -v- Karagiannakis & Ors [1999] NSW ADT 130
BEFORE:	Latham M - DCJ (Deputy President); Ireland G - Judicial Member; Edwards K - Member
CATCHWORDS:	adequacy of reasons - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	259 of 1996, 261 of 1996, 262 of 1996, 263 of 1996 and 265 of 1996
DATE OF DECISION UNDER APPEAL:	12/10/1999
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Moxon v Westbus Pty Ltd [2000] NSWADTAP 12 Absolon v NSW TAFE [1999] NSWCA 311 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Denver Chemical Manufacturing Co. v. Commissioner of Taxation (N.S.W.) (1949) 79 C.L.R.296 Sullivan v. Department of Transport (1978) 20 A.L.R.323 The Repatriation Commission v O’Brien (1984-1985) 155 CLR 422 Cochrane & Anor v Hannaford [1999] NSWCA 371 Athens & Anor v Randwick City Council [2002] NWCA 83 Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 R v D & E Marinkovic [1996] NSWEOT (19/9/96) Hellenic Council of NSW v Apoleski and the Macedonian Youth Association [1997] NSWEOT (25/9/97) Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 Anderson v Thompson [2001] NSWADT 11 Burns v Dye [2002] NSWADT 32 Malco & Ors v Massaris & Ors [1998] NSWEOT (12/2/98) Briginshaw v Briginshaw (1938) 60 CLR 336 Waters v Public Transport Corporation (1993) 173 CLR 359 IW v City of Perth (1999) 91 ALJR 943 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87 Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
REPRESENTATION:	APPELLANTS J Oakley, barrister RESPONDENTS J Conomos, barrister for Respondents1, 5 and 6 C Vertzayias, solicitor for Resppondents 2 and 4 No appearance for or on behalf of Respondent 3
ORDERS:	1. Appeal allowed; 2. Decision of the Tribunal below set aside; 3. Complaint dismissed.

1 The Appellants appeal against a decision of the Tribunal of 10 December 1999 dismissing a complaint of racial vilification under s 20C of the Anti Discrimination Act 1977 (the AD Act). The complaint by the Appellants at first instance concerned an article published in "O Kosmos" on 19 April 1994, which was written by the First Respondent, Mr Karagiannakis.

2 The written and oral submissions on the appeal essentially turned upon two grounds, namely, that the Tribunal erred at law by failing to comply with its statutory function under s 89(5) of the Administrative Decisions Tribunal Act 1995 (the ADT Act), and the Tribunal erred in its interpretation of the term "incite" within s 20C of the AD Act. These grounds, and the argument addressed to each of them, are explored more fully below. It is helpful at this stage to refer briefly to the history of the conflict which underpins the article in question.

Background
3 The following summary is taken from the evidence before the Tribunal, primarily in exhibit form.

4 The territory once known as ancient Macedonia sits astride a number of European countries, including Greece and part of the former Yugoslavia. Certain ethnic groups within these two nations, and within Greece in particular, have long been in conflict over the use of symbols, geographic names and maps, which evoke Macedonian heritage. Persons of Greek ethnicity are offended by any claim to Macedonian heritage on the part of those from the former Yugoslav Republic of Macedonia (FYRoM), particularly where such claims suggest the appropriation of the whole of ancient Macedonia ; for their part, persons who identify as Macedonian are deeply distressed by demands that they renounce entirely the use of the name “Macedonia”.

5 In March 1994 the Australian government recognised the former Yugoslav Republic of Macedonia and declared that henceforth, government departments and agencies were to refer to persons living in or originating from that Republic as "Slav Macedonians". The announcement qualified the term "Slav" as referable to the Republic itself, rather than to an ethnic group, in recognition of those persons, such as Albanians, who came from the former Republic but were not of Slav ethnic origin. This was an administrative act, since the government frankly acknowledged that the members of any community in Australia could choose to identify themselves as they saw fit. By way of example, Australian citizens of Greek geographic origin (not Greek ethnic origin) who chose to identify themselves as Macedonian, were free to continue to do so. Implicit in the declaration was the realisation that the term “Macedonian" could not be appropriated by any particular ethnic or geographic group, to the exclusion of all others.

