Equal Opportunity Tribunal of New South Wales CITATION: Hellenic Council Of N S W -V- Apoleski And The Macedonian Youth Association [1997] NSWEOT COMPLAINANT: Hellenic Council of N S W RESPONDENT: Gligor Apoleski NUMBER: 10 of 1995 Mr M Biddulph ( Judicial Member ) TRIBUNAL: Ms M Alt Ms L Mooney GROUNDS OF COMPLAINT: Racial Vilification DATES OF HEARING: DATE OF JUDGMENT: 09/25/1997 Complainant: Mr C Vertzayias McDonnell Vertzayias (Solicitor) Mr P Kintominas (Counsel) LEGAL REPRESENTATIVES: Respondent: Self-represented Mr S Blanks Stephen Blanks & Associates (Solicitor) Dr C Birch (Counsel) JUDGMENT IN FAVOUR OF: Respondent Background The inquiry into this complaint of racial vilification took place on 12th, 13th and 14th February and 12th and 13th August 1996. Two related matters, involving two of the parties to this inquiry, were also heard on 13th August 1996, and the Tribunal's decision in those matters, namely, nos. 9 and 11 of 1996, refers in some instances to this decision. The Complainant in this inquiry, the Hellenic Council of New South Wales, was described by its convenor to the Tribunal as an umbrella organisation representing the full spectrum of the cultural, social and religious Greek/Australian Associations of New South Wales. It wrote to the Anti-Discrimination Board ("the Board") on 10th June 1992 to register a complaint about an advertisement (also referred to as an "article") placed in the Sun Herald newspaper, a Sydney Sunday paper, on 3rd May 1992. The Hellenic Council expressed concern that the article was not only "racist" but had "the ability to create racial hostility". The advertisement, or article, which occupied a full page of the newspaper, was placed, and paid for, by the Macedonian Youth Association, a sporting and social youth organisation. With the assistance of the Board, the Complainant conciliated the matter with the publisher. However, no conciliation was reached with the Macedonian Youth Association (the Second Respondent herein) or with Mr Gligor Apoleski, who was identified by the Association as the primary author of the article (the First Respondent herein). The President of the Board accordingly referred the complaint, as an allegation of unlawful racial vilification, to this Tribunal pursuant to s.94(1) of the Anti-Discrimination Act, and his report into the matter forms part of the evidence in this inquiry. A summary of the main documents filed with the Tribunal by the parties (with the exception of the First Respondent, who did not file any material) follows. Complainant's Points of Claim: 1. Members of the Second Respondent paid for and caused to be published a full page advertisement on page 60 in the Sun Herald on 3 May 1992, titled: "MACEDONIA" Land of legends! Land of glory! But NEVER Greek". 2. The First Respondent was the author of that advertisement. 3. The advertisement contravened the Anti-Discrimination Act 1977 in that the said advertisement constituted distribution or dissemination to the public of matters which promoted, or expressed hatred towards, serious contempt for, or severe ridicule towards, Greeks and Australian citizens of Greek origin on the ground of their race. 4. The distribution and dissemination of the advertisement constituted a public act within the meaning of s.20B(c) of the Anti-Discrimination Act 1977 by the First Respondent and those members of the Second Respondent who had knowledge of, or ought to have known, its contents and proceeded nevertheless to publish it. 5. The First Respondent contravened s.20C(1) of the Anti-Discrimination Act 1977 in composing the subject matter of the advertisement knowing that it would be published as a full page advertisement in the Sun Herald. 6. Those members of the Second Respondent who paid for and/or organised the publication of the advertisement also contravened s.20C(1) of the Anti-Discrimination Act 1977. 7. Particulars of unlawful racial vilification contained in the advertisement: (a) The last sentence of the first paragraph of the advertisement, viz: "Had the misguided Greek community known the truth of their history, they would never have infected Australia with the elements of a cancerous European epidemic known as nationalism, thereby transforming "The Lucky Country" into another arena for foreign dispute." promoted or expressed hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the ground of their race in that it invited members of the (non-Greek) Australian community to regard Greeks and Australians of Greek origin as participating in unacceptable and/or socially destructive behaviour when exercising their democratic rights to hold marches and protest rallies to influence the Australian Government to support the Greek case against the designs of the Former Yugoslav Republic of Macedonia (hereinafter referred to as FYRoM) to be recognised internationally as "Macedonia". (b) The last sentence commencing in the first column and the sentence following it, viz: "The tentacles of these policies have even reached Australia causing high profile politicians to side with the Greek community in the hope of gaining popularity and votes. This is all at the expense of the minority rights of the smaller Macedonian community which migrated to Australia to start a peaceful and happy life." promoted or expressed hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the ground of their race in that it invited members of the (non-Greek) Australian community to regard Greeks and Australians of Greek origin as having questionable allegiance to Australia, implied that members of the Greek community in Australia are, in effect, agents of a foreign power, and sought to arouse hostility and resentment