Executive Council of Australian Jewry & Anor v Olga Scully & Anor [1998] FCA 66 (13 February 1998)

FEDERAL COURT OF AUSTRALIA

HUMAN RIGHTS LAW - Racial discrimination - Complaint of racial hatred against Jews - Standing to make statutory complaint - Complaint by unincorporated association constituted by corporate members representing the Jewish community in each State and the Australian Capital Territory - Whether association was a "person aggrieved" by the alleged actions - Whether constituent members of the association were "persons aggrieved" - Whether Executive Vice President of the association had standing as a "person aggrieved".

EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY and JEREMY JONES v OLGA SCULLY and THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

NG968 OF 1997

JUDGE: WILCOX J

PLACE: SYDNEY

DATE: 13 FEBRUARY 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG968 of 1997

BETWEEN:	EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY First Applicant JEREMY JONES Second Applicant
AND:	OLGA SCULLY First Respondent THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Second Respondent
JUDGE:	WILCOX j
DATE OF ORDER:	13 FEBRUARY 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Human Rights and Equal Opportunity Commission to dismiss the complaint made by the applicants on 1 August 1996 be set aside.

2. The said Commission hear and determine the said complaint according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG968 of 1997

BETWEEN:	EXECUTIVE COUNCIL OF AUSTRALIAN JEWRY First Applicant JEREMY JONES Second Applicant
AND:	OLGA SCULLY First Respondent THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION Second Respondent

JUDGE:	WILCOX j
DATE:	13 february 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J: The applicants, Executive Council of Australian Jewry and Jeremy Jones, challenge a decision of the second respondent, the Human Rights and Equal Opportunity Commission ("HREOC"), to dismiss a complaint under the Racial Discrimination Act 1975 against Olga Scully, the first respondent. The Commission, constituted for the purpose by Commissioner Robert Nettlefold, held both applicants lacked standing to pursue the complaint.

The facts and legislation

Executive Council for Australian Jewry is an unincorporated association comprising seven corporate members and six corporate affiliates. The members are the Jewish community councils in each of the six States and the Australian Capital Territory. The six affiliates are all national organisations with an interest in a particular aspect of Judaism. According to an affidavit of Peter John Wertheim filed in support of the present application, the Council "is the `roof body' for Jewish Australians" and, in particular, those Jewish Australians who are members of its constituents "who amount to no less than 85% of all Jewish Australians".

On 1 August 1996 Mr Jones, the Council's Executive Vice President, wrote a letter to Zita Antonios, Race Discrimination Commissioner at HREOC, in the following terms:

"This Council wishes to lodge a formal complaint with your office under the Racial Hatred Act, 1995 against Olga Scully of 14 Thelma Street, Newstead, a suburb of Launceston, Tasmania.

Olga Scully has gone on the public record admitting that she has been distributing viciously anti-Jewish material as part of a campaign against Australian Jews.

Her activities have included placing unsolicited antisemitic material in letter boxes of both Jews and non-Jews in Launceston and selling anti-Jewish material at the Hart Street market. This Council has received 15 reports of receipt of antisemitic material sourced to Ms Scully since October 1, 1995. In her material she describes Jews as `leeches' involved in `destroying white Christian civilisation' and using `predatory tactics'. Copies of the relevant material are attached. Individuals who have witnessed her distributing the material and have confronted Ms Scully have indicated to this Council that, if necessary, they will testify that she is responsible for its dissemination.

This material has caused a great deal of distress to Jewish and other recipients. On her own published admission (see enclosure) Mrs Scully is involved in a campaign of disseminating anti-Jewish propaganda.

It appears that this campaign constitutes `a Public Act' which is `reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people' and `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'.

We look forward to your early advice."

The letter enclosed a bundle of printed material, some of it with handwritten notations. The material is stridently anti-Semitic.

