Federal Court of Australia - Full Court

Toben v Jones [2003] FCAFC 137 (27 June 2003)

Last Updated: 3 July 2003

FREDERICK TOBEN v JEREMY JONES

N1049 of 2002

CARR, KIEFEL & ALLSOP JJ

27 JUNE 2003

SYDNEY

Amendment to the reasons for judgment of Justice Carr.

In paragraph 22, second line - "done otherwise than in public ..." should read "done otherwise than in private..."

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

Associate to Justice Carr

HUMAN RIGHTS AND DISCRIMINATION LAW - RACIAL DISCRIMINATION - appeal from declaratory orders made to enforce determination of Human Rights and Equal Opportunity Commission that material published by the respondent racially vilified Jewish people - whether the primary judge erred in concluding that the material was reasonably likely to offend, insult, humiliate or intimidate Jews in Australia and that whether the publication was done `because of' the race or ethnic origin of a group of people - the meaning of `because of' - whether publication done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest.

CONSTITUTIONAL LAW - Racial Discrimination Act 1975 (Cth) Part 2A whether constitutionally valid - external affairs power, s51(xxix) of the Constitution - implementation of the International Convention on the Elimination of all Forms of Racial Discrimination - whether the Act is reasonably appropriate and adapted to implementing a treaty to which Australia is a party.

WORDS AND PHRASES - `because of'.

Commonwealth Constitution s 51(xxix)

Racial Discrimination Act 1975 (Cth), ss 18B, 18C, 18D

Acts Interpretation Act 1901 (Cth), s 15A

Evidence Act 1995 (Cth), ss 97, 98, 100

Racial Hatred Act 1995 (Cth)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to

Koowarta v Bjelke-Petersen (1981) 153 CLR 168 referred to

Victoria v The Commonwealth (1996) 187 CLR 416 applied

Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 referred to and discussed

Jones v Scully [2002] FCA 1080 referred to and discussed

McGlade v Lightfoot [2002] FCA 1457 referred to

Vines v Djordjavitch (1955) 91 CLR 512 referred to

Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 referred to and discussed

Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 referred to and discussed

Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 referred to

Waters v Public Transport Corporation (1991) 173 CLR 349 referred to

Hall v Nominal Defendant (1966) 117 CLR 423 applied

Wickstead v Browne (1990) 30 NSWLR 1 applied

Dart v Norwich Union Life Australia Ltd [2002] FCA 168 applied

Maher v Commonwealth Banking Corporation [2002] FCAFC 104 applied

Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 applied

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 applied

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 applied

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied

Oyston v Blaker [1996] 1 WLR 1326 referred to

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied

Inglis v Robertson [1898] AC 616 applied

Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54 applied

The Commonwealth v Tasmania (1983) 158 CLR 1 applied

Richardson v Forestry Commission (1988) 164 CLR 261 applied

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to

Virginia v Black, U.S Supreme Court, 7 April 2003 referred to

Kapoor v Monash University (2001) 4 VR 483 referred to

University of Ballarat v Bridges [1995] 2 VR 418 referred to

Schwelb "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996

Lerner The U.N. Convention on the Elimination of all Forms of Racial Discrimination (Sijthoff & Noordhoff 1980 2^nd Ed)

Bennion Statutory Interpretation (3^rd Ed)

Forbes Similar Fact Evidence ch 10

Heydon Cross on Evidence (6^th Ed) pp 601-604

Human Rights and Equal Opportunity Commission: the National Enquiry into Racist Violence 1991

Royal Commission into Aboriginal Deaths in Custody 1991

Australian Law Reform Commission: Multiculturalism and the Law 1992

McNamara Regulating Racism: Racial Vilification Laws in Australia

FREDRICK TOBEN v JEREMY JONES

N 1049 of 2002

CARR, KIEFEL & ALLSOP JJ

27 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

CARR J

INTRODUCTION

1 This appeal raises three questions in relation to the Racial Discrimination Act 1975 (Cth) ("the Act"). The first is whether Part IIA of the Act is constitutionally valid. The second concerns the degree of causal connection, required by the words "because of" in s 18C of the Act, between a particular act alleged to be unlawful, and the race, colour or national or ethnic origin of another person, for there to be a contravention of that section. The third question is whether the relevant act of publication by the appellant was done reasonably and in good faith in the course of a discussion or debate made or held for any "genuine academic purpose" or "genuine purpose in the public interest" within the meaning of those phrases in s 18D(b) of the Act.

FACTUAL AND PROCEDURAL BACKGROUND

2 On 30 March 2001 the respondent (as applicant at first instance) filed an application in this Court to enforce determinations made by the Human Rights and Equal Opportunity Commission ("the Commission") on 5 October 2000. In summary, the Commission found that the appellant, representing "the Adelaide Institute" had engaged in conduct rendered unlawful by s 18C of the Act by publishing certain material on the internet which the Commission found to be "racially vilificatory of Jewish people".

3 It is not necessary to refer to the fairly extensive procedural history of the matter at first instance, all of which was described in some detail in the reasons for judgment of the learned primary judge when she granted summary judgment in favour of the respondent. In essence, the appellant failed to comply with procedural directions which included a direction for the filing of a defence. The appellant also made it clear that he had no intention of co-operating in the preparation of the case for hearing. He did this by, among other things, remaining silent when asked to respond at the last directions hearing, and by not attending on the first day on which the summary judgment application was heard. In determining the application for summary judgment her Honour read affidavit evidence filed by the respondent. She made several findings of fact and reached conclusions of law, most of which are not in dispute. Her Honour granted summary judgment in the form of a declaration that the appellant had engaged in conduct rendered unlawful by Part IIA of the Act by publishing on the World Wide Web a document headed "About the Adelaide Institute" ("the Document"), the full text of which is set out below. She also granted injunctions requiring the appellant to remove the Document from any web site controlled by him or the Adelaide Institute, and not to publish or re-publish the Document or any other substantially similar material. The appellant was also ordered to pay the respondent's costs of the application. I refer below to some of the detail of her Honour's reasons.

4 The appellant filed a notice of appeal which raised a considerable number of points. But the issues have since been narrowed to the three matters which I have described above.

5 When the appeal came on for hearing last February, it appeared that a constitutional question might be involved. Accordingly the appeal was adjourned so that notices could be given to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth).