6 On 19 April 1994, the article written by the First Respondent appeared in "O Kosmos" ("Our World"), a national bi weekly newspaper. The article was published in English under the by-line "In Our Other Language". It was headed "The 'Slav Macedonian' Decision and how it affects us." A copy of the article was annexed to the Tribunal’s decision and is annexed to these reasons for convenience and ease of reference. It is sufficient for present purposes to say that the thrust of the article was to claim that the entrenched use of the term “Slav Macedonian” would put an end to an alleged propaganda campaign inherent in the use of terms such as “Macedonian” and “Aegean Macedonian”. According to the article, the Australian government would no longer accept either term. The latter term in particular was said to be associated with persons in Australia, who subscribed to an expansionist policy pursued by Yugoslav communists in Eastern Europe.

7 The Appellants are Australian citizens who identify themselves as of Aegean Macedonian extraction. Whilst their family origins lie in Greece, they do not identify linguistically, culturally or religiously with Greece. They regard themselves as the descendants of an Aegean Macedonian population, which was allegedly compulsorily assimilated by Greece over the better part of the last century. They claimed before the Tribunal below that the Respondents had, by the publication of the article, incited hatred, serious contempt for, or severe ridicule of Aegean Macedonians on the ground of their race.

8 The Tribunal gave written reasons for its decision in the exercise of its discretion under s 89(2) of the ADT Act. The decision took the form of three introductory paragraphs, followed by four paragraphs, which dealt with the applicable legislation, and the submissions of the complainants’ counsel (paras 4 to7 inclusive). At paras 8 to 10 the issue was crystallised in terms of whether the article fell within the terms of s 20C(1) of the AD Act. The evidence before the Tribunal from the First Respondent was referred to in passing. The Tribunal went on to summarise the context within which the article had been written (at paras 13 to 17), before setting out the Respondents’ submissions. The nub of the Tribunal’s reasons appear at paras 22 to 24 of the decision. In effect, the Tribunal determined that the complainant had demonstrated that there were statements in the article which were wrong, or had been misquoted, and that the article was in parts possibly inflammatory or upsetting to some people. Be that as it may, the Tribunal held that such findings were insufficient to establish incitement, within the terms of s 20C(1) of the AD Act.

Failure to Provide Reasons Pursuant to s 89(5) Administrative Decisions Tribunal Act 1995
9 The principles governing the statutory obligation of the Tribunal to provide reasons for a decision were canvassed in Moxon v Westbus Pty Ltd [2000] NSWADTAP 12. As noted in the course of that appeal, s 89(5) does not strictly apply if the Tribunal has provided written reasons in the exercise of its discretion under s 89(2) of the ADT Act. The obligation to provide written reasons which expose the Tribunal’s rationale nonetheless arises at common law. It is an obligation which is “regarded as an incident of the judicial process”: Absolon v NSW TAFE [1999] NSWCA 311 per Powell JA.

10 The extent of that obligation has been expressed in terms of apprising “the parties of the broad outline and constituent facts of the reasoning on which he has acted”, rather than “to require that a judge detail the way in which he has reasoned step by step to his conclusion”: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273 per Mahoney JA.

11 A failure to give any, or any adequate, reasons does not, of itself, establish an error of law which vitiates the decision. What must be established by the Appellants in order to succeed on this ground is that the alleged inadequacy warrants the inference that the Tribunal has failed to exercise its powers according to law “(as, for example, by taking account of irrelevant considerations or by failing to consider material issues or facts). …. In such a case, the exercise of the statutory power to make a decision is held invalid not because of a failure to state the reasons for making the decision, but because of a failure to make the decision according to law: see Denver Chemical Manufacturing Co. v. Commissioner of Taxation (N.S.W.) (1949) 79 C.L.R.296, at p.313; Sullivan v. Department of Transport (1978) 20 A.L.R.323, at pp.348,349,352.” : The Repatriation Commission v O’Brien (1984 – 1985) 155 CLR 422 at 445-446, per Brennan J.

