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Transcript
Pages 21-40
later.
Your Honour, at paragraph 24, adopts McHugh Js approach to "because
of". There is a reference to Mt Isa mines which is relied on by the
Commonwealth. Then your Honour refers to Heerey J in Australian
Medical Council v Wilson, which is also relied on - question, last two lines:
Whether the racial distinction is a material factor in the making of
the relevant decision.
Your Honour says in paragraph 27:
That the phrase "because of" marks out the causal requirement more
clearly.
And we would respectfully adopt that and your Honour noted the point that
91 was said by Weinberg J, as Drummond J noted:
As encompassing a broader and perhaps non-causative relationship.
Then the critical sentence which has been followed in the two subsequent
cases at the start of 28:
In the present case the question is whether anything suggests race as
a factor in the repondent's decision to publish the photograph.
And your Honour said, 29, in the fourth sentence:
If there was anything to suggest that the respondent in arriving at his
decision to include the photograph had acted upon...(reads)... the
evidence does not suggest this.
So your Honour, his conclusion was there is nothing which suggests that
race was a factor. As I read your Honour's judgment it wasn't intended
that the words at the beginning of paragraph 28 were the test for
contravention. In other words, your Honour, I wasn't meaning to say, if
anything suggests race as a factor then it's an unlawful act, rather, as I read
your Honour's remarks, that's the beginning of the inquiry. Is there
anything here that would get me started in the direction of that the inquiry
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was race a factor. The test nevertheless as I understand it and as applied
subsequently is so formulated, was race a factor or a material factor in the
decision to publish.
In our respectful submission while the 1A test is plainly an objective test, as
this court has held and the language clearly requires, it is importantly
different from the New South Wales provision mentioned in the second
reading speech and the Victorian Act which I'm about to give your Honours
because it says nothing about - let me withdraw that. Subparagraph A is the
effects test in 18C. Unlike the Victorian and New South Wales Act it
speaks only of the effect on the offended person. It doesn't talk about the
effect on some third party or the generation of an attitude in that third party
towards the offended person.
Your Honour if I might hand up - your Honour can see this was enacted in
2001 and there was a preamble about free speech. Relevantly I want to take
your Honours to section 7 subsection 1. It's on page 1771 of this
photocopied extract:
A person must not, on the ground of the race of another person
engage in conduct that incites hatred against, serious contempt for or
revulsion or severe ridicule of that other person or class of persons.
The attorney referred, I think, to section 20C of the New South Wales Act
which is in similar language. So the effect concerned here and the New
South Wales Act is not the offence to the person referred to but the fact that
by virtue of what is done, that person will be the object of hatred,
contempt, revulsion or severe ridicule. In our respectful submission that is
a very important fundamental difference in character between 18C which
says nothing about inciting racial hatred or causing the group or person to
be held in serious contempt. All it says is reasonably likely to offend them.
Which only in our respectful submission underlines just how much work
subparagraph B has to be made to do if it is to say by implication what a
provision like that says expressly. The concern of the legislators in our
respectful submissions is not really what was said was said on the ground of
or by reference to race but whether it would tend to incite hatred or ridicule
or contempt. That was the concern. That evidently was what the criminal
provisions were saying, that this provision is silent as to any such words
which would in our respectful submission be necessary to ground this
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provision in that which gives it its constitutional life, that is article 4.
Looking at subparagraph B, and following on from what your Honour said
in the Cairns Post case, there is a subjective element in subparagraph B in
the judgment that the court makes. It could not in our respectful submission
be otherwise as a matter of ordinary language. As I submitted earlier the
question under subparagraph B is what were the reasons for the Act? That
has been established by a Full Court of this court in Haygon 105 FCR 56, I
might take your Honours to that and in particular to paragraph 21 on page
60.
Their Honours Ryan, Dowsett, Hely JJ referred at paragraph 21:
18C(1) makes it unlawful if two conditions are satisfied. The second
relates to the reason or reasons for which the act is done, see 18B.
