Jones v Scully - [2002] FCA 1080 - FCA 2002 case summary — Zoe

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Jones v Scully

[2002] FCA 1080

Federal Court of Australia|2002-07-01|Before: Hely J

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Source facts

Court

Federal Court of Australia

Decision date

2002-07-01

Before

Hely J

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

The applicant's evidence before the Court 35 In oral evidence before the Court, the applicant said that he found the respondent's material deeply offensive, hurtful, and a challenge to his right to participate in Australian society as a full and equal citizen. The applicant said that he believed that the material was designed to inflame the opinions of other Australians against him and against other Jewish Australians. He said that other people who had seen the material had been hurt, offended and upset by it. When asked in cross-examination for his definition of the term "anti-Semitism", the applicant replied that he believed the term referred to the behaviour of people who were seeking to diminish the right of Jewish people to participate fully and equally in society. As to the leaflets generally, the applicant said that in his opinion, the leaflets say that "if there is something with which [the respondent] finds disagreeable, there is going to be a Jewish person behind it". 36 Mr Schlesinger was also called to give oral evidence. Mr Schlesinger said that the comments in his witness statement as to the offensiveness of the materials distributed by the respondent related in particular to the documents that are the subject of these proceedings. 37 Dr Goldschmied also gave evidence. Although he could not recall having seen the document entitled "Was There Really a Holocaust?", Dr Goldschmied gave evidence that he found the other documents that are the subject of these proceedings offensive and anti-Semitic. Dr Goldschmied also tendered a further document which he said named him personally, and was written by the respondent. The document, which became Exhibit 1 in the proceedings, reproduces a newspaper article written by Dr Goldschmied in The Examiner newspaper and the respondent's handwritten response to that newspaper article. The applicant did not seek to rely on Exhibit 1 in the course of submissions or to explain its significance. 38 Dr Goldschmied gave oral evidence that the material offended him because he found it anti-Semitic, and said that the dissemination of the material is hurtful to him especially given his background as a Jewish person who escaped Europe in World War II. Without going to particular leaflets, Dr Goldschmied said that he found the "tone" of all of the respondent's publications and unsolicited material offensive and described the material as "anti-Semitic, vilifying, hate material". 39 Mr Goldsteen also gave oral evidence. Without going into any detail about the material distributed by the respondent, Mr Goldsteen simply relied on his witness statement sworn on 3 May 1998 (referred to above). Many of the questions asked of Mr Goldsteen in cross-examination were rejected by me as they were completely irrelevant to the proceedings. Of the questions that were allowed and were answered, very few had relevance to the present complaint and the content of the evidence given does not need to be reproduced here.

[2]

The respondent's evidence 40 The respondent neither gave, nor called evidence before the HREOC as she withdrew from the proceedings in the manner described earlier in these reasons. 41 The respondent filed an affidavit in these proceedings sworn on 21 May 2001. The affidavit is some 111 pages in length. The whole of the affidavit was objected to by counsel for the applicant. Little, if any, attempt is made in the affidavit to establish the relevance or admissibility of much of the material contained in it, or even in many cases, what the material is, or where it came from. To take one example, p 5 appears to be a copy of, or a compilation of, one or more unidentified documents containing an assertion that "JEWS ARE THE WORST MASS MURDERERS THE WORLD HAS EVEN SEEN". Clearly that is not a matter of which the respondent is able to give evidence. Pages 4-111 consist of a voluminous amount of seemingly unconnected material. It is almost impossible to summarise the material in or annexed to the affidavit, and I will not attempt to do so here. 42 There are sections of the affidavit which might be of some relevance. One section (p 10) is headed "My defence" and other sections commencing at pp 13, 30, 46, 65, 76, 97 and 103, address the particular leaflets the subject of these proceedings, although even these sections of the affidavit suffer from the deficiencies referred to earlier, and are argumentative rather than probative in character. 43 Bearing in mind that material even if otherwise inadmissible, might be admissible in relation to the respondent's defences under s 18D of the RDA, I formed the view that the fairest course was to receive the whole of the affidavit over the applicant's objection, and to indicate as part of my final decision what if any reliance I placed upon it. 44 The respondent was cross-examined as to her views of Jewish people. When asked for her definition of "Jew", the respondent said that the term includes a range of people who do not necessarily adhere to Judaism as a religion. She said that the term included Talmudic Jews, and defined "Talmudic Jew" as a person who was raised under Talmudic traditions. As to the particular attributes she ascribed to Jewish people, the respondent gave evidence that: · Jews are the descendents of Esau and the Edomites, and are accordingly due for Biblical punishment; · they are anti-democratic, anti-freedom, and pro-tyranny; · Jews control pornography in both the United States and Russia and do so because the Talmud instructs them to; · Jews and world Jewry are seeking to control the world and have already gained large parts of it; · Jews have the intent of destroying white Christian civilisation; · Jews in powerful positions are lying frauds trying to force the white race to mongrelise; · Jews as a group have perpetrated the myth of the Holocaust and in so doing are acting fraudulently; and are lying, acting immorally, and are deceitful; · a "significant part" of the Jewish leadership is part of a conspiracy to defraud the world; and · Jews take on Christianity in order to deceive. 45 Further, in the respondent's opinion, the Bolshevik Revolution in Russia was a conspiracy of world Jewry, and she believes that Jews as a group perpetrated the purges in the Soviet Union, and that the "vile deeds of Communism" perpetrated on the Russian people were done by Jews. The respondent also gave evidence that in her opinion, World War II was fought by the Allies at the behest of Jews who controlled western civilisation, and that Jews were the only beneficiaries of World War II. 46 The respondent also gave evidence that she believed that the philosophy and teaching and practices of Jews is based on the Talmud, and that those philosophies, teachings and practices ought to be stamped out; promote paedophilia; and are worse than a Satanic cult. She admitted, however, to having no formal education in the Jewish religion, that she was not an expert in the Talmud, and that she had not spoken to any experts. 47 As to her views on Jews and the attributes she ascribed to Jews listed above, the respondent said that she confined some of these views only to Jews in "powerful positions" or to the "Jewish leadership" and did not ascribe all of those attributes to all Jews or to Jews as a group. She said that the context of the leaflets always limits the references to certain people. The respondent said on a number of occasions in cross-examination that she never targeted Jews as a whole, but only certain Jews. However, to the extent that these attributes were restricted only to Jews in powerful positions or the Jewish leadership, it was difficult to discern from her answers which attributes were so confined, and many of the attributes seemed to have been given by the respondent to Jews as a group. For example, on p 18 of Mrs Scully's affidavit it is "Jews" and "World Jewry" who are said to be responsible for the matters there complained of. 48 The respondent also called four witness to give evidence on her behalf. Each witness provided a statutory declaration or a witness statement which were only provided to the Court and to the applicant on the second day of the hearing. This occurred despite directions given by me on 12 October 2001 that any further affidavits on which the respondent proposed to rely were to be filed by 30 November 2001. None of the respondent's witness statements relate to any of the particular leaflets distributed by the respondent. 49 The respondent sought to expand on the contents of the witness statements in her examination-in-chief. In general, each examination-in-chief consisted of the respondent asking each of her witnesses open-ended questions relating to general themes which were of the respondent's choosing. It is not easy to discern, let alone summarise, what the respondent was seeking to obtain from each of her witnesses. The applicant's counsel objected to the statutory declarations provided by the respondent's witnesses and to many of the questions asked by the respondent of her witnesses, largely on two bases; first, that the evidence was not probative of any issue before the Court; and secondly, on the basis that the witnesses were not competent to give the evidence that was adduced in their witness statements or that was sought to be adduced in oral evidence. 50 The first witness called by the respondent was Mr Kenneth James McCaffery. Mr McCaffery is a retired pensioner and a resident of Tasmania who describes himself as being of "partial Jewish descent". In a statutory declaration dated 29 April 2002, Mr McCaffery states that the respondent has been known to him since 1996. He said he first came across the respondent at the time the respondent had a general vendor stall at the "Launceston Sunday Markets". Mr McCaffery said he was attracted to the respondent's literature, which he describes as covering general topics, including finance reform; inoculation of children; Jewish power in banking circles and politics in Australia and overseas; the Holocaust; and Biblical archaeology. He states that he has also had several conversations with the respondent and has checked on her statements and their historical veracity and has "always found them to be truthful and verifiable in all degrees, particularly her statements concerning the 'Holocaust', which … has been seriously and dangerously overblown by a Jewish controlled media". 51 Mr McCaffery also gave oral evidence at the hearing. Many of the questions asked of Mr McCaffery by the respondent were objected to and rejected by me on the basis of the competence of Mr McCaffery to answer the questions that he was asked, as well as on the grounds of relevance. Much of the admissible evidence given by Mr McCaffery related to his opinions concerning the truth of the material distributed by the respondent. Mr McCaffery said he believed the material to be "honest and absolute history"; that the respondent does not just concentrate on criticising Jews and Jewish policy, but also disseminates information relating to other topics, including "inoculation of young children, anti-homosexual activities and things like that"; and that the respondent does not specifically target Jews. Mr McCaffery also gave evidence that the respondent "seems to be very well liked in the community despite all this propaganda telling … what a terrible person" she is, and seems to have "tremendous friends everywhere". 52 Mr Michael Sladd also gave evidence for the respondent at the hearing. Mr Sladd is a resident of Hobart who describes himself as a retired scenic artist. In a witness statement dated 30 April 2002, Mr Sladd states that he was born in Russia in 1935 but fled to Germany in 1944 and resided in a "Displaced Persons" camp from 1945 to 1949. He said that the camp also housed former inmates of concentration camps, including Auschwitz. Mr Sladd said that "I never heard anything from them about gas chambers or mass executions of any kind". He said that he came to Australia in 1949 and continued his close contact with many camp survivors, but in the early 1960s began "hearing stories about extermination of Jews by gassing in gas chambers and it puzzled me very much". Mr Sladd further stated that he believed that the respondent "is doing a great service to the community in exposing lies which have been recorded as history". 53 In his oral evidence, it was revealed that Mr Sladd is in fact the respondent's brother. He said that some members of his family were killed by Russian revolutionaries who he believed were Jewish. He also said that he believed that German concentration camps were not exclusively occupied by Jews, but that Jews were only a small minority. Mr Sladd was asked many questions by the respondent in examination-in-chief, but again many of these questions were rejected by me on the basis that the questions asked were not within Mr Sladd's personal knowledge, or were not relevant to the proceedings. 54 Mr Denis Wilfred Collins was also called to give evidence. Mr Collins is a resident of Launceston and is semi-retired. In a statutory declaration sworn on 29 April 2002, Mr Collins states that he is a former Assistant Principal of Alice Springs High School and was a member of the Legislative Assembly of the Northern Territory from 1980-1994. Mr Collins describes himself as a student of history, "particularly Biblical history, also Biblical prophecy with a particular interest in what has happened to the Israelite peoples". He said that he became very keen to understand the term "anti-Semitic" when he was accused by an ABC journalist of being anti-Semitic, and details some of the studies that he has done into the term and into the history of the "Israelite people". 55 Many of the questions asked of Mr Collins by the respondent were objected to by the applicant's counsel and rejected by me on the grounds that they were irrelevant, or that Mr Collins was not competent to answer the questions. As to the admissible evidence given by Mr Collins, he said that he had not been offended by the literature that the respondent has distributed. He also said that his view of the respondent is that "she is one of the bravest people that I have ever met. She has the courage of her convictions to spread information. She is a watchman of Israel. She is spreading what I believe most assuredly is the truth and whether people accept it or reject it, that is totally their right but I have the highest regard and I believe she is doing a great service to the freedom of speech and the God given rights of the people of this country". 56 The last person called to give evidence for the respondent was Mr Leon Philip Gregor. In a statutory declaration sworn on 29 April 2002, Mr Gregor describes himself as a veteran pensioner. He was a soldier in the Australian Regular Army from 1961-1967, and worked in the construction industry for approximately 20 years and as a taxi driver for some 9-10 years before he retired in May 1999. He states that he has read a great deal of literature, including material which is the subject of the present proceedings, "which reveal and trace the sources to the present day maladies particularly endured in the western nations". He says he believes that the respondent acts with "high moral purpose" and without any racist intent. 57 Again, many of the questions that were asked of Mr Gregor by the respondent were objected to and rejected on the grounds of relevance, or because Mr Gregor was not competent to answer the questions. When asked of his opinion of the respondent, Mr Gregor replied that it was his conviction that what she was doing "is a proper duty and function under the … Christian law."

[4]

(a) "David Cole interviews Dr Franciszek Piper" 61 This video, narrated by Mr David Cole, is concerned with the labour camps maintained by the Germans in World War II in which Jews and other enemies of the Third Reich were interned. Mr Cole tells us that the purpose of the video is to raise for debate the issue "how do we know if the Holocaust happened?". For most of the video, which is set at the Auschwitz Concentration Camp, Mr Cole takes viewers on a "guided tour" of the camp, and puts forward a number of assertions, the gist of which is that the proof presented in support of the Holocaust has an innocent explanation, namely that the camps were labour camps (and not extermination centres) and that many of the inmates died from malnutrition and disease particularly when conditions in Germany broke down towards the end of the War. The video also consists of a study of the gas chamber and the crematorium at Auschwitz by Mr Cole. This study is based upon the proposition that the gas chamber was not a gas chamber at all, but was rather a building which was reconstructed after the War and made to look like it was a gas chamber. The study also includes a number of interviews between Mr Cole and tour guides at Auschwitz, including an interview between Mr Cole and Dr Piper, who is described as the Head Curator of the Auschwitz complex. The respondent alleges that the statements made by Dr Piper in his interview with Mr Cole confirm that there was never a gas chamber at all at Auschwitz during World War II. 62 This video seems to have been made in 1992. There is almost nothing in the video apart from the films of Auschwitz and plans of the camp, and assertions made by Mr Cole coupled with statements made by Dr Piper which Cole attempts to refute. It is clear that very selective parts of the interview have been used. At no stage is there any direct enquiry of Dr Piper designed to provoke an answer to the question as to whether or not the Holocaust occurred. The respondent said that she relied on the fact that Dr Piper was the Head Curator of the Auschwitz complex as a matter upon which she relied as constituting his expertise, and also as the basis upon which she sought to tender this video as admissible evidence. 63 The applicant objected to this video on a number of bases; first, on the basis that it did not go to issues in the proceedings; secondly, that there was no evidence that the persons interviewed or doing the interviewing are in any sense persons who have the competence to make the comments they make; third, none of those persons were called as witnesses in the proceedings; and fourth, that the video does not prove the premise upon which it is said to be relevant, which is that Jews are party to a world wide conspiracy which is the hoax of the Holocaust.

