Cohen v Hargous; Karelicki v Hargous [2006] NSWADT 209 (20 July 2006)

Last Updated: 20 July 2006

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Cohen v Hargous; Karelicki v Hargous [2006] NSWADT 209


PARTIES: FIRST APPLICANT
Anna Cohen
SECOND APPLICANT
Martin Cohen
THIRD APPLICANT
Alicia Karelicki
RESPONDENT
Martin Hargous



FILE NUMBERS: 051138
051136

HEARING DATES: 29 March 2006

SUBMISSIONS CLOSED: 26/04/2006



DECISION DATE: 20/07/2006

BEFORE: Britton A - Judicial MemberWeule B - Non Judicial MemberGill M - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Racial Discrimination Act 1975 (Cth)

CASES CITED: Burns v Dye [2002] NSWADT 32
Veloskey & Anor -v- Karagiannakis & Ors (EOD) [2002] NSWADTAP 18
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Collier v Sunol [2005] NSWADT 261
A obo V and A -v- NSW Department of School Education (EOD) [2000] NSWADTAP 14
Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548
Khan v Commissioner, Department of Corrective Services & anor [2002] NSWADT 131
Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1
Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243
King Ansell v Police [1979] 2 NZLR 531

APPLICATION: Racial - Vilification

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANTS
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
No appearance

ORDERS: 1. The complaints of racial vilification made by Martin Cohen, Anna Cohen and Alicia Karelicki are substantiated
2. The issue of relief is to be determined "on the paper" unless an application for a further hearing is received from one of the parties
3. If no such application is received the Applicants are invited to make written submissions about the orders if any sought. Such submissions to be filed and served within 14 days of the date of these orders. The Respondent is invited to make submissions in reply, to be filed and served within 14 days of receipt of the Applicants’ submissions.


Reasons for Decision:

REASONS FOR DECISION

1 The Applicants allege that Martin Hargous said in a loud voice in front of a group of people outside the Russian Club in Strathfield, "[w]hen Jews get involved everything turns to shit, because Jews are shits!"

2 Separate complaints were lodged with the President of the Anti–Discrimination Board by Martin and Anna Cohen and their friend, Alicia Karelicki asserting that those comments constitute racial vilification. The President in turn referred those complaints to the Tribunal for determination.

3 Being satisfied that all complaints arose out of the same subject-matter we decided to deal with all complaints in the same proceedings (s 100 of the Anti-Discrimination Act 1977 (AD Act)).

4 The matter was listed for hearing on 29 March 2006. The Applicants were self-represented. Mr Hargous did not attend. Being satisfied that Mr Hargous had been notified of the hearing we proceeded to hear the matter in his absence.

What happened?

5 The Cohens are tango dancing enthusiasts. Over the last few years they have been organising tango dance events throughout Sydney. In 2004 they attempted to organise an Australian tour of the Argentinean dance troupe, "Una Noche de Tango". For reasons not relevant to this matter that tour was cancelled.

6 The offending comments were overheard by Mrs Karelicki. On her account, she and a group of about eight people had been discussing the cancellation of the tour in the foyer of the Russian Club in Strathfield when she overheard Mr Hargous say loudly in Spanish, "[w]hen Jews get involved everything turns to shit, because Jews are shits!" She said she immediately confronted Mr Hargous and told him "Wash your mouth out I’m Jewish" to which he replied, that he "didn’t care". That account was corroborated by a number of people whose statements were tendered in these proceedings and is accepted by us. Mrs Karelicki said tears were running down her face and she was so upset that she left the Club immediately. She said she was embarrassed and thought everyone was looking at her. She also claimed that she avoided Tango dance events for several months to avoid encountering Mr Hargous.

7 The next day Ms Karelicki reported the incident to the Cohens. Both gave evidence that they were deeply upset and distressed. Mrs Cohen testified that she became so upset that she sought medical assistance and was eventually treated with antidepressants.

8 The Cohens claimed that after the incident some people within the tango circle were "distant" and the number of people attending their weekly tango nights dropped off.