The Racial Hatred Act 1995 added to the Racial Discrimination Act 1975 a new Part IIA entitled "Prohibition of Offensive Behaviour Based on Racial Hatred". That Part included s 18C which reads:

"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."

Certain exceptions are provided by s 18D.

Ms Antonios treated Mr Jones' letter as a complaint of contravention of s 18C, lodged under s 22 of the Act. Section 22(1) relevantly 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.

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

(2) ..."

Section 25L reads 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."

Section 25M(1) empowers the Commission, on application by the respondent or of its own motion, to determine that a complaint should no longer continue as a representative complaint. Subsection (2) sets out the circumstances where this may be done and subs (3) provides that, in such cases, the complaint may be continued by the complainant on his or her own behalf against the respondent.

The HREOC hearing

After obtaining a response to the complaint from Ms Scully, on 23 March 1997 Ms Antonios referred the complaint to HREOC. HREOC fixed the matter for hearing, before Commissioner Nettlefold, on 31 July - 1 August 1997. However, after reviewing the Referral Report, the Commissioner vacated those hearing dates and directed submissions concerning standing. On 17 June 1997 Susan Roberts, a Senior Legal Officer of HREOC, wrote to Mr Jones inviting "written submissions addressing the issue of the grounds upon which you allege that you are a person aggrieved by the alleged act or acts of the respondent".

On 16 July 1997 Mr Jones wrote to Ms Roberts enclosing a submission signed by him that dealt with both standing and the merits of the complaint. The part pertinent to standing read:

"1. Executive Council of Australian Jewry (ECAJ)

The Executive Council of Australian Jewry was established in 1944 to represent the Australian Jewish community to the Federal Government. Since that time the role of the ECAJ has expanded. The ECAJ currently represents the Australian Jewish community in relations with government, peak ethnic and religious bodies, the NGO sector, and is the Australian affiliate of major representative international Jewish organisations.

The ECAJ is the peak body of state-based Jewish roof bodies and of major national Jewish organisations. Our constituent bodies, such as the NSW Jewish Board of Deputies and Jewish Community Council of Victoria, represent Jewish organisations such as synagogues, schools, youth groups, welfare and social organisations.

Our affiliated organisations such as the Australasian Union of Jewish Students, the National Council of Jewish Women and Maccabi Australia Inc., are the major membership organisations for Jewish Australians.

This Council has made submissions to the HREOC, as well as to federal government and parliamentary inquiries, on behalf of the Australian Jewish community for more than fifty years.

This Council was recently given standing by the HREOC as a party representing the Australian Jewish community in a (successfully conciliated) racial hatred case. Our State constituent, the NSW Jewish Board of Deputies, has had its standing recognised by the NSW Anti-Discrimination Board under legislation parallel to the Racial Hatred Act.

Each of our constituents is more than happy to provide individual submissions as to the representative nature of the ECAJ if these are of assistance to the Commission.

2. Section 25L of the Racial Discrimination Act 1977

The complaint by the ECAJ -v- Olga Scully satisfies Section 25L as members of the Australian Jewish community have complaints against the same person; all of the complaints arise out of the same circumstances; and all the complaints give rise to a substantial common issue of letter or fact.

The class members on whose behalf the complaint is lodged are members of the Australian Jewish community. The class members have a common complaint that Ms Olga Scully's distribution of material in letter boxes and selling of material was done in a `public place' and the nature of that material is such that it is `reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people' and `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'.

3. Individual Complaint

In the event that the Commissioner decides that the complaint should not be continued as a representative complaint, I would like to pursue the complaint as an individual.

I do so as a Jewish Australian. In addition to offence caused to me simply as an individual who is Jewish, I have a public profile and am clearly and unambiguously identified as a Jewish Australian.

I submit that individuals exposed to vilifactory material concerning Jews as a class will perceive that I am a member of that class.

Where in Australia the material was distributed and where any individual Australian Jew resides should not be taken into consideration as Australia is a single jurisdiction for the purposes of the Racial Discrimination Act. As a Jewish Australian living in Sydney, I was offended by Ms Scully's actions."

