• Any

HUMAN RIGHTS - racial discrimination - racial hatred - publication anddistribution of leaflets - proceedings to enforce determination of HumanRightsand Equal Opportunity Commission -de novo hearing - whether publicationand distribution of leaflets was reasonably likely to offend, insult, humiliateor intimidate Jewsin Australia - objective test to be applied - relevance ofevidence of persons actually being offended, insulted, humiliated orintimidated- relevance of truth or falsity of leaflets - offensive behaviour -whether act done "because of" race, colour or national or ethnicorigin -meaning of "ethnic origin" - whether Jews in Australia are a group of peoplewith an "ethnic origin" - whether leafletswere published and distributedreasonably and in good faith - whether leaflets were published and distributedfor any genuine purposein 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)PartIIA - whether invalid - freedom of communication concerning political orgovernment matters - whetherRacial Discrimination Act effectively burdensfreedom of communication about government or political matters - whetherreasonably appropriate and adapted toserve a legitimate end - legitimate endsought to be achieved

DEFAMATION - applicable principles in determining whether materialconveys pleaded imputations - whether imputations would be conveyed to anordinary reasonable reader of the leaflets - characteristics of ordinaryreasonable reader

EVIDENCE - historical evidence - admissibility as to facts in issue -general principles - evidence in books and videos - discretion to limituse ofevidence -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 Act1974 (Cth)s 52

Racial Hatred Bill1994 (Cth)

Evidence Act 1995 (Cth)s 136

Crimes Act 1914 (Cth)

Universal Declaration of Human RightsArticle 19

Jones v Scully[2001] FCA 879;(2001) 113 FCR 343 referred to

Harris v Caladine[1991] HCA 9;(1990-1991) 172 CLR 84 considered, applied

Australian Communist Party v Commonwealth[1951] HCA 5;(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 1615applied

Creek v Cairns Post Pty Ltd[2001] FCA 1007 applied

ACCC v Optell Pty Ltd(1998) ATPR 41-640 considered

Patrick v Cobain[1993] VicRp 20;[1993] 1 VR 290 applied

Worcester v Smith[1951] VicLawRp 43;[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[1982] UKHL 7;[1983] 2 AC 548 referred to

Commission for Racial Equality v Dutton[1988] EWCA Civ 17;[1989] 1 QB 783 referred to

Miller v Wertheim[2002] FCAFC 156 followed

Hagan v Trustees of the Toowoomba Sports Ground Trust[2001] FCA 123;(2001) 105 FCR 56applied

Amalgamated Television Services Pty Ltd v Marsden[1998] NSWSC 4;(1998) 43 NSWLR 158cited

Versace v Monte[2002] FCA 190 cited

Irving v Penguin Books Ltd[2000] EWHC QB 115 applied

Nationwide News Pty Ltd v Wills[1992] HCA 46;(1992) 177 CLR 1 referred to

Australian Capital Television Pty Ltd v The Commonwealth[1992] HCA 45;(1992) 177 CLR106 referred to

Theophanous v Herald & Weekly Times Ltd[1994] HCA 46;(1994) 182 CLR 104 referredto

Lange v Australian Broadcasting Corporation[1997] HCA 25;(1997) 189 CLR 520applied

Koowarta v Bjelke-Petersen[1982] HCA 27;(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[1995] HCA 20;(1994-1995) 183 CLR 273 cited

Oberoi v HREOC[2001] FMCA 34 cited

Watson, Blackmore, HoskingCriminal Law (NSW) Vol 2

FlemingThe Law of Torts 9^th Ed. 1998

JEREMY JONES v OLGA SCULLY

N 154 OF 2001

HELY J

2 SEPTEMBER 2002

SYDNEY (HEARD IN LAUNCESTON AND SYDNEY)

THE COURT ORDERS THAT:

1It be declared that the respondent has engaged in conduct rendered unlawfulby Part IIA of theRacial Discrimination Act 1975 (Cth) by havingdistributed the following leaflets in letterboxes in Launceston, Tasmania andby selling or offering to sell suchleaflets at a public market in Launcestonbeing the leaflets described as:

(a)"The Inadvertent Confession of a Jew";

(b)"The Jewish Khazar Kingdom";

(c)"Russian Jews Control Pornography";

(d)Untitled document appearing at page 25 of applicant's affidavit;

(e)"The Most Debated Question of Our Time - Was There Really a Holocaust?";

(f)Untitled document appearing at page 30 of applicant's affidavit; and

(g)Untitled document with handwritten annotations appearing at page 35 ofapplicant's affidavit.

2The respondent be restrained from repeating or continuing such conduct.

3The respondent be restrained from distributing, selling or offering to sellany leaflet or other publication which is to the sameeffect as any of theleaflets referred to in Order 1.

4The respondent pay the applicant's costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the FederalCourt Rules.

1On 21 September 2000 the Human Rights & Equal Opportunity Commission("the HREOC") determined that Mrs Olga Scully had engagedin conduct renderedunlawful by Part IIA of theRacial Discrimination Act (1975) (Cth)("the RDA") by "distributing anti-Semitic literature in letter boxes inLaunceston, Tasmania, and by selling or offering tosell such literature at apublic market in Launceston". The HREOC made declarations that Mrs Scullyshould not repeat or continuethe unlawful conduct and that she shouldapologise for her unlawful conduct by writing a letter of apology to thecomplainants inthe terms specified in the decision.

2By application filed on 21 February 2001 Jeremy Jones instituted proceedingsin the Court to enforce that determination. Theproceedings were styled:

"Jeremy Jones for himself and for the members for the time beingof the Committee of Management of the Executive Council of AustralianJewry".

For reasons which I gave on 13 July 2001 (Jones v Scully[2001] FCA 879;(2001) 113 FCR343) I directed that the reference in the title to the proceedings to "Membersfor the time being of the Committee of Management of theExecutive Council ofAustralian Jewry" should be struck out, leaving Mr Jones as the soleapplicant. I held that the proceedingswere properly constituted even thoughMr Jones is the sole applicant.

3For the reasons which I there explained, the application falls to bedetermined in accordance with the provisions of s 25ZC ofthe RDAnotwithstanding the later repeal of that section.

4Section 25ZC(2) provides that if the Court is satisfied that the respondenthas engaged in conduct or committed an act that isunlawful under the RDA, theCourt may make such orders (including a declaration of right) as it thinks fit.Section 25ZC(5) provides:

"In the proceedings, the question whether the respondent hasengaged in conduct or committed an act that is unlawful under this Actis to bedealt with by the Court by way of hearing de novo, but the Court may receive asevidence any of the following:

(a)a copy of the Commission's written reasons for the determination;

(b)a copy of any document that was before the Commission;

(c)a copy of the record (including any tape recording) of theCommission's inquiry into the complaint."

5The applicant placed before me, on the hearing of this application:

*the reference dated 23 March 1997 from the Race Discrimination Commissionerto the HREOC for an inquiry under s 24E of the RDA,and accompanyingdocuments.;

*the transcript of the proceedings before Commissioner Cavanough QC on16 November 1998 in Launceston;

*the exhibits in the proceedings before Commissioner Cavanough includingwitness statements on behalf of Mr Jones, Dr Goldschmied,MrGoldsteen and Mr Schlesinger; and

*the decision of Commissioner Cavanough given on 21 September 2000.

All of the persons who supplied a witness statement in the proceedingsbefore the Commissioner were called for cross-examination inthe proceedings inthis Court.

6Pursuant to directions which I gave prior to the hearing, the applicant fileda document styled "Particulars of Unlawful Conduct"which sets out thedocuments allegedly published by the respondent, the publication of which theapplicant contends constituted unlawfulconduct, stating the imputations onwhich the applicant relies to support the contention of unlawful conduct. Eventhough the documentdoes not identify which imputation(s) arises from whichleaflet, it nonetheless provides a useful framework for the considerationofthe issues which arise in these proceedings, hence it is convenient to set itout in full:

"1.The Applicant alleges that after 13 October 1995 therespondent offered for public sale and/or placed or was responsible for placingcopies of material, outlined below, in letterboxes in the Launceston areanamely the material being:

(a)The Inadvertent Confession of a Jew; [Jones p 10]

(b)The Jewish Khazar Kingdom; [Jones p 19-23]

(c)Russian Jews Control Pornography; [Jones p 24]

(d)Most Debated Question of Our Time - Was There Really a Holocaust?; [Jonesp 26-29]

(e)Untitled list of books synopses on which it is written `Books on sale atHart St Markets'; [Jones p 31]

(f)Untitled excerpt which begins with the words `The arguments againstclassroom sex education can best be summarised under threeheads ...'; [Jones p32-33]

(g)Untitled excerpt on which it is written `Our Christian - Israelite Laws';[Jones p 34]

(h)Untitled excerpt on which it is written in long had `THE WHITE CHRISTIANNATIONS ARE THE TRUE SEED OF ISRAEL. `THE SYNAGOGUEOF SATIN (sic) WHO SAYTHEY ARE THE JUDEAN - BUT ARE LYING FRAUDS' ARE TRYING TO FORCE THE WHITE RACETO MONGRELIZE. For good bookscome to the Hart Street Market - Sundays, 8.30a.m. - 200 pm (SHOWGROUND)'. [Jones p 35]

[my additions]

2.The applicant claims that the aforesaid publications imputeto persons who are Jewish because of that fact per se attributes being:

(a)That they are anti-democracy, anti-freedom, pro-tyranny;

(b)That the philosophy and teachings and practice of Jews is based upon alearning (the Talmud) which:

(i)ought 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 itsracial origin and the law commands all to own guns andto stamp out Judaismand, by implication, contemporary Jewry;

(d)that Jews, per se, are anti-decent living in the sense that they, by theirnature control pornography both in America and Russia;

(e)that Jews, per se, exhibit a moral attitude which is antithetical toAustralian values (described as `anti-Christian');

(f)that the ethnic group who live as Jews have perpetuated and areperpetuating a `myth' for their own political purposes, beingthe Holocaustperpetrated by the leaders of the Nazi Party in Germany, which allegation bythe respondent imputes that Jews, persee, are fraudulent, liars, immoral,deceitful and part of a conspiracy to defraud the world (or the remainder ofit);

(g)that part of the conspiracy of World Jewry was the Bolshevik Revolution in1917 and that Jews perpetrated the purges in theSoviet Union thereafter;and

(h)that Jews are seeking to control the world, or already have gained thatcontrol, with the intention of destroying `White ChristianCivilisation' andthat Jews are `lying frauds ... trying to force the White race tomongrelize.'

3.That publications of the same kind or in or to the same effect and/orimputing the same attributes continue to be published bythe Respondent.

4.That the publication and distribution of the documents referred to aboveand/or the publication and/or distribution of documentscontaining theimputation as to attributes referred to above is conduct rendered unlawful byPart IIA of theRacial Discrimination Act 1975."

7During the course of his evidence, Mr Jones said that the documentsreferred to in subparagraphs 1(f) and (g) of the particularsare not documentsin relation to which he now makes a complaint. The additions which I have madeto par 1 of the particulars insquare brackets are a reference to the pagein the affidavit of Mr Jones of 18 April 2001 where the leaflet inquestion is reproduced. There are two other leaflets which were the subject ofthe HREOC complaint and which were relied upon by the applicant in theseproceedings. They are the untitled leaflets which appear at p 25 andp 30 of Mr Jones' affidavit. Those leaflets were not separatelylisted in the affidavit apparently because of an erroneous belief that theleaflet at p 25 was part of (c) above, and the leafletat p 30 waspart of (e) above. That is the way they were described in Mr Jones'affidavit. During the course of the proceedingsthe applicant accepted thatthe leaflet at p 25 was not connected with the leaflet at p 24, norwas the leaflet at p 30 connectedwith the leaflet at p 31. Each isa separate document.

8The particulars omitted the leaflets at pp 11-16 ("A Lesson in Culture")and pp 17-18 ("MFP - What are Japan's Motives?") of theapplicant'saffidavit from the list of documents on which the applicant relies in theseproceedings. Those leaflets were reliedupon before the HREOC, but not in thisCourt.

Part IIA of the RDA

9Part IIA was introduced into the RDA in consequence of the passage of theRacial Hatred Bill 1994 (Cth)("theRacial Hatred Bill").PartIIA of the RDA commenced operation on 13 October 1995. It is headed"Prohibition of Offensive Behaviour based on Racial Hatred". Thepresently relevant provisions are ss 18B, 18C and 18D, which are asfollows:

"Reason for doing an act

18BIf:

(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 aperson (whether or not it is the dominant reason ora substantial reason fordoing the act);

then, for the purpose of this Part, the act is taken to be done because of theperson's race, colour or national or ethnic origin.

Offensive behaviour because of race, colour or national or ethnicorigin

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 ofthe other person or some or all of the people inthe group.

(2)...

(3)...

Exemptions

18DSection 18C does not render unlawful anything said or done reasonably andin good faith:

(a)in the performance, exhibition or distribution of an artistic work;or

(b)in the course of any statement, publication, discussion or debatemade or held for any genuine academic, artistic or scientific purposeor anyother genuine purpose in the public interest; or

(c)in making or publishing:

(i)a fair and accurate report of any event or matter of publicinterest; or

(ii)a fair comment on any event or matter of public interest if thecomment is an expression of a genuine belief held by the person makingthecomment."

10It is not an offence to do an act, or agree with another person to do anact that is unlawful by reason of a provision ofPart IIA: s 26.

11TheRacial Hatred Bill also provided for the amendment of theCrimes Act1914 (Cth) to create criminal offences in relation to threats made topeople because of their race, colour or national or ethnic origin,and inrelation to threats made by a person to damage property because of thosereasons, and in relation to the intentional incitementof racial hatred. AsKiefel J noted inCreek 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 theCrimes Act.

The parties

12The applicant lives in Sydney and is an active member of the AustralianJewish community. He has held various offices with theExecutive Council ofAustralian Jewry ("the ECAJ"), and is currently its president. The ECAJ hasserved as the elected representativeorganisation of the Australian Jewishcommunity since its formation in 1944.

13The respondent was born in Russia in 1942. Her family had suffered underthe Soviet regime. Soon after the respondent was born,her family fled toGermany, which was then under Nazi control, and devastated by World War II.

14The evidence of Mr Sladd, the respondent's brother, is that the journeywas a hazardous one, and that the family were dependentupon the goodwill ofGerman soldiers and the German people en route. On arrival in Germany, thefamily was accommodated in a displacedpersons' camp where they remained forabout four years.

15The respondent lives in Launceston. She is a retired school teacher. Therespondent has not received any formal education inthe Jewish religion, norhas she had any lessons in relation to that religion from a practising Jew.

Distribution of the leaflets

16The respondent is not the author of the leaflets the subject of theseproceedings. It was common ground, however, that she distributedthoseleaflets. Some of the leaflets bear handwritten annotations made by therespondent which were placed on the leaflets priorto their distribution. Therespondent distributed the leaflets by putting them in people's letter boxes inLaunceston. The letterboxes were chosen at random. The leaflets weredistributed in 1995 and 1996 whilst the respondent was a school teacher, but inherspare time.

17The respondent received some complaints from people to whom the leafletswere distributed. She received some requests that shenot distribute thatmaterial again. The respondent's evidence was that "once or twice" shedistributed further leaflets to personswho had requested her not to distributethem, but this occurred "by mistake".

18The respondent conducts a stall at the Hart Street Market in Launceston.Some of the leaflets were available at that stall. The respondent also soldbooks at this stall. The books on sale at the stall included books aboutJews.

The HREOC proceedings

19Mrs Scully placed written material before the HREOC but, on the dayfixed for the hearing of the proceedings she withdrew, givingas her reason forso doing that she had not been given an assurance that "truth is a defence inthis case". The Commissioner tookthe view that as Mrs Scully hadwithdrawn, none of the witness statements or attachments previously filed byher should become exhibits. Notwithstanding that withdrawal, Mrs Scullywas permitted to lodge written submissions with the Commission, which shedid.

20Commissioner Cavanough made the following findings of fact:

*Jews in Australia form a group with a common ethnic origin for the purposesofPart IIA of the RDA (this was not in dispute before the HREOC);

*the respondent placed or was responsible for placing copies of the leafletsin letter boxes in the Launceston area after 13 October1995 (the date ofcommencement ofPart IIA of RDA) and distributed or sold the leaflets, or someof them, at the Hart Street Market in Launceston;

*the respondent regularly and frequently distributed material of the samegeneral kind as the leaflets between 13 October 1995and the time of lodgementof the complaint on 7 August 1996, and that she continues to do so;

*the leaflets have a consistent theme being the vilification of Jews as suchand the imputations referred to in par 2 of the "Particularsof UnlawfulConduct" referred to above are a fair characterisation of the imputations inthe leaflets;

*the material distributed by the respondent had caused a great deal ofdistress to Jewish and other recipients;

*the respondent's activities are properly described as a campaign ofdisseminating anti-Jewish propaganda;

*the respondent's contention that she makes a clear distinction between"Talmudic/Zionist/Communist Jews" and "good" Jews is rejected. For the mostpart, the leaflets make no such distinction. They attack Jews generally;

*in any event, the so-called distinction would not lessen the offensiveness,to Jews particularly, of the imputations conveyedby the leaflets. The messageremains that Jews, in particular, are people who by their very nature andculture are, or have beendrawn to or involved in, the alleged evils ofCommunism, Zionism and Talmudism.

21Having made those findings, the Commissioner said:

"... I do not overlook Mrs Scully's claims that her campaignshould be seen as an effort by her to defend the honour and reputationof theRussian and German people against alleged misinformation and alleged historicalinaccuracy spread by others. However, someof the material in question doesnot even mention the Russian or German people, and even where it does, thecontent of the materialand its inflammatory tone (of outright hostilitytowards and vilification of Jews) are such that the material would remaindeeplyoffensive to many Jewish people even if they could also see in itexpressions of a genuine belief in the truth of the statementsmade orexpressions of a genuine belief that the Russian or German people had beenmisrepresented."

22The Commissioner made the following specific findings in relation toss 18C and 18D of the RDA:

*the respondent's distribution of the material represents an act done"otherwise than in private" within the meaning of s 18C(1);

*taking into account the imputations against Jews conveyed by the leaflets,and their inflammatory tone, it is reasonably likelythat the respondent'sdistribution of the material would, in all the circumstances, offend, insult,humiliate and intimidate Jewishpersons who received the material or who becameaware of the material, especially those living in or near Launceston, andaccordinglys 18C(1)(a) was satisfied;

*that the authors of the documents (including the respondent, to the extent ofher annotations and highlighting on the documents)disparaged the personsreferred to in the documents because those persons were Jewish. The Jewishnessof the persons vilified isnot a mere "background factor". It brought aboutthe vilification. By distributing, selling and offering to sell the documents,Mrs Scully became responsible for their contents, and accordingly became aparty to the disparaging of particular persons and groupsof persons becausethey are Jews. Accordingly, the respondent's acts were done "because of the... ethnic origin of the person orsome or all of the people in the group"within the meaning of s 18C(1)(b);

*that the leaflets do not bear on their face the appearance of reasonableness,good faith or genuineness of purpose. Rather, theleaflets appear to beintended to defame and injure Jews, whether or not they have any other purpose.If they are so intended, reasonableness,good faith and genuineness of purposewould not be found for the purposes ofPart IIA of the RDA;

*there is nothing which amounts to "evidence before the Commission" that anypart of the respondent's campaign of anti-Jewish propagandahas been carried on"reasonably and in good faith", for genuine purposes and otherwise in such away that s 18D is or may be applicable:see s 25W of the RDA;

*in any event, the burden of proof under s 18D is on the respondent, andMrs Scully had not established that her campaign of distributinganti-Jewish propaganda was done "reasonably and in good faith" in, or in thecourse of, the doing of any of the things listed ins 18D(a), (b) or(c);

*that a racial vilifier could not be heard to say that he or she is acting ingood faith for the purposes of s 18D merely becausehe or she honestly orsincerely believed that persons of the race (or ethnic group) concerned areinferior or evil by nature andthat they should be made to suffer for thatreason;

*that nothing in the material lodged by the respondent persuaded theCommissioner that the respondent's actions had been carriedout"reasonably";

*that none of the leaflets in question was an "artistic work" within themeaning of s 18D(a);

*that none of the respondent's activities were carried out for any "genuineacademic, artistic or scientific purpose or any othergenuine purpose in thepublic interest" within the meaning of s 18D(b);

*that leaflets of the kind in question, even if they were "fair and accurate",are not "reports" within the meaning of s 18D(c)(i);and

*it was doubtful that any of the publications represents a "comment" withinthe meaning of s 18D(c)(ii);

In summary, the Commissioner found that the respondent had breacheds 18C of the RDA, and that none of the exemptions in s 18D weremadeout.

The proceedings in this Court

23As noted above, s 25ZC(5) provides that the question whether therespondent has engaged in unlawful conduct under the RDA isto be dealt with byway of hearingde novo, subject to the Court's entitlement to receivespecified types of documents as evidence. The nature of a hearingdenovo was described by Dawson J inHarris v Caladine[1991] HCA 9;(1990-1991)172 CLR 84, 124 as follows:

"An order made by a Registrar is reviewable by way of a hearingde novo.That means that the court reviewing the order begins afreshand exercises for itself any discretion exercised below by the Registrar. Theparties commence the application again, subject to any restrictions in therules upon the calling of evidence or provisionsrelating to the use before thecourt of evidence called before the Registrar. A hearingde novoinvolves the exercise of the original jurisdiction and `the informant orcomplainant starts again and has to make out his case andcall hiswitnesses'". (citations omitted)

24It is therefore necessary for me to have regard to the evidence which wasadduced before the HREOC, as well as that introducedfor the first time in thisCourt.

