Respondent's Outline of Argument
IN THE FULL COURT OF
THE FEDERAL COURT OF AUSTRALIA
NEW
SOUTH WALE DISTRICT REGISTRY No.
N 1049 of 2002
On
Appeal From Her Honour Justice Branson
BETWEEN
FREDRICK TOBEN
Appellant
AND
JEREMY
JONES
Respondent
OUTLINE
OF SUBMISSIONS OF RESPONDENT
History
1.
On 10 April 1997 the Race Discrimination
Commissioner, Ms. Zita Antonios referred to the Human Rights and Equal
Opportunity Commission (hereinafter “the Commission”) for inquiry under
s.24E of the Racial Discrimination Act 1975.
2.
The reference to the Commission was of the
complaint lodged by Mr. Jeremy Jones on or about 31 May 1996 purportedly on
behalf of the Executive Council of Australian Jewry but was processed by
reference only to the Applicant because of amendments made arising out of
other proceedings (ECAJ v Scully (1998)
79 FCR 537).
3.
The complaint related to a number of publications
on an internet website operated by the Respondent. Each of the publications
has a consistent and seemingly overriding theme.
That theme relates to the actions of Jews as such and the
characteristics of Jews as such.
4.
The attributes of Jews or those Jews who form part
of the ethnic group which live as Jews imputed by the publications are those
set out in paragraph 17 of the Statement of Claim (which generally quotes the
offending passages) (AB10-AB12).
5.
Each of the above imputations is obtained directly
from the originals of the publications about which complaint is made.
Each of the imputations alleged in the immediately preceding paragraph
is an imputation which represents the views of the Respondent as represented
in the entirety of the publications and is not taken out of context.
6.
There is no issue in the proceedings before the
Commission that the acts, being the publication and distribution of the
material were done otherwise than in private by the Respondent.
7.
Notwithstanding an abundance of opportunity, no
defence was filed and served and no affidavits were filed for and on behalf of
the Appellant. The history,
otherwise, is set out in the Judgment of Her Honour below (AB711 – AB 721).
Competence
of Appeal – Notice of Motion
8.
Her Honour moved and exercised the discretion
reposed in the Court by Order 10 Rule 7 and/or Order 11 Rule 23 in relation to
the grant of summary judgment. Each
of those orders is the Federal Court equivalent of default judgment (Fisher v Rural Adjustment and Finance Corporation of Western Australia (1995)
57 FCR 1 at 18-19; Lenijamar Pty Ltd v
AGC (1990) 27 FCR 388 at 395-396; AB 719, paragraphs [54], [55], [59]).
9.
A default judgment is capable of being set aside
and is not final and appellable as of right (See Order 35 Rule 7; Carr v Finance Corporation (1981) 147 CLR 246; Licul v Corney (1976) 180 CLR 213 at 219-220, 225; Hall
v Nominal Defendant (1966) 117 CLR 423).
The
operation of s.18C of the Act
10.
As s.18B of the Act makes clear a prescribed reason
for the conduct about which complaint is made renders the conduct unlawful
regardless of whether the conduct about which complaint is made is done for
reasons other than the race, colour or national or ethnic origin of a person.
In other words the race, colour or national or ethnic origin of a
person need be but one of the reasons (not necessarily a dominant or
substantial reason) for doing the act for the act to be done because of the
person’s race, colour or national or ethnic origin.
11.
The imputation arising from the published material
(which published material has not been made available to the Court by the
Appellant) is set out in the Statement of Claim as above.
A schedule of imputation and their relevant references in the
particulars and evidence (but not the web site) are found at AB 695, 696, 697,
698 and 699).
12.
There is no issue taken in the appeal that the
Jewish people in Australia comprise an ethnic group within the meaning of the
Act. Nor is there any issue that
the words used meet the tests in s.18C(1)(a), namely, that the Act and/or
words are “reasonably likely, in all the circumstances, to offend, insult,
humiliate or intimidate another person or group of people”.
Those imputations are not denied and are relevantly accepted by Her
Honour (AB 730 [88]) and Her Honour finds that it is “abundantly clear that
race was a factor in the respondent’s decision to publish the material …
. The material includes
many references to Jews and events and people characterised as Jewish.
It is … plainly calculated to convey a message about Jewish people”
(AB 733 [99]).
13.
The comments, in the documents, do not
differentiate between different members of the Jewish ethnic group.
