Equal Opportunity Tribunal of New South Wales CITATION: Hellenic Council Of Nsw -V- Apoleski, Order Of Ahepa -V- Apoleski [1997] NSWEOT COMPLAINANT: Hellenic Council of NSW RESPONDENT: Gligor Apoleski NUMBER: 9-11 of 1995 Mr M Biddulph ( Judicial Member ) TRIBUNAL: Ms M Alt Ms L Mooney GROUNDS OF COMPLAINT: Racial Vilification DATES OF HEARING: 08/13/1996 DATE OF JUDGMENT: 09/25/1997 Complainant: Mr C Vertzayias McDonell Vertzayias (Solicitor) LEGAL REPRESENTATIVES: Mr P Kintominas (Counsel) Respondent: Mr D Anderson Clapin & Carbone (Solicitor) JUDGMENT IN FAVOUR OF: This decision is made in respect of both matters Nos. 9 and 11 of 1995 which were heard together on 13 August 1996 following an order made by the Judicial member, pursuant to section 79 of the Anti-Discrimination Act 1977 No. 48 (As Amended) ("the Act"), that a single inquiry be held in relation to them, as they related to the same subject matter. At the commencement of the inquiry, the Tribunal also directed that the transcript of evidence in matter No. 10 of 1995 be admitted into evidence in Nos. 9 and 11, the inquiry into No. 10 having concluded the day before and having been made into a similar complaint of racial vilification against the same Respondent and another. This decision should, therefore, be read in conjunction with the decision of the Tribunal in No. 10 of 1995. COMPLAINT SUMMARY On 29 January 1993, the Complainant in No. 9 of 1995, the Hellenic Council of New South Wales (as a representative body for the Greek community), lodged with the Anti-Discrimination Board of New South Wales, a complaint of racial vilification against Mr Gligor Apoleski, the alleged author of an article published in the Macedonian Weekly Herald on 12 August 1992 - entitled Macedonia:History and Reality". The Complainant in No. 11 of 1995, the Order of AHEPA (as a representative body for the Greek community) lodged an identical complaint against Mr Apoleski on 23 September 1992 in respect of the same article. The Complainants alleged that a number of statements in the article went beyond a discussion of the "Macedonian debate" and were deliberately made to incite hatred against the Greek community and Greeks generally. The Board attempted to conciliate the complaint but was unsuccessful. The Complainants subsequently requested that the matter be referred to this Tribunal for a determination. It is helpful to set out in full the Complainants' Points of Claim and the relevant sections of the Act: Complainants' Points of Claim 1. The Respondent is the author of an article appearing on pages 4 and 5 of the edition of the Makedonija Weekly Herald published on 12 August 1992. The article, titled "Macedonia:History and Reality", was part of a segment of the newspaper titled "On the Macedonian Matters". 2. The article contravened the Anti-Discrimination Act 1977 in that the said article 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. 3. The distribution and dissemination of the article constituted a public act within the meaning of s. 20B(c) of the Anti-Discrimination Act 1977. 4. The Respondent contravened s.20C(1) of the Anti-Discrimination Act 1977 in composing the article and causing it to be published. 5. In the alternative, in composing the article and causing it to be published, the Respondent either caused, instructed, induced, aided or permitted others to contravene s.20C(1) of the Anti-Discrimination Act 1977 and thereby contravened s.52 of the Anti-Discrimination Act 1977. 6. Particulars of unlawful vilification contained in the article: (a) The second paragraph of the article which appears in capitals: "SLAVICISM IS ONE OF THE THREE FUNDAMENTAL CAUSES OF THE MISFORTUNES AND CATASTROPHES OF THE MACEDONIAN NATION, WITHOUT THE MERCILESS EXTIRPATION OF SLAVICISM, HELLENISM AND COMMUNISM - THESE VIRUSES ON THE BODY OF OUR NATION - THERE IS NO CHANGE (sic) OF BUILDING A NEWBORN MACEDONIA!!!" incited hatred towards, serious contempt for or severe ridicule of Greeks and Australian citizens of Greek origin on the grounds of their race amongst readers of the newspaper in its call for the "merciless extipation" (obviously a typographical error for "extirpation") of Hellenism and the categorisation of Hellenism as a "virus". (b) The passage appearing at the bottom of the first column and into the second column of the article, to wit: "Ever since the Greeks arrived on the Balkans, they have been nothing but trouble. In contrast to Macedonian culture and morality (Christianity), the Greeks have brought to mankind everything that is today considered to be evil: 1. Slavery, which modern Greek scholars call a "democracy". 2. Homosexuality, of which Plato is a fine example. 3. Lesbianism, which is named after the island of Lesbos. 4. Prostitution. 5. Human sacrifices to the gods. The Greeks worshipped stone gods irrespective of the mythological Macedonian gods. 6. Pedigrees. Only Greek-speakers were regarded as civilized. All those that did not speak Greek, including the Macedonians, were regarded as barbarians. As a Macedonian, Aristotle was denied citizenship to the Greek city-states, although he was Plato's best student. 