Australian Macedonian Human Rights Committee (Inc) v Victoria [1998] HREOCA 1 (8 January 1998)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

RACIAL DISCRIMINATION ACT 1975 (CTH)

Matter No: H97/189

BETWEEN :

AUSTRALIAN MACEDONIAN HUMAN RIGHTS COMMITTEE (INC)

COMPLAINANT

AND

STATE OF VICTORIA

RESPONDENT

REASONS FOR DECISION

OF

SIR RONALD WILSON

HEARING COMMISSIONER

Location: Melbourne

Dates of Hearing: 18 and 20 November 1997

Date of Decision: 8 January 1998

Appearances: Ms Deborah Mortimer of Counsel, instructed by Erskine Rodan & Associates for the Complainant

Mr Tim Ginnane, instructed by the Department of Premier & Cabinet, for the Respondent

1. THE FACTS

On 21 July 1994, the Premier of Victoria issued a memorandum to all his Ministers directing that all Victorian Government departments and agencies should thereafter "refer for the time being to the language that is spoken by people living in the Former Yugoslav Republic of Macedonia, or originating from it, as Macedonian (Slavonic)".

The memorandum included a further statement, reading as follows:

"How members of the respective communities choose to describe themselves and in particular how they choose to describe their ethnicity and language will continue to remain up to those individuals and communities themselves."

A written complaint with respect to the memorandum was lodged on 15 August 1995, in purported accordance with s.22(1)(c) of the Racial Discrimination Act 1975 (Cth) ("the Act"), with the Victorian Equal Opportunity Commission in its capacity as an agent of the Human Rights and Equal Opportunity Commission ("the Commission").

The complaint was lodged in the names of the Australian Macedonian Human Rights Committee and the Macedonian Community Council of Australia. Both are incorporated bodies.

Following inquiry and investigation, the complaint was referred to the Race Discrimination Commissioner ("the Commissioner"), a member of the Commission. By letter addressed to the parties and dated 26 June 1997, the Commissioner declined to inquire further into the matter because, having regard to s.24(2)(a) of the Act, she was satisfied that the conduct complained of was not unlawful by reason of a provision of the Act.

By letter of 15 July 1997, the Australian Macedonian Human Rights Committee (Inc) ("the complainant") exercised its right, pursuant to s.24(4)(a) of the Act, to require the Commissioner to refer the complaint to the Commission for public inquiry and determination. The matter was so referred by letter dated 8 August 1997 and consequently the Commission is authorised by s.25A(1) of the Act to conduct the present inquiry.

The standing of the complainant as a person aggrieved and therefore entitled to bring the complaint was clarified at a directions hearing held on 20 October 1997, when the Commission ordered that the complaint proceed as a representative complaint brought by the incorporated body on behalf of its members. The human rights and fundamental freedoms which the complainant alleges have been impaired by the Victorian Government directive are those possessed and enjoyed by the individuals whom the complainant represents.

The directive in question was preceded by decisions of the Federal Government taken in February 1994, consequent upon the break-up of the Yugoslav Federation and the gaining of independence of the former Yugoslav Socialist Republic of Macedonia. These decisions were that the new Republic would be described in all official publications as "The Former Yugoslav Republic of Macedonia" or "FYROM", and its people as "Slav-Macedonians". The Government of Victoria made similar decisions shortly afterwards. In publicising its decisions, the Federal Government made it clear that its decisions were not intended to hold any implications relating to the manner in which the language should be described.

2. THE LAW

The complainant alleges that the conduct of which it complains is rendered unlawful by reference to any one of ss.9(1), 13, 16, 17, and 18C of the Act. However, the hearing has focussed almost exclusively on s.9(1), and to a minor extent on ss.13 and 18C. I propose to confine my attention primarily to s.9(1). The provisions I have referred to read as follows:

s.9(1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.

s.9(2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any of a kind referred to in Article 5 of the Convention."

It will be observed that s.9(2) draws in a wide range of human rights and fundamental freedoms, not confined to those specifically referred to in Article 5. I will consider those relied upon by the complainant if and when the question arises.

s.13 It is unlawful for a person who supplies goods or services to the public or to any section of the public -

(a) to refuse or fail on demand to supply those goods or services to another person; or

(b) to refuse or fail on demand to supply those goods or services to another person except on less favourable terms or conditions than those upon or subject to which he would otherwise supply those goods or services,

by reason of the race, colour or national or ethnic origin of that other person or of any relative or associate of that other person."

s.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.

