Ordo Templi Orientis Inc & Anor v Devine & Anor (Anti-Discrimination) [2007] VCAT 2470 (28 November 2007)

Ordo Templi Orientis Inc & Anor v Devine & Anor (Anti-Discrimination) [2007] VCAT 2470 (28 November 2007)

Last Updated: 25 January 2008

VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL

HUMAN RIGHTS DIVISION

ORDERS

1. That a warrant be issued for imprisonment of each Respondent for a period of nine months.
2. That liberty to apply be reserved to the Respondents in the event that they wish to make application under section 137(7) for remittal of the whole or part of the sentence imposed today.
3. That the Respondents pay the Applicants’ costs of this contempt proceeding on a solicitor client basis and to be taxed on the Supreme Court scale.
   
   

SENTENCE

1. This is an application by Applicants in this proceeding who were Complainants in a proceeding before this Tribunal for relief under the Racial and Religious Tolerance Act which was referred to this Tribunal from the Equal Opportunity Commission in around May of 2005 and which was later formulated in Particulars of Complaint which were filed on 30 September 2005.
2. The application which I am dealing with is an application that the Respondents, Dyson Devine and Vivienne Legg, be dealt with for contempt of the Tribunal under s.137 of the Victorian Civil and Administrative Tribunal Act 1998, in that the Respondents have failed to comply with an order which was made in that proceeding by Deputy President Coghlan on 27 July 2007.
3. That order was made by Deputy President Coghlan after presiding over the hearing at which that complaint was dealt with and it is worthwhile, I think, indicating the nature of that complaint in short compass as a background to the sentencing process which I am about to begin under s.137 of the VCAT Act.
4. The particulars of complaint asserted that the Respondents conducted a website and that they placed on that website two discrete categories of material which were identified as Annexure A and Annexure B to the Particulars of Complaint and that that material was clearly understood to mean that the religion of which the Complainants were members was a paedophile group operating in Victoria and that its members, and therefore the Complainants in this proceeding, were paedophiles.
5. It was alleged in the complaint that the publication of those words incited hatred against, serious contempt for, revulsion of and severe ridicule of members of the Ordo Templis Orientis, the religious group of which the Complainants are members and that, as a result, the Respondents had breached s.8(1) of the Racial and Religious Tolerance Act 2001.
6. It was further alleged in that complaint that by reason of that breach the Complainants had been held up to serious contempt, revulsion and ridicule and that they had each been severely injured in their reputation and feelings and had suffered and would continue to suffer loss and damage.
7. Now, it is worthwhile at this stage considering for a moment the Racial and Religious Tolerance Act 2001 which is the legislation under which this complaint was brought and particularly I will refer to the preamble to that legislation which reads as follows:-

"The parliament recognises that freedom of expression is an essential component of a democratic society and that this freedom should be limited only to the extent that can be justified by an open and democratic society. The right of all citizens to participate equally in society is also an important value of a democratic society. The people of Victoria come from diverse ethnic and indigenous backgrounds and observe many different religious beliefs and practices. The majority of Victorians embrace the benefits provided by this cultural diversity and are proud that people of those diverse ethnic, indigenous and religious backgrounds live together harmoniously in Victoria. However, some Victorians are vilified on the ground of their race or their religious belief or activity. Vilifying conduct is contrary to democratic values because of its effect on people of diverse ethnic, indigenous and religious backgrounds. It diminishes their dignity, sense of self-worth and belonging to the community. It also reduces their ability to contribute to or fully participate in all social, political, economic and cultural aspects of society as equals, thus reducing the benefit that diversity brings to the community."

8. It is against this background that the case which was brought by the Complainants against the Respondents was dealt with by Deputy President Coghlan and it is within the terms of that Act that the order was made by Deputy President Coghlan on 27 July 2007.
9. That order was as follows:-

“That the Respondents remove from the website named in the Particulars of Complaint and refrain from making, publishing or distributing in Victoria, including the internet, whether in writing or orally and whether directly or indirectly including by the internet or by inserting any hyperlink on the internet any statements, information, suggestions or implications to the same or similar effect as those set out in paragraphs 11 and 18 of the Particulars of Complaint."