12 Further, in Cochrane & Anor v Hannaford [1999] NSWCA 371, the Court of Appeal said, following a review of the authorities on this subject:

“[I]t is quite clear that the obligation to provide reasons and also the extent of those reasons when provided, must depend very much upon the circumstances of the particular case and the reasoning process displayed by the judge in deciding the case. Statements made in other cases, appropriate to a failure to supply adequate reasons in those cases, should not be transposed and applied mechanically to other cases. A review of the evidence given in, and the general course of, a trial will, for the most part, indicate to an appellate court whether the trial judge’s failure to make specific findings of fact or to record a submission, set out the judge’s deliberations upon it and pronounce his or her conclusion, has had a vitiating effect upon the ultimate decision. If it can legitimately be said that a losing party would necessarily fail to understand from the judge’s reasons why the litigant lost, or can properly harbour a feeling of injustice stemming from an apparent failure on the part of the judge to consider a critical submission, then it may be appropriate for an appellate court to intervene. Needless to say, it does not follow that because a judge has failed to refer to particular evidence or particular submissions, that they have not been taken into account. Other express findings may by their very nature indicate that arguments to the contrary of that finding have been rejected, or that evidence in support of that finding has necessarily been preferred to evidence to the contrary. Whether relevant injustice should be found to have occurred must very much depend upon the impression formed by a consideration of the content and course of the trial itself.”
13 To these statements should be added the following from Giles JA’s judgment in Athens & Anor v Randwick City Council [2002] NWCA 83:
“What is sufficient to fulfil the duty, however, depends upon the circumstances. The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning: indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration.”
14 Were the reasons of the Tribunal inadequate in the circumstances of this matter? The Appellants contend that the Tribunal did not identify the evidence on which it made findings of fact, did not identify the reasoning process which led it to the conclusion it reached, made a number of findings which were unsupported by the evidence, had regard to a number of matters that were not relevant and demonstrated an inadequate understanding of the applicable law. It should be observed at the outset that no complaint was made in respect of the Tribunal’s statement of the issues at para 8 of the decision; it was never in issue that the article constituted a public act and that it was written by the First Respondent on behalf of the Second and Third Respondents. The threshold issue in the proceedings below was whether the article met the terms of s 20C(1) of the AD Act.

15 In so far as the Tribunal may have been required to make findings of fact, they were necessary for the purpose of determining that threshold issue and, if the terms of s 20C(1) were met, for the purpose of determining whether any of the exceptions under s 20C(2) were made out. It is acknowledged in the decision that the First Respondent was cross examined to the effect that certain inferences arose from the article, albeit those inferences were resisted by the First Respondent. The Tribunal made no express findings of fact as to the inferences which legitimately arose from the article, but the absence of any such findings simply begs a more fundamental question, namely, what was the relevance of any inference to the issue of incitement? That question cannot be answered unless one has regard to the construction of s 20C(1), particularly in terms of whether it imports a subjective or objective test (or a combination of the two) and the relevance, if any, of the social and historical context within which the article is written and published. The Tribunal did not undertake this analysis.

16 Another feature of the Tribunal’s failure to examine the constituent parts of s 20C may be seen, according to the Appellants, in the confusion inherent in the decision, between the requirements of s 20C(1) and the exceptions established by s 20C(2). The Appellants point to paras 14 and 22 of the decision in order to demonstrate that the Tribunal reasoned from “centuries and decades of arguments, dissension and debate” (para 14) between the parties to the finding that the article did not amount to an act of incitement (para 22). The structure of the provision, however, assumes that a public act can constitute incitement within the terms of s 20C(1), but that it may nonetheless be lawful if it meets the criteria established by s 20C(2). According to this construction, whether there has been discussion or debate about a matter is of no relevance in determining whether s 20C(1) has been satisfied.

