Droga v Birch

Jurisdiction

1. The complaint was referred to the Tribunal for determination under section 93C of the Anti-Discrimination Act 1977. The Tribunal has power to dismiss the complaint, or to find it substantiated: section 108(1).

Standard of proof

1. Where the Tribunal needs to be satisfied of the existence of a fact - for example that an action has occurred - it needs to be satisfied on the civil standard of proof "the balance of probabilities" as set out in section 140 of the Evidence Act 1995. Evidence Act 1995 Section 140 Civil proceedings: standard of proof (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

The hearing

1. The hearing commenced at 10 AM on Friday, 30 September 2016 at the Tribunal in Sydney. Mr Droga appeared in person. There was no appearance of the Respondents.

Legislation

1. Racial vilification is proscribed by Part 3A of the ADA. Section 20C (1) provides as follows. 'It is 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.'
2. The Tribunal notes that the unlawful conduct constituting racial vilification must be a "public act". 'Public act' is defined relevantly in section 20B to include, (a) any form of communication to the public, including speaking, writing, printing, displaying notices, …….and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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. (Tribunal's bolding)

Definition of Race

1. Section 4 of the ADA defines race as follows. "race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.

What does the Tribunal need to be satisfied of?

1. To be satisfied that racial vilification has occurred, the Tribunal needs to be satisfied that there has been: 1. A public act; 2. The public act has incited hatred towards, serious contempt for, or severe ridicule of, a person or group of persons; and 3. This incitement has occurred on the ground of the race of the person or members of the group.

Mr Droga's Evidence

1. Mr Droga represented himself before the Tribunal. He gave oral evidence. Mr Droga identified himself as Jewish. He said he was born Jewish. His parents were Jewish. They were holocaust survivors who had come to Australia.
2. Mr Droga lives at number 61. Mr and Mrs Birch live on the property next door at number 59, with their six children. Mr Droga has no difficulty with the neighbours on the other side at number 63. Mr Droga's house at number 61 is freestanding as is the Birch family home at number 59. There is a dividing wire fence between the two properties.
3. Mr Droga said that he has lived at the property, number 61, for about three years. The Birch family moved in to number 59 a short time after him and they have lived there for close to 3 years. He said at first their relationship was amicable, but then it became unpleasant.
4. Mr Droga described numerous acts of harassment from members of the Birch family towards him. This included screaming and shouting both at home and in the street. There had been other unpleasant signs displayed. Mr Droga alleged he had been subject to violence in the street from Melinda and Cameron Birch's son, Conner. The police became involved. Mr Droga had obtained an AVO.
5. Mr Droga told his neighbours that he was Jewish during a conversation, but Mr Droga could not recall the exact conversation. The Birch family have erected a tarpaulin on a metal rod which extends the height of the fence between Mr Droga's home at number 61 and the Birch family home at number 59. This tarpaulin appears to serve as a visual screen between the 2 properties. Mr Droga told the Tribunal that after a period of harassment from members of the Birch family, one day in September 2015 he came out to find the sign displayed on the tarpaulin so that it was visible in Mr Droga's property.
6. Mr Droga showed the Tribunal 2 printed photographs on A4 paper of the sign on a blue tarpaulin. Mr Droga had taken photos of the sign on his mobile phone on the day he had first seen it on 24 September 2015. He showed these photos to the Tribunal with the date on the photo on his mobile phone.
7. Mr Droga said that it would not be have been possible to see the sign from the street. He thought it was possible that the neighbours at number 63 or over the back fence would have seen the notice because it stayed up for four or five days. At the tribunal's request, Mr Droga provided a hand drawn diagram showing the position of his property at number 61 and that of the Birchs at number 59. This diagram showed the position of the blue tarpaulin on the dividing fence and the approximate placement of the A4 sign on the blue tarpaulin. The diagram showed that Mr Droga had erected a grey doona cover by way of visual screening in front of the blue tarpaulin. The Tribunal finds that this grey doona cover would likely have prevented the occupants of number 63 from seeing the A4 sign. Their view across Mr Droga's backyard to the dividing fence between numbers 61 and 59 would have been blocked by it. Mr Droga has not asked any of the neighbours whether they saw the sign.
8. When the sign went up, Mr Droga had telephoned his sister Helen who lives in Sydney, as he was very distressed by it. After about four days, Helen Zimmerman came up to visit him and saw the sign. She too was very distressed by the sign.
9. Mr Droga showed the Tribunal other unpleasant signs that had been placed on the fence. They were in hand writing which the Tribunal considered was like the writing on the sign in question. The notice was situated on the Birch family side of the dividing fence and displayed into Mr Droga's yard. Mr Droga had not spoken to the Birch family about the sign he considered to be racially vilifying, as he was very distressed by it.
10. In his oral evidence, Mr Droga said at other times the Birch children had given the "Heil Hitler" salute to him, but he could not recall when this had occurred.