[9]

(f) "The Other Israel" 70 This video is narrated by a Mr Ted Pike, who introduces the video by saying that he proposes to examine the causes of conflict between Arabs and Jews. In order to resolve that conflict, Mr Pike has recourse to and comments on Jewish scriptures, including the Talmud, and the Jewish Encyclopaedia. Mr Pike selects certain parts of the Talmud and the Jewish Encyclopaedia in order to demonstrate that the teachings of the Jews permit, among other things, the seduction and marriage of three year old girls and sexual practices by adults on young boys. The Talmud is also said by Mr Pike to teach that Gentiles are classed as barbarians and are forever beneath the Jew. The video then goes on to give what is described as an historical account of Jewish involvement in (among other things), the French Revolution in 1789, the Russian Revolution in 1917, the formation of Communism in Russia in 1919, and the involvement of Jews in various movements and organisations in America. Mr Pike concludes the video by saying that his study of the Talmud and the Jewish Encyclopaedia shows that there is a tendency towards Jewish domination of society throughout history. 71 All of these videos are inadmissible as proof of the underlying matters referred to in them. Insofar as they have relevance to the proceedings, they consist of assertions by people who were not called to give evidence in the proceedings, and whose alleged expertise has not been established by the respondent. What is said by persons in the videos is hearsay. Further, in relation to the first video, the respondent stated in cross-examination that she was aware of Dr Piper's allegation that the video misrepresented what it is he said to Mr Cole. The respondent also said that she was aware that Mr Cole recanted the position that he put in relation to Auschwitz in the video. It is clear that many of the views put forward in the videos are polemical in character, and that the presenters are attempting to push a particular point of view from a very one-sided and unbalanced perspective. Apart from establishing that some people talk about the subject matter comprising the videos, and express views similar to views expressed in some of the leaflets, none of the videos can be received as proof of any underlying matters that are asserted in them. Although the Court is not bound by technicalities in proceedings of this type, (see s 46PR of the Human Rights & Equal Opportunity Commission Act 1986 (Cth)) there is nothing that the respondent has put to me in relation to the videos that persuades me that I can or should receive them as proof of any of the underlying matters which are asserted in them. 72 By a document dated 26 June 2002 and filed with the Court on 1 July 2002 the respondent put submissions in relation to a list of 15 videos. The 6 videos referred to above form part of that list. The other videos were not tendered by Mrs Scully, and I have not taken into account the submissions she has made in relation to them.

[17]

Historical evidence and admissibility 82 There is very little by way of either case law or text book commentary on the admissibility of historical evidence. However, the most authoritative case on the subject is Australian Communist Party v Commonwealth (1951) 83 CLR 1. At 196, Dixon J sets out what have come to be regarded as the principles to be followed in deciding whether a particular historical work is admissible under the common law. His Honour says that the courts "may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians … and employ the common knowledge of educated men upon many matters and for verification refer to standard works of literature and the like". Dixon J further states that such historical facts may be "ascertained or verified, not from the polemics of the subject, but from serious studies and enquiries and historical narratives". 83 Australian Communist Party was applied in Ritz Hotel v Charles of the Ritz (1987) 14 NSWLR 107. In that case, McClelland J was concerned with a 1938 book entitled "Cesar Ritz - Host to the World", which was a memoir of the life of Cesar Ritz written by his widow. The plaintiff sought to have the book admitted as evidence of the facts stated therein. In deciding whether the book was admissible, McClelland J applied Dixon J's principles, holding at 112 that the events described in the book were neither "general facts of history" nor were they "within the common knowledge of educated men". Further, his Honour said that the book itself was not among the "accepted writings of serious historians" nor was it a "standard work". 84 Ritz Hotel was considered in Bellevue Crescent v Marland Holdings (1998) 43 NSWLR 364. In that case, Young J examined the admissibility of evidence of historians regarding life in the 19th century, or what his Honour termed "social history". Young J said that such evidence did not constitute expert opinion evidence for the purposes of s 79 of the Evidence Act 1995 (NSW). In addition, at 371 his Honour stated that it seemed to him that "there was a distinction in Ritz Hotel between the facts of history and what might be called social history. Whilst courts may obtain the base or facts such as when a particular war broke out or other matters of record from reputable histories, analyses as to why certain things happened and generally how people behaved is not a matter which can be proved by the evidence of people who were not there but have ascertained the historical facts and then have analysed them to work out a conclusion." 85 It should be clear from the above summaries of the books that, like the videos, they are very much polemical in nature. Although it may be that the respondent is convinced of the historical accuracy and the truth of the information that is contained in the books, she has not established that they contain anything more than one person's point of view on a particular topic or topics. In addition, the respondent has failed to establish that the historical evidence said to be contained in the books are "general facts of history" that are within the "common knowledge" of educated persons; nor has the respondent established that the books sought to be admitted by her are among the "accepted writings of serious historians" or that they are "standard works of literature". Accordingly, the books cannot be admitted as proof of any underlying matter that is asserted in them. I reject all of the books as inadmissible for that purpose.

[18]

The applicant's submissions 86 In general, the applicant submits that: · each of the leaflets has a consistent and overriding theme, relating to the actions of Jews as such and the characteristics of Jews as such, and is "stridently anti-Semitic"; · each of the imputations conveyed by the leaflets represent the views of the respondent, as is made clear from answers given by her in cross-examination; and · the material annexed to the respondent's affidavit of 21 May 2001 "adheres to, repeats and embellishes upon" the leaflets, and has "one clear consistent theme being the vilification of Jews by virtue of their adherence to that culture and/or membership of that ethnic group". 87 In relation to s 18C of the RDA, the applicant submitted: · the words "offend, insult, humiliate or intimidate" in s 18C(1)(a) are ordinary English words and ought not be given any technical meaning; · each of the applicant's witnesses, all of whom are Jewish, was offended, insulted, humiliated and intimidated by the leaflets, and there was no suggestion that the reaction of any one of the witnesses was atypical or was not a reasonable reaction to the material distributed by the respondent; · applying the objective test in s 18C(1)(a), it is clear that the respondent's action are "reasonably likely" to offend, insult, humiliate or intimidate Jews as a group; · although s 18C(1)(a) requires an objective standard to be met, the ethnic group in question must be taken as one finds it: Jordan v Burgoyne [1963] 2 QB 744; · the publication and distribution of the leaflets was done by the respondent "because of" the ethnic origin of Jews as per s 18C(1)(b), in the sense that the ethnic origin of Jews was a "material factor" in the distribution of the leaflets; · "Jews" constitute a race for the purpose of s 18C(1)(b) as, according to dictionary definitions, a "Jew" is "one of the Hebrew or Jewish people" and as a "people" are therefore part of a "community, tribe, race or nation"; · Jews are also an "ethnic group" for the purposes of s 18C(1)(b), as the Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) makes express reference to the broad interpretation of the term "ethnic origin" in comparable jurisdictions; and · in any case, there is evidence before the Court that Jewish people see themselves as a distinct community; that Jews are bound by common customs and beliefs; have a common language; and have common characteristics. 88 In relation to s 18D of the RDA, the applicant submitted the following: · the requirement of reasonableness and good faith is a threshold requirement in s 18D, and both elements must be satisfied before the issues raised in s 18D(a), (b) and (c) can be considered; · the respondent did not adduce any evidence that the publication and distribution of the leaflets was done "reasonably and in good faith" as is required by s 18D; · the nature and extent of the leaflets and their common theme shows malice on the part of the respondent, such that even if an individual leaflet might otherwise come within s 18D, the publication and distribution of all of the leaflets shows a lack of genuineness on the part of the respondent; · lack of good faith on the respondent's part is constituted by an improper motive, being the intention to injure the applicant and members of the Jewish ethnic group, which is shown by the manner and extent of the leaflets; · none of the defences or exemptions outlined in s 18D(a), (b) or (c) are available to the respondent; · in particular, with respect to s 18D(b), the respondent's actions were not done "in the course of any statement, publication, discussion or debate made or held for any … genuine purpose in the public interest", as there is no evidence of any activity of Jews in Australia or elsewhere which has invited public criticism or discussion; and · the abstract generalisation of "truth in history" is not the kind of justification embodied in s 18D, and to the extent that the respondent relies upon the public interest in "historical truth", no evidence has been adduced to show the historical truth of anything published by the respondent.

[19]

The respondent's submissions 89 The respondent accepts the applicant's submission that the theme of the publications relates to the actions of Jews. She submits that "it is the specific evil actions that are brought to light in the publications". However, the respondent refutes the applicant's submission that the theme of the leaflets relates to the "characteristics of Jews as such". She says that when discussing the topics in her leaflets, "it is too difficult and clumsy to keep referring to the specific leaders of World Jewry and/or to the particular criminal groups of Jews [who] are participants in the fraud, crime and giant conspiracies". She submitted that, for example, "when it is said that 'Russian Jews control pornography' of course it is understood that this general statement must, of necessity, refer only to the Jews who are actually involved. The particular leaflet lists the specific individuals who were involved at the particular time and place". Further, the respondent submitted that "the theme of the material published focuses on the action of specific members of people who are known as Jews. All Jews are never implicated." 90 Although the respondent has not articulated her argument in the following terms, it appears as though the respondent is attempting to argue that s 18C(1)(b) of the RDA is not applicable to her actions as her actions were not done "because of" the race, colour or national or ethnic origin of Jews. Instead, the respondent seems to be asserting that her leaflets were distributed to highlight the "specific evil actions" of people who happen to be Jewish. In addition, the respondent appears to submit, contrary to the concession made on her behalf before the HREOC, that s 18C(1)(b) is not applicable because Jews do not constitute a racial or ethnic group for the purposes of the RDA. She stated that "ethnically there is no such thing as a Jew". The respondent further submitted that "in Australia, as elsewhere in the world, Jews do not exist as a group by race, colour or national or ethnic origin. Genetically, the Ashkenazi are mainly Turks with a mixture of Japhethite-Esau-Edomite-Canaanite-Pharisaical blood". 91 In relation to s 18C(1)(a), the respondent submitted that the applicant "has at no time pinpointed any statement contained in the leaflets which offended, insulted, humiliated or intimidated him …". In addition, the respondent has submitted that neither the applicant nor any of the applicant's witnesses have cited any specific instances of them being offended, insulted, humiliated or intimidated by her leaflets. Instead, the respondent submits that the applicant and the applicant's witnesses did nothing more than engage in "moaning and groaning about non-specific anti-Semitism and anti-Jewish offence and hurt". The respondent asserts that there was no specific reference to any particular leaflet by the applicant or his witnesses. In addition, in relation to s 18C, the respondent submitted that for the RDA to be valid, s 18C must be limited to personal insults, personal defamation and physical harm - not acts that are "likely" to insult or offend (as is the wording in s 18C). 92 The respondent also asserted that she is protected by s 18D of the RDA in the distribution of her leaflets. In particular, the respondent submitted that the exceptions contained in s 18D(b) and (c)(i) protect her. Section 18D(b) provides an exemption for an act that is done reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest. Section 18D(c)(i) provides an exemption for an act done reasonably and in good faith in making or publishing a fair and accurate report of any event or matter of public interest. In particular, the respondent asserted that "it is in the interest of all people, especially Jews, to see why so many of the leaders of crime come from among their ranks. The influence of the Talmud which is so intensely studied by the young students and Rabbis is the probable reason for this crime and immorality". The respondent also submitted that the discussion of current affairs and history are matters of public interest and are protected by s 18D. Further, the respondent submitted that the applicant "has failed to specify how the leaflets in question would fail to be in the public interest, or of no genuine academic or scientific purpose, or not a fair and accurate report of a matter of public interest done reasonably or in good faith". In this sense, the respondent seems to be asserting that the onus is on the applicant to show that the respondent has not published the leaflets reasonably and in good faith and for the purpose of a matter of public interest. 93 The respondent also appears to submit in her written submissions that she has more general defences available to her, beyond the scope of s 18D. The respondent has submitted that: · she distributes the leaflets "for the purpose of combating racial discrimination which is harming certain sections of the Australian community"; · all of the leaflets have been previously published by other sources, and some have been published and republished without any repercussions; · there is "overwhelming evidence" to prove the general truth of the applicant's imputations, and that the imputations are "clearly wrong"; and · no offence was possible, let alone intended. 94 The respondent also submitted that the RDA should be declared unconstitutional as, in the respondent's submission, it is impossible to apply the RDA to all groups equally, and because it infringes the "freedom to communicate political matters".

[22]

(b) "Reasonably likely" 98 The use of the words "reasonably likely" in s 18C(1)(a) sets up an objective test or standard: see Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615; Creek v Cairns Post Pty Ltd [2001] FCA 1007 at [12]. In Hagan, Drummond J stated at [15]: "It is apparent from the wording of s 18C(1)(a) that whether an act contravenes the section is not governed by the impact the act is subjectively perceived to have by a complainant. An objective test must be applied in determining whether the act complained of has the necessary offensive, insulting, humiliating or intimidatory quality for it to be within the sub-section. The question so far as s 18C(1)(a) is concerned is not: how did the act affect the particular complainant? But rather would the act, in all the circumstances in which it was done, be likely to offend, insult, humiliate or intimidate a person or a group of people of a particular racial, national or ethnic group?" 99 As the test is an objective one, it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question. But the analogy provided by the cases on s 52 of the Trade Practices Act 1974 (Cth) suggests that evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible on, but not determinative of, the issue of contravention. In the s 52 context, idiosyncratic evidence from consumers about how they reacted when reading documents said to be misleading is not to be ignored, but it is not determinative. The Court must make an objective assessment of the position itself: ACCC v Optell Pty Ltd (1998) ATPR 41-640 at 41,082. Whether that evidence is of any, and if so, what weight depends upon the circumstances. However, in his second reading speech on the Racial Hatred Bill the Attorney-General said: "The Bill requires an objective test to be applied by the Commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account." 100 In Hagan, Drummond J at [28] treated as admissible evidence from persons of Aboriginal descent of their own views, and as to the views of the wider Aboriginal community of which they formed part, as to the acceptability of the use of the word "Nigger" in the context there in question. That evidence was both direct evidence by members of the relevant group that they were not offended by the conduct in question and opinion evidence as to the likely response of other members of the group which was admissible under ss 78 and 80 of the Evidence Act 1995 (Cth). 101 The applicant tendered evidence as to the subjective effect of the distribution of the respondent's leaflets on each of the applicant and his witnesses. For the reasons just given, that evidence is admissible, but is not determinative. As I have noted above, with some exceptions in the case of Mr Jones, such evidence was in general terms, and related to the overall and general effect of the leaflets as a whole, rather than being directed to any particular leaflet or to any passages of particular leaflets. There is force in the respondent's submission that the applicant and his witnesses were non-specific about the particular way or ways in which offence or insult was caused by the leaflets. In the result this evidence as to the objective reaction to the distribution of leaflets by the respondent is of very limited assistance.

[24]

Humiliate · "To lower the pride or self respect of; cause a painful loss of dignity to; mortify." (Macquarie Dictionary) · "To make low or humble in position, condition or feeling; to humble." (Oxford English Dictionary) Intimidate · "1. To make timid, or inspire with fear; overawe; cow. · 2. To force into or deter from some action by inducing fear." (Macquarie Dictionary) · "To render timid, inspire with fear; to overawe, cow; in modern use especially to force to or deter from some action by threats or violence." (Oxford English Dictionary) 104 The fact, if it be a fact, that assertions made in the leaflets may be wrong or inaccurate does not of itself establish a contravention of s 18C: Creek at [6]. A true statement, or one which might be shown in some way to be true, does not mean that the statement is incapable of being offensive: Patrick v Cobain [1993] 1 VR 290 at 294. 105 In Worcester v Smith [1951] VLR 316, O'Bryan J held that behaviour, to be offensive within the context of "behaves in an offensive manner" in s 25 of the Police Offences Act 1928 (Vic) must be such as is calculated to wound the feelings or arouse anger, resentment, disgust or outrage in the mind of a reasonable person. His Honour held that the mere expression of political views contrary to those probably held by the majority of the community, even when made in the proximity of the offices of those whose views are attacked, does not amount to such offensive behaviour. A banner bearing the inscription "Stop Yank Intervention in Korea" was regarded by his Honour as an inoffensive statement of political views, even when carried outside the offices of the United States Consul. 106 For the reasons explained by Wilcox J in CEPU v Australian Postal Corporation (1998) 85 FCR 526 at 534-535, criminal cases on offensive behaviour, whilst not determinative of the question which arises in the present case, do provide some general insight into the question of offensiveness. In particular, they support the proposition that the expression or dissemination of views contrary to those held by a section of the community or even by a majority of the community will not necessarily be offensive (although in some circumstances it may), even if the expression of those views is hurtful to those who hold a different opinion. As the outline in the Explanatory Memorandum to the Racial Hatred Bill states (p 1), the RDA: "is not intended to prohibit people from having and expressing ideas". In the context of the summary offence of offensive behaviour, conduct or language to be offensive must be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person: Watson, Blackmore and Hosking Criminal Law (NSW) at [9.7990]. In CEPU (supra) at 534 Wilcox J quoted the following observation by Kerr J in Ball v McIntyre (1966) 9 FLR 237 at 241: "Some types of political conduct may offend against accepted views or opinions and may be hurtful to those who hold those accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may." 107 At p 243 in Ball v McIntyre, Kerr J said: "… behaviour to be offensive behaviour must be calculated to produce a stronger emotional reaction in the reasonable man than is involved in indicating difference from or non acceptance of his views or values. The behaviour to be offensive would normally be calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable man." 108 In assessing whether the respondent's actions offend s 18C(1)(a), it is necessary to consider the perspective from which these actions are to be viewed, namely the hypothetical person in the applicant's position, or the group of which the applicant is one. The perspective suggested by the applicant's counsel in submissions is that of a "Jew in Australia". Considering that the leaflets have what the respondent admits to be a theme that "relates to the actions of Jews", and that the leaflets were distributed in Australia (notwithstanding that they may have also been distributed or published elsewhere), I consider such a perspective to be appropriate. 109 The relevant "act" is the publication and distribution of the leaflets, together with the annotations placed upon them by the respondent. Whether an Australian Jew, or Australian Jews as a group would feel offended, insulted, humiliated or intimidated by that act necessarily involves a consideration of the individual leaflets which is undertaken later in these reasons.

