Applicants Outline of Argument

1. At the hearing of the appeal, the appellant will advance argument on two issues only, namely –

(a) whether the act of publication was an “act done because of the ethnic origin” of Jewish Australians, within the meaning of s.18C(1)(b) of the Racial Discrimination Act 1975 (Cth) (“the Act”);

(b) if so, whether the act of publication was done reasonably and in good faith in the course of a discussion or debate made or held for any genuine academic purpose, or any other genuine purpose in the public interest, within the meaning of s.18D(b) of the Act.

2. Accordingly, the appellant maintains only the grounds of appeal identified in paragraphs 9(b) and 15 of the notice of appeal, and abandons all other grounds.

“(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.”

4. Paragraph (b) is the critical provision. It defines the scope and limits of the prohibition. Without it, the mere use of offensive words or gestures would be unlawful.

5. The notion of discrimination on the grounds of race is readily comprehensible.[1] By contrast, the notion that certain words are spoken “because of the ethnic origin” of a person or persons is rather more elusive.

6. Plainly enough, the phrase “because of” requires that there be a causal connection between the statement and the ethnic origin of the person(s) concerned[2]. It is far from clear, however, under what circumstances it can be said that the ethnic origin of the person(s) caused the maker of the statement to say what he/she did - or that ethnic origin was “the reason, or one of the reasons, for doing the act”.[3]

7. The provisions of the Act give effect to the International Convention on the Elimination of all Forms of Racial Discrimination (“the Convention”)[4]. By s.7 of the Act, approval is given to ratification by Australia of the Convention.

8. Part IIA of the Act, which contains the relevant provisions, was inserted into the Act by the Racial Hatred Act 1995 (Cth).[5]

9. The Racial Hatred Act 1995 is clearly intended to implement Article 4 of the Convention which, in its relevant part, provides as follows:

“States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a) shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;…” (emphasis added)

10. As appears from the emphasised passage, the touchstone of the offence contemplated by the Convention is the dissemination of ideas based on racial superiority or hatred. Part IIA of the Act should be construed accordingly, since –

“Parliament, prima facie, intends to give effect to Australia’s obligations under international law.”[6]

11. Part IIA is intended to proscribe acts which can be characterised as expressions of racial hatred. So much is confirmed, unambiguously, by the title of the 1995 Act (“the Racial Hatred Act”) and the title of Part IIA itself, “Prohibition of Offensive Behaviour Based on Racial Hatred”. Reference to the headings as an aid to interpretation is permissible.[7]

12. In construing s.18C, the Court should also have regard to Australia’s obligations under the International Covenant on Civil and Political Rights.[8] Article 19.2 of that Covenant recognises the right to freedom of expression, including the right to impart “ideas of all kinds”, subject only to those restrictions as are necessary for (relevantly) respect of the rights or reputation of others.[9]

13. In a series of decisions in this Court, beginning with Creek v. Cairns Post Pty Ltd, it has been held to be sufficient to satisfy the requirements of s.18C(1)(b) in a case such as this if –

This was the approach adopted by the learned trial Judge in the present case.[11]

14. With respect, this interpretation (“the Cairns Post interpretation”) does not reflect either the language or the intent of the provision. As to the language, the Cairns Post interpretation robs the words “because of” of virtually all their meaning and effect. To speak of ethnic origin as being “a factor in the decision to publish” is altogether different from saying that the act of publication is “actuated by” the ethnic origin of the person(s) concerned.[12]

15. Moreover, the Cairns Post interpretation ignores altogether the requirement that the behaviour be based on racial hatred. This is unsurprising given that Kiefel J in that case expressly rejected the proposition that the offence required –

“the behaviour to be shown as having its basis in actual hatred of race”.[13]

16. The Cairns Post interpretation thus gives to s.18C(1) an operation which is not authorised by the external affairs power of the Parliament, since it is not –

“reasonably capable of being considered appropriate and adapted to implementing [Article 4 of the Convention]”.[14]

‘be read and construed subject to the Constitution and so as not to exceed the legislative power of the Commonwealth.”[15]

18. Applying the foregoing principles, an act of publication should not be regarded as falling within s.18C(1)(b) unless what is published can be characterised as an expression of racial hatred. That is the causal connection which the words “because of the ethnic origin…” require to be demonstrated.

19. The concept of racial hatred defines – and limits – the scope of Part IIA as a whole, and of s.18C(1)(b) in particular. Unless that element is present, the operation of the provision will travel beyond the limits of the Convention and of legislative power.

20. So construed, s.18C(1)(b) does not apply to the published material the subject of this proceeding. On no reasonable view can it be characterised as an expression of racial hatred. Rather, it is an expression of denial, of dissent, of scepticism in relation to the Holocaust, of a refusal to accept as fact matters which are and have been for decades universally accepted.