Racial Vilification

9 Section 20 C of the AD Act makes it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

10 To succeed in their complaint of racial vilification the applicants must establish on balance that Mr Hargous committed:

a public act
which incites
hatred towards, serious contempt for or severe ridicule of a person or group of persons
on the ground of the race of the person or members of that group.

A Public Act

11 Section 20 B of the AD Act defines ‘public act’ to include:

a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material,

12 The offending words were said in Spanish in the foyer of the Russian Club in Strathfield in earshot of a group of about eight people some of whom understood Spanish. It is apparent given the breadth of the statutory definition that the offending words constitute a ‘public act’.

Incite hatred, serious contempt or severe ridicule

13 The meaning of these words was considered by the Tribunal (differently constituted) in Burns v Dye [2002] NSWADT 32 at [19 – 23]:

19 ... First, the word ‘incite’ is to be given its ordinary natural 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).
20 Second, the vilification provisions of the Act do not make unlawful the use of words that merely convey hatred towards a person, or the expression of serious contempt or severe ridicule: Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 at 78-266.
21 Third, proof of intention to incite, or that anyone was in fact incited, is not required. As noted in Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 at [93]:"It is the capacity of the public act performed by a person which is significant, rather than the intent of the person who performed that act. Further, it is the likely effect rather than the actual effect of the public act which is significant."...
22 Four, the audience or potential audience of the public act should be assumed to be the "ordinary reasonable person" as defined by the Australian Broadcasting Tribunal in Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 at 357 and quoted with approval in Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at p.10:
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.
23 ... the complainant must establish ... that the public act must be capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons. These words are to be given their ordinary dictionary meaning. Kazak v John Fairfax Publications Limited [2000] NSWADT 77 [at 40] set out the following definitions:
"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).

14 That approach has been adopted in subsequent decisions : Veloskey & Anor -v- Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 at [21 – 29]; John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [12 – 14, 32 – 34] and Collier v Sunol [2005] NSWADT 261 at [40-42].

15 It is reasonable to infer from his or her conduct that a person who, in a public place, loudly declaims denigratory remarks of an allegedly factual nature about an ethnic group intends to broadcast his or views, means them to be taken seriously and anticipates that he or she will stimulate or animate his or her audience, or those within hearing range, to accept those views and join with him or her in subjecting the group denounced to further denigration.

16 That inference can be drawn from Mr Hargous’s conduct. Mr Cohen argues that "packed into" the offending statement is a claim that Jews are unreliable, that Jews like Shylock are interested in exploiting their pound of flesh. We agree with that interpretation. In our view, it constituted an incitement to his hearers to denigrate or ridicule Jewish people on those grounds.

17 In our view the offending words were capable of inciting serious contempt for or severe ridicule of Jewish people.

On the grounds of race

18 All Applicants are Australian citizens, identify as Jewish and see themselves as part of the "Jewish community". Ms Karelicki was born in Argentina, Mrs Cohen in Singapore and Mr Cohen in Australia.

19 Critical to this issue is whether Jewish people constitute a race for the purpose of the AD Act. The Act was amended in 1994 to include the terms "ethno-religious origin" and "descent" in the definition of "race". Section 4 of the Act now defines race to include "colour, nationality, descent and ethnic, ethno-religious or national origin". The term "ethno-religious" or "ethno-religious origin" is not defined.

20 The question whether Jewish people constitute a race for the purpose of the AD Act was considered in A obo V and A -v- NSW Department of School Education (EOD) [2000] NSWADTAP 14. That case concerned a complaint on the ground of race bought by a parent on behalf of his two infant children against the Department of Education. The conduct complained of included the practice of conducting school prayers at school assembly and various school activities at Christmas and Easter. The Appeal Panel upheld the decision of the Tribunal that members of the Jewish faith did not constitute an "ethno-religious" group for the purpose of the AD Act. Commenting on the Second Reading Speech of the Attorney General, the Hon. JP Hannaford with respect to the purpose and effect of the 1994 amendments which broadened the definition of race to include "ethno-religious origin" the Panel stated:

