A. PRELIMINARY

1. The Attorney-General of the Commonwealth intervenes in this appeal pursuant to s 78A of the Judiciary Act 1903 to support the validity of Part IIA of the Racial Discrimination Act 1975 (Cth) (RDA). The Attorney-General intervenes to make general submissions as to the validity of Part II and as to the connected questions of statutory construction. He makes no submission as to whether in this case leave to appeal is required or should be granted, or whether the appeal should be allowed.

B. STATUTORY CONSTRUCTION

Section 18C

2. Section 18C renders unlawful acts done "otherwise than in private" which are "reasonably likely" to offend, insult, humiliate or intimidate another person or a group of people and which are done "because of" the race, colour or national or ethnic origin of the person or group.

3. The requirement that the act be done "otherwise than in private" ensures that Part IIA of the RDA does not apply to the private conversations of individuals, even if they would have an emotional impact on a disinterested bystander. In private, members of the community can conduct an ill-informed debate amongst themselves and not attract the provisions of Part IIA. Such debate may be muddle-headed, based on incorrect information from an unreliable source or involve gross factual distortions, but that does not invoke the operation of Part IIA.

4. The requirement that the act be "reasonably likely" to offend is to be determined on an objective basis.

5. The requirement that the act be done "because of" race or ethnic origin ensures that there is a causal nexus between the act and the race or ethnic origin of the person offended. Australian discrimination and victimisation laws require a causal nexus between the impugned act and the ground of discrimination or victimisation. Although the nexus is expressed in different ways, including "because of" , "by reason of" and "on the ground of" , the provisions are equivalent phrases and should be construed in a consistent way. There is no reason to construe the expression "because of" in s 18C(1)(b) differently from those expressions in other discrimination laws.

6. The phrase "because of" is to be construed to require an identification of the "true basis" or reason for the act. This construction is supported by the ordinary meaning of "because of" - ie. "by reason of; on account of". It is also supported by s 18B of the RDA which makes it clear that it is necessary to have regard to the actor's reasons for doing the act.

7. However, it is not necessary to establish that the actor consciously intended to engage in the offensive behaviour . It would subvert the intention of Part IIA of the RDA if acts done unconsciously or in ignorance (but which were offensive and done because of race or ethnic origin) did not fall within s 18C(1)(b). While the reasons of the actor must be examined, ultimately the real basis of, or reason for, the act is to be determined objectively.

8. To the extent that the construction of "because of" adopted by the trial judge in this case might suggest that the task is not to ascertain the reason or reasons for the impugned act or that a mere suggestion of the reason or reasons is sufficient, the Commonwealth submits that the construction is too broad.

9. On the other hand, Part IIA does not require that the act "be an expression of racial hatred". Clearly Part IIA contains no express requirement to that effect. Nor do the terms of Part IIA suggest any basis on which the requirement should be implied. It is true that the heading to Part IIA characterises the Part as prohibiting "offensive behaviour based on racial hatred" and the heading is deemed to be part of the Act. However, a heading to a Part of an Act will generally not limit the scope of the provisions within the Part where the provisions are unambiguous. No such ambiguity arises in s 18C(1) and the heading therefore cannot be relied on to limit the scope of its operation.

10. In any case, the construction of Part IIA supported by the Commonwealth is entirely consistent with a description of the Part as prohibiting offensive behaviour based on racial hatred. The effect of Part IIA is to render unlawful acts which are likely to be acts of racial hatred or to encourage acts of racial hatred. Acts done in public which are objectively likely to offend, insult, humiliate or intimidate and which are done because of race, colour or national or ethnic origin are likely to encourage other persons to acts of racial hatred and/or to constitute acts of racial hatred in themselves. It is difficult to conceive of a public and objectively offensive act done for reasons of race or ethnic origin which would not be an act of racial hatred or, at the least, not have the potential to encourage racial hatred.

11. If Part IIA, construed according to ordinary principles of statutory construction, does extend to render unlawful acts which cannot be seen as acts of racial hatred or as acts inciting racial hatred, there is no reason to read down the provisions of Part IIA to encompass only acts of this nature unless the Constitution requires it. For the reasons given in Part C below, the Constitution does not require it.

Section 18D

12. If the question of the application of s 18D arises in this appeal, the Commonwealth submits that s 18D extends to exempt a significant range of activity that would otherwise be rendered unlawful. As the Explanatory Memorandum to the Racial Hatred Bill 1994 states:

Proposed section 18D provides a number of very important exemptions to the civil prohibition created by proposed section 18C. The exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest.

However, the operation of proposed section 18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.

13. However, even if the requirement that the act be done "in good faith" requires an inquiry into the state of mind of the actor , the requirement that the act be done "reasonably" and, for the purposes of s 18D(b), be "genuine" or "in the public interest" indicates that subjective good faith and genuineness of belief are not sufficient to invoke the protection of s 18D. It is not enough that the act be an expression of genuine belief if, in all the circumstances, the act is not done reasonably even allowing for the statutory intention not wholly to prohibit the airing of extreme views genuinely held. Section 18D is clearly directed at ensuring a balance between prohibiting the offensive acts to which s 18C applies and free speech and requires the courts to seek to strike that balance by applying a test of reasonableness.

C. CONSTITUTIONAL VALIDITY

14. The RDA is principally an exercise of the power of the Commonwealth Parliament to make laws with respect to "external affairs" (s 51(xxix) of the Constitution) by giving effect to the International Convention on the Elimination of all Forms of Racial Discrimination (CERD) to which Australia is a party. The preamble to the RDA refers to CERD, and the English text of CERD is set out in the Schedule to the RDA. In Koowarta v Bjelke-Petersen , the High Court upheld the validity of the RDA as then enacted as an exercise of the external affairs power.