against the Greek community in Australia by insinuating that politicians are courting the votes of the Greek community in an unscrupulous or unprincipled manner. (c) The second paragraph in the fourth column of the advertisement, viz: "Fellow Australians, it seems this fanatical sect of the Greek community is scarring the face of the truly peaceful Greek-Australians when they foster and perpetuate hatred and violence within our society. Our multiculturalism decays into ethnic intolerance and hostility making social cohesion impossible and the one-nation Australia a hoax (the bulk of the Greek community nominated Athens for the Olympics over Melbourne)." promoted or expressed hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the ground of their race in that it invited members of the (non-Greek) Australian community to regard Greeks and Australians of Greek origin as perpetuating hatred and violence, participating in unacceptable and/or socially destructive behaviour, undermining multiculturalism, responsible for ethnic intolerance and hostility, undermining the social cohesion of Australian society, and lacking appropriate or sufficient allegiance to Australia. The reference to the support within the Greek community in Australia for Athens staging the 1996 Olympics over the nomination of Melbourne was a deliberate attempt to provoke hostility and resentment towards Greeks amongst that section of society which is known for its intolerant, anti-migrant, chauvinist views and which is generally opposed to multi-culturalism. (d) The third paragraph of the fourth column of the advertisement, viz: "Well no more! We can only take too much!! Fellow Australians, you have read the facts, now its time we stood up to these hostile fascists. It's these radical community sects that entangle our politicians within the labyrinth of foreign policy, translating foreign issues into domestic ones, costing Australian taxpayers much more money than all the unemployed put together, when all the while foreign dilemmas should be resolved where they came from - overseas." promoted or expressed hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the ground of their race in that it invited members of the (non-Greek) Australian community to regard Greeks and Australians of Greek origin as hostile fascists, being the cause of an unspecified but huge drain on the public purse, participating in unacceptable or socially destructive behaviour, and having questionable allegiance to Australia. The exhortation "..Well no more! We can only take too much!!.. It's time we stood up to these hostile fascists.." attempts to incite unspecified action (violence being clearly not excluded) against the Greek community. (e) The map published in the centre of the advertisement with barbed wire depicting the present international borders between Greece and Bulgaria, and Greece and FYRoM, and in particular the caption "..This part of Macedonia is under the Greek terror of occupation since 1913.." promoted, or expressed hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the ground of their race in that it invited members of the (non-Greek) Australian community to regard Greece as an illegitimate occupying force of the territory in question, ie, the Greek province of Macedonia. The allegation, groundless in historical fact, was intended to depict Greeks as oppressors and to arouse hostility against members of the Greek community in Australia who might advocate or support the Greek case against the designs of FYRoM to be recognised internationally as "Macedonia". 8. The instances of unlawful racial vilification particularised in paragraph 7 above each had a particular tendency to promote hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the ground of their race within the Slav-Macedonian community in Australia. Defence of Second Respondent 1. Paragraph 1 of the Complainant's points of claim is admitted. 2. In regard to paragraph 2 of the Complainant's points of claim the Second Respondent admits that the First Respondent was one of several authors of the said advertisement but does not otherwise admit paragraph 2. 3. Paragraph 3 of the said points of claim is denied. 4. Paragraph 4 of the points of claim is denied and in particular the Second Respondent denies that procuring the publication of an advertisement constitutes distribution or dissemination of any matter to the public. 5. The Second Respondent does not plead to paragraph 5 of the points of claim. 6. Paragraph 6 of the points of claim is denied and the Second Respondent further says that these proceedings are not appropriate to entertain any allegation of a breach of Division 3A of Part 2 of the Anti-Discrimination Act 1977 against individual members of the Second Respondent who are not party to these proceedings. 7. In regard to paragraph 7(a) of the points of claim the Second Respondent denies that the passage from the said advertisement there particularised had the effect therein pleaded and further says that the meaning and intent of the said passage read in the context of the whole advertisement as it would be understood by any reasonable reader did not promote or express hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the ground of their race (hereafter compendiously referred to as "promote hatred of Greeks") but criticised political views alleged to be held by members of the Greek community regarding the history and status of Macedonia and the effect of such views upon the Australian community. 