6 In response to those notices, the Attorney-General of the Commonwealth intervened in the appeal. No other Attorney-General did so. The Solicitor-General of the Commonwealth made submissions as to the validity of Part IIA and certain connected questions of statutory construction.

THE COMPETENCE OF THE APPEAL

7 The respondent filed a notice of motion challenging the competence of the appeal and seeking an order that it be dismissed. In the alternative, the respondent sought an order that the appellant's grounds of appeal be confined to the existence of a prima facie case for the relief granted and the exercise of the discretion to enter a default of summary judgment under Order 10 rule 7 and Order 11 rule 23 of the Federal Court Rules. The respondent submitted that the judgment at first instance, being a default judgment, was capable of being set aside, was not final and appealable as of right. The appellant submitted that the judgment should properly be regarded as a final judgment because, if it stood, it finally determined the rights of the party. Alternatively, if the judgment were to be regarded as interlocutory, the appellant sought leave to appeal.

8 In my view, it is not necessary for us to decide whether leave to appeal is required. If it is required, I would grant leave to appeal because, in my view, the construction of s 18C(1)(b) of the Act raises a matter of importance which it is appropriate should be determined by a Full Court - see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399.

THE LEGISLATIVE FRAMEWORK

9 Part IIA was inserted into the Act by the Racial Hatred Act 1995 (Cth). It comprises ss 18B to 18F. The provisions relevant to this appeal are as follows:

`PART IIA--PROHIBITION OF OFFENSIVE BEHAVIOUR BASED ON RACIAL HATRED

Reason for doing an act

18B. If:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.

Offensive behaviour because of race, colour or national or ethnic origin

18C. (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.

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

(c) is done in the sight or hearing of people who are in a public place.

(3) In this section:

"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.

Exemptions

18D. Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.'

THE DECISION AT FIRST INSTANCE

10 In the respondent's affidavit in support of his application for summary judgment he listed several publications which formed the subject matter of his complaint to the Commission. Her Honour found that the Document was the only material identified in the statement of claim which was the subject of evidence before the Court (in the form of the respondent's affidavit).

11 The Document had an index of contents which included the items "Revision links", "Australia Links" and "Myth Links". The next page was headed "The Continuing Intellectual Adventure of the 21^st Century" under which appeared three photographs. Immediately above the photographs was the notation "Dr Fredrick Töben, Director. Visiting Auschwitz-Birkenau, Krema II". Below the three photographs were the following respective descriptions: "Entering the alleged gas chamber", "View of the roof, Töben disappears", "The four alleged gas-induction holes do not exist!" followed by, in bold type, "No holes - no Holocaust!", the statement "I have been looking at these pictures for six months and there are still no holes!" and a comment "Dr Töben is attending the international conference `Zionism and Revisonism' in Beirut, Lebanon. Conference Cancelled!"

12 The next page contained a small diagram comprising a cross with what appears to be a helmet above it and the words "ALERT! Blue Ribbon Campaign", followed by an invitation to send comment by e-mail, telephone or fax. The main text of the Document (other than a reproduction of the Australian flag and what appears to be a photograph of the appellant and a Mr David Brockschmidt) was as follows [I have added numbers in the margin for the purposes of certain references which I make below]:

the constitutional question

13 The preamble to the Act relevantly reads as follows:

`An Act relating to the Elimination of Racial and other Discrimination

WHEREAS a Convention entitled the "International Convention on the Elimination of all Forms of Racial Discrimination" (being the Convention a copy of the English text of which is set out in the Schedule) was opened for signature on 21 December 1965:

AND WHEREAS the Convention entered into force on 2 January 1969:

AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention:'

14 I shall refer to the Convention described in full above as "the Convention". Section 7 of the Act provides that approval is given to ratification by Australia of the Convention.

15 The appellant submitted that the insertion of Part IIA into the Act by the Racial Hatred Act 1995 (Cth) was 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; ...'

16 The appellant contended that the "... touchstone of the offence contemplated by the Convention" was the dissemination of ideas based on racial superiority or hatred. The title of the 1995 Act and the heading of Part IIA itself, so it was put, confirmed that that Part was intended only to proscribe acts which could be characterised as expressions of racial hatred. If s 18C was not so construed, it was beyond the constitutional power of the Commonwealth.

MY REASONING

17 The Act in its then form (i.e. prior to the insertion of Part IIA) was held by the High Court of Australia [in Koowarta v Bjelke-Petersen (1982) 153 CLR 168] to be constitutionally valid, as an exercise of the external affairs power conferred by s 51(xxix) of the Constitution. It was common ground that the constitutional validity of Part IIA depended upon whether it too was an exercise of the external affairs power. As the Solicitor-General submitted, 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: Victoria v The Commonwealth (1996) 187 CLR 416.

18 Part IIA of the Act does not fully implement Article 4 of the Convention. There were provisions in the Racial Hatred Bill 1994 which proposed the creation of criminal offences in respect of racial hatred, by amendment of the Crimes Act 1914 (Cth). The Senate rejected those portions of the Bill and the House of Representatives accepted the amendments which had that result; see Hansard, the Senate 24 August 1995 pp 303-329; 18 September 1995 p 890. However, as was explained in the joint judgment in Victoria v The Commonwealth at 489:

`Deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid 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.'

19 In my view, the failure to create criminal offences, but only to enact the provisions of Part IIA is not a deficiency of the type referred to in the latter part of the above passage. Furthermore, in my opinion, an assessment of whether Part IIA is within power requires reference not only to Article 4 but also to Articles 2 and 7 of the Convention and to Article 20 paragraph 2 of the International Covenant on Civil and Political Rights ("the ICCPR") which entered into force for Australia on 13 November 1980. Article 2 of the Convention imposes an obligation on States Parties to take measures to prohibit racial discrimination. The relevant part of Article 4 imposes an obligation to adopt immediate and positive measures designed to eradicate all incitement to 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. Article 20 paragraph 2 of the ICCPR relevantly requires prohibition by law of any advocacy of racial hatred that constitutes incitement to discrimination, hostility or violence. I accept the Commonwealth's submission that 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. In my view, the Convention can be seen to be directed not only at acts of racial discrimination and hatred, but also to deterring public expressions of offensive racial prejudice which might lead to acts of racial hatred and discrimination.