Applicant's evidence before the HREOC

25In a witness statement filed before the HREOC dated 6 May 1998, theapplicant gave evidence that he receives "on a regular basistelephone calls,letters and electronic communication from individuals complaining of theanti-Jewish propaganda distributed in Tasmaniaby the respondent". He saidthat recipients of such material communicated to him that they found thematerial "offensive, insultingand distressing". The material was received byboth Jewish and non-Jewish people, and was unsolicited.

26Annexed to his witness statement are copies of leaflets received byindividuals in their homes in Launceston, which were passedon to theapplicant. Some of these leaflets are the subject of the present proceedings,and are discussed below. The applicantdescribes the leaflets as"unambiguously anti-Jewish and stridently anti-Semitic" and states they contain"untrue and offensive comments". The applicant also states that the ECAJ hasreceived a number of complaints regarding the receipt of similar material sincethedate the complaint was lodged by him with the HREOC. He further statedthat it is his contention that the material "clearly seeksto insult, offendand create ill will towards individuals because they are Jewish".

27In oral evidence given before the HREOC, Mr Jones said that the materialtaken together evidenced a theme of a Jewish conspiracy,and sought to portrayJews as having dishonestly concocted a conspiracy. The applicant said thematerial "basically identifies anyanti-social behaviour with something to dowith Jews".

28Dr Felix Goldschmied also gave evidence for the applicant before the HREOC.Dr Goldschmied is an orthodontist who conducts hispractice in Launceston.In a witness statement sworn on 3 May 1998 and filed before the HREOC,Dr Goldschmied said that he had received"unsolicited offensive andanti-Semitic material" in his letterbox. As a survivor of the Holocaust, hesaid he was "deeply offendedand hurt by the continued distribution of suchprejudiced anti-Semitic material".

29Dr Goldschmied also gave oral evidence before the HREOC that some of hisstaff (who were not Jewish) complained to him aboutmaterial they had receivedin their letterboxes. He said that his staff told him that they found thematerial offensive. Dr Goldschmiedreferred in particular to a documententitled "The Jewish Khazar Kingdom", which he says he received on 17 February1998. He saidhe could not recall the dates he received other documents, butsaid he received such documents on an "intermittent basis" withinthe threeyears leading up to November 1998. Such material was said to be received byhim once every four to six months. In hisoral evidence, Dr Goldschmiedsaid that he found the material "offensive and hurtful" and said he perceivedan "anti-Semitic, anti-Jewish"sentiment in the material.

30Mr George Hans Goldsteen also gave evidence for the applicant before theHREOC. In a witness statement sworn on 3 May 1998,Mr Goldsteen stated that hehas been a member of the Jewish community in Launceston since 1985, and from1986-1992 held a varietyof elected positions on the Board of Management of theLaunceston Hebrew Congregation. He said he first became aware of theactivitiesof the respondent when he received one of her pamphlets in hisletterbox. He subsequently started to receive telephone calls fromnon-JewishLaunceston residents who had also received material from the respondent intheir letterboxes. Mr Goldsteen said thatthese people expressed theirdisgust about the material, and forwarded the material on to him. He said thatthe material first arrivedin his letterbox during 1991.

31Mr Goldsteen said that the respondent's material mostly consisted ofpamphlets, but that the respondent also "regularly droppedaudio tapes" inpeoples' letterboxes. He said he also received some video tapes, and managedto obtain some booklets that were purchasedfrom the respondent's stall at theHart Street market. Mr Goldsteen said that the majority of this material was"grossly anti-Semitic". According to Mr Goldsteen, the respondent'sactivities are aimed at discrediting the Jewish people and making derogatorygeneralisationsabout them. In his oral evidence, Mr Goldsteen said that thematerial distributed by the respondent has a detrimental effect onhim, and isinciting hatred and dislike of Jewish people. He said he was "very upset,insulted and disgusted" and often became depressedby the respondent'smaterial.

32Mr Thomas Bernard Schlesinger also gave evidence for the applicant beforethe HREOC. In a witness statement sworn on 6 May 1998,he said that he hadbeen a businessman in Tasmania for decades and is well-known throughout thestate of Tasmania. He said thatamong the materials that the respondent hassold and distributed are "many allegations that Jewry deals in an underhandmanner withother people and is not to be trusted". He found the material asbeing likely to affect his standing both as a businessman and asa privateindividual, and as an office bearer of the Jewish community in Tasmania. Hefurther stated that he found it "most offensive"that the material distributedby the respondent reproduced misleading information about the Holocaust, inparticular concerning thenumber of Jews who died in the Holocaust.

33In his oral evidence before the HREOC, Mr Schlesinger said he had notreceived material distributed by the respondent personally,but had seen suchmaterial when it was passed on to him by friends in Launceston. He also saidthat he had a conversation with therespondent, who admitted that she was theperson who was distributing the material. Mr Schlesinger said that hefound the materialto be "disgusting".

34Much of the applicant's evidence before the HREOC suffers from thedeficiency that it lacks particularity. It does not identifythe specificleaflets alleged to have been distributed by the respondent, nor does itattempt to explain why particular passagesof those leaflets are said to beoffensive to the applicant or to others. Instead, the applicant and thewitnesses called by theapplicant gave evidence as to why the respondent'smaterial as a whole was offensive. Neither the applicant, nor the witnessescalledon the applicant's behalf, gave any reasons before the HREOC for comingto the subjective conclusions which they expressed. Thisdeficiency was tosome extent rectified by the evidence given by the applicant before me. I dealwith this evidence below.

The applicant's evidence before the Court

35In oral evidence before the Court, the applicant said that he found therespondent's material deeply offensive, hurtful, anda challenge to his rightto participate in Australian society as a full and equal citizen. Theapplicant said that he believed thatthe material was designed to inflame theopinions of other Australians against him and against other Jewish Australians.He saidthat other people who had seen the material had been hurt, offended andupset by it. When asked in cross-examination for his definitionof the term"anti-Semitism", the applicant replied that he believed the term referred tothe behaviour of people who were seekingto diminish the right of Jewish peopleto participate fully and equally in society. As to the leaflets generally, theapplicantsaid that in his opinion, the leaflets say that "if there issomething with which [the respondent] finds disagreeable, there is goingto bea Jewish person behind it".

36Mr Schlesinger was also called to give oral evidence. Mr Schlesinger saidthat the comments in his witness statement as to theoffensiveness of thematerials distributed by the respondent related in particular to the documentsthat are the subject of theseproceedings.

37Dr Goldschmied also gave evidence. Although he could not recall having seenthe document entitled "Was There Really a Holocaust?",Dr Goldschmied gaveevidence that he found the other documents that are the subject of theseproceedings offensive and anti-Semitic. Dr Goldschmied also tendered a furtherdocument which he said named him personally, and was written by the respondent.The document,which became Exhibit 1 in the proceedings, reproduces a newspaperarticle written by Dr Goldschmied in The Examiner newspaper andtherespondent's handwritten response to that newspaper article. The applicant didnot seek to rely on Exhibit 1 in the course ofsubmissions or to explain itssignificance.

38Dr Goldschmied gave oral evidence that the material offended him because hefound it anti-Semitic, and said that the disseminationof the material ishurtful to him especially given his background as a Jewish person who escapedEurope in World War II. Withoutgoing to particular leaflets, Dr Goldschmiedsaid that he found the "tone" of all of the respondent's publications andunsolicitedmaterial offensive and described the material as "anti-Semitic,vilifying, hate material".

39Mr Goldsteen also gave oral evidence. Without going into any detail aboutthe material distributed by the respondent, Mr Goldsteensimply relied onhis witness statement sworn on 3 May 1998 (referred to above). Many of thequestions asked of Mr Goldsteen in cross-examinationwere rejected by me asthey were completely irrelevant to the proceedings. Of the questions that wereallowed and were answered,very few had relevance to the present complaint andthe content of the evidence given does not need to be reproduced here.

The respondent's evidence

40The respondent neither gave, nor called evidence before the HREOC as shewithdrew from the proceedings in the manner describedearlier in thesereasons.

41The respondent filed an affidavit in these proceedings sworn on 21 May 2001.The affidavit is some 111 pages in length. Thewhole of the affidavit wasobjected to by counsel for the applicant. Little, if any, attempt is made inthe affidavit to establishthe relevance or admissibility of much of thematerial contained in it, or even in many cases, what the material is, or whereitcame from. To take one example, p 5 appears to be a copy of, or acompilation of, one or more unidentified documents containingan assertion that"JEWS ARE THE WORST MASS MURDERERS THE WORLD HAS EVEN SEEN". Clearly that isnot a matter of which the respondentis able to give evidence. Pages 4-111consist of a voluminous amount of seemingly unconnected material. It is almostimpossibleto summarise the material in or annexed to the affidavit, and I willnot attempt to do so here.

42There are sections of the affidavit which might be of some relevance. Onesection (p 10) is headed "My defence" and other sectionscommencing at pp13, 30, 46, 65, 76, 97 and 103, address the particular leaflets the subject ofthese proceedings, although eventhese sections of the affidavit suffer fromthe deficiencies referred to earlier, and are argumentative rather thanprobative incharacter.

43Bearing in mind that material even if otherwise inadmissible, might beadmissible in relation to the respondent's defences unders 18D of theRDA, I formed the view that the fairest course was to receive the whole of theaffidavit over the applicant's objection,and to indicate as part of my finaldecision what if any reliance I placed upon it.

44The respondent was cross-examined as to her views of Jewish people. Whenasked for her definition of "Jew", the respondent saidthat the term includes arange of people who do not necessarily adhere to Judaism as a religion. Shesaid that the term includedTalmudic Jews, and defined "Talmudic Jew" as aperson who was raised under Talmudic traditions. As to the particularattributesshe ascribed to Jewish people, the respondent gave evidence that:

*Jews are the descendents of Esau and the Edomites, and are accordingly duefor Biblical punishment;

*they are anti-democratic, anti-freedom, and pro-tyranny;

*Jews control pornography in both the United States and Russia and do sobecause the Talmud instructs them to;

*Jews and world Jewry are seeking to control the world and have already gainedlarge 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 tomongrelise;

*Jews as a group have perpetrated the myth of the Holocaust and in so doingare acting fraudulently; and are lying, acting immorally,and are deceitful;

*a "significant part" of the Jewish leadership is part of a conspiracy todefraud the world; and

*Jews take on Christianity in order to deceive.

45Further, in the respondent's opinion, the Bolshevik Revolution in Russia wasa conspiracy of world Jewry, and she believes thatJews as a group perpetratedthe purges in the Soviet Union, and that the "vile deeds of Communism"perpetrated on the Russian peoplewere done by Jews. The respondent also gaveevidence that in her opinion, World War II was fought by the Allies at thebehest ofJews who controlled western civilisation, and that Jews were the onlybeneficiaries of World War II.

46The respondent also gave evidence that she believed that the philosophy andteaching and practices of Jews is based on the Talmud,and that thosephilosophies, teachings and practices ought to be stamped out; promotepaedophilia; and are worse than a Satanic cult. She admitted, however, tohaving no formal education in the Jewish religion, that she was not an expertin the Talmud, and thatshe had not spoken to any experts.

47As to her views on Jews and the attributes she ascribed to Jews listedabove, the respondent said that she confined some of theseviews only to Jewsin "powerful positions" or to the "Jewish leadership" and did not ascribe allof those attributes to all Jewsor to Jews as a group. She said that thecontext of the leaflets always limits the references to certain people. Therespondentsaid on a number of occasions in cross-examination that she nevertargeted Jews as a whole, but only certain Jews. However, to theextent thatthese attributes were restricted only to Jews in powerful positions or theJewish leadership, it was difficult to discernfrom her answers whichattributes were so confined, and many of the attributes seemed to have beengiven by the respondent to Jewsas a group. For example, on p 18 ofMrs Scully's affidavit it is "Jews" and "World Jewry" who are said to beresponsible for thematters there complained of.

48The respondent also called four witness to give evidence on her behalf.Each witness provided a statutory declaration or a witnessstatement which wereonly provided to the Court and to the applicant on the second day of thehearing. This occurred despite directionsgiven by me on 12 October 2001that any further affidavits on which the respondent proposed to rely were to befiled by 30 November2001. None of the respondent's witness statements relateto any of the particular leaflets distributed by the respondent.

49The respondent sought to expand on the contents of the witness statements inher examination-in-chief. In general, each examination-in-chiefconsisted ofthe respondent asking each of her witnesses open-ended questions relating togeneral themes which were of the respondent'schoosing. It is not easy todiscern, let alone summarise, what the respondent was seeking to obtain fromeach of her witnesses. The applicant's counsel objected to the statutorydeclarations provided by the respondent's witnesses and to many of thequestionsasked by the respondent of her witnesses, largely on two bases;first, that the evidence was not probative of any issue before theCourt; andsecondly, on the basis that the witnesses were not competent to give theevidence that was adduced in their witness statementsor that was sought to beadduced in oral evidence.

50The first witness called by the respondent was Mr Kenneth James McCaffery.Mr McCaffery is a retired pensioner and a residentof Tasmania whodescribes himself as being of "partial Jewish descent". In a statutorydeclaration dated 29 April 2002, Mr McCafferystates that the respondent hasbeen known to him since 1996. He said he first came across the respondent atthe time the respondenthad a general vendor stall at the "Launceston SundayMarkets". Mr McCaffery said he was attracted to the respondent'sliterature,which he describes as covering general topics, including financereform; inoculation of children; Jewish power in banking circlesand politicsin Australia and overseas; the Holocaust; and Biblical archaeology. He statesthat he has also had several conversationswith the respondent and has checkedon her statements and their historical veracity and has "always found them tobe truthful andverifiable in all degrees, particularly her statementsconcerning the `Holocaust', which ... has been seriously and dangerouslyoverblownby a Jewish controlled media".

51Mr McCaffery also gave oral evidence at the hearing. Many of the questionsasked of Mr McCaffery by the respondent were objectedto and rejected by me onthe basis of the competence of Mr McCaffery to answer the questions that he wasasked, as well as on thegrounds of relevance. Much of the admissible evidencegiven by Mr McCaffery related to his opinions concerning the truth of thematerial distributed by the respondent. Mr McCaffery said he believed thematerial to be "honest and absolute history"; that therespondent does not justconcentrate on criticising Jews and Jewish policy, but also disseminatesinformation relating to other topics,including "inoculation of young children,anti-homosexual activities and things like that"; and that the respondent doesnot specificallytarget Jews. Mr McCaffery also gave evidence that therespondent "seems to be very well liked in the community despite all thispropaganda telling ... what a terrible person" she is, and seems to have"tremendous friends everywhere".

52Mr Michael Sladd also gave evidence for the respondent at the hearing. MrSladd is a resident of Hobart who describes himselfas a retired scenic artist.In a witness statement dated 30 April 2002, Mr Sladd states that he was born inRussia in 1935 but fledto Germany in 1944 and resided in a "Displaced Persons"camp from 1945 to 1949. He said that the camp also housed former inmatesofconcentration camps, including Auschwitz. Mr Sladd said that "I never heardanything from them about gas chambers or mass executionsof any kind". He saidthat he came to Australia in 1949 and continued his close contact with manycamp survivors, but in the early1960s began "hearing stories aboutextermination of Jews by gassing in gas chambers and it puzzled me very much".Mr Sladd furtherstated that he believed that the respondent "is doing a greatservice to the community in exposing lies which have been recordedashistory".

53In his oral evidence, it was revealed that Mr Sladd is in fact therespondent's brother. He said that some members of his familywere killed byRussian revolutionaries who he believed were Jewish. He also said that hebelieved that German concentration campswere not exclusively occupied by Jews,but that Jews were only a small minority. Mr Sladd was asked manyquestions by the respondentin examination-in-chief, but again many of thesequestions were rejected by me on the basis that the questions asked were notwithinMr Sladd's personal knowledge, or were not relevant to theproceedings.

54Mr Denis Wilfred Collins was also called to give evidence. Mr Collinsis a resident of Launceston and is semi-retired. In astatutory declarationsworn on 29 April 2002, Mr Collins states that he is a former AssistantPrincipal of Alice Springs High Schooland was a member of the LegislativeAssembly of the Northern Territory from 1980-1994. Mr Collins describeshimself as a studentof history, "particularly Biblical history, also Biblicalprophecy with a particular interest in what has happened to the Israelitepeoples". He said that he became very keen to understand the term"anti-Semitic" when he was accused by an ABC journalist of beinganti-Semitic,and details some of the studies that he has done into the term and into thehistory of the "Israelite people".

55Many of the questions asked of Mr Collins by the respondent wereobjected to by the applicant's counsel and rejected by me onthe grounds thatthey were irrelevant, or that Mr Collins was not competent to answer thequestions. As to the admissible evidencegiven by Mr Collins, he saidthat he had not been offended by the literature that the respondent hasdistributed. He also said thathis view of the respondent is that "she is oneof the bravest people that I have ever met. She has the courage of herconvictionsto spread information. She is a watchman of Israel. She isspreading what I believe most assuredly is the truth and whether peopleacceptit or reject it, that is totally their right but I have the highest regard andI believe she is doing a great service to thefreedom of speech and the Godgiven rights of the people of this country".

56The last person called to give evidence for the respondent was Mr LeonPhilip Gregor. In a statutory declaration sworn on 29April 2002,Mr Gregor describes himself as a veteran pensioner. He was a soldier inthe Australian Regular Army from 1961-1967,and worked in the constructionindustry for approximately 20 years and as a taxi driver for some 9-10 yearsbefore he retired inMay 1999. He states that he has read a great deal ofliterature, including material which is the subject of the present proceedings,"which reveal and trace the sources to the present day maladies particularlyendured in the western nations". He says he believesthat the respondent actswith "high moral purpose" and without any racist intent.

57Again, many of the questions that were asked of Mr Gregor by therespondent were objected to and rejected on the grounds of relevance,orbecause Mr Gregor was not competent to answer the questions. When askedof his opinion of the respondent, Mr Gregor repliedthat it was hisconviction that what she was doing "is a proper duty and function under the ...Christian law."

Videos tendered by the respondent

58The respondent also tendered in evidence a number of videos, being:

*"David Cole interviews Franciszek Piper";

*"Holocaust Revisionism for Beginners";

*"Photographic Evidence";

*"Judea declares war on Germany";

*"Eisenhower's Death Camps";and

*"The Other Israel".

59The respondent said that she tendered these videos because they formed partof the basis upon which her views were formed, andwhich led to the leafletsbeing published. In cross-examination, the respondent said that the videoswere only a small portion ofthe wide range of materials that she had uponwhich she formed her opinions, but given that some of the videos postdate 1996,itwas possible that she came to possess some of the videos after the leafletswere distributed. It seems as though the respondentalso sought to tender thevideos on the basis that the people interviewed in the videos were experts intheir particular field, andthat their evidence was therefore expert evidence.

60With the consent of both parties, the case was conducted on the basis thatthe admissibility of these videos would be determinedas part of my finaldecision, rather than as they were tendered. It was particularly necessary toadopt this course because of theduration of the videos and the stage of theproceedings at which they were tendered. I was then sitting in Launceston tohear theevidence of Tasmanian witnesses. I have now viewed each video. Tothe extent that it is possible, I have attempted to summarisetheir contentsbelow.

(a)"David Cole interviews Dr Franciszek Piper"

61This video, narrated by Mr David Cole, is concerned with the labour campsmaintained by the Germans in World War II in whichJews and other enemies ofthe Third Reich were interned. Mr Cole tells us that the purpose of thevideo is to raise for debate theissue "how do we know if the Holocausthappened?". For most of the video, which is set at the Auschwitz ConcentrationCamp, Mr Coletakes viewers on a "guided tour" of the camp, and putsforward a number of assertions, the gist of which is that the proof presentedin support of the Holocaust has an innocent explanation, namely that the campswere labour camps (and not extermination centres)and that many of the inmatesdied from malnutrition and disease particularly when conditions in Germanybroke down towards the endof the War. The video also consists of a study ofthe gas chamber and the crematorium at Auschwitz by Mr Cole. This studyis basedupon the proposition that the gas chamber was not a gas chamber atall, but was rather a building which was reconstructed after theWar and madeto look like it was a gas chamber. The study also includes a number ofinterviews between Mr Cole and tour guides atAuschwitz, including aninterview between Mr Cole and Dr Piper, who is described as the HeadCurator of the Auschwitz complex. Therespondent alleges that the statementsmade by Dr Piper in his interview with Mr Cole confirm that there wasnever a gas chamberat all at Auschwitz during World War II.

62This video seems to have been made in 1992. There is almost nothing in thevideo apart from the films of Auschwitz and plansof the camp, and assertionsmade by Mr Cole coupled with statements made by Dr Piper which Coleattempts to refute. It is clearthat very selective parts of the interviewhave been used. At no stage is there any direct enquiry of Dr Piperdesigned to provokean answer to the question as to whether or not theHolocaust occurred. The respondent said that she relied on the fact thatDr Piperwas the Head Curator of the Auschwitz complex as a matter uponwhich she relied as constituting his expertise, and also as the basisuponwhich she sought to tender this video as admissible evidence.

63The applicant objected to this video on a number of bases; first, on thebasis that it did not go to issues in the proceedings;secondly, that there wasno evidence that the persons interviewed or doing the interviewing are in anysense persons who have thecompetence 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 conspiracywhich is the hoax ofthe Holocaust.

(b)"Holocaust Revisionism for Beginners"

64This video is narrated by Mr David McCalden, who describes himself as aHolocaust revisionist. It consists of three parts. In the first part,Mr McCalden attempts to present a number of propositions and historical"facts" which he alleges prove that theconcentration camps in Germany were notplaces of extermination, but were rather labour camps. Mr McCalden alsotakes viewers ona tour of Auschwitz, where he said he went in 1987. Aspectsof the gas chamber are filmed and there is a commentary by Mr McCaldentothe effect that the physical construction and features of the building areinconsistent with its use as a gas chamber.

