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Transcript
Pages 61-80
relevantly anything else in this appeal book other than pages 73 and
onwards in PJW4 are not the documents referred to at all in paragraph 14
and the so called particulars under them. Now is that right or wrong?
MR ROTHMAN: On re-reading the paragraph of her Honour I would
have to say that's right your Honour.
ALLSOP J: That's right. So all the material in the appeal book, is
material about which the statement of claim and particulars to it is and are
silent?
MR ROTHMAN: No, your Honour. What her Honour says is that the
affidavit doesn't refer to it, her Honour does not say that the statement of
claim does not refer to it and the difference was that affidavit material, the
last affidavit of Mr Jones which is 659 was filed inter alia because there
was an issue, there was a difficulty in the case about the reproduction of
material because is was on the web. Her Honour asked whether her
Honour could access the web as a result of some of this difficulty and the
affidavit - yes, the affidavit of 659 is affidavit which purports to go to the
timing of the material because the material that was reproduced for the
purposes of the proceedings bears a date on the web which is after the date
of the lodging of the complaint. The court will be aware that this case was
one of the, maybe the only one but one of the few cases that was caught
into one of the really odd transitional issues in which the hearing had
already commenced before the Human Rights Commission, the matter was
then completed before the Human Rights Commission, the transitional
provisions post-Brandy provided for the enforcement of any such
determination before the court because after those transitional provisions
expired or after the cases expired that were governed by the transitional
provisions, the matter first come before this court.
The issue that came before her Honour was an issue inter alia because of
the summary nature of the case, her Honour took the view and it's a view I
have to say, that was on the basis of submission that we had put, that her
Honour was confined to enforcing that which was the determination of the
Human Rights Commission below but in a hearing which was de novo. Her
Honour then asked the question as to whether or not there was proof,
notwithstanding what was on the net, as to whether that material was on the
net at the time that the complain was made, hence the affidavit of Mr Jones
which goes to his recollection that documents of that kind or to that effect,
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were on the net at the time even though they are now dated by a different
date.
It's a problem with publication on the net in a sense that it is, to put in the
words of the High Court, it's re-published in a sense every time anyone
gains access to it. That was the issue which her Honour then, as a matter
of abundant caution, in my respectful submission, I don't seek to cavil with
it but as a matter of abundant caution, confined herself back to that which
she knew or knew not he evidence was in fact or had in fact been published
as at the date of the complaint to the Human Rights Commission back in
1996 or thereabouts. I don't know the date of the complaint but it is set out
in her Honour's judgment.
KIEFEL J: That's to say in the period identified in paragraph 14 of the
statement of claim.
MR ROTHMAN: Yes, your Honour.
KIEFLE J: So, her Honour was right to say that there was only that one
article which was established on the evidence as falling within that period,
of the articles - - -
MR ROTHMAN: We don't concede that but we do concede that her
Honour does say that and we don't put on any notice of contention and
haven't. I hear what the court said before the adjournment and will confine
myself, at least on the question of 18C to the issues that are raised in that
document. The 18D issue may raise different issues but I won't take very
long with that, in any event. But I suppose in defence of my own position,
if I may be so bold, I should draw attention to the fact that the actual notice
of appeal doesn't suggest that her Honour was factually wrong, leaving
aside not open to her which is, of course, the test that one would have to
apply.
It does not suggest that her Honour was wrong as a matter of fact on the
18C(1)(b) point if an interpretation of that section is given other than the
one that is argued by my learned friend. So that in essence, it all still
comes back, in my respectful submission, to the crux of the issue as to the
proper construction of section 18C insofar as it deals with the paragraph
- - -
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ALLSOP J: If I could perhaps ask you this, perhaps unwisely but
nevertheless, if the question is: was there any evidence before her Honour
of the matters in 14.2 through to 14.13 as published between those two
dates? Is the answer, no or yes?
MR ROTHMAN: Your Honour, I don't wish to answer your Honour - - -
ALLSOP J: Don't repeat what you - - -
MR ROTHMAN: No, I'm not going to, your Honour. I will stand by the
answer I've already given your Honour but can I say this: in my respectful
submission and it would in my view need to be, having looked at the issue,
done by way of notice of contention. But the difference is that paragraph
14 of the statement of claim deals with the addresses of various items.