15 When reference is had to the address of the Attorney General, two matters become immediately clear. The first is that, notwithstanding the verbal gymnastics involved, it is not inappropriate within the meaning of the anti-discrimination law of NSW, to refer to members of the Jewish faith as comprising a race ; see also Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 at 562-563.
16 The second aspect concerns the principal argument of the appellant. The penultimate paragraph of the Second Reading Speech makes it clear that the amendments to the definition of race in section 4(1) of the 1977 Act, were not designed to allow members of ethno-religious groups such as Jews, Muslims and Sikhs to lodge complaints in respect of discrimination on the basis of their religion. As appears from paragraphs 58 to 60 of the Tribunal's decision, the fact that the appellant may validly claim membership of the Jewish race on behalf of his children, by virtue of their adherence to the Jewish faith, does not of itself convert every discriminatory act (assuming for present purposes that there was discrimination) into discrimination on the ground of race. Explicitly in para 60, the Tribunal found that the alleged discriminatory conduct did not occur on the ground of race within the meaning of s 7(1) of the Anti-Discrimination Act 1977 but on the ground of religion.

21 The meaning of "ethno-religious origin" was also considered in Khan -v- Commisioner, Department of Corrective Services & anor [2002] NSWADT 131. There it was held that it is insufficient for the applicant merely to assert his Muslim faith to fall within the statutory definition of race.

22 In our view, the decisions in Khan and A obo V and A -v- NSW Department of School Education ought be distinguished on their facts from this case. In those cases, the issues at the heart of the complaints of discrimination concerned religious belief and practice. In Khan the complaint concerned the failure of the Department of Corrective Services to provide halal food to a Muslim prisoner. It was held in that case that Muslims do not constitute an "ethno-religious" group for the purposes of the definition in s 4 of the Act. In A the complaint concerned prayers and other religious practices and the question arose whether Jews constitute an "ethno-religious" group.

23 In this case, the question of "race" is wider. It concerns the broader issue of ethnicity without importing any religious element into the argument. The question for the Tribunal here is whether Jews constitute an ethnic group. Section 4 of the Act, by distinguishing between ethnic groups and ethno-religious groups, give statutory recognition to the fact that they are distinct concepts and not synonymous (although there may be some overlap between the two).

24 The question of race is not, for our purposes, a scientific, philosophic or linguistic one but one of statutory construction. We are aware that there are scientists who contend that the notion of race is itself fundamentally flawed, there being very little genetic difference between all human beings.

25 The Macquarie Dictionary defines "ethnic group" as "a group of people, racially or historically related, having a distinctive and common culture". (1st edition, Sydney, 1981.) Taking this definition as a starting point, it would therefore appear that individuals may belong to a number of ethnic groups. For example, a black American who converted to Judaism, such as Sammy Davis Jr, might legitimately claim to be ethnically American, African-American and Jewish because he or she belongs to three identifiable and historically and culturally related groups. On this definition there can be broad and narrow degrees of ethnicity. Another obvious example is that of assimilated Jews in Germany before 1933. It is a matter of historical record and common knowledge that they unquestionably regarded themselves as German in every sense but were also members of an ethnic sub-culture within the wider German culture. It was not they but the Nazis who decided that they were not "German".

26 In Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1 the Full Court of the Federal Court affirmed the trial judge’s decision that Jewishness was an ethnic or racially protected category under s 18C of the Racial Discrimination Act (Cth) 1975 the analogous provision in Commonwealth law to the NSW AD Act. It in turn followed the decision of Hely J in Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243. Decisions in similar vein have been delivered by the House of Lords in Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 and the New Zealand Court of Appeal in King Ansell v Police [1979] 2 NZLR 531.