65The second part of the tape is headed "Free Speech". It presents a numberof interviews by Mr McCalden with a Mr Bradley Smith,who is apparently anauthor and bookseller at a bookstore in Hollywood Boulevard. The theme of theinterview is that whilst Christiansare not opposed to the discussion ofrevisionist scholarship, Jewish groups and individual Jews are. Mr Smithsays that Jewish peoplesuppress the expression of revisionist thought andcannot understand why anyone would question the Holocaust.

66The third part of the video consists of Mr McCalden being filmed at anumber of former concentration camps in what is now Poland. These campsinclude Majdanek, Belzec, Treblinka and Sobibor. Mr McCalden asserts thatmuch of the evidence given by Holocaust historiansin relation to these andother camps, and the claims of Holocaust survivors, are inconsistent with thephysical evidence that MrMcCalden puts forward as the truth. Therespondent has stated that this video, like the previous video, disproves theexistenceof homicidal gas chambers in wartime Germany and Eastern Europe.

(c)"Photographic evidence"

67This video takes the form of a discussion between a Mr Ernst Zundl and a MrJohn Ball, who is said to be a geologist and airphotograph interpreter.Mr Zundl is from an organisation known as "Voice of Freedom".Mr Ball tells Mr Zundl that his examinationof aerial photographs taken ofthe Auschwitz and Treblinka camps in 1944 show that the photos have beenaltered in order to makethe camps look like extermination camps. Mr Ballalso discusses an area known as Babi Yar ravine, which was said to be anexhumationand cremation site during World War II. Mr Ball asserts thathis photographic study of the ravine proves that there is no evidenceof masscremations taking place at this site during World War II. Again, therespondent states that this video disproves the existenceof homicidal gaschambers being used by the Germans in World War II. She also said that sherelied on Mr Ball's expertise in photographicanalysis as a basis for theadmissibility of the video.

(d)"Judea Declares War on Germany"

68This is a film presented by Dr Toben of the "Adelaide Institute". Itsgeneral theme is that stories told of life in the Nazideath camps in World WarII have been proved to be totally false. Dr Toben takes viewers on a tourof Auschwitz which he conductedin 1997. He tells us that the evidence that heexamined at Auschwitz proves that the Holocaust was a hoax. Dr Toben thenconductsa number of interviews with various persons including an unnamedcremation expert, and conducts a number of "experiments", whichinterviews andexperiments are said to disprove many of the claims made by Holocausthistorians and survivors.

(e)"Eisenhower's Death Camps"

69This video is a BBC documentary concerned with the internment campsapparently built by the US Army to house German prisonersduring and afterWorld War II. The respondent stated that this video shows pictorial evidenceof the death camps established byUS President Eisenhower in which mass deathsoccurred due to deliberate starvation and neglect.

(f)"The Other Israel"

70This video is narrated by a Mr Ted Pike, who introduces the video by sayingthat he proposes to examine the causes of conflictbetween Arabs and Jews. Inorder to resolve that conflict, Mr Pike has recourse to and comments onJewish scriptures, includingthe Talmud, and the Jewish Encyclopaedia.Mr Pike selects certain parts of the Talmud and the Jewish Encyclopaediain order to demonstratethat the teachings of the Jews permit, among otherthings, the seduction and marriage of three year old girls and sexual practicesby adults on young boys. The Talmud is also said by Mr Pike to teach thatGentiles are classed as barbarians and are forever beneaththe Jew. The videothen goes on to give what is described as an historical account of Jewishinvolvement in (among other things),the French Revolution in 1789, the RussianRevolution in 1917, the formation of Communism in Russia in 1919, and theinvolvementof Jews in various movements and organisations in America.Mr Pike concludes the video by saying that his study of the Talmud andtheJewish Encyclopaedia shows that there is a tendency towards Jewish dominationof society throughout history.

71All of these videos are inadmissible as proof of the underlying mattersreferred to in them. Insofar as they have relevanceto the proceedings, theyconsist of assertions by people who were not called to give evidence in theproceedings, and whose allegedexpertise has not been established by therespondent. What is said by persons in the videos is hearsay. Further, inrelation tothe first video, the respondent stated in cross-examination thatshe was aware of Dr Piper's allegation that the video misrepresentedwhat it ishe said to Mr Cole. The respondent also said that she was aware thatMr Cole recanted the position that he put in relationto Auschwitz in thevideo. It is clear that many of the views put forward in the videos arepolemical in character, and that thepresenters are attempting to push aparticular point of view from a very one-sided and unbalanced perspective.Apart from establishingthat some people talk about the subject mattercomprising the videos, and express views similar to views expressed in some oftheleaflets, none of the videos can be received as proof of any underlyingmatters that are asserted in them. Although the Court isnot bound bytechnicalities in proceedings of this type, (see s 46PR of theHumanRights & Equal Opportunity Commission Act 1986 (Cth)) there is nothingthat the respondent has put to me in relation to the videos that persuades methat I can or should receivethem as proof of any of the underlying matterswhich are asserted in them.

72By a document dated 26 June 2002 and filed with the Court on 1 July 2002 therespondent put submissions in relation to a listof 15 videos. The 6 videosreferred to above form part of that list. The other videos were not tenderedby Mrs Scully, and I havenot taken into account the submissions she hasmade in relation to them.

Newspaper extract by Winston Churchill

73The respondent tendered a photocopy of an article entitled "Zionism versusBolshevism - Struggle for the Soul of the Jewish People"written by WinstonChurchill. She stated that this article was photocopied from the "IllustratedSunday Herald" of 8 February 1920. This article became Exhibit B in theproceedings. The article is said by the respondent to document the "Jewishcreation of Bolshevismby a writer who can hardly be accused of being a`Nazi'". The respondent has asked me to receive this article in evidence as adocumentupon which she relied in forming the opinions she expresses in thematerial she distributed. It was received by me on that basis. The applicantobjected to the article's tender if it was sought to establish the truth of itscontents. I agree with the applicantin this respect. Simply because anarticle has been written on a particular topic by a particular person, even byWinston Churchill,does not establish the truth of what is stated therein.

Books tendered by the respondent

74The respondent also tendered the following books at the hearing:

*The Zionist Connection - What Price Peace?;

*Red Over Black - Behind the Aboriginal Land Rights;

*The Holocaust Industry - Reflections on the Exploitation of JewishSuffering;

*The Path of the Righteous Gentile;and

*The Thirteenth Tribe.

75The respondent sought to tender these books on the basis that they, like thevideos, formed the basis of opinions which she heldand which were expressed inthe leaflets. The applicant objected to the admissibility of these books onsimilar grounds to thoseon which it was contended that the videos were notadmissible. Again, with the consent of both parties, the case was conducted onthe basis that a determination of the admissibility of these books form part ofmy final decision rather than as the books were tendered.

76A brief synopsis of the books tendered by the respondent is as follows:

(a)"The Zionist Connection - What Price Peace?" by Alfred Lilienthal(1978)

77In this book Alfred Lilienthal, a self-proclaimed "author/historian",outlines the supposed background to the wars that havetaken place in theMiddle East since the creation of the State of Israel. Lilienthal alsooutlines what he perceives as the increasinginvolvement of the US in theArab/Israeli conflict, and seeks to explain this involvement by the influenceof Jewish individualsin the White House and in the US media.

(b)"Red Over Black - Behind the Aboriginal Land Rights" by GeoffMcDonald (1982)

78This book attempts to outline what the author describes as the "Marxistmanipulation of the Aboriginal `Land Rights' movement". According to theauthor, who states that he is a former member of the Communist Party, communismin Australia has a long-term strategyfor the establishment of an Aboriginalrepublic under communist control.

(c)"The Holocaust Industry - Reflections on the Exploitation of JewishSuffering" by Norman Finkelstein (2000)

79This book is put forward as an "interrogation of the place the Holocaust hascome to occupy in American culture". The authorasserts that it was not untilthe Arab/Israeli war of 1967 that "memory of the Holocaust began to acquire theexceptional prominenceit enjoys today". Leaders of America's Jewish communityare said to have exploited the Holocaust to deflect any criticism of Israelandits supporters. The author asserts that the "Holocaust industry" has become an"outright extortion racket".

(d)"The Path of the Righteous Gentile" by Chaim Clorfene and YakovRogalsky (1987)

80This book outlines what are described as the "Seven Universal Laws" or the"Seven Laws of the Children of Noah". The Jewishpeople are said to havereceived these laws, as well as the duty of teaching them to the rest of theworld.

(e)"The Thirteenth Tribe" by Arthur Koestler (1976)

81This book is said to be an historical work that traces the history of apeople known as the Khazars. The Khazar Kingdom, whichwas located in modernday Russia, flourished in the 7^th to 11^th centuries, butwas wiped out by the armies of Genghis Khan. According to the author, theKhazars were originally of Turkish origin,but converted to Judaism in the8^th century. The Khazars are said to have emigrated to Poland fromRussia and there "formed the cradle of western Jewry".

Historical evidence and admissibility

82There is very little by way of either case law or text book commentary onthe admissibility of historical evidence. However,the most authoritative caseon the subject isAustralian Communist Party v Commonwealth[1951] HCA 5;(1951) 83CLR 1. At 196, Dixon J sets out what have come to be regarded as theprinciples to be followed in deciding whether a particular historicalwork isadmissible under the common law. His Honour says that the courts "may use thegeneral facts of history as ascertained orascertainable from the acceptedwritings of serious historians ... and employ the common knowledge of educatedmen upon many mattersand for verification refer to standard works ofliterature and the like". Dixon J further states that such historicalfacts maybe "ascertained or verified, not from the polemics of the subject,but from serious studies and enquiries and historical narratives".

83Australian Communist Partywas applied inRitz Hotel v Charles ofthe Ritz(1987) 14 NSWLR 107. In that case, McClelland J was concernedwith a 1938 book entitled "Cesar Ritz - Host to the World", which was a memoirof the lifeof Cesar Ritz written by his widow. The plaintiff sought to havethe book admitted as evidence of the facts stated therein. Indeciding whetherthe book was admissible, McClelland J applied Dixon J's principles,holding at 112 that the events described inthe book were neither "generalfacts of history" nor were they "within the common knowledge of educated men".Further, his Honoursaid that the book itself was not among the "acceptedwritings of serious historians" nor was it a "standard work".

84Ritz Hotel was considered inBellevue Crescent v MarlandHoldings(1998) 43 NSWLR 364. In that case, Young J examined theadmissibility of evidence of historians regarding life in the 19^thcentury, or what his Honour termed "social history". Young J said thatsuch evidence did not constitute expert opinion evidencefor the purposes ofs 79 of theEvidence Act 1995 (NSW). In addition, at 371 hisHonour stated that it seemed to him that "there was a distinction inRitzHotel between the facts of history and what might be called social history.Whilst courts may obtain the base or facts such as when a particularwar brokeout or other matters of record from reputable histories, analyses as to whycertain things happened and generally how peoplebehaved is not a matter whichcan be proved by the evidence of people who were not there but have ascertainedthe historical factsand then have analysed them to work out a conclusion."

85It should be clear from the above summaries of the books that, like thevideos, they are very much polemical in nature. Althoughit may be that therespondent is convinced of the historical accuracy and the truth of theinformation that is contained in the books,she has not established that theycontain anything more than one person's point of view on a particular topic ortopics. In addition,the respondent has failed to establish that thehistorical evidence said to be contained in the books are "general facts ofhistory"that are within the "common knowledge" of educated persons; nor hasthe respondent established that the books sought to be admittedby her areamong the "accepted writings of serious historians" or that they are "standardworks of literature". Accordingly, thebooks cannot be admitted as proof ofany underlying matter that is asserted in them. I reject all of the books asinadmissible forthat purpose.

The applicant's submissions

86In general, the applicant submits that:

*each of the leaflets has a consistent and overriding theme, relating to theactions of Jews as such and the characteristics ofJews as such, and is"stridently anti-Semitic";

*each of the imputations conveyed by the leaflets represent the views of therespondent, as is made clear from answers given byher in cross-examination;and

*the material annexed to the respondent's affidavit of 21 May 2001 "adheresto, repeats and embellishes upon" the leaflets, andhas "one clear consistenttheme being the vilification of Jews by virtue of their adherence to thatculture and/or membership ofthat ethnic group".

87In relation to s 18C of the RDA, the applicant submitted:

*the words "offend, insult, humiliate or intimidate" in s 18C(1)(a) areordinary English words and ought not be given any technicalmeaning;

*each of the applicant's witnesses, all of whom are Jewish, was offended,insulted, humiliated and intimidated by the leaflets,and there was nosuggestion that the reaction of any one of the witnesses was atypical or wasnot a reasonable reaction to the materialdistributed by the respondent;

*applying the objective test in s 18C(1)(a), it is clear that therespondent's action are "reasonably likely" to offend, insult,humiliate orintimidate Jews as a group;

*although s 18C(1)(a) requires an objective standard to be met, theethnic group in question must be taken as one finds it:Jordan vBurgoyne[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 sensethat the ethnic origin of Jews was a "material factor" in the distribution ofthe leaflets;

*"Jews" constitute a race for the purpose of s 18C(1)(b) as, according todictionary definitions, a "Jew" is "one of the Hebrewor Jewish people" and asa "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 theExplanatory Memorandum to theRacial Hatred Bill 1994 (Cth) makesexpress reference to the broad interpretation of the term "ethnic origin" incomparable jurisdictions; and

*in any case, there is evidence before the Court that Jewish people seethemselves as a distinct community; that Jews are boundby common customs andbeliefs; have a common language; and have common characteristics.

88In relation to s 18D of the RDA, the applicant submitted thefollowing:

*the requirement of reasonableness and good faith is a threshold requirementin s 18D, and both elements must be satisfied beforethe issues raised ins 18D(a), (b) and (c) can be considered;

*the respondent did not adduce any evidence that the publication anddistribution of the leaflets was done "reasonably and in goodfaith" as isrequired by s 18D;

*the nature and extent of the leaflets and their common theme shows malice onthe part of the respondent, such that even if anindividual leaflet mightotherwise come within s 18D, the publication and distribution of all ofthe leaflets shows a lack of genuinenesson the part of the respondent;

*lack of good faith on the respondent's part is constituted by an impropermotive, being the intention to injure the applicantand members of the Jewishethnic 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) areavailable to the respondent;

*in particular, with respect to s 18D(b), the respondent's actions werenot done "in the course of any statement, publication,discussion or debatemade or held for any ... genuine purpose in the public interest", as there isno evidence of any activity ofJews in Australia or elsewhere which has invitedpublic criticism or discussion; and

*the abstract generalisation of "truth in history" is not the kind ofjustification embodied in s 18D, and to the extent that therespondentrelies upon the public interest in "historical truth", no evidence has beenadduced to show the historical truth of anythingpublished by therespondent.

The respondent's submissions

89The respondent accepts the applicant's submission that the theme of thepublications relates to the actions of Jews. She submitsthat "it is thespecific evil actions that are brought to light in the publications". However,the respondent refutes the applicant'ssubmission that the theme of theleaflets relates to the "characteristics of Jews as such". She says that whendiscussing the topicsin her leaflets, "it is too difficult and clumsy to keepreferring to the specific leaders of World Jewry and/or to the particularcriminal groups of Jews [who] are participants in the fraud, crime and giantconspiracies". She submitted that, for example, "whenit is said that `RussianJews control pornography' of course it is understood that this generalstatement must, of necessity, referonly to the Jews who are actually involved.The particular leaflet lists the specific individuals who were involved at theparticulartime and place". Further, the respondent submitted that "the themeof the material published focuses on the action of specific membersof peoplewho are known as Jews. All Jews are never implicated."

90Although the respondent has not articulated her argument in the followingterms, it appears as though the respondent is attemptingto argue thats 18C(1)(b) of the RDA is not applicable to her actions as her actionswere not done "because of" the race, colouror national or ethnic origin ofJews. Instead, the respondent seems to be asserting that her leaflets weredistributed to highlightthe "specific evil actions" of people who happen to beJewish. In addition, the respondent appears to submit, contrary to theconcessionmade on her behalf before the HREOC, that s 18C(1)(b) is notapplicable because Jews do not constitute a racial or ethnic group forthepurposes of the RDA. She stated that "ethnically there is no such thing as aJew". The respondent further submitted that "inAustralia, as elsewhere in theworld, Jews do not exist as a group by race, colour or national or ethnicorigin. Genetically, theAshkenazi are mainly Turks with a mixture ofJaphethite-Esau-Edomite-Canaanite-Pharisaical blood".

91In relation to s 18C(1)(a), the respondent submitted that the applicant"has at no time pinpointed any statement contained inthe leaflets whichoffended, insulted, humiliated or intimidated him ...". In addition, therespondent has submitted that neitherthe applicant nor any of the applicant'switnesses have cited any specific instances of them being offended, insulted,humiliatedor intimidated by her leaflets. Instead, the respondent submitsthat the applicant and the applicant's witnesses did nothing morethan engagein "moaning and groaning about non-specific anti-Semitism and anti-Jewishoffence and hurt". The respondent assertsthat there was no specific referenceto any particular leaflet by the applicant or his witnesses. In addition, inrelation to s18C, the respondent submitted that for the RDA to be valid,s 18C must be limited to personal insults, personal defamation andphysicalharm - not acts that are "likely" to insult or offend (as is thewording in s 18C).

92The respondent also asserted that she is protected by s 18D of the RDAin the distribution of her leaflets. In particular, therespondent submittedthat the exceptions contained in s 18D(b) and (c)(i) protect her. Section18D(b) provides an exemption foran act that is done reasonably and in goodfaith in the course of any statement, publication, discussion or debate made orheld forany genuine academic, artistic or scientific purpose or any othergenuine purpose in the public interest. Section 18D(c)(i) providesanexemption for an act done reasonably and in good faith in making or publishinga fair and accurate report of any event or matterof public interest. Inparticular, the respondent asserted that "it is in the interest of all people,especially Jews, to see whyso many of the leaders of crime come from amongtheir ranks. The influence of the Talmud which is so intensely studied by theyoungstudents and Rabbis is the probable reason for this crime andimmorality". The respondent also submitted that the discussion ofcurrentaffairs and history are matters of public interest and are protected bys 18D. Further, the respondent submitted that theapplicant "has failedto specify how the leaflets in question would fail to be in the publicinterest, or of no genuine academicor scientific purpose, or not a fair andaccurate report of a matter of public interest done reasonably or in goodfaith". In thissense, the respondent seems to be asserting that the onus ison the applicant to show that the respondent has not published the leafletsreasonably and in good faith and for the purpose of a matter of publicinterest.

93The respondent also appears to submit in her written submissions that shehas more general defences available to her, beyondthe scope of s 18D.The respondent has submitted that:

*she distributes the leaflets "for the purpose of combating racialdiscrimination which is harming certain sections of the Australiancommunity";

*all of the leaflets have been previously published by other sources, and somehave been published and republished without anyrepercussions;

*there is "overwhelming evidence" to prove the general truth of theapplicant's imputations, and that the imputations are "clearlywrong"; and

*no offence was possible, let alone intended.

94The respondent also submitted that the RDA should be declaredunconstitutional as, in the respondent's submission, it is impossibleto applythe RDA to all groups equally, and because it infringes the "freedom tocommunicate political matters".

Section 18C of the RDA

95I have set out s 18C at par [9] above. In order for acontravention of s 18C to be made out, three elements must besatisfied:

(a)the relevant act must be done "otherwise than in private";

(b)the act must be "reasonably likely" to "offend, insult, humiliate orintimidate"; and

(c)the act must be done "because of" the race, colour or national or ethnicorigin of a person or group of people.

96The Explanatory Memorandum to theRacial Hatred Bill noted that this civilprohibition "on offensive behaviour based on racial hatred" would be placedwithin the existing jurisdictionof the HREOC to conciliate and/or determinecomplaints alleging breaches of the RDA. The Explanatory Memorandumcontinues:

"This victim-initiated process is quite different from thecriminal offence regime where the initiative for action generally involvespolice and prosecution authorities."

As earlier explained, the criminal offence regime for which the Billprovided was not passed into law.

(a)"Otherwise than in private"

97The Commissioner found that it was clear that the respondent's distributionof the leaflets represents an act done "otherwisethan in private" within themeaning of s 18C(1). There was no issue in the proceedings before me onthis point. The respondentdid not challenge the HREOC's finding in thisrespect.

(b)"Reasonably likely"

98The use of the words "reasonably likely" in s 18C(1)(a) sets up anobjective test or standard: seeHagan v Trustees of the Toowoomba SportsGround Trust[2000] FCA 1615;Creek v Cairns Post Pty Ltd[2001] FCA 1007 at[12]. InHagan, Drummond J stated at [15]:

"It is apparent from the wording of s 18C(1)(a) thatwhether an act contravenes the section is not governed by the impact the actissubjectively perceived to have by a complainant. An objective test must beapplied in determining whether the act complainedof has the necessaryoffensive, insulting, humiliating or intimidatory quality for it to be withinthe sub-section. The questionso 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 thecircumstances in which it was done, be likely to offend, insult,humiliate or intimidate a person or a group of people of a particularracial,national or ethnic group?"

99As the test is an objective one, it is not necessary for an applicant toprove that any person was actually offended, insulted,humiliated orintimidated by the conduct in question. But the analogy provided by the casesons 52 of theTrade Practices Act1974 (Cth) suggests thatevidence, for example, that a member of a particular racial group was offendedby the conduct in question wouldbe admissible on, but not determinative of,the issue of contravention. In thes 52 context, idiosyncratic evidencefrom consumers about how they reacted when reading documents said to bemisleading is not to be ignored,but it is not determinative. The Court mustmake an objective assessment of the position itself:ACCC v Optell PtyLtd(1998) ATPR 41-640 at 41,082. Whether that evidence is of any, and ifso, what weight depends upon the circumstances. However, in his second readingspeech on theRacial Hatred Bill the Attorney-General said:

"The Bill requires an objective test to be applied by theCommission so that community standards to behaviour rather than the subjectiveviews of the complainant are taken into account."