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

(a) ...

(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) ..."

It should be noted that these sections did not come into force until 13 October 1995; the directive was issued on 21 July 1994.

3. THE COMPLAINANT'S SUBMISSION

The complainant argues that the directive as to how the Macedonian language should be described by Government agencies in Victoria was an unlawful act, within the meaning of ss.9(1), 13 and 18C of the Act. They say further that the addition of the word "Slavonic" to the word "Macedonian", as the language has always been known both here in Australia and internationally, is insulting and offensive. It holds Macedonian linguistic and ethnic identification in contempt and that no other language has been treated by the Victorian Government in a similar way. Furthermore, it is alleged that the memorandum was issued without prior consultation with it or any of the communities associated with them.

With particular reference to the words of s. 9(1), it is alleged by the complainant that the directive involved a distinction, restriction or preference based on the ethnic origin or alternatively the descent of the people represented by the complainant, namely the people, inter alia, who speak the language nationally, internationally and linguistically recognized as Macedonian. The directive has the purpose and/or effect of impairing the recognition, enjoyment or exercise of a number of human rights and fundamental freedoms. It is unnecessary to particularise those rights and freedoms at this stage.

4. THE RESPONDENT'S SUBMISSION

In short, the respondent denies that its directive satisfies any of the elements of unlawfulness described in ss.9(1), 13 or 18C of the Act. It claims that to describe the language, for official purposes, as "Macedonian (Slavonic)" is not inaccurate and that in any event the action was taken solely because of the Government's responsibility to restore and maintain the peace and harmony of the Victorian community.

In its submission, s. 9(1) is not attracted unless the directive in fact produced a distinction on the basis of ethnic origin and the existence of that ethnic origin distinction was the basis of the directive in the sense that the directive was made by reason of or by reference to the ethnic origin distinction. This does not mean that the inquiry is one as to motive. The inquiry is into whether the ethnic origin distinction was a material factor in the making of the directive.

5. THE ISSUES

In the context of this case, s.9(1) of the Act raises a number of issues, some of which are complex and difficult of resolution. I have been assisted by lengthy and detailed written submissions from the parties together with references to many relevant authorities. I express my appreciation to Counsel for all that assistance. The fact that I do not find it necessary to discuss the issues with the same degree of detail contained in the written submissions does not mean that they have not contributed to the general understanding underlying my decision.

In my understanding there is a central problem which lies at the heart of the case. I believe it can be described in general terms, before coming to any particular words in the Act.

It is a question of the true characterisation of the act alleged to constitute racial discrimination.

The background to the problem is found in the tensions and rivalry going back for most of this century between two ethnic communities, both of whom make competing and exclusive claims to the use of the word "Macedonian" in relation to language. One of these groups is the people occupying that part of the former Yugoslavia which is now known, at least temporarily, as FYROM. The other is the group which occupies the northern region of Greece which is known as Macedonia. Both these groups have significant followings in Victoria and unfortunately many of the old tensions find expression in that State. The complainant represents individuals who acknowledge a strong loyalty and identification with the people of FYROM.

The tensions between the two groups, both in Europe and Victoria, were exacerbated following the break-up of the Yugoslav Federation and the efforts of FYROM to be recognized as an independent nation known as the Republic of Macedonia.

The decisions of the Federal Government to which I have referred earlier in these reasons further aggravated the situation in Victoria. A chronology of events which was received in evidence shows that between 15 February 1994, when the Federal Government's decisions were made and 19 April 1994, there were no less than nine distinct incidents of violence in Melbourne which caused or could have caused serious damage to property and risk to the lives of people. During the same period there was a brawl involving about 300 people at a soccer match and a protest march when approximately 60,000 members of the Greek community marched to Parliament House to protest the Federal Government's decision to recognise FYROM.

It is against this background that the respondent's directive was made on 21 July 1994. The members of the Slav-Macedonian community saw it as a deliberate assault on their rights, taken by a Government which in their view had demonstrated a sympathy for members of the Greek community in the problems that had arisen over the use of the word "Macedonian". They found support for this view in the belief that while the Government had consulted with representatives of the Greek community before making the decision, it had neglected to consult adequately or at all with their side. The addition of the word "Slavonic" to the word "Macedonian" when describing their language was seen as insulting and offensive and a standing embarrassment to their children and their families in relation to their education. In no other part of Australia and in no other country in the world had it been found necessary to qualify the description of their language as "Slavonic".