Evidence of Helen Zimmerman

1. Helen Zimmerman is Max Droga's sister. She spoke to the Tribunal by telephone. She said she was very aware of the harassment her brother had faced from the neighbours. She had tried to discuss it with Mrs Birch, as she wanted to try and resolve it. When Ms Zimmerman came to visit Mrs Birch, Mrs Birch did not answer the door.
2. Ms Zimmerman recalled that her brother had contacted her saying that he had seen the sign in question. Some four or five days later she had gone up to visit him and saw the notice. She also found the contents of the notice very distressing. Helen Zimmerman thought that the sign would have been visible to the property on the other side of her brother's at number 63. She said that her brother had been suffering a lot as a result of harassment from the neighbours.

Issues for determination

1. In determining whether to dismiss the complaint or find it substantiated, the Tribunal needs to determine the following issues:

1. Was the sign complained of displayed by Melinda and/or Cameron Birch?

2. Was the displaying of the sign a public act within the meaning of section 20 B of the ADA.

3. Did the displaying of the sign incite hatred, serious contempt, or severe ridicule.

4. If so, whether such hatred, contempt or ridicule was incited on the ground of race.
5. Mr Droga bears the onus of proving his case. The applicable standard is the civil standard of proof under section 140 of the Evidence Act 1995.

The Tribunal's findings of fact

1. Mr Droga's evidence was not contradicted, as there was no appearance of the Respondents. At the same time, the Tribunal also found Mr Droga to be a witness of credit.
2. The Tribunal makes the following findings.
3. The Tribunal accepts, that Mr Droga identifies himself as being both ethnically and religiously Jewish. For the reasons given in Cohen v Hargous [2006] NSWADT 209, persons who identify themselves as Jewish and see themselves as part of the "Jewish community" constitute a 'race' for the purposes of this definition as set out in section 4 of the ADA.
4. The Tribunal finds that during the relevant period of the complaint accepted by the President of the ADB and referred to the Tribunal, Melinda and Cameron Birch and their children lived in the property at number 59 next door to Mr Droga. There was a dividing fence between the two properties to which the Birch family had attached a blue tarpaulin. The Tribunal accepts Mr Droga's uncontradicted evidence that Mr and Mrs Birch were aware that Mr Droga was Jewish because he had told them in a conversation, prior to the display of the sign on the dividing fence.
5. The Tribunal was shown two printed photos of the sign in the terms complained of by Mr Droga. The Tribunal was also shown photos on Mr Droga's mobile phone which displayed the sign complained of on a background of a blue tarpaulin. The photos were date stamped 24 September 2015.
6. The Tribunal accepts Mr Droga's evidence that the sign was clearly visible to him at number 61 and that it stayed up for 3 to 4 days before it was removed. Mr Droga did not see who put the sign up, nor who removed it. Mr Droga did not discuss the sign with Cameron or Melinda Birch.
7. The Tribunal notes Mr Droga's evidence that he did not think that the sign would have been seen by neighbours at number 63. He had not discussed the sign with the neighbours at number 63, or any other neighbour.
8. The Tribunal finds as a matter of fact that the sign could not be seen other than by people attending Mr Droga's home.
9. Mr Droga said that he felt that the sign demonstrated hatred towards him because of his Jewish background. It was very distressing. He felt frightened.

Evidence of Ms Zimmerman.

1. The Tribunal notes that the President's report did not include a statement from Ms Zimmerman. The Tribunal had advised the Respondents, by letter dated 16 August 2016, that the hearing of the matter would be based on the contents of the President's report.
2. The Tribunal may inform itself as it thinks fit and is not bound by the rules of evidence. However, the Tribunal has not relied upon the evidence of Ms Zimmerman in making its findings.

Was the sign complained of displayed by Melinda and/or Cameron Birch?