17 The validity of the Appellants’ submissions on the construction of s 20C(1) is, in some respects, peripheral to the resolution of this ground of appeal. If the Tribunal’s reasons do not disclose the approach it took to the construction of s 20C(1), the Appellants are not in a position to know whether the construction they contend for has been adopted or disregarded. Even allowing for “judgmental steps which can only be stated without elaboration” (Athens v Randwick City Council), it appears to the Panel that the Appellants would necessarily experience considerable difficulty in understanding why they lost before the Tribunal. The reasons are inadequate in that sense and they warrant the inference that the Tribunal failed to exercise its powers according to law. It follows that the Appellants have made out this ground of the appeal.

18 It is not strictly necessary to consider the second ground of the appeal. However, as will become apparent, the arguments advanced on this ground will be dealt with in the course of these reasons. Leave is granted to consider the merits of the complaint, rather than remit the matter to the Tribunal for a re-hearing.

The Construction of s 20C of the Anti Discrimination Act 1977
19 Section 20C of the AD Act provides:

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

20 The interpretation of s 20C(1) by the Tribunal since its introduction into the AD Act has not always been consistent. A review of the decisions touching upon the provision and its equivalents in the AD Act follows, with particular reference to those elements of the behaviour rendered unlawful by the legislation.

21 The word “incite” in this context has invariably been given its ordinary English meaning, namely, to urge, spur on, stir up, animate, stimulate or prompt to action: Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604; Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701; R v D & E Marinkovic [1996] NSWEOT (19/9/96); Hellenic Council of NSW v Apoleski and the Macedonian Youth Association [1997] NSWEOT (25/9/97); Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102; Anderson v Thompson [2001] NSWADT 11; Burns v Dye [2002] NSWADT 32. No issue was taken in these proceedings with this interpretation and, in the opinion of the Panel, it is the only meaning which can be ascribed to the word in its statutory context. It has also been observed, correctly, that it is not sufficient if words merely convey hatred or express serious contempt or severe ridicule: Wagga Wagga Aboriginal Action Group v Eldridge; Malco & Ors v Massaris & Ors [1998] NSWEOT (12/2/98); Kazak v John Fairfax Publications Ltd.; Western Aboriginal Legal Service Ltd v Jones & Anor.

22 A difference of opinion may arise with respect to whether a subjective element is imported by the terms of the provision, namely, “it is unlawful for a person, by a public act, to incite …”. On its face, the provision renders the actions of the person (the respondent to such a complaint) the subject of scrutiny, rather than the public act, which appears as the vehicle for the incitement. It has been argued (albeit not by the parties to this appeal) that this construction requires proof of an intention to incite on the part of the person. The resolution of this issue is not assisted by the fact that s 20D(1) is in identical terms, but for the added criteria of threats, or incitement to threats, of harm to persons or property. Section 20D imposes a criminal sanction ; it has never been doubted, nor could it be, that it requires proof to the criminal standard of an intention to incite in that way. It thus becomes a difficult process of statutory construction to distinguish between s 20C(1) and s 20D(1) on the issue of intention, accepting that the former only requires proof to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336).

23 Of those decisions of the Tribunal which have expressly dealt with this issue, R v D & E Marinkovic , Kazak v John Fairfax Publications Ltd , Western Aboriginal Legal Service Ltd v Jones & Anor. and Burns v Dye followed Wagga Wagga Aboriginal Action Group v Eldridge in holding that s 20C(1) did not require proof of intention. The Tribunal in Western Aboriginal Legal Service Ltd v Jones & Anor. carried out the most extensive analysis of the provision on the issue of intention; the decision was overturned on appeal, but not on this ground. By way of contrast, the Tribunal in Hellenic Council of NSW v Apoleski and the Macedonian Youth Association held that the incitement must be intended or foreseen. It appears from the decision that a submission to that effect was accepted without more; no statutory construction was undertaken, no reference to secondary materials was made, nor was any reference made to the decisions of Marinkovic and Eldridge. To the extent that the decision in Malco & Ors v Massaris & Ors noted an absence of evidence to suggest that a word was deliberately chosen by the respondent, the comment appears to have been made in passing.

