Administrative
Decisions Tribunal
of
New South Wales
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CITATION: |
Kazak
v John Fairfax Publications Limited [2000] NSWADT 77 |
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DIVISION: |
Equal
Opportunities Division |
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PARTIES: |
APPLICANT |
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FILE NUMBER: |
991094 |
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HEARING DATES: |
27/03/00 |
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SUBMISSIONS CLOSED: |
14/04/2000 |
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DATE OF DECISION: |
22/06/2000 |
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BEFORE: |
Hennessy
N (Deputy President); Farmer L - Member; Jowett T - Member |
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LEGISLATION CITED : |
Anti-Discrimination
Act 1977 |
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CASES CITED: |
Brown
v Classification Review Board (1998) 154 ALR 67 |
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REPRESENTATION: |
APPLICANT |
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ORDERS: |
1.
The complaint is substantiated.; 2. Matter stood over, part heard, to
determine appropriate remedies. |
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Introduction 1 These proceedings concern a complaint of racial vilification made by Mr Ali Kazak against The Australian Financial Review. Mr Kazak alleges that an article written by Tom Switzer (the Switzer article) published on 23 December 1998, contravenes s 20C of the Anti-Discrimination Act 1977 (the Act). 2 On 6 September 1999, the President of the Anti-Discrimination Board (the President) referred Mr Kazak's complaint to the Tribunal pursuant to s 94(1) of the Act. Section 96 of the Act provides that the Tribunal "shall hold an inquiry into each complaint" referred to it by the President. 3 Mr Kazak represented himself at the hearing. The respondent was represented by Mr Lancaster of counsel instructed by Freehill Hollingdale and Page, solicitors. At the conclusion of the hearing we accepted the respondent's offer to submit further material in relation to certain aspects of defamation law on the basis that it may provide some assistance in the interpretation of the relevant legislation. Mr Kazak did not object and the respondent filed additional material on 14 April 2000. Correct respondent 4 The respondent was named in the referral of this complaint from the President as The Australian Financial Review. Mr Lancaster agreed that The Australian Financial Review was not a legal entity and that John Fairfax Publications Ltd (Fairfax Publications) should be substituted for The Australian Financial Review as the respondent in these proceedings. Tom Switzer is not a respondent to the complaint. Standing 5 Fairfax Publications did not
challenge the standing of Mr Kazak to bring this complaint. Under s 88(1D) of
the Act: 6 Mr Kazak is head of the "Palestinian Delegation" to Australia. Because Australia does not recognise the State of Palestine there are no official diplomatic relations. Fairfax Publications acknowledged that Mr Kazak is a well-known representative of, and commentator on, the Palestinian cause and related issues. We also find that he identifies as a Palestinian and thus has the characteristic that is the ground for the alleged contravention of the Act. Facts 7 The vast majority of the facts in this case are not in dispute. The Australian Financial Review is a national daily business newspaper published by Fairfax Publications. On 23 December 1998 the following article appeared on page 12 of the opinion page under the heading "FOOTNOTE With friends like the Palestinians, who needs enemies? Former British prime minister Harold Wilson once observed that a week is a long time in politics. Consider, for example, last week in the Middle East. At the beginning of the week, President Bill Clinton went to Palestinian-controlled Gaza where he gave an impassioned speech on the plight of the locals. The Palestinians responded by unashamedly embracing the US leader and rejecting passages in their charter calling for Israel's destruction. Three days later, Mr Clinton launched US strikes to obliterate military installations in Iraq. To which the Palestinians responded: "Death to Clinton" and "Death to America" while burning American and Israeli flags. The moral of this story is simply this: the Palestinians cannot be trusted in the peace process. Contrary to the accepted wisdom, it is the Palestinians - not the Netanyahu Government - who are the true culprits in derailing efforts to reach an agreement over Gaza and the West Bank. While the Israelis have been willing to offer land for peace since the 1993 Oslo accords in exchange for dubious security guarantees, the Palestinians have pursued over 300 terrorist attacks against innocent Israeli civilians. Add to this that Mr Yasser Arafat uses Western aid not, as it is intended, for the poor of Gaza, but to build luxury flats for his military and bureaucratic elite, and it would appear that the Palestinians remain vicious thugs who show no serious willingness to comply with agreements. And yet these are the very people whom Mr Clinton is inducing, placating, offering all sorts of concessions. Tom Switzer 8 The following day, Mr Kazak wrote to the Editor in Chief of The Australian Financial Review demanding, among other things, a public apology in relation to the publication of the Switzer article. Part of Mr Kazak's letter to the editor was published on 4 January 2000, however the final paragraph demanding an apology and assurances that such an article would not be repeated, was not included. 9 On 30 December 1999 The Australian Financial Review published a response to the Switzer article written by Mr Jim Hanna of the Australian Arabic Council, entitled "My God, what is the Middle East coming to?" The Hanna article was of the same size, on the same page and in the same position as the Switzer article. It said that: Tom Switzer's Footnote in this space last Wednesday ("With friends like the Palestinians, who needs enemies?) could not have come at a worse time. Not that there's ever a good time to publish such simplistic, overtly anti-Arabic nonsense. But with Ramadan, Christmas and Hanukkah all being celebrated at the same time, with the Iraqi people emerging from their bomb shelters to bury their dead, this was not the time to read Switzer's diatribe and let it go unanswered. Switzer says "the Palestinians cannot be trusted in the peace process" because they condemned Clinton for bombing Iraq only days after praising him in Gaza. He cannot see that somehow, just maybe, the Palestinians might feel just a tiny bit frustrated that the US bombs Iraq on the pretext that it doesn't comply with UN resolutions, while Israel is allowed to ignore UN resolutions and thumb its nose at the world community for decades. Switzer is outraged that the Palestinians would show their anger at this double standard by burning flags and shouting anti-American slogans! My God, what is the Middle East coming to? But what really offended this writer was Switzer's statement that "it would appear that the Palestinians remain vicious thugs." This comment - even in an opinion piece - borders on racism and is unworthy of The Australian Financial Review. Jim Hanna is a member of the Australian Arabic Council. 10 On 11 January 2000 a second letter to the editor was published which supported the sentiments expressed in the Switzer article. Relevant legislation 11 The racial vilification