8. In regard to paragraph 7(b) of the points of claim the Second Respondent denies that the passage there particularised had the effect pleaded and further says that the meaning and intent of the said passage read in the context of the whole advertisement as it would be understood by any reasonable reader of the advertisement was criticism of politicians in Australia supporting the policy of the Greek Government against the Government of Macedonia to obtain or increase support from members of the Greek community, and that the Macedonian community was disadvantaged because it had fewer members and consequently less political influence than the Greek community and there was therefore less likely to be favoured by having its views advocated by Australian politicians. 9. In regard to paragraph 7(c) of the said points of claim the Second Respondent denies that the passage from the said advertisement there particularised had the effect pleaded. Further the Second Respondent says that the meaning and intent of the said passage read in the context of the whole advertisement as it would be understood by any reasonable reader was that a group within the Australian Greek community, which was otherwise peaceful and law abiding, were advocating a fanatical political program which would alienate one group of Australians from another group of Australians and would endanger community tolerance and social cohesion and that the support of the Greek community for Athens over Sydney for the Olympics was an indication of the way many Greek Australians identified with a foreign national cause and this showed why the importation into Australian politics of other issues relating to the political relations between Greece and Macedonia was dangerous. 10. In regard to the paragraph 7(d) of the said points of claim the Second Respondent denies that the passage particularised from the said advertisement had the tendency pleaded and further says that the meaning and intent of the said passage read in the context of the whole advertisement as it would be understood by any reasonable reader was that some members of the Greek community were seeking to import into Australian political affairs concern and involvement in a foreign issue which did not touch upon the issues that ought to concern Australian citizens and that all Australians (including Greek Australians) should vigorously oppose such political views which views were fascist. The passage did suggest opposition should be by other than lawful means. 11. In response to paragraph 7(e) of the said points of claim the Second Respondent denies that the map published in the centre of the advertisement had the effect pleaded but would be understood by any reasonable reader of the article to convey a statement about the historical origins of the dispute between people of Macedonian background and people of Greek background during the course of the twentieth century and that part of this background is that a part of the Balkans inhabited by Macedonian people formed part of the Greek State and that Macedonian people in that part of the Greek State had been subject to occupation, oppression and terror since 1913 perpetrated by the Greek State. 12. Paragraph 8 of the said points of claim is denied. 13. Further in answer to the whole of the points of claim the Second Respondent says that the said article did not have the effect of inciting hatred of Greek people but that the said article: (a) Constituted part of a legitimate political debate between representatives of the Macedonian community and representatives of the Greek community in regard to an issue of political importance to those communities and the Australian community generally namely the policy to be adopted towards Greece and Macedonia by Australia. (b) The said article was a reasonable response to an article published by the Organising Committee For The Greekness of Macedonia Rally being a group of people associated with the applicant and which had initiated public debate in Australia between the Greek and Macedonian communities. (c) The said article was published at a time when the applicant had actively lobbied the Australian government on behalf of the Greek community of Australia and had actively instituted public discussion and debate in regard to the Australian government's policy concerning the recognition of the Republic of Macedonia and had initiated and contributed to public debate which identified or singled out the Greek community and Macedonian community in Australia as being in conflict. 14. Further and/or alternatively to the matter pleaded above should it be determined that the said advertisement contravened paragraph 20C(1) of the Anti-Discrimination Act 1977 the Second Respondent denies that its conduct was unlawful and says that the said conduct was done reasonably and in good faith for academic, artistic, scientific or research purposes or for purposes in the public interest including discussion or debate about a matter within the terms of s.20C(2)(c). Particulars of purposes in the public interest including discussion or debate about a matter (a) The advertisement including the passages complained about, was part of discussion or debate about the history and culture of Macedonia. (b) The advertisement including the passages complained about, was part of discussion or debate about the proper title by which the modern newly independent State of Macedonia should be recognised by the government of the Commonwealth of Australia and was an issue upon which the Commonwealth Government was deliberating at the time of the publication of the advertisement and the Second Respondent was a party interested in and entitled to seek to influence the Government of the Commonwealth of Australia in regard to the policy it should adopt as to the form of recognition of the newly independent State of Macedonia. (c) The