24 Whilst the weight of authority in the Tribunal is not decisive of this question, the Panel has determined that it is correct at law. The process of statutory construction undertaken in Western Aboriginal Legal Service Ltd v Jones & Anor is one which the Panel adopts and affirms. No useful purpose is to be served by repeating it here. Suffice to say that after having regard to previous decisions, the second reading speech of the then Attorney General when introducing s 20C, Report 92 of the NSW Law Reform Commission and the general operation of anti discrimination laws in accordance with the High Court decisions of Waters v Public Transport Corporation (1993) 173 CLR 359 and IW v City of Perth (1999) 91 ALJR 943, the Tribunal found that any ambiguity on the face of the provision was resolved in favour of a construction which does not require any intention to incite on the part of the respondent to the complaint.

25 Nor is it necessary that the complainant prove that a person or persons were actually incited by the public act to respond in a requisite manner. That much has never been doubted, although evidence that the public act has had an actual effect may be relevant, both on the question of the capacity of the public act to incite, and on the question of damages.

26 In determining whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race, the approach taken to the characterisation of the audience for these purposes is crucial. Analogies have been drawn with defamation law and with media law: Harou-Sourdon v TCN Channel Nine Pty Ltd ; Kazak v John Fairfax Publications Ltd ; Western Aboriginal Legal Service Ltd v Jones & Anor. Common to the authorities examined in those cases is the “ordinary, reasonable person”, but slight variations exist in the use of other descriptors, depending on the jurisdiction. The Court of Appeal has confirmed the test for the purposes of defamation law as “the ordinary reasonable reader (or listener or viewer) [who] is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.”: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. In the context of vilification provisions, both the Australian Broadcasting Tribunal and the NSW Law Reform Commission refer to an ordinary reasonable person, as one who is neither immune from susceptibility to incitement on the one hand, nor malevolent and unthinking on the other: Inquiry into Broadcasts by Ron Casey (1989) 3 BR 351; Report 92 Review of the Anti Discrimination Act 1977 (NSW). In both jurisdictions, the descriptors set the outer limits of the spectrum, within which the ordinary reasonable person may be found.

27 In the view of the Panel, given that both defamation law and the vilification provisions in the AD Act are concerned with evaluating the likely effect of public acts upon an audience, whatever the particular nature of that effect may be, the discussion of these issues in the context of defamation law is helpful. In that regard, the following statement of Hunt CJ at CL (as he then was) is illuminating:

“What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken.” : Amalgamated Television Services Pty Ltd v Marsden . (approved in Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87)
28 Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race? The question is not , could the ordinary reasonable reader reach such a conclusion after his/her own beliefs have been brought into play by the public act? This is a distinction which assumes some importance in the instant matter.

29 The words “hatred”, “contempt” and “ridicule” are to be given their ordinary English meaning, but the latter two are qualified by the adjectives “serious” and “severe” respectively. Thus, in the context of s 20C, the public act must be capable of inciting intense dislike or hostility towards a person or group of persons, or grave scorn for a person or group of persons, or extreme derision of a person or group of persons: Kazak v John Fairfax Publications Ltd; Burns v Dye. The use of the adjectives “serious” and “severe” call for an evaluative judgment on the part of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigrationand Ethnic Affairs (1995) 62 FCR 556.

30 Moreover, these reactions must be aroused because of the race of the person or group of persons, said to be vilified by the public act. Race, in these circumstances, must be “a substantially contributing factor” to the incitement. It is not sufficient if there are other, equally consistent, grounds for the incitement, given that s 4A of the AD Act does not apply to the vilification provisions: Kazak v John Fairfax Publications Ltd; Western Aboriginal Legal Service Ltd v Jones & Anor.; Burns v Dye.

31 Finally, the relevance, if any, of the social and historical context within which the public act takes place was the subject of some discussion in the instant appeal and in Kazak v John Fairfax Publications Ltd. As noted above, the Appellants in the instant case took issue with an observation by the Tribunal below in the course of its decision, namely, that “the article has been preceded by centuries and decades of arguments, dissension and debate, both parochially, domestically and internationally”. The Appellants submitted that historical context was only relevant after the article in question is found to constitute an incitement and only when the exceptions provided under s 20C(2) were under consideration.