Your Honour have seen that - I'll take your Honours to that section once
we've finished with this report. Then again at paragraph 23, same page:
Section 18C(1) is not enlivened unless the relevant act is done
because of the race -
etcetera:
- as earlier indicated the phrase "because of" requires consideration
(reads)... whether that be so or not -
and it's an argument made again here:
- the expression "because of" in paragraph B necessitates
(reads)... involved in mass murder were Jewish.
Now it's clear in our respectful submission from paragraph 24 and 25 and
it's clear from the reasons of the judge at first instance in Haygon that
regard was had to what subjectively were the reasons for the trustees for
doing what the they did. The answer was as paragraph 24 says:
The evidence established and the primary judge that the sign
(reads)... trustees formed the opinion that -
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etcetera. It may be seen to be an obvious point but we do urge that your
Honours are asking, including by reference to what the article says, plainly,
and in this case only by reference to that, what the reason, the actuating
cause, was.
ALLSOP J: And in the absence in the motion of any evidence of Dr
Toben?
MR MAXWELL: Yes, that is so. To take up that point, your Honour,
the concern the applicant had was that this material was on the internet. No
one viewing it on the internet will know what Dr Toben thinks privately. It
is the material which is the subject of the complaint.
ALLSOP J: No, but the matter, the controversy between the parties,
requires, as you say, an investigation of the matters in paragraph (b) of
section 18C.
MR MAXWELL: Yes, your Honour.
ALLSOP J: Her Honour had the material before her on a motion to deal
with the matter in default of the steps that had previously been ordered?
MR MAXWELL: Yes, your Honour.
ALLSOP J: And there was no evidence from Dr Toben as to the matters
identified by paragraph (b) of 18C(1).
MR MAXWELL: That is so.
ALLSOP J: That is all I am saying.
MR MAXWELL: Yes, the applicant elected to run the case that way. In
my respectful submission I thought your Honour might be suggesting some
kind of adverse inference. In my submission if someone publishes an
article which is challenged he is entitled to say, I stand by what I said, the
article speaks for itself. So the question is under 18C(1)(b) why did the
person do the act; that that is the question is also clear from the form of the
answer which subparagraph (b) gives, that is, because of the race or ethnic
origin of the group.
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CARR J: Would you concede that on looking at the reasons for decision,
in this case the decision to publish, and on your case we're confined to the
document set out in her Honour's reasons but if from that document it could
be seen that the Jewish race was a relevant factor in Dr Toben's decision to
publish that that would, in terms of the statute, be a reason for publication?
MR MAXWELL: No, your Honour, I wouldn't, with respect, and I'll
come to that, partly because, in my respectful submission, that is a criterion
which is altogether too imprecise in its application.
CARR J: I don't know, in administrative law that crops up quite a lot; has
the decision maker not taken into account a relevant factor. Then you look
at the reasons.
MR MAXWELL: With respect, your Honour, I would maintain my point.
The fact that a minister has taken into account a consideration doesn't make
that a reason for his or her decision and the minister will seek in a
statement of reasons under the ADJR Act to say, well, my reasons for
decision are as follows, but there will be a lot of matters taken into account
which aren't themselves properly described as reasons, in my submission.
CARR J: Yes. Well, here we're confined to the document itself, on your
case, and in the absence of any notice of contention or any argument about
why there shouldn't need to be a notice of contention, we seem to be
confined to that document.
MR MAXWELL: Yes.
CARR J: But if on looking through it and conscious of the fact that the
statute says we're only looking for a reason, on an objective reading of that
document it can be seen that that is a relevant factor. There may be a
whole host of other factors referred to in the document which indicate that
that's not a reason, that's just something that's considered right and moved
on. But if one comes back not once but, say, a couple of times to
Jewishness then that suggests maybe that that could be a relevant factor in
the author's mind in deciding to put it on the internet but you say that's not
a reason among many, that's not the test to identify a reason.
MR MAXWELL: With respect, no, and I do for the reason I sought to
articulate say that a relevant factor is not synonymous with a reason for. I
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want to come if I may in a moment to exactly what her Honour said in this
case as to why she had no hesitation in saying that race was a factor and to
point out that if that's applied it will catch all sorts of things which one of
your Honours remotely regard as acts of racial discrimination.