20 In my opinion it is clearly consistent with the provisions of the Convention and the ICCPR that a State Party should legislate to "nip in the bud" the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin before such acts can grow into incitement or promotion of racial hatred or discrimination. The authorities show that, subject to the requisite connection referred to in paragraph 17 above, it is for the legislature to choose the means by which it carries into or gives effect to a treaty - Victoria v The Commonwealth at 487.

21 In my view the provisions of Part IIA are constitutionally valid as an exercise of the external affairs power.

CAUSATION

22 The appellant conceded that publication of the Document was an act which he had done otherwise than in public and which was reasonably likely, in all the circumstances, to offend and insult a group of people, namely Australian Jewry. The concession was made in terms that the appellant accepted that the material in the Document was in all the circumstances "... reasonably likely to offend Australian Jews, the group identified by her Honour". As mentioned below, her Honour identified two groups. I think that it is reasonable to infer, and I do so, that the concession extends to both such groups. The appellant also made a concession that he took no issue with her Honour's conclusion that "... the first limb of s 18C" [obviously a reference to s 18C(1)(a)] was satisfied. Her Honour, in the passages which I set out below, referred to race and ethnic origin interchangeably. No issue about that was raised in the appeal. That is, if there might be a distinction between race and ethnic origin (which the draftsperson of Part IIA appears to have assumed, although the descriptions may well overlap), that was not a matter of argument in this appeal.

23 The appellant submitted that her Honour had erred in law in finding that his act of publishing the Document had been done "because of ... the ethnic origin" of the abovementioned group within the meaning of s 18C(1)(b). The appellant's focus was on the words "because of".

24 The primary judge adopted the approach taken to this question by Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 359 as applied by Hely J in Jones v Scully [2002] FCA 1080 at [114]. That was to inquire whether "anything suggests race as a factor in the respondent's decision to publish" the work in question. The primary judge reasoned as follows:

`99. In my view, it is abundantly clear that race was a factor in the respondent's decision to publish the material set out in [81] above. The material includes many references to Jews and events and people characterised as Jewish. It is particularly concerned with the Holocaust and with the conduct of German forces during World War II, matters of particular importance to Jewish people. It is, in my view, plainly calculated to convey a message about Jewish people (see Jones v Scully per Hely J at [116]-[117]).

100. I am satisfied that the act of publishing on the World Wide Web the material set out in [81] above was done because of the ethnic origin, namely the Jewishness, of the people in the groups which I have identified above (see [95] and [96]).'

25 The groups which her Honour identified at [95] and [96] were, respectively, Australian Jewry, and those members of the Australian Jewish community who were vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability.

26 The appellant submitted that the approach taken in Cairns Post and adopted by her Honour in this case robbed 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" was, so it was put, altogether different from saying that the act of publication was actuated by the ethnic origin of the persons concerned.

27 The appellant also submitted that such an interpretation ignored altogether the requirement that the unlawful act be based on racial hatred. Section 18C(1)(a) should, so it was contended, be read down so as to be limited in scope by the concept of racial hatred in order to be constitutionally valid.

MY REASONING

28 For the reasons which I have set out above, I do not consider that there is any need, relating to the Constitution, to read down s 18C(1)(b) by inserting a requirement of hatred.

29 Section 18B relevantly provides that if an act is done for two or more reasons and one of those reasons is the ethnic origin of a person (whether or not it is the dominant reason or a substantial reason) then, for the purposes of Part IIA, the act is taken to be done because of the person's ethnic origin.

30 In my view, as a general proposition, the words "because of" form the first part of a response to the question "why?" The questions in the present context were - why did the appellant publish the Document?; was one reason for such publication the ethnic origin of the groups referred to in paragraph [24] above or some of the people in those groups?

31 The authorities on the issue of causation in the context of discrimination legislation were reviewed by Kiefel J in Cairns Post at paragraphs [19] to [27]. It seems clear from what her Honour said at paragraph [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach.

32 In the present matter the appellant has not placed any evidence before the Court about his intention or motive in publishing the Document. Nevertheless, in the course of an examination of its contents it may be possible to make inferences about his intention or motive in doing so. It is also useful, in my view, to keep in mind the appellant's concession that publication of the Document was reasonably likely to offend Australian Jews. There is no evidence to suggest that he was unaware of that at the time and no submission to that effect. I now turn to the contents of the Document.

33 I refer first to the paragraph marked 1 in the above extract, the subject of which is revisited at the paragraph which I have marked 5. There can be no doubt (see the first paragraph of the text of the Document) that the reference to 800,000 deaths is to the deaths of 800,000 Jewish people. The appellant conceded, in reply, that the term "Holocaust" is associated with the murder of Jews. In my view, at those two points he was attempting what might be described as a very sick inversion and an exercise in sophistry by arguing that the information about the deaths of a maximum of 800,000 Jewish people was good news and a cause for celebration.

34 The fourth and fifth paragraphs of the Document and the quotation in the sixth paragraph all show that the appellant was conscious that the reader might see its contents as being anti-Semitic or racist. He made an attempt to take the sting out of the Document by rejecting that proposition and also tendering a partial apology in advance of the assertions to come.

35 At points 2 and 3 some insight is given to what the Document is about. It is not confined to a dispassionate scientific investigation of the Nazi Holocaust and events at Auschwitz. At these two points an attempt is made to portray Jews as murderers in the completely different context of the Lenin and Stalin eras in Russia.

36 As her Honour pointed out, there are many references in the Document to Jews and events and people characterised as Jewish. There is no suggestion that the critics of the views of the Adelaide Institute are other than Jewish. Those critics are described at point 4 as "... intellectual midgets but materialistic giants" and at point 6 as "those who have their snout in the trough [of] `the Holocaust racket'".

37 In my opinion, a fair reading of the Document shows that its whole tenor is to offend and insult those who maintain that the Holocaust occurred and, in particular, Jewish people. But it is not necessary to go as far as that to satisfy the requirements of s 18C(1)(b). It is sufficient to conclude that at least one reason why the Document was published was because of the race or ethnic origin of Jewish Australians whom the appellant concedes were reasonably likely to be offended by that publication.

38 In my opinion, a fair reading of her Honour's reasons shows that she was correct in her conclusion that the act of publishing the Document was done because of the ethnic origins, namely the Jewishness, of the people in the relevant groups.