32 That submission appears to conflict with the general approach of the Tribunal in Kazak, in so far as it was there held that:

“the context [of the public act] (including the social and historical context) [is] relevant in determining whether the act incites hatred, [and]

when determining the historical and social context of the public act, the identity and history of the group concerned and the degree to which they have been subjected to racism in the past [are relevant factors].” (para 71)

33 There is some difficulty with the proposition expounded in Kazak . It appears to have its origins in the notion that “communications about an historically oppressed minority group are far more likely to cause harm to that group than communications which relate to the dominant majority”. This is clarified further in the same paragraph, where the Tribunal says “the identity of the racial group being targeted may mean that similar acts in respect of one group are less likely to incite hatred etc than the same acts in respect of another racial group.” (para 66 of the decision in Kazak )

34 The fact that historically oppressed minority groups may be more sensitive to public acts concerning them, is an irrelevant consideration on the question of the objective meaning of the public act. We do not understand the Tribunal to be asserting otherwise. However, if the Tribunal meant to convey that the reasonable reader of the publication may be more disposed to feelings of hatred, or serious contempt or severe ridicule, in respect of historically oppressed minority groups, it raises the question, does such a disposition arise from the reader’s beliefs or from the reader’s knowledge and experience of human affairs? If it were the latter, it is arguably equally likely that the ordinary reasonable reader is less disposed to incitement, rather than more ; the public acts in question may be seen simply as an unjustifiable continuation of that historical oppression. If it were the former, it suffers from the confusion identified by Hunt CJ at CL (as he then was) in Amalgamated Television Services Pty Ltd v Marsden referred to above. If one has regard to the beliefs of the reasonable reader, and how those beliefs may be excited by the public act, one is deflected from the primary focus, that is, what the public act is reasonably capable of conveying.

35 The Appellants’ submission on this aspect of the construction of s 20C(1) is, in our view, only partially correct. The social and historical context of a public act, including the factors referred to by the Tribunal in Kazak, may be relevant at this stage of the inquiry, albeit only to the extent that they may be presumed to be part of the ordinary reasonable reader’s knowledge and experience of human affairs.

Did the Publication Offend Against s 20C(1) of the AD Act ?
36 The following aspects of the article were identified by the Appellants in support of the submission that it was capable of inciting all three of the requisite states of mind in the ordinary reasonable reader of the newspaper:

(i) The words “we must be vigilant and complain to the Federal authorities” and “we have an obligation to protect and promote [the Hellenic civilisation]” implicitly and expressly urge, spur on, stimulate and prompt to action.

(ii) The references to the decision of the Government and “the Government will not accept the term Aegean Macedonian” sought to confer legitimacy on the views expressed within the article.

(iii) The use of inflammatory language such as “abominable creation”, “concocted by the Yugoslav communists”, “propaganda” and “kidnapped”.

(iv) The statement that the use of the term Macedonian is part of a twenty year propaganda campaign, and the particulars given of that alleged campaign, incites ridicule.

(v) The statement that fewer that four hundred Slav Macedonians form part of the Greek population incites contempt and ridicule, in that Aegean Macedonians are so insignificant in number, that their rights and entitlements may be ignored.

(vi) The groundless assertion that the Government’s administrative decision was designed to end the “abominable” practice, by groups in Australia, of identifying themselves as Aegean Macedonian (a term which is said to have been concocted by Yugoslav communists) incites contempt.

(vii) The description of Aegean Macedonian claims about the abduction of children during the Hellenic civil war as “ridiculous” incites ridicule.

(viii) The (false) statement that the term Aegean Macedonian will not be accepted by the Government incites contempt and ridicule, in that it singles out persons as undeserving of the benefits of multiculturalism.