ALLSOP J: May it not be, however, that if what you submit about being a
factor is inadequate for being a reason is correct and that it is at all times
necessary to ensure that the task identified by paragraph (b) is to identify
race as one of the reasons and if so narrowed, if I may use that expression,
from simply being a factor then you have a section which deals with
publishing material of the kind in (a) because of race.
MR MAXWELL: Yes.
ALLSOP J: And if one looks at the things in (a) and if it's done because
of race it's not very far, as it were, from racial hatred and then you get into
the area of reasonably considered to be appropriate; it might fall short but it
may well be sufficiently connected to fall within the ambit of the state's
entitlement to - - -
MR MAXWELL: To choose how they do it?
ALLSOP J: - - - choose how they do it.
MR MAXWELL: Yes, your Honour.
ALLSOP J: We won't just look at racial hatred we'll slightly broader
penumbra and that highlights the importance of the "because of" in (b).
MR MAXWELL: Yes, it does. In fact I agree with your Honour's
remarks and adopt them and our point is that there's nothing in (b) which
limits it to the extent where one could say it's reasonably capable of, at
least as it has been interpreted.
ALLSOP J: The tighter you make (b) - - -
MR MAXWELL: The better.
ALLSOP J: - - - the harder your argument.
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MR MAXWELL: Exactly so and we have argued that (b) has to be read
narrowly and the Acts Interpretation Act requires that, that you read it down
to keep it valid and that's the core of our argument that you read it down so
that you've got to find an unmistakable causative effect of race and then,
and only then, and subject to what I am going to say about racial superiority
or hatred or incitement, it has got to have that extra element, in our
submission. We essentially say (b) is misconceived, it has missed the target
altogether, it has got a different test which is really - it's very hard to
reconcile (b) with article 4.
I have made the point that it doesn't have the kind of language you'd expect
to find there which the state legislatures have used to give it that critical
point of connection with the article which says "Will it cause hatred or
ridicule or contempt". That's what the United Nations was concerned
about, that's what the Federal Parliament was concerned about and you look
in vain at 18C for any reference of that kind.
It is commended, this point, to draw attention to what the Commonwealth
says because it relates to the question your Honour has been putting to me.
Twice in their submission they say something along these lines; it's difficult
to conceive of an act which is public, objectively offensive and done for
reasons of race which would not be an act of racial hatred. There's an in
built circularity to that because all the work has to be done by "for reasons
of". In paragraphs 10 and 21 they make that proposition. If "for reasons
of" is limited in the way, limited so that it's an expression of racial hatred
then they're right but it's a self-fulfilling policy if they're accepting, as they
seem to be, that we are concerned with acts of racial hatred. We want to
say that it doesn't by any means follow that if "a" reason is race that it's an
act of racial hatred less still an incitement to racial hatred or violence but
I'll deal with that further in due course.
So the question is, as your Honour adopted from McHugh J in Creek v
Cairns Post, the inquiry is what actuated the act of publication, what moved
him to do it, what gave rise to the act of publication, and as I have
foreshadowed we accept that if the act of publication can be characterised,
in this case by reference to its content, as an expression of racial hatred or
calculated to incite racial discrimination; it doesn't need to be racial hatred,
calculated to incite racial discrimination. It doesn't need to be racial hatred.
calculated to incite racial discrimination then although the publisher might
say, I had no such intention, on balance it's unlikely that in the face of an
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article of that character that the subjective statement would outweigh the
conclusion of the Court from the material as to what gave rise to it.
I've used the word unmistakable before. In our respectful submission,
though it has only to be one reason it nevertheless has to be a reason, it
must be evident, in this case, on the face of the material, that this was one
of the causes for publication was consideration that the group likely to be
offended were Jewish.
We said in the outline, and I would respectfully repeat, the notion of
something being published because of race is quite illusive. Not at all clear
what that was meant to mean. It's partly that that prompts the submission
that one looks for guidance to the Convention and to the extrinsic materials
and we've submitted that unless this publication can be characterised as an
expression of racial hatred; that is, it was racial hatred which gave rise to it
or alternatively is something which has a tendency to incite though again, as
I pointed out, that's just the exactly the language that (b) doesn't use.