THE THIRD ISSUE - EXEMPTION?

39 As the primary judge observed, the only potentially relevant exemption was that contained in s 18D(b) which provides that s 18C does not render unlawful anything said or done reasonably and in good faith in the course of any publication made for any genuine academic or other genuine purpose in the public interest. Her Honour dealt with this matter, at para [101] of her reasons, in the following terms:

`The onus of proof with respect to an exemption provided for by s 18D rested on the respondent (Jones v Scully per Hely J at [127]-[128]). The respondent did not comply with the direction of the Court to file and serve a defence. This application for summary judgment is to be determined solely on the basis of the evidence placed before the Court by the applicant. Even if the Court were free to have regard to the various material produced to the Court by the respondent, none of that material establishes that the respondent relevantly acted "in good faith". No further consideration need, in the circumstances, be given to s 18D of the RDA.'

40 The appellant submitted that on a fair reading of the Document, it could not be doubted that the position adopted by him was genuine, however extreme or wrong-headed it might be perceived by others to be. The challenge which he had made in the Document to others (to provide evidence in support of the conventional view of the Holocaust) was, so it was put, likewise clearly genuine, however absurd or provocative that challenge might be thought by others to be. The appellant contended that the material was published in order to provoke debate. Whether or not this was to be regarded as a "genuine academic purpose" it was a "genuine purpose in the public interest" within the meaning of s 18D(b).

MY REASONING

41 The appellant did not challenge her Honour's view that he had had the onus of proof with respect to the exemption provided by s 18D(b). I think that is correct. In McGlade v Lightfoot [2002] FCA 1457 at [68] and [69] I noted that Hely J in Jones v Scully appeared to have assumed that the onus of proof with respect to an exemption provided for by s 18D rested on the respondent. I also noted her Honour's conclusion in the present matter and recorded my respectful agreement with both of their Honours. I went on to express the view that the exemptions provided by s 18D of the Act fell within the category of exemptions described by the High Court of Australia in Vines v Djordjevitch (1955) 91 CLR 512 at 519-520.

42 Senior counsel for the appellant said that there did not need to be any evidence in relation to the exemption; he relied simply "on the material", by which he meant the Document.

43 In my opinion the contents of the Document, taken as a whole, do not establish on the balance of probabilities that publication by the respondent of it was done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest.

44 In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.

45 In my opinion, the Document shows that the appellant made no such effort. On the contrary, the terms of the Document are, in my view, deliberately provocative and inflammatory. The reference to the Lenin and Stalin eras was, in my opinion, contrived to smear those on the receiving end of the appellant's message. The appellant described the Jews as "also murderers". This reference was made almost as an aside, clearly to paint Jews in a bad light, before the author resumed his flamboyantly-worded challenge.

46 I think that the primary judge was correct in finding that there was no proof of good faith. I would go further and hold that there was no proof that the publication was done reasonably or in good faith.

47 In those circumstances it is not necessary to consider whether the publication was for any genuine academic or other genuine purpose in the public interest.

CONCLUSION

48 For the foregoing reasons I would dismiss the appeal with costs.

Associate:

Dated: June 2003

KIEFEL J:

49 The history of the proceedings, the findings made by her Honour the primary Judge and the issues arising on the appeal are set out in the reasons for judgment of Carr J. I agree that, if necessary, leave to appeal should be granted in a case such as this.

50 The provisions of Part IIA of the Racial Discrimination Act 1975 (Cth) and in particular ss 18B, 18C, and 18D, are within the power conferred by s 51(xxix) of the Constitution, the external affairs power, as Carr J explains. I respectfully agree with his Honour's reasoning in that regard. It is not necessary to read into subs 18C(1) a requirement that the act in question be done because of racial hatred to reach that conclusion.

51 The subsection does however require a causal connexion between the act in question and the race or ethnic origin of the people affected by it. It requires not only that the act be likely to have a particular impact, such as offending or insulting a person or group, but also that the act be done `because of the race ... of some or all of the people in the group'. The question in this case is what is involved in the second requirement and whether it is made out.

52 Section 18C(1) of the Act provides:

`Offensive behaviour because of race, colour or national or ethnic origin

18C(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.'

53 Section 18B (`reason for doing an act') provides:

`18B. If:

(a) an act is done for two or more reasons; and

(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing that);

then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.'

54 Section 18D subs (b) provides, relevantly, that s 18C does not render unlawful anything said or done reasonably and in good faith `in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest ...'.

55 Her Honour, the primary Judge did not accept that the respondent, Mr Jones, had proved the publication of all of the articles or papers identified in the Statement of Claim. The only article with which her Honour was then concerned is that set out in the reasons of Carr J (at [11] and [12]). The respondent, during argument on the appeal, sought to support the conclusion reached by her Honour, as to whether the requirements of s 18C(1)(b) were made out, by reference to this other material. No notice of contention was however given, and the respondent conceded that he was unable to include the other material in his argument, at least on that issue.

56 Her Honour (at [88]) was satisfied that the publication contained the following meanings or imputations:

`(a) there is serious doubt that the Holocaust occurred;

(b) it is unlikely that there were homicidal gas chambers in Auschwitz;

(c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and

(d) some Jewish people, for improper purposes, including financial gain, exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.'

57 Having resolved the question as to whether the requirements of s 18C(1)(a) were met, a matter no longer in issue, her Honour turned to consider whether the act of publishing the material on the worldwide web was an `act done because of the ... ethnic origin' of the relevant group, namely the Australian Jewry and other members of the Australia Jewish community within that group. As Carr J observes, the terms race and ethnic origin were used interchangeably at some points in the judgment, but nothing turns upon it.

58 In Jones v Scully [2002] FCA 1080 at [114], Hely J observed that the phrase `because of' requires consideration of the reason or reasons for which the relevant act was done (and see Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 at 60, at [23] (Full Court)). It was important to note, his Honour considered, that pursuant to s 18B, if an act is done for one or more reasons, it is enough that one of the reasons is the race, colour or national or ethnic origin of the person or a group of people, whether or not it is the dominant purpose or the substantial reason for doing the act. It was submitted before his Honour that the test to be applied under s 18C(1)(b) was whether race is a `material factor' in the performance of the act in question. His Honour followed the approach I had outlined in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, namely to inquire whether `anything suggests race as a factor in the respondent's decision to publish the work in question'. Her Honour also followed that course. Her Honour found (at [99] and [100]):

`In my view, it is abundantly clear that race was a factor in the respondent's decision to publish the material set out in [81] above. The material includes many references to Jews and events and people characterised as Jewish. It is particularly concerned with the Holocaust and with the conduct of German forces during World War II, matters of particular importance to Jewish people. It is, in my view, plainly calculated to convey a message about Jewish people (see Jones v Scully per Hely J at [116-117]).