37 At the outset, it should be noted that the ordinary reasonable reader of this bi-weekly newspaper, the majority of which is printed in the Greek language, could hardly fail to bring to bear on his/her understanding of the article, his/her knowledge of the considerable history behind this particular conflict. In that limited respect, there is nothing wrong with the observation, made by the Tribunal below, that tensions exist between Greeks and Macedonians and “the article was but another step in their continuing unhappy relationship.” However, that is where the inquiry under s 20C(1) starts, not where it stops.

38 Whilst the Appellants’ submissions with respect to the particulars of their complaint are set out above, it was never suggested that the determination of whether the article incited others to hatred, serious contempt or severe ridicule turns on anything other than the article taken as a whole. Its constituent parts must be assessed within the context of the entire article, having regard to its style and construction: see Western Aboriginal Legal Service Ltd v Jones & Anor. at para 101, referring to Fleming, The Law of Torts, 9th ed at p588.

39 To that exercise we now turn. The article begins with an acknowledgment that the policy of multiculturalism allows any community to “self identify”. In the light of the decision, announced by Senator Evans, to effectively label the community from FYRoM as “Slav Macedonians”, the article queries whether self identification is no longer acceptable. According to the First Respondent (as the author of the article), the answer is no, subject to “the use by a community of a label it gives itself with a view to using that identity to create instability in Australia or another region of the world.” This latter assertion is presented as a Government position, although there is no basis for reading that qualification into the announcement made by Senator Evans, which was the avowed subject of the article. Somewhat curiously, this assertion is followed by a contradictory comment, namely, “self expression will remain …. No one can force a person or people to call themselves something they do not accept.”

40 What follows is an argumentative piece of writing. From the (objectively incorrect) proposition that the Government would no longer accept the terms “Macedonian” and “Aegean Macedonian”, the First Respondent reasons that an alleged twenty year propaganda campaign on the part of those using the terms “Macedonian” and “Aegean Macedonian” (the features of which are set out in the article) will be defeated. The First Respondent urges the Hellenic community to complain to Federal authorities of any use of the eschewed terms and of any other instances of the “propaganda” which allegedly seeks to appropriate Hellenic culture and history.

41 In the body of the article the following moderate statement appears:

“The decision of the Government is based on the principles of communities coexisting peaceably and respecting each other’s culture. On our part, the Australian Hellenic community must accept that the term ‘Slav Macedonian’ is a middle ground compromise. History and geography have given a group of Slavs an identification with the geographic region of Macedonia. For their part they must accept that they are Slavs and be proud of it ; they must also accept that there are Macedonians who are ethnically Hellenic (and have no connection with Slavs) and want to retain their affiliation with the Hellenic province of Macedonia …. .”
42 In the view of the Panel, this passing reference to the spirit of peaceful co existence does little to mitigate the ethnic fervour evident from the article when read as a whole. The language employed overall is pejorative and strident, in parts derisory. It clearly targets a group of persons on the grounds of their race, within the meaning of that term in the AD Act (a point which was never in issue in the proceedings below). But would the ordinary reasonable person, reading between the lines, be incited to hatred towards, serious contempt for, or severe ridicule of Aegean Macedonians? The qualification that contempt or ridicule per se is not sufficient (it must be grave or extreme, respectively), cannot be overlooked.

43 These are largely matters of impression and, as such, they are matters upon which minds may reasonably differ. The Panel accepts that the article as a whole expresses hostility towards, contempt for and ridicule of those who identify themselves as Macedonian. However, we are not persuaded to the requisite standard that the contempt and ridicule, which has been demonstrated, warrant the description of “serious” or “severe”. Moreover, the Panel is not satisfied that the article would engender in the ordinary reasonable reader, armed with the knowledge that controversy surrounds the use of the term “Macedonian”, hatred towards, serious contempt for or severe ridicule of Aegean Macedonians. In our view, the ordinary reasonable reader, unaffected by ethnic prejudices, would be more likely to treat the article as a political harangue. It urges those of the same persuasion as the author to complain to Federal authorities, to remain vigilant; in that respect, it “preaches to the converted”, not to the dispassionate, reflective bystander.

44 Accordingly, the Panel makes the following orders:

45 The appeal is allowed. The decision of the Tribunal below is set aside. The complaint is dismissed.