applicant and persons associated with the applicant were at the time of the publication of the advertisement actively lobbying the Government of the Commonwealth of Australia to adopt policies in regard to the newly independent Republic of Macedonia coincident with the policies and wishes of the Government of Greece. (d) The article including the passages complained about was part of discussion and debate concerning the conduct by the Government of Greece in regard to its treatment of people of Macedonian cultural or ethnic descent living within the boundaries of the State of Greece during the twentieth century. (e) Discussion and debate about the conduct of the Greek State in its treatment of people of Macedonian cultural or ethnic descent living within the boundaries of the Greek State was a topic of public interest and had been the subject of inquiry and public pronouncement by the Human Rights Watch Helsinki Group, academic commentators such as Anastasia Karakasidou, and inquiry by the United States State Department. (f) The article including the passages complained of was part of discussion and debate about the proper role and function of ethnic identity in relation to the advocacy of causes originating with the policies of foreign governments and the impact of such advocacy upon the Australian community and governmental policies within Australia of multi-culturalism. 15. Particulars of why the act was done reasonably and in good faith (a) The conduct was restricted to the publication of written material in a mass circulation daily newspaper; (b) The views expressed in the article were in fact honestly held by the officers of the Second Respondent responsible for causing the said advertisement to be published; (c) If it be necessary to prove such, the views expressed in the said article were views capable of being reasonably held and were in fact reasonably held in that they were not views that no reasonable person could hold; (d) The said conduct was done in the circumstances described in paragraphs 13 & 14 above. 16. The conduct of the Second Respondent in causing the said advertisement to be published including the passages complained of was political discussion concerning or related to the conduct or policies of the Government of the Commonwealth of Australia in regard to its relations with the Government of Greece and the government of the newly independent Republic of Macedonia. Particulars The particulars in paragraphs 13 and 14 are repeated. 17. The said advertisement being an exercise in political discussion as described in paragraph 16 was thereby protected by the implied freedom of political discussion as described in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 and Stephens & Ors v West Australian Newspapers Ltd (1994) 182 CLR 211 guaranteed under the Constitution of Australia. 18. Pursuant to s.31(1) of the Interpretation Act 1987 (NSW), s.20C of the Anti-Discrimination Act 1977 should be construed so as not to limit or infringe the implied freedom of political discussion described in paragraph 17 and the said section is capable of being so construed. Applicable Legislation Division 3A - Racial Vilification Definition of "public act" s20B In this Division, "public act" includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broad-casting, telecasting, screening and playing of tapes or other recorded material; and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia; and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. Racial vilification unlawful s20C (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1); or (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation; or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. During his opening address, counsel for the Complainant indicated that his client did not wish to enter into an historical argument. Rather, his client held the view, which it believed was shared by the majority of the Greek community, that Ancient Macedonia was Greek and that the area in the Province of Greece which is called Macedonia today is Greek, that the citizens of the former Yugoslav Republic of Macedonia who adhere and take the name of Macedonians, do so in a mistaken historical context, and the historical arguments that are put up to justify that argument are untrue. He also stated that his client took the view that Australia is a free country and that people are entitled to their views, even if they are wrong. He stated that he did not seek at this hearing to ask the Tribunal to rule on the issue as to whether Macedonians are Greeks or Slavs. The issue was the language that was used in the article and whether that language was vilifying. The First Respondent, who appeared in person, indicated he would rely on the case put by the Second Respondent. Counsel for the Second Respondent indicated that his client was not inviting the Tribunal to make a finding about who would be correct concerning the origins of Macedonia and the identity of its culture and language. He accepted that that was a matter for academic research, and indicated that the question before this Tribunal was whether his client was acting lawfully when it published the article in the Sun Herald on 3 May 1992. It was a question, he said, about whether it was reasonable within the context of the debate in Australia to use that sort of language. He also indicated that, even if it were the case that the article breached section 20C(1) of the Act, it would be a defence if his client had published the article, doing so reasonably and in good faith in the public interest, by discussion or debate, about expositions of any act or matter. Counsel for the Second Respondent also