That's why we've used the language of, what gives rise to it? Well, he's a
racial hater and this is his expression of his racial hatred, or this is an
expression of ideas based on racial superiority. In our respectful
submission, you read this material and it's not that. On no view is it that,
in our respectful submission.
To the extent that his subjective intent is relevant your Honours will have
noted that in paragraph 81 where the article is set out, he says, fifth
paragraph:
We reject outright that a questioning of the alleged homicidal gas
chamber story constitutes hate talk is anti-semitical racist.
Now, as I've submitted, your Honours or a court might take the view that
notwithstanding that disclaimer it is unmistakably an expression of a racist
attitude of race hatred. He also goes on to make the point that is below:
If I offend anybody because I show poor taste in my sometimes blunt
(reads)... right under the free speech principle to say these things.
So far from expressing in any clear way his hatred of Jews he disavows that
what he is doing is an expression of hatred and he apologises for the offence
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which, let it be assumed, he anticipates will be caused. He knows this is an
unpopular topic. Plainly, it is.
KIEFEL J: But not every racist remark is founded in actual hatred. Racist
remarks are made by reference to considerations of race. I mean they
sometimes have unintended effects on people. Sometimes I think they might
be even amusing.
MR MAXWELL: Yes, I accept that.
KIEFEL J: But they're nevertheless racist and I think Allsop J has already
touched on this. This provision requires only that the reasons, or what
motivated the person, can be found that there be considerations of race
involved in it. That might mean in some cases that there is actual hatred,
but it actually has a wider operation so in a way it implements not only the
racial hatred aspect of article 4 but goes further.
MR MAXWELL: Yes, your Honour, and it's our submission that it goes
so much further as not to be able to satisfy the test for validity under 51(29)
that it's a - - -
KIEFEL J: But it doesn't leave racial hatred out of the equation it gathers
it under a rather wide umbrella, doesn't it?
MR MAXWELL: That's so. No, I accept that. It doesn't exclude it but
if as we will submitting it can go so far beyond those core concepts then at
that point this court can say, well, it has to be read down so that it stays
within the limits which would make it capable of being regarded as
appropriate and adapted to implementing that article.
With respect, the point your Honour makes to me about the construction of
the section is right. It does say one of the reasons, but out concern is -
withdraw that. My submission is directed at the point that that will capture
a wide range of publications which have a racial reference.
HIS HONOUR: Your starting point is to give the article 4 a narrow
operation then.
MR MAXWELL: With respect, no. I've sought to give it a fair reading
based on its own language but the key issues are a fleshing of ideas of those
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two kinds, racial hatred or racial superiority, incitement to racial
discrimination or promotion of racial discrimination, and of course this
doesn't purport to be about incitement or promotion. One looks in vein to
find anything in article 4 which supports a provision of this kind. That's
essentially the point. You would expect those sorts of words to be used as
New South Wales and Victoria have used them. Something about the
effect, the incitement of racial hatred, racial discrimination, or the causing
the effect of hostility towards persons that would provide the appropriate
limit.
If I might then take your Honours to Hely J in Scully. As far as I'm aware
that's unreported and we have it 2002 FCA 1080 a judgment of his Honour
2 September 2002. If I might take your Honours immediately to paragraph
114. His Honour said:
The phrase "because of" requires consideration of the reason or
reasons for which ...(reads)... race is a material factor.
His Honour then refers to what your Honour Kiefel J said in Creek where
your Honour noted that there had been differences of opinion expressed
about the meaning of those phrases. It's not necessary for me to repeat
what her Honour said, except to say that at the end of her discussions her
Honour adopted an approach to 18C(1)(b) which inquired into:
Whether anything suggests race as a factor ...(reads)... to follow that
approach.
ALLSOP J: Just so that I'm clear about this and I apologise. You now
doubt mean Mr Maxwell, you say that's wrong to the extent that it is just a
factor in the sense of relevant consideration, but it's right insofar as it is in
effect saying one of the reasons - - -
MR MAXWELL: It's right as a matter of construction, yes.