I am satisfied that the act of publishing on the World Wide Web the material set out in [81] above was done because of the ethnic origin, namely the Jewishness, of the people in the groups which I have identified above (see [95] and [96]).'

59 It was properly conceded by senior counsel for the appellant that the requirements of s 18C(1)(a) were met and that the publication, viewed objectively (see Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15], per Drummond J); Jones v Scully at [56]), was likely to offend the group or groups of persons identified by her Honour. So far as concerned the application of Part IIA, there remained two issues: whether it could be concluded that the appellant had published the statements `because of' the race of those persons and whether he had acted in good faith and in the course of discussion for a genuine academic or general purpose in the public interest.

60 The appellant's submissions as to the construction of s 18C(1)(b) may be stated shortly. It is submitted that, even if racial hatred is not expressed as a requirement, nevertheless the words `because of' require a strong causative link. Her Honour, in holding that it was sufficient that considerations of race be a factor in the decision to publish, has applied a lesser test. I understood the appellant to contend that in the approach taken race was present as a background factor, but it was not causally connected with or shown to be the reason for the publication. As her Honour's approach is said to have followed that in Creek v Cairns Post, it is necessary for me to say something about the test I there suggested as appropriate.

61 One of the questions with which I was concerned in Creek v Cairns Post was the relevance of a person's motive or intention in relation to their conduct, in the context of discrimination legislation. Some judgments, in cases dealing with other discrimination legislation provisions, had suggested that it did not matter if motive or intention was not shown on the facts: Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176, per Deane and Gaudron JJ; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359, per Mason CJ and Gaudron JJ; discussed at Creek v Cairns Post at [19]. Such a view might bear upon whether a causal connexion was necessary as between the conduct complained of and the relevant attribute of the person affected. In my view a causal connexion was required by s 18C(1)(b) and the relevant enquiry was as to what was the reason for the conduct in question. This would be consistent with the references in s 18B to the reasons for an act. I respectfully followed the test propounded by McHugh J in Waters (at 400-401) in relation to the phrases `on the ground of' and `by reason of'.

62 An enquiry as to the reason for a person's conduct requires consideration of their motive, or as McHugh J said in Waters at 400-401, `The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did'. It was from his Honour's statement that I drew the question which I considered relevant to the facts in Creek v Cairns Post and which appears in the following passage (at [28]):

`In the present case the question is whether anything suggests race as a factor in the respondent's decision to publish the photograph. The context of the article is of course race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race can be taken to have actuated the publication. It is something which commonly occurs in media reports. Rather the inquiry is whether the publication of a photograph, showing the applicant's apparent living circumstances, was motivated by considerations of race.'

63 The inquiry as to motive or reason is not however limited to the explanation a person might provide for their conduct or their genuine understanding as to what motivated them. The enquiry is as to the true reason or true ground for the action (see Banovic at 186, per Dawson J). A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions.

64 It is, I think, important to bear in mind with respect to the question posed by s 18C(1)(b), that it is a separate question and not one to be combined with the enquiry under subs (1)(a) as to whether a statement or other conduct is likely to offend or insult a group. More is required to answer the question as to the motivation of the person complained about and whether the race of the group was one reason. It will in each case be necessary to carefully consider the statements or other conduct and any other relevant evidence with the enquiry of subs (1)(b) in mind and to determine if any apparent motives have the quality the legislation is concerned with.

65 The conclusion reached by her Honour, that the publication in question on the appeal was plainly calculated to convey a message about Jewish people, would seem to me to state the necessary causal connexion. It does not show that her Honour departed from an enquiry as to the appellant's reasons for making and publishing the statements in question. The question, it seems to me, is whether that conclusion was open. This involves a consideration of the imputations (at [56] above) found by her Honour to arise from the publication.

66 With respect to the imputations at (a) and (b), doubt is cast upon the Holocaust, or the extent of it, and the methods of extermination utilised. The article is clearly concerned to challenge, and call for proof of, the events said to constitute the Holocaust and for which the German people have, in the writer's view, been held to account. It concerns events of great significance to Jewish people. Even if it does not amount to a complete denial of the Holocaust, it is more than likely to offend and insult many Jewish people. It is clear that this would have been appreciated by the appellant. He predicted it and offered what was said to be an apology. The question which then arises is whether these factors are sufficient to impute a racially based motive.

67 As I have earlier observed, the consideration of the likelihood, objectively assessed, of offence being caused by statements, the question under s 18C(1)(a), is quite separate from this enquiry. Generally speaking, the fact that that test is satisfied will not, without more, answer the second enquiry under subs (1)(b). The relevance of the offensiveness of statements to this enquiry is as to what may be deduced from it about motive.

68 It may be possible in some cases to infer that a person must have intended offence to the racial or ethnic group in question by what is said or done. In such a case the reason is exposed for the purposes of s 18C(1)(b). Such a conclusion might be reached by reference to the gravity of the offence likely to be caused and the apparent relevance of the statement in the context in which it appears.

69 Some statements which cause offence to a group may be made without a racially based motive and because of a lack of sensitivity or even thought towards others. The making of a statement which is likely to, or which does offend will not be sufficient to qualify it as motivated as s 18C(1)(b) requires. Hagan v Trustees of the Toowoomba Sports Ground Trust provides an example. The sign on the spectator stand was capable of offending, but the evidence showed that the reason for the offending description derived from the nickname of the person it had been named after, many years before. Part IIA does not render unlawful insensitive statements or those made in poor taste.

70 In other cases it may be that, in pursuing an historical or other discourse, offence cannot be avoided. The reason for the statement causing the offence will not lie in considerations of the affected group's race. In such a case however, one would expect to discern the argument or other discussion being pursued. Part IIA would not operate to prohibit these pursuits, so long as a racially based motive was not present.