By virtue of their membership of the ethnic group in question, they are
accused inter alia of maliciously, dishonestly and manipulatively presenting
the holocaust as fact; distorting and manipulating the events of the
holocaust; creating a myth, inter alia, to promote their economic interests;
are racketeers; and are, again by virtue of their membership of the Jewish
ethnic group and/or their culture and beliefs, responsible for deceit, murder
and political subversion.
14.
In those circumstances, the submission of the
Appellant is unrelated to the facts of the case and, even if correct (which is
denied) unable to sustain a successful appeal.
15.
The commencement point for the proper construction
of the statute are the words of the statute itself.
The submission as to the meaning of the term “because of” would
have s.18C of the Act read in a way which is not open on the words used.
It requires sub-section 18C(1)(b) to be read in a way such that the
words “because of the ethnic origin” are confined to expressions of racial
hatred. Assuming, for the
purposes of this argument (but which is otherwise denied) that the words used
are not such an expression, such a construction of s.18C(1)(b) would, for any
practical purpose, render otiose the words and test used in s.18C(1)(a).
16.
The use of the term “because of” in section
18C(1)(b) ought be given the meaning that the race etc “is a factor” in
the performance of the act. (See Creek v
Cairns Post Pty Ltd (2001) 112 FCR 352 at [25] and the cases referred to
therein; Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR
56 at [21], [23]; Waters v Public
Transport Corporation (1991) 173 CLR 349 at 400; Aboriginal Legal Rights Movement Inc v South Australia (No. 1)(1995)
64 SASR 551; Australian Medical Counsel
v Wilson (1996) 68 FCR 46).
17.
The approach taken by the Court below and referred
to herein is, with respect, the correct approach.
The reference by the Appellant to the Judgment of Justice Drummond in Hagan
v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, in my
opinion draws a distinction which does not, on a proper construction, exist.
The meaning of the term “a factor” means that it must be one reason
for the conduct but not the only or even predominant reason.
18.
The Appellant relies upon Article 4 of the
International Convention. The
Respondent, without conceding that the International Convention is able to be
used in the manner to which the Appellant does, also relies on the definition
of the term “racial discrimination” in article 1 and the terms of articles
2, 5, 6 and 7. Internationally,
the Convention has been treated as at least requiring legislation which
operates in the way suggested by Her Honour below. (See European
Convention on Human Rights (Rome 1950); The 12th Additional
Protocol to the European Convention of Human Rights ETS 177 of 11.11.2000,
Articles 3, 4, 5 and 6; Racial Discrimination Act 1975 (Commonwealth), 2nd
Reading Speech and Explanatory Memorandum)
Section
18D Exemption
19.
No issue is taken with the approach of Her Honour
below that s.18D of the Act, being an exemption from the ordinary operation of
s.18C of the Act, is a matter in which the onus of proof with respect to such
an exemption rests upon the Respondent (AB 733 [101]; Jones v Scully [2002] FCA 1080 at [127]).
20.
It is for the Appellant to prove, subjectively,
that the Appellant genuinely believes the imputations set out above.
There is no evidence suggesting same and the submissions thereon are
not open to the Appellant.
21.
S.18D is a provision which exempts certain,
otherwise unlawful, conduct from the operation of s.18C if the conduct is done
“reasonably and in good faith”.
22.
Notwithstanding the opportunity to defend the
conduct, the Respondent has refused to plead that the publication and
distribution of the material in question was done “reasonably or in good
faith”. The preamble to s.18D
may allow for an objective analysis of the material published to see whether
it was published “reasonably” but s.18D requires that it be done
reasonably and in good faith which is and must be a subjective element.
Both
elements must be satisfied before the issues raised in paragraphs 18D (a), (b)
and (c) arise. In other words the introductory words of s.18D require both
objective reasonableness and subjective good faith.
Absent the adducing of any material by the Respondent to show that he
acted in good faith it is not open to the Tribunal to find an exemption
available under s.18D.
23.
It should be noted in discussing exemptions that it
is unnecessary for the Applicant to show that the Respondent intended “to
offend, insult, humiliate or intimidate”.
24.
Even if evidence was before the Court which, either
of itself or by inferences arising therefrom, could give rise to a
consideration of s.18D the material before the Court shows a lack of good
faith.
25.
It is submitted by the Applicant that the nature and extent of the publications and their
common theme on the unworthiness of the Jewish ethnic group shows a
“malice” (i.e. an absence of good faith) in the sense that even if an
individual article on one or other subject might otherwise come within s.18D
(the Applicant does not concede that any individual article subject to
complaint herein would fit that description, and submits to the contrary), the
publication and distribution of all of the statements shows a lack of
genuineness in any particular subject matter absent the racial vilification.