Subsequently, apparently at Ms Roberts' request, Mr Jones sent her a copy of the Constitution of the Council. In a covering letter, he said "the Constituents are, in each instance, the elected representative organisation of the Jewish communities in each Australian State and the ACT". He mentioned the Council "is recognised as the representative organisation of the Australian Jewish community" by various national and international bodies.

The HREOC decision

The evidence does not establish whether Ms Scully participated in the Commissioner's consideration of the issue of standing, but it includes the Commissioner's decision on the matter, dated 21 October 1997. That decision is central to this proceeding.

After summarising the history of the complaint and the relevant legislation, Commissioner Nettlefold referred to the nature and objects of the Council:

"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."

The Commissioner set out particulars of the offensive nature of the material.

In setting out his findings on standing, Commissioner Nettlefold dealt separately with the competence of the complaint as a representative complaint and as an individual complaint. In relation to the first matter, he said:

"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. 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. 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."

Commissioner Nettlefold referred to the test of special interest stated by Gibbs J in Australian Conservation Foundation Inc v Commonwealth of Australia ("ACF")(1980) 146 CLR 493 at 530 and went on:

"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."

Turning to the matter of individual complaint, Commissioner Nettlefold said:

"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."

Commissioner Nettlefold concluded "the complaint is misconceived in that the complainant lacks the standing to pursue the complaint". He accordingly dismissed it pursuant to s 25X of the Act.

This proceeding

On 19 November 1997 the solicitors for the applicants filed an Application in this Court seeking review of Commissioner Nettlefold's decision pursuant to the Administrative Decisions (Judicial Review) Act. The matter came before me on 10 December 1997 when Mr Stephen Rothman SC appeared for the applicants and Ms Roberts for HREOC. Although she had been served with a copy of the Application and supporting affidavit, Ms Scully did not appear. Mr Rothman suggested the matter might conveniently be argued in written submissions. At this point Ms Roberts said that, conformably with comments of the High Court of Australia in The Queen v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36, HREOC did not propose to put submissions on the merits of the application but would be pleased to provide any assistance the Court might require. I responded that, while I appreciated the propriety of that attitude, in the absence of Ms Scully it would leave the Court without any contradiction of the applicants' arguments. I suggested, in the circumstances, it would be helpful, and not inappropriate, for HREOC to respond to the applicants' submissions. Ms Roberts agreed to do this. A timetable was fixed and submissions were subsequently filed.

Standing under the Racial Discrimination Act: principles

Section 22(1) specifies that a complaint about an unlawful act of racial discrimination may be lodged with HREOC by "a person aggrieved by the act" (para (a)), "2 or more persons aggrieved by the act" (para (b)), "a person or persons included in a class of persons aggrieved by the act" (para (c)) or "a trade union" (para (d)). Paragraph (d) is obviously inapplicable to this case.

In Cameron v Human Rights and Equal Opportunity Commission [1993] FCA 593; (1993) 46 FCR 509, a Full Court of this Court considered the meaning of "person aggrieved", in the context of s 22 of the Racial Discrimination Act. At 515 Beaumont and Foster JJ said the question whether a person is aggrieved by an unlawful act is a mixed question of fact and law. They went on:

"It is well settled that the test is objective, not subjective: A person does not qualify merely because he or she feels aggrieved by the act. He or she, in the judgment of the Court, must, in truth, be aggrieved by that act."