7. Futile wars and feuds, such as the Peloponnesian Wars. 8. Education exclusively for the rich. The Macedonian philosopher Aristotle advocated an "education for all". 9. And much, much more!... It is by no coincidence that "Grk" in Ancient Macedonian means "one who suck the blood of another". In Latin, "Graeciano' means 'thief!". incited hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the grounds of their race amongst readers of the newspaper. c) The statement: "We know that Hellenism is our enemy" appearing on the seventh line on page 5 incited hatred towards, serious contempt for, or severe ridicule of, Greeks and Australian citizens of Greek origin on the grounds of their race amongst readers of the newspaper. The Complainants sought orders that the Respondent publish an apology and pay punitive damages. The relevant 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, broadcasting, 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 20C. (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. S.52 Where a person causes, instructs, induces, aids or permits another person to do an act that is unlawful by reason of this Act, they both shall be subject, jointly and severally, to any liability arising under this Act in respect of the doing of that act. The Tribunal wishes to indicate that numerous directions given by the Senior Judicial Member and the present Judicial Member since the commencement of this case were not complied with up to the date of the hearing. Counsel for the Complainants indicated on the morning of the hearing that Points of Claim had been given to counsel for the Respondent, one for each of the matters to be heard, and it was indicated that the Respondent intended to give oral evidence in relation to his Points of Defence. This proposal was approved by the Tribunal. The Tribunal did not have the benefit of any Points of Defence or statement of evidence from the Respondent who was unrepresented until the morning of the inquiry. Indeed, the Respondent did not file any documents with the Tribunal with the exception of a statutory declaration by the editor of the Macedonian Weekly Herald which was subsequently ruled by the Judicial Member to be inadmissable as it had not been served and the declarant was not available for cross-examination. The Tribunal did have the benefit, however, of a letter received by the Anti-Discrimination Board dated 11 June 1993 and contained in the President's Report to the Tribunal's Registrar, in which Mr Apoleski responded to the Board's notification to him of the complaints stating: "A person published an article in the "Macedonia Weekly Herald" under the name of Gligor Apoleski and the Macquarie University Macedonian Society (MUMS). The purpose of the article was to put across to the Macedonian public certain academic points in good faith, with the aim of enlightening the Macedonian public on certain arguments that have seldom been raised before. There was no intention to incite racial vilification in respect of the Greeks, not merely because it was written in good faith, but because the Greeks are not regarded as readers of the Macedonian newspapers." A little further on he states: "Although a copy of the complaint itself has not been mailed to us, we will answer the points raised." What follows is a detailed response to the complaint with particular reference to the specific passages alleged by the Complainants to be vilifying. While not admitting that the publication was a public act, the letter relies on the provisions of s.20C(2)(c) as an answer to the complaint. At the preliminary directions hearing on 12 July 1995, Mr Apoleski took the unusual course of pointing out to the Tribunal that he had deliberately not signed the letter, perhaps with a view to it being treated on a "without prejudice" basis. The Tribunal, while mindful of this, formed the view that the letter was Mr Apoleski's own work - indeed, he did not attempt to deny this - and that it was of some significance to his own case having regard to the rather insubstantial nature of his evidence. The Case for the Complainants At the outset of the inquiry, counsel for the Complainants noted that it was to be argued by Mr Apoleski that he was not the author of the article and sought therefore an admission from him that the specific passages complained of were vilifying, in order to limit the matters for decision, particularly matters going to the issues raised by s.20C(2)(c) of the Act. The Respondent declined to make any such admission indicating, through his representative, that he intended still to maintain that the article was published in good faith. The Tribunal's difficulty with this position is averted to later in this decision. Mr Constantine Vertzayias, as a member of the Hellenic Council, gave similar evidence to that which he gave