indicated that, in construing section 20(C) of the Act, one has to adopt a construction of that provision, which keeps it within bounds so as not to infringe the implied freedom of communication on political matters, which is contained within the Australian Constitution. He argued the question was whether or not his client was legitimately exercising his freedom of speech about political matters, or whether he had in fact breached the law. Counsel for the Complainant acknowledged that there had been a debate between the Greeks and Macedonians which he stated followed the emergence of "a Slavic Macedonian claim" comparatively recently. Case for the Complainant The only witness for the Complainant, Constantine Dion Vertzayias, indicated he was a solicitor by occupation and a member of the Hellenic Council, and that he had been authorised by that Council to speak for it in relation to this matter. Mr Vertzayias indicated that in the early 1990s the former Yugoslavia broke up into various republics, and on or about September 1991 what was up to that time the Socialist Republic of Macedonia declared its independence and sought recognition under the name of Macedonia. Greeks all over the world were offended by this declaration, he said, as there is in northern Greece a region called Macedonia, being twice the size of the country which now wishes to call itself Macedonia. The witness indicated that the Hellenic Council was formed in 1992 and that among its aims and purposes was dissemination of the view that is generally accepted by the Greeks in terms of this historical dispute between the Greeks and the Macedonians. He indicated that as from the end of 1991, when FYRoM (Former Yugoslav Republic of Macedonia) declared itself independent, the argument reached the surface in Australia and there were a number of rallies and demonstrations and articles put forward by both sides. He referred to the Greek advertisement published in the Sun Herald of 1 March 1992 (entitled "Macedonia is Greek") and said he believed the Respondents' advertisement "was an attempt to counter it". Mr Vertzayias also indicated that on 14 March 1994, the official policy of the Federal Government of Australia was announced by Senator Evans in the Senate, saying that the country would be called Former Yugoslav Republic of Macedonia, or FYRoM, until the name issue had been resolved, and the people who derived from that country were to be referred to as Slav/Macedonians. In cross-examination, Mr Vertzayias was asked: "Q. Mr Vertzayias, the plain unadorned term Macedonia or Macedonian was in frequent use in Australia prior to 1990 or in 1989 perhaps, to describe various groups of people in Australia, is that correct? A. The term Macedonian, yes. Q. And there were cultural organisations, soccer clubs and the like that were known by the description Macedonian, is that correct? A. Yes. Q. There was virtually no controversy between the Greek and Macedonian communities until effectively the collapse of the Iron Curtain, dissolution of Yugoslavia and the problems that arose when the Macedonian Republic declared its independence. A. Not correct. The issue was dormant, it didn't reach the surface until the collapse of Yugoslavia." Counsel then asked the witness if the term Slav/Macedonian was used as a result of a direction given by the Commonwealth Government of Australia, to which the witness agreed. He indicated also in later evidence that there had been active lobbying by Greek organisations, urging the Federal Government to issue something in terms of the directive that ultimately was produced. "Q. You are aware that those people such as the Macedonian Youth Alliance and various other Australian Macedonians dislike and find offensive the term Slav/Macedonian? A. Well I've spoken to a number of people in this room and they have conveyed that to me. Q. Are you suggesting that you didn't know until today? A. No I've just said that I've spoken to these people prior to today. Q. You've known it for a long time? A. Well for a long time, well a year or two I suppose". Mr Vertzayias further stated that in relation to the Macedonian issue it was the Complainant's submission that the Greek point of view had not been heard, or not been adequately aired; that the Greeks represent the overwhelming majority of the people who call themselves Macedonians; that the country Macedonia is overwhelmingly in Greece, and the history of Macedonia is the history of Greece. The Case for the Second Respondent Alex Sapkaroski indicated to the Tribunal that he was a member of the Macedonian Youth Association and that he had made a statement in this matter. The following questions were put to him in cross-examination: Q. You indicate in paragraph 8 of your statement that on 1 March an advertisement appeared in the Sun Herald authorised by the Organising Committee For the Greekness of Macedonia Rally? A. That's correct sir. Q. And you say that it made a number of allegations? A. That's correct sir. Q. Did you consider that anywhere in that advertisement that there were any intemperate insults aimed at the Macedonian community in New South Wales or Sydney? A. Yes I did sir. Q. What were they? A. First of all sir, my dad, who has passed away now, bless his soul, was greatly offended by the fact that there was somewhere in the article, it had that Macedonia was Macedonia only in 1940 or so, and when he read that, he had a heart condition and he was very disturbed, because my dad was known as a Macedonian since he was a little kid, so he couldn't understand what the article was getting to and he was greatly offended." Mr Sapkoroski was also asked: "Q. Did you consider that the advertisement, where