Their Honours mentioned an article written by Sir Gerard Brennan in which the present Chief Justice of the High Court noted, first, the trend towards relaxation of standing rules and, second, the similarity between the rules applicable to standing to sue at law, as enunciated in cases like ACF and Onus v Alcoa of Australia Ltd [1981] HCA 50; (1981) 149 CLR 27, and the accepted construction of the term "person aggrieved" in the Administrative Decisions (Judicial Review) Act. As Sir Gerard noted, early in the life of the Judicial Review Act, Ellicott J held it is a sufficient standing qualification under the Act that the applicant "can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public": see Tooheys Ltd v Minister for Business and Consumer Affairs [1981] FCA 121; (1981) 54 FLR 421. That approach has since been followed, so far as I am aware without exception, by members of this Court, including in decisions of the Full Court: see Ricegrowers Co-operative Mills Ltd v Bannerman [1981] FCA 211; (1981) 56 FLR 443 at 446-448, Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296 at 316-317 and US Tobacco Company v Minister for Consumer Affairs (1988) 20 FCR 520 at 527.

In a separate judgment, in Cameron, French J observed at 519:

"It is at least arguable that derivative or relational interests will support the claim of a person to be `aggrieved' for the purposes of the section. A close connection between two people which has personal or economic dimensions, or a mix of both, may suffice. The spouse or other relative of a victim of discrimination or a dependant of such a person may be a person aggrieved for the purposes of the section. It is conceivable that circumstances could arise in which a person in a close professional relationship with another might find that relationship affected by discriminatory conduct and have the necessary standing to lay a complaint."

Derivative interests have been recognised in several cases. For example, in Australian Institute of Marine and Power Engineers v Secretary, Department of Transport [1986] FCA 443; (1986) 13 FCR 124, Gummow J upheld the entitlement of a registered industrial organisation to seek review under the Administrative Decisions (Judicial Review) Act of a decision said to be likely to affect the manning levels and operational safety of certain ships. The Institute had no personal interest in the decision but was concerned about its effect on those of its members who served on the ships. In reaching his conclusion, Gummow J took into account, amongst other things, that the Institute had amongst its objects the obtaining and maintenance of reasonable conditions of employment of its members and the negotiation of awards and agreements with employers. (A similar approach has been taken to applications by registered industrial organisations in other contexts: see Shop Distribution and Allied Employees Association v Minister for Industrial Affairs of South Australia [1995] HCA 11; (1995) 183 CLR 552 at 558 and Tweed Valley Fruit Processors Pty Ltd v Ross (1996) 65 IR 393 at 415.)

Ogle v Strickland was a case of a derivative or relational interest. Two members of the Full Court (Fisher and Lockhart JJ) upheld the plaintiffs' standing claim on the ground they were priests; that is, because of their special duty, in the words of Lockhart J at 318, "to maintain the sanctity of the Scriptures, to spread the Gospel, to teach and foster Christian beliefs and to repel or oppose blasphemy". They owed this duty to ordinary members of their respective churches because they held leadership positions within those churches. The priests' position was not unlike that of the applicant in Bropho v Tickner [1993] FCA 25; (1993) 40 FCR 165 (spokesperson for a small group of Aboriginals who had a special association with the site the subject of the proceeding) and the plaintiffs in Onus (custodians of relics of the Gournditchymara people). In each case the person or persons accorded standing had a special responsibility, on behalf of others, in relation to the subject matter of the proceeding.

Environmental organisations have been granted standing on a derivative basis in some cases: see Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70, North Coast Environment Council v Minister for Resources [1994] FCA 1556; (1994) 127 ALR 617 and Tasmanian Conservation Trust v Minister for Resources (1995) 127 ALR 580. In each of these cases, the organisation's standing was recognised primarily because of its past active involvement in the subject matter of the litigation: the management of a particular forest area. However, the status of the organisation was also thought relevant. In the first case Davies J referred to evidence that the Foundation is the major national conservation organisation in Australia and of the purposes of its establishment. In North Coast at 637 Sackville J commented that the applicant "is the peak environmental organisation in the North Coast region of New South Wales, having 44 environmental groups as members". He summarised its activities and the recognition it had received from governments as the environmental organisation having a particular concern for the North Coast region. In Tasmanian Conservation Trust Sackville J made similar comments noting, in particular, that the Trust is the peak environmental organisation for Tasmania and is recognised as such by governments.

