[2003] VCAT 1254

Pursuant to section 75 and 109 of the Victorian Civil and Administrative Tribunal Act 1998 this Tribunal orders-

2. That the Respondent's costs in this matter are reserved. The Tribunal notes that the Respondent has applied for those costs and that the parties have requested the Tribunal to list a date for the hearing of that application.

[1] I am now in a position to hand down this decision and my decision is that the Complaint is dismissed. I now give my reasons.

[2] On 26 July 2002 Mr Judeh lodged with the Equal Opportunity Commission ('the Commission') a Complaint under the Racial and Religious Tolerance Act 2001 ('the RRT Act'). The Respondent is the Jewish National Fund of Australia Inc ('JNF'). The Commission declined to entertain the Complaint under s.108(1)(a) of the Equal Opportunity Act 1995 ('the Equal Opportunity Act'). That permits the Commission to decline a Complaint which it considers frivolous, vexatious, misconceived or lacking in substance. Mr Judeh then required the Commission to refer the Complaint to the Victorian Civil and Administrative Tribunal ('VCAT') and the Commission did so.

[3] JNF has now applied under s.75 of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act') to dismiss the Complaint. The application is made on all the grounds mentioned in that section. These are that the proceeding is frivolous, vexatious, misconceived, lacking in substance, or an abuse of process.

[4] The principles which this Tribunal has applied in many cases concerning applications of this kind were set up by the Victorian Court of Appeal in Rabel v State Electricity Commission (1998) 1 VR 102. (See, for example, Norman v. Australian Red Cross Society (1998) 14 VAR 243)

[5] So far as relevant, the principles are these. The Tribunal should be cautious before dismissing and so summarily terminating a proceeding at stage before evidence has been called and tested through cross-examination. By terminating the proceeding, it deprives the litigant of having the Complaint heard in the ordinary course. It should only do so where the Respondent satisfies it that the complainant's case is manifestly hopeless, obviously untenable, can on no reasonable ground justify relief, or is doomed to fail.

[6] I have before me the Complaint, some additional material from Mr Judeh, and the oral and written submissions of the parties on the Respondent's application to dismiss the Complaint.

[7] Mr Judeh claims that he, a man of Palestinian descent, has been racially vilified by JNF. He claims that JNF, by preparing and placing a monthly advertisement in the newspaper, The Australian Jewish News, which that newspaper publishes, has breached s.7 of the RRT Act.

[8] The advertisement is headed, "Remember the Future." It states-

"Every man and woman should make a will. Every Jewish person should include in it a legacy, however modest, to Israel. Israel will benefit if you make a will through the Jewish National Fund and so will you. Your name will be remembered forever in the continuing development of Israel through a living project of your choice. We can arrange for your will to be drawn up professionally, free of charge."

[9] The advertisement then includes JNF's contact details. The advertisement includes a map showing an area in outline and shaded. The map does not specify what the area is, what are its geographic features, what are the locations of its cities, towns or villages, or what groups of people live there.

[10] It is not disputed that the map delineates an area which includes what is called Israel and also areas sometimes called semi-autonomous areas under the control of the Palestinian authority.

[11] JNF says that for many years it has used this map as its symbol or logo - as a visual means by which the reader of material can identify that the material is from the JNF.

[12] Mr Judeh's claim is that by placing this particular advertisement, which includes this particular map, in The Australian Jewish News newspaper JNF has, on the ground of the race of Arab Palestinians in which he is included, engaged in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that group.

[13] On the whole of the material before me, read broadly and in a non-technical way, Mr Judeh's claim is this. The map inaccurately omits reference to Palestine or to those areas occupied or controlled by Arab Palestinians. It does so in the context of an advertisement seeking donations to the JNF. JNF is, according to Mr Judeh, an organisation committed to the acquisition of land to be held in perpetuity for the Jewish people, land which is not permitted to be alienated to, or occupied by, those who are not Jewish. The inclusion of such a map in such a context in this advertisement, Mr Judeh says, incites hatred, serious contempt, revulsion or severe ridicule of Palestine and Palestinian Arabs. He says that, effectively, it denies the existence of the entity which he calls Palestine and of the Palestinian people.

[14] It is argued for JNF that on its face this advertisement, including this map, incites nothing except donations to the JNF. The map is merely an outline specifying no details of geography, population distribution or racial or ethnic groupings. The complainant, JNF says, seeks to use this Tribunal as a forum in which to air views concerning Israel, Zionism and the treatment of Palestinian Arabs. On these bases JNF argues that the Complaint is both manifestly hopeless and an abuse of process and should be dismissed.

[15] This is the first application under s.75 of the VCAT Act which concerns the RRT Act.

[16] Section 3 of the RRT Act defines "race", among other things, to include descent or ancestry, nationality or national origin and ethnicity or ethnic origin.

[17] Part 2 is headed "Unlawful conduct." Division 1 of that Part is headed "Unlawful vilification." Section 7 is headed "Racial vilification unlawful." Section 7(1) provides-

"A person must not, on the ground of the race of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons."