71 In the last-mentioned category, where it is said that the only purpose in making a statement is the pursuit of a bona fide purpose, s 18D may need to be considered. I leave to one side the prospect that in some cases it may be difficult to apply the exemptions provided in the face of a finding that there was a racially-based motive. It may be observed, that the question whether one of the purposes referred to in s 18D is the reason for the conduct may also be relevant to the enquiry under s 18C(1)(b). I do not however consider that it follows that the person whose conduct is in question has the burden of disproving motive. I did not understand the respondent to make such a submission.

72 Both elements of s 18C(1) must be established by those alleging a contravention of Pt II and to the requisite standard. A contravention cannot be made out by assumptions as to motive, as distinct from inferences which may properly be drawn. In the present case, whether the appellant was motivated by the Jewishness of the group or groups is to be determined by reference to the statements made by him. At the point when judgment was given in the proceedings no opportunity for enquiry or examination of the appellant had arisen.

73 It was submitted for the appellant that the Court should not draw too much from the fact that the statements were likely to cause offence, because it can be seen that he was motivated by considerations which do not include a desire to convey any accusation or message about Jewish people in particular. It can be seen, it was submitted, that he has a genuine interest in the historical truth about the Holocaust. He challenges the basis for the reports of what occurred and gives as his reason the fact that the German people have been defamed by those making assertions about the members of Jewish people killed.

74 These proceedings do not involve any determination about the truth or falsity of the appellant's claims or the historical records which he challenges. Nevertheless, if it were shown that the appellant knew his challenges to be without foundation, and that they were therefore cynically made, a conclusion that he intended offence to the group could be readily drawn. I do not, however, see how this can be gleaned from his article, which principally contains denials of what is said to be historical fact, even if those denials seem incomprehensible.

75 An important aspect of the publication, it is submitted, is that it does not expressly link Jewish people to two inflammatory and insulting statements. This is relevant to the imputations in (c) and (d). They are the meanings most likely to convey the `message' about which her Honour spoke. Assuming for present purposes that the meaning in (c) is referrable to Jewish people, it may be stated even more widely than her Honour did. Her Honour thought the aspersion cast was as to the intelligence of Jewish people, but the statement would seem to me to refer to peoples who both lack intellect and are avaricious. It is said in the article that the persons concerned are `those who are intellectual midgets but materialistic giants'. In the passage referrable to imputation (d), the reference is to `those who have their snout in the trough, which Jewish academic, Dr Frank Knopfelmacher called, "The Holocaust racket"'. It is submitted that in neither of these passages, nor elsewhere, are Jewish people identified.

76 It is difficult to accept, particularly with respect to the last reference, that Jewish people were not intended to be included amongst those seen as obtaining an interest or benefit. I accept however that they are not singled out and the statements made may refer to others as well. It does not, in my respectful view, seem possible to determine that they were the target of the remarks save by making assumptions drawn from the fact that Jewish people were most concerned in the general topic of the article and would be offended by it.

77 There is, however, one aspect of the publication which is telling and which, in my view, supports the conclusion reached by her Honour. In the passage which refers to the novel written by Helen Demidenko-Darville, it is said that that author `has revealed a basic historical fact viz that Lenin's henchman, Trotsky (Bornstein) and Stalin's henchman, Kaganovich, were Jewish mass murderers'. It is then said that that historical fact `clearly shows that Jews are not always victims in history, but also murderers'. This provides more than a little insight into what actuated the appellant to publish the article, in my opinion. Much was made in the submissions of his pursuing a discourse about the unfair blame of the German people about the Holocaust and of his genuine concern about the lack of proof of the numbers of Jewish people in fact killed and the methods by which they were killed. Identification of these subjects however serves only to highlight the irrelevance of this passage to them. The likelihood that the appellant wrote only to pursue the truth of those subjects is rendered implausible by this unnecessary aside, which appears to have no real purpose in such a debate other than to disparage Jewish people. In my view, it confirms what a reading of the article as a whole raises as a prospect, namely that it was published with Jewish people in mind, as those responsible for concocting the Holocaust and, indeed, as an attack upon them.

78 So far as concerns the exemption provided by s 18D, I respectfully agree with the views expressed by Carr J. Her Honour was, in my view, right in holding that there was no proof of the appellant's good faith. I would add that the irrelevant passage above referred to, together with the tenor of the publication, tend to confirm the absence of it.

Associate:

Dated: June 2003

ALLSOP J:

79 The reasons for judgment of Carr J, with which (subject to more specific comment herein) I generally agree, relieve me of the need to set out the history of the proceedings. I will refer to the "Document" in the way defined by Carr J at [3], [11] and [12] of his Honour's reasons.

80 The appeal, as finally argued, raised five issues:

A. whether leave to appeal was required and, if so, whether leave should be granted;

B. the proper construction of s 18C of the Racial Discrimination Act 1975 (Cth) (the RD Act) in the light of the permissible constitutional reach of the section;

C. a subsidiary question as to the construction of par 18C(1)(b) of the RD Act and the meaning of the phrase "done because of...", and whether par 18C(1)(b) was satisfied in this case;

D. the validity of two of the imputations found by the primary judge: imputations (c) and (d) at [88] of her Honour's reasons; and

E. the question of "good faith" and the application of s 18D of the RD Act.

A. Leave to Appeal

81 The orders by the primary judge were in the nature of default orders. As such they were interlocutory: Hall v Nominal Defendant (1966) 117 CLR 423, 440; Wickstead v Browne (1990) 30 NSWLR 1, 11; Dart v Norwich Union Life Australia Ltd [2002] FCA 168 at [2]; and Maher v Commonwealth Banking Corporation [2002] FCAFC 104.

82 Leave to appeal was and is required. For the reasons given by Carr J at [8], I would grant leave to appeal.

B. The Construction and Constitutional Validity Issue

83 This issue concerns the proper construction and interpretation of important provisions of the RD Act. The issue raises the constitutional validity of one of those provisions, s 18C, and in particular par 18C(1)(b).

84 The provisions in question are, relevantly, ss 18B, 18C and 18D of the RD Act. They appear in Part IIA under the heading of the part:

"Prohibition of offensive behaviour based on racial hatred"

85 The provisions were inserted into the RD Act by the Racial Hatred Act 1995 (Cth) (the RH Act), the preamble to which stated:

An Act to prohibit certain conduct involving the hatred of other people on the ground of race, colour or national or ethnic origin, and for related purposes.

