Executive Council of Australian Jewry v Olga Scully [1997] HREOCA 59 (21 October 1997)

Human Rights and Equal Opportunity Commission

Racial Discrimination Act 1975 (Cth)

No. H97/109

Between:

Executive Council of Australian Jewry

Complainant

and

Olga Scully

Respondent

REASONS FOR DECISION UNDER S.25X

OF INQUIRY COMMISSIONER

THE HONOURABLE ROBERT NETTLEFOLD

Date of submissions: 24 June 1997

Date of Decision: 21 October 1997

1. INTRODUCTION

This is an inquiry pursuant to s.25A of the Racial Discrimination Act 1975 (Cth) ("the Act") into a complaint by the Executive Council of Australian Jewry ("the Council") against Mrs Olga Scully. The complaint was lodged by letter dated 1 August 1996. The complaint was referred to the Human Rights and Equal Opportunity Commission ("the Commission") for inquiry on 23 March 1997 pursuant to s.24E of the Act. The Council alleges that the respondent distributed offensive anti-Semitic literature in letterboxes in Launceston, Tasmania and sold anti-Jewish material at the Hart Street market in Launceston, Tasmania. The Council states that it has received 15 reports of receipt of anti-Semitic material allegedly sourced to Ms Scully since 1 October 1995.

2. PRELIMINARY QUESTION OF STANDING

The Council have sought to lodge this complaint on behalf of a class of aggrieved persons, being members of the Australian Jewish community.

In order to have the standing to make such a representative complaint under the Act, the Council must also be an "aggrieved person" for the purposes of s.22(1).

The preliminary question to determine is whether the Council is an "aggrieved person" and, therefore, has standing to lodge the complaint pursuant to s.22(1) of the Act. Related to this question is the breadth of the class of persons the Council is seeking to represent and the conditions for making a representative complaint under the s.25L of the Act.

3. RELEVANT LEGISLATION

Section 22(1) of the Act outlines who can lodge a complaint. So far as material, s.22 of the Act provides -

" 22 (1) A complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II or Part IIA may be lodged with the Commission by:

(a) a person aggrieved by the act, on that person's own behalf or on behalf of that person and another person or other persons aggrieved by the act;

(b) 2 or more persons aggrieved by the act, on their own behalf or on behalf of themselves and another person or other persons aggrieved by the act;

(c) a person or persons included in a class of persons aggrieved by the act, on behalf of the persons included in that class of persons; or

(d) a trade union of which a person or persons, or persons included in a class of persons, aggrieved by the act is a member or are members, on behalf of that person, those persons or persons included in that class of persons, as the case may be.

22(1A) In the case of a representative complaint, this section has effect subject to section 25L."

Section 25L outlines the conditions for making a representative complaint as follows -

"25L(1) A representative complaint may be lodged under section 22 only if:

(a) the class members have complaints against the same person; and

(b) all the complaints are in respect of, or arise out of, the same, similar or related circumstances; and

(c) all the complaints give rise to a substantial common issue of law or fact.

(2) A representative complaint under section 22 must:

(a) describe or otherwise identify the class members; and

(b) specify the nature of the complaints made on behalf of the class members; and

(c) specify the nature of the relief sought; and

(d) specify the questions of law or fact that are common to the complaints of the class members.

In describing or otherwise identifying the class members, it is not necessary to name them or specify how many there are.

(3) A representative complaint may be lodged without the consent of class members."

Under s.25M, the Commission may determine that a complaint is not to continue as a representative complaint. So far as is material, the section provides -

"25M (1) The Commission may, on application by the respondent or of its own

motion, determine that a complaint should no longer continue as a representative

complaint.

(2) The Commission may only make such a determination if it is satisfied that it is in the interests of justice to do so for any of the following reasons:

(a) the costs that would be incurred if the complaint were to continue as a representative complaint are likely to exceed the costs that would be incurred if each class member lodged a separate complaint;

(b) the representative complaint will not provide an efficient and effective means of dealing with the complaints of the class members;

(c) the complaint was not brought in good faith as a representative complaint;

(d) it is otherwise inappropriate that the complaints be pursued by means of a representative complaint.

(3) If the Commission makes such a determination:

(a) the complaint may be continued as a complaint by the complainant on his or her own behalf against the respondent, unless the complainant is a trade union; and

(b) on the application of a person who was a class member for the purposes of the former representative complaint, the Commission may join that person as a complainant to the complaint as continued under paragraph (a)."

Sections 18C and 18D are relevant to the substance of this complaint. So far as material, s.18C of the Act provides -

"18C(1) It is unlawful for a person to do an act, otherwise than in private, if:

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

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

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

(3) In this section:

"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place."

So far as material, s.18D of the Act provides -

"18D. Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment."

4. BACKGROUND TO THE COMPLAINT

At my direction, the Council made submissions on 24 June 1997 addressing the grounds upon which it alleged to be a person aggrieved by the alleged acts of the respondent.

According to its submissions, the Council represents the Australian Jewish community in relations with government, ethnic and religious bodies, the non-government organisation ("NGO") sector and is the Australian affiliate of major representative international Jewish organisations. It is an unincorporated non-profit organisation. Its constituents include bodies which serve as elected representative organisations of Jewish communities in the State/Territory in which they are based. It also includes a number of affiliated organisations.

The objects of the Council are as follows:

" (a) To represent and speak officially on behalf of Australian Jewry.

(b) To take such action as it considers necessary on behalf of Australian Jewry in matters that concern Australian Jewry or Jewry in other parts of the world.

(c) To support and strengthen the connection of Australian Jewry with the State of Israel."