ALLSOP J: Yes.
MR MAXWELL: Even as a matter of construction, in my respectful
submission, it's not a paraphrase of one of the reasons for - - -
ALLSOP J: No, it has to one of the reasons.
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MR MAXWELL: It has to be one of the reasons. Then his Honour in
116 deals with submissions deals with submissions made in relation to the
material published by Scully, at the bottom of that page:
Adopting the approach of her Honour in Creek, in my opinion there
are many things about the publications which "suggest race as a
factor".
So his Honour does seem to using the "suggest" as sufficient in the
respondent's decision to publish. These include the fact that the leaflets
specifically refer to Jews. There are three criteria here which her Honour
replicates in this case. First is that they refer to Jews. Secondly, after the
bracket:
Discuss matters that are of particular importance or to specifically
relate to Jewish people.
Thirdly, last sentence:
It's enough to contravene 18C(1)(b) that one reason for the
respondent publishing the material because of the message which the
material conveys about Jews.
Paragraph 117, and this is perhaps a good example to contrast with what
we're dealing with. The leaflet in question referred to in 117, third
sentence asserts that:
Nearly all Jews are un-American, anti-freedom, anti-gun ownership.
It may be that a reason for circulating the leaflet was to say something
about gun ownership.
Even if that be so it is patent on ...(reads)... "to say something
derogatory about Jews". That alone, in his Honour's view is
enough.
In our respectful submission if that is right as a matter of construction, and
we say it's not, it is manifestly not authorised by article 4, to say something
derogatory about a particular ethnic group or race.
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ALLSOP J: Leave aside, if I may, your constitutional argument or that
aspect of your construction argument that could be satisfied. His Honour at
paragraph 117 in the last sentence, returns you would accept to the language
of 18(B) correctly.
MR MAXWELL: Yes, your Honour, with respect, yes.
ALLSOP J: Or perhaps more respectfully and correctly to his Honour,
that's what his Honour was really dealing with all the time.
MR MAXWELL: His Honour goes on in ways which are different from
this case to reject Scully's argument that she never targeted Jews as a
group. One well knows what literature of that kind looks like and one
abhors it. According to his Honour, the leaflets in question attacked Jews
generally. From what his Honour says, that publication would dissatisfy
our test. One would see in the material a hatred of Jews to which
expression is being given. That's not this case, in my respectful
submission.
To publish something that you know will be offensive to Australian Jews is
not to express your hatred of them - - -
CARR J: Wouldn't you say - they are materialistic giants with their snout
in the trough - it must be references to compensation payable only to Jewish
people.
MR MAXWELL: Your Honour that is one of the passages - as I read
that, that is to do rather with the academic holocaust industry, hence the
reference to Nofelmacher. Those who make their living out of writing
about the holocaust, rather than - I haven't read it at all as your Honour
puts to me - it may be that's what her Honour means in the relevant
imputation, but I read that as a bit like what people say about scientists who
are concerned about climate change, and it's all about job creation.
CARR J: It's interesting the way people read it differently. I read the
reference that Dr Nofelmacher has been dragged in because he happened to
be Jewish. Dragged in as a justification - asserted justification. I now have
a different aspect, not necessarily yours of course, but a different approach.
MR MAXWELL: Yes, your Honour. If I might then take your Honours
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to this case and what her Honour said in reaching the conclusions she did
reach. Your Honours at paragraph 88 are the imputations which her
Honour found to be conveyed by the material. The only one I wished to
question was (D). (A), (B) and (C) are it's conceded, conveyed, intended
to be conveyed by the material.
KIEFEL J: You accept (C) do you?
MR MAXWELL: Yes, your Honour I read that in what is said. We'll
come back to that later if we may, indeed to deal with (D). But for this
part of the argument, I wanted your Honours to go to paragraph 97. Her
Honour correctly sets out the test in 97, then refers to what Hely J said as
we have just seen in Jones v Scully. At the top of the next page, 733 in the
court book:
I also propose to adopt the approach adopted by Kiefel J in Creek v
Cairns Post.