100InHagan, Drummond J at [28] treated as admissible evidencefrom persons of Aboriginal descent of their own views, and as to the views ofthe wider Aboriginal community of which they formed part, as to theacceptability of the use of the word "Nigger" in the contextthere in question.That evidence was both direct evidence by members of the relevant group thatthey were not offended by the conductin question and opinion evidence as tothe likely response of other members of the group which was admissible underss 78 and80 of theEvidence Act 1995 (Cth).

101The applicant tendered evidence as to the subjective effect of thedistribution of the respondent's leaflets on each of theapplicant and hiswitnesses. For the reasons just given, that evidence is admissible, but is notdeterminative. As I have notedabove, with some exceptions in the case ofMr Jones, such evidence was in general terms, and related to the overalland general effectof the leaflets as a whole, rather than being directed toany particular leaflet or to any passages of particular leaflets. Thereisforce in the respondent's submission that the applicant and his witnesses werenon-specific about the particular way or ways inwhich offence or insult wascaused by the leaflets. In the result this evidence as to the objectivereaction to the distributionof leaflets by the respondent is of very limitedassistance.

To offend, insult, humiliate or intimidate

102To "offend, insult, humiliate or intimidate" denotes profound and seriouseffects, not to be likened to mere slights:Creek at [16]. In hissecond reading speech, the Attorney-General said that the HREOC was familiarwith the scope of such language andhas applied it in a way that deals withserious incidents only:Hansard (15 November 1994) p 3341. In theabsence of any statutory definition of the words "offend, insult, humiliate orintimidate", itis appropriate that the words be given their ordinary Englishmeanings.

103Dictionary definitions of the terms used in s 18C are as follows:

Offend

*"1.To irritate in mind or feelings; cause resentful displeasure in.

2.To affect (the sense, taste, etc) disagreeably."

(Macquarie Dictionary 3^rd Ed.)

*In its chief sense "to hurt or wound the feelings or susceptibilities of; tobe displeasing or disagreeable to; to vex, annoy,displease, anger; to excite afeeling of personal annoyance, resentment or disgust in (any one)."

(Oxford English Dictionary)

Insult

*"To assail with offensively dishonouring or contemptuous speech or action; totreat with scornful abuse or offensive disrespect;to offer indignity to; toaffront, outrage."

(Oxford English Dictionary)

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 useespecially to force to or deter from some action by threatsor violence."

(Oxford English Dictionary)

104The fact, if it be a fact, that assertions made in the leaflets may bewrong or inaccurate does not of itself establish a contraventionof s 18C:Creek at [6]. A true statement, or one which might be shown in some wayto be true, does not mean that the statement is incapable of beingoffensive:Patrick v Cobain[1993] VicRp 20;[1993] 1 VR 290 at 294.

105InWorcester v Smith[1951] VicLawRp 43;[1951] VLR 316, O'Bryan J held thatbehaviour, to be offensive within the context of "behaves in an offensivemanner" in s 25 of thePolice Offences Act 1928 (Vic) must be suchas is calculated to wound the feelings or arouse anger, resentment, disgust oroutrage in the mind of a reasonableperson. His Honour held that the mereexpression of political views contrary to those probably held by the majorityof the community,even when made in the proximity of the offices of those whoseviews are attacked, does not amount to such offensive behaviour. Abannerbearing the inscription "Stop Yank Intervention in Korea" was regarded by hisHonour as an inoffensive statement of politicalviews, even when carriedoutside the offices of the United States Consul.

106For the reasons explained by Wilcox J inCEPU v Australian PostalCorporation(1998) 85 FCR 526 at 534-535, criminal cases on offensivebehaviour, whilst not determinative of the question which arises in the presentcase, doprovide some general insight into the question of offensiveness. Inparticular, they support the proposition that the expressionor disseminationof views contrary to those held by a section of the community or even by amajority of the community will not necessarilybe offensive (although in somecircumstances it may), even if the expression of those views is hurtful tothose who hold a differentopinion. As the outline in the ExplanatoryMemorandum to theRacial Hatred Bill states (p 1), the RDA: "is not intended toprohibit people from having and expressing ideas". In the context of thesummary offenceof offensive behaviour, conduct or language to be offensivemust be such as is calculated to wound the feelings, arouse anger orresentmentor disgust or outrage in the mind of a reasonable person: Watson, Blackmore andHoskingCriminal Law (NSW) at [9.7990]. InCEPU(supra) at 534Wilcox J quoted the following observation by Kerr J inBall vMcIntyre(1966) 9 FLR 237 at 241:

"Some types of political conduct may offend against acceptedviews or opinions and may be hurtful to those who hold those acceptedviews oropinions. But such political conduct, even though not thought to be properconduct by accepted standards, may not be offensiveconduct within the section.Conduct showing a refusal to accept commonly held attitudes of respect toinstitutions or objects heldin high esteem by most may not produce offensivebehaviour, although in some cases, of course, it may."

107At p 243 inBall v McIntyre,Kerr J said:

"... behaviour to be offensive behaviour must be calculated toproduce a stronger emotional reaction in the reasonable man than isinvolved inindicating difference from or non acceptance of his views or values. Thebehaviour to be offensive would normally becalculated to wound the feelings,arouse anger, resentment, disgust or outrage in the mind of a reasonableman."

108In assessing whether the respondent's actions offend s 18C(1)(a),it is necessary to consider the perspective from which theseactions are to beviewed, namely the hypothetical person in the applicant's position, or thegroup of which the applicant is one. The perspective suggested by theapplicant's counsel in submissions is that of a "Jew in Australia".Considering that the leafletshave what the respondent admits to be a themethat "relates to the actions of Jews", and that the leaflets were distributedin Australia(notwithstanding that they may have also been distributed orpublished elsewhere), I consider such a perspective to be appropriate.

109The relevant "act" is the publication and distribution of the leaflets,together with the annotations placed upon them by therespondent. Whether anAustralian Jew, or Australian Jews as a group would feel offended, insulted,humiliated or intimidated bythat act necessarily involves a consideration ofthe individual leaflets which is undertaken later in these reasons.

(c)Act done because of race, colour or national or ethnic origin

"Ethnic origin"

110The respondent submits that Jews do not exist as a group by race, or ethnicorigin in Australia or elsewhere, as, in her opinion,historical evidence showsthat Jews are "mainly Turks" with a mixture of other races or nationalities whoconverted to Judaism inthe 8^th century AD. Leaving aside thehistorical accuracy of the respondent's sources (which evidence I have in anyevent rejected as proofof the underlying "facts"), the respondent's approachinvolves giving an unduly narrow construction to the expression "ethnic origin"where used in the RDA.

111The meaning of "ethnic origins" was considered inKing-Ansell vPolice[1979] 2 NZLR 531. In that case the New Zealand Court of Appealheld that Jews in New Zealand formed a group with common ethnic origins withinthemeaning of theRace Relations Act 1971(NZ). Richardson J saidat p 543:

"... a group is identifiable in terms of its ethnic origins ifit is a segment of the population distinguished from others by a sufficientcombination of shared customs, beliefs, traditions and characteristics derivedfrom a common or presumed common past, even if notdrawn from what isbiological terms is a common racial stock. It is that combination which givesthem an historically determinedsocial identity in their own eyes and in theeyes of those outside the group. They have a distinct social identity basednot simplyon group cohesion and solidarity but also on their belief as totheir historical antecedents."

That passage was approved by the House of Lords inMandla v DowellLee[1982] UKHL 7;[1983] 2 AC 548 at 564. See alsoCommission for Racial Equality vDutton[1988] EWCA Civ 17;[1989] 1 QB 783, 799. InMiller v Wertheim[2002] FCAFC 156at[14], a Full Court said, on the basis ofKing-Ansell, that it canreadily be accepted that Jewish people in Australia can comprise a group ofpeople with an "ethnic origin" for the purposesof the RDA.

112That position is confirmedby the Explanatory Memorandum circulatedin relation to theRacial Hatred Bill. At pp 2 - 3 the following appears:

"The terms `ethnic origin' and `race' are complementary and areintended to be given a broad meaning.

The term `ethnic origin' has been broadly interpreted in comparable overseascommon law jurisdictions (cfKing-Ansell v Police [1979] 2 NZLR perRichardson J at p. 531 andMandla v Dowell Lee[1982] UKHL 7;[1983] 2 AC 548 (HL)per Lord Fraser at p. 562). It is intended that Australian courts would followthe prevailing definition of "ethnic origin" as setout inKing-Ansell.The definition of an ethnic group formulated by the Court inKing-Ansellinvolves consideration of one or more of characteristics such as a sharedhistory, separate cultural tradition, common geographicalorigin or descentfrom common ancestors, a common language (not necessarily peculiar to thegroup), a common literature peculiarto the group, or a religion different fromthat of neighbouring groups or the general community surrounding the group.This wouldprovide the broadest basis for protection of peoples such as Sikhs,Jews and Muslims.

The term `race' would include ideas of ethnicity so ensuring that manypeople of, for example, Jewish origin would be covered. Whilethat termconnotes the idea of a common descent, it is not necessarily limited to onenationality and would therefore extend alsoto other groups of people such asMuslims."

113Jews in Australia are accordingly a group of people with an "ethnicorigin" for the purposes of the RDA. There is evidence thatJewish people seethemselves as a distinct community; that Jews are bound by common customs andbeliefs; have a common language;and share other common characteristics. Theviews which Mrs Scully expressed as particular attributes she ascribed toJewish people(see [44] and [45] above) really assume that this is so.

"Because of"

114The phrase "because of" requires consideration of the reason or reasons forwhich the relevant act was done:Hagan (Full Federal Court)[2001] FCA 123;(2001) 105FCR 56 at 60. It is important to note that if an act is done for one or morereasons, it is enough that one of the reasons is the race,colour or nationalor ethnic origin of a person or group of people, whether or not it is thedominant reason or a substantial reasonfor doing the act: s 18B. Theapplicant submits that the test to be applied in a consideration ofs 18C(1)(b) is whether race isa "material factor" in the performance ofthe act. InCreek, Kiefel J notes at pars [19] - [27] that therehave been differences of opinion expressed about the meaning of phrases such as"onthe ground of" and "by reason of" in the context of discriminationlegislation. It is not necessary for me to repeat what her Honoursaid 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. Irespectfully propose to follow that approach.

115As I have noted above, the respondent appears to assert thats 18C(1)(b) is not applicable to her actions as her actions werenot done"because of" the race, colour or national or ethnic origin of Jews. Instead,the respondent submits that she was motivatedin distributing the leaflets bywhat she perceived as a need to highlight the "specific evil actions" of peoplewho happen to beJewish. Further, she said in cross-examination that she nevertargeted Jews as such. She also submitted that the context of theleafletalways limits the references to certain people, and that where she ascribedcertain attributes to Jews, such attributes wereconfined to the "Jewishleadership" or to Jews in "powerful positions". She further submitted that thematerial focuses on the actionsof specific people who are known as Jews, andthat all Jews are never implicated.

116The applicant submits that "it is clear from the theme of the materialpublished and/or distributed that the publication and/ordistribution of saidmaterial has been performed because of the ethnic origin of Jews or some or allof Jewry". Adopting the approachof her Honour inCreek, in my opinionthere are many things about the publications which "suggest race as a factor"in the respondent's decision to publishand distribute the material. Thesethings include the fact that the leaflets, in large part, specifically refer toJews both intheir title and in their contents ("The Inadvertent Confession ofa Jew"; "Russian Jews Control Pornography"; "The Jewish KhazarKingdom"); thatthe leaflets discuss matters that are of particular importance to, orspecifically relate to, Jewish people ("WasThere Really a Holocaust?"; "TheJewish Khazar Kingdom"; untitled list of book synopses; untitled documents atpages 25 and 30 ofthe applicant's affidavit); and that some of the leafletscontain prominent annotations that were written by the respondent thatdrawattention to what the respondent sees as the point of the leaflets (such as,for example, the word "JEW" written across theforehead of the picture of Leninin the leaflet containing the book synopses; and the annotation on the untitleddocument at p 35of the applicant's affidavit which reads "THE WHITE CHRISTIANNATIONS ARE THE TRUE SEED OF ISRAEL. `THE SYNAGOGUE OF SATAN - WHOSAY THEYARE JUDEAN - BUT ARE LYING FRAUDS' ARE TRYING TO FORCE THE WHITE RACE TOMONGRELIZE"). It may well be true that a reasonin the respondent's decisionto publish the material was because of her perceived need to highlight what shesees as the "specificevil actions" of people who are Jewish. However, it isenough to contravene s 18C(1)(b) that one reason for the respondentpublishingthe material was because of the message which the material conveysabout Jews.

117Thus, to take an example, the first of the leaflets has as its subjectmatter, gun ownership. But it is headed "The InadvertentConfession of a Jew"and recounts an interview with a person identified as a "Jew". The leafletasserts that "nearly all Jews areun-American, anti-freedom, anti-gunownership". It may be that a reason for circulating the leaflet was to saysomething about gunownership and anti-gunners. Even if that be so, it ispatent on the face of the article that another reason for circulating theleaflet was to say something about Jews and Jewish involvement in the anti-gunmovement. At least one of the reasons the leafletwas distributed was to saysomething (derogatory) about Jews, hence the requirements of s 18C(1)(b)are satisfied.

118I reject the respondent's argument that she never targeted Jews as a group,and that it should be understood that general statementsin her leaflets mustof necessity refer only to Jews who are actually named or who were actuallyinvolved. The leaflets attack Jewsgenerally, and are not limited either bytheir words or by the impression they give to particular individuals. It willbe necessaryto turn to specifics later in these reasons, but in general termsthe message conveyed by the leaflets is that Jews have common featuresthatought to be condemned, ridiculed or despised.

119Mrs Scully's affidavit provides some support for this conclusion. Forexample, p 9 refers to the "lyingJewish press"; it is the"Jewish lawyers" who are "onto a nice little earner with native titleclaims"; it isJews who "vilify Australians". And on pp 17 and 18it isJews or worldJewry who are described as having beenresponsible for both World Wars. On p 16 there is a photo of NelsonMandela with Joe Slovo. MrMandela's photo has been endorsed byMrs Scully with the handwritten word "Mandela", whereas Mr Slovo'sphoto has the handwrittenendorsement "Jew".

120Mrs Scully was cross examined as to these annotations at T p 181as follows:

"I see. And is it you that wrote the word `Jew' acrossMr Slovo's picture? --- That's right, yes.

And is it you that put the word, or the words, `Slovo is a Jew', at the endof the paragraph under the photograph? --- That's right.

And is it you that put in the word `Jew' on a number of occasions next tonames 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 aname and in the case of Mr Slovo you used the term ofJew? --- I believethat probably because Mandela is a well-known name and people would haverecognised him as the person I'm referringto, but if I'd written Slovo on theother man that would not - that name is not known in the community and it wouldnot have significance."

121I do not accept this explanation. "Jew", in the hands ofMrs Scully, is and is intended to be, a pejorative term condemnatoryofany person to whom she applies that description.

The leaflets and the particularised imputations

122The applicant's approach to the demonstration of a contravention ofs 18C of the RDA was akin to a defamation pleading, in thatthe applicantseeks to identify particular imputations which the applicant says are conveyedby the leaflets, and contends that ifthe leaflets convey those imputations,then they, on their face, contravene s 18C of the RDA, without the needfor any independentevidence in relation to the subject matter of each leaflet.Those imputations are set out in par [6] above.

123This approach necessarily involves the proposition, as was accepted by theapplicant's counsel, that a leaflet which discussedmatters such as, forexample, the history of the Khazar Kingdom or the Holocaust, does notnecessarily in itself attract the operationof s 18C of the RDA, or takethe matter outside the exemptions in s 18D. Rather, it is the identifiedimputations that are saidto be conveyed by each leaflet which produces thatresult.

124In the circumstances of the present case, the applicant's approach providesa useful tool for considering the issues which arise,provided it is borne inmind that it is only a tool, and not a substitute for the statutory test.

125In the law of defamation, the principles which apply in determining whethermaterial conveys a pleaded imputation were summarisedinAmalgamatedTelevision Services Pty Ltd v Marsden[1998] NSWSC 4;(1998) 43 NSWLR 158 by Hunt CJat CL (with whom Mason P and Handley JA agreed) at 165-166, where hisHonour said:

"The ordinary reasonable meaning of the matter complained of maybe either the literal meaning of the published matter, or what isimplied bythat matter, or what is inferred from it: ... In deciding whether anyparticular imputation is capable of being conveyed,the question is whether itisreasonablyso capable (Defamation Act, s 7A, reflecting thecommon law: ...), and any strained or forced or utterly unreasonableinterpretation must be rejected: ... Theordinary reasonable reader (orlistener or viewer) is a person of fair average intelligence ..., who isneither perverse ..., normorbid or suspicious of mind ..., nor avid forscandal: .... That person does not live in an ivory tower but can and does readbetweenthe lines in the light of that person's general knowledge andexperience of worldly affairs: ...

The mode or manner of publication is a material matter in determining whatimputation is capable of being conveyed: ... The readerof a book, for example,is assumed to read it with more care than he or she would read a newspaper. Themore sensational the articlein a newspaper, the less likely is it that theordinary reasonable reader will have read it with the degree of analytical carewhichmay otherwise have been given to a book ..., and the less the degree ofaccuracy which would be expected by the reader: ... The ordinaryreasonablereader of such an article is understandably prone to engage in a certain amountof loose thinking:... There is a widedegree of latitude given to the capacityof the matter complained of to convey particular imputations where the wordspublished areimprecise, ambiguous, loose, fanciful or unusual: ...

What must be emphasised is that it is the test of reasonableness whichguides any court in its function of determining whether thematter complainedof is capable of conveying any of the imputations pleaded by the plaintiff. Indetermining what is reasonable inany case, a distinction must be drawn betweenwhat the ordinary reasonable reader, listener or viewer (drawing on his or herownknowledge and experience of human affairs) could understand from what thedefendant has said in the matter complained of and theconclusion which thereader, listener or viewer could reach by taking into account his or her ownbelief which has been excited bywhat was said. It is the former approach, notthe latter, which must be taken: .... The publisher is not held responsible,for example,for an inference which the ordinary reasonable reader, listener orviewer draws from an inference already drawn from the matter complainedof,because it is unreasonable for the publisher to be held so responsible:..."

(emphasis in original)

126The above principles were recently followed in this Court byTamberlin J inVersace v Monte[2002] FCA 190 at pars [144] -[146]. At [145] his Honour said:

"In determining what will be conveyed to an ordinary reasonablereader, listener or viewer of fair average intelligence, one mustnot look atthe statement or matters complained of in isolation. Rather, they must beconsidered in the whole context of the materialin which they are published:John Fairfax & Sons Ltd v Hook[1983] FCA 83;(1983) 72 FLR 190 at 195. Thereference to the "context" of the publication is a broad reference whichembraces all the attendant circumstances, includingboth the surrounding matterand the mode of publication."

Section 18D of the RDA

127The Explanatory Memorandum to theRacial Hatred Bill makes the followingobservations in relation to the proposed s 18D (pp 10-11):

"Proposed section 18D provides a number of very importantexemptions to the civil prohibition created by proposed section 18C. Theexemptions are needed to ensure that debate can occur freely and withoutrestriction in respect of matters of legitimate public interest.

However, the operation of proposed section 18D is governed by therequirement that to be exempt, anything said or done must be saidor donereasonably and in good faith. It is not the intention of that provision toprohibit a person from stating in public whatmay be considered generally to bean extreme view, so long as the person making the statement does so reasonablyand in good faithand genuinely believes in what he or she is saying.

...

It is for the complainant, in relation to the civil prohibitions, toestablish that the respondent's act was reasonably likely inall thecircumstances to offend, insult, humiliate or intimidate another person orgroup, and that the act was done because of therace, colour, or national orethnic origin of the complainant or group of people of which the complainant isa member. However,if so established, the onus then rests on the respondent toshow, on the balance of probabilities, that his or her action falls withinoneof the exemptions in section 18D."

The individual leaflets and ss 18C and 18D

128I now turn to the question of whether each of the alleged imputations areconveyed by the leaflets distributed by the respondent. I also deal withwhether, if those imputations are so conveyed, the leaflets contravenes 18C of the RDA, and whether the respondenthas any defences unders 18D.

(a)"The Inadvertent Confession of a Jew"

129This leaflet is undated. According to a handwritten annotation appearingon it, the leaflet was received on 29 July 1996. It reproduces a transcript ofan interview with Mr Aaron Zelman, who is reported as having formed a neworganisation called "Jewsfor the Preservation of Firearms Ownership (JPFO)".The headnotes to the interview state that the interview first appeared in apublicationknown as the "American Survival Guide" in November 1989, and wasreprinted in June 1990 in an issue of "S.W.A.T." magazine underthe heading"JPFO in Defense of Firearms Ownership". The leaflet's theme is that Jews, whohave a strong influence in the US mediaand government, are on the whole,anti-gun ownership. Jews are variously described as "left wing, liberalanti-gunners" whose ultimatepolitical goal, through disarmament, is "the totalcontrol of peoples' lives and destiny".

130I have reproduced below selected portions of the leaflet of which theapplicant makes particular complaint, although the wholeof the leaflet isrelied upon:

"A:Jim, it is obvious that one of the major problems we gunowners face is the heavy influence (some call it a stranglehold) ofleft wing, liberal Jewish anti gunners in the media andgovernment.