1. The Tribunal is satisfied that the property at number 59, next door to Mr Droga's home at number 61, was occupied by Cameron and Melinda Birch and their children during the period of the complaint. In these circumstances the Tribunal finds on the balance of probabilities that Melinda and Cameron Birch were aware of and permitted the sign complained of to be attached to the dividing fence where it could be seen by Mr Droga at number 61. Mr Droga showed the Tribunal other signs in similar handwriting which had been displayed from the Birch's property. The message clearly referred directly to Mr Droga in the context of ongoing disputes between the two households. The message on the sign was intended to be seen by Mr Droga and was directed at him.

Was the displaying of the sign a public act within the meaning of section 20 B.

1. There are 3 limbs to the definition of a "public act" as set out below. The Tribunal is satisfied that only the first 2 limbs could be relevant to this matter.

Section 20 B "public act" includes: (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, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.

Relevant Case Law

1. The Tribunal must be satisfied there was communication to the public (section 20B(a)) or conduct observable by the public (section 20B (b)).
2. The Tribunal has considered a range of vilification case law in analysing whether the circumstances of Mr Droga's complaint are a public act. The first 2 limbs of this definition of a "public act" are replicated in the prohibitions against homosexual (section 49ZS) and transgender (section 38R) vilification under the Act.
3. In contrast to the display of a sign in this matter, much of the case law considers the definition of "public act" in the context of complaints of spoken vilification.
4. The definition of "public act" has been considered by the Tribunal on several occasions: Cohen v Hargous [2006] NSWADT 209; Kimble & Souris v Orr [2003] NSWAADT 49; Russell v Commissioner of Police [2001] NSWADT 32; Anderson v Thompson [2001] NSWADT 11.
5. More recently, the definition of public act was considered by Deputy President Chesterman in the matter of Mitry v Abbas [2013] NSWADT 214 at [16] to [18]. The complaint of racial vilification related to verbal comments made by the Respondent about the Applicant behaving "in the Lebanese way" outside the front door of the Applicant's office in Macquarie Street Sydney.
6. Deputy President Chesterman referred to decisions in other jurisdictions to shed some light on what is meant by the words "the public". "The public" had been held to include the possibility of being overheard by (R v Ashley [1991] NTSC 19; (1991) 77 NTR 27 at 30) or visible to passers-by, even if the act took place on private property: Kane v Church of Jesus Christ Christian Aryan Nations (No 3) (1992) 18 CHHR 268.
7. In R v D and E Marinkovic [1996] EOC 92-841 the Equal Opportunity Tribunal held that the placing of a note on the complainant's front door constituted a "public act" even though the block of units was not open to the public at large and was accessible only to residents and their visitors.
8. In Anderson v Thompson [2001] NSWADT11, the Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public. Although there were no eyewitnesses, the words were spoken with such force they could be overheard by other residents.
9. Deputy President Chesterman contrasts these findings of a "public act" with the Tribunal's finding that there was not a public act in the more recent case of Haas v Hosking [2010] NSWADT 42. In that matter, the Tribunal held that no 'public act' under section 20B was committed by the Respondent when, in the context of a dispute about the boundary between rural properties owned by him and the applicant, he made statements allegedly constituting racial vilification in the presence of two witnesses. The Tribunal reasons for finding that there had been no public act at [77 - 78] were that the words were part of a private conversation, which occurred on or adjacent to the Applicant's property and the conversation was not intended to be overheard by anyone other than the participants.
10. In finding that there was no "public act" the Tribunal referred to the fact that the alleged words were not uttered in the presence of, or within the sight or hearing of, any member of the public.
11. In the matter of Mitry v Abbas [2013] NSWADT 214, Deputy President Chesterman found that the conversation at the door of the Applicant's premises fell within the second limb of the definition of a public act - that is that there had likely been conduct "observable by the public" in terms of section 20 B (b). Deputy President Chesterman also commented at [42] that the Respondent's intention of whether the remarks were to be heard by other persons was not relevant. The fact that the likelihood of the remarks being heard by others was low or that only a few people might have heard them, did not preclude a finding that the remarks were 'observable by the public'.

Was there communication to the public?