[26]

"Ethnic origin" 110 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. 111 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 [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. 112 That position is confirmedby 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 [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." 113 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 (see [44] and [45] above) really assume that this is so.

[27]

"Because of" 114 The phrase "because of" requires consideration of the reason or reasons for which the relevant act was done: Hagan (Full Federal Court) (2001) 105 FCR 56 at 60. It is important to note that if an act is done for one or more reasons, it is enough that one of the reasons is the race, colour or national or ethnic origin of a person or group of people, whether or not it is the dominant reason or a substantial reason for doing the act: s 18B. The applicant submits that the test to be applied in a consideration of s 18C(1)(b) is whether race is a "material factor" in the performance of the act. In Creek, Kiefel J notes at pars [19] - [27] that there have been differences of opinion expressed about the meaning of phrases such as "on the ground of" and "by reason of" in the context of discrimination legislation. It is not necessary for me to repeat what her Honour said there, except to say that, at the end of her discussion of the relevant authorities, her Honour adopted an approach to s 18C(1)(b) which enquired into whether "anything suggests race as a factor in the respondent's decision to publish" the work in question. I respectfully propose to follow that approach. 115 As I have noted above, the respondent appears to assert that s 18C(1)(b) is not applicable to her actions as her actions were not done "because of" the race, colour or national or ethnic origin of Jews. Instead, the respondent submits that she was motivated in distributing the leaflets by what she perceived as a need to highlight the "specific evil actions" of people who happen to be Jewish. Further, she said in cross-examination that she never targeted Jews as such. She also submitted that the context of the leaflet always limits the references to certain people, and that where she ascribed certain attributes to Jews, such attributes were confined to the "Jewish leadership" or to Jews in "powerful positions". She further submitted that the material focuses on the actions of specific people who are known as Jews, and that all Jews are never implicated. 116 The applicant submits that "it is clear from the theme of the material published and/or distributed that the publication and/or distribution of said material has been performed because of the ethnic origin of Jews or some or all of Jewry". Adopting the approach of her Honour in Creek, in my opinion there are many things about the publications which "suggest race as a factor" in the respondent's decision to publish and distribute the material. These things include the fact that the leaflets, in large part, specifically refer to Jews both in their title and in their contents ("The Inadvertent Confession of a Jew"; "Russian Jews Control Pornography"; "The Jewish Khazar Kingdom"); that the leaflets discuss matters that are of particular importance to, or specifically relate to, Jewish people ("Was There Really a Holocaust?"; "The Jewish Khazar Kingdom"; untitled list of book synopses; untitled documents at pages 25 and 30 of the applicant's affidavit); and that some of the leaflets contain prominent annotations that were written by the respondent that draw attention to what the respondent sees as the point of the leaflets (such as, for example, the word "JEW" written across the forehead of the picture of Lenin in the leaflet containing the book synopses; and the annotation on the untitled document at p 35 of the applicant's affidavit which reads "THE WHITE CHRISTIAN NATIONS ARE THE TRUE SEED OF ISRAEL. 'THE SYNAGOGUE OF SATAN - WHO SAY THEY ARE JUDEAN - BUT ARE LYING FRAUDS' ARE TRYING TO FORCE THE WHITE RACE TO MONGRELIZE"). It may well be true that a reason in the respondent's decision to publish the material was because of her perceived need to highlight what she sees as the "specific evil actions" of people who are Jewish. However, it is enough to contravene s 18C(1)(b) that one reason for the respondent publishing the material was because of the message which the material conveys about Jews. 117 Thus, to take an example, the first of the leaflets has as its subject matter, gun ownership. But it is headed "The Inadvertent Confession of a Jew" and recounts an interview with a person identified as a "Jew". The leaflet asserts that "nearly all Jews are un-American, anti-freedom, anti-gun ownership". It may be that a reason for circulating the leaflet was to say something about gun ownership and anti-gunners. Even if that be so, it is patent on the face of the article that another reason for circulating the leaflet was to say something about Jews and Jewish involvement in the anti-gun movement. At least one of the reasons the leaflet was distributed was to say something (derogatory) about Jews, hence the requirements of s 18C(1)(b) are satisfied. 118 I reject the respondent's argument that she never targeted Jews as a group, and that it should be understood that general statements in her leaflets must of necessity refer only to Jews who are actually named or who were actually involved. The leaflets attack Jews generally, and are not limited either by their words or by the impression they give to particular individuals. It will be necessary to turn to specifics later in these reasons, but in general terms the message conveyed by the leaflets is that Jews have common features that ought to be condemned, ridiculed or despised. 119 Mrs Scully's affidavit provides some support for this conclusion. For example, p 9 refers to the "lying Jewish press"; it is the "Jewish lawyers" who are "onto a nice little earner with native title claims"; it is Jews who "vilify Australians". And on pp 17 and 18 it is Jews or world Jewry who are described as having been responsible for both World Wars. On p 16 there is a photo of Nelson Mandela with Joe Slovo. Mr Mandela's photo has been endorsed by Mrs Scully with the handwritten word "Mandela", whereas Mr Slovo's photo has the handwritten endorsement "Jew". 120 Mrs Scully was cross examined as to these annotations at T p 181 as follows: "I see. And is it you that wrote the word 'Jew' across Mr Slovo's picture? --- That's right, yes. And is it you that put the word, or the words, 'Slovo is a Jew', at the end of the paragraph under the photograph? --- That's right. And is it you that put in the word 'Jew' on a number of occasions next to names in the right hand column? --- That's right, yes. And can you explain to me why it is in the case of Nelson Mandela you used a name and in the case of Mr Slovo you used the term of Jew? --- I believe that probably because Mandela is a well-known name and people would have recognised him as the person I'm referring to, but if I'd written Slovo on the other man that would not - that name is not known in the community and it would not have significance." 121 I do not accept this explanation. "Jew", in the hands of Mrs Scully, is and is intended to be, a pejorative term condemnatory of any person to whom she applies that description.

[28]

The leaflets and the particularised imputations 122 The applicant's approach to the demonstration of a contravention of s 18C of the RDA was akin to a defamation pleading, in that the applicant seeks to identify particular imputations which the applicant says are conveyed by the leaflets, and contends that if the leaflets convey those imputations, then they, on their face, contravene s 18C of the RDA, without the need for any independent evidence in relation to the subject matter of each leaflet. Those imputations are set out in par [6] above. 123 This approach necessarily involves the proposition, as was accepted by the applicant's counsel, that a leaflet which discussed matters such as, for example, the history of the Khazar Kingdom or the Holocaust, does not necessarily in itself attract the operation of s 18C of the RDA, or take the matter outside the exemptions in s 18D. Rather, it is the identified imputations that are said to be conveyed by each leaflet which produces that result. 124 In the circumstances of the present case, the applicant's approach provides a useful tool for considering the issues which arise, provided it is borne in mind that it is only a tool, and not a substitute for the statutory test. 125 In the law of defamation, the principles which apply in determining whether material conveys a pleaded imputation were summarised in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 by Hunt CJ at CL (with whom Mason P and Handley JA agreed) at 165-166, where his Honour said: "The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it: … In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable (Defamation Act, s 7A, reflecting the common law: …), and any strained or forced or utterly unreasonable interpretation must be rejected: … The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence …, who is neither perverse …, nor morbid or suspicious of mind …, nor avid for scandal: …. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs: … The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed: … The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book …, and the less the degree of accuracy which would be expected by the reader: … The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking:… There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: … What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken: …. The publisher is not held responsible, for example, for an inference which the ordinary reasonable reader, listener or viewer draws from an inference already drawn from the matter complained of, because it is unreasonable for the publisher to be held so responsible:…" (emphasis in original) 126 The above principles were recently followed in this Court by Tamberlin J in Versace v Monte [2002] FCA 190 at pars [144] - [146]. At [145] his Honour said: "In determining what will be conveyed to an ordinary reasonable reader, listener or viewer of fair average intelligence, one must not look at the statement or matters complained of in isolation. Rather, they must be considered in the whole context of the material in which they are published: John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190 at 195. The reference to the "context" of the publication is a broad reference which embraces all the attendant circumstances, including both the surrounding matter and the mode of publication."

[31]

(a) "The Inadvertent Confession of a Jew" 129 This leaflet is undated. According to a handwritten annotation appearing on it, the leaflet was received on 29 July 1996. It reproduces a transcript of an interview with Mr Aaron Zelman, who is reported as having formed a new organisation called "Jews for the Preservation of Firearms Ownership (JPFO)". The headnotes to the interview state that the interview first appeared in a publication known as the "American Survival Guide" in November 1989, and was reprinted in June 1990 in an issue of "S.W.A.T." magazine under the heading "JPFO in Defense of Firearms Ownership". The leaflet's theme is that Jews, who have a strong influence in the US media and government, are on the whole, anti-gun ownership. Jews are variously described as "left wing, liberal anti-gunners" whose ultimate political goal, through disarmament, is "the total control of peoples' lives and destiny". 130 I have reproduced below selected portions of the leaflet of which the applicant makes particular complaint, although the whole of the leaflet is relied upon: "A: Jim, it is obvious that one of the major problems we gun owners face is the heavy influence (some call it a stranglehold) of left wing, liberal Jewish anti gunners in the media and government. JPFO can do what needs to be done: forcefully challenge these individuals without the fear of being labelled anti-Semitic. The other pro-gun groups do excellent work, but they must daily tip toe around the truth for fear of the anti-Semitic label, which would be used by the liberal media in a blink of the eye and without mercy…. To emphasise my point: can you imagine a representative of any pro-gun group saying what I have just said in this interview, even though it is the truth? It's not that they would not want to, it's just they're afraid of being clobbered by the "anti-Semitic weapon!" Q: What are your personal reasons for starting JPFO? A: There are a small percentage of Jews, like myself, who are staunch supporters of gun ownership, but our side of the story is censored by the liberal Jews who heavily influence the mass media and government. Another reason for forming JPFO is to combat the growing anti-Semitism in America, partly caused by anti-gun Jews. … The possibility of a violent anti-Semitic act being perpetuated should not be discounted. I believe that gun haters would stop at nothing to achieve their goal. There is a growing body of information that strongly suggests the possibility that the Stockton schoolyard killings by Patrick Purdy may have been orchestrated by high government officials with the help of certain anti-gunners. … Q: What do you think are some of the causes of Jewish involvement in the anti-gun movement? A: The most vocal of liberal Jewish anti-gunners do indeed understand why they want Americans disarmed, as it is a crucial step for total control of people's lives and destiny, which is the ultimate goal of the liberal political agenda. … Liberal Jewish anti-gunners also make up a large percentage of the writers, directors and producers that create the anti-gun message or most of the mindless pap that appears on television or other forms of electronic programming. … A disarmed America would be a weak America and a weak America cannot help Israel continue to survive, much less any other democracy. Once Americans are disarmed, a political party could come to power in America that is hostile to Jews and Israel." (underlining in original) There are also some typed comments in the column on the far right of this leaflet. They read as follows: "Mr Zelman has already stated nearly all Jews are un-American, anti-freedom, anti-gun ownership, unappreciative, are pro-tyranny, pro-people control and pro-big brother government and that they most likely will never change." The following comments also appear in the respondent's handwriting on the side of the leaflet: "THE JEW - MR AARON ZELMAN SUGGESTS THAT THE STOCKTON SCHOOLYARD KILLINGS BY PATRICK PURDY MAY HAVE BEEN ORCHESTRATED BY HIGH GOVERNMENT OFFICIALS WITH THE HELP OF CERTAIN ANTI-GUNNERS! COULD THE PORT ARTHUR KILLINGS HAVE ALSO BEEN ORCHESTRATED BY ANTI-GUNNERS?" 131 The applicant says that this leaflet conveys the imputation contained at 2(a) of its particulars, being that Jews are "anti-democracy, anti-freedom, pro-tyranny". 132 The words "anti-freedom" and "pro-tyranny" are themselves used in the leaflet, and are thus conveyed by the leaflet. The word "anti-democracy" is not itself used in the leaflet, but the applicant contends that, "on a consideration of the whole article", the leaflet conveys the imputation that Jews are "anti-democracy". "Democracy" is defined in the Concise Oxford Dictionary 10th Ed, 1999, as "a form of government in which the people have a voice in the exercise of power, typically through elected representatives; control of a group by the majority of its members". The leaflet repeatedly refers to the "heavy influence" of "left wing, liberal Jewish anti-gunners" in the media and government (presumably in the US). In my opinion, merely because a group is said to have a "heavy influence" in the context of a political system that is democratic does not necessarily mean that the group is itself "anti-democratic"; it may just mean that the group is taking advantage of the established democratic system by successfully lobbying within it. However, the leaflet also states that the "ultimate goal of the liberal political agenda" (which is said to be controlled by Jews) is the "total control of peoples' lives and destiny"; and the typed commentary on the interview refers to Jews as inter alia, "pro-people control" and "pro-big brother government". Although the term "big brother" is now a colloquial phrase that has recently been popularised by "reality TV" shows of the same name, it was made famous by George Orwell in Nineteen Eighty Four to describe the leader of a tyrannical system of government whose hallmark was the control of the majority by the few through a reign of terror. In this sense, the phrase refers to a system of government that is antithetical to democratic beliefs. I am of the view that an ordinary reasonable reader would understand that the description of a group of people as "pro-big brother government" conveys that those persons are indeed "anti-democratic". 133 Accordingly, I find that imputation 2(a) is conveyed by the leaflet. But it is necessary to address s 18C in terms for the reasons earlier explained, and for the reason that whereas the law of defamation has as its focus the lowering of a person in the estimation of his/her fellows, the RDA includes within its focus, the likely effect of the conduct upon members of the ethnic group itself. 134 I now turn to the question of whether this leaflet contravenes s 18C. Neither side called any evidence, apart from the leaflet itself, on the topic of "anti-gunners". I therefore do not know whether or not the "facts" asserted in the leaflet are true. But, for the reasons earlier explained, that is not determinative of the question of contravention. 135 In my view, a leaflet that conveys an imputation that Jews are "anti-democracy, anti-freedom, pro-tyranny" is reasonably likely, in all the circumstances, to offend or insult a Jewish person in Australia. In coming to that conclusion, I have had regard to a number of factors, including the fact that Australia (like the US) is a western democracy whose people, both Jewish and non-Jewish, value their freedom and democratic institutions. In effect, the leaflet says that Jews do not adhere to those values, and are instead characterised by the descriptions given to them by the imputations. In addition to these factors, the leaflet also seems to suggest, albeit tangentially, that Jews, who are described throughout the leaflet as "anti-gun ownership" or "anti-gunners", may have been responsible for orchestrating the Port Arthur killings in 1996, presumably in order to promote their own political agenda. This suggestion is conveyed by the handwritten annotation on the leaflet. An allegation that a group of people are responsible for organising a mass murder is reasonably likely to offend or insult members of the group. 136 As to whether the leaflet was published "because of" the ethnic origin of Jews, there are many things about the leaflet that suggest race as a factor in the respondent's decision to publish this leaflet. The leaflet specifically refers to Jews both in its title and its contents; and it contains prominent annotations that specifically highlight the fact that the person being interviewed is Jewish. It may well be that a reason for the respondent's decision to publish was to express her views on gun ownership in Australia. However, it also appears that one of her reasons for publishing was a desire to express her views on what she sees as the attitude held by a particular ethnic group (namely Jews) towards gun ownership. As I consider that this was one reason behind her decision to publish the leaflet, it follows that this leaflet contravenes s 18C of the RDA unless s 18D applies. 137 In relation to s 18D, the respondent has submitted that the leaflet "was twice published for a genuine purpose in the public interest" and was distributed by her "for the same genuine academic purpose". Presumably, the respondent's reference to the leaflet being "twice published for a genuine purpose" refers to the fact that the leaflet was previously published in the two magazines described above. However, it is clear that s 18D does not provide a defence based on republication. Accordingly, to the extent that the respondent asserts a defence based on this ground, it is rejected. As to her claim that the leaflet was distributed by her for a "genuine academic purpose", the respondent presented no evidence as to the historical or intellectual veracity of the leaflet. Nor did she present any evidence as to what the genuine academic purpose was. 138 The respondent's affidavit (p 13) includes a section headed: "Legal reasons why I have the right and the duty to distribute this article". In that section the following appears: "The would-be tyrant, Jeremy Jones, is seeking to prevent me from distributing information which was written by a leader of a Jewish organisation, and which has been published twice in popular American magazines. My rights as an Australian citizen should not be any less than the rights of American citizens. Like Mr Zelman, I have every right to expose the heavy influence of left wing liberal Jewish antigunners in the mass media and government. The following page reveals just how heavy Jewish influence has been in the American government. In choosing his cabinet, the president discriminated against conservative Christian men. This discrimination has serious ramifications for Australia as our young men and women have been called to military duty in the Middle East where they have invariably sided with the American forces against the Semite race of Arabs. My actions are covered by Section 18C(a), (b) and (c). Gun ownership remains an important issue in our nation, as more and more people are realising that the official story about the Port Arthur massacre clashes with the facts of what really happened. Mr Zelman's statement that a schoolyard massacre may have been orchestrated by high government officials with the help of antigunners, is a statement of great interest to Australians who know that there are major faults in the official Port Arthur reports. Massacres of this sorts have occurred very conveniently in nations whose freedom is being curtailed." That is followed by what appear to be extracts from unidentified publications which:

assert that America's rulers are all Jews (p 14);

[45]

(b) "The Jewish Khazar Kingdom" 140 This leaflet is also undated but has a handwritten annotation on it which indicates that it was apparently received on 17 October 1995. It reproduces a five page article entitled "The Jewish Khazar Kingdom" by Curtis Clair Ewing. At the end of the article there is a typed annotation which notes that the article was reprinted for distribution in Australia by "Christian Identity Ministries", PO Box 146, Cardwell Qld. The leaflet purports to be an essay whose subject is the history of the "Khazar Kingdom". This kingdom is said to have existed in what is now Southern Russia, and was at the height of its power in the late 8th century AD, during which time it converted from paganism to Judaism. Using this fact the essay's author seeks to draw a number of conclusions, one of which is that Jews do not have a legitimate claim to Palestine as they are not "true Israelites". 141 The applicant makes particular complaint about the following paragraphs that appear in the article: "Professor Lothrop Stoddard, the world-renowned authority on ethnology, published an article in The Forum magazine for March 1926, in which he stated: 'There are two sharply contrasted types of so-called Jews: (1) Ashkenazim, those from Eastern Europe, short in stature, round-headed, with typical Jewish noses; (2) Sephardim, those from Afro-Asia (the Mediterranean), slender in figure, long-headed, with fine-cut noses, an harmonic type.' He further states: '… the Semitic Jews are long-skulled.' It is his learned position that the Ashkenazim is neither Jewish nor Semitic. And, using estimates from the Jews themselves, he states that 82% of Zionists are Ashkenazim, and that their claim to Palestine has no racial or historical foundation. He further agrees that probably nine-tenths of the world's Jews are predominantly of Ashkenazim blood, and that the same proportion is found in America today. … First, this evidence would certainly explode the JEWISH RACE theory. For, if they are a mixture of Esau-Edom-Hittites, Khazar-Ashkenazim, Sephardim plus Ethiopian blacks and Orientals, and plus a very charitable concession that a few real Judahites are among them, who has the temerity to call them a race, much less the purest race on earth, as many ignorant Christians have done? All that may be said of them is they are a religious community and then they are as much divided into denominations as Protestants. Second, the claim that they are the only representatives of the Israel people on earth is the greatest hoax of all time. They are not a good representative of Judah, much less the other tribes of Israel … … Third, their claim to Palestine or the land of the Middle East deeded to the descendants of Abraham by covenant promise is a false claim which will certainly be exposed in time. And if, as we suggested, Esau-Edom is found is world Jewry, and the Jewish Encyclopaedia (1925 Ed), article EDOM, states after the Jews had overcome Edom: 'From this time the Idumeans ceased to be a separate people …' then we may look for Obadiah to be fulfilled in the near future, especially verses 17-18, which read as follows: 'But upon Mount Zion shall be deliverance, and there shall be holiness; and the house of Jacob shall possess their possessions. And the house of Jacob shall be a fire, and the house of Joseph a flame, and the house of Esau for stubble, and they shall kindle in them, and devour them; and there shall not be any remaining of the house of Esau: for the LORD hath spoken it.' If the present occupants of Palestine are not true Israelites, much less Judahites, then we may look for a house-cleaning and terrible judgment to come upon them, or else the above scripture has no meaning. Once we find out who the Israelites are not, it is a very easy job to locate Israel provided one is honest and really wishes to know the truth enough to study the evidence. They will find that the marks of Israel are on the Anglo-Saxon-Celtic and related people." 142 In relation to this article, the applicant says that it conveys the first part of the imputation pleaded at par 2(c), being: (c) That contemporary Jewry is due for a terrible judgment because of its racial origin. 143 The applicant also submitted that the leaflet conveys the imputation that "the claim that Jews are the only representatives of the Israel people on earth is the greatest hoax of all time". As can be seen from a reading of the leaflet, the author presents a number of propositions relating to the supposed historical origins of Jews and then seeks to draw a number of conclusions from these propositions. Among these conclusions are the two propositions that form the basis of the imputations. Having regard to the fact that the imputations are drawn directly from the statements that are made in the leaflet itself, it is an unavoidable conclusion that the imputations would be conveyed to an ordinary reasonable reader. 144 Although I consider that the imputation that "contemporary Jewry is due for a terrible judgment because of its racial origin" is capable of being conveyed by the leaflet, in order to determine whether the imputation (and therefore the leaflet) contravenes s 18C it is necessary to assess the context in which the statement is made. The author of the leaflet makes the statement that "we may look for a house-cleaning and terrible judgment to come upon" Jews in order to offer his interpretation of a passage in "Obadiah", one of the books of the Old Testament. Read in this way (that is, as one person's interpretation of a passage of scripture), the leaflet does not say that contemporary Jewry is due for a terrible judgment because of anything that is inherently bad or wrong about contemporary Jewry. Rather, the leaflet says that contemporary Jewry is due for a terrible judgment because a certain scripture says so. If one does not accept the author's interpretation of the scripture, then it is difficult to see how one could be offended, insulted, humiliated or intimidated by the leaflet. Accordingly, I find that s 18C is not contravened in relation to this imputation. 145 The imputation that "the claim that Jews are the only representatives of the Israel people on earth is the greatest hoax of all time" is, in my opinion, in a different category. This imputation, through its use of the word "hoax", suggests that Jews, in asserting this claim, have deliberately set out to deceive. I consider that such an imputation is reasonably likely to offend and insult Jewish people. In saying this, I make no comment on the truth of the author's claims as to the descendancy of Jews, as I have no admissible evidence on this. I also consider that this leaflet was published by the respondent "because of" the ethnic origin of Jews. The leaflet, in its title and in its contents, is specifically concerned with Jews; and, more particularly, was published in an attempt to outline the author's views of Jews in light of the "historical evidence" that is presented by the leaflet. 146 In relation to s 18D, the respondent asserts that the leaflet has been published hundreds of times by hundreds of authors because it is of "public interest". She asserts that, because of this, it is "therefore covered by s 18D(b), (c)(i) and (c)(ii)". Apart from making that assertion, the respondent's affidavit does not contain any other material specifically directed towards this leaflet (T 500). However, it is clear s 18D does not provide a defence based on republication. Merely because a work has been published "hundreds of times by hundreds of authors" does not entitle the respondent to a defence under s 18D. Accordingly, to the extent that it is asserted that the respondent has a defence based on this ground, it is rejected. 147 One of the books tendered by the applicant was the "Thirteenth Tribe" by Arthur Koestler. That book deals with the same subject matter as the leaflet, and is admissible on the s 18D defence, as it may go to show that the general subject matter of the leaflet has been the subject of public discussion and controversy. It is appropriate to limit the use of this book to the s 18D defence pursuant to s 136 of the Evidence Act 1995 (Cth). But that falls short of establishing that the respondent acted reasonably and in good faith in accusing Jews of perpetrating the greatest hoax of all time. Nor has it been established that pars (b) or (c) of s 18D are satisfied.

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(c) "Russian Jews Control Pornography" 148 This leaflet reproduces two articles and one "letter to the editor". It is noted as being received on 16/17 March 1995. The first article is entitled "Russian Jews Control Pornography". It reproduces a story relating to the conviction of "pornographer Reuben Sturman" for "avoiding millions in income taxes by hiding his assets overseas". The article says that Sturman controls "a majority of the pornographic production and distribution companies in America". It also refers to the fact that Sturman is a "leader in the Cleveland Jewish community and is honoured at the top of their social ladder". The article also refers to the "Jewish control of the pornographic business". It concludes by saying: "If anyone needs a final reason for opposing Jewish immigration - THEN THIS IS IT." 149 The next article reproduced in this leaflet is entitled "Behind The Pornographic Flood - Pornography - Jewish 'Contribution' to America". Among other things, this article refers to the "exclusively Jewish dominated business which is springing up all over America … called pornography". It also refers to pornography as being a "totally Jewish-controlled business in America". 150 A "Letter to the Editor" is also reproduced in this leaflet. It is unclear where this letter has come from, or who the Editor is to whom it is addressed. It reads as follows: "Dear Jimi, I used to be one of those who scoffed at the international banking conspiracy. Well no more after I read that rural male suicide had increased by 600% in one generation. Caused on the whole by the robber banks' extortion tactics. And Ms Irene Moss declaring in the Weekend Australian that her husband was 'a lovely Jewish banker', now Ms Moss is urging Australians to accept the Mabo perfidy. I now have my own conspiracy theory: (1) the rural folk are being forced off their land and into the cities in order to strengthen the red feds' grip on the electorates. (2) These clearances are really ethnic cleansing and the land will be turned over to the blacks and Asians as part of [a] capitulation treaty. (3) The land will be bought back from the bankers at hugely inflated prices with taxpayers' money to increase the robber banks' already usurious profits. (4) This ethnic cleansing will eliminate the Christian conservative resistance to the red feds' fifth-columnism, hastening the republic and change of the flag. (5) Paul Cheating will be made president for life and Australia's name will be changed to the Socialist Republic of Mongroidia." 151 The applicant contends that this leaflet conveys the imputations pleaded at pars (d), (e) and (h), namely: (d) that Jews, per se, are anti-decent living in the sense that they, by their nature control pornography both in America and Russia; (e) that Jews, per se, exhibit a moral attitude which is antithetical to Australian values (described as 'anti-Christian'); (h) that Jews are seeking to control the world, or already have gained that control, with the intention of destroying 'White Christian civilisation' and that Jews are 'lying frauds … trying to force the White race to mongrelise'. 152 The first two articles that are reproduced in this leaflet ("Russian Jews Control Pornography" and "Behind the Pornographic Flood - Pornography - Jewish 'Contribution' to America") contain clear and unambiguous statements that Jews are behind, and control, the pornographic industry in the US. The body of the articles cite a number of examples of Jewish ownership of pornographic businesses in the US, and by these examples seek to convey that Jews, in general, are responsible for a business that is depraved and immoral. The respondent asserted that "Jews per se are not being blamed" in the articles (RPOUC p 3(d)). However, no attempt is made in the articles to limit the attribution of blame to individuals; rather, Jews as a group are blamed. The imputation that "Jews, per se, are anti-decent living in the sense that they, by their nature control pornography in both America and Russia" would be conveyed to an ordinary reasonable reader by this leaflet. 153 Imputations (e) and (h) are not conveyed by the leaflet. The leaflet makes no mention of Jews exhibiting a moral attitude that is antithetical to Australian values and that is described as "anti-Christian"; nor does it convey an inference along those lines. The two articles relating to the Jewish control of pornography are apparently aimed at the US and not Australia. In addition, apart from the reference to Ms Moss' husband as "a lovely Jewish banker", nowhere is the supposed moral attitude of Jews discussed or implied in the "Letter to the Editor", and I do not see that an ordinary reasonable reader would read such a meaning into the Letter to the Editor. The same equally applies to imputation (h). Accordingly, I am of the view that imputations (e) and (h) are not conveyed by the leaflet. 154 An imputation that Jews are "anti-decent living in the sense that they, by their nature, control pornography both in America and Russia", is reasonably likely to offend or insult a Jewish person living in Australia. As I stated above, despite the respondent's assertions to the contrary, no attempt is made in the leaflet to limit the attribution of blame to individuals; rather, Jews as a group are sought to be held responsible for the ownership and control of pornography. Accordingly, I am of the view that s 18C is contravened by this leaflet, subject to the availability of a defence under s 18D. 155 The respondent asserts in her affidavit that the leaflet was "distributed in the public interest; 18D(b)". She says: "When attention is drawn to the identity of those who are involved in a most despicable business, there will be a decrease in that business and more safety for our little children." (Affidavit p 2, leaflet (f)) In RPOUC p 3 the respondent says: "The references to Jewish control of pornography are very specific. Many names and details are given. Jews per se are not being blamed, but of course the evil influence of the Talmud must be of concern to all people …" 156 On p 30 of the respondent's affidavit, she says: "It is not surprising that so much pornography in America and elsewhere is controlled by Jews. This evil influence probably comes into the Jewish communities through their Rabbis who spend many years studying the filthy Talmud which instructs the Jews to hate Christians and to harm them in every possible way. The Talmud is itself pornographic. It claims that sodomy is not sodomy if committed with a child under the age of nine. Much detail is given to support that criminal notion. Likewise it proclaims that men can have sex with little girls as long as they are under the age of three years. (see photocopy from Talmud). In one passage it explains that sexual intercourse with a gentile baby is acceptable. This is one of the thousands of passages which reveal Talmudic hatred for other races, yet Mr Jones has the gall to bring charges of racism against me. The article which I distributed was full of facts which had been published in American newspapers. It names names, gives details of convictions for tax evasion and money laundering. This article which so 'offended' Jeremy Jones is presented here along with some other clippings from various newspapers." (underlining in original) 157 A miscellaneous, and mainly unidentified, list of "clippings" is incorporated in this section of the affidavit. One cannot satisfactorily summarise this material, but I give a few examples. On p 34 it is asserted that "White 'Gentile' women sex slaves have been/are being sold at auction in Israel" and the question is posed "How long have the Jews known about sex slavery in Israel?" On p 36: "… Jews of Los Angeles who, like 99.9% of Jews everywhere, enable the perversions in Israel". On p 41: "The most important religious texts of the Jews (collectively known as the Talmud) authorise the Jews to kidnap, rape and murder White 'Gentiles'." On p 42: "Jews Seize Control of Walt Disney Studios to Churn Out Filth"; "Jews Ruin Walt Disney Pictures"; "Jewish controlled Hollywood has stepped up its promotion of homosexuality as an acceptable 'alternative lifestyle'". 158 Much of this material repeats and embellishes upon the material contained in the leaflet about which the complaint is made. The material confirms the impression which one derives from the leaflet itself, namely that the respondent, in distributing the leaflet was intending to denigrate Jews as a group, rather than simply to expose criminal or immoral conduct on the part of particular individuals. I do not accept the respondent's assertion that "Jews per se are not being blamed". The extract from her affidavit quoted above makes it plain that in the respondent's view, Jews have a propensity for involvement in pornography because of the teachings of their Rabbis and of the "filthy Talmud". 159 I am not satisfied that in distributing this leaflet, the respondent was acting either reasonably, or in good faith. The leaflet employs sensationalised headings which place the blame for pornography upon Jews per se. Pornography is described as "the Jewish contribution to America", and the leaflet states "If anyone needs a final reason for opposing Jewish immigration - THEN THIS IS IT". The other reasons are not stated, but it is implicit in the article that the fact that a person is a Jew is a sufficient reason for not allowing the person to settle in America. The leaflet vilifies Jews because they are Jews, and for that reason its distribution is neither reasonable, nor in good faith.