21. The appellant’s position is an unorthodox one; his views are expressed tendentiously, often combatively, sometimes offensively; but it cannot be said that what he publishes is an act of “dissemination of ideas of racial hatred”, within the language of Article 4 of the Convention.

22. Alternatively, if the appellant’s act of publication would otherwise be rendered unlawful by s.18C, it attracts the exemption provided by s.18D.

23. On a fair reading of the published material, it cannot be doubted that the position adopted by the appellant is genuine, however extreme or wrong-headed it may be perceived by others to be. The challenge which Dr Toben makes to others to provide evidence in support of the conventional view of the Holocaust is likewise clearly genuine, however absurd or provocative that challenge may be thought by others to be.

24. Nor can it be doubted that the material was published in order to provoke debate. Whether or not this is to be regarded as a “genuine academic purpose”, it is a “genuine purpose in the public interest”, within the meaning of s.18D(b) of the Act.

[1] cf. Australian Iron and Steel Pty Ltd v. Banovic (1989) 168 CLR 165 at 176; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359.

[2] See Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 359 [27] per Kiefel J.

[3] S.18B.

[4] Koowarta v. Bjelke-Peterson (1982) 153 CLR 168 at 221 per Stephen J.

[5] Act No.101 of 1995.

[6] Minister for Immigration and Ethnic Affairs v. Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J.

[7] Acts Interpretation Act 1901 (Cth) s.13(1); Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15] per Drummond J; Concrete Constructions (NSW) Pty Ltd v. Nelson (1990) 169 CLR 594 at 602-4 per Mason CJ and Deane, Dawson and Gaudron JJ;

[8] See Human Rights and Equal Opportunity Commission Act 1986 Schedule 2.

[9] Article 19.3.

[10] Creek v. Cairns Post Pty Ltd (2001) 112 FCR 352 at 359 per Kiefel J; followed in Jones v. Scully [2001] FCA 879 at [114] per Hely J.

[11] Reasons for judgment para 98 AB 732-3.

[12] cf. Waters v Public Transport Corporation (1991) 173 CLR 349 at 400 per McHugh J, cited with approval by Kiefel J in Cairns Post (supra) at 358 [20], [24].

[13] 112 FCR 352 at 357 [18].

[14] Victoria v. The Commonwealth 919967) 187 CLR 416 at 487.

[15] Acts Interpretation Act 1901 s.15A.

1. Since the filing and service on 18 February of the outline of submissions, counsel for the appellant have received copies of the notice of motion filed on behalf of the respondent and returnable before the Full Court. This supplementary submission addresses the issues raised by that notice of motion.

2. The judgment under appeal was given in exercise of the Court’s discretion under O 10 r 7 and O 11 r 23.[1]

3. Under O 35 r 7(2), the Court has power to set aside a judgment in certain specified circumstances. Even if that rule were applicable – only subparagraph (c) could be relevant – there is no bar to a person in the position of the present appellant invoking the appellate jurisdiction of the court. The conferral of a power to set aside a judgment is a departure from the general rule that, except by way of appeal, the Court as no power to review, rehear, vary or set aside any judgment or order after it has been formally recorded.[2]

4. Under s.24(1A) of the Federal Court of Australia Act 1976, there is no appeal from an interlocutory judgment except by leave.

5. The judgment at first instance is properly to be regarded as a final judgment, since, if it stands, it finally determines the rights of the parties.[3]

6. If, contrary to the foregoing submission, the judgment is to be regarded instead as interlocutory, an application for leave will be made at the commencement of the hearing. The grounds of that application are that –

(a) for the reasons set out in the outline of submissions, the reasoning of her Honour is attended with sufficient doubt to warrant the grant of leave;

(c) the construction of s.18C(1)(b) of the Racial Discrimination Act 1975 (Cth) raises a question of general importance.

7. As the Full Court emphasised in Decor Corp Pty Ltd v. Dart Industries Inc[5], there is an important distinction between an interlocutory decision on a point of practice, in relation to which a “tight rein” should be kept on appeals, and an interlocutory decision which in effect determines substantive rights, where leave will more readily be granted.

[1] Reasons for judgments para 59 AB 721.

[2] Grierson v. R (1938) 60 CLR 431 at 436; Texas Co (Australasia) Limited v. FCT (1940) 63 CLR 382 at 457; Bailey v. Marinoff (1971) 125 CLR 529 at 530.

[3] Cubillo v Commonwealth (2001) 183 ALR 249 at 250.

[4] Decor Corporation Pty Ltd v. Dart Industries Inc (1991) 33 FCR 397.

[5] Supra at 400.