1. This Tribunal considered the first limb of the definition of a "public act" in section 20B(a). Was the attaching of the sign to the dividing fence "(a) any form of communication to the public, including…. displaying notices."?
2. The Tribunal is satisfied that there has been displaying of a notice. The question is - was it a communication to the public?
3. In the matter of Jones v Trad [2013] NSWCA 389 the Court of Appeal held that a public broadcast on commercial radio fell within the definition generally of a "communication to the public." It is clearly the intention and aim of a commercial radio broadcast to communicate to the public. The display of a sign on a dividing fence between 2 neighbouring homes does not, on this Tribunal's view, carry the same intention or aim. The Tribunal might have formed a different view had the notice been attached to the front of the properties on the street. Where the notice was displayed is relevant to whether it constituted a "public act".
4. As noted, most of the cases which have considered "public act" have involved alleged spoken vilification. Some deal with the identical vilification provisions relating to transgenderism and homosexuality. The matter of Barry v Futter [2011] NSWADT 205 at [72]- [78] dealt with a conversation between 2 workplace participants which allegedly vilified a third-party workplace participant on transgender grounds. The Tribunal considered the Second Reading Speech accompanying the introduction of the transgender vilification legislation. It concluded that there was a common parliamentary intent in the introduction of all the prohibitions against vilification in NSW - racial, homosexual and transgender. That intention was "to reduce the incidence of violence and abuse, whether physical or verbal, against certain persons or groups."
5. In Barry v Futter the Tribunal considered the meaning of "public act" in relation to transgender vilification. The Tribunal concluded at [73] that "public act" in s 38S ADA, does not include a private conversation, even if that conversation takes place in a public place. Whether a spoken communication amounts to a private conversation or a communication to the public will depend upon all the circumstances in which the communication occurs.
6. The Tribunal set out the following indicators as to whether a spoken communication is a private conversation or a communication to the public. The indicators that it is a communication to the public might include:

• addressing an audience:
• addressing a group, as opposed to one other person;
• the nature of the communications; the intentions of the parties and the circumstances giving rise to the communication.

1. By analogy the Tribunal applies these indicators in relation to a conversation to the display of a notice on the dividing fence between Mr Droga's home and the Birch family's home.

Did the notice address an audience?

1. The notice was positioned on the dividing fence between number 59 and number 61. In this respect, it was directed to the occupants of number 61, Mr Droga - not an audience.
2. The content of the message was clearly aimed at Mr Droga himself, rather than addressing a group. The Tribunal refers to the words of the sign: "You should never have picked on my family. Now you pay."
3. The Tribunal finds that the words and symbols are calculated to intimidate Mr Droga and to put him in fear. The message is specifically directed to Mr Droga, in the context of the ongoing dispute between Mr Droga and the Birch family.
4. The "public" in this context would likely refer to those living in the neighbourhood and those moving through it. Mr Droga gave evidence that his sister visited his home, saw the notice and was distressed by it. The Tribunal finds Ms Zimmerman saw the notice in the context of visiting a private space - Mr Droga's home.
5. In all the circumstances set out, The Tribunal is not satisfied that the displaying of the notice falls within the first limb of the definition of public act - communication to the public.

Was there conduct observable by the public…including the display of signs?

1. The Tribunal considers that this question means - "Could the display of the sign have been seen by the public." In the matter of R v D and E Marinkovic [1996] EOC 92-841, the Equal Opportunity Tribunal held that the placing of a note on the complainant's front door constituted a "public act" even though the block of units was not open to the public at large and was accessible only to residents and their visitors.
2. By contrast, the Tribunal notes that Mr Droga lives in a single dwelling property. The sign was displayed on the dividing fence between the 2 properties. Mr Droga gave evidence that the sign could not be seen from the road. He also gave evidence that the sign might have been seen by the residents at number 63 - but he could not say it had been.
3. The sign was clearly observable by visitors to Mr Droga's home. Mr Droga's evidence is that his sister Ms Zimmerman visited and did see the sign. However, as set out above, the Tribunal is not satisfied that a visitor to a private home in this context constitutes" the public".
4. As set out above, the Tribunal is not satisfied that the displaying of the sign was observable to the public.
5. The Tribunal is not satisfied that there was either a communication to the public or conduct observable by the public by the displaying of the sign on the dividing fence. The Tribunal cannot be satisfied that there has been a "public act" as required by section 20B of the ADA. In these circumstances a complaint of racial vilification cannot succeed.
6. However, if the Tribunal is wrong about the finding that there is been no public act, the Tribunal has also considered the other relevant elements to a complaint of racial vilification.