[18] Sub-section (2) makes it clear that conduct can be constituted by a single instance or series of instances and can occur in or outside Victoria.

[19] At the end of the section there is a note which states-

"Engage in conduct" includes use of the internet or email to publish or transmit statements or other material.

[20] A note of this kind appearing at the foot of a section of an Act is part of that Act. (See s.36 of the Interpretation of Legislation Act 1984.)

[21] The effect of s.9 of the RRT Act is that, among other things, in determining whether a person breaches s.7, the person's motive for engaging in the conduct is irrelevant, and it is also irrelevant whether race was the only or dominant ground for the conduct, so long as it is a substantial ground for it.

[22] Under s.10, among other things, it is also irrelevant whether the person who engages in the conduct made incorrect assumptions about the race of another person or class of persons at the time of engaging in the conduct.

[23] Part 3 deals with Complaints and conciliation. Among other things, s.19 permits a person who claims that another person has breached part 2 in relation to that person to complain about the breach to the Commission. The alleged breach need not relate exclusively to the complainant. (See, in particular, s.19(1) and (7).)

[24] Sections 20 to 22 set out how a Complaint can be made and the means by which it can be made and certain obligations of the Commission in relation to a Complaint.

[25] Section 23 applies with necessary modification, Divisions 2 to 7 of Part 7 of the Equal Opportunity Act to Complaints under the RRT Act. These are the provisions which concern Complaint handling by the Commission. They cover such matters as the declining of Complaints, the referral of Complaints to conciliation, expedited Complaints, the referral of Complaints to VCAT and the powers of VCAT in relation to the relief that can be granted. It was under this set of provisions that the Commission has declined this Complaint and that this Complaint has been referred to VCAT.

[26] Before going further, I should say that I have only dealt here with those provisions of the RRT Act that are relevant to this case. I have not, for example, dealt with the religious vilification provisions of the Act, with the exception provisions, or with those provisions concerning serious vilification offences.

[27] Before coming to s.7, I make some general comments.

[28] First, I formed the view that the broad and general language used in the RRT Act is sufficiently uncertain to permit me to refer for assistance to the purposes and objectives of the Act and extrinsic material such as the Explanatory Memorandum for the bill that eventually became the Act and the second reading speech for that bill. This is what s.35 of the Interpretation of Legislation Act 1984 permits me to do. That section also requires that in interpreting the provisions I should choose an interpretation which promotes the underlying scheme of the Act.

[29] The Explanatory Memorandum for the bill which eventually became the Act is printed at p.1754 and following of Volume 2 of the Acts of the Victorian Parliament 2001. The second reading speech delivered by the Premier in the Legislative Assembly was given on 17 May 2001 and can be found in 2001 Victorian Parliamentary Debates at p.1284 (LA).

[30] It is clear from this memorandum and from the second reading speech that the purpose of the legislation is to promote racial and religious tolerance by prohibiting vilification on the ground of race or religious belief or activity. It is clear that the Act, by including various prohibitions and exceptions to those prohibitions, attempts to strike a balance between freedom from vilification on the grounds of race or religious belief or activity and freedom of expression, both of which freedoms are regarded as key values in a democratic and multicultural society. The Preamble to the Act describes vilifying conduct, that is conduct which vilifies on the ground of race or religious belief or activity, as conduct diminishing the dignity and sense of self worth and belonging to the community of those who suffer from it and as reducing their ability to contribute to or fully participate in all social, political, economic and cultural aspects of society as equals.

[31] Section 4 of the Act, which is the section setting out the objects of the Act, reflects what is in the Preamble and Explanatory Memorandum and reflects this balance of interests as one of the Act's key objects. That section requires that the objects are to be taken into account in interpreting the Act. One of those objects is also to maintain the right to engage in robust debate on issues of public interest or to comment on matters of artistic expression or other academic issues, but in a way that does not vilify or marginalise any person or class of persons.

[32] The Explanatory Memorandum describes the objective of the Act as to prevent racial and religious vilification which is damaging to the cohesion and harmony of Victoria's culturally diverse community. It describes one of the objectives of the Act as to prohibit extreme behaviour that denies the right of Victorians of all racial backgrounds and religious beliefs to participate as equals in the community. It states that the racial and religious vilifying conduct includes conduct which communicates serious racial or religious intolerance. It makes it clear that the conduct concerned includes conduct which maligns, abuses or seriously derogates other people because of their race or religious beliefs or practices. It states that such conduct can include intimidation, damage to property, graffiti and matters over the Internet.

[33] It describes the Act as prohibiting extreme conduct which promotes and urges the strongest feelings of revulsion, hatred or dislike which are grounded on race or religious beliefs or practices.

[34] The note in the Explanatory Memorandum concerning s.7 does little more than set out the provision itself and the effect of the end note to the section. But it does make it clear that the section, in referring to a class of persons, refers to a collection or group of persons who are regarded as having certain common attributes or traits.