provisions make public acts of incitement to hatred, serious contempt or
severe ridicule on the ground of race unlawful. Section 20C(1) is the central
provision. It states that: 12 Section 20B defines
"public act" in the following way: 13 Section 4(1) defines "race". It provides that "race includes colour, nationality, descent and ethnic, ethno-religious or national origin." 14 Section 20C(2) provides for
certain exceptions. It states that: Racial vilification provisions and international human rights conventions 15 While state and territory governments are not parties to international human rights conventions, those conventions can influence state and territory legislatures. When introducing the Anti-Discrimination (Racial Vilification) Amendment Bill on 4 May 1989, the then Attorney-General, the Hon John Dowd, MP, referred to the International Convention on Civil and Political Rights (ICCPR). He highlighted the provisions dealing with the right to a dignified and peaceful existence free from racist harassment and vilification on the one hand and the right to freedom of speech on the other. Legislation against racial vilification must involve a balancing of the right to free speech and the right to a dignified and peaceful existence free from racist harassment and vilification. The Government has drawn from the International Covenant on Civil and Political Rights in its approach to this issue. Article 19 of the covenant provides: 1. Everyone shall have the
right to hold opinions without interference. Article 20 of the covenant goes on to prohibit propaganda for war and advocacy of national or religious hatred that constitutes incitement to discrimination or hostility or violence. It is in the spirit of this convention that the Government introduces this bill. (New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 4 May 1989 at 7488-7489) 16 Although the then Attorney did not mention Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), that article also provides relevant background to the racial vilification provisions. It states that: States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organisations, and also organised and all other propaganda activities, which promote and incite racial discrimination, and shall recognise participation in such organisations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. 17 In the Second Reading Speech, when referring to the exceptions in s 20C(2), the Honourable J Dowd MP stated that: These exceptions have been included in the bill to achieve a balance between the right to free speech and the right to an existence free from racial vilification and its attendant harms. The government is also mindful of the possibility of undue reliance by potential respondents on these exceptions and has therefore included the requirement that the act be done reasonably and in good faith." (New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 4 May 1989 at 7490). 18 There is no specific constitutional guarantee of freedom of expression in Australia but free speech is protected in two ways in the racial vilification provisions. Firstly, only those public acts which incite hatred, serious contempt or severe ridicule on the ground of race are unlawful. Public acts which do not reach that standard remain lawful. Secondly, there is an exception for fair reports of public acts, certain privileged communications and acts done for purposes in the public interest as long as they are done reasonably and in good faith. While these exceptions were seen by the legislature as providing some protection for free speech principles, parliament was careful to limit the scope of that protection in relation to acts done for purposes in the public interest. To enjoy the benefit of the exception such acts must be done reasonably and in good faith. Issues 19 As Fairfax Publications relied only on the exception in s 20C(2)(c), the issues to be determined in this case can be summarised as follows: · was the publication of the Switzer article a public act? · if so, did that act incite hatred, serious contempt or severe ridicule? · if so, was that incitement of a person or group of persons on the ground of the race of the person or members of the group? · if so, was the publication of the Switzer article done reasonably and in good faith for purposes in the public interest, including discussion or debate about and expositions of any act or matter? · if not, is there any constitutional impediment to providing Mr Kazak with a remedy? · if not, what remedy should Mr Kazak be given? 20 Each of these issues will be discussed in turn. Was the publication of the Switzer article a public act? 21 Fairfax Publications
accepted, and we find, that the publication in The Australian Financial
Review of the Switzer article was a "public act" of John
Fairfax within the meaning of 20B(a) (and thereby s 20C) of the Act. The
publication of the Switzer article is clearly a form of communication to the