in matter No. 10 of 1995 as to questions of history and ethnicity bearing upon the passages from the article particularised in the Points of Claim. His evidence was to the effect that the assertions made therein were incorrect. In cross-examination he was then asked: "Q. In fact Mr Vertzayias, history tells us that from time immemorial different people and different races all over the world have had differing views of history. Would you accept that? A. There's various interpretations of certain historical events and there are eras in history because there is no documentation, no archaeological or historical record, there can be different interpretations given to that, but that's a generalisation that you are putting. Q. Mr Vertzayias, would you accept that there are academic texts which support the view that the Macedonian people were a nation of their own? A. Are you talking about the Ancient Macedonian people? Q. Yes. A. Because there is a difference. CHAIRMAN: Q. No, Ancient Macedonian. A. Yes there are - and I stress this - a minority view of academics that do take that point of view". In relation to the Macedonian Weekly Herald itself he was asked: "Q. That is a newspaper which is generally published in the Slav-Macedonian language? A. That is correct. Q. And it is a newspaper which is generally bought if not exclusively bought by people of Slav-Macedonian descent? A. That is correct. Q. It's not a paper which has any readership at all amongst the mainstream population of Australia? A. No. Q. Articles however appear in that newspaper in English from time to time? A. That is so. CHAIRMAN: Q. Can the Greeks understand the Macedonian language? A. No, the Slav-Macedonian language, no". Mr Vertzayias was subsequently asked: "Q. My question was, did you make any enquiries upon the publisher of the paper to confirm who authored the article in question? A. No". The witness indicated that there were, in his view, many people of the Greek community who were very offended by the article in question, not only people in the group committee. Mr Panayiotis Diamadis gave evidence on behalf of the Order of AHEPA which he stated was a philanthropic organisation but acknowledged that one of its functions was lobbying on issues such as Macedonia, Cyprus, the Aegean Islands and so forth. In cross-examination he was asked further: "Q. Mr Diamadis, do you accept that AHEPA is a political organisation? A. I accept that one of our functions is to lobby the Australian Government, it's Australian citizens on issues that concern us and our families, yes. Q. One of those issues is the issue of Greekness of Macedonians? A. To us, yes. Q. In that regard you actively lobby government? A. We do. Q. And you publish a great wealth of material? A. We do". The witness was then referred to the article published by the Pan Macedonian Association of New South Wales Limited in the Sun Herald on 1 March 1992 headed "Macedonia is Greek". The witness admitted that the article was published by the Pan Macedonian Association of New South Wales Limited, and that it considered the article gave the correct view of the history of Macedonia. When asked if it is the Greek-held view of that history, he agreed with that proposition. "Q. Do you accept that they (the Macedonians) have a different view? A. Yes they have a totally different view". When asked if he would accept that the article, being read by persons who hold Mr Apoleski's view, could be found to them to be offensive, he stated: "I don't see how. They can be - they can disagree with it, they can consider it a load of rubbish but I don't understand how they can find it insulting or offensive". When asked if he maintained that the view of history propounded in the Macedonia Weekly Herald article was offensive, he answered that it was not the view, but the way it was expressed, which he found offensive. Mr Diamadis was asked if he found it offensive when the people who held the view of history that Mr Apoleski held used the term "Macedonian" or "Macedonian people" to refer to themselves, to which he replied that he found it offensive in that they were trying to monopolise it. In part of his answer the witness said: "Okay, I don't identify with them, they don't identify with me. Now we're both Macedonian, that we both come from the region called Macedonia. Now since we have quite different views we have to distinguish somewhere and we've decided - we accept being called Greek Macedonian even though it was the same thing. To distinguish ourselves from the Slav Macedonians who do not speak Greek, who speak a Slavic language". When asked if he was offended by the views put by the Respondent, Mr Diamadis gave the following answer: "My first reaction was actually I burst out laughing when I first read it" but confirmed that he did take offence to the three passages set out in the Points of Claim. He explained "... its like they want to take what's mine ... my ancestral home". He denied that the article "Macedonia