JPFO can do what needs to be done: forcefully challenge these individualswithout the fear of being labelled anti-Semitic. Theother pro-gun groups doexcellent work, but they must daily tip toe around the truth for fear of theanti-Semitic label, which wouldbe used by the liberal media in a blink of theeye and without mercy.... To emphasise my point: can you imagine arepresentativeof any pro-gun group saying what I have just said in thisinterview, even though it is the truth? It's not that they would not wantto,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 staunchsupporters of gun ownership, but our side of the story iscensored by theliberal Jews whoheavily influence the mass media and government.

Another reason for forming JPFO is to combat the growing anti-Semitism inAmerica, partly caused by anti-gun Jews.

...

The possibility of a violent anti-Semitic act being perpetuated should not bediscounted. I believe that gun haters would stopat nothing to achieve theirgoal. There is a growing body of information that strongly suggests thepossibility that the Stocktonschoolyard killings by Patrick Purdy may havebeen orchestrated by high government officials with the help of certainanti-gunners.

...

Q:What do you think are some of the causes of Jewish involvement in theanti-gun movement?

A:The most vocal of liberal Jewish anti-gunners do indeed understand why theywant Americans disarmed, as it is a crucial stepfor total control of people'slives 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 messageor most of themindless pap that appears on television or other forms of electronicprogramming. ...

A disarmed America would be a weak America and a weak America cannot helpIsrael continue to survive, much less any other democracy. Once Americans aredisarmed, a political party could come to power in America that is hostile toJews and Israel."

(underlining in original)

There are also some typed comments in the column on the far right of thisleaflet. 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-peoplecontrol and pro-big brother government and that they most likely will neverchange."

The following comments also appear in the respondent's handwriting on theside of the leaflet:

"THE JEW - MR AARON ZELMAN SUGGESTS THAT THE STOCKTON SCHOOLYARDKILLINGS BY PATRICK PURDY MAY HAVE BEEN ORCHESTRATED BY HIGH GOVERNMENTOFFICIALS WITH THE HELP OF CERTAIN ANTI-GUNNERS!

COULD THE PORT ARTHUR KILLINGS HAVE ALSO BEEN ORCHESTRATED BYANTI-GUNNERS?"

131The applicant says that this leaflet conveys the imputation contained at2(a) of its particulars, being that Jews are "anti-democracy,anti-freedom,pro-tyranny".

132The words "anti-freedom" and "pro-tyranny" are themselves used in theleaflet, and are thus conveyed by the leaflet. The word"anti-democracy" isnot itself used in the leaflet, but the applicant contends that, "on aconsideration of the whole article", theleaflet conveys the imputation thatJews are "anti-democracy". "Democracy" is defined in theConcise OxfordDictionary 10^th Ed, 1999, as "a form of government in which thepeople have a voice in the exercise of power, typically through electedrepresentatives;control of a group by the majority of its members". Theleaflet repeatedly refers to the "heavy influence" of "left wing, liberalJewish anti-gunners" in the media and government (presumably in the US). In myopinion, merely because a group is said to have a"heavy influence" in thecontext of a political system that is democratic does not necessarily mean thatthe group is itself "anti-democratic";it may just mean that the group istaking advantage of the established democratic system by successfully lobbyingwithin it. However,the leaflet also states that the "ultimate goal of theliberal political agenda" (which is said to be controlled by Jews) is the"total control of peoples' lives and destiny"; and the typed commentary on theinterview refers to Jews asinter alia,"pro-people control" and"pro-big brother government".Although the term "big brother" is now acolloquial phrase that has recently been popularised by "reality TV" shows ofthe same name,it was made famous by George Orwell inNineteen EightyFour to describe the leader of a tyrannical system of government whosehallmark was the control of the majority by the few through a reignof terror.In this sense, the phrase refers to a system of government that is antitheticalto democratic beliefs. I am of the viewthat an ordinary reasonable readerwould understand that the description of a group of people as "pro-big brothergovernment" conveysthat those persons are indeed "anti-democratic".

133Accordingly, I find that imputation 2(a) is conveyed by the leaflet. Butit is necessary to address s 18C in terms for thereasons earlierexplained, and for the reason that whereas the law of defamation has as itsfocus the lowering of a person in theestimation of his/her fellows, the RDAincludes within its focus, the likely effect of the conduct upon members of theethnic groupitself.

134I now turn to the question of whether this leaflet contravenes s 18C.Neither side called any evidence, apart from the leafletitself, on the topicof "anti-gunners". I therefore do not know whether or not the "facts" assertedin the leaflet are true. But,for the reasons earlier explained, that is notdeterminative of the question of contravention.

135In my view, a leaflet that conveys an imputation that Jews are"anti-democracy, anti-freedom, pro-tyranny" is reasonably likely,in all thecircumstances, to offend or insult a Jewish person in Australia. In coming tothat conclusion, I have had regard to anumber of factors, including the factthat Australia (like the US) is a western democracy whose people, both Jewishand non-Jewish,value their freedom and democratic institutions. In effect,the leaflet says that Jews do not adhere to those values, and are insteadcharacterised by the descriptions given to them by the imputations. Inaddition to these factors, the leaflet also seems to suggest,albeittangentially, that Jews, who are described throughout the leaflet as "anti-gunownership" or "anti-gunners", may have beenresponsible for orchestrating thePort Arthur killings in 1996, presumably in order to promote their ownpolitical agenda. Thissuggestion is conveyed by the handwritten annotation onthe leaflet. An allegation that a group of people are responsible fororganisinga mass murder is reasonably likely to offend or insult members ofthe group.

136As to whether the leaflet was published "because of" the ethnic origin ofJews, there are many things about the leaflet thatsuggest race as a factor inthe respondent's decision to publish this leaflet. The leaflet specificallyrefers to Jews both in itstitle and its contents; and it contains prominentannotations that specifically highlight the fact that the person beinginterviewedis Jewish. It may well be that a reason for the respondent'sdecision 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 toexpress her views on what she sees as the attitudeheld by a particular ethnicgroup (namely Jews) towards gun ownership. As I consider that this was onereason behind her decisionto publish the leaflet, it follows that this leafletcontravenes s 18C of the RDA unless s 18D applies.

137In relation to s 18D, the respondent has submitted that the leaflet"was twice published for a genuine purpose in the publicinterest" and wasdistributed by her "for the same genuine academic purpose". Presumably, therespondent's reference to the leafletbeing "twice published for a genuinepurpose" refers to the fact that the leaflet was previously published in thetwo magazines describedabove. However, it is clear that s 18D does notprovide a defence based on republication. Accordingly, to the extent that therespondentasserts a defence based on this ground, it is rejected. As to herclaim that the leaflet was distributed by her for a "genuine academicpurpose",the respondent presented no evidence as to the historical or intellectualveracity of the leaflet. Nor did she presentany evidence as to what thegenuine academic purpose was.

138The respondent's affidavit (p 13) includes a section headed: "Legal reasonswhy I have the right and the duty to distributethis article". In that sectionthe following appears:

"The would-be tyrant, Jeremy Jones, is seeking to prevent mefrom distributing information which was written by a leader of a Jewishorganisation, and which has been published twice in popular Americanmagazines.

My rights as an Australian citizen should not be any less than the rights ofAmerican citizens.

Like Mr Zelman, I have every right to expose the heavy influence of leftwing liberal Jewish antigunners in the mass media and government. Thefollowing page reveals just how heavy Jewish influence has been in the Americangovernment. In choosing his cabinet, the presidentdiscriminated againstconservative Christian men. This discrimination has serious ramifications forAustralia as our young men andwomen have been called to military duty in theMiddle East where they have invariably sided with the American forces againsttheSemite 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 morepeople are realising that the official story about the PortArthur massacreclashes with the facts of what really happened.

Mr Zelman's statement that a schoolyard massacre may have been orchestratedby high government officials with the help of antigunners,is a statement ofgreat interest to Australians who know that there are major faults in theofficial Port Arthur reports. Massacresof this sorts have occurred veryconveniently in nations whose freedom is being curtailed."

That is followed by what appear to be extracts from unidentifiedpublications which:

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

-list "Clinton's Jewish appointees as of mid 1999" underneath a statementwhich invites the reader to:

"Consider the following alphabetized(sic)list alongwith their titles and consider the impossibility thatall of thesepeople could not be part of a Zionist world wide conspiracy to control theUnited States and sell the country into military defeat."(p 15);

-suggest that the ANC in South Africa, headed by Nelson Mandela, is part ofthe Communist Party of South Africa, headed by Joe Slovo;according toMrs Scully's handwritten endorsement "Slovo is a Jew" (p 16);

-assert that Jews were mainly responsible for World War I and that World Jewrywas directly responsible for World War II (pp 17and 18);

-"expose" various "anti-German lies" told by Jews (p 19);

-contain purported quotations about Jews "by the Jews themselves" all ofwhich, in one way or another, denigrate Jews (p 20);

-assert that the Sydney Jewish Museum is guilty of "knowingly promoting racialhatred" (p 21);

-assert that "Schindlers List" when originally published carried a notationthat it was a work of fiction, a notation which wasexcluded from the secondand third editions, which proves that "Jewish liars vilify the German people"(p 22); and

-contain miscellaneous observations about Jews and their attitudes toChristians (pp 23 - 24).

139This necessarily brief summary of the materials included in this section ofthe respondent's affidavit reveals the following:

-the matters relied upon are incapable of sustaining a defence unders 18D;

-if and insofar as the matters relied upon relate to the leaflet, theynegative, rather than establish, that the respondent wasacting reasonably andin good faith in disseminating the leaflet;

-that the respondent's actions are motivated by the respondent's strongly heldanti-Jewish views, even if it be accepted (as Ido accept) that she genuinelybelieves that Jews are responsible for many of the world's ills. Therespondent's position in thisrespect, as appears from p 3 of her response tothe applicant's particulars of unlawful conduct dated 12 November 2001("RPOUC")is that:

"Judaism should be stamped out simply byexposure."

(b)"The Jewish Khazar Kingdom"

140This leaflet is also undated but has a handwritten annotation on it whichindicates that it was apparently received on 17 October1995. It reproduces afive page article entitled "The Jewish Khazar Kingdom" by Curtis Clair Ewing.At the end of the article thereis a typed annotation which notes that thearticle was reprinted for distribution in Australia by "Christian IdentityMinistries",PO Box 146, Cardwell Qld. The leaflet purports to be an essaywhose subject is the history of the "Khazar Kingdom". This kingdomis said tohave existed in what is now Southern Russia, and was at the height of its powerin the late 8^th century AD, during which time it converted frompaganism to Judaism. Using this fact the essay's author seeks to draw a numberofconclusions, one of which is that Jews do not have a legitimate claim toPalestine as they are not "true Israelites".

141The applicant makes particular complaint about the following paragraphsthat appear in the article:

"Professor Lothrop Stoddard, the world-renowned authority onethnology, published an article in The Forum magazine for March 1926,in whichhe 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 infigure, long-headed, with fine-cut noses, an harmonic type.'

He further states: `... the Semitic Jews are long-skulled.' It is his learnedposition that the Ashkenazim is neither Jewish norSemitic. And, usingestimates from the Jews themselves, he states that 82% of Zionists areAshkenazim, and that their claim to Palestinehas no racial or historicalfoundation. He further agrees that probably nine-tenths of the world's Jewsare predominantly of Ashkenazimblood, and that the same proportion is found inAmerica today.

...

First, this evidence would certainly explode the JEWISH RACE theory. For, ifthey are a mixture of Esau-Edom-Hittites, Khazar-Ashkenazim,Sephardim plusEthiopian blacks and Orientals, and plus a very charitable concession that afew real Judahites are among them, whohas the temerity to call them a race,much less the purest race on earth, as many ignorant Christians have done? Allthat may besaid of them is they are a religious community and then they are asmuch divided into denominations as Protestants.

Second, the claim that they are the only representatives of the Israel peopleon earth is the greatest hoax of all time. They arenot a good representativeof Judah, much less the other tribes of Israel ...

...

Third, their claim to Palestine or the land of the Middle East deeded to thedescendants of Abraham by covenant promise is a falseclaim which willcertainly be exposed in time. And if, as we suggested, Esau-Edom is found isworld Jewry, and the Jewish Encyclopaedia(1925 Ed), article EDOM, states afterthe Jews had overcome Edom: `From this time the Idumeans ceased to be aseparate people ...'then we may look for Obadiah to be fulfilled in the nearfuture, especially verses 17-18, which read as follows: `But upon MountZionshall be deliverance, and there shall be holiness; and the house of Jacob shallpossess their possessions. And the house ofJacob shall be a fire, and thehouse of Joseph a flame, and the house of Esau for stubble, and they shallkindle in them, and devourthem; and there shall not be any remaining of thehouse of Esau: for the LORD hath spoken it.'

If the present occupants of Palestine are not true Israelites, much lessJudahites, then we may look for a house-cleaning and terriblejudgment to comeupon 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 locateIsrael provided one is honest and really wishes toknow the truth enough tostudy the evidence. They will find that the marks of Israel are on theAnglo-Saxon-Celtic and related people."

142In relation to this article, the applicant says that it conveys thefirst part of the imputation pleaded at par 2(c), being:

(c)That contemporary Jewry is due for a terrible judgment becauseof its racial origin.

143The applicant also submitted that the leaflet conveys the imputationthat "the claim that Jews are the only representatives ofthe Israel people onearth is the greatest hoax of all time". As can be seen from a reading of theleaflet, the author presentsa number of propositions relating to the supposedhistorical origins of Jews and then seeks to draw a number of conclusions fromthese propositions. Among these conclusions are the two propositions that formthe basis of the imputations. Having regard to thefact that the imputationsare drawn directly from the statements that are made in the leaflet itself, itis an unavoidable conclusionthat the imputations would be conveyed to anordinary reasonable reader.

144Although I consider that the imputation that "contemporary Jewry is due fora terrible judgment because of its racial origin"is capable of being conveyedby the leaflet, in order to determine whether the imputation (and therefore theleaflet) contraveness 18C it is necessary to assess the context in whichthe statement is made. The author of the leaflet makes the statement that "wemay look for a house-cleaning and terrible judgment to come upon" Jews in orderto offer his interpretation of a passage in "Obadiah",one of the books of theOld Testament. Read in this way (that is, as one person's interpretation of apassage of scripture), theleaflet does not say that contemporary Jewry is duefor a terrible judgment because of anything that is inherently bad or wrongaboutcontemporary Jewry. Rather, the leaflet says that contemporary Jewry isdue for a terrible judgment because a certain scripturesays so. If one doesnot accept the author's interpretation of the scripture, then it is difficultto see how one could be offended,insulted, humiliated or intimidated by theleaflet. Accordingly, I find that s 18C is not contravened in relation tothis imputation.

145The imputation that "the claim that Jews are the only representatives ofthe Israel people on earth is the greatest hoax ofall time" is, in my opinion,in a different category. This imputation, through its use of the word "hoax",suggests that Jews, inasserting this claim, have deliberately set out todeceive. I consider that such an imputation is reasonably likely to offend andinsult Jewish people. In saying this, I make no comment on the truth of theauthor's claims as to the descendancy of Jews, as Ihave no admissible evidenceon this. I also consider that this leaflet was published by the respondent"because of" the ethnicorigin of Jews. The leaflet, in its title and in itscontents, is specifically concerned with Jews; and, more particularly, waspublished in an attempt to outline the author's views of Jews in light of the"historical evidence" that is presented by the leaflet.

146In relation to s 18D, the respondent asserts that the leaflet has beenpublished hundreds of times by hundreds of authors becauseit is of "publicinterest". She asserts that, because of this, it is "therefore covered bys 18D(b), (c)(i) and (c)(ii)". Apartfrom making that assertion, therespondent's affidavit does not contain any other material specificallydirected towards this leaflet(T 500). However, it is clear s 18D doesnot provide a defence based on republication. Merely because a work has beenpublished"hundreds of times by hundreds of authors" does not entitle therespondent to a defence under s 18D. Accordingly, to the extentthat itis asserted that the respondent has a defence based on this ground, it isrejected.

147One of the books tendered by the applicant was the "Thirteenth Tribe" byArthur Koestler. That book deals with the same subjectmatter as the leaflet,and is admissible on the s 18D defence, as it may go to show that thegeneral subject matter of the leaflethas been the subject of public discussionand controversy. It is appropriate to limit the use of this book to thes 18D defencepursuant tos 136 of theEvidence Act 1995(Cth). But that falls short of establishing that the respondent actedreasonably and in good faith in accusing Jews of perpetratingthe greatest hoaxof all time. Nor has it been established that pars (b) or (c) of s 18Dare satisfied.

(c)"Russian Jews Control Pornography"

148This leaflet reproduces two articles and one "letter to the editor". It isnoted as being received on 16/17 March 1995. Thefirst article is entitled"Russian Jews Control Pornography". It reproduces a story relating to theconviction of "pornographerReuben Sturman" for "avoiding millions in incometaxes by hiding his assets overseas". The article says that Sturman controls"amajority of the pornographic production and distribution companies inAmerica". It also refers to the fact that Sturman is a "leaderin theCleveland Jewish community and is honoured at the top of their social ladder".The article also refers to the "Jewish controlof the pornographic business".It concludes by saying:

"If anyone needs a final reason for opposing Jewish immigration- THEN THIS IS IT."

149The next article reproduced in this leaflet is entitled "Behind ThePornographic Flood - Pornography - Jewish `Contribution' toAmerica". Amongother things, this article refers to the "exclusively Jewish dominated businesswhich is springing up all over America... called pornography". It also refersto pornography as being a "totally Jewish-controlled business in America".

150A "Letter to the Editor" is also reproduced in this leaflet. It is unclearwhere this letter has come from, or who the Editoris to whom it is addressed.It reads as follows:

"Dear Jimi,

I used to be one of those who scoffed at the international bankingconspiracy. Well no more after I read that rural male suicidehad increased by600% in one generation. Caused on the whole by the robber banks' extortiontactics. And Ms Irene Moss declaringin theWeekend Australianthat herhusband was `a lovely Jewish banker', now Ms Moss is urging Australians toaccept the Mabo perfidy.

I now have my own conspiracy theory:

(1)the rural folk are being forced off their land and into the citiesin order to strengthen the red feds' grip on the electorates.

(2)These clearances are really ethnic cleansing and the land will beturned over to the blacks and Asians as part of [a] capitulationtreaty.

(3)The land will be bought back from the bankers at hugely inflatedprices with taxpayers' money to increase the robber banks' alreadyusuriousprofits.

(4)This ethnic cleansing will eliminate the Christian conservativeresistance to the red feds' fifth-columnism, hastening the republicand changeof the flag.

(5)Paul Cheating will be made president for life and Australia's namewill be changed to the Socialist Republic of Mongroidia."

151The applicant contends that this leaflet conveys the imputations pleadedat pars (d), (e) and (h), namely:

(d)that Jews,per se, are anti-decent living in the sense that they, bytheir nature control pornography both in America and Russia;

(e)that Jews,per se, exhibit a moral attitude which is antithetical toAustralian values (described as `anti-Christian');

(h)that Jews are seeking to control the world, or already have gained thatcontrol, with the intention of destroying `White Christiancivilisation' andthat Jews are `lying frauds ... trying to force the White race tomongrelise'.

152The first two articles that are reproduced in this leaflet ("Russian JewsControl Pornography" and "Behind the PornographicFlood - Pornography - Jewish`Contribution' to America") contain clear and unambiguous statements that Jewsare behind, and control,the pornographic industry in the US. The body of thearticles cite a number of examples of Jewish ownership of pornographicbusinessesin the US, and by these examples seek to convey that Jews, ingeneral, are responsible for a business that is depraved and immoral. Therespondent asserted that "Jewsper se are not being blamed" in thearticles (RPOUC p 3(d)). However, no attempt is made in the articles tolimit the attribution of blameto individuals; rather, Jews as a group areblamed. The imputation that "Jews,per se, are anti-decent living inthe sense that they, by their nature control pornography in both America andRussia" would be conveyedto an ordinary reasonable reader by this leaflet.

153Imputations (e) and (h) are not conveyed by the leaflet. The leaflet makesno mention of Jews exhibiting a moral attitude thatis antithetical toAustralian values and that is described as "anti-Christian"; nor does it conveyan inference along those lines. The two articles relating to the Jewishcontrol of pornography are apparently aimed at the US and not Australia. Inaddition, apartfrom the reference to Ms Moss' husband as "a lovely Jewishbanker", nowhere is the supposed moral attitude of Jews discussed or impliedinthe "Letter to the Editor", and I do not see that an ordinary reasonable readerwould read such a meaning into the Letter to theEditor. The same equallyapplies to imputation (h). Accordingly, I am of the view that imputations (e)and (h) are not conveyedby the leaflet.

154An imputation that Jews are "anti-decent living in the sense that they, bytheir nature, control pornography both in Americaand Russia", is reasonablylikely to offend or insult a Jewish person living in Australia. As I statedabove, despite the respondent'sassertions to the contrary, no attempt is madein the leaflet to limit the attribution of blame to individuals; rather, Jewsas agroup are sought to be held responsible for the ownership and control ofpornography. Accordingly, I am of the view that s 18C iscontravened bythis leaflet, subject to the availability of a defence under s 18D.

155The respondent asserts in her affidavit that the leaflet was "distributedin the public interest; 18D(b)". She says:

"When attention is drawn to the identity of those who areinvolved in a most despicable business, there will be a decrease in thatbusiness 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 veryspecific. Many names and details are given. Jewsper se are not beingblamed, but of course the evil influence of the Talmud must be of concern toall people ..."