Then her Honour says this:
In my view it is abundantly clear that race was a factor in the
decision to publish. The material includes many references to Jews
(reads)... calculated to convey a message about Jewish people.
So the three criteria by reference to which the conclusion is reached that
race was a factor are these - there were references to Jews. Secondly, there
were references to matters of particular importance to Jewish people, plainly
so. Thirdly, the article was calculated to convey a message about Jewish
people, though her Honour doesn't pause to say what that message was.
In my respectful submission, that trio of considerations will bring within the
net things which can not on any view be said to be racial discrimination. If
I might give some examples - - -
CARR J: Are you going to read it destructively or cumulatively for the
purposes of your - - -
MR MAXWELL: I am going to read them cumulatively. The first
example which occurred to me, your Honour, was English football
hooliganism. You might have an article about English football hooliganism,
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making some references to English people. That's the first criterion.
Second, it would refer to a matter of great importance to English people,
that is FA football. Thirdly, it would be designed to convey a message
about English people, that is that they are brutish, drunk and above all ill
behaved abroad. That's very derogatory and would cause offence no doubt
to those majority of English soccer supporters who don't behave like that.
KIEFEL J: I don't know that FA cup supporters are an ethnic group
though, are they?
MR MAXWELL: I didn't mean FA cup, your Honour, football
association - those who support English football. I am talking about this
would cause offence to members of people who live in England, who are
English, because they are being slandered as a group by reference to what,
as is notorious, the behaviour of English football supporters when abroad.
It's often said that this reflects very badly on the English education system,
the English sense of public behaviour. Another example that occurred to
me is this, I happen to just have been reading this book, the March of Folly
by Barbara Tukman and the learned author's argument is that see through
history astonishing acts of folly by governments acting in the face of
plainly, of indications that their conduct is counter-productive.
Now, chapter 4 is entitled, the British lose America and it's quite a
shocking chapter to read because of what it says about the stupidity, the
corruption, the arrogance of the English who were responsible for making
the decision which though they were warned over and over, brought about a
rebellion which wouldn't otherwise have happened. Now, lots of references
to British people about a matter of great importance, the loss of potentially
their most wealthy colony and intended to send a message about British
people which is that their political system is forever infected by patronage
and aristocracy and those who become promoted above their competence
and that's why the Brits got it wrong.
That is likely to cause offence. There would those no doubt who would
say, no, that wasn't how it happened at all. There were good reasons for
the decision to impose the Stamps Act in whichever year it was, we needed
money to pay for the upkeep of the colonies and so on. But it's a book
written by an American which, to use the vernacular, would get up the nose
of English people. She does write a chapter about Vietnam which would no
doubt get up the noses of her own countrymen.
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Two other examples, your Honours, one can well imagine example, the
hard written article written about the behaviour of Belgium in Africa as a
colonial power and the extraordinary atrocities that occurred at the hands of
that colonial power. There would be plenty of reference to Belgians in
relation to the Congo in particular, their colonial behaviour would be a
matter of importance to Belgians and it would be clearly intended to send a
message about their barbarity.
Last example, the recent investigation of the killing of Jews by Poles, that
has been the subject of investigation and commentary, plenty of references
to Polish people about a matter of great importance and great
embarrassment and shame and clearly intended to send a message that the
Poles were cruel murderers in relation to those Jews whom they murdered.
Now, I'm not talking about 18(d) exceptions here because it might be said,
well, those are the sorts of things that have been written in academic
argument, well, so they might be but I might not be an academic and I
might just go on the internet and publish those things from my general
knowledge.
In my respectful submission, the number of the examples could be
multiplied, one could think in relation to almost every nation in the world of
a topic about which something could be written which would meet those
three criteria, many references to members of that race about things of
importance to them and clearly intended to send a message about them.
KIEFEL J: But isn't the critical inquiry what the message is? That's
where you discern your motivation, don't you? It's what they are saying
about - - -
MR MAXWELL: That is so but if it's enough to be derogatory, as his
Honour says in Scully, then each of my examples would be caught.
Derogatory just means, I'm giving them a bad name.