On the other hand, the respondent asserts that the Slav-Macedonian community has totally misunderstood the reason for its directive. In essence, it seeks to make two points. The first is that its action was to be expected following the decisions of the Federal Government to recognize FYROM by that name and the people associated with that country as Slav-Macedonians. The directive was entirely consistent with and consequent on those decisions. The fact that the spokespersons for the Federal Government disavowed any necessary connection between the decisions taken by the Federal Government and the directive was the kind of difference of opinion to be expected from Governments of opposing political affiliations. In any event, whatever the view of the Federal Government, the Victorian Government was responsible for education in Victoria and the decision on the directive was entirely within its powers. More to the point, the Government has a responsibility for the peace, order and good government of Victoria. The State had experienced very disturbing turmoil involving threats to life and property and it had an overriding responsibility to make what decisions it could to ease the tension between the two warring communities. This was the sole reason for the directive. It had an objective and reasonable justification and there was reasonable proportionality between the means employed and the aim sought to be realised It may have made a mistake in failing to consult more adequately with representatives of the Slav-Macedonian community prior to issuing the directive but that mistake was not sufficient to establish bad faith and an ulterior agenda on the part of the Government.

I believe that my description of the cases advanced respectively by the parties accord substantially with the evidence. If I now translate them back into the language of s.9 of the Act, it will be seen that one element in particular bears the burden of decision, although of course other considerations may remain for decision depending on the answer to the first issue. That element is whether the directive was "based on race, colour, descent or national or ethnic origin". It is to that question that I now turn.

6. FINDINGS

There is authority available on the construction to be given to the word "based" in s. 9 of the Act. In Australian Legal Rights Movement Inc v South Australia (No.1) [1995] SASC 5224; (1995) 64 SASR 551, (the Hindmarsh Bridge case) at p. 553, the Chief Justice (with whom Bollen J agreed generally and Debelle J agreed on this issue at p. 557), said:

"--In my opinion that section (that is, s.9) is not attracted unless an act (the relevant act being the appointment of the Royal Commissioner) is done which in fact produced a distinction on the base (sic) of race (which has occurred here because the inquiry is into and affects Aboriginal beliefs only) and the existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. This does not mean that the inquiry is one as to motive. The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act."

I will continue the quote from His Honour's reasons because the facts discussed by him may provide a helpful analogy to the present case.

"6. In my opinion, on the available evidence, primarily comprising the Commission of Her Excellency the Governor, the decision to appoint a Commissioner to inquire was made because the "women's business" was believed to have been a significant factor in the decision by the Commonwealth Minister to make a declaration under s.10 of the Aboriginal and Torres Strait Islander Protection Act 1984 (Cth) and because subsequently there has been disagreement about the existence and genuineness of the "women's business" and because the Government has an interest for various reasons in the existence and genuineness of the "women's business"...

"7. In my opinion, on the available evidence, the basis of the decision to appoint an inquiry is not the race of the persons asserting the existence of "women's business" but, in brief, the making of the assertion, the result of that having been done and the subsequent controversy about the matter asserted.

"8. I have considered in particular the fact that the beliefs inquired into are beliefs characteristic of and apparently confined to Aboriginal belief, the fact that the declaration by the Commonwealth Minister was made under legislation which relates to the protection of Aboriginal heritage and the other links to the Aboriginal race. In other words, the subject matter of the inquiry has a distinctive association with the Aboriginal race, and perhaps a unique association.

"9. But in my opinion that does not expose race as the true basis of the decision. It does not disclose that the basis of the decision is a characteristic that appertains generally or uniquely to a particular race. In my opinion the basis of a decision remains in particular the asserted fact (be it correct or not) that a declaration was made under Commonwealth legislation in reliance upon assertions which are now disputed.

"10. For those reasons in my opinion the claim under s.9 of the Racial Discrimination Act fails.

The views of Doyle CJ were endorsed by Heerey J in Australian Medical Council V Wilson and Others (1996) 137 ALR 653 at p.665. In the same case, at p.682, Sackville J cites from the joint judgment of Deane and Gaudron JJ in Australian Iron and Steel Pty Ltd v Banovic (1989) 168 ALR 165, where their Honours in discussing direct discrimination "on the ground of sex" under s.24(1) of the Anti-Discrimination Act 1977 (NSW), suggest that the "true basis" for an act or decision is the"ground" of the decision. The true basis is not necessarily the ground assigned for the act or decision. Also, in Banovic, Dawson J, at p.184, adopted the term "true basis".