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(d) Untitled document appearing at page 25 of the applicant's affidavit 160 This leaflet appears to reproduce two pages from a larger document, but neither party submitted that the fact that the leaflet appears to be part only of a larger document was of any significance. A handwritten annotation appearing at the top of the leaflet states that it was received in a mailbox "around February 1996". 161 The leaflet's theme is the dangers posed to the US by what the author describes as the "sin of race mixing". Jews are said to be responsible for promulgating "race mixing". The main danger is said to be that race mixing will cause the "White race to disappear leaving the world in the control of the anti-Christ Jews". Race mixing is said to be part of a Jewish plan for world conquest. 162 The applicant has made particular complaint about the following paragraphs that appear in the leaflet: "The sin of race-mixing is one of the greatest dangers our nation faces today, although most Christian ministers make light of it. If God allows this church approved sin to continue, within a few generations the White race will disappear leaving the world in the control of the anti-Christ Jews who have been foremost in promulgating race mixing, knowing that history proves that bastard races are easier to control. In America, this has become an increasing threat due to several reasons: (1) the heavy influx of Black Hispanic, Asiatic and Jewish people, strongly promoted by Zionist interests in our government. … (3) The promotion of 'racial equality', by the media, which in business and social situations always stresses race mixing, has encouraged Christians to do the same, even though the Word of God strongly condemns it. … (6) The attack on the Bible, Christian virtues, the home and the sacredness of marriage, is all part of the over-all plan of the anti-Christs. A few nights ago I watched TV evangelist Pat Robertson, as he decried this attack against Christianity in what he titled ATTACK ON FAITH! He mentioned such anti-Christian organisations as the ACLU, but never hinted that they were led and controlled by anti-Christ Jews. Of course he could not do this, since as a Christian Zionist his interests lay in an 'Israeli first' policy. He calls these Canaanite enemies of Christ, the Chosen People while knowing they are His enemies. What utter hypocrisy! (7) There is a conspiracy under way, Virginia! Whether you want to accept it or not. It is a conspiracy that had its start in the dusty halls of Babylon, for world conquest, and has carried on during the last 2000 years in what it openly states is a campaign of ultimately destroying 'White Christian Civilisation'. 163 The applicant contends that this leaflet conveys the imputations pleaded at pars (b), (c), (e) and (h): (b) that the philosophy and teachings and practice of Jews is based upon a learning (the Talmud) which: (i) ought to be stamped out; (ii) promotes sodomy and paedophilia; (iii) is worse than a satanic cult; (c) that contemporary Jewry is due for a terrible judgment because of its racial origin and the law commands all to own guns and to stamp out Judaism and, by implication, contemporary Jewry; (e) that Jews, per se, exhibit a moral attitude which is antithetical to Australian values (described as 'anti-Christian'); (h) that Jews are seeking to control the world, or already have gained that control, with the intention of destroying 'White Christian Civilisation' and that Jews are 'lying frauds … trying to force the White race to mongrelise'. 164 Imputation (b) is said to arise, not through any direct reference to the Talmud, but through the reference to the "dusty halls of Babylon" in par (7) of the second column of the leaflet. The applicant contends that "the Talmud originated in Babylon during the exile of the Jews". I do not consider that this connection between Babylon and the Talmud would be made by an ordinary reasonable reader. In addition, there is no direct reference in the leaflet to the philosophy, teachings or practices of Jews, nor any suggestion that it ought to be stamped out, promotes sodomy and paedophilia, or that Judaism is worse than a satanic cult. Nor, in my opinion, can these suggestions be inferred from the leaflet. Accordingly, I am of the view that imputation (b) is not conveyed by the leaflet. 165 I do not consider that imputations (c) and (e) are conveyed by the leaflet. There is no mention of contemporary Jewry being due for a terrible judgment because of its racial origin; no mention of the law commanding all to own guns; and no mention of Jews exhibiting a moral attitude which is antithetical to Australian values. Although there are a number of references to "anti-Christ Jews" in the leaflet, the leaflet does not mention Australia or its supposed values; rather, the leaflet appears to have been written from an American perspective, and to the extent that it attempts to contrast the alleged moral attitude of Jews with the attitudes of any other group, it is the values of white Christian Americans that are so contrasted. Imputations (c) and (e) would not be conveyed to an ordinary reasonable reader reading this leaflet. 166 As to imputation (h), the leaflet specifically makes mention in par (7) of there being "a conspiracy under way" that "had its start in the dusty halls of Babylon, for world conquest, and has carried on during the last 2000 years in what it openly states is a campaign of ultimately destroying 'White Christian civilisation'". The leaflet also makes mention of the white race disappearing, "leaving the world in the control of the anti-Christ Jews who have been foremost in promulgating race mixing …". An imputation that Jews are "seeking to control the world with the intention of destroying White Christian civilisation", would be conveyed to an ordinary reasonable reader by these passages. Such an imputation would also be reasonably likely to offend or insult Jews in Australia albeit part of the particularised imputation, namely "Jews are lying frauds … trying to force the white race to mongrelise", is not made out. The leaflet makes sensationalised claims that seem clearly intended to provoke Jews and incite opposition to their beliefs (or the author's perceptions of those beliefs). In relation to s 18C(b), the leaflet is specifically directed towards what it perceives as Jewish attitudes towards the "sin of race-mixing", and makes numerous references to Jews. It seems clear that at least one of the reasons behind the leaflet being published was to express the author's opinions on Jews and their supposed beliefs. 167 In the respondent's affidavit, she says that "this leaflet about the Israelite identity of the European Christian people is of genuine public interest thus covered by 18D(b). As this information will combat racial discrimination against all white societies, all of whom are being forced to become multi-racial states, it comes under the protection of s 18D(c)(i)". 168 On p 65 of the respondent's affidavit, she says: "The leaflet traces the story of Abraham and his son Isaac, and Rebecca and Rachel and Joseph in Egypt. The writers believes that the descendants of this Biblical family are the white Christian nations and that the Laws of God have been given to them to live by. He believes that there is a Jewish conspiracy which is destroying the Christian Israelite societies by promoting race-mixing, immorality, and a regression of America to a Third World status. In the following pages there is ample evidence to prove that such a conspiracy does exist. If there are any factual errors in my evidence I would like to have them pointed out. But if my materials are correct then they are in the public interest and I am protected by the Australian Constitution, by the Laws of God and even by the Racial Discrimination Act which allows matters of public interest to be discussed. It is the hateful lies which cause offence. Historical and contemporary TRUTH can only be offensive to the liars." 169 The "ample evidence" to which the respondent refers consists of extracts from various articles by persons about whom little, if anything, is known interspersed with what are said to be quotations from various sources. The extracts do not prove anything in a legal sense. Nor do the quotations, even if accurate, prove the truth of what is said. Again, it is impossible to summarise this material. But the general thrust of much of it is to assert the existence of a Jewish plan to deliver the whole world to the "Jewish cause" by promotion of intermarriage between races. For example on p 70, under the heading "Satan stamps over Europe", the following appears: "Do those, who hate other peoples, want to destroy them? By genocidal immigration? Perfecting the world means to Jewry, surviving as a racial entity and destroying the Aryan entities by racial blending in order to rule them in racial superiority!" 170 All that the respondent's "evidence" establishes is that she is not the only person in the world to engage in the vilification of Jews, and that there are others who profess to hold views similar to her own. The "evidence" does not establish a s 18D defence. The justification which the respondent proffers for her conduct in her affidavit is sufficient, of itself, to negative the availability of a s 18D defence.

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(e) "The Most Debated Question of Our Time - WAS THERE REALLY A HOLOCAUST?" 171 This leaflet reproduces an article written by Dr E R Fields. It appears to be a photocopy from a publication known as "The Truth At Last". It is four pages in length. There is a handwritten annotation at the top of the article noting that it was "received in March 1996". 172 The article begins by asserting that the Holocaust "has become the greatest instrument of sympathy which any nation has ever been able to use to gain support for wars, expansion and foreign aid: this has made Israel the world's sixth strongest military power. The gravest threat to all this wealth and influence is the growing doubt over the question of whether or not a real holocaust of six million Jews ever actually took place". The author then goes on to state what he contends are a number of facts which he says disproves that there was really a Holocaust. 173 The applicant has complained about the whole leaflet, but in particular complains about the following paragraphs in the article: "What experts say about the Holocaust Dr Harry Elmer Barnes, eminent historian, author of 40 books, many standard college texts, noted in Rampart Journal, 1967 'It has been demonstrated that there had been no systematic extermination in those camps'. Thies Christophersen, a German soldier and author: 'I was at Auschwitz! There was no gas chamber there'. Paul Rassiner, historian and anti-Nazi activist, who served a prison sentence in Buchenwald and the Dora camps stated in 1962 "The claim that a holocaust took place is an historic lie - the most tragic and most macabre imposture of all time'. Prof Robert Faurisson, a specialist in Document Analysis at the University of Lyon, France, stated on April 25, 1979 'The holocaust lie, which is largely of Zionist origin, has made an enormous political and financial fraud possible, whose principal beneficiary is the State of Israel'. Why the Holocaust campaign? Hardly a week goes by when there are not stories in the press, on TV news or movies about the alleged holocaust. What is the long range design for this constant attempt to fill Germans and indeed all Christians with a feeling of guilt over a holocaust which never occurred? · Bernard Postal wrote in Jewish Week, July 14, 1979 'Not until after the Holocaust, did anti-Semitism become taboo. There was a time when anti-Semitic speeches were an open factor in national campaigns. The Holocaust puts a taboo on overt anti-Semitism among upper-level statesmen and publicists!' · S. E. D. Brown of South Africa, a noted journalist writes, 'The holocaust instils a guilt complex in those said to be guilty and spreads the demoralisation, degeneration and eventually the destruction of the natural racial elite among a people. This transfer effective political control to the lowest elements who will cowtow to the Jews'. · Zionist spokesmen often boast of: 'The shattering effect of the holocaust on the Christian conscience resulting in a feeling of collective indebtedness to the Jews'. · Massive, unending, US Foreign Aid to Israel is made possible because anyone who dares oppose these outrageous giveaways is condemned as being "anti-Semitic" and "insensitive" to holocaust victims. · The Jews hold an unnatural violent hatred for the German people. Jews seek to turn all other peoples of the world against Germans and keep that nation divided for all time to come. That is why no peace treaty has ever been signed as yet with Germany and they still live under allied military occupation laws. … A question of fund raising The Wall Street Journal quotes the Jewish professional fund-raising consultant firm of Milton Goldin Co, as saying that the main theme of Jewish fund-raising is the holocaust and has been for 38 years. When they don't use the holocaust the money collection sharply drops off. Thus the more the press, TV and Hollywood promotes the holocaust the more money the United Jewish Appeal and other Zionist funds can extract from gullible people. Holocaust silences opposition Jewish leaders have discovered that by repeating holocaust stories over and over again they can instil a guilt complex within all Gentiles. This effectively silences most critics of Zionist political goals." 174 The applicant contends that this leaflet conveys the imputation pleaded at par 2(f), being: (f) that the ethnic group who live as Jews have perpetuated and are perpetuating a "myth" for their own political purposes, being the Holocaust perpetrated by the leaders of the Nazi Party in Germany, which allegation by the respondent imputes that Jews, per se, are fraudulent, liars, immoral, deceitful and part of a conspiracy to defraud the world (or the remainder of it). 175 In this leaflet, the author attempts to put forward a number of "facts" which he asserts prove that the Holocaust could not have occurred. The leaflet contains statements that there are "real doubts" about whether a "holocaust of 6 million Jews ever actually took place", and makes reference to the "alleged holocaust" and "a holocaust which never occurred". Using these "facts" the author then goes on to state what he believes are the motives behind Jews perpetuating the "holocaust lie". Among those alleged motives are making anti-Semitism taboo; instilling a guilt complex in those said to be guilty; and for fund raising for both Jewish groups in the US and for Israel itself. To state that Jews have invented an historical event in order to profit from it clearly imputes that Jewish people are fraudulent, liars, immoral, deceitful and part of a conspiracy to defraud the world (or the remainder of it). That is made explicit by the quotation attributed to Professor Faurisson: "The holocaust lie, which is largely of Zionist origin, has made an enormous political and financial fraud possible whose principal beneficiary is the State of Israel." Accordingly, I find that imputation 2(f) is conveyed by this article. 176 I am not in a position to determine, as a matter of fact, whether the claim made by the author of the pamphlet that the Holocaust never occurred is true or not. I do not have the evidence which would be needed to enable me to make that determination, assuming that the matter is susceptible of proof in a court. As Gray J observed in Irving v Penguin Books Ltd [2000] EWHC QB 115 at [1.3], that is a task for historians whose role it is to provide an accurate narrative of past events; whereas my role is to determine whether the public dissemination of the leaflet by Mrs Scully in Launceston contravenes s 18C of the RDA. 177 In my view, a leaflet that conveys an imputation that Jews are fraudulent, liars, immoral, deceitful and part of a conspiracy to defraud the world is reasonably likely to offend, insult, humiliate or intimidate Jews in Australia. This would be so regardless of whether or not the leaflet made mention of the Holocaust. However, the fact that the imputation arises in the context of a debate about the Holocaust makes it even more likely that the leaflet would cause offence. This is particularly so owing to the inflammatory language used in the leaflet, as well as the fact that it is unambiguously dismissive of the Jewish view of the Holocaust. I therefore find that this leaflet contravenes s 18C. 178 In par 22 of the respondent's written submissions the following appears: "If Jews were really stuffed into gas chambers and gassed by the millions, then some type of proof should be made available. In the Irving-Lipstadt case in London, Judge Gray was surprised that so little evidence was presented for the existence of gas chambers. He had expected a lot of evidence, but was given none. The Lipstadt side were not even able to produce a photo of the holes in the roof through which the pellets could have been thrown." 179 The following comments should be made about that submission. First, the issue before Gray J was whether Professor Lipstadt's book, "Denying the Holocaust - The Growing Assault on Truth and Memory", libelled David Irving. The book accused Irving (inter alia) of being a spokesperson for Holocaust denial, who frequently denied that the Nazis embarked upon the deliberate planned extermination of Jews, and who asserted that it is a Jewish deception that gas chambers were used by the Nazis at Auschwitz as a means of carrying out such exterminations. The book also accused Irving, in denying that the Holocaust happened, of misstating evidence, misquoting sources, falsifying statistics, misconstruing information and bending historical evidence so that it conforms to his neo-fascist political agenda and ideological beliefs. A defence of justification was upheld. 180 Gray J concluded, in a judgment of 202 pages at [13.91]: "… no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews." and at [13.9] and [13.51] found that Irving had misrepresented and distorted the historical evidence which was available to him. In the light of these findings, I am unable to accept that the respondent gains any assistance or comfort from the decision of Gray J in Irving. 181 In the respondent's affidavit (page 46), the following justification is offered in relation to this leaflet: "Any one who cares to read this leaflet will see that there has been solid information available for decades to cast doubt on to the accepted version of "The Holocaust". The essence of the argument is really whether or not homicidal gas chambers were used to kill any people. In the next several pages I provide enough information to prove that NO! THERE WERE NO GASCHAMBERS AT AUSCHWITZ OR AT ANY OTHER GERMAN DETENTION CAMP. I am also submitting 8 hours of video evidence and numerous books. But as a defence against accusations of racial vilification etc, I must make the point that many, many hateful lies have been made against the German people for nearly 90 years. Whenever a gross lie is exposed as a lie there is never an apology to the victim nation (usually Germany) and no apology to the families of the innocent individuals who suffered imprisonment and torture and execution for crimes not committed. Then the job of publicising the exposure of the gross historical lie falls on to self-funded groups of historians and individuals such as me who struggle against the inertia of government-funded 'academics' who are too cowardly to admit that they have been peddling lies for decades. HISTORICAL LIES ARE VERY HURTFUL TO INDIVIDUALS OF VICTIM NATIONS SUCH AS GERMANY. One of the most abominable books of lies if Hitler's Willing Executioners by the Jew Daniel Goldhagen. It contains no research or scholarship, just SHEER NONSENSE and it is WORTHLESS. SO, HOW COME IT IS PERMISSIBLE FOR SHEER NONSENSE AND WORTHLESS SCHOLARSHIP TO CONTINUE ITS VILIFYING SLANDER AGAINST ALL GERMAN PEOPLE? That vile book which deliberately vilifies all German people continues to be sold, promoted and discussed as though it is scholarly, and only very, very rarely is its true aim revealed - the aim of denigrating all German people. Somehow German people have lost the right to be hurt by lying slander. But under our laws of Equal!! Rights, Jews are able to promotes (sic) their hideous lies, and we the truth-tellers are not allowed to question their hideous lies." (bold and underlining in original) 182 One may "cast doubt on the accepted version of 'The Holocaust'" without contravention of s 18C. The leaflet goes beyond that objective, because of the imputation which I have found the leaflet conveys. The balance of the paragraphs quoted above appear to assert that it is legitimate to engage in racial vilification of the Jews because some persons who are Jews have engaged in real or imagined slander of the German people. There is no merit in this contention. 183 The respondent contends that the leaflet: - was distributed for a genuine academic purpose (s 18D(b)); - is "overwhelmingly fair and accurate s 18D(c)(i)"; and - is also covered by s 18D(c)(ii) "because it will combat the racial discrimination and prejudice currently suffered by the German people who are vilified by Jewish film directors such as Steven Spielberg who promote hatred of the German race." [Affidavit p2(g)] 184 The videos to which I earlier referred and the book "The Holocaust Industry - Reflections on the Exploitation of Jewish Suffering" touch on or cover the same general subject matter as this leaflet. I declined to accept those sources as evidence of the facts, but they may be admissible on the s 18D defence to show that the general subject matter of this leaflet is a matter of public interest, and that some other persons profess to hold views on the general subject matter similar to those expressed in the leaflet, but I would limit their use to that extent. 185 There is a line between legitimate criticism, and prejudicial vilification of the Jewish race and people. Jews are as open to criticism, and their beliefs are as open to scrutiny, as much as is the case with any one else. I accept that the views expressed in the leaflet accord with the respondent's subjective opinions on the topics covered by the leaflet. But this is insufficient of itself to establish a defence under s 18D. 186 I do not accept that the respondent distributed the leaflet reasonably, or in good faith for a genuine academic purpose. Her affidavit does not establish that this is so, but rather it suggests that it is not. If, as Mrs Scully says, available information only "casts doubt" on the accepted version of the "Holocaust", then distribution of a leaflet conveying the imputation which I have found is neither reasonable nor in good faith, nor can it be in legitimate pursuit of any academic purpose. At p 54 of her affidavit, an extract from an unidentified publication refers to the "Holocaust extortion racket" and to "Holocash" engaged in by "Holocaust Swindlers". This is amongst the materials on which the respondent relies as justifying her distribution of the leaflet. That confirms the impression gained from a reading of the leaflet itself, and from the whole of the evidence, that Mrs Scully is a person who holds strongly anti-Jewish views, and that this leaflet was distributed with the intention of vilifying Jews. In the context of the RDA, if that was the intention underlying the distribution of the leaflet, then reasonableness, good faith and genuineness of purpose would not be found. 187 Nor is the leaflet a "report" in the sense that this expression is used in s 18D(c)(i) of the RDA (that is, as referring to the media reporting of a current event [see Explanatory Memorandum p 11]), nor is it fair, as it is the product of the respondent's anti-Jewish bias. The notion of a "fair comment" is derived from the law of defamation. The law of defamation distinguishes between a comment, and a statement of fact. It is not always easy to draw that distinction: see for example, Fleming, The Law of Torts 9th Ed. 1998 at pp 648-649. The imputation which I have found is a factual allegation that Jews have invented the Holocaust for their own financial gain, rather than a comment upon some substratum of fact.