ALLSOP J: But his Honour wasn't using derogatory there, that was
parenthetical and that's why his Honour used parentheses. His Honour wa
dealing with, because of and in passing noted, he wasn't substituting
derogatory for 18C(1)(a).
MR MAXWELL: No, your Honour but he did with respect, say, one of
the reasons for doing it was to say something derogatory about - - -
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ALLSOP J: To say something about Jews.
MR MAXWELL: Which is derogatory, he used that adjective and that
was enough by itself, his Honour said, for a contravention.
ALLSOP J: No, he was dealing with 18(1)(b) at that point. You can read
his Honours reasons at that point, leaving out derogatory.
MR MAXWELL: No but your Honour, he is dealing with (1)(b) I accept
that.
ALLSOP J: But going back to your examples, you take your Polish
example, you could have a piece of work dealing with the participation of
Gentile Poles in the events after the occupation and a number of people
have written about that. You could have someone who has a website who
deals with Poles who simply identifies page after page of the website or
what are said to be the heinous things that Poles have done to either
Germans or Jews or Slavs through their history and you would have to look
at the particular publication because just because there is a historical subject
about which debate and exchange may take place perfectly legitimately,
does not gainsay the proposition that that subject matter can't be something
that would cause 18(1)(a) because of 18(1)(b) and to which 18(d) is foreign.
MR MAXWELL: I accept that, your Honour.
ALLSOP J: And I mean, while for instance, those examples are to
limonite to a degree, you could have a website which dealt with those sorts
of subject matters in a way which humanly sensibly you would be applying
this sort of legislation.
MR MAXWELL: Yes, your Honour, with respect, may I use your
Honour's example, that appears to be exactly the tenor of the Scully
material, instead of talking about gun control in America as a topic, she
talks about Jews and gun control and that appears to be an example of
example of what your Honour is saying which is, the point of reference for
each subtopic is, the common point is Jews or Italians or English, so that
you would reach the conclusion that the reason she is publishing on this
subject is because of the Jews or the Italians.
ALLSOP J: Yes, that's right.
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MR MAXWELL: I accept that but I've made the point because when we
go back to this article, in my respectful submission, your Honours are not
considering a website which does anything other than publish this article.
That is why it is all together different from Scully because she was, as his
Honour found, wanting to say something about Jews every time she wrote.
In my respectful submission, that is not how this article is to be
characterised. We may go to it now.
It's in paragraph 81 - - -
ALLSOP J: Where is it in the Appeal Book?
MR MAXWELL: Appeal Book, 725, your Honour.
ALLSOP J: No, where is it in the Appeal Book in its original form?
MR MAXWELL: I don't know, I'm afraid I've just worked from the
judgment.
CARR J: Mr Maxwell, you probably can see or doubtless can see that we
start, we can at look from at least page 71 onward, we're not confined to
what is reproduced, are we, at paragraph 81 of her Honour's reasons?
MR MAXWELL: Yes, your Honour, with respect, the court is, that's my
whole point. The question is, was this Act viewed within the limits of the
evidence that her Honour took to be relevant to it.
CARR J: Her Honour identifies the document about the Adelaide Institute
referred to in subparagraph 9(a) and says, it includes the following material,
so she then takes some passages out of it.
MR MAXWELL: I beg your Honour's pardon. I thought your Honour
was saying material other than that document but the entire document is
- - -
CARR J: So we're on common ground.
MR MAXWELL: Working if I may from what's in the judgment,
paragraph 81 the presiding judge reminded me, says:
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The document includes the following material.
In the next 1, 2, 3, 4, 5, 6 paragraphs down to the sentence beginning "We
at the Adelaide Institute...", the only reference to Jews is that, according to
Dr Toben, it is alleged that they were systematically killed. In the first
paragraph he says:
We're a group of individuals who are -
leaving out some words:
- We're looking at the jewish/nazi holocaust, in particular we're
investigating that the Germans killed 6 million Jews -
etcetera:
In our investigations we refused to be intimidated by anyone. We
want to test the alleged murder weapon and in the Auschwitz murder
case certain individuals wish to prevent us from focusing upon such
an investigation.