public. 22 There is some authority for the proposition that a statutory provision which purports to make incursions into principles of free speech should be interpreted narrowly. (Brown v Classification Review Board (1998) 154 ALR 67 at 76-78; and Coco v The Queen (1994) 179 CLR 427 at 437.) These cases are readily distinguishable from the present case because they do not relate to racial vilification provisions. The Second Reading Speech makes it perfectly clear that the balance between the right to be free from racial vilification and free speech principles has been carefully struck in the legislative provisions. Moreover, an abundance of authority exists that anti-discrimination legislation should be regarded as beneficial and remedial legislation and should be given a liberal construction, as long as that construction is not unreasonable or unnatural. (IW v The City of Perth (1997) EOC 92-892 at 77,288-77,289 per Brennan CJ and McHugh J.) 23 Meaning of incite. This word has been the subject of some judicial and academic determination and comment. We agree with Mr Lancaster that "incite" should be given its ordinary meaning which is to "urge, spur on, . . . stir up, animate; stimulate to do something" (New Shorter Oxford English Dictionary, 1993) (Oxford); "urge on; stimulate or prompt to action" (the Macquarie Dictionary, third edition, 1997) (Macquarie). The former Equal Opportunity Tribunal (now the Equal Opportunity Division of this Tribunal) adopted the Macquarie Dictionary meaning of incite in Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604. In Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 at 78-266 the Equal Opportunity Triubnal noted that s 20C does not make unlawful the use of words that merely convey hatred towards a person, or the expression of serious contempt or severe ridicule. However, Mr Lancaster agreed that although incitement can include a stimulation to do something or a "prompt to action" there is no requirement for such stimulation. Incitement can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action against that person or group. 24 There are at least three issues in relation to the meaning of incite which recur in the case law and the literature. The first is whether incitement requires some intention on behalf of the person concerned. The second is whether the complainant must prove that anyone was actually incited by the public act and the third is whether the audience or potential audience should be assumed to have certain characteristics. 25 Firstly, in relation to intention, both the civil and criminal racial vilification provisions in the Act use the word "incite". (See s 20D of the Act which sets out the criminal offence of racial vilification.) In the Second Reading Speech introducing the racial vilification provisions, the then Attorney General, the Hon John Dowd MP, made it clear that while the word "incite" was used in both the civil and criminal provisions, there was no requirement for intent in relation to the civil provisions. He said that, "The requirement for intention in the offence of serious racial vilification also sets it apart from proposed s 20C . . ." (New South Wales, Parliamentary Debates (Hansard) Legislative Assembly, 4 May 1989 at 7490.) 26 In Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 and in R v D and E Marinkovic [1996] EOC 92-841 (a case involving virtually identical provisions relating to homosexual vilification) the Tribunal concluded that the word "incite" did not require proof of intention to incite. We agree with this conclusion given the comments in the Second Reading Speech, the fact that civil racial vilification provisions do not impose any criminal penalty on a respondent and the absence of any specific requirement for intention in the legislation. Importing a subjective intent requirement into the racial vilification provisions, rather than focusing solely on the effects of the public act, would defeat one of the primary goals of the provisions which is to ensure that all Australians can live a dignified and peaceful existence free from racist harassment and vilification. 27 The Tribunal has not consistently expressed this view. In Hellenic Council of NSW v Apoleski and the Macedonian Youth Association (1995] NSWEOT 25/9/97 at 17 the Tribunal made the following comment: "The Tribunal accepts that 'incite' implies an intentional act, in the sense that the incitement or creation of hatred must have been intended or foreseen." In Malco & others v Massaris & others [1998] NSWEOT (12/2/98) the Tribunal said that "There is no objective evidence that the word (Skopjan) was deliberately chosen to have [the effect identified by the complainant] and the result is that any description of these people other than "Macedonian" would be claimed to have the same effect. (Words in brackets and emphasis added.) The Tribunal did not refer in either case to the directly conflicting views of earlier Tribunal decisions and we respectfully disagree with their view on this issue. 28 In the light of the differences of opinion expressed by the Tribunal as to whether intention is an element of incitement in s 20C, the conclusions and recommendations of the New South Wales Law Reform Commission, in Report 92 Review of the Anti-Discrimination Act 1977 (NSW), November 1999 at 543-544 are relevant. The Commission concluded that "the civil consequences of vilification should not depend upon the proof of a specific intention" and recommended that the Act be amended to that effect, so that the issue is beyond doubt. 29 The second issue is whether the complainant must prove that anyone was actually incited by the act. Fairfax Publications accepts that the question whether or not the Switzer article incited hatred, serious contempt or severe ridicule of Palestinians does not turn on proof of actual incitement of a person who read the article. Mr Lancaster submitted that the test in section 20C is an objective one. We agree with that view. 30 The third issue in relation to the meaning of "incite" is whether the audience or potential audience exposed to the public act should be assumed to have certain characteristics and, if so, what those characteristics are. 31 Mr Lancaster submitted that the test should be the same as that adopted in relation to defamation law, that is the "ordinary reasonable reader." In defamation law, the ordinary reasonable reader is said to be a person of fair, average intelligence who is not perverse, morbid, suspicious of mind or avid for scandal. (Lewis v Daily Telegraph Ltd [1964] AC 234 at 259; Mirror Newspapers Pty Ltd v Harrison (1982) 149 CLR 293 at 301.) Mr Lancaster went on to submit that: The test to determine the sense in which the ordinary reasonable reader would have understood the words of the matter complained of is therefore an objective one. The court is required to discount those at one end of the spectrum who are avid for scandal and those at the other end of the spectrum who are so naïve that they fail to see that which is obviously derogatory of the plaintiff. (Lewis v Daily Telegraph Ltd [1964] AC 234 at 259 32 Mr Lancaster submitted that when considering racial vilification complaints the Tribunal should adopt a similar interpretation and relied on an extract from the Australian Broadcasting Tribunal's (ABT's) decision in Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 at 357. In that case the ABT was determining whether remarks made by Ron Casey on commercial radio station 2KY were "likely to incite or perpetuate hatred" in breach of Radio Program Standard 3. The Tribunal decided at p 357 that: The test to be applied is, in the Tribunal's view, an objective one. The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal's view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views. 