The Council alleges that the material distributed by Ms Scully makes derogatory generalisations about Jews as a group and is therefore reasonably likely to offend, insult, humiliate or intimidate Jewish Australians. The material allegedly makes clear that Ms Scully is acting against Jews because of the race, colour or national or ethnic origin of Jewish Australians. In particular, the material -

"- presents an image of Jews as `anti-freedom', `pro-tyranny', existentially opposed to `white people'

- posits Jews will turn `non Freemasons, non-Jews and so on' into a `grey slave mass'

- claims Jews have deliberately lied about Jewish history so as to oppress `the Anglo-Saxon-Celtic and related people'

- describes pornography as the `Jewish contribution to America'

- referred to the `anti-Christ Jews'

- claimed that there was no Nazi Holocaust and that Jews invented the `Holocaust Campaign' to create `a feeling of collective indebtedness to the Jews' and subsequently to obtain political and economic benefit

- presented Jews as followers of something `worse that a Satanic Cult'

- advertised for sale material designed to incite racial hatred against Jews, such as Protocols of the Learned Elders of Zion and the Talmud Unmasked

- maintained that those who are understood by the Australian community to be Jews are `lying frauds' who `are trying to force the White Race to mongrelize'."

5. FINDINGS

5.1 Representative complaint

Turning firstly to the words of s.22(1), I note that the Council must be an aggrieved "person" under the Act. As an unincorporated association of representatives from the States of Australia and the Australian Capital Territory, the Council is not a "juristic person" for the purposes of the Act but merely a changing body of representatives. As such, and without the status or framework of a legal entity, the Council does not readily fall within the Act as a "person" with standing to lodge a complaint.

Turning more broadly to general principles of standing, a representative complainant must demonstrate a special interest in the subject matter of the action which is more than a mere intellectual or emotional concern.[1] The asserted interest, whilst not necessarily unique to the complainant, must go beyond that of the general public in that the complainant is affected to a substantially greater degree or in a significantly different manner.[2] An assessment must be made of the importance of the concern which the complainant has with the particular subject matter and of the closeness of that complainant's relationship to that subject matter.[3]

In the seminal decision of Australian Conservation Foundation Inc v Commonwealth of Australia & Ors (1980) 28 ALR 257, the High Court enunciated the requisite interest which would give rise to a right of standing. Gibbs J stated the test in the negative, as follows:[4]

"A person is not interested within the meaning of the rule, unless he is likely to gain some advantage, other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if his action succeeds or to suffer some disadvantage, other than a sense of grievance or a debt for costs, if his action fails."

Applying this test to the circumstances of the case, it would appear that the Council do not have the requisite interest to lodge the complaint. They are unlikely to gain an advantage in bringing this complaint other than the satisfaction of righting a wrong or upholding a principle or alternatively, are unlikely to suffer a disadvantage other than a sense of grievance or a debt for costs. To this effect, the Council cannot be said to be aggrieved under s.22(1) of the Act.

I should further note at this point my concerns at the breadth of the class that the Council are seeking to represent and whether such a diverse group of people, many of whom have presumably not even read the allegedly offensive material distributed by the respondent, are also likely to be "aggrieved" by her acts. A representative complaint cannot be made on behalf of an unlimited class of persons but must be localised to a particular group or area. In an analogous case, Ogle v Strickland (1987) 13 FCR 306, an Anglican priest and a Roman Catholic priest were given standing in the Federal Court of Australia to challenge a decision of the Censorship Board relating to the importation into Australia of an allegedly blasphemous film. However, the special vocational or professional interest on which the majority of the Federal Court determined standing was not to all committed members of the Christian community but to the plaintiffs, as priests. Likewise, in these circumstances, the possible cultural or spiritual interest which could give rise to standing cannot extend to all members of the Australian Jewish community. Accordingly, I am of the opinion that the Council have not adequately described or otherwise identified the class members for the purposes of s.25L of the Act.

5.2 Individual complaint

In his submissions on standing, Mr Jeremy Jones, the Executive Vice-President of the Council, stated his intention to pursue the complaint as an individual should I determine that it be discontinued as a representative complaint.

Under s.25M, the Commission may determine that a complaint is not to continue as a representative complaint. The complaint may be continued as a complaint by a complainant on his or her own behalf against the respondent and on the application of a person who was a class member for the purposes of the former representative complaint, the Commission may join that person as a complainant to the complaint so continued.

The difficulty in joining Mr Jones as a complainant in order to continue the complaint is that he is not an appropriate class member for the purposes of the former representative complaint, at least not as far as I have deemed the appropriate class. As a Jewish Australian living in Sydney, Mr Jones' special interest or connection with the actions of the respondent in Launceston, Tasmania is too remote to give rise to a right of standing.

6. CONCLUSION

As it is not possible to employ the provisions under s.25M so that the complaint may continue as an individual one, I have no other option but to dismiss the complaint under s.25X of the Act. I do so on the basis that the complaint is misconceived in that the complainant lacks the standing to pursue the complaint.

Whilst it is unfortunate that the merits or substance of this matter have not been considered, it is not the function or place of the Commission to retrospectively rewrite complaints in order for them to fall within the operation of the Act.

For the above reasons, the complaint should not be permitted to proceed to a hearing.

Dated the day of October 1997

.............................................

Robert Nettlefold

Hearing Commissioner [1]Australian Conservation Foundation Inc v Commonwealth of Australia & Ors (1980) 28 ALR 257

[2]Onus v Alcoa of Australia Limited [1981] HCA 50; (1981) 149 CLR 27 per Brennan J at 74

[3]Onus v Alcoa, ibid per Stephen J at 42

[4]Australian Conservation Foundation Inc v Commonwealth, ibid per Gibbs J at 270