Did the display of the notice incite hatred towards, serious contempt for, or severe ridicule of, Mr Droga on the grounds of his race?

1. In the matter of Jones v Trad [2013] NSWCA 389 at [56], Ward JA affirmed that the test to determine whether a public act had the capacity to incite the requisite emotion was an objective one (citing Burns v Laws (No 2) [2007] NSWADT 47 at [111]) and that it was not necessary to prove that any particular person was, in fact, so incited (at [160]) (citing Burns v Laws at [93]-[113]; Dimozantos v The Queen (No 2) [1993] HCA 52; (1993) 178 CLR 122 at 131). It was necessary, however to identify the "audience" to the act of vilification for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited to have serious contempt for the person the subject of the behaviour complained of.
2. In the matter of Burns v Corbett - see Burns v Corbett [2013] NSWADT 227 at [34], the Tribunal stated the test for establishing incitement in the similar provisions under section 49ZT, dealing with homosexual vilification and incitement: 34. In reaching our conclusions as to the interpretation of section 49ZT, we have sought to apply the following principles stated by Bathurst CJ in the leading case on the section, Sunol v Collier (No 2) [2013] NSWCA 196, at [41]: - 41 In these circumstances, s 49ZT should be construed as follows: (a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement. (b) It is not necessary for a contravention that a person actually be incited. (c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. (d) It is not necessary to establish an intention to incite....
3. In this matter, of course, the Tribunal has found there has not been a public act. However, if the Tribunal is wrong about this and the displaying of the sign on the dividing fence can be considered a public act, there is a 2-step process in establishing this further test of whether there is incitement.
4. First, the Tribunal must have established who the public (class) was to whom the sign was communicated or by whom the sign was observable.
5. Second, it is then necessary to establish whether the sign was capable of inciting such emotions in an ordinary member of the class to whom it is directed.
6. The Tribunal finds as a matter of fact, that the class was the occupants of and visitors to Mr Droga's home. It is not necessary to show that anyone was actually incited to hatred towards, serious contempt for, or severe ridicule of Mr Droga. However, the contents of the sign displayed must be capable of arousing emotions in an ordinary member of that class of people visiting Mr Droga in his home. The Tribunal is satisfied that the accusation in the sign is that Mr Droga's alleged behaviour of picking "on my family" warrants a violent death. The Tribunal is not satisfied however that the sign itself would incite hatred towards, serious contempt for or severe ridicule of Mr Droga in the minds of visitors invited to his private home. Such persons are likely to be congenially disposed towards Mr Droga.

Was any incitement to hatred towards, serious contempt for, or severe ridicule of Mr Droga on the grounds of his race?

1. The Tribunal has found that the sign would not arouse hatred towards, serious contempt for, or severe ridicule of Mr Droga in the mind of a visitor to Mr Droga's private home.
2. However, if the Tribunal is wrong about this, the Tribunal must consider whether such hatred towards, serious contempt for or severe ridicule of Mr Droga aroused by the display of the sign, was on the grounds of Mr Droga's race.
3. In Mitry v Abbas at [38], Deputy President Chesterman considered the scale or degree of incitement in the Respondent's spoken remarks about Mr Mitry's Lebanese background. He commented: 38. "the scale or degree of any incitement occasioned by the Respondent's remarks was relatively low. His references to the Applicant's Lebanese origins were brief and few in number. The thrust of his 'tirade' (to use the Applicant's term) was principally against the Applicant, not against the race to which the Applicant belongs."
4. In this matter, while the notice did refer to Mr Droga's Jewish ethnicity through the display of the swastika, the Tribunal finds that "thrust" of the sign was principally against a perception of Mr Droga's behaviour - "you should never have picked on my family" - not on Mr Droga's Jewish ethnicity.

Conclusion

1. The Tribunal finds that the display of the sign on the dividing fence caused deep distress to Mr Droga. He was intimidated by it. There is a poignancy to the composition of the sign. The message, communicated by a combination of a swastika and the gallows, in the context of Mr Droga's Jewish ethnicity was deeply disturbing to Mr Droga.
2. The provisions against racial vilification are however, directed at public acts. In these circumstances the Tribunal is not satisfied that there has been a "public act" as required by section 20B of the Anti-Discrimination Act, 1977.
3. For this reason, the complaint of racial vilification is dismissed I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 January 2017