15. The racial hatred provisions in Part IIA were added to the RDA in 1995. Part IIA is also an exercise of the external affairs power. It gives effect to CERD, in particular Article 4 of CERD. Part IIA also gives effect to Article 20(2) of the International Covenant on Civil and Political Rights (ICCPR), to which Australia is a party.

External affairs power

16. A law will be a valid law with respect to a head of legislative power in s 51 of the Constitution if there is a sufficient connection between the law and the subject matter of the head of power. One basis on which the requisite connection with the subject-matter of "external affairs" is established is that the law is reasonably capable of being considered as appropriate and adapted to implementing a treaty to which Australia is a party.

17. The external affairs power does not authorise general regulation of the subject-matter to which a treaty relates; the law implementing the treaty "must conform to the treaty and carry its provisions into effect".

18. However, the terms of treaties often lack precision and leave to the States Parties to the treaty a discretion as to the means by which the treaty is to be carried out. In these circumstances, "it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end". The formula adopted by the High Court ("reasonably capable of being considered appropriate and adapted", not simply "reasonably appropriate and adapted") emphasises that the Parliament has a "margin of appreciation" in choosing the means appropriate or adapted to giving effect to the treaty. It is not necessary that the law give effect only to treaty obligations; responding to matters of international debate, recommendation or negotiation, including giving effect to a provision of a treaty which does not impose an obligation, can equally involve a matter of external affairs.

19. Furthermore, a law purporting to implement a treaty does not depend for its validity on conformity with all the obligations assumed under the treaty. A law partially implementing a treaty will be invalid only "if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention."

Part IIA of the RDA and CERD

20. Part IIA of the RDA is reasonably capable of being considered as appropriate and adapted to giving effect to CERD. CERD recites the resolve of States parties "to adopt all measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and discrimination". Article 2 of CERD imposes an obligation on States Parties to the Convention to take measures to prohibit racial discrimination. Article 4 imposes an obligation "to adopt immediate and positive measures designed to eradicate all incitement to, or acts of," racial hatred and discrimination. Article 7 imposes an obligation to adopt measures "with a view to combating prejudices which lead to racial discrimination and to promoting tolerance", particularly in the fields of "teaching, education, culture and information".

21. The effect of Part IIA is to render unlawful acts which are likely to incite racial hatred or discrimination or are themselves likely to be acts of racial hatred or discrimination. Acts done in public which are objectively likely to offend, insult, humiliate or intimidate and which are done because of race, colour or national or ethnic origin are likely to incite other persons to racial hatred or discrimination or to constitute acts of racial hatred or discrimination. The fact that Part IIA extends to acts not intended by the actor to incite racial hatred or discrimination does not mean that Part IIA does not conform with CERD. Article 4 itself does not require intent.

22. Even if, despite the "otherwise than in private" requirement and s 18D, Part IIA applied in some circumstances in which the impugned act was not likely to incite racial hatred or discrimination, the Parliament is entitled to select the precise means by which it seeks to eradicate incitement to, and acts of, racial hatred and discrimination. There can be no suggestion that Part IIA is directed at an end other than giving effect to the obligation to take measures to eradicate incitement to, or acts of, racial hatred and discrimination, and it is clear that Part IIA is capable of being reasonably appropriate and adapted to achieving that end.

23. The opening words of Article 4 impose a general obligation on Australia to adopt measures designed to eradicate incitement to racial hatred and discrimination, and the obligations set out in Article 4(a) - (c) do not exhaustively define the extent of the obligations imposed on Australia under Article 4. Article 4 imposes the Article 4(a) - (c) obligations "inter alia" - ie. they are obligations imposed amongst other obligations imposed by the Article. Even if Article 4 did not impose an obligation beyond those specified in Article 4(a) - (c), Part IIA nevertheless gives effect to a provision of a treaty (the opening words of Article 4) and is a valid exercise of the external affairs power.

24. If Part IIA could be said only partially to implement its obligations under Article 4 of CERD , it could not be said that Part IIA is substantially inconsistent with CERD. Part IIA is directed at prevention of acts which are likely to incite racial hatred or discrimination or which are themselves likely to be acts of racial hatred or discrimination, and this is clearly consistent with the object of Article 4 of CERD. Part IIA represents the legitimate choice of the legislature as to the way in which CERD is to be implemented by Commonwealth legislation.

25. Finally, Part I of CERD (which includes Articles 2, 4 and 7) is clearly directed not only at prohibiting acts of racial discrimination and hatred as they arise, but also at taking measures to prevent development of the racial prejudice which leads to acts of racial hatred and discrimination. The particular measures to be taken are not prescribed by CERD. CERD leaves it to States Parties to adopt the measures they choose directed at prevention as well as prohibition. At the least, Part IIA of the RDA gives effect to the obligations to take measures to 'eradicate' racial hatred and discrimination and to 'combat prejudice' by way of preventative measures.

Part IIA of the RDA and the ICCPR

26. Article 20(2) of the ICCPR imposes an obligation on States Parties to prohibit by law "[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence". Again, because the effect of Part IIA is to render unlawful acts which are likely to incite racial hatred or discrimination (see para 21 above), Part IIA gives effect to the obligation in Article 20(2).

16 May 2003

……………………………………

David Bennett

Solicitor-General of the Commonwealth

Tel: (02) 9230 8903

Fax: (02) 9230 8920

……………………………………

Chris Ronalds

Tel: (02) 9229 7378

Fax: (02) 9221 6944

Counsel for the Attorney-General of the Commonwealth, intervening.