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(f) Untitled document appearing at page 30 of the applicant's affidavit 188 This document appears to be an extract from a letter written by an unnamed person to a Rabbi Fox. It is one page in length and contains two columns. It is described in the respondent's affidavit as "an odd page out of some newsletter" (p 76). It has a handwritten annotation stating that it was received in a mailbox on 6 April 1996. It was not submitted by either party that the fact that the letter appears to be an extract only from a larger document was of any significance. The leaflet accuses Jews of promoting the dissolution of "all things Anglo/Australian" through immigration and the assimilation of ethnic communities. It also accuses Jewish teachings of promoting sodomy and intercourse with infants, and describes Judaism as "worse than a Satanic Cult". 189 The applicant complains about a number of paragraphs that appear in this leaflet. In the first column, the following paragraph appears: "Further in the article it would seem that Galatians 3:28 is an affront to Jews and a myriad of non-Christians; but nary a word that the flourishing of other faiths in this Christian country might be more than a mere superficial affront; it is in fact a downright threat to the continued existence of Christianity. That to you, Rabbi Fox, is clearly to be approved of, as you show concern only about every other faith - not least your own. In other words Christianity must make room for all-comers, and soon there will be no place anywhere for Christianity in Australia. The applicant also makes complaint about the following paragraphs that appear in the right hand column of the leaflet: "With the exception of the Asian and other very different looking peoples, the ethnic communities will assimilate; (including your own, though for cultural reasons to a lesser extent, for which assimilation is some genuine anguish on your part) and this to the accompaniment of much insincere solicitous concern from the likes of you, as the non-Jewish ethnics themselves are as expendable as are two-legged cannon fodder to a field commander in the drive to abolish as a viable concept the Anglo-Australian …" "To something not derived from the article: I have a book by one, Elizabeth Dilling (1894-1966) 'The Jewish Religion: Its Influence Today' from the Heritage Bookshop. I turn to page 22 and it says, 'When a grown man has intercourse with a little girl it is nothing, for when the girl is less than this - that is, less than 3 years old - it is as if one puts the finger into the eye - tears come to the eye again and again, so does virginity come back to the little girl under 3 years. (See Exhibit 136, Kethoboth 11b of the Talmud.) This is the standard doctrine of the whole Talmud on baby girls. Sodomy and intercourse with babies is the prerogative of the adult Talmudic man, in contrast to Christ's beautiful teachings concerning little children.' There is much, much more of an equally repellent nature on this and other Talmudic topics in her priceless book. I cannot understand why anyone could continue to adhere to this worse than a Satanic Cult that you call Judaism when they read this. What do your women say about it? Do they approve? Or is the truth about your 'religion' carefully hidden from them also? But you, Rabbi Fox, can't not know about it, so why are you still a rabbi? If you are not active in having such advocacy of unspeakable crimes against infant girls expunged for all eternity from your approved Talmud, then you must be in agreeance with such 'sacred' teachings. That comment, of course, would be equally applicable to the rest of you rabbis, planet wide." 190 The applicant contends that imputations (b), (d), (e) and (h) are conveyed by this leaflet: (b) that the philosophy and teachings and practice of Jews is based upon a learning (the Talmud) which: (i) ought to be stamped out; (ii) promotes sodomy and paedophilia; (iii) is worse than a satanic cult; (d) that Jews, per se, are anti-decent living in the sense that they, by their nature control pornography both in America and Russia; (e) that Jews, per se, exhibit a moral attitude which is antithetical to Australian values (described as 'anti-Christian'); (h) that Jews are seeking to control the world, or already have gained that control, with the intention of destroying 'White Christian Civilisation' and that Jews are 'lying frauds … trying to force the White race to mongrelise'. 191 In relation to this leaflet, the respondent contends that: "In an age when thousands of babies and toddlers are being raped to death in front of video cameras, it is of paramount public interest to protect all children from such torture. Section 18D(b) gives protection to the distribution of this leaflet, because a filthy source of 'religious' literature which promotes this horrific practice needs to be exposed in the public interest." (Affidavit p 2 par (h)) 192 Imputations (b)(ii) and (iii) are drawn directly from the leaflet itself. The passage that quotes Elizabeth Dilling's book refers to "a grown man [having] intercourse with a little girl", and is said by Dilling to be "the standard doctrine of the whole Talmud on baby girls. Sodomy and intercourse with babies is the prerogative of the adult Talmudic man …" Following on from this passage, the author of the leaflet describes Judaism as "worse than a Satanic Cult". Accordingly, I find that imputations (b)(ii) and (iii) would be conveyed to an ordinary reasonable reader. However, in relation to imputation (b)(i), I do not consider that an imputation that the Talmud itself, or the philosophy, teachings and practices of Jews "ought be stamped out" arises from this leaflet. 193 Imputation (d) is framed in terms of Jews being anti-decent living in the sense that they, by their nature, control pornography in both America and Russia. In other words, the imputation is specific as to the way in which Jews are said to be "anti-decent living". However, no mention is made of Jews controlling pornography anywhere, let alone in specific countries. Whilst it is true that the leaflet does ask the question: "Why can't such Talmudic writings be classed as child pornography …?", this is quite a different thing to suggesting that Jews control pornography. Imputation (d) would not be conveyed to an ordinary reasonable reader of this leaflet. 194 As to imputation (e), the imputation suggests that the leaflet uses the term "anti-Christian" to describe the moral attitude of Jews. However, nowhere in the leaflet is the word "anti-Christian" used. Nor is such a meaning implied. Furthermore, nowhere in the leaflet is the alleged moral attitude of Jews contrasted specifically with Australian values. It is, instead, contrasted with values and beliefs that the author seeks to attribute to Christians in Australia, which is not the same thing as contrasting it with Australian values. In so contrasting Jewish attitudes with Christian values, the author does not do so in a way that Jewish attributes are described (or implied) as "anti-Christian". I do not consider that imputation (e) would be conveyed to an ordinary reasonable reader. 195 I do not consider that imputation (h) would be conveyed to an ordinary reasonable reader of this leaflet. The leaflet does not suggest that Jews are seeking to control the world, or that they have the intention of destroying White Christian civilisation. It is true that the leaflet makes reference to what Jews (or at least one member of the Jewish community in Australia, namely Rabbi Fox) apparently "want to see happen" - namely, "the complete dismantling/dissolution of all things Anglo-Australian…" but this of itself does not suggest that Jews are seeking to control the world or have the intention of destroying White Christian civilisation. I do not think that imputation (h) would be conveyed to an ordinary reasonable reader of this leaflet. 196 As to s 18C, the applicant gave evidence in cross-examination as to his understanding of the passage reproduced in the leaflet that purports to quote an extract from the Talmud. His evidence was that he had never read such a passage in the Talmud, but had seen it referred to in books that sought to give the passage the same interpretation as that given by Elizabeth Dilling. However, no Jewish person he had ever come across adopted that interpretation. Mr Jones also said that, in any event, taken in context passages of this kind relate not to the status of the perpetrator of the act but rather to the status of the victim - how somebody who has been raped as a child can then re re-integrated fully within the Jewish community; and that it is both his view, and his understanding of the views of Jews in general, that the idea of a grown man having sex with a child would be regarded as "completely repugnant and horrific behaviour". 197 Although the applicant is not, and does not profess to be an expert on the Talmud, I accept his evidence as to his understanding of Jewish views on such practices as paedophilia. As he said Jews consider such practices to be completely repugnant and horrific, it follows that a piece of literature that seeks to attribute to Jewish teachings the promotion of such practices, is reasonably likely to both offend and insult Jews in Australia. The same can be said for an imputation that Judaism is "worse than a Satanic Cult". By its clear words, such an imputation attributes to Judaism and its followers that their religion is worse than a cult that practices the worship of Satan. To the extent that the leaflet conveys an imputation that compares the worship of Satan to the practices of Judaism, I consider that it is reasonably likely to offend and insult Jews. I also consider that the leaflet was published in order to comment specifically on the author's belief as to Jewish practices. In this sense, the ethnicity of Jews was a factor in the respondent's decision to publish the leaflet. I accordingly find that this leaflet contravenes s 18C, subject to the availability of a defence under s 18D. 198 As to s 18D, the respondent contends that "Section 18D(b) gives protection to the distribution of this leaflet, because a filthy source of 'religious' literature which promotes this horrific practice needs to be exposed in the public interest". The respondent has had no formal education in the Jewish religion, she is not an expert in the Talmud, nor has she spoken to any experts. Neither Mr Jones, nor any Jewish person he has ever come across, treats anything in the Talmud as conveying the message described by Elizabeth Dilling. In those circumstances, it cannot be said that the respondent was acting reasonably in distributing the leaflet in question. Nor am I satisfied that in so doing she acted in good faith. The leaflet may reflect views which the respondent holds but her purpose in disseminating the article was to vilify Jews as part of her campaign to "stamp out" Judaism. 199 For the same reasons, the publication was not made for any genuine purpose in the public interest, but as a result of the respondent's anti-Jewish prejudices.

