Builders' website off the hook for vilification of Jewish HIA chief

Maurice Dunlevy

The Australian, 3 November 2007

The Federal Court has dismissed a claim that a rival building industry organisation racially vilified Ron Silberberg, the Jewish national managing director of the Housing Industry Association.

Dr Silberberg launched the action against the Builders Collective of Australia and its national president, Phil Dwyer, over posts on the BCA website.

But while finding that the author of the comments, Sydney builder Ken Buckley, had breached the Racial Discrimination Act, ACT Federal Court judge Roger Gyles dismissed the proceeding against the BCA and ordered that Dr Silberberg pay Mr Dwyer’s expenses.

The court heard that in May 2005, Mr Buckley, under the heading “God help us”, wrote: “Director Ron Silberberg, that’s a good Irish name. That in itself explains the monetary push in the HIA.”

In a second post in January 2006, Mr Buckley wrote that Dr Silberberg was out to break little builders.

After a description of Dr Silberberg’s professional background with the HIA, including a reference to his qualification of Bachelor of Economics, he wrote: “You will note … in red above B.Ec. means Bachelor of Economics … translated, he is primarily interested in making lots of money and has the background prior to education to unequivocally qualify by way of genes.”

Both messages remained on the website for more than six months before being removed by the BCA, after it had received a letter of complaint from Dr Silberberg’s solicitor.

Judge Gyles said that while Mr Dwyer was responsible for the administration of the website, messages were posted automatically without intervention by the BCA.

There was no systematic monitoring thereafter, although postings were received from time to time.

The judge said it was abundantly clear that Dr Silberberg’s Jewish race and ethnicity was a reason for the messages to be published by Mr Buckley, which was a breach of the Racial Discrimination Act.

But he also ruled that the BCA should not be held responsible for the offensive material.

BCA’s failure to remove the material had been an act likely to offend Dr Silberberg, but it could not be shown to be attributable to his race or ethnic origin.

The court action, in which Mr Buckley was ordered to pay Dr Silberberg’s costs, is a sequel to a long-running dispute between the BCA and HIA over mandatory builders’ warranty insurance, which industry sources estimate earns the HIA $25 million to $30 million per year in commission from big insurance companies.