Jones v Scully

REASONS FOR JUDGMENT 1 On 21 September 2000 the Human Rights and Equal Opportunity Commission ("HREOC") determined that Mrs Olga Scully engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 ("RDA") by "distributing anti-Semitic literature in letterboxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston". HREOC made declarations that Mrs Scully should not repeat or continue the unlawful conduct and that she should apologise for her unlawful conduct by writing a letter of apology to the complainants in the terms specified in the decision. 2 That determination was made in proceedings in which the identity of the complainants was a matter of some controversy: see Executive Council of Australian Jewry v Scully (1998) 79 FCR 537, per Wilcox J. Ultimately HREOC concluded that the complainants should be identified as the Hobart Hebrew Congregation and Mr Jeremy Jones (in his capacity as Executive Vice-President of the Executive Council of Australian Jewry). HREOC's reasons, and the accompanying determination, were headed accordingly. 3 In the proceedings before Wilcox J, to which I earlier referred, his Honour did not find it necessary to determine whether the complaint by Mr Jones was a representative complaint falling within s 25L of RDA. At 550 his Honour said: "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)." Section 22(1)(a) provided for a complaint to 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;" 4 On 21 February 2001 an application styled: "Application under the Human Rights and Equal Opportunity Act 1986 and the Human Rights Legislation Amendment Act (No 1) 1999 to enforce a determination of unlawful discrimination by the Human Rights and Equal Opportunity Commission under the Racial Discrimination Act 1975" was filed with the Court. Olga Scully was named as the respondent to the application. The applicant was described as follows: "JEREMY JONES for himself and for the members for the time being of the Committee of Management of the Executive Council of Australian Jewry". The application claimed the following relief: "1. A Declaration that the Respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act 1975 (Cth) by having distributed anti-Semitic literature in letterboxes in Launceston, Tasmania and by selling or offering to sell such literature at a public market in Launceston. 2. An Order that the Respondent be restrained from repeating or continuing such unlawful conduct. 3. An order that the Respondent forthwith deliver to the Applicant, Jeremy Jones, a written statement of apology, signed by the Respondent, in the following terms: 'I, Mrs Olga Scully, do hereby unreservedly apologise to you and to the Hobart Hebrew Congregation for my conduct in distribution (sic) anti-Semitic literature in letterboxes in Launceston, Tasmania, and by selling or offering to sell such literature at a public market in Launceston in contravention of the Racial Discrimination Act 1975 (Cth).' 4. An Order that the respondent pay the Applicant's costs. 5. Such further or other Orders as the Court may deem appropriate." 5 By a Notice of Motion filed on 25 May 2001 Mrs Scully seeks an order that the application should be summarily dismissed because: "3. it is not brought by a party to proceedings referred to in the Human Rights and Equal Opportunity Commission; 4. the terms of enforcement sought in the application are not the terms of the order made by the Human Rights and Equal Opportunity Commission; 5. the order made by the Human Rights and Equal Opportunity Commission was not made by a body authorised to exercise judicial power under the Constitution of the Commonwealth of Australia (see Brandy's case)."