Jones v Scully [2002] FCA 1080

FEDERAL COURT OF AUSTRALIA

Jones v Scully [2002] FCA 1080

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