10. That order has not been complied with by the Respondents.
11. I have at a previous hearing ordered that the Applicants file and serve a draft charge, together with an affidavit specifying the exact nature of the contempt alleged, and that draft charge has been filed and the affidavit of Katherine Prowse, sworn 19 October 2007, has been sworn in compliance with that order. It is clear from that affidavit that the offending material has not been removed from the website and it is clear also from the assertions of both Respondents when they were before me yesterday that that material has not been removed from the website and that neither Respondent intends to remove the material from the website in compliance with the order.
12. Now, because this is a contempt application, it is not necessary for me to go behind the order of Deputy President Coghlan and I do not intend to do so. However, I think it is important in dealing with the contempt issue to understand the nature of the material that is still on the website and almost 5 months after the order was made is still on the web site for public viewing. I do not intend to go through that material in any detail, although I have asked counsel for the Applicants to do so in his submissions to me and I will simply indicate that the material is material of an extremely gross and offensive kind. It is material which asserts that the religion which is adopted by the Applicants is a religion which tortures and kills children. It speaks of blood rituals involving the killing of animals and small children and the consumption of the blood and organs of those animals. It speaks of criminally corrupt members of the organisation. It speaks of a culture of corruption at the highest levels of government. It specifically identifies politicians and members of the executive as being involved in those activities.
13. In sentencing the Respondents today, it is my view that I should take into account only that part of the website which refers to the religion of the Complainants and not that part of these documents which refers, in quite odious terms, to other prominent members of the community. Even if I was to extricate all of that material, except that that referred to the Ordo Templi Orientis, there is still an enormous amount of dreadfully insulting and quite bizarre material contained in the offending part of the website in relation to which the order has been made.
14. My first task under s.137 is to explain to the Respondents the nature of the contempt alleged and to give them an opportunity to address me as to any issues which I need to consider in coming to a conclusion as to whether a contempt of the Tribunal has in fact occurred.
15. As a preliminary to that, because the Respondents have not attended any other directions hearing or hearing of this Tribunal and, indeed, had announced on their website their intention not to appear, I ordered on 3 October of 2007 that a warrant be issued for the arrest of both Dyson Devine and Vivienne Legg to answer the charge that they were in contempt of the Tribunal for failing to comply with the order of the Tribunal. That warrant was executed on the Respondents in New South Wales and both Respondents were brought before me as a matter of urgency yesterday afternoon. On being brought before me, I told both Respondents of the contempt that was alleged against them and, to make sure that they understood, I gave them the opportunity of perusing several documents which I understand had been previously served on them.
16. The first was the orders that were made by me on 3 October. The second was the order of the Tribunal on 27 July. The third was the draft charge which had been prepared by the Complainants and the fourth was the affidavit of Katherine Prowse, sworn 19 October 2007, and the exhibits to that affidavit. I also, during the course of the hearing, had them shown both Annexure A and Annexure B to the Particulars of Complaint so that they were very clear as to what document it was that the order referred to and their position in not complying with the order and both Respondents recognised the documents and told me that they were still on the website and that they had no intention of taking the documents off the web site.
17. I advised the Respondents further that I would be dealing further with the contempt proceedings today at 10:00 o'clock and that I expected that they would attend today and that I expected that they would consider obtaining legal representation so that they could be advised of their position in relation to this contempt application. I told them that I expected they should consider whether they would call any evidence in respect to this application. I particularly told them that they may consider calling character evidence or any evidence which would go to which of several penalties under this Act I may impose if I were to find them in contempt of the Tribunal.
18. Mr Devine said to me that as far as he understood it, he was clearly in contempt of the Tribunal. He did not wish to call any evidence and that he wished me to sentence him to prison yesterday. I repeated to Mr Devine and Ms Legg that they may require to obtain some advice or to think carefully about their position so that they would have a proper opportunity of presenting any material to me that was available today. I told them that I expected them to appear at this hearing today, that I was not going to imprison them overnight as had been requested by counsel for the Applicants, but that I would release them from the warrant having been discharged and would expect them to be here today to deal with this matter which was adjourned to this morning.
19. Despite being called outside the hearing room, neither of the Respondents has appeared today and there is no material from them at all that can assist me in the appropriate penalty. That being the case, I will proceed with the sentencing process on the material that is available to me. Now, I have no hesitation in finding that both Respondents are in contempt of this Tribunal in that they have refused to comply with an order of the Tribunal. Any doubts that I may have had before the hearing commenced as to whether they were in fact in control of the web site have been set aside by the fact that both Respondents readily agreed that the website referred to in the complaint was their website. Any doubt that I may have had as to whether one or other of the Respondents was mainly responsible for the publication of the words have been set aside by the remarks of both Respondents taking responsibility for the material and seeking to justify the publication of that material in open defiance of the orders that have been made. Therefore, I find both Respondents are in contempt of the Tribunal under s.137 of the Victorian Civil and Administrative Tribunal Act 1998.