In Right to Life Association (NSW) Inc v Secretary, Department of Human Services and Health [1995] FCA 1060; (1995) 128 ALR 238 at 253, Lockhart J said he did not regard government recognition of a body "as a factor of any real significance". The appellant in that case was not recognised by government. But that was not the reason it failed to establish standing; it was held to have no more than an emotional attachment to the subject matter of the litigation and an intellectual satisfaction in success. Lockhart J made the point at 253 that standing could not be achieved merely by incorporating a body and providing it with relevant objects. He approved a comment by the primary Judge in that case, Lindgren J, that any other view "would allow individuals who were opposed to a decision, albeit sincerely and for unselfish motives, to acquire standing to challenge it by the procedure of devising an appropriate form of constitution, and if necessary procuring corporate form".

The Council's claim to standing

It will be recalled Commissioner Nettlefold said the first applicant, the Executive Council of Australian Jewry, was not a "person", within the meaning of s 22(1) of the Racial Discrimination Act. He thought this reason enough for concluding it was not a "person aggrieved" by Ms Scully's conduct. Mr Rothman accepts the Council is not a juristic person recognised separately and distinctly from its members; the Council as such is not a "person" within the meaning of s 22(1). But Mr Rothman points out that an unincorporated association must have members and rules creating a contract between the members, and the Council has those things. Accordingly, he says, any reference to the Council by its title is a reference to the members of the association acting together under the rules that mutually bind them; all those members are juristic persons and capable of being a "person aggrieved". Mr Rothman argues it is not unusual for persons acting through an unincorporated association to use their collective name rather than to list the names of each of the members. He cites three authorities.

Devane v Gati [1956] HCA 46; (1956) 95 CLR 174 was an appeal from a decision of an industrial magistrate dismissing informations alleging breaches of an industrial award. The informations were laid against two named individuals but the name used in the award was their firm name. The magistrate held that, as the firm was not a legal entity, the respondents were not bound by the award. The High Court disagreed, saying at 175-176:

"It was quite competent for the Court of Conciliation and Arbitration to deal in the firm name with a partnership carrying on business in the firm name. The partners of the firm against which proceedings in the Court of Conciliation and Arbitration were so carried on would be bound by an order or award made naming the firm, that is assuming that in all other respects the court had jurisdiction to bind them by the order or award. It is, of course, true that a partnership is not a separate legal entity. But the firm name is nevertheless a description of the individuals who compose the partnership and it describes them for the purpose of the firm's business. The rule of the common law was that for the purpose of suits and proceedings in the ordinary courts of justice the parties must be named as individual persons and the firm name did not satisfy this requirement, although for many other purposes it is recognized as a collective description. But the rule does not govern the industrial proceedings of the Court of Conciliation and Arbitration. It was perfectly proper for the informant to name them individually in the informations and, indeed, that was the only manner in which they could regularly be prosecuted in the present proceedings."

Similarly, in Re Independent Schools' Staff Association (ACT); ex parte Hubert (1986) 60 ALJR 450 the High Court upheld a finding of dispute arising out of service of a log of claims addressed to the principal of a school conducted by an unincorporated School Board. A Deputy President of the Conciliation and Arbitration Commission had determined there was a dispute and the School Board was a party to it. The High Court said it would be incorrect to refer to the Board as the employer, since it was an unincorporated body, but it would be correct to refer to the members of the Board for the time being.

Peckham v Moore [1975] 1 NSWLR 353 involved a workers' compensation claim. Peckham had entered into a contract of employment in which the named employer was an unincorporated football club. The contract was executed on behalf of the club by a member of the management committee. The New South Wales Court of Appeal held Peckham must be taken to have contracted with the club committee.