33 This passage was quoted with approval in Harou-Sourdon at p 10. 34 The question of the characteristics of the reader was raised but not taken much further in Neal v Sunday New Auckland Newspaper Publications (1985) EOC 92-130 at p 76,304. In that case the New Zealand Equal Opportunities Tribunal considered the meaning of "likely to excite ill will" in s 9A of the Race Relations Act 1971 (NZ). The Tribunal said at p 76,304: Thus, we are looking at that group in New Zealand society who would buy and read a populist Sunday newspaper which has a robust and down-to-earth style for which it makes no apology. We are satisfied that what was printed, in the way it was printed, would not excite in that group (or indeed in any other) ill will against Australians living in or visiting New Zealand. 35 A significantly different view was taken in the Canadian case of Nealy v Johnston and Long Church of Jesus Christ Chritian-Aryan Nations (1989) 10 CHRR D/6450 at 6470 where the test was "anybody, even the most malevolent or unthinking person, who might be inspired to treat the targets with hatred or contempt." 36 In Report 92 Review of the Anti-Discrimination Act 1977 (NSW), November 1999 the Law Reform Commission discussed this issue and concluded at 545 that: In many cases, there will be no evidence of actual incitement, or of the identity of the persons who may have received the communication or observed the conduct. More importantly, there are significant difficulties in a tribunal of fact assessing likely responses to particular words or conduct. . . . [T]here is little basis, other than intuition, for assessing whether particular words in a particular context are likely to induce others to feel hatred or serious contempt. On the other hand, it is not appropriate to assume that an audience will necessarily include the most malevolent and unthinking persons. 37 The Commission concluded by recommending at 545 that the Act: Provide that the capacity to incite should be assessed in the circumstances of the particular case and without assuming that the audience is either malevolently inclined or free from susceptibility to prejudice. 38 This recommendation is similar to the test put forward by Mr Lancaster because it focuses on the audience or intended audience of the public act. According to the Commission, people in that audience who are at either end of the scale, that is either malevolently inclined or free from susceptibility to prejudice should be discounted. In that sense, the reader could be described as the "ordinary reasonable" reader. Our conclusion is that the objective test which must be applied is the ordinary, reasonable reader of The Australian Financial Review, who is not malevolently inclined nor free from susceptibility to prejudice. 39 Mr Lancaster submitted that an ordinary reasonable reader would anticipate that the paper would print follow up letters and perhaps another opinion piece in response to the original article. He or she would be mindful of the fact that opposing as well as supporting views would probably appear over the next week or so. We do not accept that this is a relevant factor to take into account in assessing whether the Switzer article incites hatred. The audience is the "ordinary" reader, not the reader who is so sagacious that he or she would not react to the publication as an ordinary reader would. The reader envisaged by Mr Lancaster would take into account the likelihood of balancing material being published subsequently before reacting adversely to the article. This person is not the ordinary, reasonable person, but rather a person who is virtually free from susceptibility to prejudice. 40 Meaning of hatred, serious contempt or severe ridicule. In this case Mr Kazak submitted that the publication of the Switzer article incited hatred and serious contempt, but not severe ridicule. The ordinary dictionary meaning of these words are as follows: · "hatred" means "intense dislike; detestation" (Macquarie), "a feeling of hostility or strong aversion towards a person or thing; active and violent dislike" (Oxford); · "serious" means "important, grave" (Oxford); "weighty, important" (Macquarie); · "contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account" (Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie); · "severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme" (Macquarie); · "ridicule" means "subject to ridicule or mockery; make fun of, deride, laugh at"(Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie). 41 In Taylor v Canadian Human Rights Commission (1990) 75 DLR (4th) 577, the Supreme Court of Canada discussed the scope of the words "hatred and contempt" as they appear in s 13(1) of the Canadian Human Rights Act SC 1976-77. That section states that: It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. 42 Dickson CJ quoted with approval the following comments of the Human Rights Tribunal in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, at D/6469: As there is no definition of "hatred" or "contempt" within the [Canadian Human Rights Act] it is necessary to rely on what might be described as common understandings of the meaning of these terms. Clearly these are terms which have a potentially emotive content and how they are related to particular factual contexts by different individuals will vary. There is nevertheless an important core of meaning in both, which the dictionary definitions capture. With "hatred" the focus is a set of emotions and feelings which involve extreme ill will towards another person or group of persons. To say that one "hates" another means in effect that one finds no redeeming qualities in the latter. It is a term, however, which does not necessarily involve the mental process of "looking down" on another or others. It is quite possible to "hate" someone who one feels is superior to one in intelligence, wealth or power. None of the synonyms used in the dictionary definition for "hatred" give any clues to the motivation for the ill will. "Contempt" is by contrast a term which suggests a mental process of "looking down" upon or treating as inferior the object of one's feelings. This is captured by the dictionary definition relied on in Taylor . . . in the use of the terms "despised", "dishonour" or "disgrace". Although the person can be "hated" (i.e. actively disliked) and treated with "contempt" (i.e. looked down upon), the terms are not fully coextensive, because "hatred" is in some instances the product of envy of superior qualities, which "contempt" by definition cannot be. [Emphasis added.] 