86 The Explanatory Memorandum to the Racial Hatred Bill 1994 included the following statement:

The proposed prohibition on offensive behaviour based on racial hatred ...

87 Sections 18B, 18C and 18D are, relevantly, in the following terms:

18B

If:

(a) an act is done for 2 or more reasons; and

(b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.

18C

(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.

...

18D

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

88 Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination (the "Convention") which is a schedule to the RD Act provides as follows:

States Parties condemn all propaganda and all organizations 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;

(b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

[emphasis added]

89 The primary contention of the appellant was that par 18C(1)(b) was founded on an attempted implementation into Australian domestic law of Article 4 of the Convention, and should be construed or interpreted as only dealing with an act that can be characterised as an expression of racial hatred. As is evident, those words do not appear in par 18C(1)(b), rather the relevant connection is that the act in question is "done because of the race" etc of the person or persons who is or are reasonably likely to be offended etc under par 18C(1)(a).

90 That this meaning is to be given to par 18C(1)(b) is required, it was said, for, amongst other reasons, the provision to be a constitutionally valid exercise of legislative power under s 51(xxix) of the Constitution implementing the Convention.

91 In order to deal with this submission it is necessary to understand not only the immediate history of the passing of the RH Act, but also the history and content of the Convention.

the Convention

92 The immediate impetus for the events that led to the Convention was what Schwelb described as an "epidemic" of swastika-painting and other manifestations of anti-Semitic hatred and prejudice in the northern hemisphere winter of 1959-60. (See Schwelb "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996, 997 ff.) The matter was taken up by the United Nations Sub-Committee on Prevention of Discrimination and Protection of Minorities, which was sitting at the time and which thereafter reported to the General Assembly. The General Assembly, at its fifteenth session in 1960, adopted resolution 1510 condemning all manifestations and practices of racial, religious and national hatred in the political, economic, social, educational and cultural spheres of the life of society as violations of the Charter of the United Nations and the Universal Declaration of Human Rights: see Lerner The U.N. Convention on the Elimination of all Forms of Racial Discrimination (Sijthoff & Noordhoff 1980 2^nd Ed) p 1.

93 In 1961, the Economic and Social Council recommended to the General Assembly the adoption of a draft resolution on Manifestations of Racial Prejudice and National and Religious Intolerance. The draft resolution referred to:

"continued existence and manifestations of racial prejudice and national and religious intolerance in different parts of the world"

(See Lerner op.cit. p 1)

94 The matter was considered again by the General Assembly in 1962. The General Assembly allocated the draft resolution to its Third Committee. A convention was proposed, in particular by a number of African States. This proposal (the Report of the Third Committee and an amendment by Liberia: see Schwelb op.cit. p 998) was for the preparation of an instrument or instruments aimed at the elimination of religious and racial discrimination.

95 Two declarations and two conventions were decided upon, dealing separately with racial discrimination and religious intolerance. (For the largely political reasons for this division see Schwelb op.cit. p 999 and Lerner op.cit. p 2.)

96 The Declaration on the Elimination of All Forms of Racial Discrimination was proclaimed on 20 November 1963 (Resolution 1904, eighteenth Session). On that day, the General Assembly requested the Economic and Social Council to have the Commission on Human Rights give absolute priority to the preparation of a convention on the topic (Resolution 1906, eighteenth Session): see Schwelb op.cit. p 999. The Commission on Human Rights then, spending thirty-six meetings on the task, prepared a draft which was presented by the Economic and Social Council to the General Assembly on 20 July 1964. In the twentieth Session, between 11 October 1965 and 15 December 1965 (after the intervening nineteenth Session had been paralysed for unrelated reasons) the General Assembly's Third Committee devoted forty-three meetings to the drafting of the Convention. A final form was submitted to the General Assembly on 21 December 1965, on which date it was adopted in plenary session 106 votes to 0, with 1 abstention, Mexico, which later gave an affirmative vote.

97 In speaking on the day on which the Convention was unanimously adopted, the president of the General Assembly (Amintore Fanfani) said in the General Assembly:

"States Members of the United Nations attach special importance to the fight against racial discrimination, thus stressing one of the most urgent and crucial problems that have arisen in the matter of protecting fundamental human rights".

(See Lerner op.cit. pp 7-8)

98 The above history (taken from the works of scholars, Lerner and Schwelb, working contemporaneously with events) is given to illuminate what it was that the international community was dealing with. By this time in the twentieth century, the nations of the world had experienced a century stained by, amongst other catastrophes, racial slaughter, pogroms, forced removal and relocations of whole peoples, religious and ethnic genocide, and were undergoing the trauma involved in the break-up and disintegration of colonial empires and national and regional political structures based on racial characteristics. The unexpected recrudescence, in the winter of 1959-60, of some of the most recent and horrific manifestations of racist behaviour enlivened the world community to act swiftly and (with an inevitable degree of variation in political perspective) unanimously, to take steps towards the elimination of the perceived evil. The perceived evil was all forms of racial discrimination and racial prejudice, the manifestation of which had been, in recent generations, at times horrifically violent and strident, at times overt, and at times less overt and less brutal, but nevertheless insidiously pervasive. In any form, it was recognised, by all nations in the international community, to strike at the dignity and equality of all human beings.

99 This aim, to eliminate racial discrimination in all its forms, can be seen in the pre-amble to the Convention.

The States Parties to this Convention,

Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion,

Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin,

Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination,

Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end,

Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person,

Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere,

Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State,

Convinced that the existence of racial barriers is repugnant to the ideals of any human society,

Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation,

Resolved to adopt all necessary 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 racial discrimination,

Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960,

Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end,

Have agreed as follows:

[emphasis in original]

100 Racial hatred was one form or manifestation of the perceived evil. Unhappily, it was a form with which the nations in the General Assembly in 1960 to 1965 were all too familiar. It was the form of the perceived evil most likely to lead to brutality and violence, but it was not the only form of the perceived evil antithetical to the dignity and equality inherent in all human beings upon which the Charter of the United Nations was based. It was to all such forms and manifestations that the Convention was directed.

101 The definition of "racial discrimination" in Article 1 of the Convention confirmed the wide aim of the Convention:

Article 1

1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

102 It is unnecessary to explore any tension in the width of Article 1 and the list of rights in Article 5: Schwelb op.cit. pp 1003-1006.