it says at the top 'But Never Greek', in conjunction with showing the northern part of Greece in the map with the words 'This part of Macedonia is under the Greek terror of occupation since 1913', did you consider that that was in effect saying that there is no such thing as a Greek Macedonia? A. Well then I would then be guilty of doing what the other side did. I wouldn't consider that, that would be nonsense. How could you consider that? There is a Greek Macedonia. It's been there, and it's there now. We can all fly in a plane and get there and we'll see it. Mr Sapkaroski indicated that the article written by the Macedonian Youth Association was intended to clarify things, not to offend the Greek community or to run down Greek friends and colleagues that he had. He indicated it was never intended by the Macedonian community, as far as he understood, that the articles were to be in any way offensive. When asked if he was born in Yugoslavia, Mr Sapkaroski stated that he was born in Ocred Macedonia, as a Macedonian, and that he would end up dying a Macedonian. Dr Ilija Casule appeared next as an expert witness on behalf of the Second Respondent. Dr Casule stated he had a BA and MA and PhD degrees in Macedonian Linguistics, both contemporary and historical, and that he acquired the degrees at certain universities in Kir and Skopje. He also indicated that he was a guest lecturer at the University of Lund in Sweden in 1982 and a guest lecturer at the Moscow State University in 1979, teaching Macedonian language and literature. He also indicated that he was presently employed at Macquarie University in Sydney as the Head of the Macedonian Studies School. When asked if he had published any works or major articles on the subject of Macedonian language, he stated that he had written a book on Syntax of Macedonia, a textbook for learning Macedonian, which is used throughout the world, and that he had published several major and longer studies in journals in America and in Europe, some 60 or 70 articles. He also stated that he had published articles on the question of Macedonian and Greek relations. Dr Casule was questioned at length on matters relating to the history and languages of Macedonia and neighbouring regions. He agreed that there exist different interpretations of these historical events, and indicated that in his opinion that was the main question before the Tribunal. Asked about the enmity which appeared to exist between the Greek and Macedonian communities in Australia, he stated: "I think that this is a temporary situation which was inflamed perhaps by political aims to whip up nationalism." and added, "You should not transfer these aspects which are totally irrelevant to Australia. Especially things that happened 4,000 years ago, and are not a matter of, how should I say, direct interest, it's just a matter of some sort of academic interest that can be pursued by anyone. Nobody has a monopoly on any sources." When asked if that meant he was saying that neither side should express any views, he replied: "No I'm not. I didn't say they shouldn't express their views, but they shouldn't, make of them, anyone can express their views anywhere, that is the total guarantee freedom of speech, but not to make of it like, to make politicians say, like Bob Carr, Macedonia was Greek, and Kennett say Macedonia was Greek, how did the relevance to the people of Victoria or to the people of New South Wales that their Premier should say Macedonia is Greek or whatever. So in that sense it shouldn't be transferred but everyone has an interest in their heritage and everyone should rightly do so without offending anyone else and presenting the views that are accessible to them. I don't see any problems with that." George Jackson then gave evidence on behalf of the Second Respondent, of which he was also a member. He was asked if, in his opinion, the advertisement inserted in the Sun Herald by the Macedonian Youth Association was published to upset the Greek community, to which he replied that he never wanted to upset the Greek community. The following questions were then asked by counsel: "Q. Did you think that advertisement might upset? A. It was at a time when there was a - the issue was very hot, so I suppose anything that you put with Macedonia on it and stating it's ours, would upset, I assume members of the Greek community. Q. Is it the situation that you didn't care whether you upset them or not or is it the situation that you wanted to upset them? A. No never. I stated before, all we wanted to do was put our case forward." He was then asked if the word "fascist" in the advertisement referred to members of the Greek community. The witness replied that in his view it referred to "a section of the Greek community, which is taking a similar line or a similar ideology of what the Greek Governments have done to the Macedonians over the last ninety years or so, denying the Macedonian authenticity, that's number one, covering up for the atrocities that were done to the Macedonian people." On re-examination the witness was asked by his own counsel: "Q. Is it the case that the people, that all the people that you have met from the Macedonian Youth Association have, to your observation, been people who are responsible in their conduct and beliefs? A. That is correct, otherwise I wouldn't have been part of putting in this advertisement. Q. And it was your belief that there were several people involved in the writing of the article, is that correct? A. That is correct. Q. And it's the case that you don't have knowledge as to which individual wrote which bit of the article, is that correct? A. That's correct." Mr Igor