43 These comments apply equally to the provisions of s 20C. 44 As to the meaning of "hatred" Mr Lancaster quoted the Human Rights and Equal Opportunity Commission decision of Bryant v Queensland Newspaper Pty Ltd [1997] HREOC 23, 15 May 1997. That case concerned a description of English people as "Poms" and "Pommies". Sir Ronald Wilson said that: The notion of 'hatred', although not used in s.18C itself, suggests that the section allows a fair degree of journalistic licence, including the use of flamboyant or colloquial language. 45 With respect, while we agree that the use of the word "hatred" creates a high threshold, we cannot agree with Sir Ronald's comment if it is intended to mean that flamboyant or colloquial language cannot incite hatred. The style of the language alone cannot be determinative of whether the public act is capable of inciting hatred or serious contempt. The content and context of the communication must also be considered. 46 Mr Lancaster referred to several factors which he considered relevant in determining whether publication of the Switzer article incited hatred or serious contempt. We agree that the context of a public act is relevant to determining the effect it would have on an ordinary, reasonable reader of The Australian Financial Review. Mr Lancaster identified three kinds of context which he submitted were relevant, namely: · the context of the particular words or phrases complained of in the article as a whole; · the context of the article in the publication in which it appears; and · the "broader social context." 47 Dealing firstly with the context of the particular words, Mr Kazak wrote in his complaint to the President that: In clear words, he writes that "the Palestinians" "cannot be trusted", describes them as "terrorists" and as "vicious thugs" who show "no serious willingness to comply with agreements. 48 It is clear from his letter of complaint that Mr Kazak also had concerns about other aspects of the article, but he chose to focus on what he saw as the "racist, inflammatory and offensive" parts of the article. 49 Mr Lancaster's response is to put Mr Kazak's summary into the context of the article. He rightly points out that the comment that "the Palestinians cannot be trusted" goes on to say "in the peace process." Consequently, rather than being a blanket statement that the Palestinian cannot be trusted, the article confines that observation to their role in the peace process. Secondly, Mr Lancaster maintains that the article does not describe Palestinians as "terrorists". It says "the Palestinians have pursued over 300 terrorist attacks against innocent Israeli civilians." 50 Furthermore, in relation to the context of the article itself, Mr Lancaster says that the phrase containing the words "vicious thugs" is an opinion. That opinion, he argues, is based on stated factors referred to in the article itself. Mr Lancaster says that: The effect of the words used is that the author has referred to a number of features of Middle East politics as he sees it and then expresses his opinion based on those features. However harsh the author's judgement, it is plainly put forward as a comment upon stated features of middle East politics with which the ordinary reader is free to disagree. 51 Factual material will not normally be capable of inciting hatred, especially if it is expressed in a matter of fact, rather than an emotionally charged manner. Consequently virtually all vilifying material will contain an opinion of some kind. Therefore, contrary to Mr Lancaster's submission, just because something is expressed as an opinion, does not mean that it is less likely to amount to vilification. If the opinion is based on clearly stated factual evidence, then that may go to the reasonableness of the publication (See s 20C(2)(c) but it is not determinative of whether the opinion itself is vilifying. 52 Furthermore, the fact that the ordinary reader is free to disagree with those facts or opinions is irrelevant. Many readers will disagree with the sentiments expressed in the article but that is not the test. The test is whether an ordinary reasonable reader, who is not either malevolently inclined or free from susceptibility to prejudice, would be incited to hatred by the publication. 53 In relation to Mr Lancaster's second point, the context of article in the publication, he submitted that the article is clearly identified as an opinion piece. It appears on a page headed "Opinion" with other opinion pieces. Mr Lancaster submitted that readers of that section of The Australian Financial Review would have been aware that the "Footnote" section is a forum for briefly (and often sharply) expressed opinions on topical issues. He maintains that those factors tend against a conclusion that the article breaches the racial vilification provisions. 54 We agree that the ordinary reasonable reader would know that they are reading an opinion piece that may sharply express views that are different from their own. However, for the reasons set out above, we do not accept that the fact that the publication appears on an opinion page moderates the effect of any vilifying words in the article. 55 Turning finally to the social context, Mr Lancaster submitted that other factors were also relevant in determining whether the publication incites hatred. Those factors, in brief, are: · the fact that debate about politics in the Middle East, and the peace process, is a vigorous and ongoing one; · the views put forward by Switzer were opinions on a serious and longstanding matter of international debate; · the ordinary reasonable reader knows that a range of views is held and expressed on this issue; · the complainant has publicly released his own opinions in equally strident terms; · an obvious opinion piece in The Australian Financial Review - a paper whose readership is largely the general business community - is inherently unlikely to incite and ordinary, reasonable reader to any strong emotion such as hatred, serious contempt or severe ridicule of a particular group of persons; and · the Press Council dismissed the complaint finding that the respondent have provided adequate balance by publication of responses to the article. 56 While we agree that the social context is relevant in considering whether a public act incites hatred etc, we do not accept Mr Lancaster's submissions in relation to social context. 