That racial vilification, on a reasonable analysis of the material, is
the major and substantial purpose of most if not all of the publications about
which complaint is made.
26.
In other words the lack of good faith is here
constituted by an improper motive or collateral purpose in the publication of
the statement even if it otherwise (which is denied) fell within the
definitions in paragraphs (a), (b) or (c) of s.18D.
The improper motive here is an intention by the Respondent to injure
the Applicant and/or members of
the Jewish ethnic group shown by the manner and extent of the publications,
the publication of other material by the Respondent concerning the ethnic
group or the lack of an interest (in the legal sense) in the subject matter of
the publications.
27.
The statutory scheme in Part IIA of the Act has
many analogies with the law of defamation.
Like the law of defamation it is a restriction on what may be said by
persons without legal recourse. (For
an analogy of this kind, the Court is referred to the Judgment of Kiefel J in Creek,
above at [32]).
28.
The provisions of S.18D even more so have analogies
with the law of defamation. Under
the Defamation Act 1974 (NSW) (and in particular S.22 thereof) there is a
reference to a defence to defamation wider than the common law defence
normally applicable which is a defence of “reasonableness in the
circumstances”. (see Austin v Mirror
Newspapers Ltd (1985) 3 NSWLR 354)
a.
It has been held that the
relevant considerations to determining reasonableness are the reasonableness
of the assertions made, the care taken by the publisher prior to publication
to establish the truth of the assertions and the basis of the publisher’s
belief in the assertions. We
submit that this is a proper approach to the preamble in s18D of the Act.
b.
In relation to the
publisher’s belief in the assertions consideration is given to such things
as the amount of information obtained by the publisher, usually through its
journalists, the nature of the information obtained, the means by which that
information has been checked for accuracy, the circumstances, being all of the
circumstances, in which the information was obtained including and in
particular the special knowledge of the informant who has provided the
information. (see Wran
v ABC [1984] 3 NSWLR 241 at 250-251; Morgan
v John Fairfax (No. 2) (1991) 23 NSWLR 374 at 387-388)
That reasonableness test substituted by s.22 of the Defamation Act 1974
(NSW) requires that the person against whom an allegation is made is given an
opportunity to respond to that allegation unless there is incontrovertible
evidence to sustain it. It is not submitted that this opportunity is necessary for a
person’s conduct to fall within the preamble in s18D of the Act.
29.
The analogy with the defamation law is best
exemplified by the decision of the High Court in Bellino
v ABC (1996) 185 CLR 183. That
decision discusses defamation in the State of Queensland and the operation of
the Criminal Code (Qld) and in particular s.377 thereof.
The analogy is obvious when one examines the provisions of subsection
377(8) of the Criminal Code (Qld) which reads as it is cited in the High
Court:
a.
“It
is a lawful excuse for the publication of defamatory matter - ...
b.
‘(8)
If a publication is made in good
faith in the course of, or for the
purposes of the discussion of some subject of public
interest, the public discussion of which for
the public benefit, and
if, so far as the defamatory matter consists of comment, the comment is fair.’
c.
For
the purposes of this section, a publication is said to be made in good faith
if the matter published is relevant to the matters the existence of which may
excuse the publication in good faith of defamatory matter; if the manner and
extent of the publication does not exceed what is reasonably sufficient for
the occasion; and if the person by whom it is made is not actuated by ill-will
to the person defamed, or by any other improper motive, and does not believe
the defamatory matter to be untrue.” (see pp 186-187 of Bellino).
30.
The provisions of the Racial Discrimination Act, of
course, do not have the “definition paragraph” contained within the terms
of subsection 377(8) of the Criminal Code (Qld).
31.
This operation of s.18D of the Racial
Discrimination Act is in our respectful submission such that the defences are
not here available. It is clear
from a discussion of the terms outlined in the preceding paragraphs that good
faith does not arise because of the nature and extent of various publications
concerning different subject matters (assuming for this purpose that the
subject is not racial vilification) each of which includes the racial
vilification rendered unlawful by provisions of s.18C of the Act.
32.
It is sufficient in order to be “in the course
of” a statement, publication or discussion for the statement, publication or
discussion to initiate and, of necessity, be part of an ongoing existing
discussion on the subject matter. (see
Bellino, per Brennan CJ at 198, 199;
per Dawson, McHugh and Gummow JJ at page 223.7)
33.
In looking at the analogy with the Defamation Code
and defamation law generally reference should also be made to the provisions
of subsections (3) and (5) of the s.377 of the Criminal Code referred to above
(see Bellino at 211).