27 In Jones v Scully Hely J considered the claim of the respondent to a complaint of racial discrimination. Ms Scully argued that Jews do not form an ethnic group. His Honour said (at [110] – [113]:

The respondent submits that Jews do not exist as a group by race, or ethnic origin in Australia or elsewhere, as, in her opinion, historical evidence shows that Jews are "mainly Turks" with a mixture of other races or nationalities who converted to Judaism in the 8th century AD. Leaving aside the historical accuracy of the respondent's sources (which evidence I have in any event rejected as proof of the underlying "facts"), the respondent's approach involves giving an unduly narrow construction to the expression "ethnic origin" where used in the RDA.
The meaning of "ethnic origins" was considered in King-Ansell v Police [1979] 2 NZLR 531. In that case the New Zealand Court of Appeal held that Jews in New Zealand formed a group with common ethnic origins within the meaning of the Race Relations Act 1971 (NZ). Richardson J said at p 543:

"... a group is identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs, beliefs, traditions and characteristics derived from a common or presumed common past, even if not drawn from what is biological terms is a common racial stock. It is that combination which gives them an historically determined social identity in their own eyes and in the eyes of those outside the group. They have a distinct social identity based not simply on group cohesion and solidarity but also on their belief as to their historical antecedents."

That passage was approved by the House of Lords in Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 at 564. See also Commission for Racial Equality v Dutton [1989] 1 QB 783, 799. In Miller v Wertheim [2002] FCAFC 156 at [14], a Full Court said, on the basis of King-Ansell, that it can readily be accepted that Jewish people in Australia can comprise a group of people with an "ethnic origin" for the purposes of the RDA.
That position is confirmed by the Explanatory Memorandum circulated in relation to the Racial Hatred Bill. At pp 2 - 3 the following appears:

"The terms `ethnic origin' and `race' are complementary and are intended to be given a broad meaning.
The term `ethnic origin' has been broadly interpreted in comparable overseas common law jurisdictions (cf King-Ansell v Police [1979] 2 NZLR per Richardson J at p. 531 and Mandla v Dowell Lee [1982] UKHL 7; [1983] 2 AC 548 (HL) per Lord Fraser at p. 562). It is intended that Australian courts would follow the prevailing definition of "ethnic origin" as set out in King-Ansell. The definition of an ethnic group formulated by the Court in King-Ansell involves consideration of one or more of characteristics such as a shared history, separate cultural tradition, common geographical origin or descent from common ancestors, a common language (not necessarily peculiar to the group), a common literature peculiar to the group, or a religion different from that of neighbouring groups or the general community surrounding the group. This would provide the broadest basis for protection of peoples such as Sikhs, Jews and Muslims.
The term `race' would include ideas of ethnicity so ensuring that many people of, for example, Jewish origin would be covered. While that term connotes the idea of a common descent, it is not necessarily limited to one nationality and would therefore extend also to other groups of people such as Muslims."

Jews in Australia are accordingly a group of people with an "ethnic origin" for the purposes of the RDA. There is evidence that Jewish people see themselves as a distinct community; that Jews are bound by common customs and beliefs; have a common language; and share other common characteristics. The views which Mrs Scully expressed as particular attributes she ascribed to Jewish people ... really assume that this is so.

28 In our view, Jews fall within the statutory definition because they constitute an ethnic group by virtue of their history as a people and the cultural links shared by all Jews. It is the mixture of historical and cultural identity that gives Jews their sense of identity as Jews within the wider communities they have settled in. Despite the very long duration of the diaspora it has meant that the Jews have maintained their sense of being "a people" which, put into the somewhat amorphous language of the statute, means that they are an "ethnic" group for the purposes of the definition of "race" in s 4.

29 Our views coincide with those of Hely J. We think that Mr Hargous’s remarks, like Ms Scully’s insults against Jews, assume that they were addressed to members of a distinctive ethnic group. That perhaps is the acid test of whether Jews are an ethnic group for the purposes of anti-discrimination legislation.

30 We are satisfied that the offending comments were capable of inciting serious contempt for or severe ridicule of Jewish people on the ground of their race.

Conclusions

31 The offending comments made by Mr Hargous in our view consisted unlawful racial vilification pursuant to s 20 C of the AD Act.

Relief

32 Having found the complaints of racial vilification substantiated it is now necessary for us to determine what if any orders ought be made. The orders available to the Tribunal are set out in s 108 of the AD Act.

33 The parties are invited to make written submissions about the form of relief if any to be granted. Any submissions to be filed and served within 14 days of the date of these the orders.