Avramovski then gave evidence on behalf of the Second Respondent. In examination-in-chief he was asked, inter alia: "Q. So you're not now able to say which bits of the article came from which person or activist? A. No I'm not." He further declared under cross-examination that, as far as he could recall, the whole committee of the Macedonian Youth Association approved of the article which was published in the Sun Herald. In relation to the paragraph which reads: "Well no more, we can only take too much. Fellow Australians, you've read the facts, now it's time we stood up to these hostile fascists." he was asked who they were referring to when they were talking about "hostile fascists". He answered: "We were referring to basically the group within the well, it's referred to as a sect somewhere in the article within the Greek community that pursued the idea that there is no such thing as the Macedonian nation, language, ethnic group or culture. Not only pursued the idea, but they basically tried to impose it as an idea." Mr Avramovski was then asked questions concerning the map in the middle of the advertisement complained of, and his answer was: "All I can say is that the barbed wire is that indicates that there shouldn't be borders there and that the people shouldn't be divided by force and prevented from visiting the other parts of Macedonia where they may have come from. But as far as separate states is concerned, it doesn't necessarily need to be a separate state, it may well be in a Europe without borders and that's something that's been - a position that has been officially shelved by a large part of the Macedonian community." He was then asked: "Q. This is not just a case of opening up the borders, is it, this is to peddle the idea that it all ought to become one and united under the Macedonian Government in Skopje? A. That wasn't the intention of the article, the intention of the article was to respond to the previous article published that we have referred to by the organising committee for the Greek rally. There was no intention at all with the article to push any ideas of territorial expansion, I can't say much more than that.... Q. The point is that you regarded it at the time, did you not as appropriate, there was nothing wrong or un-Australian about you lobbying the government of FYRoM, other public opinions to support what you saw as your cause against the Greeks? A. I don't see it as a cause against the Greeks, I see it as a cause of affirming the Macedonian ethnic identity and the human rights of Macedonians wherever they are living. Q. You realise that by being called Slav-Macedonians the government of this country was entertaining the idea, at any rate, that there could be other types of Macedonians like Greek Macedonians and Bulgarian Macedonians? A. Well from the conversations that I had with the Prime Minister Keating, Foreign Minister Gareth Evans and Multicultural Minister Nick Bolkus, the reason for the decision was the pressure from within the Greek community. It wasn't something that they really saw as necessary and they stated that very clearly at two meetings that I had. Q. You didn't think you would stir up division by calling people hostile fascists? A. Well we made it clear, I think, in the article that we weren't referring to the Greek community in general, that we were referring to the people that were pursuing what was stated in that article and accusing us of raiding and plundering heritage.... Q. And you didn't see your views as in some way trying to put pressure on the Australian Government to abandon their support for what you saw as the Greek position and adopt instead the FYRoM position? A. No, we wanted them to adopt the position that they adopted for every other ethnic community and that's respecting the rights of self-identification." Findings The Tribunal finds that publication of the article appearing in the Sun Herald on 3 May 1992 headed "MACEDONIA" Land of legends! Land of glory! But NEVER Greek" is capable of falling within the definition of a "public act" in section 20B of the Act. In the course of his submissions counsel for the Complainant stated he was prepared to concede that a hypothetical member of the Respondent who held an honest belief in the "Macedonian" view of history (of which the article was an example) may well have been offended by what the Greeks had to say, if he were not prepared to concede that it was the truth. He went on: "And I can well understand members of the respondent saying, well, we'd like to set the record straight and we'd like to publish our view of history, and if that's all they'd done, fair enough. But we say they went many steps further than that. They expressed themselves in a deliberately provocative fashion, went beyond merely using one or two colourful phrases and made a concerted attack on, I say, the loyalty of Greek Australians, certainly they were attacked for sticking up for a view which happens to be the view of a government of the country that they came from as if that in itself was something wrong. It clearly is not something wrong, Mr Chairman. And to attack them for that, knowing that there are redneck elements out there in the community who just take the view, they come to this country, they ought to be Australians, shorten their names, pronounce their names in some proper recognisable way, not turn up to these funny marches or ethnic days, not go on about some border in Europe that no-one's heard of. There's many Australians out there who think that way, but it is not, in my submission, the sort of Australia that this Tribunal was enacted to try and protect. The racial vilification provisions of the Anti-Discrimination