Australian Macedonian Advisory Council (AMAC)
8 Sept 2011
The Australian Macedonian Advisory Council (AMAC) would like to express its disappointment at the decision of VCAT Member Noreen Megay to dismiss AMAC’s racial vilification complaint against the ‘Australian Macedonian (sic) Weekly’ (AMW).
Last week Ms. Megay handed down her judgment on the matter which was heard at VCAT on the 3rd and 4th of August 2011. The AMW’s article which was the subject of the AMAC’s complaint was published in May 2009, and Ms. Megay found that the article did not meet the high threshold imposed by Section 7 of the Racial and Religious Tolerance Act 2001 (Vic) for a finding of racial vilification. Section 7 requires that the conduct “incite hatred, serious contempt for, or revulsion or severe ridicule of” a class of persons on the ground of the race of that class of persons.
AMAC’s legal advice was that the disgraceful language used in AMW’s article would likely have fallen foul of Section 7. The article in question was titled ‘Who in this Celestial World (sic) gave the Greeks the right to take away the Macedonian language?’ and AMAC’s complaint was based mainly on the following parts of the article:
The complaint was not based on history or on any historical errors contained in the article. The complaint purely concerned the racist, abusive and gratuitously insulting nature of the article. Ms. Megay acknowledged that the historical accuracy or inaccuracy of the AMW article had no bearing on the decision.
In his witness statement, the AMW’s editor, Ljubcho Stankovski, admitted the language in the article was “extravagant”. Ms. Megay stated that she considered this to be an understatement and that, in her opinion, the article was a “hyperbolic rant”1, but nonetheless did not consider the article breached Section 7.
Ms. Megay came to this conclusion despite the fact that, during cross-examination, Mr. Stankovski admitted that, had the article been written about Slav-Macedonians, it would have had the effect of inciting hatred or serious contempt or revulsion against Slav-Macedonians.
AMAC considers Ms. Megay should have placed more weight on the fact the respondent (Mr. Stankovski is the editor and sole proprietor of the AMW) basically conceded – to the surprise of everyone present at the hearing – that he considered the article contravened Section 7.
To-date there has been no successful racial vilification complaint made under Victorian law. AMAC finds it difficult to foresee what type of conduct or language could possibly be used to invoke a sanction under Section 7, given that the said article did not (in the opinion of Ms Megay) cross the line. AMAC considers that Section 7 is a poorly drafted and toothless provision and that it should be repealed so as not to give false hope to people who have legitimate grievances and have been racially vilified. The wording of the Section 7 makes the assessment of whether particular conduct breaches the Section highly subjective and too dependent on the personal taste of the Tribunal member hearing the matter.
The danger of the Tribunal finding that the AMW article was not unlawful is that the Courts and Tribunals can be seen to be condoning the kind of racist, insidious language used in the article. Ms. Megay saw it necessary to state that, despite her finding there was no breach of Section 7, she “would not wish to be taken as approving the tenor of the article”2. Despite Ms. Megay’s comment, AMAC believes the danger that the Tribunal be seen as condoning the AMW’s conduct is a real one. A further danger is that the Victorian community may perceive that there are double standards attached to racial vilification laws, in that some ethnic groups are more likely to be successful in making a complaint than others.
There have been various academic criticisms of the particular legislation and similar legislation in other states. AMAC believes that amendments are necessary to ensure the proper protection of Victorians from vilification and the maintenance of multiculturalism in Victoria. AMAC has the option of appealing against the decision to the Supreme Court of Victoria.
AMAC’s legal advice is that Ms. Megay’s judgment contained numerous errors of law upon which an appeal can be based. However, in considering whether to appeal the decision, AMAC will have to take into account the significant expenses entailed with an appeal and the considerable risk of costs being awarded against it, should the appeal be unsuccessful. AMAC notes that there has been criticism of the decision in the mainstream media and provides the following links for the information of our members:
The article in question is attached to this press release. Ms. Megay’s judgment can be found at the following link: http://www.austlii.edu.au/au/cases/vic/VCAT/2011/1647.html
i) Referrence to Greece as a “thieving nation”
ii) Reference to Greeks as: “deranged bastardly monsters”, “freaks of nature”
iii) Reference to the Greek language as “their ugly language”
iv) the author asks Greeks what “evil alien abstractions possessed your dark soul?”, what “barbaric wickedness obliterated your senses?” and “What evil spirits possessed your moronic conscience to be so cruel and predisposed to such ghastly monstrosity?”