Relying on these cases, Mr Rothman argues that a complaint made by "Executive Council of Australian Jewry" must be regarded as a complaint by its constituent members; whilst in a court of law it would be necessary to describe each person by his or her proper name, in an administrative tribunal context it is sufficient to use the persons' collective name. I think this is correct and is supported, not only by the two High Court industrial decisions mentioned above, but by the decision of the Full Court of this Court in Arnold v Queensland (1987) 73 ALR 607, referred to in HREOC's submission. That was an appeal from a decision of the Administrative Appeals Tribunal. During the course of its hearing of the matter, the Tribunal made an order joining as an additional party an unincorporated association called "Australians for Animals". Being disappointed about the Tribunal's decision on the merits, the association filed a notice of appeal under that name. When the matter came before the Court, the respondent questioned the competence of the appeal. The applicant countered by seeking leave to substitute, as applicant, "Jane Suzanne Arnold on behalf of Australians for Animals". The respondent opposed leave, arguing the appeal was incompetent. The Full Court disagreed and granted leave. In a passage at 612-613 with which Woodward and Burchett JJ agreed, I said:

"I do not accept the submission of incompetence. The relevant question is not the subjective intention of the members of the tribunal but the effect of their order. Once it is understood that there is no corporate entity known as `Australians for Animals' and that an unincorporated association may not be joined as a party under s 30(1)(d), effect can be given to the tribunal's order only by reading it as an order joining as parties the individual members of the Association as at that date. Such a construction of the order would not be unusual or artificial. Rules of court frequently permit proceedings to be instituted in the name of, or against, a firm or unincorporated association; see, for example, both the limited provisions contained in O 42, rr 12-21 of the Federal Court Rules and in Pt 64 of the Rules of the Supreme Court of New South Wales and the wider provisions of r 36 of the Rules of the Supreme Court of South Australia. In such a case the real parties are always the members of the relevant firm or association."

I agree with Commissioner Nettlefold that, as Executive Council for Australian Jewry is not a "person" in the eyes of the law, it is incapable of being a "person aggrieved" within the meaning of s 22(1) of the Racial Discrimination Act. Therefore it is not itself a competent complainant. However, this does not mean its complaint is a nullity. It is necessary to go behind the name and consider whether the juristic persons who constitute the unincorporated association are "persons aggrieved" by the allegedly unlawful act. If they are, the complaint is competent because in law, though not in name, it was made by them.

If Commissioner Nettlefold had reached this point, he would presumably have held the seven members and six affiliates of the Council do not have an interest in the subject matter of the complaint that meets the Tooheys test; they cannot each show a grievance suffered as a result of the allegedly unlawful acts beyond that which they have as ordinary members of the public. I make this assumption because Commissioner Nettlefold said the Council itself (supposing it had been a "person") did not have the requisite interest to lodge the complaint; the Council was "unlikely to gain an advantage in bringing this complaint other than the satisfaction of righting a wrong or upholding a principle or alternatively, ... to suffer a disadvantage other than a sense of grievance or a debt for costs". Having regard to his comment about Mr Jones' interest being too remote because he lived in Sydney, it seems Commissioner Nettlefold would have ruled against claims of special interest by (at least) those constituents of the Council that are concerned with the affairs of Jewish communities in States other than Tasmania.

Although it is not necessary to reach a firm view about the matter, it is strongly arguable that, considered individually, the constituents of the Council that represent Jewish communities outside Tasmania do not have a sufficient interest to meet the statutory test. However, I think the Hobart Hebrew Congregation clearly has the requisite interest. As I have mentioned, Mr Jones informed Ms Roberts that the constituents of the Council "are, in each instance, the elected representative organisation of the Jewish communities in each Australian State and the ACT". It is apparent, therefore, that, despite its name, the Hobart Hebrew Congregation represents the Jewish community throughout Tasmania, including in the Launceston district. If there is truth in the allegations made against Ms Scully, her actions must have had a special impact on members of the Launceston Jewish community. According to the complaint, some of those people received Ms Scully's material in their letter boxes. Probably all of them have come into contact with non-Jews who have received the material and whose attitude to Jews may thereby have been adversely affected. It seems beyond contest that, if the acts occurred, they affected members of the Launceston Jewish community in a manner different in kind to the way they affected non-Jews, or even Jews living outside the Launceston area. Given the recognition in the authorities of the entitlement of representative bodies to obtain relief on behalf of members who have a special interest in a matter, I see no reason to doubt that the Hobart Hebrew Congregation is a "person aggrieved" by the alleged acts.