Well that is simply to define the task upon which he and his associates are
engaged. The latest version of how the Germans gassed millions of Jews is
propagated by Professor Lipstat who claims that mortuaries were converted
into homicidal gas chambers. Proof of this is apparently found in so called
conversion plans. We've requested copies and we don't have them. That is
consistent wholly with his task. In the meantime we've noted the original
Auschwitz figure has been reduced. This is in itself good news and that's a
point - I withdraw that. Next paragraph:
We are worried about the fact that to date it has been impossible to
reconstruct a homicidal gas chamber.
End of that paragraph:
We are justifiably sceptically about the homicidal gas chamber
claims.
Now to repeat, we have conceded in our outline that these views are
obviously unorthodox and would be perceived by most people to be extreme
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or wrong headed and one asks rhetorically why would you question the
occurrence of the holocaust? Can I make the same question in relation to
the book we mentioned in paragraph 27 by Keith Windshuttle and I would
ask the same question, why would you question aboriginal history about the
murders of aborigines at the time of the white arrival. Answer because
you're not satisfied that the conventional wisdom is founded in evidence.
That's what Keith Windshuttle says in his book, that's what Dr Toben says.
Now it might be said right thinking people wouldn't bother to question it,
they're mainly concerned with how to deal with the consequences of such
an appalling thing whether the holocaust or the extermination of Australia
aborigines but there are those who raise these questions and ask for the
evidence and say, as Dr Toben does, I haven't seen it. That is not an
expression of race hatred in our respectful submission. It is challenge to the
orthodoxy.
ALLSOP J: As part of the fight of activity to which section 18D is
directed, that's Professor Windshuttle?
MR MAXWELL: 18D?
ALLSOP J: 18D, yes.
CARR J: But the more bizarre assertions you put in the public arena, isn't
it more likely that you'll incite people to hatred?
MR MAXWELL: Well if that's the test your Honour, and we'd be happy
if the court accepted our argument that it should be read subject to that, of
course if parliament had meant that they should have put it in but in our
respectful submission that conclusion wouldn't be reached here.
CARR J: Bizarre and based on race?
MR MAXWELL: The more bizarre, the more disregardable, that's the
fine tradition of free speech. I'll let you make your bizarre point, I'm just
not going to bother to read what you say because it is so obviously a lunatic
point of view, that's the point. This kind of stuff it might be said doesn't
need to be taken seriously because 95 per cent of the world's population
accepts that the holocaust occurred and is horrified by it. If somebody says,
I haven't seen the evidence for it, well, that's not likely to incite racial
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hatred if that were the test and it should be. It's going to be regarded as the
views of an extreme minority and wrong headed etcetera.
Our law allows people to make wrong headed statements publicly, and it
should, and the free speech tension which has been in this convention from
the start needs constantly to be attended to. That's another reason for
giving 18C the kind of reading that your Honour's suggesting, that is, if it
had a tendency to incite racial hatred, then I wouldn't be standing here
saying there's no link with article 4. It would be just the kind of
prohibition that one would have expected.
My argument would be that this article doesn't have that tendency for the
reason I've just give. Whereas an article which says, all jews are robbers
and liars which is emphatically as apparently the Scully material was,
attacking jews as such, it may well be able to be said of that publication that
its likely to calculated to incite racial hatred.
CARR J: Depends I suppose how early you try and nip it in the bud.
MR MAXWELL: Yes, your Honour.
CARR J: You were talking about a reasonable reaction to reading such
bizarre material where as perhaps the parliament thinks that its the
skinheads or the more unreasonable and more irrational people that are
going to be appealed to by bizarre material. Anyway, I understand your
argument and understand the accommodation argument, the accommodation
of the freedom of speech provision in the other convention that you've
mentioned.
MR MAXWELL: If your Honour pleases. Just to keep reading it. Then
I pointed out his rejection of the assertion that this is an exercise in race
hate and he has apologised for offence. Bottom of the page:
We at the Adelaide Institute focus on the Jewish/Bolshevik holocaust.
A matter referenced to Demadenko Darvill.
Again in terms of being taken seriously, the Demadenko Darvill book has
been so widely discredited that anyone reading this would realise that its
foundations were flimsy.
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