57 The first contention, that there is some significance in the fact that debate about politics in the Middle East, and the peace process, is a vigorous and ongoing one is rejected. We are aware that this line of reasoning has been supported in previous Tribunal decisions. For example, it was suggested in Hellenic Council Of N S W -V- Apoleski And The Macedonian Youth Association that: Finally, all of the evidence pointed to there being sometimes intense discussion and debate as to the matters contained in the article, both in the academic and general communities, over a considerable period of time. 58 In Aegean Macedonian Association of Australia v Karagiannakis (1999) NSWADT 130, the Tribunal considered an article which explained the role that the Greek community took in attempting to convince government to adopt the term "Slav-Macedonian" to refer to people from the Former Yugoslavian Republic of Macedonia (FYROM). In the course of its decision, the Tribunal said that: The Tribunal is of the view this article taken as a whole is not an act of incitement, it is more a part of the continuing acrimonious debate between the parties and those they represent. The Tribunal is of the view that the article whilst possibly upsetting to some does not incite hatred towards, serious contempt for, or severely ridicule a particular person or group of persons on the grounds of race. [22] and [24]. 59 We do not accept that the existence of intense discussion or debate about a particular issue is a factor which would tend to suggest that a public act does not amount to vilification. Indeed the existence of an intense and ongoing debate is a likely breeding ground for racially vilifying comments. 60 Nor is it relevant, in our view, that the reader is aware that people hold divergent and extreme views on a particular issue. The ordinary reader may well be aware for example, that people have extreme views on white supremacy. That does not make statements about white supremacy any less likely to incite hatred. 61 Next, Mr Lancaster submitted that the complainant has publicly released his own opinions in equally strident terms. He submitted a media release and two letters to the editor written by Mr Kazak which criticise Israel's actions in several contexts. These publications establish that Mr Kazak has publicly participated in debate about the role of the Israelis and the Palestinians in the Middle East conflict. However, they do not form part of the relevant context for the Switzer article. That article was not a response to anything Mr Kazak or any other member of the Arab community has said or done. 62 The Australian Press Council adjudicated on the same article and found that "The article was certainly vituperative but it was published as a clearly marked opinion piece. The newspaper provided adequate balance in the publication of Mr Hanna's opinion and Mr Kazak's letter." (Adjudication No 1016). The issue is not whether there are a range of opinions are subsequently expressed but whether the particular public act in question incites hatred at the time of publication. 63 We have rejected all the factors Mr Lancaster submitted as relevant in terms of the broader social context. However, there are some factors under this heading which we believe are relevant. 64 Communications take their meaning, in part, from the historical and social context relevant to the issues being addressed. Mr Lancaster provided the Tribunal with an excerpt from a publication entitled "Palestine and the Law - Guidelines for the Resolution of the Arab-Israel Conflict" (Musa E Mazzawi, Ithaca Press at 291-295). That excerpt summarises the issues which remain to be resolved. While there was no direct evidence of the extent to which both Israelis and Palestinians have been subjected to racism, it is beyond argument that both groups have suffered from racism in the context of the political debate in the Middle East and more generally. 65 The effect of incitement is what is more important. Mr Kazak states that "The Palestinian people have been labelled for years as "terrorists" and they are sick and tired of such racism and vilification. The psychological and social damage this has had on them and their children in schools is incalculable. It scars them for life." 66 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. (See Akmeenmana and Jones "Fighting Racial Hatred" (Race Discrimination Commissioner Racial Discrimination Act 1975: A Review, 1995) For example, the same words uttered about white Australians may not have the same effect as when they are said about indigenous Australians. Palestinians (and Arabs in general) as well as Israelis (and Jews in general) are both groups which have traditionally been the target of racism. While the legislation protects all racial groups from vilification, 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. On the ground of the race of the persons or members of the group 67 Mr Lancaster accepted and we find that Palestinians constitute a race for the purposes of section 4 of the Act. 68 Under s 20C the incitement to hatred etc must occur on the ground of the race of the person or members of the group. The words "on the ground" are used in the Act as part of the definition of discrimination and victimisation as well as in the vilification provisions (See, for example s 7, s 50 and s 20C). These words are not defined in the Act, however in 1994, the Act was amended to add s 4A which relates to a situation where an act is done for two or more reasons. That sections states that: If: 69 Because s 4A only mentions unlawful discrimination and not victimisation or vilification, the provision does not apply to those unlawful acts. This is logical because "on the ground of" in the vilification provisions relates to the relationship between race and incitement, not race and the public act. In other words, the grounds on which the public act was performed is not relevant, it is the ground on which the reader was incited to hatred etc which is relevant. 70 The phrase has not been considered in any detail in vilification cases before the Tribunal. However, on the basis of the plain meaning of the words in s 20C, there must be a causal connection between the race of the person or group of persons concerned and the feelings of hatred, serious contempt or severe ridicule which are incited by the public act. 71 On the basis of the above analysis we have concluded that the interpretation of the phrase "incitement to hatred, serious contempt or severe ridicule" should be based on the following principles: · each word should be given its ordinary dictionary meaning; a liberal construction should be applied, as long as that construction is not unreasonable or unnatural; · incitement can be achieved through comments made about a person or group; there is no requirement that those comments include a specific call to action against that person or group; · a complainant does not have to prove that the person performing the public act had a specific intention to incite hatred or that anyone was actually incited; · in determining whether incitement is established, the test is the ordinary reasonable person to whom the public act is communicated (or to whom it would potentially have been communicated) who is not malevolently inclined nor free from susceptibility to prejudice; · just because something is expressed as an opinion, does not mean that it is less likely to amount to vilification; · the content of the public act, the style of communication and the its context (including the social and historical context) are relevant in determining whether the act incites hatred etc; · the following factors are