If the Hobart Hebrew Congregation could make a competent complaint under s 22(1)(a) of the Act in its own name, it seems to me the Council (through its members) also may do so. As the Hobart Hebrew Congregation is a constituent of the Council, the Council represents at the national level those members of the Launceston Jewish community who were specially affected by Ms Scully's actions. Of course, the Council is not itself a "person", it is an agglomeration of "persons", so any complaint is legally the complaint of its members. In their representative role, if not on an individual basis, those persons were "persons aggrieved" by the alleged unlawful acts. In my opinion, the case falls within para (b) of s 22 (1) of the Act.

Mr Jones' claim to standing

Mr Jones put himself forward as a "person aggrieved", able to pursue the complaint of the Council, in the event it was determined the Council itself could not do so. However, Commissioner Nettlefold held Mr Jones was not a "person aggrieved" by Ms Scully's alleged acts because he resided in Sydney; Ms Scully had not put the material in his letter box. But Mr Jones' claim of special affection did not depend on his place of residence. He offered himself as complainant because he was the Executive Vice President of a body that represented 85% of the Jewish population of Australia. He was a senior officer of the Council with major responsibility for the achievement of its objects. They included representing Australian Jewry, including Jews resident in the Launceston district. To describe Mr Jones' connection with the matter simply as "a Jewish Australian living in Sydney" was to ignore his representative role.

I do not think it necessary to determine whether the present complaint is a representative complaint falling within s 25L of the Act. It is a condition of the use of that section that "the class members have complaints against the same person": see s 25L(1)(a). That must mean all the class members. In the present case, the Council identified the class as "members of the Australian Jewish community"; that is, all Australian Jews wherever resident. The identification seems to depend on the view that anti-Semitism anywhere in Australia affects all Australian Jews. This is a respectable view. It brings to mind John Donne's famous Meditation XVII:

"No man is an island ... any man's death diminishes me, because I am involved in Mankind; And therefore never send to know for whom the bell tolls; it tolls for thee."

However, the law of standing takes a more restrictive attitude. In Ogle v Strickland I favoured according standing to the plaintiffs simply on the basis they were committed Christians susceptible to an offence from blasphemy that would not be shared by non-believers. Perhaps my approach reflected the non-conformist Christian tradition of "the priesthood of all believers" in which I was raised. But Fisher and Lockhart JJ were not prepared to go that far; on their approach, perhaps, Mr Jones defined too widely the class of people specially affected by Ms Scully's activities.

As I say, it is unnecessary to reach a final view about this matter. I have pointed out the authorities recognise that a person may be a "person aggrieved" because of a special responsibility to safeguard the interests of a group. In my opinion, Mr Jones is in a position similar to that of the applicants in Ogle v Strickland, Bropho v Tickner and the industrial and environmental cases cited above. Mr Jones is a "person aggrieved" because he is the Executive officer of the national Jewish organisation, an organisation that represents the interests of Jews throughout the country, including in the Launceston area. Whether or not the complaint falls within s 25L of the Act, it is competently made under s 22(1)(a).

Orders

The decision of HREOC was erroneous in law. It should be set aside and the Commission ordered to hear and determine the complaint according to law.

I certify that the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated: 13 February 1998

Counsel for the Applicants:	S Rothman SC
Solicitor for the Applicants:	Geoffrey Edwards & Co
Solicitor for the Second Respondent:	Susan Roberts
Date of Hearing:	13 February 1998