Act strengthen multiculturalism properly applied. Not weaken it. The position is that the ethnic minorities in this country ought to feel free to express their points of view, even about political matters that affect their former countries. They ought to feel free to do it and they ought to be protected by this Tribunal, by people who want to in effect, shut them up, by accusing them of being in effect un-Australian". Counsel for the Second Respondent dealt with the meaning of the word "incite" in Division 3A of the Act and the Tribunal is of the opinion that it should be given its ordinary meaning, namely in accordance with the Concise Oxford Dictionary which states: "urge, stir up". The Tribunal also accepts that "incite" implies an intentional act, in the sense that the incitement or creation of hatred must have been intended or foreseen. The Tribunal is satisfied, on the frank testimony of the witnesses for the Second Respondent, that they did not intend to incite hatred by their action. However, it is unable to make any such finding as to Mr Apoleski's state of mind, in the absence of any evidence from him on this point, it being essentially a subjective question. In any event, the Tribunal has not needed to reach a decision as to whether they breached s.20C(1), for the reason given later in these findings. It was further argued that the conduct of the Second Respondent could not be seen as incitement and could not have offended section 20C(1) because, when seen in its proper context, it was a proper exercise of freedom of speech and the response to public statements made by others within the Australian community that directly bore upon the interests and concerns of the Macedonian community, and the Second Respondent in particular. Counsel submitted that the "proper context" in which the article should be seen was: (a) a major political debate was occurring in the Australian community at the time the article was being published, between representatives of the Macedonian community and the Greek community; (b) the public debate touched upon and concerned issues regarding the nature of Macedonian ethnic identity; (c) the article was published in direct response to an article published by the Organising Community for the Greekness of Macedonia Rally; (d) the article published by the Organising Community for the Greekness of Macedonia Rally contained a number of statements that were disparaging towards and contemptuous of many members of the Macedonian community in Australia; (e) the Greek and Macedonian communities were engaged in lobbying the Australian Government in regard to the policy to be adopted by the Australian Government towards the newly independent Republic of Macedonia at the time the article was published; (f) it is a legitimate issue of public debate in Australia to question and discuss the role to be played by organised ethnic communities, particularly in regard to their furtherance of the policies held by foreign governments. The Tribunal accepts that the passages particularised in the Points of Claim must be read in the context of the article as a whole and in its broader social context. The Tribunal notes that Mr Vertsayias gave evidence regarding the lobbying of the Australian Government by representatives of the Greek community, including himself. It also notes that part of the raison d'etre of the Hellenic Council was to participate in the Macedonian debate. The provisions of section 20C(2)(c) of the Act were then canvassed by counsel for the Second Respondent. As to the requirement that the publication be "done reasonably and in good faith", it was submitted that the evidence of the officers of the Macedonian Youth Association showed that they had an honest belief in the statements within the article, and believed the article itself to be a reasonable response to what had already been published by the Greek community. The Tribunal accepts this submission and finds that the public act was done "in good faith". Further, the mode of expression chosen did indeed mirror that taken earlier by the Greek community. The Tribunal agrees that the words "done reasonably" relate to the nature of the public act and the way in which it is done and do not require consideration of whether in this case the beliefs stated in the article were in fact reasonable. As argued by counsel for the Second Respondent, "It is usually the very reasonableness of any particular position which is what is most hotly contested at the front line of any academic discipline". Finally, all of the evidence pointed to there being sometimes intense discussion and debate as to the matters contained in the article, both in the academic and general communities, over a considerable period of time. Counsel for the Second Respondent concluded his submissions as follows: "One could not imagine a clearer case of the legitimate exercise of that freedom of political speech, which we all value so highly, and which is guaranteed by the Constitution, than the article the Second Respondent caused to be published in the present case." It is the view of the Tribunal that the Respondents have satisfied the requirements of section 20C(2)(c) of the Act in that the public act was done reasonably and in good faith, for academic and research purposes and for other purposes in the public interest, including discussion and debate about the Macedonian issue. The "defence" having been successfully made out, the Tribunal has not considered it necessary to make a determination under section 20C(1). Orders The Tribunal orders that the complaint be dismissed, with no order being made as to costs. 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