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(g) Untitled list of book synopses 200 This leaflet, of one page in length, was received in a mail box on 12 April 1996. It reproduces synopses of some 21 books. A handwritten annotation appearing on the side of the leaflet advertises that the books are "on sale at Hart Street Market". The respondent has admitted that this handwriting is hers. In the middle of the page there is a picture of Vladimir Lenin, with the word "Jew" handwritten across his forehead. The respondent has also admitted that this handwriting is hers and that the leaflet was distributed with the handwritten annotations on it. 201 The respondent stated in cross-examination that she did not herself do the synopses of each book, but rather photocopied the synopses from a newspaper called "The Truth at Last". The respondent stated that this newspaper is published in Marietta, Georgia, USA. She also said that she had read at least ten of the books described in the leaflet. 202 The applicant complains of, in particular, ten of the synopses appearing in this leaflet. The first three synopses of which complaint is made appear on the far left hand column of the leaflet, under the heading "Books by Jewish Writers". The first of these books is entitled "You Gentiles" by Maurice Samuel. The synopsis reads as follows: "A Jew describes 'why we are not loyal citizens'. Also 'why we destabilise nations' and how Jews are disciplined to the detriment of the Goyim." 203 The second synopsis is entitled "The Protocols of the Learned Elders of Zion". The synopsis reads: "Original minutes of the Jews' secret plan for the New World Order, first revealed in Russia in 1905 …." 204 The third synopsis is entitled "Behind Communism" by Frank Britton. The synopsis describes this book as: "the single greatest book ever written exposing the Jews behind the world Communist conspiracy." 205 The next two synopses appear in the second column of the leaflet under the heading "Actual Origin of the Jews - Who Are These People Who Call Themselves Jews?". The first title under this heading is "The Thirteenth Tribe" by Arthur Koestler. The synopsis states that the book "proves that today's 'Jews' never resided in ancient Palestine. They originated in Khazaria, in South Russia and converted to Judaism in the year 800 AD. They make up 82% of world Jewry. Koestler says they have no historic claim to Israel." The second book under this heading is entitled "Facts are Facts" by Benjamin Freedman, who is described in the synopsis as "a wealthy Jewish Wall Street banker in the 1950s". The synopsis states that "he details why the Jews are not related to the 'Chosen People' of the Bible. Freedman says they are Khazars from South Russia and are not true 'Jews'". 206 The next synopsis describes a book called "The New Crowd" by Barry Rehfeld. This synopsis states: "A Jewish author boasts about how upstart Jews seized control of Wall Street in the 1980s". Following this synopsis is a synopsis of the book "Merchants of Debt" by George Anders. In particular, this synopsis states that the book reveals "more secrets of Jewish businessmen". 207 In the third column of the leaflet, appearing below the picture of Lenin described above, is a synopsis for the book "Lenin" by D Volkogonov, who is described as a former KGB official. The synopsis states that the book "reveals Lenin as the diabolical founder of the murderous Gulag system. Proof that Lenin was a Jew. How he seized power over Russia". The fourth column of the leaflet contains a synopsis of the book "The Hidden Empire" by William Dudley Pelley. The synopsis states: "how the Jewish 'State within a State' controls the government". In the fifth column, there is a synopsis of the book entitled "Iron Curtain Over America" by Colonel John Beaty, US Military Intelligence Officer. The synopsis describes, among other things, "how they [Jews] founded Communism, why World War II was unnecessary, how the Jews infiltrated and seized control of the Democratic Party". 208 The applicant contends that this leaflet conveys the imputations pleaded at pars (a), (b), (d), (e), (g) and (h), namely: (a) that Jews are anti-democracy, anti-freedom, pro-tyranny; (b) that the philosophy and teachings and practice of Jews is based upon a learning (the Talmud) which: (i) ought to be stamped out; (ii) promotes sodomy and paedophilia; (iii) is worse than a satanic cult; (d) that Jews, per se, are anti-decent living in the sense that they, by their nature control pornography both in America and Russia; (e) that Jews, per se, exhibit a moral attitude which is antithetical to Australian values (described as 'anti-Christian'); (g) that part of the conspiracy of World Jewry was a Bolshevik Revolution in 1917 and that Jews perpetrated the purges in the Soviet Union thereafter; and (h) that Jews are seeking to control the world, or already have gained that control, with the intention of destroying 'White Christian Civilisation' and that Jews are 'lying frauds … trying to force the White race to mongrelise'. 209 Imputation (a) is presumably said to be conveyed by this leaflet through the various references in it to Jews being "behind the world communist conspiracy". I say "presumably" because no specific submissions were made by the applicant on how this imputation is said to arise from the leaflet. The applicant submitted that this conspiracy is a conspiracy to inflict communism on the world. Presumably too, the imputation of Jews being "pro-tyranny" is said to be conveyed by the reference to Lenin being a Jew. However, there are no specific references to Jews being anti-democracy, anti-freedom or pro-tyranny. Nor, in my opinion, can inferences be drawn from the leaflet along the lines of those specific imputations, or imputations that are substantially similar to those imputations. To do so would be to give to the leaflet a strained or artificial meaning. I do not think that imputation (a) is conveyed by the leaflets. 210 The same can be said for imputations (b), (d) and (e). In relation to (b), although one of the synopses refers to the Talmud ("The Talmud Unmasked"), no reference is made in that synopsis to the fact that the Talmud ought to be stamped out, promotes sodomy and paedophilia, or that Judaism is worse than a satanic cult. Similarly, none of the synopses describes Jews as anti-decent living because they control pornography; nor does any synopsis describe Jews as exhibiting a moral attitude which is antithetical to Australian values. Most of the books are described as being written by American authors, and to the extent that Jewish values are contrasted with another group's values, it is American (and not Australian) values that are so contrasted. Imputations (b), (d) and (e) are not conveyed by this leaflet. 211 The leaflet does not contain any assertion that Jews have the "intention of destroying White Christian civilisation" or that Jews are "trying to force the White race to mongrelise" which form part of imputation (h). 212 It has to be recalled that the leaflet in question is a list of books which are on public sale, and a synopsis of those books. The synopsis for one book asserts that the book "exposes the Jews behind the world Communist conspiracy". The synopsis for another describes Lenin as a Jew, and asserts that he was the founder of the murderous Gulag system. The synopsis for a third contains a description by a Jew as to "why we destabilise nations". In a general sense, the leaflet is anti-Jewish in character, inasmuch as it lists books which are available for sale, which, if the synopses are correct, are themselves likely to be anti-Jewish. 213 However, in my view, it is an exaggeration of any message which the leaflet conveys to assert that it conveys an imputation in terms of (g) or the balance of (h). I do not think that it is appropriate to combine statements in the various synopses so as to treat the leaflet as conveying an imputation arising from that mosaic. Even if such combination were appropriate, it falls short of conveying the particularised imputation. 214 In my view, contravention of s 18C has not been established in relation to this leaflet.

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(h) Untitled document with handwritten annotations 215 This leaflet appears to be an extract from a larger article or book. Neither party submitted that the fact that the document appears to be part only of a larger document was of any significance. A handwritten annotation appearing at the top of the leaflet states that it was received on 3 June 1996. 216 The leaflet purports to describe how the US has come under the control of "International Zionist Jews" who are said to have acted to the detriment of "White Christian Americans" through the establishment of the Federal Reserve System, the relaxation of immigration laws, and through involving the US in wars on their behalf. 217 The applicant has objected to the whole article, but has taken exception to particular paragraphs which I will set out in full below: "But something drastic and terrifying took place in the early days of the 20th century. White Christian Americans lost control of their country. The international Zionist Jews took over the economies of America in 1913, when they put their alien, Babylonian Federal Reserve System into operation. This system was not Federal by any twist of the imagination, but was made up of eight privately owned banks, controlled by the anti-Christs of Talmudic Judaism. Since that time, these alien 'leeches' have 'bled off' trillions of the Lord's money, as they have subtly changed our laws to allow a flood of aliens to invade our shores. Even 'brain-washed' Christians have been caught up in this surge of 'national suicide' until today, in 1995, we are in danger of losing our majority status, and our control of the country which was once Christian America! One of the main 'front' organisations for the International Zionists, who openly declared their intention of 'destroying White Christian Civilisation' was the Council on Foreign Relations (CFR), founded in 1921, by a group of Zionist controlled Internationalists. By the time America became embroiled in World War II, and against the expressed will of the majority of our people, the Democratic Party and FDR who had become 'Zionist puppets' were in control of our national destiny, while the Republican Party was well on its way to falling under this same control. Today the Zionists have been so successful, that an Israeli government official can openly brag: 'We now have the best Congress money can buy'! While America has appeared on the surface as a 'lovable peace-loving giant', our government in reality has become the worst 'war monger' in the world's sordid history! The Jewish International bankers have used Christian decency and goodness as a cover for their predatory tactics, and have supported both sides and made countless billions off the suffering and blood-shed of every war we have fought in the last century. No wonder their leaders can say: 'Wars are the Jews' harvests!'" Further down the page, the following paragraphs are reproduced: "In the psychological war waged by the communist world against the USA they perpetuated a gigantic hoax to the American people, which cost us hundreds of billions of dollars and the lives of some of our finest youth, all backed by International Zionism, in their ages-old effort of One World controlled via their New World Order. Today the question of Revelation 13:4 is a logical one as we ask: '… who is like unto this Jewish beast, and who can make war against them?' … I remember wondering what my hero, General George Patton meant when he said in North Africa: 'We're fighting on the wrong side in this war. Communism is much worse a danger to the world than Germany will ever be'. Now I understand what he meant. For we fought against our own kinsmen, under Jewish direction! The Rabbi who stated that 'Wars are the Jews harvests', back in 1859, before our War between the States, elaborated when he said: 'through wars we kill off Christians and obtain control of their gold. We have already killed 100 million of them, and the end is not yet!' Yet our stupid, 'brain-washed' Judeo-Christian clergy, still insist that these anti-Christs are God's Chosen. 218 There is also a handwritten annotation appearing along the side of this leaflet which reads as follows: "THE WHITE CHRISTIAN NATIONS ARE THE TRUE SEED OF ISRAEL. 'THE SYNAGOGUE OF SATAN - WHO SAY THEY ARE JUDEAN - BUT ARE LYING FRAUDS' ARE TRYING TO FORCE THE WHITE RACE TO MONGRELIZE. For good books come to the Hart Street Market - Sundays 8.30-2 pm. (SHOWGROUND)." The respondent admitted in cross-examination that this handwriting was hers. 219 The applicant contends that imputations (a), (d), (e), (g) and (h) are conveyed by this leaflet: (a) that Jews are anti-democracy, anti-freedom, pro-tyranny; (d) that Jews, per se, are anti-decent living in the sense that they, by their nature control pornography both in America and Russia; (e) that Jews, per se, exhibit a moral attitude which is antithetical to Australian values (described as 'anti-Christian'); (g) that part of the conspiracy of World Jewry was a Bolshevik Revolution in 1917 and that Jews perpetrated the purges in the Soviet Union thereafter; and (h) that Jews are seeking to control the world, or already have gained that control, with the intention of destroying 'White Christian Civilisation' and that Jews are 'lying frauds … trying to force the White race to mongrelise'. 220 The respondent has stated in relation to this leaflet: "As the White race is the only race being forced to become multi-racial, it is in their interest to know that their destruction has been planned for more than a century. The quotations are either Biblical or from Jewish sources. The knowledge of truth is of public interest and is thus covered by 18D(b) and (c)(i) and (ii)." 221 The applicant has not taken me to any specific passages in the leaflet that are said to convey imputation (a). There are no specific references in the leaflet to Jews being anti-democracy, anti-freedom, or pro-tyranny. Although there are references to "international Zionist Jews" taking over the economies of America, embroiling the US in various wars, and taking control of the US Congress, I do not think that these references necessarily convey the imputation sought to be given to them by the applicant. To say that Jews are in control of the US does not, in my opinion, necessarily mean that they are anti-democracy or anti-freedom, nor does it mean that they are pro-tyranny. I do not think that these imputations would be conveyed to an ordinary reasonable reader. 222 The applicant has also not taken me to any passages that are said to convey imputations (d), (e) or (g). Again, there are no specific references to Jews controlling pornography in the US or Russia; to Jews exhibiting a moral attitude which is antithetical to Australian values; or to Jews instigating the Bolshevik Revolution in 1917 or the purges in the Soviet Union thereafter. As to imputation (e), like other leaflets distributed by the respondent, this leaflet appears to have been written by an American author, and does not advert to so-called Australian values. As to imputation (g), although the leaflet does refer to "International Zionism" backing Communism, it does not implicate Jews in the Bolshevik Revolution in Russia in 1917 or in the purges in the Soviet Union thereafter. Accordingly, imputations (d), (e) and (g) would not be conveyed to an ordinary reasonable reader of this leaflet. 223 Imputation (h) is drawn directly from the typed text and the handwritten annotations that appear on the leaflet. In the third paragraph of the leaflet there is a direct reference to "International Zionists" openly declaring "their intention of 'destroying White Christian Civilisation'". The handwritten annotation refers to the "'Synagogue of Satan - who say they are Judean - but are lying frauds' are trying to force the White race to mongrelise". Although this handwritten annotation does not mention Jews directly, I consider that an ordinary reasonable reader would conclude from the words "Synagogue of Satan" that the author of the annotations was referring to Jews, as an ordinary reasonable reader of fair and average intelligence would be aware that a Jewish place of worship is called a synagogue. As to that part of the imputation that refers to Jews "seeking to control the world, or already have gained that control", I consider that such an imputation would be conveyed by the reference to "International Zionism" having an "ages old effort of One World control via their New World Order". I accordingly find that imputation (h) would be conveyed by the leaflet. 224 As to s 18C, I consider it to be self-evident that a leaflet that conveys an imputation that Jews have the intention of destroying White Christian civilisation, are lying frauds, and are trying to force the White race to mongrelise, is reasonably likely to offend and insult Jews in Australia. I also consider it self-evident that at least one reason for the leaflet being published was to express the author's views about Jews. The theme of the leaflet is how Jews have apparently taken control of the US, and the attendant problems this has caused for that country and for the world. These problems are all attributed to the "International Zionist Jews". I find that s 18C is contravened by this leaflet. 225 The applicant relied on Jordan v Burgoyne [1963] 2 QB 742, in relation to this leaflet. The UK Court of Appeal took the view on the facts of that case that reasonable citizens would be provoked beyond endurance by a speech which asserted that they were mere tools of the Jews and had fought on the wrong side of the War. However, although this leaflet contains some statements to that effect, they are not included in the list of imputations on which the complaint is founded. 226 In the respondent's affidavit (p 103) she accepts that this leaflet "does make some harsh statements about Zionist Jews who inflicted such pain and sorrow onto my homeland, Russia". However, she then goes on to say that "if the Jews can name the German people as the perpetrators of their calamities, then I, too, can name the perpetrators of the calamities suffered by my people". That is not, however, what the leaflet does. 227 This leaflet suffers from the same problem as other leaflets, in that the respondent has not established that she published the leaflet either reasonably or in good faith. The leaflet is openly hostile to Jews. It uses terms such as "alien leeches", "anti-Christs" and "lying frauds" to refer to Jews and seems to be specifically aimed at provoking Jews and inciting opposition to them. As the leaflet was not published either reasonably or in good faith none of the defences in ss 18D(b) or 18D(c)(i) or (ii) can be made out.