relevant when determining the historical and social context of the public
act: · the following factors are
not relevant when determining the social context of the public act: 72 There must be a causal connection between the race of the person or group of persons concerned and the feelings of hatred, serious contempt or severe ridicule which are incited by the public act. Application of principles to the present case 73 The article is extremely short, less than 250 words. It starts with an account of the response of the Palestinians to two different incidents. The response to the first incident was support for President Clinton, while the response to the second incident was to denounce Clinton. Switzer draws the conclusion from this alleged behaviour that "the Palestinians cannot be trusted in the peace process." 74 The article goes on to argue that it is the Palestinians, and not the Netanyahu Government, who are responsible for "derailing efforts to reach an agreement over Gaza and the west Bank." To support this view, Switzer gives and example of Israelis making generous offers of land for peace while the Palestinians have "pursued over 300 terrorist attacks against innocent Israeli civilians." The article continues with an example of apparent corruption on the part of Yasser Arafat and concludes that "the Palestinians remain vicious thugs who show no serious willingness to comply with agreements." The final sentence notes that despite this behaviour, Clinton continues to induce and placate them and provide concessions. 75 The article is a mixture of allegations of fact, direct opinion and inferences. The relevant direct opinions are that "the Palestinians cannot be trusted in the peace process"; that "the Palestinians are the true culprits in derailing efforts to reach an agreement over Gaza and the West Bank"; and that "the Palestinians remain vicious thugs who show no serious willingness to comply with agreements." The relevant alleged facts include "the Israelis have been willing to offer land for peace since the 1993 Oslo accords" and "the Palestinians have pursued over 300 terrorist attacks against innocent Israeli civilians." The final sentence states that, "And yet these are the very people whom Mr Clinton is inducing, placating, offering all sorts of concessions." This statement infers that the Palestinians do not deserve the support they are receiving from President Clinton. There is also an inference that the Palestinians are hypocritical because of their alleged inconsistent response to various events. Many other inferences may arise from the article but these are the most obvious to us. 76 A reader of this article hears firstly that Palestinians cannot be trusted in the peace process. The clear inference of not being trustworthy is that they are not worthy of Clinton's, or our support. Next the reader is told that "the Palestinians" are "the true culprits in derailing efforts to reach an agreement over Gaza and the West Bank." It is inherent in this statement that they are guilty and are to blame for the fact that an agreement has not been reached. Next the reader hears that the Palestinians are vicious thugs. In other words they are violent and brutal. (The word "vicious" is defined in the Macquarie as "characterised by a brutally violent disposition"; "thug" is defined as "brutal viscous or murderous ruffian, robber or gangster.") 77 The reader also receives the direct message, presented as fact, that the Palestinians have pursued over 300 terrorist attacks against innocent Israeli civilians while the Israelis have been willing to offer land for peace since the 1993 Oslo accords. The ordinary reader will also infer from the article that, in Mr Switzer's view, the Palestinians are hypocritical and undeserving of President Clinton's assistance while the Israelis are going out of their way to secure peace and should be applauded for their actions. 78 The article as a whole paints an extremely negative picture of the Palestinian people and an extremely positive picture of the Israeli people and their government. The language used suggests that the Palestinians, unlike the Israelis, are unworthy and undeserving of support because, at least in relation to the peace process, they are hypocritical, untrustworthy, blameworthy and viscous. 79 The language used is strong and consistently demeaning. The context is that the Palestinians, like the Jews, have historically suffered a great deal of racism. 80 Mr Lancaster submitted that any incitement is not on the ground of race because the references throughout the article to "the Palestinian" are references to the political leaders or the administration of the Palestinian people, not to the Palestinian people themselves. 81 Mr Kazak's submission is that while the Switzer article mentions Israel's Netanyahu government, it does not once mention the Palestinian government, politicians or leadership. "He is clearly addressing the whole Palestinian nation as one." 82 We agree that Mr Lancaster's submission is not borne out by the text or the context. The phrase "the Palestinians" is used six times in the short article. No other term is used to describe the people to whom Mr Switzer is referring. By way of contrast, the term "the Israelis" is mentioned once and the term "the Netanyahu Government" is mentioned once. By using the words "the Palestinians" the article clearly and repeatedly identifies the group to whom he is referring. Any incitement to hatred etc is directed towards the Palestinians as a race. 83 In our view, based on these considerations, the ordinary reasonable reader would be incited to hatred or serious contempt of the Palestinians by reading the Switzer article. The article uses brief and one sided "factual" information to justify extremely negative generalisations about the Palestinians. It paints them as inferior to the Israelis in the sense that all the features attributed to the Palestinians are negative, while those attributed to the Israelis are consistently positive. It negates the worth and value of the Palestinian people in the peace process. The effect is to incite an ordinary reasonable reader to hate or despise Palestinians, to view them with contempt and to see them as inferior to the Israelis. Exceptions 84 The only exception relied on by Fairfax Publications is that contained in s 20C(2)(c), a public act, done reasonably and in good faith, for . . . purposes in the public interest including discussion or debate about and expositions of any act or matter." 