There are other items, including paragraph 16 and indeed, the affidavit
which go beyond that but I'm content to deal with it on the basis that
paragraph 9(a) is the one in question. But as I said, your Honour, I'm
content to deal with it on that basis and whatever be the reason, I'm content
so to do, your Honours.
The reference I did make to the notice of appeal and its confinement I only
make by way of passing but as a reference to paragraph 9(b) as amended
and paragraph 9A and 9B. If I can then deal with the matter this way, if
your Honours please, my learned friend reads the judgment of her Honour
or put submissions on the basis of the judgment of her Honour in a way
which, in my respectful submission, is not appropriate and confines her
Honour in a way that her Honour expressly disavows.
My learned friend starts in the analysis relating to the question of the proper
interpretation of section 18C and to the way in which her Honour applied it
by dealing with the use of the word, factor in her Honour's judgment and in
my respectful submission, the way in which my learned friend has done that
is a way which impermissibly uses her Honour's words and ignores that
part of her judgment which deals with the issue of reason.
The obvious starting point, leaving aside the Constitutional point insofar as
it affects the construction issue but the starting point to which I suppose,
sub silentio, everybody has been made aware, is the definition in section
18B. That, of course, starts with:
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If an Act is done for two or more reasons.
And one of those reasons is the relevant reason, race, colour or ethnic
origin. It doesn't have to dominant or substantial, then for the purpose of
the Act the Act is taken to be done because of the persons race. So the
legislature is making clear that it does not have to be the rason given in
18C(1)(b) does not have to be either the dominant or even a substantial
reason but any reason. In my respectful submission, any reason which is a
factor in the conduct complained of and that is the way in which the use of
the word, factor comes into the debate, any reason which is a factor in the
decision to do that which was done, is a reason which will be caught,
assuming it otherwise meets the criteria, by the terms of 18C(1)(b) and the
starting point must be the provisions of section 18B.
Her Honour does that and does that by reference in a number of ways;
firstly, her Honour after setting our paragraph 9 about which we've had
some short discussion, her Honour sets out a part of PJW4 and the says at
paragraph 82:
It is necessary to determine two issues, first, when the publication
(reads)... insult, humiliate or intimidate.
Now, my learned friend said in essence picking up a passing reference by
Hely J, spoke of the word "derogatory" but her Honour is clear, and her
Honour doesn't use the word "derogatory", her Honour uses those words:
- and that the publication is reasonably likely to offend, insult,
humiliate or intimidate a Jewish Australian or group of Jewish
Australians -
is a conceded issue in the proceedings before this court. Her Honour then
deals with the issue of "likely" which is now moot given the concession that
has been made and her Honour then turns to Jones v Scully in the judgment
of Hely J and the modelling on the law of defamation and, without reading
that, his Honour looked at the use of the word "reasonably" and the manner
of the publication and the material and in the outline of submissions, which
I am assuming your Honours have read, I repeat a submission that as a
matter of fact was made to Hely J in that case and to her Honour below
relating to the judgment of the High Court in Bellino and Wran v ABC and
other such defamation cases. In this case on appeal nothing much turns on
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it frankly. At paragraph 88 her Honour then says:
Having regard to the total content and format of the document
headed About the Adelaide Institute and the mode of its publication
(reads)... following imputations.
Then her Honour sets out the imputations in a like analysis to the way in
which Hely J analysed it, that is in a defamation type sense:
There is a serious doubt that the holocaust occurred, it is unlikely
there were homicidal gas chambers ...(reads)... in which they were
killed.
As I understand it there is no serious challenge to the imputations that her
Honour has there raised and paragraphs C and D relate specifically to
Jewish people as Jews. I'll come back to this theme in a moment. Her
Honour then refers to the judgment of Hely J at 176:
It is not for the court in a case of this kind to seek to determine
whether or not the holocaust occurred -
etcetera:
The role of the court is to determine whether the applicant has
substantiated his complaint.
Her Honour then goes to the definitions of "offend", "insult" and
"intimidate". It refers to Kiefel Js judgment in Creek and then makes the
comment, and I quote:
I do not understand her Honour to have intended by the above
observation to imply that a gloss should be placed ...(reads)... to
mere slights.
Then the evidence of the applicant is gone through and I don't read it but
your Honours are familiar with the judgment below. If I could then take
your Honours to paragraph 96. Her Honour then says:
It also seems to me to be objectively likely in the sense discussed
above that the publication of ...(reads)... Jewish community.