20. The question then arises as to what penalty should be imposed, and I have the power under s.137(5) to commit a person in contempt to prison for a term of not more than 5 years or impose a fine of not more than 1000 times the value of a penalty unit, and the matters which I have heard today from the Applicants are matters which have directed my attention to the most appropriate course to take having regard to this matter. I am obliged, in considering a sentence for contempt, to take into account as the first and most important matter the need for this Tribunal to be able to have its own orders enforced. This is a very, very serious issue for a Tribunal. There is absolutely no point for any Tribunal to go about its duty to impose orders without having a way in which those orders can be enforced in order to signal to the community that Tribunal orders are very serious matters and should not be taken lightly. They certainly should not be orders which are treated with the disdain that they have been treated in this case by the Respondents, so I am very aware of the fact, in sentencing these Respondents, I must signal to the broader community that Tribunal orders are not to be ignored.
21. Secondly, I am very aware of my responsibility to signal to the community, specifically in relation to the Racial and Religious Tolerance Act, that orders made under that Act are serious orders addressing serious concerns within the community and that a breach of those orders is seen to be a significant issue. This is not an order of the Tribunal for a small sum of money or for the repair of a house or for matters which may be within the lesser range of the Tribunal's jurisdiction. This is an enforcement of an order which is, as I have read in the preamble to the Act, an order which is for the preservation of the democratic values of our community. I take into account in those observations that in this case the contempt has been unequivocally deliberate. It appears that the Complainants have known for quite some time that they are in contempt. The contempt has been persistent and there was absolutely no change to the Respondents' position, even when they were served with the contempt application, and even when the warrant was issued and they were physically brought from Coffs Harbour to this Tribunal yesterday to answer those charges. So I must take into account, as I have said, the very serious obligation on me to signal to the community that VCAT is a Tribunal whose orders must be obeyed, that its members must have the confidence when they are making orders that they are orders of substance, and that the general community understands that the jurisdictions over which VCAT presides are jurisdictions of importance.
22. Secondly, I must take into account what have been referred to me as issues of specific deterrence. These persons, so far, do not appear to have understood that they must obey the law and if there is some way within the confines of the sentencing process to force compliance with the orders then I should take it. It has been suggested to me by Mr Freckelton that I might consider s.90 of the Sentencing Act. In relation to the bizarreness of the allegations made on the website, there may be some suggestions from those bizarre allegations that the Respondents are not mentally well. In my view, those allegations are bizarre. I had the opportunity of observing both Respondents yesterday. They answered questions of me and they made submissions to me. I
23. In my view, there is not sufficient information for me to take that path. Even though it was not pressed by Mr Freckelton, it is a matter which I will refer to only to dismiss as not being a course that is open to me in this case. I need to take into account also in sentencing what was broadly referred to by Mr Freckelton as the victim impact information. The Applicants, Bottrill and Gray, have filed in their witness statements details of the substantial effect that this publication has caused on them personally, it has caused on their religion, the functioning of their religion within Victoria and on their functioning both within their families, at work and within their broader reputation, and I adopt the summary of those witness statements made by Mr Freckelton orally in his submissions as being significant matters which I should take into account.
24. In other words, once again this is not just a dispute about money. This is an act of the Complainants which has caused personal suffering to members of the Ordo Templi Orientis and that suffering is ongoing for as long as the material remains on the website. Sentencing is a difficult process at the best of times and it is even the more so in relation to a contempt proceeding. What I would like to do would be to impose a penalty which could guarantee that the offending material is removed from the website. However, I am persuaded that there is no practical way in which I can achieve that object other than to use the full force of the law to demonstrate to the Respondents the seriousness of their situation and the need for them to comply. The maximum period of imprisonment allowed under the legislation is a term of 5 years or a fine of 1000 times the value of a penalty unit.
25. I am persuaded from the history of this matter, and from the history of previous non-compliance, that there is no prospect at all that if I was to fine the Respondents that they would pay the fine, and I am persuaded also by the seriousness of this matter, having regard to all the matters I have outlined in the sentencing remarks, and having regard to all the matters that have been outlined to me by Mr Freckelton in his submission, that this is an occasion on which a term of imprisonment should be imposed.
26. It is my sentence that each of the Respondents be sentenced to prison on the charge found proved of contempt for a period of 9 months. I do not propose to make any further order in relation to the period of imprisonment as I am persuaded by Mr Freckelton that I have no power to do so. I will, though, reserve liberty to apply in the event that there is any course which is open – in the event that there is any argument at a later stage as to that issue.
27. I will reserve liberty to apply to the Respondents under s.137(7). Should they wish to purge their contempt, in which case I have the power under that section to remit the punishment that I awarded, either wholly or in part.
28. I have also been asked to make an award of costs of the contempt proceedings on a solicitor/client basis and I have been referred to the authority of Scott v. Evia Pty Ltd and the observations of Her Honour Justice Dodds-Streeton in that case. Applying those observations to the facts before me, it is clear that this is a case in which I should make an order for costs and that the order should be on a solicitor/client basis, so the third order will be that the Respondents pay the Applicants’ costs of this contempt proceeding on a solicitor/client basis.