103 Articles 2 to 7 contained the obligations of the States Parties. The obligations included the following.

104 By Article 2 the States Parties :

(i) condemned racial discrimination;

(ii) undertook to pursue, by all appropriate means and without delay, a policy of eliminating racial discrimination in all its forms and promoting understanding among all races;

(iii) in furtherance of the end referred to in (ii) above, undertook to prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization: see par (d); and

(iv) in furtherance of the end referred to in (ii) above, undertook to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division: see par (e).

105 Article 2, and in particular par (d), were not without difficulty in their drafting, but can be viewed as of great significance. Schwelb considered Article 2(d) the "most important and far reaching of all the substantive provisions of the Convention": Schwelb op.cit. pp 1015-1021, esp p 1017 and see Lerner op.cit. p 38.

106 Article 3 condemned apartheid.

107 By Article 4 (which is set out in full at [88] above) the States Parties:

(i) condemned all propaganda and all organizations 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;

(ii) undertook to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination ("such discrimination" being "racial hatred and discrimination in any form" referred to in (i) above); and

(iii) in furtherance of the end referred to in (ii) above, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention;

undertook, inter alia,

(a) to 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;

(b) to declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c) not to permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

108 The principles embodied in the Universal Declaration of Human Rights and the rights set forth in Article 5 of the Convention, referred to in [107](iii) above, included the rights to freedom of thought, conscience, religion, opinion, expression, assembly and association.

109 In dealing with Article 4, Schwelb, after restating the condemnation contained in the first paragraph of article 4, stated:

"The article proceeds to list immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination."

[emphasis added]

(See Schwelb, op.cit. p 1021.)

110 That learned commentator saw racial hatred as a form or manifestation of racial discrimination. That is how the Convention had developed; that is how the Convention was structured.

111 It is unnecessary to rehearse here the difficulties involved in the drafting of Article 4. (See generally Schwelb, op.cit. pp 1021-1025 and Lerner, op.cit 43-53.)

112 Articles 6 and 7 were in the following terms:

Article 6

States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.

Article 7

States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnic groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.

113 The Convention was done at New York on 7 March 1966, came into force generally on 4 January 1969 (except article 14 which did so on 4 December 1969) and was signed for Australia on 13 October 1966. Australia deposited a reservation to article 4(a) on 30 September 1975 (for reasons to which I will come). The Convention entered into force for Australia on 30 October 1975.

the legislative history of Australian domestic law

114 In 1974 the Racial Discrimination Bill was introduced into the Commonwealth Parliament. The bill, in large part, formed the basis of the RD Act. Clause 28 of the bill was in the following terms:

A person shall not, with intent to promote hostility or ill-will against, or to bring into contempt or ridicule, persons included in a group of persons in Australia by reason of the race, colour or national or ethnic origin of the persons included in the group -

(a) publish or distribute written matters;

(b) broadcast words by means of radio or television; or

(c) utter words in any public place, or within the hearing of persons in any public place, or at any meeting to which the public are invited or have access,

being written matter that promotes, or words that promote, ideas based on -

(d) the alleged superiority of persons of a particular race, colour or national or ethnic origin over persons of a different race, colour or national or ethnic origin; or

(e) hatred of persons of a particular race, colour or national or ethnic origin.

Penalty: $5,000

115 This was a proposed statutory offence, the introduction of which was directly related to the implementation of the obligation upon Australia in Article 4(a) of the Convention, which, in terms, called for the introduction of an offence into the domestic law of State Parties. Clause 28 became known (as it is described in McNamara Regulating Racism: Racial Vilification Laws in Australia) as a "racial vilification" provision, as distinct from "discrimination provisions", that is, those civil provisions dealing with comparative treatment.

116 There was debate in the Commonwealth Parliament concerning the in-road into freedom of speech and the perceived unwisdom of the criminalisation of expression of thought: see generally McNamara op.cit. pp 36-37. Clause 28 was deleted by Senate amendment, which deletion was accepted by the House of Representatives. The failure to enact clause 28 led to the deposit of Australia's reservation to Article 4(a).

117 The issue was revisited in 1983 by a discussion paper published by the Human Rights Commission entitled Proposed Amendments to the Racial Discrimination Act Concerning Racial Defamation. It was suggested that certain conduct be made unlawful, but not criminal, and set within the framework of the conciliation procedures available to the Commission. Such conduct was proposed to be in the following terms:

...make it unlawful for a person to publicly utter or publish words which, having regard to all the circumstances, are likely to result in hatred, intolerance or violence against a person or persons, or a group of persons, distinguished by race, colour, descent or national or ethnic origin [and] ... make it unlawful to publicly insult or abuse an individual or group, or hold that individual or group up to contempt or slander, by reason of their race colour, descent or national or ethnic origin.

118 The issue returned to some prominence in the late 1980s and early 1990s. At this time, State and Territory legislatures took the initiative and enacted laws dealing with what was termed "racial vilification": the Anti-Discrimination Act 1977 (NSW) (the NSW Act) ss 20C and 20D (those provisions were inserted by the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW)); the Criminal Code 1913 (WA) (the WA Act) ss 77 - 80 (those provisions were inserted by the Criminal Code Amendment (Racist Harassment and Incitement to Racial Hatred) Act 1990 (WA)); and the Discrimination Act 1991 (ACT) (the ACT Act) ss 66 - 67.

119 Other States later passed similar legislation: the Racial Vilification Act 1996 (SA) (the SA Act) ss 3 - 6 (the SA Act also inserted a provision relating to "racial victimisation" into the Wrongs Act 1936 (SA), s 37); the Anti-Discrimination Act 1991 (Qld) (the Qld Act) ss 124A, 131A (those provisions were inserted by the Anti-Discrimination Amendment Act 2001 (Qld) and amended by the Discrimination Law Amendment Act 2002 (Qld)); and the Racial and Religious Tolerance Act 2001 (Vic) (the Victorian Act) ss 7 - 12 and 24 -25.

120 The State and Territory provisions enacted in the late 1980s and early 1990s were as follows:

(a) Sections 20C and 20D of the NSW Act:

20C Racial vilification unlawful

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

20D Offence of serious racial vilification

(1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or gro