Miller v Wertheim [2002] FCAFC 156

FEDERAL COURT OF AUSTRALIA

Miller v Wertheim [2002] FCAFC 156 HUMAN RIGHTS – whether a speech about intra-communal conflicts that allegedly offended a group of persons was made because of the Jewish ethnic origin of those persons Racial Discrimination Act 1975 (Cth) ss 9(1), 9A, 17 and 18C Yap v Granich & Associates [2001] FCA 1735 - cited Webster v Lampard (1993) 177 CLR 598 - cited King-Ansell v Police (1979) 2 NZLR 531 - cited ELIANA FREYDEL MILLER v PETER WERTHEIM AND STEPHEN ROTHMAN N 1464 OF 2001 JUDGES: HEEREY, LINDGREN AND MERKEL JJ DATE: 27 MAY 2002 PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1464 OF 2001

BETWEEN: ELIANA FREYDEL MILLER

APPLICANT

AND: PETER WERTHEIM

FIRST RESPONDENT

STEPHEN ROTHMAN

SECOND RESPONDENT

JUDGE: HEEREY, LINDGREN AND MERKEL JJ

DATE OF ORDER: 27 MAY 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Leave to appeal be granted.

2. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1464 OF 2001

BETWEEN: ELIANA FREYDEL MILLER

APPLICANT

AND: PETER WERTHEIM

FIRST RESPONDENT

STEPHEN ROTHMAN

SECOND RESPONDENT

JUDGE: HEEREY, LINDGREN AND MERKEL JJ

DATE: 27 MAY 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT: 1 The appellant alleges that the respondents have engaged in "Racial vilification, Racial discrimination and Racial incitement" in breach of the Racial Discrimination Act 1975 (Cth) ("the Act"). The conduct of the respondents relied upon by the appellant as constituting "unlawful discrimination" was set out in her Application to the Court as follows: "On 15th August 2000 at the Annual General Meeting of the NSW Jewish Board of Deputies, Mr Peter Wertheim, who was standing down as president, made a speech which vilified and intimidated Jewish people and called them destructive by comparing them to un-Jewish and anti-Jewish groups. He also accused Jewish people of dividing the Jewish community, incited against Jewish people calling for others to 'stand up to those who would divide the community'. He called respectful Jews a 'threat'. The incoming president Mr Stephen Rothman did nothing to censure Mr Wertheim, nor did anyone else with the exception of Mr Otto Waldmann who did speak out against Mr Wertheim's invective. On 18th August 2000 the Australian 'Jewish News' reported Mr Wertheim's speech on its front page." 2 The report of the speech of the first respondent to which the appellant referred is as follows: "The NSW Jewish Board of Deputies must have the courage to stand up to those who would divide the community, outgoing President Peter Wertheim said in a parting address. Describing his four years in the post as a privilege and an honour, he noted that there was a tendency of the Jewish world to polarise. 'The threats are not external, as they have been in the past, they are almost overwhelmingly internal,' he said. It was distressing to see 'a destructive element' trying to divide the community, he noted, citing Messianic groups such as Jews for Jesus and political groups such as Shalom-Salaam and Women in Black as examples. 'Then there's the most distressing of all attempts – from within the mainstream of the community and a small part of the Orthodox community to break off and make out that the Board is not representative of Orthodox interests. 'The Board is of importance second to none in our community, and it's becoming more important. Ours is a broad-based community with many groups vying for support. They all have a place in the sun. We must have the courage to stand up to those who would divide the community, to say 'You don't speak for us', so this community of NSW will remain united.' Praise for Mr Wertheim was led by NSW Attorney-General Bob Debus, who noted that he came from 'that great legal tradition of passionate commitment to the disadvantaged'. Mr Wertheim's involvement in issues included advocacy for Maccabiah bridge victims and a 'moral stance' on Hansonism and Aboriginal matters, he said." 3 The appellant's Application was transferred by a judge of the Court to the Federal Magistrates Court. The respondents applied to a Magistrate, Driver FM, for the summary dismissal of the Application on the ground that it does not disclose any reasonable cause of action alternatively, her proceeding is vexatious or frivolous. The Magistrate, after considering the material relied upon by the appellant, concluded that the appellant's claim, which was based on a number of sections of the Act, "must necessarily fail" and that, accordingly, it was appropriate to summarily dismiss the Application with costs. 4 The appellant purported to appeal against the Magistrate's orders to a Full Court. The respondents submitted that the orders of the Magistrate were interlocutory (see Yap v Granich & Associates [2001] FCA 1735 at [5] and the cases there cited). As the appellant is unrepresented, the objection to competency was made at a late stage, and the Court would be required to consider the merits in any event on any question of leave the Court heard the matter as if it were an appeal. 5 Although the appellant's arguments ranged over a wide area she did not dispute that her claim is based on the first respondent's speech as reported. Indeed, she submitted that the report "was a reliable record of the speech". The appellant claimed that the speech was an unlawful act by reason of ss 9(1), 9(1A)(a), 9(1A)(b), 9(1A)(c), 17(a), 17(b), 18C(1)(a), 18C(1)(b), 18C(2)(a), 18C(2)(b) and 18C(2)(c) of the Act. 6 The speech was made by the first respondent as the retiring President of the New South Wales Jewish Board of Deputies ("the Board"). Under its Constitution a primary function of the Board is to act as a representative body of the Jewish Community in New South Wales. Relevantly, its "Aims and Objects" are expressed as follows: "The Board shall be and act as the central authority and official spokesman of the Jewish community of New South Wales on lay matters and questions and is organised to foster the unity of that Jewish Community, strive for the fulfilment of its aspirations and ensure the continuity and development of its religious, spiritual, cultural and social heritage, and to that end, its Aims and Objects shall be: (a) To secure and safeguard the religious, political, economic, civil and cultural rights, status and interests of Jews resident in New South Wales. (b) To encourage and assist the creative development of Jewish social, religious and cultural life in New South Wales. (c) … (d) To promote unity of endeavour and action with the Jewish Community of New South Wales." 