The joint judgement discusses the meaning of the term “public
interest” in that area. At page
214 their Honours Dawson, McHugh and Gummow JJ state:
a.
“That
means that there must be some act or omission by some person or institution
concerning a matter that ‘invites public attention’. But the particulars of the subjects of public interest which
the Respondent provided in this case were not subjects of public interest in
that sense. They were
obstructions which did not purport to identify the conduct of any act or
institution as having invited public criticism or discussion.
The particulars were apparently provided on the theory that s377(8)
protects a defamatory discussion even when the subject matter of the
discussion is described at a very high level of generality that has no
relationship to the conduct of any particular act or agent.
On
that view of the subsection, the subject of public interest may be as wide and
as vague as one of the particulars given in Uren
- ‘the worldwide - conflict between
Communism and non-Communism’ or the first particular in this case
‘organised crime and corruption in Queensland and/or allegations made in
relation thereto’. But although
at least some implicit judicial support can be found for that view, it
disregards what has traditionally been understood to be a subject of public
interest in the law of defamation. Moreover,
it has had the result that judges have felt compelled to put glosses on the
natural and ordinary meaning of the sub-section by requiring that the
defamatory matter should be a ‘contribution’ to the discussion of the
subject and by querying whether a person who initiates a discussion of a
subject of public interest is protected by the sub-section. ...
b.
In
that branch of the law, a subject of
public interest meant the actions or omissions of a person or institution
engaged in activities that either inherently, expressly or inferentially
invited public criticism or discussion.”
c.
At page 219 their Honours
continue:
d.
“Thus,
when the law of defamation in Queensland was codified in the Defamation Act
1989, a ‘subject of public interest’ was understood in the law of
defamation to refer to the conduct of
a person engaged in activities that either inherently, expressly or
inferentially invited public criticism or discussion. ...”
e.
At page 221.6
f.
“Accordingly,
s.377(8) protects the publication of a defamatory imputation made in the
course of or for the purposes of discussing the conduct of any person whose
conduct, inherently, expressly or inferentially,
invites a public criticism or discussion. Thus, the discussion of the conduct of any person holding
public office, participating in the administration of justice or public
affairs, offering goods or services to the public or otherwise engaging in
public conduct that invites public criticism or discussion comes within the
protection of s.377 (8)
g.
...The
subject of public interest need not be concerned with the conduct of the
plaintiff. While the defamation
must be published in the course of or for the purposes of a discussion of the
conduct
of some person or institution that
invites public criticism or discussion and the conduct of the plaintiff will
often, perhaps usually, be the subject of that discussion, the conduct of some
other person that is a subject of public interest can also found a defence
under s.377(8).
...Consequently,
whether the subject of public interest be the Plaintiff’s own conduct or
that of somebody else, the defamatory imputation will not be published in good
faith for the purpose of s.377(8) unless it was relevant to the discussion of
the subject of public interest”.
34.
Relating that discussion to the statutory framework
of s.18D of the Act the vilification and statements which are offensive,
insulting, humiliating or intimidating of Jewish people are, if done
reasonably and in good faith, not unlawful if they are done in the course of a
statement, publication, discussion or debate made for any other genuine
purpose in the public interest i.e. a discussion about conduct of some person
or institution or group or subject matter that invites public criticism or
discussion.
35.
There is nothing in the activity of Jews in
Australia or elsewhere which has invited public criticism or discussion.
There is certainly no evidence of such activity.
The abstract generalisation of “truth in history” is not the kind
of justification embodied in the provisions of s.18D, assuming, for the
purposes of this discussion that the analogy with the Bellino
is appropriate.
36.
Thus a clear distinction arises between the conduct
of the Respondent in this case vilifying Jews, their conduct, their morality
and their teachings and the decision of the Equal Opportunity Tribunal
relating to the public discussion as to the nature and extent of the
Macedonian language and people and their existence (see Hellenic
Council v Apoleski, unreported, Equal Opportunity Tribunal judgement No. 9
and 11 of 1995 and Hellenic Council v
Apoleski judgement No. 10 of 1995).
37.
The Respondent is, in the words of the joint
judgment in Bellino, prevented
“from relying on the defence of qualified protection for every ...statement
that can in some way be related to a topic of public importance.
On the other hand, it ensures that, provided good faith exists, the
publication of an allegation of ...conduct will generally be protected in
circumstances where the common law would give protection to a fair comment on
that conduct if the facts alleged were true”.
Stephen Rothman SC
Counsel
for the Respondent 21 February 2003