[35] Second, some of the provisions of the RRT Act are so similar to those of the Equal Opportunity Act that in my view their meanings are the same. The provision concerning the alleged vilifier's motive being irrelevant and that the race or religious belief or activity need only be a substantial ground for the conduct mirror, effectively, similar provisions in the Equal Opportunity Act concerning discrimination. (Compare, for example, RRT Act s.9 and Equal Opportunity Act s.8(2)(b) and (10))

[36] Third, in my view the Tribunal should be cautious before importing into the provisions of the RRT Act concepts taken from the law of defamation. The words of the statute must be the basic guide. The Tribunal must also be cautious before applying to the interpretation of this Act cases which have interpreted racial vilification legislation in other Australian jurisdictions. The legislation in these other jurisdictions is significantly and, sometimes, entirely different from the RRT Act. (Compare, for example, the RRT Act with the Racial Discrimination Act 1975(Cth) s.18C, and the Anti-discrimination Act 1977 (NSW) s.20C.)

[37] What then does s.7 of the RRT Act mean? In my view, although the Act does not define "conduct", it is consistent with the note to s.7 and with the scheme of the Act shown from the extrinsic material and from the object and purposes of the Act that the word should have a very broad meaning and should cover acts of every kind, including behaviour and gestures and statements, whether spoken or written, and also statements in visual representational form, such as paintings, drawings, cartoons and the like. It should cover these, however communicated.

[38] When the section requires the conduct to be on a substantial ground, among other things, of race, it means that the race of the other person or class of persons must be an actuating or moving factor in the mind of the person who engages in the conduct, whatever their motive might have been. What the conduct must incite are not feelings of a mild or trivial kind. It must incite the strongest feelings of antipathy: hatred, serious contempt, revulsion, serious ridicule. The conduct itself must incite these feelings. Whether the conduct incites these feelings should not, in my view, be judged on the reactions to it of particular individuals, whatever their race. If it were otherwise, the effect of this section would be left to the vagaries of individual sensibilities. It would have to be established after the event that someone had experienced these strong feelings because of the conduct. This would deprive the section of much of its force.

[39] In my view, the section is directed to the conduct itself and not to the nature of the reactions to it. The conduct must be capable itself of giving rise to these reactions. In this context "incite" has its ordinary dictionary meaning of encourage, urge, stir up, instigate or prompt. (As to this, see the Oxford English Dictionary and the Macquarie Dictionary.)

[40] The test of whether conduct is capable of doing this must be that of the reasonable recipient or target of the conduct. If the conduct is a physical act, the recipient will be the person against whom the conduct is directed. If the conduct is a communication, the recipient will be the person to whom the communication is made. Here, the recipient will be any reader of the Australian Jewish News.

[41] The test must be that of a reasonable and objective recipient. That recipient must, in my view, be assumed to have reasonable knowledge of the surrounding context and circumstances in which the conduct occurs. The recipient should not be assumed to be of a particular race, either the race of the person who engages in the conduct or the race of the person against whom the strongest feelings of antipathy are alleged to have been encouraged. Nor should the person be assumed to be overly sensitive or overly insensitive in respect of what is said or done. In the circumstances of this case, I am satisfied that an advertisement seeking donations which includes a map of an area without specification of geographic or demographic features or of the location of specific racial or ethnic groupings is incapable of constituting conduct of the kind to which s.7 of the RRT Act applies.

[42] This does not mean that there could not be a case in which in different circumstances and a different context the publication of a map alone might be capable of constituting conduct in breach of s.7. But this case is not one these.

[43] I should add that I find it difficult to see how the placing of an advertisement including a map of this kind could constitute conduct with race as a substantial actuating basis for the conduct.

[44] In my view, the Complaint is misconceived, it cannot be cured by amendment, and it should be dismissed.

[45] I make a final comment. There is nothing in the material before me which satisfies me that the Complaint constitutes an abuse of process. There were, no doubt, three other Complaints made by Mr Judeh against three other organisations and these Complaints were withdrawn. But that, of itself, does not make the present Complaint vexatious or an abuse of process.

[46] I am not satisfied from the material before me that Mr Judeh did not genuinely believe that he had been racially vilified. Clearly his material included some material concerning Zionism and what he says are the aims of the JNF which, because of the view I have taken of s.7 is irrelevant to whether or not JNF's conduct has breached that section. But I am not prepared to say on this material that this Complaint is brought for the improper purpose of airing before this Tribunal Complaints concerning the treatment of Arab Palestinians. It seems to me that it is brought genuinely for the purpose of litigating what the complainant says is his right under the RRT Act.

[47] What is relevant for the purpose of s.7 depends very much on the interpretation of that section. That interpretation was a matter of contention between the parties. It is understandable that the submissions from Mr Judeh included material thought to support the interpretation for which he argued.

[48] For the reasons I have given, I conclude that the Complaint is dismissed.