[52]

General Defences 228 I now turn to consider the more general defences raised by the respondent. These defences are listed at pars [93] and [94] above. The respondent's first argument is that she distributes the leaflets "for the purpose of combating racial discrimination". That may well be the case. However, as I have explained above, in order for an act to contravene s 18C of the RDA, if there are a number of reasons for doing an act, it is enough that at least one of those reasons is the race, colour or national or ethnic origin of a person, whether or not it is the dominant reason or a substantial reason for doing the act. In relation to each of the respondent's leaflets (except the book synopses), I have found that at least one of the reasons behind the respondent's decision to publish those leaflets was because of the ethnic origin of Jews. Accordingly, the respondent's assertion that she distributed the leaflets for the purpose of combating racial discrimination is, in the context of Part IIA, irrelevant. 229 Her second argument is that all of the leaflets have been previously published by other sources, and some have been published without any repercussions. As I have explained above, s 18D does not provide for a defence of republication. In any event, it would be somewhat strange if a person were to have a defence to s 18C based purely on the fact that a particular work had been previously published without complaint. The wording of s 18C makes it clear that an act will be unlawful if the act is reasonably likely to offend "in all the circumstances". A Court is thus required to assess the objective impact of the act in the circumstances of the particular complaint. The fact that the same act may not have caused offence or given rise to a complaint in another place or at another time is irrelevant to such an assessment. 230 The respondent's next argument is that there is "overwhelming evidence" to prove the truth of the applicant's pleaded imputations. However, she also asserts that the imputations are "clearly wrong". These two arguments are contradictory. By saying that the imputations are "clearly wrong", the respondent appears to be asserting that they are not conveyed by the leaflets. However, to say that there is "overwhelming evidence" to prove the imputations, the applicant appears to accept that such imputations are conveyed by the leaflets, and that she can prove that they are true. In any event I have determined that, in relation to each leaflet except the book synopses, at least one of the imputations contended for by the applicant is conveyed. In addition, the respondent has not established the truth of any of the imputations. However, even if she were to do so, this would still not exempt her leaflets from s 18C, as s 18D does not provide a defence of truth. Thus, even if her leaflets are true, in order to satisfy s 18D the respondent must prove that her leaflets were published reasonably and in good faith, as well as proving that they fall within one of the categories in s 18D(a) - (c). As I have determined above, the respondent did not satisfy me that any of her leaflets fall within these exemptions. 231 The respondent also submitted that "no offence was possible, let alone intended". As to her claim that no offence was possible, I have found that each of the respondent's leaflets except the book synopses, is reasonably likely to offend and insult Jews in Australia for the particular reasons stated. As to the respondent's claim that no offence was intended, as I have explained above, s 18C does not inquire as to the intention of the person committing the act complained of, but rather the section employs an objective test that assesses the likely effect of the act on the recipient or on the group of which the recipient is a member. Accordingly, this argument is rejected. 232 The respondent further submitted that "the discussion of current affairs and history are matters of public interest and protected by s 18D". Although current affairs and history may well in most cases be matters of public interest, s 18D does not provide a defence based on public interest alone. Rather, as well as being reasonable and in good faith, an act that is purportedly done in the public interest must also fulfil one or other of the specific criteria in s 18D(b) or (c)(i) or (ii) before it can be exempted from s 18C. Because of this, an argument based on public interest alone will not establish a defence under s 18D. 233 The respondent also made some submissions in relation to the validity of s 18C. She stated that in order to be valid, s 18C must be limited to "personal insults", "personal defamation" and where physical harm was involved - not acts that are likely to insult or offend. However, the clear wording of s 18C is that it is unlawful for a person to do an act where the act is "reasonably likely … to offend, insult, humiliate or intimidate …". The respondent's submission is thus contrary to the wording of s 18C, which does not limit the section in the ways proposed by the respondent. Nor has such a limitation been placed on s 18C by the Courts who have interpreted the section. I reject this argument. 234 The respondent further submitted that the RDA should be declared unconstitutional as, first, it is "impossible to apply [the RDA] to all groups equally"; and secondly, "for the sake of freedom to communicate political matters" (p 12 respondent's submissions). As to her first argument, two points should be made: one, the fact (if it be a fact) that it is impossible to apply the RDA to all groups equally does not, of itself, establish a basis for declaring the RDA unconstitutional. There are a number of bases for declaring a Commonwealth Act invalid, including that it is beyond the power of the Commonwealth Parliament to legislate in respect of the subject matter of the legislation; or that it infringes one of the implied constitutional freedoms. However, a Commonwealth Act cannot be declared unconstitutional merely on the basis that it is impossible to apply the Act to all groups equally. To the extent that a Commonwealth Act is prohibited from discriminating between persons, it is only laws with respect to taxation that are expressly prohibited from discriminating, and even then the prohibition is on the Act discriminating "between States or parts of States": Constitution s 51(ii). The second point that should be made is that, in any event, the respondent has not established that the RDA is in fact impossible to apply to all groups equally. Apart from her bare assertion, she presented no evidence to establish that the RDA operates in such a way. I accordingly reject this argument. 235 Her next argument is that the RDA should be declared unconstitutional "for the sake of freedom to communicate political matters". It is now well established that the Constitution protects the freedom of communication between people concerning political or government matters: see Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Freedom of communication on matters of government and politics is an indispensable incident of that system of representative government which the Constitution creates: Lange at 559. This freedom cannot be curtailed by Commonwealth legislation. However, the freedom of communication which the Constitution protects is not absolute: Nationwide News at 51, 76-77, 94-95; Lange at 561. Rather, it is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution. In Lange at 561-562 the High Court said: "… the freedom will not invalidate a law enacted to satisfy some other legitimate end if the law satisfies two conditions. The first condition is that the object of the law is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government or the procedure for submitting a proposed amendment to the Constitution to the informed decision of the people which the Constitution prescribes. The second is that the law is reasonably appropriate and adapted to achieving that legitimate object or end." 236 When a law of a State or Federal Parliament or a Territory legislature is alleged to infringe the requirement of freedom of political communication, two questions must be answered before the validity of the law can be determined: "… First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect ? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people … If the first question is answered 'yes' and the second is answered 'no', the law is invalid." (Lange at 567-568) 237 The applicant submitted that the terms of the RDA are constitutionally valid, having been made under the provisions of s 51(xxix) of the Constitution, citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168 as authority for this proposition. However, the High Court in Koowarta were not concerned with the constitutional validity of the RDA per se, but only with the validity of ss 9 and 12. A majority of the High Court held that ss 9 and 12 were valid laws with respect to external affairs within s 51(xxix) of the Constitution. The applicant has also drawn my attention to Brandy v HREOC (1994-1995) 183 CLR 295, which was concerned with the constitutional validity of ss 25ZAB and 25ZAC of the RDA. In Brandy, the High Court held that those sections purported to vest judicial power in the HREOC, contrary to Chapter III of the Constitution, and hence were invalid. Section 25ZC was also held to be invalid as it depended on s 25ZAC. Nowhere in either Koowarta or Brandy is the constitutional validity of the RDA as a whole discussed. However, my attention has not been drawn to any cases that have impugned the validity of the RDA in general or Part IIA in particular. I accordingly proceed on the basis that Part IIA of the RDA is valid. 238 The applicant also submitted that he relied on the comments of Commissioner Cavanough regarding the constitutional validity of Part IIA of the RDA. At page 11, after considering the test set out in Lange at 567-568 noted above, the Commissioner stated: "It is conceivable that the restrictions imposed by s.18C(1) of the RDA might in certain circumstances effectively burden freedom of communication about government and political matters. However, it seems to me that, bearing in mind the exceptions or exemptions available under s.18D, Part IIA as a whole is 'reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the system of government prescribed by the Constitution'. … The 'legitimate end' of the law is, or includes, the fulfilment of Australia's international obligations under the International Convention on the Elimination of All Forms of Racial Discrimination which is scheduled to the RDA, especially Article 4 thereof. In my view, this end is compatible with the maintenance of the system of government prescribed by the Constitution." 239 Although the RDA does not contain any rule that prohibits an elector from communicating with other electors concerning government or political matters relating to the Commonwealth, it nevertheless could effectively burden the freedom of communication about those matters insofar as it requires electors to submit to penalties for the publication of communications or leads to the grant of injunctions against such publications (cf Lange at 568). That being so, the critical question is whether the RDA is reasonably appropriate and adapted to serving a legitimate end that is compatible with the maintenance of representative and responsible government, without unnecessarily or unreasonably impairing the freedom of communication about government and political matters protected by the Constitution. I agree with Commissioner Cavanough that a "legitimate end" of the RDA includes the fulfilment of Australia's obligations under the Convention. Stated more broadly, the legitimate end sought to be obtained by the RDA is the elimination of racial discrimination. It is not to be supposed that the elimination of racial discrimination is a purpose that is incompatible with the requirement of freedom of communication imposed by the Constitution. In addition, the constitutionally prescribed system of government does not require an unqualified freedom to publish offensive matter or perform offensive acts that are based on race. Indeed, in the same way that the protection of the reputations of those who take part in the government and political life from false and defamatory statements is conducive to the public good (see Lange at 568), so too is the protection of persons from offensive behaviour based on race. 240 The next question is therefore whether the RDA is reasonably appropriate and adapted to achieve the elimination of racial discrimination having regard to the requirement of freedom of communication about government and political matters required by the Constitution. I agree with the Commissioner that, bearing in mind the exemptions available under s 18D, Part IIA of the RDA is reasonably appropriate and adapted to serve the legitimate end of eliminating racial discrimination. Section 18D, by its terms, does not render unlawful anything that is said or done "reasonably and in good faith" providing that it falls within the criteria set out in subs (a)-(c). I consider that those exemptions provide an appropriate balance between the legitimate end of eliminating racial discrimination and the requirement of freedom of communication about government and political matters required by the Constitution. I accordingly reject the respondent's argument that the RDA should be declared unconstitutional "for the sake of freedom to communicate political matters". 241 On p 3 of the respondent's affidavit, under the heading "Further Legal Justification", the following appears: "The Constitution of Australia - The implied right to freedom of speech (Lange v A.B.C.) The Ultimate Authority - "Ye shall know the Truth and the Truth shall set you free" Our Lord Jesus Christ. Sir Ronald Wilson - "If truth be our measure we have nothing to fear from the Human Rights Commission". PM John Howard - "There is no human right to lie or mislead to to (sic) be ignorant, whether deliberately or by omission to find out the facts". Article 19 of the Universal Declaration of Human Rights - Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receive and impart information and ideas through any media regardless of frontiers. IF TRUTH IS OUTLAWED THEN LIES WILL CONTINUE TO FLOURISH" (bold and underlining in original) 242 I have already dealt with her purported argument concerning the Constitution. In addition, her "justifications" based on what is said in the Bible, and what has been said by Sir Ronald Wilson and John Howard, do not establish that she is entitled to any exemptions from the operation of s 18C. The same can be said for her purported reliance on Article 19 of the Universal Declaration of Human Rights. A Convention or treaty ratified by Australia does not become part of Australian law unless its provisions have been validly incorporated into municipal law by statute. Although it is now settled that ratification in itself may provide an adequate foundation for a legitimate expectation that administrative decision-makers will act conformably with the Convention or treaty (see Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273), the present case is not concerned with administrative decision-making. Rather, it is concerned with the application of a valid Commonwealth statute to certain actions of the respondent that are said to contravene that statute. In those circumstances, it is difficult to see how the Universal Declaration of Human Rights is relevant to these proceedings.

Parties

Applicant/Plaintiff:

Jones

Respondent/Defendant:

Scully

Legislation Cited (9)

Trade Practices Act 1974(Cth)s 52

Equal Opportunity Commission Act 1986(Cth)

Police Offences Act 1928(Vic)

(Human Rights and Equal Opportunities Commission Act 1986(Cth)

Racial Discrimination Act 1975(Cth)

Evidence Act 1995(Cth)s 136

Crimes Act 1914(Cth)

Evidence Act 1995(NSW)

Federal Court of Australia Act 1976(Cth)

Cases Cited (19)

HUMAN RIGHTS - racial discrimination - racial hatred - publication and distribution of leaflets - proceedings to enforce determination of Human Rights and Equal Opportunity Commission - de novo hearing - whether publication and distribution of leaflets was reasonably likely to offend, insult, humiliate or intimidate Jews in Australia - objective test to be applied - relevance of evidence of persons actually being offended, insulted, humiliated or intimidated - relevance of truth or falsity of leaflets - offensive behaviour - whether act done "because of" race, colour or national or ethnic origin - meaning of "ethnic origin" - whether Jews in Australia are a group of people with an "ethnic origin" - whether leaflets were published and distributed reasonably and in good faith - whether leaflets were published and distributed for any genuine purpose in the public interest - whether any leaflets were a "fair and accurate report" - whether any leaflets were "fair comment" CONSTITUTIONAL LAW - Racial Discrimination Act 1975 (Cth) Part IIA - whether invalid - freedom of communication concerning political or government matters - whether Racial Discrimination Act effectively burdens freedom of communication about government or political matters - whether reasonably appropriate and adapted to serve a legitimate end - legitimate end sought to be achieved DEFAMATION - applicable principles in determining whether material conveys pleaded imputations - whether imputations would be conveyed to an ordinary reasonable reader of the leaflets - characteristics of ordinary reasonable reader EVIDENCE - historical evidence - admissibility as to facts in issue - general principles - evidence in books and videos - discretion to limit use of evidence - Evidence Act 1995 (Cth) s 136 WORDS AND PHRASES - "because of" - "offend" - "ethnic origin" Racial Discrimination Act (1975) (Cth) Part IIA,s 18B, 18C, 18C(1)(a), 18C(1)(b), 18D, 18D(a), 18D(b), 18D(c)(i), 18D(c)(ii) Trade Practices Act 1974 (Cth) s 52 Racial Hatred Bill 1994 (Cth) Evidence Act 1995 (Cth) s 136 Crimes Act 1914 (Cth) Universal Declaration of Human Rights Article 19 Jones v Scully (2001) 113 FCR 343 referred to Harris v Caladine (1990-1991) 172 CLR 84 considered, applied Australian Communist Party v Commonwealth (1951) 83 CLR 1 applied Ritz Hotel v Charles of the Ritz (1987) 14 NSWLR 107 considered Bellevue Crescent v Marland Holdings (1998) 43 NSWLR 364 considered Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 applied Creek v Cairns Post Pty Ltd [2001] FCA 1007 applied ACCC v Optell Pty Ltd (1998) ATPR 41-640 considered Patrick v Cobain [1993] 1 VR 290 applied Worcester v Smith [1951] VLR 316 considered Ball v McIntyre (1966) 9 FLR 237 considered King-Ansell v Police [1979] 2 NZLR 531 applied Mandla v Dowell Lee [1983] 2 AC 548 referred to Commission for Racial Equality v Dutton [1989] 1 QB 783 referred to Miller v Wertheim [2002] FCAFC 156 followed Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 applied Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 cited Versace v Monte [2002] FCA 190 cited Irving v Penguin Books Ltd [2000] EWHC QB 115 applied Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 referred to Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 referred to Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 referred to Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 applied Koowarta v Bjelke-Petersen (1982) 153 CLR 168 considered Brandy v HREOC (1994-1995) 183 CLR 295 considered Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273 cited Oberoi v HREOC [2001] FMCA 34 cited Watson, Blackmore, Hosking Criminal Law (NSW) Vol 2 Fleming The Law of Torts 9th Ed. 1998 JEREMY JONES v OLGA SCULLY N 154 OF 2001

Part IIA of the RDA 9 Part IIA was introduced into the RDA in consequence of the passage of the Racial Hatred Bill 1994 (Cth)("the Racial Hatred Bill"). Part IIA of the RDA commenced operation on 13 October 1995. It is headed "Prohibition of Offensive Behaviour based on Racial Hatred". The presently relevant provisions are ss 18B, 18C and 18D, which are as follows: "Reason for doing an act 18B If: (a) an act is done for two or more reasons: and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purpose of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin. Offensive behaviour because of race, colour or national or ethnic origin 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 some or all of the people in the group. (2) ... (3) … Exemptions 18D Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment." 10 It is not an offence to do an act, or agree with another person to do an act that is unlawful by reason of a provision of Part IIA: s 26. 11 The Racial Hatred Bill also provided for the amendment of the Crimes Act 1914 (Cth) to create criminal offences in relation to threats made to people because of their race, colour or national or ethnic origin, and in relation to threats made by a person to damage property because of those reasons, and in relation to the intentional incitement of racial hatred. As Kiefel J noted in Creek v Cairns Post Pty Ltd [2001] FCA 1007 (at [15]) these proposed offences did not survive the federal legislative process, and were not introduced into the Crimes Act.