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Then at the foot of the paragraph:
For these reasons I am satisfied the act of publishing that material
was an act reasonably likely ...(reads)... Jewish community.
Paragraph 97; my friend has taken your Honours to this:
It is necessary to determine whether the act of publishing on the
world wide web was an act done because of the ethnic origin of the
groups.
Now, her Honour is there repeating the words of the section but her
Honour, as her Honour expressed in relation to the judgment of Kiefel J,
was not, in my respectful submission, thereafter seeking to put a gloss on
the words of the section. Her Honour was, rather, looking at the cases and
seeing how it was the words "because of" were then interpreted. Her
Honour goes on to cite Jones v Scully and if I can take your Honours to
that. Her Honour's analysis starts at paragraph 114 and it is, of course,
repeated but Hely J in Jones v Scully makes a number of comments and his
Honour, contrary to the submission of my learned friend, analyses each
publication on its own merits, indeed, finds, for example, in relation to one
of the matters that was the subject of complaint that it did not offend against
the Act but I'll come to that shortly. In paragraph 114 his Honour says
this, and this is the passage that her Honour adopts:
The phrase "because of" requires consideration of the reason or
reasons for which the relevant act was done.
And cites Hagan. Your Honours will know Hagan and are familiar with it:
In my respectful submission it is impermissible in circumstances
where a judge ...(reads)... and in my respectful submission -
This is made in the outline of submissions the term "factor" when her
Honour uses it is simply another word for "reason"; that is - I don't wish to
put in another analogy but a causative effect, that's not to say but for the
existence of that factor it would not have occurred because that's not
necessary. What is necessary, however, is that her Honour has to find that
a reason, whether it's predominant or substantial or non-predominant or
insubstantial, a reason, one reason, for the publication of the material here
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in question was the ethnicity of Jewish people and the people who are
offended and her Honour makes that clear by citing Hely J in Jones v Scully
and the very opening words of that citation. Her Honour goes on to say:
It is important to note that if an act is done for one or more reasons
it is enough that one of the reasons ...(reads)... for doing the act.
That, of course, is a reference to section 18B:
The applicant submits that the test to be applied in a consideration of
18C(1)(b) is whether a race is a material factor in the performance
of the act.
Now, in my respectful submission, it is there used, the term "material
factor" and the term "factor" thereafter, in a way which connotes properly a
reason and her Honour is, in that sense, utilising previous decisions of this
court in a way which goes to the question of what is the reason or reasons
under 18C(1)(b) is not, in my respectful submission, a proper criticism of
her Honour's judgment that her Honour uses a term such as "factor" instead
of using the term "reason" when her Honour is making clear that what her
Honour is simply doing, in the way in which Hely J did, was to determine
that which was a motivating reason, by motivating I don' mean subjective
but a motivating reason in the performance of the Act in question.
Hely J says that, refers to your Honour's judgment in Creek, that there have
been differences of opinion expressed. The reason of the discrimination
legislation, is not necessary to repeat what her Honour there said except to
say that at the end of her discussion of the relevant authorities her Honour
adopted an approach to 18C(1)(b):
which inquired into whether anything suggests race is a factor in
the respondent's decision to publish the work in question. I
respectfully propose to follow that approach.
Her Honour adopts the approach of Kiefel J in Creek as well.
ALLSOP J: What does it mean for race to be a reason; if you verbalise it
in terms of a human process? Does one of the reasons has to be, "I want to
write", or "I'm going to write this article about Belgians or about English
or about Jews", is that what it is? What does it mean to say one of the
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reasons was race? It's easy enough to understand one of the reasons is a
dislike or a like about a particular race, that is, "I want to write this article
as I like Jews", or, "I want to write this article because I dislike them", but
if you take off the view that one has about them, whether one hates them or
likes them or is indifferent to them, what does it mean to say that you want
to publish something because of race?
MR ROTHMAN: The problem with examples in this area of course is
always that - - -
ALLSOP J: I'm just having difficulty - - -
MR ROTHMAN: I understand what your Honour's conceptual question is.
The problem with examples in this area, if I may be so bold, is that one
simply replaces one problem for another. My learned friend's examples for
example tended really to miss the point that one has to look at it in the
context in which it's written and what is the connecting factor or the factor
which, properly analysed, is a reason, I suppose I'm simply paraphrasing
your Honour's question, but conceptually it is this: it doesn't have to be
liking or disliking a particular race or ethnicity, is unnecessary for the
purposes of an act being done because of the race, colour or national ethnic
origin.