In Human Rights And Equal Opportunity Commission v Mount Isa Mines (1993) 118 ALR 80 at p.98-99, Lockhart J. discusses the meaning of "by reason of" as the words appear in the definition of discrimination in the Sex Discrimination Act 1984 (Cth). At p.99, His Honour says:

"In my opinion, the phrase "by reason of" in s.5(1) of the SD Act should be interpreted as meaning "because of", "due to", "based on", or words of similar import which bring something about or cause it to occur. The phrase implies a relationship of cause and effect between the sex (or characteristic of the kind mentioned in s.5(1)(b) or (c) of the aggrieved person and the less favourable treatment by the discriminator of that person."

It is noteworthy that both learned Counsel in the present case relied to some extent on these cases to support their submissions as to how I should answer the question - essentially a question of fact - as to the basis of the respondent's directive, perhaps thereby emphasising the difficulty of finding the right answer.

What, then, was the true basis for the directive? A consideration which may be of critical importance is that the onus of substantiating the complaint rests upon the complainant.

Applying the test enunciated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, if a finding in support of the complainant means that the Government must be found to have deliberately discriminated against one section of the community in order to favour another section and therefore be deserving of wide condemnation for such a lack of probity in office, then such a finding would surely call for proof based on more than a mere balance of probabilities.

Is there any other construction of events that would accommodate a finding in favour of the complainant? Is it possible, in the circumstances of this case, that unlawful discrimination could have occurred through inadvertence on the part of the Government? Was it all a dreadful mistake? Perhaps the sad consequences of the change had not been appreciated. But, then, surely, the decision could readily have been reversed and the status quo restored.

Perhaps one gets nearer to the mark if it is a question of mixed reasons activating the decision to issue the directive: the political imperative that the Government must be seen to be doing something to ease the community tension that was so threatening to the peace and quiet of Melbourne and to do it in a way that would please the Government's Greek supporters at the expense of the Slav-Macedonians. Such a scenario would result in a finding against the respondent. However, while there are hints in the evidence tending in such a direction, such as the lack of adequate consultation and the perceived warm relationship between the Greek community and the Government, in my opinion the evidence lacks sufficient cogency to establish such a conclusion.

In the result, then, I find that the evidence does not substantiate the complaint. In my opinion, although the circumstances are very different from the Hindmarsh Bridge case, there are some interesting parallels. In that case, the subject matter of the Royal Commission had a distinctive association with the Aboriginal race, and perhaps a unique association but that did not expose race as the true basis of the decision. In the words of the Chief Justice, "it does not disclose that the basis of the decision is a characteristic that appertains generally or uniquely to a particular race." His Honour found that the basis of the decision was that a declaration had been made under Commonwealth legislation in reliance upon assertions which were later disputed. Applying a similar process of reasoning to the present case, notwithstanding that the directive has an intimate relation to the ethnic origin of the members of the complainant body, I find the true basis of the decision is found in the Government imperative to take action to restore peace and harmony to the community. In my view, it cannot be said that, in the words of the Chief Justice, "the existence of the racial distinction is the basis of the relevant act in the sense that the act occurred by reason or by reference to the racial distinction". In other words, the racial distinction implicit in the directive was not a material factor in the making of the relevant decision. The unfortunate impact of the directive on the members of the complainant body was a fortuitous by-product of the performance by the respondent of its duty to advance the peace, order and good government of Victoria attracted by reason of the acts of violence already occurring and the potential for further tension between the Greek and Slav-Macedonian communities. It is immaterial that there may have been less hurtful steps that could have been taken or that the actual steps taken may have been misconceived or have failed to achieve their objective. The fact remains that the impugned conduct was not based on ethnic origin. Ethnic origin was not the reason giving rise to the directive; the need to alleviate community tension was.

7. CONCLUSION

Having found this central element of s.9(1) against the complainant, it is unnecessary to consider the other matters that have been in issue between the parties.

Not having been substantiated, the complaint must be dismissed.

Dated: 8 January 1998

__________________________

Ronald Wilson

Hearing Commissioner