1. The appellant appeals from the whole of the judgment of the Honourable Justice Branson given on 17 September 2002 at Sydney, New South Wales.

GROUNDS

The learned Judge erred in law:

2. (deleted) In deciding as a matter of discretion to exercise jurisdiction pursuant to either Order 10, rule 7 or Order 11, rule 23 to entertain the application for summary judgment.

3. (deleted) In failing to consider and determine the issue of the constitutional validity of the Racial Discrimination Act 1975 which issue the Appellant had in a Notice of Motion filed on or about 2 April 2002 sought to raise by way of answer to the application for summary judgment.

4. (deleted) In giving summary judgment for the Applicant.

5.(deleted) In deciding that the Applicant was a person aggrieved by the act the subject of the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission.

6. (deleted) In deciding that section 144 of the Evidence Act 1995 absolved the Applicant from proof of part of the circumstances said to be embodied in the act the subject of the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission;

7. (deleted) In deciding that the placing of text and graphic material on a website on the World Wide Web amounted, in the absence of proof that the material was capable of being located by a Web browser facility, to an act taken not to be done in private within the meaning of s 18C of the Racial Discrimination Act 1975.

8. (deleted) In deciding for the purposes of the possible application of s 24 of the Racial Discrimination Act 1975 that, properly interpreted, the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission was to be understood as a complaint material that was found on the website referred to in the letter of complaint on or shortly before the complaint.

9. Having found that the appellant had published material, her Honour erred in law in then deciding:

(a) (deleted) that the publication of the material was an act within the meaning of s 18C(1)(a) of the Racial Discrimination Act 1975;

(b) that the publication was done because of the ethnic origin of some other person or of some or all of the people in a group within the meaning of s 18C(1)(b) of the Racial Discrimination Act 1975, on the ground that ethnic origin was a factor in the Appellant's decision to publish the impugned material.

9A Her Honour should have held that, on the proper construction of the Act, an act of publication does not fall within s.18C(1)(b) unless what is published can be characterised as an expression of racial hatred.

9B Her Honour should have held that the material published by the appellant could not be so characterised and, accordingly, that s.18C(1)(b) did not apply.

10. (deleted) In deciding that s 18C(1)(a) of the Racial Discrimination Act 1975 set up an objective test or standard.

11. (deleted) In deciding that, in the absence of any direct evidence that any person was offended, insulted, humiliated or intimidated by the material that was the subject of the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission, the publication of such material was capable of contravening s 18C(1) of the Racial Discrimination Act 1975.

12. (deleted) In deciding that, properly interpreted, the term "likely" in s 18C(1)(a) of the Racial Discrimination Act 1975 meant more probable than not.

13. (deleted) In deciding that the proper interpretation of s 18C(1)(a) of the Racial Discrimination Act 1975 called for the application of the legal principles or standards applicable to the ascertainment of defamatory meaning.

14. (deleted) In deciding that, properly interpreted, the prohibition contained in s 18C(1) of the Racial Discrimination Act 1975 extended to the expression of ideas or opinions that might be considered to:

(a) engender in a person a feeling that the expression of the ideas or opinions challenged or denigrated a central aspect of that person's ethnic heritage or history, or

(b) engender in a person a sense of being treated contemptuously, disrespectfully and offensively, or

(c) cause damage to the pride and self-respect of vulnerable or impressionable members of an ethnic group to whom the person belongs.

15. His Honour erred in law in deciding that none of the material before the Court established that the Appellant had relevantly acted in good faith, within the meaning of s 18D of the Racial Discrimination Act 1975.

15A. Her Honour ought to have found that the act of publication by the appellant was done reasonably and in good faith in the course of a statement, publication, discussion and/or debate made or held for a genuine academic purpose and/or a genuine purpose in the public interest, within the meaning of s.18D(b) of the Act.

16. (deleted) Having decided that the Appellant had engaged in conduct that was unlawful under the Racial Discrimination Act 1975 in then deciding that this was an appropriate case in which to make the orders appealed against.

ORDERS SOUGHT

In place of the judgment from which the appeal is brought, the Appellant seeks orders that:

1. This appeal be allowed;

2. The decision below be set aside and in lieu thereof there be orders -

A That the application for enforcement of determinations of the Human Rights and Equal Opportunity Commission be dismissed;

B The Respondent pay the costs of the application below;

3. That the Respondent pay the Appellant's costs of this appeal;

4. Such further or other orders or relief as the Court considers appropriate.

TAKE NOTICE

(a) Before taking any step in the proceeding you must enter an appearance in the Registry, unless you have already entered an appearance pursuant to Order 52, rule 7.

(b) The papers in the appeal will be settled before the Registrar at 11.00am on Friday, 22 November 2002.

The appellant's address for service is C/- SUE OWENS, Solicitor, 78 Wattle Road, Hawthorn, Victoria 3122.

DATED: 3 October 2002; (deleted)

4 April 2003

_____________________________

SUE OWENS

Solicitor for the Appellant

The appellant hereby gives notice that the above proceeding involves a matter arising under the Constitution or involving its interpretation, within the meaning of s.78B of the Judiciary Act 1903 (Cth).

The constitutional question which arises is whether s.18C(1) of the Racial Discrimination Act 1975 (Cth) ("the Act"), as construed by the Federal Court of Australia in the decision under appeal and in earlier decisions of the Court, is invalid as being beyond the limits of the legislative power of the Parliament under s.51(xxix) of the Constitution to make laws with respect to external affairs.

Subsection 18C(1) provides:

"(1) It is unlawful for a person to do an act, otherwise than in private, if:

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group."

In the decision under appeal, her Honour Justice Branson held that it was sufficient to satisfy the requirements of s.18C(1)(b), in relation to an act of publication, if -

"anything suggests race as a factor in the .... decision to publish."

The same construction of s.18C(1)(b) was applied in Creek v. Cairns Post Pty Ltd (2001) 112 FCR 352 at 359 and Jones v. Scully [2002] FCA 1080 at [114].

The provisions of the Act give effect to the International Convention on the Elimination of All Forms of Racial Discrimination. Part IIA of the Act, which contains the relevant provisions, is evidently intended to implement Article 4 of the Convention.

The question which arises in this appeal is whether, as the appellant contends, the construction of s.18C(1) adopted by her Honour gives to that subsection an operation which exceeds the legislative power of the Commonwealth, having regard to s.51(xxix) and the terms of Article 4 of the Convention.

Dated: 7 April 2003

...................................................................

Sue Owens

Solicitor for the appellant