But if one looks at this particular case your Honours in the course of
discussion with my learned friend referred to two particular aspects of the
article in question. One of them was the use of the term "Jewish Nazi
holocaust". My friend wants to suggest that the Court should adopt a view
of that because it's bizarre - - -
ALLSOP J: Jewish Bolshevik holocaust.
MR ROTHMAN: - - - you should dismiss it. With respect I would have
thought the opposite was the case, but nevertheless there is a reference there
to the Jewish Nazi holocaust. Now, there are a number of things one could
say about that. It's not the Nazi holocaust against Jews, but the Jewish
Nazi holocaust, as it was the Jewish Bolshevik holocaust. There's not a
complaint in that question or that statement about Gipsies or homosexuals or
Communists or opponents to the Nazi regime, of which there were many.
There's a reference to the issue associated with the Jewish Nazi holocaust,
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and therefore it's not the mass killings which is at the fore of that statement
that is made in the first paragraph I think it is of the particular question, but
rather the ethnicity of the victim, so that the holocaust in that question, or
in that issue is defined not by what was done, not by the political genus of
the perpetrators, nor even by the nationality of the perpetrators since my
friend uses that term, but rather by the nationality or ethnicity of the victim,
and there is only one unifying aspect of the various issues that are raised in
the article, and that is the ethnicity of the target.
Now, it may well be that Dr Toben has a view about the holocaust
generally; it may well be that Dr Toben has a view about the strength
and/or weaknesses of the Nazi regime in Germany; but none of that is the
subject of this discussion. This discussion is aimed at the Jewish Nazi
holocaust, and this discussion is aimed at the only two identified henchmen
of Lenin and Stalin, who it is said by Dr Toben are Jewish. There's not
even a suggestion that there were other henchmen.
Now, my friend says, "Well, we have to assume that everyone is as well
educated as he is", but with respect your Honour asks the question, and it's
difficult to conceptualise, and that's why I'm having difficulty with it. It's
a difficult conceptual issue. It's a bit like the expression, "I don't know
how to define obscenity but I know it when I see it". In this instance it's
not whether Dr Toben subjectively was motivated by a factor, or motivated
by the ethnicity of the target group, only that the group is the target and it
fits within the 18C(1)(a). And if the group is a target by virtue of their
ethnicity, that is sufficient.
KIEFEL J: But even saying the word "target", you tend to underscore the
fact that some motivation is involved. I mean, racist reasons really just
refer to race as being influential or motivating a person to do what they do,
isn't it?
MR ROTHMAN: Yes, your Honour. I used the word "target" because I
was seeking to - I was really using an example here in a sense as a
hypothetical, probably very poorly.
KIEFEL J: But if you were searching for, or you were able to come to the
view that a group is being targeted, you've gone perhaps one step beyond
where you need to go, and what you've already identified is something
about the motivation or what is influencing the person who is writing, and
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that, it seems to me, is what "because of race" involves.
MR ROTHMAN: Well, I accept, your Honour, that using the word
"target" has probably taken it further than I need to take it.
KIEFEL J: But on the other hand, I don't think it would be sufficient
simply that a group or race is referred to a lot in an article. I think you've
got to go further than that. You've got to be able to draw a conclusion
about the person making the publication.
MR ROTHMAN: Well there's no doubt about that, your Honour, but with
respect one of the problems of course with this sort of analysis, when one
differentiates and separates out, as one must in a conceptual sense, the
paragraph (a) and paragraph (b) issues, and indeed the 18C issues from the
18B issues, is that one then tends to go to examples which would on any
analysis fit within 18D, or on any analysis wouldn't come within 18C(1)(a).
KIEFEL J: That's right, and as you said before, that's why you have to go
to the words and the occasion used as you do in a defamation case, and
analyse them.
MR ROTHMAN: The example that was used below from memory was an
example relating to discussion of the holocaust generally. For example, if
there was a discussion and there probably are, a number of discussions on
the holocaust, none of which would fit within 18C(1)(a) and all of which
would fit within 18D. There are discussions on the holocaust of a kind
which fit within 18D that would look seriously at the question of the what
the numbers were involved. One of the examples, I think, used by his
Honour Hely J, was the issue of an article about the incidence of crime
amongst Aboriginal youth. You could have clearly an article that mentioned
indigenous population at length - what was a criminology article for
example - fitted within 18D - may well be offensive in 18C(1)(a) sense and
would probably be within 18C(1)(b).