85 Section 109 of the Act places the burden of making out any exception including the exception in s 20C(2)(c) on the respondent. That section states that: Where by any provision of this Act or the regulations, conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any inquiry lies upon the respondent. 86 Both parties accepted that the Switzer article concerns debate about and exposition of any act or matter, that is, discussion about the peace process in the Middle East. The only issue was whether the publication of the article was done reasonably and in good faith. Mr Lancaster submitted that even though the onus is on Fairfax Publication under s 109, the complainant has an evidentiary onus to at least point to something which could raise a concern about reasonableness or bona fides. We do not accept that this means that there is any positive obligation on a complainant to lead evidence which casts doubt on the reasonableness of honesty of the respondent's conduct. It is up to the respondent to make out this defence. 87 Fairfax Publications did not lead any evidence designed to demonstrate that publication of the Switzer article was done reasonably and in good faith. Mr Lancaster based his argument on three grounds. Firstly, publication on the opinion page, under the heading FOOTNOTE makes it clear that the views expressed are those of the author. Secondly, the publication of the articles and letters in response were fair and balanced. Thirdly, it was not unreasonable of The Australian Financial Review to provide a forum for vigorous opinions about an important issue in international politics and Australian foreign affairs. 88 We do not accept any of these submissions as discharging the respondent's onus of making out the defence in s 20C(2)(c). The fact that a communication is clearly the opinion of an author does not make it reasonable for Fairfax Publications to publish the article. 89 Mr Lancaster submitted, and we accept, that one indication of reasonableness is whether the comment is based on facts or alleged facts which are clearly presented. He submitted that the facts, though short, are presented to justify the comment. The "facts" presented in this case, even if accepted at face value, are totally one sided. No mention is made of any facts which may reflect poorly on the Israelis. Furthermore the opinions expressed on the basis of the facts are extreme and paint a consistently negative and derogatory picture of the Palestinian people as a whole. Support by brief, one sided "facts" does not make publication of the article reasonable. 90 Whether or not Fairfax Publications subsequently published letters or articles which provided some balance to the views expressed in the Switzer article is not relevant to the question of whether publication of the Switzer article itself was reasonable. Reasonableness must be assessed at the time of publication, not at some unstated future time, depending on what else appears in the paper. 91 It is certainly not unreasonable for The Australian Financial Review to provide a forum for vigorous opinions about an important issue in international politics. But publication of the Switzer article cannot be considered reasonable merely because it expresses an extreme view on a matter of international politics. 92 Consequently, the respondent has not discharged its onus of demonstrating that publication was done reasonably and in good faith. Constitutional issue 93 Mr Lancaster made an alternative submission if the Tribunal found that publication of the Switzer article amounts to unlawful racial vilification. The submission was that the Tribunal should decline to make such a finding on the ground that section 20C is invalid by reason of it infringing the constitutional freedom of communication about government or political matters. After the conclusion of the hearing, the Registry advised Mr Lancaster of the provisions of s 78B of the Judiciary Act 1993 (Cth) which requires notice of a constitutional issue to be given to the Attorneys General of the Commonwealth and each of the States before a matter can proceed. Mr Lancaster's view was that the Administrative Decisions Tribunal is not a court, therefore the requirements in s 78B do not apply. On this assumption, I have decided to deal with the submission on the constitutional invalidity of s 20C. 94 In Mr Lancaster's submission, s 20C is invalid because of the constitutional requirement of freedom of communication. The test to be applied is that a law will be invalid if it effectively burdens freedom of communication about government or political matters either in its terms, operation or effect and the law is not reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. (Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567-568.) 95 In response to the first part of the test s 20C effectively burdens freedom of communication about government or political matters in its terms. Any publication, including those which amount to a communication about government or political matters, are unlawful if they incite racial hatred and are not covered by the exceptions in s 20C(2). 96 The second part of the test is whether s 20C is reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. In our view it is. The legitimate end that the racial vilification provisions are designed to fulfil are set out in the second reading speech, quoted above in paragraph 15. One of those ends is to balance the right to a dignified and peaceful existence free from racist harassment and vilification with the right to freedom of speech. The balance has been struck by the legislature in a careful manner which is consistent with international conventions, such as ICCPR and CERD. 97 Consequently, the Tribunal rejects the respondent's submission that s 20C is invalid by reason of it infringing the constitutional freedom of communication about government or political matters. Remedies 98 Section 113 of the Act
provides that: 99 Mr Kazak has consistently requested an apology and a retraction together with orders about policy development and training. The parties agreed that the Tribunal should reconvene to hear submissions on appropriate orders if the Triubnal found for the complainant. 100 The Registry will contact
the parties to organise a hearing in relation to remedies. |
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