is Greek" could be found offensive in the same way. The witness stated that he had a Bachelor of Arts degree in Ancient and Modern History and Modern Greek, and a Diploma in Education. Under further cross-examination the witness was asked if the rallies to which he had referred, when a substantial number of Greeks marched in protest on the Macedonian issue, was in direct response to the article referred to, and he agreed that the rally was not in response to the said article. He was also asked if the rallies were organised for some time in relation to the Macedonian issue, to which he agreed, and stated that "that is what provoked the issue, the dispute is what provoked the rally". The Case for the Respondent As foreshadowed, Mr Apoleski, when questioned, denied that the article published in the Macedonia Weekly Herald 12-19 August 1992 was written by him. He further denied that he authorised the publisher to attribute the article to him and denied that he had spoken to the publisher of the paper prior to the article being published. He stated that he only first became aware of the publication of the article several weeks after its publication. He indicated that, after reading the article, he phoned the editor of the newspaper and had a conversation with him, when he asked him where he got the article. He stated the editor said to him "from a source". He further stated that he went to Victoria to personally attend the house of the editor. When he was asked by his counsel if he was aware of any details as to how the article came to be published he stated that he: "had compiled a memorandum, a draft, of various historical opinions and arguments with particular reference to Macedonian history and different viewpoints on Macedonian history, and there were a - a lot of references were made to authors with citations from various authors, and it was mostly concentrated on Ancient and Medieval History, and I prepared it for somebody I'd met in church. He'd come from overseas and he had a burning interest in other viewpoints of Macedonian history. He was pretty much dulled or disillusioned or unpersuaded by the lines by the - by the versions he had studied at school, and he wanted to hear other versions, other viewpoints. And I prepared, with that purpose, to let him have a look at it and perhaps discuss some of those viewpoints with other academics, with other individuals but, of course, naturally the whole thing was to be pretty much just as an informal thing just between me and him, and naturally he was to later keep me informed as to what happened, what feedback there was from various people he'd spoken to in the Republic of Macedonia". He stated that since he had given that person the original letter or memorandum he had neither seen nor heard from him. When asked if the essay that he had prepared was the same as the article which appeared in the Macedonia Weekly Herald he replied that it was not. He stated that the name of the person to whom he gave the article was a Petre Temelkovski whom he met at church. Under cross-examination he was referred to the first passage particularised in the Points of Claim, namely "Slavism is One of the Three Fundamental Causes etc etc (down to the word) Macedonian". When asked if that was his work, he said, "No". He was then taken to the second passage complained of which begins "Ever since the Greeks ..." (down to the words) "thief", and was asked if that was his work, and he denied that it was. As to the quote "We know that Hellenism is our enemy" from the third passage he was asked if that was his work, which he denied. When further questioned by counsel for the Complainants as to whether the specific passages previously referred to were his work, he stated that the article was a complete bastardisation of the original essay that he prepared for Mr Temelkovski. Mr Apoleski further stated that the opinions contained in the essay which he prepared for Mr Temelkovski were not his own. He was unable, however, to provide a full account of what was in his essay, having failed to keep a copy of it. Mr Apoleski was then taken to his letter of 11 June 1993 to the Anti-Discrimination Board, and in particular to page 5 of that letter where he states that the editor of the newspaper unfortunately neglected to print certain texts, which he imputed with square brackets, within the second passage complained of from the article. In the face of his denial of authorship, and, indeed, of ever having seen this passage in any other author's work, the Respondent was asked how he was able to say what had been left out by the editor. Mr Apoleski again denied that he saw the document given to the editor. He was then shown a document, being another article from the Macedonia Weekly Herald, which, after pointed questioning, he admitted he had been involved in the preparation of, although he stated it was "filtered". Under sustained cross-examination Mr Apoleski agreed that the document he was shown was the