But the motivating factor may not have been the race of the person in the
sense that the person writing it may well have been writing about a number
of ethnic communities and their preponderance to - - -
KIEFEL J: If you are talking in anthropological terms, race is sometimes
only a way of drawing attention to a particular ritual or practice. It's the
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ritual or practice that they are trying to refer to, not the fact that it's
undertaken by the Bemba tribe. It's just a way of identifying a group that
does something rather than being motivated by considerations of the race of
that group, to say what you are saying.
MR ROTHMAN: Indeed, your Honour. About the only way I can deal
with it other than using the words of the Act itself, because in my respectful
submission, other than using the word "factor" which of course the issue
that is before your Honours, and the way in which a number of judges of
this court have now dealt with the issue, or the word "reason". There isn't
really a very good way of dealing with what the terms of 18C(1)(b) means,
but perhaps the only other way one could deal with it, was whether it was a
prominent feature.
But, as your Honour says, there could well be an issue where race was
mentioned a great deal in an article, without necessarily being an article or
an act done because of the race in question.
KIEFEL J: It mightn't have influenced the publication of the
anthropological argument at all, but rather the particular practice that is
undertaken. Even though, that I suppose could be offensive to the tribe in
question, that it is gone into with potentially some implied criticism.
MR ROTHMAN: Yes, your Honour, I suppose in one sense.
KIEFEL J: On the other hand, I think you say going over the same
grounds I suppose, you could adopt Mr Bennett's submissions about the
construction point, which doesn't seem to diverge from yours.
MR ROTHMAN: I think, your Honour, the learned solicitor and I differ
in very minor ways, but nevertheless there are some nuances. It would
probably be the case that we take a broader view on the construction and a
narrower view on the constitutional issue.
KIEFEL J: Do you? What is the broader view that you contend for?
MR ROTHMAN: We say, your Honour, that ultimately one looks at the
Act - it's not always a publication - but the Act in question holistically.
That is, one looks at it and one says whether it in fact would fit within
18C(1)(a) and then determines whether the race of the person or persons or
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group of persons who are vilified - who fit within 18C(1)(a) - - -
ALLSOP J: About which people could reasonably take offence.
MR ROTHMAN: Yes. Is a factor in the Act in question. We would say
your Honour was right.
ALLSOP J: A subject matter not entirely divorced from the universe in
which we are discussing. If you had a work written about the responsibility
of all adult Germans or the events of the 40s in Germany, it might be
written by some - and let's assume the work falls within 18D quite plainly -
an historical work. It might be written by someone who has an historical
interest in the group responsibility of communities for events which some
members of those communities undertake, or it might be written for other
reasons.
One reason might be is that the person wants to write about the Germans in
the 40s. It is assumed both because the work falls within 18D - scholarly,
serious - but one may fall into 18C(1)(a) and the other not. Because for the
first author - the first author simply is writing and only writing about the
communal responsibility of societies for how some act. The other person
might be writing because he or she wants to write about the Germans in the
1940s. In the second circumstance it may well fall within 18C(1)(a) though
is saved by 18D. In the first circumstance it is not an 18C(1)(a) problem at
all, because that person is writing about communal responsibility.
In other words, because of means, I do this because I want to do something
about the race or ethnic - - -
MR ROTHMAN: Your Honour, if I can deal with your Honour's
suggestion in this way. Obviously one doesn't get to 18D unless one falls -
- -
ALLSOP J: Of course, I understand.
MR ROTHMAN: I am assuming that the total legitimate and moral reason
for writing each of the articles your Honour hypothesises and your Honour
says in the first one the motivating factor is collective responsibility - - -
ALLSOP J: As a topic - - -
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MR ROTHMAN: In using the conduct of ordinary Germans who were not
in or were in the Nazi party - whatever - one uses that as an example as one
might use the African wars, you know the Zulu African wars, in that sense
of collective responsibility and may indeed be an article about a number of
different situations where a people have elected or have acquiesced in a
government which has done things which otherwise it ought not to have
done.