7 The gravamen of the appellant's complaint about the first respondent's speech is that it was likely to be offensive and insulting to members of the Orthodox Jewish Community who did not accept that the Board represented their interests and therefore, so it is said, the interests of the Jewish people as a racial or ethnic group. 8 It is not contended that the Magistrate was incorrect in applying the criterion that summary dismissal is appropriate if it is apparent that the claim "must fail": see Webster v Lampard (1993) 177 CLR 598 at 602. Rather, the appellant contended that the Magistrate was wrong in law and in fact in concluding that her claim must fail. 9 The category of unlawful discrimination most likely to be relevant to the appellant's complaint is s 18C of the Act, which provides: "(1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images, or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people whoa re in a public place. (3) In this section: 'public place' includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place." 10 It is fairly clear from the first respondent's speech, as reported, that he was severely critical of "a small part of the Orthodox community" for allegedly being divisive and breaking "off" from the mainstream of the community, and for claiming "that the Board is not representative of Orthodox interests". The appellant contends that she is a part of the Orthodox Jewish community and that she regards the Board as not representing the interests of that community, which she claims are indivisible from the interests of the Jewish community as a whole. It would appear that there has been some conflict between a part of the Orthodox Community and the Board in relation to its role as a representative body of the Jewish community. In particular, that conflict is said by the appellant to have arisen as a result of the Board allegedly departing from principles she claims are held to be inviolable by members of the Orthodox community. 11 It may be accepted that the appellant has strong views about that conflict and feels the speech was offensive to her, as a member of the Orthodox community. However, relevantly in the present context, s 18C of the Act is concerned with whether a public act complained of was done because of the race or ethnic origin of the person or group reasonably likely to be offended by it. 12 The speech complained of was only reasonably likely, in all the circumstances, to offend the group and the individuals comprising it, who were referred to by the first respondent. That group was the "small part of the Orthodox community" criticised by the first respondent. Taking a broad view of the content of the speech it may, arguably, be capable of being reasonably likely, in all the circumstances, to offend or insult that group and its members because: · they were accused of being divisive and destructive of community unity; · their destructiveness and divisiveness was being compared to the other "Messianic groups" referred to; · the Board was claiming to be, but in the view of that group and its members was not representative of, the interests of the Jewish community or people. 13 However, it is not reasonably arguable that any of these arguable aspects of the speech is capable of being characterised as an act done because of the race or ethnic origin of the group, or of its members, who were being criticised by the first respondent. The group and its members were criticised in the speech because of their allegedly divisive and destructive activities, and not because the group or its members were of the Jewish race, of Jewish ethnicity or because they were persons who adhered to the practices and beliefs of orthodox Judaism. 14 Thus, although it can be readily accepted that Jewish people in Australia can comprise a group of people with an "ethnic origin" for the purposes of the Act (see King-Ansell v Police [1979] 2 NZLR 531), for the reasons set out above we are satisfied that the Magistrate was correct in concluding that it was not reasonably arguable that the act of the first respondent that was complained of by the appellant is an act done because of the race or ethnic origin of any person or group of persons. 15 As there is no reasonably arguable claim of a breach of s 18C it must follow that the claim based on ss 17(1) and 17(2) must also fail as those sub-sections require that, relevantly, there be an incitement etc of an act that is unlawful under the Act. As the speech made by the first respondent was not capable of being unlawful it could not constitute inciting etc of an unlawful act for the purposes of s 17. 16 The appellant also relied upon ss 9(1) and 9(1A) of the Act. The Magistrate was plainly correct in concluding that the appellant's case under those sections must fail. In regard to s 9(1) it is not reasonably arguable that the speech complained of had the purpose or effect of nullifying or impairing the "recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life". Put simply, the first respondent was entitled to express his views on intra-communal conflicts and the appellant was equally entitled to express her opposing views on those conflicts. Those conflicts cannot, reasonably, be characterised as relating to the Jewish ethnic origin or race of any of the person or of the group of persons who may be offended by the views expressed. Section 9(1A) also could have no application. The speech did not involve any requirement "that another person comply with a term, condition or requirement". 17 In view of the conclusions we have reached on ss 9(1) and 9(1A) it is unnecessary to consider whether the claim must also fail as it does not satisfy the other requirements set out in those sub-sections. 18 Thus far, we have considered the matter by reference to the first respondent. It must follow that, as the claim against him must fail, the claim against the second respondent must also fail. However, the claim against the second respondent must also fail as his alleged failure to "censure" the first respondent is not capable, in the circumstances, of constituting unlawful conduct in any event. 19 For the above reasons we are satisfied that no error by the Magistrate has been demonstrated. In the special circumstances of this case, leave to appeal will be granted but the appeal must be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Lindgren and Merkel.