third of three articles he had published in the newspaper but again denied that he caused to be published the article which was the subject of these complaints. Findings The threshold issue arising in these matters is whether the publication of the article was a public act within the meaning of section 20B of the Act. Although the Macedonia Weekly Herald may be a newspaper of limited circulation, it is presumably available for purchase by any member of the public, as indicated by its use of the English language as well as Macedonian. Accordingly, the Tribunal finds that publication of the article headed "Macedonia: History and Reality" in the Macedonia Weekly Herald issue of 12 August 1992 was a public act and rejects the argument of the Respondent in this regard. It is then incumbent upon the Complainants to demonstrate that this public act was committed by the Respondent, Mr Gligor Apoleski, either directly, as envisaged by s.20C(1), or indirectly, as envisaged by s.52. The Respondent denied both that he was the author of the article in question or that he caused the article to be published or caused, instructed, induced, aided or permitted others to publish the article in question. The Complainants indicated to the Tribunal that no enquiry was made, either by them or their representatives, of the editor of the Macedonia Weekly Herald concerning the alleged offending article, or as to its authorship. It is for the Complainants to establish on the civil standard that the Respondent caused the article to be distributed or disseminated or caused, instructed, induced, aided or permitted others to publish the article. Much was made of the letter which the Respondent wrote to the Anti-Discrimination Board dated 11 June 1993 and in that regard paragraph 2, which reads as follows: "A person published an article in the 'Macedonia Weekly Herald' under the name of Gligor Apoleski and the Macquarie University Macedonian Society (MUMS)" which support the Respondent's denial that he published or caused to be published the article. It does not sit that well, however, with his insistence that he had no knowledge of how the article came to be published. Indeed, the Tribunal has had considerable difficulty with the apparent inconsistency between the Respondent maintaining his ignorance of the authorship and cause of publication of the article and his insistence that it was done reasonably and in good faith. Of greater concern, perhaps, was the Respondent's failure to adequately explain page 5 of his letter to the Board. In considering the Respondent's evidence, the Tribunal has been mindful of the fact that some of his hesitancy in responding to cross examination was due to his being questioned on material that was the subject of other complaints before the Anti-Discrimination Board. The Tribunal also had regard to his apparent confusion between advice from the Board with respect to conciliation of the complaints and his presentation of his case to the Tribunal, for which he obtained representation at the eleventh hour. Counsel for the Complainants made much of the fact that the Respondent's name appeared at the foot of the article and that that constituted evidence that he was the author of the article and that he authorised its publication. Counsel for the Respondent submitted that the fact that the Respondent's name appears at the foot of the article is equally consistent with the article being published without his knowledge or consent. On balance, the Tribunal concludes that the Complainants have not demonstrated that the Respondent committed the public act of publishing the article or causing it to be published. Consequently, the Tribunal has not considered whether the passages in the article are vilifying, as alleged, nor whether the provisions of section 20C(2)(c) pertain. Nevertheless, with respect to the latter and based on the evidence and material tendered in matter No.10 of 1995 as well as in these matters, the Tribunal notes that the present complaints arose in the following context: (a) a heated 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 and is to some extent continuing; (b) the public debate touches upon, among other concerns, issues regarding the nature of Macedonian ethnic identities, nationalism and human rights; (c) both sides of the debate utilised various public forums to put forward their views, including the Sun-Herald newspaper and street rallies; (d) the Greek community had successfully lobbied the Federal Government and Mr Gareth Evans, regarding the use of the term "Slav-Macedonians" to refer to the people of the former Yugoslav Republic of Macedonia. Thus, the Tribunal foreshadows that the Respondent could have successfully relied upon the public interest provisions of s.20C(2)(c) here for the same reasons set out in this Tribunal's decision in matter No.10 of 1995. Orders (1) Both complaints are dismissed. (2) No order is made as to costs. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.