Your Honour, without going back to the cases, I would suggest to your
Honour that that is the "Nigger Brown" type issue. In other words the fact
that there Germans are used in your Honour's hypothesis to look at
collective responsibility, the race of a particular example is irrelevant. Just
as the race - if there was one - the racial apartheid of nigger as it was used,
it was held by this court, irrelevant in the Toowoomba - mainly with
Toowoomba Brown. It's quite a controversial example, but nevertheless,
we would say that in those circumstances, one could still fall foul of
18(1)(a), but one wouldn't fall foul of 18(1)(b).
In other words, what was written may well be offensive still to a person
who was German.
ALLSOP J: I'm sorry, if I said 18C(1)(a) - I meant 18C(1)(b).
MR ROTHMAN: Yes, your Honour, and I haven't put the C in either.
But in those circumstances falling foul of 18C(1)(a) one wouldn't fall foul
of 18C(1)(b) because notwithstanding that there was an example used
relating to a race it was not a factor. The race of the persons was not a
factor in the performance of the act or the publishing of the material.
CARR J: Yes.
MR ROTHMAN: In the second example that your Honour used there is a
discussion of the responsibility of ordinary Germans, and again I use the
word ordinary in the sense that non-Nazi Germans, in the events that were
perpetrated by Hitler and his regime and one does so - and the race or
ethnicity of the German people was a factor in writing that article then in
my respectful submission whatever it's intent, whatever your motivation and
whether it was to offend or the like, it still falls foul of 18C but is then
saved on your Honour's hypothesis by the provisions of 18D.
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The Act properly draws, and the legislation is entitled so to do, a distinction
between articles that are written in a way that would otherwise come within
section 18D and are written or done in reasonably good faith and those that
are not. In the end the parliament has said, we have turned our face against
the proposition where race can be used as a distinguishing factor to show
conduct which on any reasonable view people would find offensive and the
like.
CARR J: I think that brings you to the end of paragraph 17 of your
outline, page 5. I've think we've progressed that far.
MR ROTHMAN: It does, your Honour, but if I can do one of two things.
I'm being reminded and I was in fact about to take your Honours to it, but
I'll do that in a minute. I was going to take your Honours to the judgment
in Scully for this reason, and then come back to the particular article in
question as a matter of fact. The judgment of his Honour Hely J has been
looked at in terms of the rationale to it.
At paragraph 174 and following his Honour is dealing with a particular
article relating to the holocaust and whether it offends the act. The
discussion starts at the very foot of page 40 or 58 on mine, but in paragraph
170. Well, there's a heading at the foot of paragraph 170 and the top of
paragraph 171. At paragraph 175 his Honour says this at the foot of that
paragraph, or just before the quote:
To state that Jews have invented an historical event in order to
profit ...(reads)... the world or the remainder of it.
That is made explicit by the quotation attributed to Professor Faurisson:
The holocaust lie which was largely of Zionist origin has made an
enormous ...(reads)... the State of Israel.
Now, that passage is not stated in the article here in question. Accordingly
I find that imputation to it is conveyed by this article but that is only, if I
can say, not essential to his Honour's reasoning. At paragraph 177:
In my view a leaflet that conveys an imputation that Jews are
fraudulent ...(reads)... was unambiguously dismissive - - -
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I emphasise this:
- - - of the Jewish view of the holocaust. I therefore find that the
leaflet contravenes 18C.
Now, if I can come back, if I might, to the passage confined as I am to the
passage at page 72 and following. I don't wish to be pedantic, but your
Honours see pages 71 and 72 are blank. They're not quite. Page 71 is the
heading The Adelaide Institute. There is a concession during the course of
the case, by the way, that the respondent below and the appellant here had
control of the Adelaide Institute.
In paragraph 72 are the links which are various. The last time of them is
myth links. There is then a series of pictures and the expression No Holes
In The Holocaust and the like. If I can then take your Honours to page 75,
there's firstly the reference to the Jewish Nazi holocaust. The fact that we
we're looking at the Jewish Nazi holocaust. Now, that's clearly in my
respectful submission not a reference to the Nazi holocaust, but a reference
to the Nazi holocaust by the virtue of the ethnicity of a particular set or a
particular kind of victim and the allegations that Germans systematically
killed 6 million jews.
There's then a reference to the gassing of millions at Auschwitz and a
reference at the foot of the page that:
The allegation does not constitute hate-talk, anti-semitic racist or
even neo-Nazi activity.