156On p 30 of the respondent's affidavit, she says:

"It is not surprising that so much pornography in America andelsewhere is controlled by Jews. This evil influence probably comesinto theJewish communities through their Rabbis who spend many years studying thefilthyTalmud which instructs the Jews to hate Christiansand to harm them in every possible way.

TheTalmud is itself pornographic.

It claims that sodomy is not sodomy if committed with a child under the ageof nine. Much detail is given to support that criminalnotion. Likewise itproclaims that men can have sex with little girls as long as they are under theage of three years. (see photocopyfromTalmud). In onepassage it explains that sexual intercourse with a gentile baby is acceptable.This is one of the thousands of passageswhich reveal Talmudic hatred for otherraces, yet Mr Jones has the gall to bring charges of racism againstme.

The article which I distributed was full of facts which had been publishedin American newspapers. It names names, gives detailsof convictions for taxevasion and money laundering.

This article which so `offended' Jeremy Jones is presented here along withsome other clippings from various newspapers."

(underlining in original)

157A miscellaneous, and mainly unidentified, list of "clippings" isincorporated in this section of the affidavit. One cannotsatisfactorilysummarise this material, but I give a few examples. On p 34 it is assertedthat "White `Gentile' women sex slaveshave been/are being sold at auction inIsrael" and the question is posed "How long have the Jews known about sexslavery in Israel?" On p 36: "... Jews of Los Angeles who, like 99.9% of Jewseverywhere, enable the perversions in Israel". On p 41: "The most importantreligious texts of the Jews (collectively known as the Talmud) authorise theJews to kidnap, rape and murder White `Gentiles'." On p 42: "Jews SeizeControl of Walt Disney Studios to Churn Out Filth"; "Jews Ruin Walt DisneyPictures"; "Jewish controlled Hollywoodhas stepped up its promotion ofhomosexuality as an acceptable `alternative lifestyle'".

158Much of this material repeats and embellishes upon the material containedin the leaflet about which the complaint is made. The material confirms theimpression which one derives from the leaflet itself, namely that therespondent, in distributing theleaflet was intending to denigrate Jews as agroup, rather than simply to expose criminal or immoral conduct on the part ofparticularindividuals. I do not accept the respondent's assertion that "Jewsper se are not being blamed". The extract from her affidavit quotedabove makes it plain that in the respondent's view, Jews have a propensityforinvolvement in pornography because of the teachings of their Rabbis and of the"filthy Talmud".

159I am not satisfied that in distributing this leaflet, the respondent wasacting either reasonably, or in good faith. The leafletemployssensationalised headings which place the blame for pornography upon Jewsperse. Pornography is described as "the Jewish contribution to America", andthe leaflet states "If anyone needs a final reason for opposingJewishimmigration - THEN THIS IS IT". The other reasons are not stated, but it isimplicit in the article that the fact that aperson is a Jew is a sufficientreason for not allowing the person to settle in America. The leaflet vilifiesJews because theyare Jews, and for that reason its distribution is neitherreasonable, nor in good faith.

(d)Untitled document appearing at page 25 of the applicant'saffidavit

160This leaflet appears to reproduce two pages from a larger document, butneither party submitted that the fact that the leafletappears to be part onlyof a larger document was of any significance. A handwritten annotationappearing at the top of the leafletstates that it was received in a mailbox"around February 1996".

161The leaflet's theme is the dangers posed to the US by what the authordescribes as the "sin of race mixing". Jews are saidto be responsible forpromulgating "race mixing". The main danger is said to be that race mixingwill cause the "White race to disappearleaving the world in the control of theanti-Christ Jews". Race mixing is said to be part of a Jewish plan for worldconquest.

162The applicant has made particular complaint about the following paragraphsthat appear in the leaflet:

"The sin of race-mixing is one of the greatest dangers ournation faces today, although most Christian ministers make light of it. If Godallows this church approved sin to continue, within a few generations the Whiterace will disappear leaving the world inthe control of the anti-Christ Jewswho have been foremost in promulgating race mixing, knowing that history provesthat bastardraces 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, stronglypromoted by Zionist interests in our government.

...

(3)The promotion of `racial equality', by the media, which in businessand social situations always stresses race mixing, has encouragedChristians todo the same, even though the Word of God strongly condemns it.

...

(6)The attack on the Bible, Christian virtues, the home and thesacredness 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 thisattack against Christianity in what he titled ATTACK ONFAITH! He mentionedsuch anti-Christian organisations as the ACLU, but never hinted that they wereled and controlled by anti-ChristJews. Of course he could not do this, sinceas a Christian Zionist his interests lay in an `Israeli first' policy. Hecalls theseCanaanite enemies of Christ, the Chosen People while knowing theyare His enemies. What utter hypocrisy!

(7)There is a conspiracy under way, Virginia! Whether you want toaccept it or not. It is a conspiracy that had its start in the dustyhalls ofBabylon, for world conquest, and has carried on during the last 2000 years inwhat it openly states is a campaign of ultimatelydestroying `White ChristianCivilisation'.

163The applicant contends that this leaflet conveys the imputations pleadedat pars (b), (c), (e) and (h):

(b)that the philosophy and teachings and practice of Jews is based upon alearning (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 itsracial origin and the law commands all to own guns andto stamp out Judaismand, by implication, contemporary Jewry;

(e)that Jews,per se, exhibit a moral attitude which is antithetical toAustralian values (described as `anti-Christian');

(h)that Jews are seeking to control the world, or already have gained thatcontrol, with the intention of destroying `White ChristianCivilisation' andthat Jews are `lying frauds ... trying to force the White race tomongrelise'.

164Imputation (b) is said to arise, not through any direct reference to theTalmud, but through the reference to the "dusty hallsof Babylon" in par (7) ofthe second column of the leaflet. The applicant contends that "the Talmudoriginated in Babylon duringthe exile of the Jews". I do not consider thatthis connection between Babylon and the Talmud would be made by an ordinaryreasonablereader. In addition, there is no direct reference in the leaflet tothe philosophy, teachings or practices of Jews, nor any suggestionthat itought to be stamped out, promotes sodomy and paedophilia, or that Judaism isworse than a satanic cult. Nor, in my opinion,can these suggestions beinferred from the leaflet. Accordingly, I am of the view that imputation (b)is not conveyed by the leaflet.

165I do not consider that imputations (c) and (e) are conveyed by the leaflet.There is no mention of contemporary Jewry beingdue for a terrible judgmentbecause of its racial origin; no mention of the law commanding all to own guns;and no mention of Jewsexhibiting a moral attitude which is antithetical toAustralian values. Although there are a number of references to "anti-ChristJews" in the leaflet, the leaflet does not mention Australia or its supposedvalues; rather, the leaflet appears to have been writtenfrom an Americanperspective, and to the extent that it attempts to contrast the alleged moralattitude of Jews with the attitudesof any other group, it is the values ofwhite Christian Americans that are so contrasted. Imputations (c) and (e)would not be conveyedto an ordinary reasonable reader reading this leaflet.

166As to imputation (h), the leaflet specifically makes mention in par (7) ofthere being "a conspiracy under way" that "had itsstart in the dusty halls ofBabylon, for world conquest, and has carried on during the last 2000 years inwhat it openly states isa campaign of ultimately destroying `White Christiancivilisation'". The leaflet also makes mention of the white race disappearing,"leaving the world in the control of the anti-Christ Jews who have beenforemost in promulgating race mixing ...". An imputationthat Jews are"seeking to control the world with the intention of destroying White Christiancivilisation", would be conveyed toan ordinary reasonable reader by thesepassages. Such an imputation would also be reasonably likely to offend orinsult Jews inAustralia albeit part of the particularised imputation, namely"Jews are lying frauds ... trying to force the white race to mongrelise",isnot made out. The leaflet makes sensationalised claims that seem clearlyintended to provoke Jews and incite opposition to theirbeliefs (or theauthor's perceptions of those beliefs). In relation to s 18C(b), theleaflet is specifically directed towards whatit perceives as Jewish attitudestowards the "sin of race-mixing", and makes numerous references to Jews. Itseems clear that atleast one of the reasons behind the leaflet being publishedwas to express the author's opinions on Jews and their supposed beliefs.

167In the respondent's affidavit, she says that "this leaflet about theIsraelite identity of the European Christian people isof genuine publicinterest thus covered by 18D(b). As this information will combat racialdiscrimination against all white societies,all of whom are being forced tobecome multi-racial states, it comes under the protection ofs 18D(c)(i)".

168On p 65 of the respondent's affidavit, she says:

"The leaflet traces the story of Abraham and his son Isaac, andRebecca and Rachel and Joseph in Egypt. The writers believes thatthedescendants of this Biblical family are the white Christian nations and thatthe Laws of God have been given to them to liveby.

He believes that there is a Jewish conspiracy which is destroying theChristian Israelite societies by promoting race-mixing, immorality,and aregression of America to a Third World status.

In the following pages there is ample evidence to prove that such aconspiracy does exist.

If there are any factual errors in my evidence I would like to have thempointed out. But if my materials are correct then they arein the publicinterest and I am protected by the Australian Constitution, by the Laws of Godand even by theRacial Discrimination Act which allows matters of publicinterest to be discussed.

It is the hateful lies which cause offence. Historical and contemporaryTRUTH can only be offensive to the liars."

169The "ample evidence" to which the respondent refers consists of extractsfrom various articles by persons about whom little, ifanything, is knowninterspersed with what are said to be quotations from various sources. Theextracts do not prove anything ina legal sense. Nor do the quotations, evenif accurate, prove the truth of what is said. Again, it is impossible tosummarise thismaterial. But the general thrust of much of it is to assert theexistence of a Jewish plan to deliver the whole world to the "Jewishcause" bypromotion of intermarriage between races. For example on p 70, under theheading "Satan stamps over Europe", the followingappears:

"Do those, who hate other peoples, want to destroy them?

By genocidal immigration?

Perfecting the world means to Jewry, surviving as a racial entity anddestroying the Aryan entities by racial blending in order torule them inracial superiority!"

170All that the respondent's "evidence" establishes is that she is not theonly person in the world to engage in the vilificationof Jews, and that thereare others who profess to hold views similar to her own. The "evidence" doesnot establish as 18D defence. The justification which the respondentproffers for her conduct in her affidavit is sufficient, of itself, to negativethe availability of as 18D defence.

(e)"The Most Debated Question of Our Time - WAS THERE REALLY AHOLOCAUST?"

171This leaflet reproduces an article written by Dr E R Fields. It appears tobe a photocopy from a publication known as "TheTruth At Last". It is fourpages in length. There is a handwritten annotation at the top of the articlenoting that it was "receivedin March 1996".

172The article begins by asserting that the Holocaust "has become the greatestinstrument of sympathy which any nation has everbeen able to use to gainsupport for wars, expansion and foreign aid: this has made Israel the world'ssixth strongest military power. The gravest threat to all this wealth andinfluence is the growing doubt over the question of whether or not a realholocaust ofsix million Jews ever actually took place". The author then goeson to state what he contends are a number of facts which he saysdisproves thatthere was really a Holocaust.

173The applicant has complained about the whole leaflet, but in particularcomplains about the following paragraphs in the article:

"What experts say about theHolocaust

Dr Harry Elmer Barnes, eminent historian, author of 40 books, many standardcollege texts, noted in Rampart Journal, 1967 `It hasbeen demonstrated thatthere 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 prisonsentence in Buchenwald and the Dora camps stated in 1962 "Theclaim that aholocaust took place is an historic lie - the most tragic and most macabreimposture of all time'.

Prof Robert Faurisson, a specialist in Document Analysis at the Universityof Lyon, France, stated on April 25, 1979 `The holocaustlie, which is largelyof Zionist origin, has made an enormous political and financial fraud possible,whose principal beneficiaryis the State of Israel'.

Why the Holocaust campaign?

Hardly a week goes by when there are not stories in the press, on TV news ormovies about the alleged holocaust. What is the longrange design for thisconstant attempt to fill Germans and indeed all Christians with a feeling ofguilt over a holocaust which neveroccurred?

*Bernard Postal wrote in Jewish Week, July 14, 1979 `Not until after theHolocaust, did anti-Semitism become taboo. There wasa time when anti-Semiticspeeches were an open factor in national campaigns. The Holocaust puts a tabooon overt anti-Semitism amongupper-level statesmen and publicists!'

*S. E. D. Brown of South Africa, a noted journalist writes, `The holocaustinstils a guilt complex in those said to be guilty andspreads thedemoralisation, degeneration and eventually the destruction of the naturalracial elite among a people. This transfereffective political control to thelowest elements who will cowtow to the Jews'.

*Zionist spokesmen often boast of: `The shattering effect of the holocaust onthe Christian conscience resulting in a feeling ofcollective indebtedness tothe Jews'.

*Massive, unending, US Foreign Aid to Israel is made possible because anyonewho dares oppose these outrageous giveaways is condemnedas being"anti-Semitic" and "insensitive" to holocaust victims.

*The Jews hold an unnatural violent hatred for the German people. Jews seekto turn all other peoples of the world against Germansand keep that nationdivided for all time to come. That is why no peace treaty has ever been signedas yet with Germany and theystill live under allied military occupationlaws.

...

A question of fund raising

The Wall Street Journal quotes the Jewish professional fund-raising consultantfirm of Milton Goldin Co, as saying that the maintheme of Jewish fund-raisingis the holocaust and has been for 38 years. When they don't use the holocaustthe money collectionsharply drops off. Thus the more the press, TV andHollywood promotes the holocaust the more money the United Jewish Appeal andother Zionist funds can extract from gullible people.

Holocaust silences opposition

Jewish leaders have discovered that by repeating holocaust stories over andover again they can instil a guilt complex within allGentiles. Thiseffectively silences most critics of Zionist political goals."

174The applicant contends that this leaflet conveys the imputation pleadedat par 2(f), being:

(f)that the ethnic group who live as Jews have perpetuated and areperpetuating a "myth" for their own political purposes, beingthe Holocaustperpetrated by the leaders of the Nazi Party in Germany, which allegation bythe respondent imputes that Jews,per se, are fraudulent, liars,immoral, deceitful and part of a conspiracy to defraud the world (or theremainder of it).

175In this leaflet, the author attempts to put forward a number of "facts"which he asserts prove that the Holocaust could nothave occurred. The leafletcontains statements that there are "real doubts" about whether a "holocaust of6 million Jews ever actuallytook place", and makes reference to the "allegedholocaust" and "a holocaust which never occurred". Using these "facts" theauthorthen goes on to state what he believes are the motives behind Jewsperpetuating the "holocaust lie". Among those alleged motivesare makinganti-Semitism taboo; instilling a guilt complex in those said to be guilty; andfor fund raising for both Jewish groupsin the US and for Israel itself. Tostate that Jews have invented an historical event in order to profit from itclearly imputesthat Jewish people are fraudulent, liars, immoral, deceitfuland part of a conspiracy to defraud the world (or the remainder of it). Thatis made explicit by the quotation attributed to Professor Faurisson:

"The holocaust lie, which is largely of Zionist origin, has madean enormous political and financial fraud possible whose principalbeneficiaryis the State of Israel."

Accordingly, I find that imputation 2(f) is conveyed by this article.

176I am not in a position to determine, as a matter of fact, whether the claimmade by the author of the pamphlet that the Holocaustnever occurred is true ornot. I do not have the evidence which would be needed to enable me to makethat determination, assumingthat the matter is susceptible of proof in acourt. As Gray J observed inIrving v Penguin Books Ltd[2000]EWHC QB 115 at[1.3], that is a task for historians whose role it is to providean accurate narrative of past events; whereas my role is to determinewhetherthe public dissemination of the leaflet by Mrs Scully in Launcestoncontraveness 18C of the RDA.

177In my view, a leaflet that conveys an imputation that Jews are fraudulent,liars, immoral, deceitful and part of a conspiracyto defraud the world isreasonably likely to offend, insult, humiliate or intimidate Jews in Australia.This would be so regardlessof whether or not the leaflet made mention of theHolocaust. However, the fact that the imputation arises in the context of adebateabout the Holocaust makes it even more likely that the leaflet wouldcause offence. This is particularly so owing to the inflammatorylanguage usedin the leaflet, as well as the fact that it is unambiguously dismissive of theJewish view of the Holocaust. I thereforefind that this leaflet contraveness 18C.

178In par 22 of the respondent's written submissions the followingappears:

"If Jews were really stuffed into gas chambers and gassed by themillions, then some type of proof should be made available. In theIrving-Lipstadt case in London, Judge Gray was surprised that so littleevidence was presented for the existence of gas chambers. He had expectedalot of evidence, but was given none. TheLipstadt side were not evenable to produce a photo of the holes in the roof through which the pelletscould have been thrown."

179The following comments should be made about that submission. First, theissue before Gray J was whether Professor Lipstadt'sbook, "Denying theHolocaust - The Growing Assault on Truth and Memory", libelled David Irving.The book accused Irving (inter alia) of being a spokesperson forHolocaust denial, who frequently denied that the Nazis embarked upon thedeliberate planned exterminationof Jews, and who asserted that it is a Jewishdeception that gas chambers were used by the Nazis at Auschwitz as a means ofcarryingout such exterminations. The book also accused Irving, in denyingthat the Holocaust happened, of misstating evidence, misquotingsources,falsifying statistics, misconstruing information and bending historicalevidence so that it conforms to his neo-fascistpolitical agenda andideological beliefs. A defence of justification was upheld.

180Gray J concluded, in a judgment of 202 pages at [13.91]:

"... no objective, fair-minded historian would have seriouscause to doubt that there were gas chambers at Auschwitz and that theywereoperated on a substantial scale to kill hundreds of thousands ofJews."

and at [13.9] and [13.51] found that Irving had misrepresented and distortedthe historical evidence which was available to him. In the light of thesefindings, I am unable to accept that the respondent gains any assistance orcomfort from the decision of GrayJ inIrving.

181In the respondent's affidavit (page 46), the following justification isoffered in relation to this leaflet:

"Any one who cares to read this leaflet will see that there hasbeen solid information available for decades to cast doubt on to theacceptedversion of "The Holocaust". The essence of the argument is really whether ornot homicidal gas chambers were used to killany people. In the next severalpages I provide enough information to prove thatNO! THERE WERENO GASCHAMBERS AT AUSCHWITZ OR AT ANY OTHER GERMAN DETENTIONCAMP.

I am also submitting 8 hours of video evidence and numerous books.

But as a defence against accusations of racial vilification etc, I must makethe point that many, many hateful lies have been madeagainst the German peoplefor nearly 90 years. Whenever a gross lie is exposed as a lie there is neveran apology to the victimnation (usually Germany) and no apology to thefamilies of the innocent individuals who suffered imprisonment and torture andexecutionfor crimes not committed.

Then the job of publicising the exposure of the gross historical lie fallson to self-funded groups of historians and individualssuch as me who struggleagainst the inertia of government-funded `academics' who are too cowardly toadmit that they have been peddlinglies for decades.

HISTORICAL LIES ARE VERY HURTFUL TO INDIVIDUALS OF VICTIM NATIONS SUCH ASGERMANY.

One of the most abominable books of lies ifHitler's WillingExecutioners by the Jew Daniel Goldhagen. It contains no research orscholarship, justSHEER NONSENSE and it is WORTHLESS.

SO, HOW COME IT IS PERMISSIBLE FOR SHEER NONSENSE AND WORTHLESSSCHOLARSHIP TO CONTINUE ITS VILIFYING SLANDER AGAINSTALL GERMANPEOPLE?

That vile book which deliberately vilifies all German people continues to besold, promoted and discussed as though it is scholarly,and only very, veryrarely is its true aim revealed - the aim of denigrating all Germanpeople.

Somehow German people have lost the right to be hurt by lying slander. Butunder our laws of Equal!! Rights, Jews are able to promotes(sic)theirhideous lies, and we the truth-tellers are not allowed to question theirhideous lies."

(bold and underlining in original)

182One may "cast doubt on the accepted version of `The Holocaust'" withoutcontravention ofs 18C. The leaflet goes beyond that objective, becauseof the imputation which I have found the leaflet conveys. The balance of theparagraphsquoted above appear to assert that it is legitimate to engage inracial vilification of the Jews because some persons who are Jewshave engagedin real or imagined slander of the German people. There is no merit in thiscontention.

183The respondent contends that the leaflet:

-was distributed for a genuine academic purpose(s 18D(b));

-is "overwhelmingly fair and accurates 18D(c)(i)"; and

-is also covered bys 18D(c)(ii) "because it will combat the racialdiscrimination and prejudice currently suffered by the German people who arevilified by Jewishfilm directors such as Steven Spielberg who promote hatredof the German race."

[Affidavit p2(g)]

184The videos to which I earlier referred and the book "The Holocaust Industry- Reflections on the Exploitation of Jewish Suffering"touch on or cover thesame general subject matter as this leaflet. I declined to accept thosesources as evidence of the facts,but they may be admissible on thes 18Ddefence to show that the general subject matter of this leaflet is a matter ofpublic interest, and that some other persons professto hold views on thegeneral subject matter similar to those expressed in the leaflet, but I wouldlimit their use to that extent.

185There is a line between legitimate criticism, and prejudicial vilificationof the Jewish race and people. Jews are as opento criticism, and theirbeliefs are as open to scrutiny, as much as is the case with any one else. Iaccept that the views expressedin the leaflet accord with the respondent'ssubjective opinions on the topics covered by the leaflet. But this isinsufficient ofitself to establish a defence unders 18D.

186I do not accept that the respondent distributed the leaflet reasonably, orin good faith for a genuine academic purpose. Heraffidavit does not establishthat this is so, but rather it suggests that it is not. If, as Mrs Scullysays, available informationonly "casts doubt" on the accepted version of the"Holocaust", then distribution of a leaflet conveying the imputation which Ihavefound is neither reasonable nor in good faith, nor can it be in legitimatepursuit of any academic purpose. At p 54 of her affidavit,an extractfrom an unidentified publication refers to the "Holocaust extortion racket" andto "Holocash" engaged in by "HolocaustSwindlers". This is amongst thematerials on which the respondent relies as justifying her distribution of theleaflet. That confirmsthe impression gained from a reading of the leafletitself, and from the whole of the evidence, that Mrs Scully is a personwho holdsstrongly anti-Jewish views, and that this leaflet was distributedwith the intention of vilifying Jews. In the context of the RDA,if that wasthe intention underlying the distribution of the leaflet, then reasonableness,good faith and genuineness of purposewould not be found.

187Nor is the leaflet a "report" in the sense that this expression is used ins 18D(c)(i) of the RDA (that is, as referring to the media reporting of acurrent event [see Explanatory Memorandum p 11]), nor is it fair, asit isthe product of the respondent's anti-Jewish bias. The notion of a "faircomment" is derived from the law of defamation. Thelaw of defamationdistinguishes between a comment, and a statement of fact. It is not alwayseasy to draw that distinction: seefor example, Fleming,The Law ofTorts 9^th Ed. 1998 at pp 648-649. The imputation which Ihave found is a factual allegation that Jews have invented the Holocaust fortheirown financial gain, rather than a comment upon some substratum offact.

(f)Untitled document appearing at page 30 of the applicant'saffidavit

188This document appears to be an extract from a letter written by an unnamedperson to a Rabbi Fox. It is one page in lengthand contains two columns. Itis described in the respondent's affidavit as "an odd page out of somenewsletter" (p 76). It hasa handwritten annotation stating that it wasreceived in a mailbox on 6 April 1996. It was not submitted by either partythat thefact that the letter appears to be an extract only from a largerdocument was of any significance. The leaflet accuses Jews of promotingthedissolution of "all things Anglo/Australian" through immigration and theassimilation of ethnic communities. It also accusesJewish teachings ofpromoting sodomy and intercourse with infants, and describes Judaism as "worsethan a Satanic Cult".

189The applicant complains about a number of paragraphs that appear in thisleaflet. In the first column, the following paragraphappears:

"Further in the article it would seem that Galatians 3:28 is anaffront to Jews and a myriad of non-Christians; but nary a word thattheflourishing of other faiths in this Christian country might be more than a meresuperficial affront; it is in fact a downrightthreat to the continuedexistence of Christianity. That to you, Rabbi Fox, is clearly to be approvedof, as you show concern onlyabout every other faith - not least your own. Inother words Christianity must make room for all-comers, and soon there will beno place anywhere for Christianity in Australia.

The applicant also makes complaint about the following paragraphs thatappear in the right hand column of the leaflet:

"With the exception of the Asian and other very differentlooking peoples, the ethnic communities will assimilate; (including yourown,though for cultural reasons to a lesser extent, for which assimilation is somegenuine anguish on your part) and this to theaccompaniment of much insinceresolicitous concern from the likes of you, as the non-Jewish ethnics themselvesare as expendableas are two-legged cannon fodder to a field commander in thedrive to abolish as a viable concept the Anglo-Australian ..."

"To something not derived from the article: I have a book by one, ElizabethDilling (1894-1966) `The Jewish Religion: Its Influence Today'from theHeritage Bookshop. I turn to page 22 and it says, `When a grown man hasintercourse with a little girl it is nothing, forwhen the girl is less thanthis - that is, less than 3 years old - it is as if one puts the finger intothe eye - tears come to theeye again and again, so does virginity come back tothe 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 andintercourse with babies is the prerogative of the adultTalmudic man, incontrast to Christ's beautiful teachings concerning little children.'

There is much, much more of an equally repellent nature on this and otherTalmudic topics in her priceless book.

I cannot understand why anyone could continue to adhere to this worse than aSatanic Cult that you call Judaism when they read this.What do your women sayabout it? Do they approve? Or is the truth about your `religion' carefullyhidden 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 unspeakablecrimes againstinfant girls expunged for all eternity from your approved Talmud, then you mustbe in agreeance with such `sacred'teachings. That comment, of course, wouldbe equally applicable to the rest of you rabbis, planet wide."

190The applicant contends that imputations (b), (d), (e) and (h) areconveyed by this leaflet:

(b)that the philosophy and teachings and practice of Jews is based upon alearning (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, bytheir nature control pornography both in America and Russia;

(e)that Jews,per se, exhibit a moral attitude which is antithetical toAustralian values (described as `anti-Christian');

(h)that Jews are seeking to control the world, or already have gained thatcontrol, with the intention of destroying `White ChristianCivilisation' andthat Jews are `lying frauds ... trying to force the White race tomongrelise'.

191In relation to this leaflet, the respondent contends that:

"In an age when thousands of babies and toddlers are being rapedto death in front of video cameras, it is of paramount public interesttoprotect all children from such torture.Section 18D(b) gives protection to thedistribution of this leaflet, because a filthy source of `religious' literaturewhich promotes this horrificpractice needs to be exposed in the publicinterest."

(Affidavit p 2 par (h))

192Imputations (b)(ii) and (iii) are drawn directly from the leaflet itself.The passage that quotes Elizabeth Dilling's book refersto "a grown man[having] intercourse with a little girl", and is said by Dilling to be "thestandard doctrine of the whole Talmudon baby girls. Sodomy and intercoursewith babies is the prerogative of the adult Talmudic man ..." Following on fromthis passage,the author of the leaflet describes Judaism as "worse than aSatanic Cult". Accordingly, I find that imputations (b)(ii) and (iii)would beconveyed to an ordinary reasonable reader. However, in relation to imputation(b)(i), I do not consider that an imputationthat the Talmud itself, or thephilosophy, teachings and practices of Jews "ought be stamped out" arises fromthis leaflet.

193Imputation (d) is framed in terms of Jews being anti-decent livinginthe sense that they, by their nature, control pornography in both Americaand Russia. In other words, the imputation is specific as to the wayin whichJews are said to be "anti-decent living". However, no mention is made of Jewscontrolling pornography anywhere, let alonein specific countries. Whilst itis true that the leaflet does ask the question: "Why can't such Talmudicwritings be classed aschild pornography ...?", this is quite a different thingto suggesting that Jews control pornography. Imputation (d) would not beconveyed to an ordinary reasonable reader of this leaflet.

194As to imputation (e), the imputation suggests that the leaflet uses theterm "anti-Christian" to describe the moral attitudeof Jews. However, nowherein the leaflet is the word "anti-Christian" used. Nor is such a meaningimplied. Furthermore, nowherein the leaflet is the alleged moral attitude ofJews contrasted specifically with Australian values. It is, instead,contrastedwith values and beliefs that the author seeks to attribute toChristians in Australia, which is not the same thing as contrastingit withAustralian values. In so contrasting Jewish attitudes with Christian values,the author does not do so in a way that Jewishattributes are described (orimplied) as "anti-Christian". I do not consider that imputation (e) would beconveyed to an ordinaryreasonable reader.

195I do not consider that imputation (h) would be conveyed to an ordinaryreasonable reader of this leaflet. The leaflet doesnot suggest that Jews areseeking to control the world, or that they have the intention of destroyingWhite Christian civilisation. It is true that the leaflet makes reference towhat Jews (or at least one member of the Jewish community in Australia, namelyRabbiFox) apparently "want to see happen" - namely, "the completedismantling/dissolution of all things Anglo-Australian..." but thisof itselfdoes not suggest that Jews are seeking to control the world or have theintention of destroying White Christian civilisation. I do not think thatimputation (h) would be conveyed to an ordinary reasonable reader of thisleaflet.

196As tos 18C, the applicant gave evidence in cross-examination as tohis understanding of the passage reproduced in the leaflet that purportstoquote an extract from the Talmud. His evidence was that he had never read sucha passage in the Talmud, but had seen it referredto in books that sought togive the passage the same interpretation as that given by Elizabeth Dilling.However, no Jewish personhe had ever come across adopted that interpretation.Mr Jones also said that, in any event, taken in context passages of thiskindrelate not to the status of the perpetrator of the act but rather to thestatus of the victim - how somebody who has been raped asa child can then rere-integrated fully within the Jewish community; and that it is both his view,and his understanding of the viewsof Jews in general, that the idea of a grownman having sex with a child would be regarded as "completely repugnant andhorrificbehaviour".

197Although the applicant is not, and does not profess to be an expert on theTalmud, I accept his evidence as to his understandingof Jewish views on suchpractices as paedophilia. As he said Jews consider such practices to becompletely repugnant and horrific,it follows that a piece of literature thatseeks to attribute to Jewish teachings the promotion of such practices, isreasonablylikely to both offend and insult Jews in Australia. The same can besaid for an imputation that Judaism is "worse than a SatanicCult". By itsclear words, such an imputation attributes to Judaism and its followers thattheir religion is worse than a cult thatpractices the worship of Satan. Tothe extent that the leaflet conveys an imputation that compares the worship ofSatan to the practicesof Judaism, I consider that it is reasonably likely tooffend and insult Jews. I also consider that the leaflet was published inorder to comment specifically on the author's belief as to Jewish practices.In this sense, the ethnicity of Jews was a factor inthe respondent's decisionto publish the leaflet. I accordingly find that this leaflet contraveness 18C, subject to the availability of a defence unders 18D.

198As tos 18D, the respondent contends that "Section 18D(b) givesprotection to the distribution of this leaflet, because a filthy source of`religious' literature which promotes this horrificpractice needs to beexposed in the public interest". The respondent has had no formal education inthe Jewish religion, she isnot an expert in the Talmud, nor has she spoken toany experts. Neither Mr Jones, nor any Jewish person he has ever comeacross,treats anything in the Talmud as conveying the message described byElizabeth Dilling. In those circumstances, it cannot be saidthat therespondent was acting reasonably in distributing the leaflet in question. Noram I satisfied that in so doing she actedin good faith. The leaflet mayreflect views which the respondent holds but her purpose in disseminating thearticle was to vilifyJews as part of her campaign to "stamp out" Judaism.

199For the same reasons, the publication was not made for any genuine purposein the public interest, but as a result of the respondent'santi-Jewishprejudices.

(g)Untitled list of book synopses

200This leaflet, of one page in length, was received in a mail box on 12 April1996. It reproduces synopses of some 21 books. A handwritten annotationappearing on the side of the leaflet advertises that the books are "on sale atHart Street Market". Therespondent has admitted that this handwriting ishers. In the middle of the page there is a picture of Vladimir Lenin, with theword "Jew" handwritten across his forehead. The respondent has also admittedthat this handwriting is hers and that the leafletwas distributed with thehandwritten annotations on it.

201The respondent stated in cross-examination that she did not herself do thesynopses of each book, but rather photocopied thesynopses from a newspapercalled "The Truth at Last". The respondent stated that this newspaper ispublished in Marietta, Georgia,USA. She also said that she had read at leastten of the books described in the leaflet.

202The applicant complains of, in particular, ten of the synopses appearing inthis leaflet. The first three synopses of whichcomplaint is made appear onthe far left hand column of the leaflet, under the heading "Books by JewishWriters". The first of thesebooks is entitled "You Gentiles" by MauriceSamuel. The synopsis reads as follows:

"A Jew describes `why we are not loyal citizens'. Also `why wedestabilise nations' and how Jews are disciplined to the detrimentof theGoyim."

203The second synopsis is entitled "The Protocols of the Learned Elders ofZion". The synopsis reads:

"Original minutes of the Jews' secret plan for the New WorldOrder, first revealed in Russia in 1905 ...."

204The third synopsis is entitled "Behind Communism" by Frank Britton. Thesynopsis describes this book as:

"the single greatest book ever written exposing the Jews behindthe world Communist conspiracy."

205The next two synopses appear in the second column of the leaflet underthe heading "Actual Origin of the Jews - Who Are ThesePeople Who CallThemselves Jews?". The first title under this heading is "The ThirteenthTribe" by Arthur Koestler. The synopsisstates that the book "proves thattoday's `Jews' never resided in ancient Palestine. They originated inKhazaria, in South Russiaand converted to Judaism in the year 800 AD. Theymake up 82% of world Jewry. Koestler says they have no historic claim toIsrael." The second book under this heading is entitled "Facts are Facts" byBenjamin Freedman, who is described in the synopsis as "a wealthyJewish WallStreet banker in the 1950s". The synopsis states that "he details why the Jewsare not related to the `Chosen People'of the Bible. Freedman says they areKhazars from South Russia and are not true `Jews'".

206The next synopsis describes a book called "The New Crowd" by Barry Rehfeld.This synopsis states: "A Jewish author boasts abouthow upstart Jews seizedcontrol of Wall Street in the 1980s". Following this synopsis is a synopsis ofthe book "Merchants of Debt"by George Anders. In particular, this synopsisstates that the book reveals "more secrets of Jewish businessmen".

207In the third column of the leaflet, appearing below the picture of Lenindescribed above, is a synopsis for the book "Lenin"by D Volkogonov, who isdescribed as a former KGB official. The synopsis states that the book "revealsLenin as the diabolical founderof the murderous Gulag system. Proof thatLenin was a Jew. How he seized power over Russia". The fourth column of theleafletcontains a synopsis of the book "The Hidden Empire" by William DudleyPelley. The synopsis states: "how the Jewish `State withina State' controlsthe government". In the fifth column, there is a synopsis of the book entitled"Iron Curtain Over America" byColonel John Beaty, US Military IntelligenceOfficer. The synopsis describes, among other things, "how they [Jews] foundedCommunism,why World War II was unnecessary, how the Jews infiltrated andseized control of the Democratic Party".

208The applicant contends that this leaflet conveys the imputations pleaded atpars (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 alearning (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, bytheir nature control pornography both in America and Russia;

(e)that Jews,per se, exhibit a moral attitude which is antithetical toAustralian values (described as `anti-Christian');

(g)that part of the conspiracy of World Jewry was a Bolshevik Revolution in1917 and that Jews perpetrated the purges in the SovietUnion thereafter;and

(h)that Jews are seeking to control the world, or already have gained thatcontrol, with the intention of destroying `White ChristianCivilisation' andthat Jews are `lying frauds ... trying to force the White race tomongrelise'.

209Imputation (a) is presumably said to be conveyed by this leaflet throughthe various references in it to Jews being "behindthe world communistconspiracy". I say "presumably" because no specific submissions were made bythe applicant on how this imputationis said to arise from the leaflet. Theapplicant submitted that this conspiracy is a conspiracy to inflict communismon the world. Presumably too, the imputation of Jews being "pro-tyranny" issaid to be conveyed by the reference to Lenin being a Jew. However,there areno specific references to Jews being anti-democracy, anti-freedom orpro-tyranny. Nor, in my opinion, can inferences bedrawn from the leaflet alongthe lines of those specific imputations, or imputations that are substantiallysimilar to those imputations. To do so would be to give to the leaflet astrained or artificial meaning. I do not think that imputation (a) is conveyedby theleaflets.

210The 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"), noreference is made in that synopsis to the fact that the Talmud ought to bestamped out, promotes sodomyand paedophilia, or that Judaism is worse than asatanic cult. Similarly, none of the synopses describes Jews as anti-decentlivingbecause they control pornography; nor does any synopsis describe Jews asexhibiting a moral attitude which is antithetical to Australianvalues. Mostof the books are described as being written by American authors, and to theextent that Jewish values are contrastedwith another group's values, it isAmerican (and not Australian) values that are so contrasted. Imputations (b),(d) and (e) arenot conveyed by this leaflet.

211The leaflet does not contain any assertion that Jews have the "intention ofdestroying White Christian civilisation" or thatJews are "trying to force theWhite race to mongrelise" which form part of imputation (h).

212It has to be recalled that the leaflet in question is a list of books whichare on public sale, and a synopsis of those books. The synopsis for one bookasserts that the book "exposes the Jews behind the world Communist conspiracy".The synopsis for anotherdescribes Lenin as a Jew, and asserts that he was thefounder of the murderous Gulag system. The synopsis for a third contains adescription by a Jew as to "why we destabilise nations". In a general sense,the leaflet is anti-Jewish in character, inasmuch asit lists books which areavailable for sale, which, if the synopses are correct, are themselves likelyto be anti-Jewish.

213However, in my view, it is an exaggeration of any message which the leafletconveys to assert that it conveys an imputationin terms of (g) or the balanceof (h). I do not think that it is appropriate to combine statements in thevarious synopses so asto treat the leaflet as conveying an imputation arisingfrom that mosaic. Even if such combination were appropriate, it falls shortofconveying the particularised imputation.

214In my view, contravention of s 18C has not been established inrelation to this leaflet.

(h)Untitled document with handwritten annotations

215This leaflet appears to be an extract from a larger article or book.Neither party submitted that the fact that the documentappears to be part onlyof a larger document was of any significance. A handwritten annotationappearing at the top of the leafletstates that it was received on 3 June 1996.

216The leaflet purports to describe how the US has come under the control of"International Zionist Jews" who are said to haveacted to the detriment of"White Christian Americans" through the establishment of the Federal ReserveSystem, the relaxation ofimmigration laws, and through involving the US inwars on their behalf.

217The applicant has objected to the whole article, but has taken exception toparticular paragraphs which I will set out in fullbelow:

"But something drastic and terrifying took place in the earlydays of the 20^th century. White Christian Americans lost control oftheir country. The international Zionist Jews took over the economies ofAmericain 1913, when they put their alien, Babylonian Federal Reserve Systeminto operation. This system was not Federal by any twist ofthe imagination,but was made up of eight privately owned banks, controlled by the anti-Christsof Talmudic Judaism.

Since that time, these alien `leeches' have `bled off' trillions of theLord's money, as they have subtly changed our laws to allowa flood of aliensto invade our shores. Even `brain-washed' Christians have been caught up inthis surge of `national suicide' untiltoday, in 1995, we are in danger oflosing our majority status, and our control of the country which was onceChristian America!

One of the main `front' organisations for the International Zionists, whoopenly declared their intention of `destroying White ChristianCivilisation'was the Council on Foreign Relations (CFR), founded in 1921, by a group ofZionist controlled Internationalists. Bythe time America became embroiled inWorld War II, and against the expressed will of the majority of our people, theDemocratic Partyand FDR who had become `Zionist puppets' were in control ofour national destiny, while the Republican Party was well on its wayto fallingunder this same control. Today the Zionists have been so successful, that anIsraeli government official can openly brag:`We now have the best Congressmoney 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'ssordid history! The Jewish International bankers have used Christian decencyand goodness as a cover for their predatorytactics, and have supported bothsides and made countless billions off the suffering and blood-shed of every warwe have fought inthe last century. No wonder their leaders can say: `Wars arethe Jews' harvests!'"

Further down the page, the following paragraphs are reproduced:

"In the psychological war waged by the communist world againstthe USA they perpetuated a gigantic hoax to the American people, whichcost ushundreds of billions of dollars and the lives of some of our finest youth, allbacked by International Zionism, in theirages-old effort of One Worldcontrolled via their New World Order.

Today the question of Revelation 13:4 is a logical one as we ask: `... whois like unto this Jewish beast, and who can make war againstthem?'

...

I remember wondering what my hero, General George Patton meant when he saidin North Africa: `We're fighting on the wrong side inthis war. Communism ismuch worse a danger to the world than Germany will ever be'. Now I understandwhat he meant. For we foughtagainst our own kinsmen, under Jewish direction!The Rabbi who stated that `Wars are the Jews harvests', back in 1859, beforeourWar between the States, elaborated when he said: `through wars we kill offChristians and obtain control of their gold. We havealready killed 100million of them, and the end is not yet!' Yet our stupid, `brain-washed'Judeo-Christian clergy, still insistthat these anti-Christs are God'sChosen.

218There is also a handwritten annotation appearing along the side of thisleaflet which reads as follows:

"THE WHITE CHRISTIAN NATIONS ARE THE TRUE SEED OF ISRAEL. `THESYNAGOGUE OF SATAN - WHO SAY THEY ARE JUDEAN - BUT ARE LYING FRAUDS'ARE TRYINGTO FORCE THE WHITE RACE TO MONGRELIZE. For good books come to the Hart StreetMarket - Sundays 8.30-2 pm. (SHOWGROUND)."

The respondent admitted in cross-examination that this handwriting washers.

219The applicant contends that imputations (a), (d), (e), (g) and (h) areconveyed 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, bytheir nature control pornography both in America and Russia;

(e)that Jews,per se, exhibit a moral attitude which is antithetical toAustralian values (described as `anti-Christian');

(g)that part of the conspiracy of World Jewry was a Bolshevik Revolution in1917 and that Jews perpetrated the purges in the SovietUnion thereafter;and

(h)that Jews are seeking to control the world, or already have gained thatcontrol, with the intention of destroying `White ChristianCivilisation' andthat Jews are `lying frauds ... trying to force the White race tomongrelise'.

220The respondent has stated in relation to this leaflet:

"As the White race is the only race being forced to becomemulti-racial, it is in their interest to know that their destruction hasbeenplanned for more than a century. The quotations are either Biblical or fromJewish sources. The knowledge of truth is of publicinterest and is thuscovered by 18D(b) and (c)(i) and (ii)."

221The applicant has not taken me to any specific passages in the leafletthat are said to convey imputation (a). There are no specificreferences inthe leaflet to Jews being anti-democracy, anti-freedom, or pro-tyranny.Although there are references to "internationalZionist Jews" taking over theeconomies of America, embroiling the US in various wars, and taking control ofthe US Congress, I donot think that these references necessarily convey theimputation sought to be given to them by the applicant. To say that Jewsarein control of the US does not, in my opinion, necessarily mean that they areanti-democracy or anti-freedom, nor does it meanthat they are pro-tyranny. Ido not think that these imputations would be conveyed to an ordinary reasonablereader.

222The applicant has also not taken me to any passages that are said to conveyimputations (d), (e) or (g). Again, there are nospecific references to Jewscontrolling pornography in the US or Russia; to Jews exhibiting a moralattitude which is antitheticalto Australian values; or to Jews instigating theBolshevik Revolution in 1917 or the purges in the Soviet Union thereafter. Astoimputation (e), like other leaflets distributed by the respondent, thisleaflet appears to have been written by an American author,and does not advertto so-called Australian values. As to imputation (g), although the leafletdoes refer to "International Zionism"backing Communism, it does not implicateJews in the Bolshevik Revolution in Russia in 1917 or in the purges in theSoviet Unionthereafter. Accordingly, imputations (d), (e) and (g) would notbe conveyed to an ordinary reasonable reader of this leaflet.

223Imputation (h) is drawn directly from the typed text and the handwrittenannotations that appear on the leaflet. In the thirdparagraph of the leafletthere is a direct reference to "International Zionists" openly declaring "theirintention of `destroyingWhite Christian Civilisation'". The handwrittenannotation refers to the "`Synagogue of Satan - who say they are Judean - butarelying frauds' are trying to force the White race to mongrelise". Althoughthis handwritten annotation does not mention Jews directly,I consider that anordinary reasonable reader would conclude from the words "Synagogue of Satan"that the author of the annotationswas referring to Jews, as an ordinaryreasonable reader of fair and average intelligence would be aware that a Jewishplace of worshipis called a synagogue. As to that part of the imputation thatrefers to Jews "seeking to control the world, or already have gainedthatcontrol", I consider that such an imputation would be conveyed by the referenceto "International Zionism" having an "ages oldeffort of One World control viatheir New World Order". I accordingly find that imputation (h) would beconveyed by the leaflet.

224As to s 18C, I consider it to be self-evident that a leaflet thatconveys an imputation that Jews have the intention of destroyingWhiteChristian civilisation, are lying frauds, and are trying to force the Whiterace to mongrelise, is reasonably likely to offendand insult Jews inAustralia. I also consider it self-evident that at least one reason for theleaflet being published was to expressthe author's views about Jews. Thetheme of the leaflet is how Jews have apparently taken control of the US, andthe attendant problemsthis has caused for that country and for the world.These problems are all attributed to the "International Zionist Jews". I findthat s 18C is contravened by this leaflet.

225The applicant relied onJordan v Burgoyne [1963] 2 QB 742, inrelation to this leaflet. The UK Court of Appeal took the view on the facts ofthat case that reasonable citizenswould be provoked beyond endurance by aspeech which asserted that they were mere tools of the Jews and had fought onthe wrong sideof the War. However, although this leaflet contains somestatements to that effect, they are not included in the list of imputationsonwhich the complaint is founded.

226In the respondent's affidavit (p 103) she accepts that this leaflet "doesmake some harsh statements about Zionist Jews whoinflicted such pain andsorrow onto my homeland, Russia". However, she then goes on to say that "ifthe Jews can name the Germanpeople as the perpetrators of their calamities,then I, too, can name the perpetrators of the calamities suffered by mypeople". That is not, however, what the leaflet does.

227This leaflet suffers from the same problem as other leaflets, in that therespondent has not established that she publishedthe leaflet either reasonablyor in good faith. The leaflet is openly hostile to Jews. It uses terms suchas "alien leeches", "anti-Christs"and "lying frauds" to refer to Jews andseems to be specifically aimed at provoking Jews and inciting opposition tothem. As theleaflet was not published either reasonably or in good faith noneof the defences in ss 18D(b) or 18D(c)(i) or (ii) can be made out.

General Defences

228I 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 firstargument is that she distributes the leaflets "for the purpose of combatingracial discrimination". Thatmay well be the case. However, as I haveexplained above, in order for an act to contravene s 18C of the RDA, ifthere are a numberof reasons for doing an act, it is enough that at least oneof those reasons is the race, colour or national or ethnic origin ofa person,whether or not it is the dominant reason or a substantial reason for doing theact. In relation to each of the respondent'sleaflets (except the booksynopses), I have found that at least one of the reasons behind therespondent's decision to publish thoseleaflets was because of the ethnicorigin of Jews. Accordingly, the respondent's assertion that she distributedthe leaflets forthe purpose of combating racial discrimination is, in thecontext of Part IIA, irrelevant.

229Her second argument is that all of the leaflets have been previouslypublished by other sources, and some have been publishedwithout anyrepercussions. As I have explained above, s 18D does not provide for adefence of republication. In any event, it wouldbe somewhat strange if aperson were to have a defence to s 18C based purely on the fact that aparticular work had been previouslypublished without complaint. The wordingof s 18C makes it clear that an act will be unlawful if the act isreasonably likely tooffend "in all the circumstances". A Court is thusrequired to assess the objective impact of the act in the circumstances of theparticular complaint. The fact that the same act may not have caused offenceor given rise to a complaint in another place or atanother time is irrelevantto such an assessment.

230The respondent's next argument is that there is "overwhelming evidence" toprove the truth of the applicant's pleaded imputations. However, she alsoasserts that the imputations are "clearly wrong". These two arguments arecontradictory. By saying that theimputations are "clearly wrong", therespondent appears to be asserting that they are not conveyed by the leaflets.However, to saythat there is "overwhelming evidence" to prove the imputations,the applicant appears to accept that such imputations are conveyedby theleaflets, and that she can prove that they are true. In any event I havedetermined that, in relation to each leaflet exceptthe book synopses, at leastone of the imputations contended for by the applicant is conveyed. Inaddition, the respondent has notestablished the truth of any of theimputations. However, even if she were to do so, this would still not exempther leaflets froms 18C, as s 18D does not provide a defence oftruth. Thus, even if her leaflets are true, in order to satisfy s 18D therespondentmust prove that her leaflets were published reasonably and in goodfaith, as well as proving that they fall within one of the categoriesins 18D(a) - (c). As I have determined above, the respondent did notsatisfy me that any of her leaflets fall within these exemptions.

231The respondent also submitted that "no offence was possible, let aloneintended". As to her claim that no offence was possible,I have found thateach of the respondent's leaflets except the book synopses, is reasonablylikely to offend and insult Jews in Australiafor the particular reasonsstated. As to the respondent's claim that no offence was intended, as I haveexplained above, s 18C doesnot inquire as to the intention of the personcommitting the act complained of, but rather the section employs an objectivetestthat assesses the likely effect of the act on the recipient or on thegroup of which the recipient is a member. Accordingly, thisargument isrejected.

232The respondent further submitted that "the discussion of current affairsand history are matters of public interest and protectedby s 18D".Although current affairs and history may well in most cases be matters ofpublic interest, s 18D does not provide a defencebased on public interestalone. Rather, as well as being reasonable and in good faith, an act that ispurportedly done in the publicinterest must also fulfil one or other of thespecific criteria in s 18D(b) or (c)(i) or (ii) before it can be exemptedfrom s 18C. Because of this, an argument based on public interest alonewill not establish a defence under s 18D.

233The respondent also made some submissions in relation to the validity ofs 18C. She stated that in order to be valid, s 18Cmust be limitedto "personal insults", "personal defamation" and where physical harm wasinvolved - not acts that are likely to insultor offend. However, the clearwording of s 18C is that it is unlawful for a person to do an act wherethe act is "reasonably likely... to offend, insult, humiliate or intimidate...". The respondent's submission is thus contrary to the wording ofs 18C, whichdoes not limit the section in the ways proposed by therespondent. Nor has such a limitation been placed on s 18C by the Courtswho have interpreted the section. I reject this argument.

234The respondent further submitted that the RDA should be declaredunconstitutional as, first, it is "impossible to apply [theRDA] to all groupsequally"; and secondly, "for the sake of freedom to communicate politicalmatters" (p 12 respondent's submissions). As to her first argument, two pointsshould be made: one, the fact (if it be a fact) that it is impossible to applythe RDA to allgroups equally does not, of itself, establish a basis fordeclaring the RDA unconstitutional. There are a number of bases for declaringa Commonwealth Act invalid, including that it is beyond the power of theCommonwealth Parliament to legislate in respect of the subjectmatter of thelegislation; or that it infringes one of the implied constitutional freedoms.However, a Commonwealth Act cannot bedeclared unconstitutional merely on thebasis that it is impossible to apply the Act to all groups equally. To theextent that aCommonwealth Act is prohibited from discriminating betweenpersons, it is only laws with respect to taxation that are expressly prohibitedfrom discriminating, and even then the prohibition is on the Act discriminating"between States or parts of States":Constitution s 51(ii). Thesecond point that should be made is that, in any event, the respondent has notestablished that the RDA is in factimpossible to apply to all groups equally.Apart from her bare assertion, she presented no evidence to establish that theRDA operatesin such a way. I accordingly reject this argument.

235Her next argument is that the RDA should be declared unconstitutional "forthe sake of freedom to communicate political matters". It is now wellestablished that the Constitution protects the freedom of communication betweenpeople concerning political or governmentmatters: seeNationwide News PtyLtd v Wills[1992] HCA 46;(1992) 177 CLR 1;Australian Capital Television Pty Ltd vThe Commonwealth[1992] HCA 45;(1992) 177 CLR 106;Theophanous v Herald & WeeklyTimes Ltd[1994] HCA 46;(1994) 182 CLR 104;Lange v Australian BroadcastingCorporation[1997] HCA 25;(1997) 189 CLR 520. Freedom of communication on matters ofgovernment and politics is an indispensable incident of that system ofrepresentative governmentwhich the Constitution creates:Lange at 559.This freedom cannot be curtailed by Commonwealth legislation. However, thefreedom of communication which the Constitutionprotects is not absolute:Nationwide Newsat 51, 76-77, 94-95; Langeat 561. Rather, it islimited to what is necessary for the effective operation of that system ofrepresentative and responsible governmentprovided for by the Constitution. InLange at 561-562 the High Court said:

"... the freedom will not invalidate a law enacted to satisfysome other legitimate end if the law satisfies two conditions. Thefirstcondition is that the object of the law is compatible with the maintenance ofthe constitutionally prescribed system of representativeand responsiblegovernment or the procedure for submitting a proposed amendment to theConstitution to the informed decision of thepeople which the Constitutionprescribes. The second is that the law is reasonably appropriate and adaptedto achieving that legitimateobject or end."

236When a law of a State or Federal Parliament or a Territory legislatureis alleged to infringe the requirement of freedom of politicalcommunication,two questions must be answered before the validity of the law can bedetermined:

"... First, does the law effectively burden freedom ofcommunication about government or political matters either in its terms,operationor effect ? Second, if the law effectively burdens that freedom, isthe law reasonably appropriate and adapted to serve a legitimateend thefulfilment of which is compatible with the maintenance of the constitutionallyprescribed system of representative and responsiblegovernment and theprocedure prescribed by s 128 for submitting a proposed amendment of theConstitution to the informed decisionof the people ... If the first questionis answered `yes' and the second is answered `no', the law isinvalid."

(Lange at 567-568)

237The applicant submitted that the terms of the RDA are constitutionallyvalid, having been made under the provisions of s 51(xxix)of theConstitution, citingKoowarta v Bjelke-Petersen[1982] HCA 27;(1982) 153 CLR 168 asauthority for this proposition. However, the High Court inKoowartawere not concerned with the constitutional validity of the RDAperse, but only with the validity of ss 9 and 12. A majority of the HighCourt held that ss 9 and 12 were valid laws with respect to externalaffairs within s 51(xxix) of the Constitution. The applicant has alsodrawn my attention toBrandy v HREOC(1994-1995) 183 CLR 295, which wasconcerned with the constitutional validity of ss 25ZAB and 25ZAC of theRDA. InBrandy, the High Court held that those sections purported tovest 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 itdepended on s 25ZAC. Nowhere in eitherKoowartaorBrandyis the constitutional validity of the RDA as a whole discussed. However, myattention has not been drawn to any cases that haveimpugned the validity ofthe RDA in general or Part IIA in particular. I accordingly proceed on thebasis that Part IIA of the RDAis valid.

238The applicant also submitted that he relied on the comments of CommissionerCavanough regarding the constitutional validityof Part IIA of the RDA. Atpage 11, after considering the test set out inLange at 567-568 notedabove, the Commissioner stated:

"It is conceivable that the restrictions imposed by s.18C(1) ofthe RDA might in certain circumstances effectively burden freedomofcommunication about government and political matters. However, it seems to methat, bearing in mind the exceptions or exemptionsavailable under s.18D, PartIIA as a whole is `reasonably appropriate and adapted to serve a legitimate endthe fulfilment of whichis compatible with the maintenance of the system ofgovernment prescribed by the Constitution'.

...

The `legitimate end' of the law is, or includes, the fulfilment ofAustralia's international obligations under the International Conventionon theElimination of All Forms of Racial Discrimination which is scheduled to theRDA, especially Article 4 thereof. In my view,this end is compatible with themaintenance of the system of government prescribed by theConstitution."

239Although the RDA does not contain any rule that prohibits an electorfrom communicating with other electors concerning governmentor politicalmatters relating to the Commonwealth, it nevertheless could effectively burdenthe freedom of communication about thosematters insofar as it requireselectors to submit to penalties for the publication of communications or leadsto the grant of injunctionsagainst such publications (cfLange at 568).That being so, the critical question is whether the RDA is reasonablyappropriate and adapted to serving a legitimate endthat is compatible with themaintenance of representative and responsible government, without unnecessarilyor unreasonably impairingthe freedom of communication about government andpolitical matters protected by the Constitution. I agree with CommissionerCavanoughthat a "legitimate end" of the RDA includes the fulfilment ofAustralia's obligations under the Convention. Stated more broadly,thelegitimate end sought to be obtained by the RDA is the elimination of racialdiscrimination. It is not to be supposed that theelimination of racialdiscrimination is a purpose that is incompatible with the requirement offreedom of communication imposed bythe Constitution. In addition, theconstitutionally prescribed system of government does not require anunqualified freedom to publishoffensive matter or perform offensive acts thatare based on race. Indeed, in the same way that the protection of thereputationsof those who take part in the government and political life fromfalse and defamatory statements is conducive to the public good(seeLange at 568), so too is the protection of persons from offensivebehaviour based on race.

240The next question is therefore whether the RDA is reasonably appropriateand adapted to achieve the elimination of racial discriminationhaving regardto the requirement of freedom of communication about government and politicalmatters required by the Constitution. I agree with the Commissioner that,bearing in mind the exemptions available under s 18D, Part IIA of the RDAis reasonably appropriateand adapted to serve the legitimate end ofeliminating racial discrimination. Section 18D, by its terms, does not renderunlawfulanything that is said or done "reasonably and in good faith" providingthat it falls within the criteria set out in subs (a)-(c). I consider thatthose exemptions provide an appropriate balance between the legitimate end ofeliminating racial discriminationand the requirement of freedom ofcommunication about government and political matters required by theConstitution. I accordinglyreject the respondent's argument that the RDAshould be declared unconstitutional "for the sake of freedom to communicatepoliticalmatters".

241On p 3 of the respondent's affidavit, under the heading "Further LegalJustification", the following appears:

"The Constitution of Australia - Theimplied right to freedom of speech

(Lange v A.B.C.)

The Ultimate Authority-"Ye shall know the Truth and the Truth shallset you free" Our Lord Jesus Christ.

Sir Ronald Wilson -"If truth be our measure we have nothing to fearfrom 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 thefacts".

Article 19 of the Universal Declaration of Human Rights - Everyone hasthe

right to freedom of opinion and expression; this right includes freedom tohold opinion without interference and to seek, receiveandimpartinformation and ideas throughany media regardless of frontiers.

IF TRUTH IS OUTLAWED THEN LIES WILL CONTINUE TO

FLOURISH"

(bold and underlining in original)

242I have already dealt with her purported argument concerning theConstitution. In addition, her "justifications" based on whatis said in theBible, and what has been said by Sir Ronald Wilson and John Howard, do notestablish that she is entitled to any exemptionsfrom the operation ofs 18C. The same can be said for her purported reliance on Article 19 oftheUniversal Declaration of Human Rights. A Convention or treatyratified by Australia does not become part of Australian law unless itsprovisions have been validly incorporatedinto municipal law by statute.Although it is now settled that ratification in itself may provide an adequatefoundation for a legitimateexpectation that administrative decision-makerswill act conformably with the Convention or treaty (seeMinister of Statefor Immigration & Ethnic Affairs v Ah Hin Teoh[1995] HCA 20;(1994-1995) 183 CLR273), the present case is not concerned with administrative decision-making.Rather, it is concerned with the application of a valid Commonwealthstatute tocertain actions of the respondent that are said to contravene that statute. Inthose circumstances, it is difficult tosee how theUniversal Declaration ofHuman Rights is relevant to these proceedings.

Relief

243The applicant seeks the following orders:

1.A declaration that the respondent has engaged in conduct rendered unlawfulby Part IIA of theRacial Discrimination Act 1975 (Cth) by havingdistributed the following literature in letterboxes in Launceston, Tasmania andby selling or offering to sell suchliterature at a public market in Launcestonbeing the literature described as:

(a)"The Inadvertent Confession of a Jew";

(b)"The Jewish Khazar Kingdom";

(c)"Russian Jews Control Pornography";

(d)Untitled document appearing at page 25 of applicant's affidavit;

(e)"The Most Debated Question of Our Time - Was There Really a Holocaust?";

(f)Untitled document appearing at page 30 of applicant's affidavit;

(g)Untitled list of book synopses; and

(h)Untitled document with handwritten annotations appearing at page 35 ofapplicant's affidavit.

2.An order that the respondent be restrained from repeating or continuingsuch conduct and the publication or distribution of thesaid material in or tothe same effect.

3.An order that the respondent forthwith deliver to the applicant, JeremyJones, a written statement of apology, signed by theRespondent, in thefollowing terms:

"I, Mrs Olga Scully, do hereby unreservedly apologise to you and to the HobartHebrew Congregation for my conduct in distributionanti-Semitic literature inletterboxes in Launceston, Tasmania, and by selling or offering to sell suchliterature at a public marketin Launceston in contravention of theRacialDiscrimination Act 1975(Cth)".

4.An order that the respondent pay the applicant's costs.

5.Such further or other orders as the Court may deem appropriate.

244In relation to the proposed orders, the applicant submits:

*the Court is empowered to make orders (Human Rights and EqualOpportunities Commission Act 1986 (Cth)s 46PO(4) as amended)requiring a respondent to perform "any reasonable act or course of conduct toredress any loss or damage sufferedby an applicant". State legislation makesspecific reference to the publication of an apology (see for example,AntiDiscrimination Act (NSW) s 113(1)(b)(iiia));

*further,sections 22 and23 of theFederal Court of Australia Act 1976(Cth) grant power to the Court to make any orders which would resolve theissues between the parties. If an apology is not appropriatebecause there isno "genuine contrition" (to take from the area of contempt) then the Courtclearly does have the power to orderthe publication of a retraction in thesame or similar terms; and

*if neither a retraction nor apology were available then the only appropriateorder (other than the declaration and injunction)would be damages, which wouldneed to be compensatory but could include aggravated (as distinct fromexemplary) damages.

Apology and retraction

245During the course of submissions I suggested to the applicant's counselthat,prima facie, the idea of ordering someone to make an apology is acontradiction in terms. Mr Rothman accepted this. Although an apologyhasbeen ordered in proceedings of this type in the past (see, for example,Oberoi v HREOC[2001] FMCA 34), I do not think that an order that therespondent publish an apology is appropriate in these proceedings. Nor do Iconsider thatordering the publication of a retraction is appropriate. In myopinion, a retraction is only appropriate where it has been establishedby anapplicant that what has been published or disseminated by a respondent isfalse. The present proceedings were not concernedwith the truth or falsity ofwhat was distributed by the respondent; rather, it was concerned with whetherher leaflets were reasonablylikely to offend, insult, humiliate or intimidateJews in Australia. Although I appreciate that the truth or falsity of what iscontended in the respondent's leaflets is relevant to this question, as I haveexplained above at [104] the fact that false assertionsare made in a leafletdoes not of itself establish a contravention ofs 18C. In addition, theapplicant's case was that it was the imputations that arose from the leafletsthat were said to cause the requisiteoffence rather than the leafletsthemselves. In those circumstances, it has not been necessary for me todetermine whether whatis said in the respondent's leaflets is in fact true orfalse. In those circumstances, a retraction is not appropriate.

Damages

246The applicant has not specified the loss that he is said to have sufferedas a result of the publication and dissemination ofthe leaflets, nor has heprovided me with a quantification of any such loss. I do not consider thatdamages would be either an adequateor an appropriate remedy in theseproceedings.

Orders

247I accordingly make the following orders:

1.It be declared that the respondent has engaged in conduct rendered unlawfulbyPart IIA of theRacial Discrimination Act 1975 (Cth) by havingdistributed the following leaflets in letterboxes in Launceston, Tasmania andby selling or offering to sell suchleaflets at a public market in Launcestonbeing the leaflets described as:

(a)"The Inadvertent Confession of a Jew";

(b)"The Jewish Khazar Kingdom";

(c)"Russian Jews Control Pornography";

(d)Untitled document appearing at page 25 of applicant's affidavit;

(e)"The Most Debated Question of Our Time - Was There Really a Holocaust?";

(f)Untitled document appearing at page 30 of applicant's affidavit; and

(g)Untitled document with handwritten annotations appearing at page 35 ofapplicant's affidavit.

2.The respondent be restrained from repeating or continuing such conduct.

3.The respondent be restrained from distributing, selling or offering to sellany leaflet or other publication which is to thesame effect as any of theleaflets referred to in Order 1.

4.The respondent pay the applicant's costs.

Associate:

Dated:2 September 2002