The reference to anti-semitic, in my respectful submission, would properly
be construed as a reference to an issue relating to Jews and then in the next
paragraph there's the reference to Doctor Toben's so-called apology. Then
following that there's:
We at the Adelaide Institute also focus on the Jewish Bolshevik
holocaust.
The Court has been taken to this, a matter which has been dealt with in the
Darville novel. There's then a reference to summary of that and that
summary is done also in ethnic terms. She has revealed a basic historical
fact; namely, that Lenin's henchman Trotsky and Stalin's henchman
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Kaganovich were Jewish mass murderers. Now, there are two aspects to
that. Only the Jewish henchmen, if they were, and if they were Jewish, and
if they were henchmen - doesn't matter if they were by the way. Doesn't
matter if they were Jewish or they weren't Jewish.
The fact is that they're portrayed as Jewish in a way which is intended, in
my respectful submission, on its proper reading to be insulting, and indeed
in some senses that's conceded it is insulting, but in my respectful
submission the way in which it's drafted is shown that it is a reason; that is,
the ethnicity of these people is a reason for their highlighting. It goes on to
say:
This historical fact clearly shows that Jews are not always victims in
history but also murderers.
Now, that's Jews, with respect, not these two particular people but Jews as
an ethnic group. If one then goes over the page to page 78, the Court will
see the expression:
Instead these defamers and libellers of the Germans used legal means
to ...(reads)... is used to silence who want to know the truth.
Now, that's a reference, with respect, to the proposition that Jews were the
only ones identified in this article as the ones who are perpetrating the myth
are liable or have in fact exercised physical violence to silence people who
oppose to it, and if one goes over to page 79 one again sees the reference
to interestingly a claim of approval correctness and the reference to the
allegations that have happened and I have missed the passage that deals with
Knopfelmacher and again, whether he is Jewish or not is irrelevant, but he
is alleged to be relevant. He is said to have described these issues as "The
Holocaust racket".
Now, with respect, the only imputation that must arise from the term
"racket" is dishonest conduct, or dishonestly seeking to perpetrate what is
otherwise described as a myth, because their "snout is in the trough".
There is no other explanation for the use of the word "racket" as repeated
by the publisher here, the appellant, other than it has been done dishonestly
and, with respect, the only reference it can be is a reference to Jews as a
group, there are no individuals who are identified and, with respect, he used
the same ethnic group, or people with the same ethnicity, who are also
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inclined to use physical violence to silence those to want to know the truth.
The one unifying factor in all of the allegations that are made in this article,
is the ethnicity of the Jews that I mentioned.
Your Honours asked me a question about factor and reason, I can do no
better then to repeat the passage, or refer your Honours to the passage, in
the judgment of Kiefel J in Creek, at page 58 of the report, in paragraph 20
- at the foot of paragraph 20:
The words "on the ground of" and "by reason of" require a causal
connection between the act of the discriminator ...(reads)... private
life of the person.
That, of course, is a reference to the judgment of McHugh J, which your
Honour adopts and your Honour then goes on to use that formula:
On the ground of the status or by reason of the private life of the
victim...
Your Honour in paragraph 22 goes on to say:
In my view this accords with the reasoning of Dawson J and
Banovich J which describe the inquiry...(reads)... action in question.
Your Honour then refers to the joint judgment of Deane, Gaudron JJ in the
same case and comes back to the judgment of McHugh J. At paragraph 24
of your Honour's judgment:
Approach taken by McHugh J gives meaning to such words as "on
the ground of" or "because of"...(reads)... Lockhart J.
And your Honour discusses the South Australian case and the Secret
Women's Business case in the following passage. Your Honour at
paragraph 28 says:
In the present case the question is whether anything suggests race is
a factor in the respondent's decision to publish the
photograph...(reads)... person involved in the story...
Etcetera. Now, your Honour, with respect, those are almost the precise
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words used by Branson J, and her Honour says at paragraph 99:
In my view it is abundantly clear that race was a factor in the
respondent's decision to publish material...(reads)... message about
Jewish people.
Her Honour refers to the judgment of Hely J, to which I have taken your
Honours:
I am satisfied...
and this is the finding fact:
I am satisfied that the act of publishing on the World Wide Web the
material set out...(reads)... people in he groups which I have
identified.
Otherwise in relation to 18C, your Honours, we would - - -
ALLSOP J: The difficulty about breaking down, perhaps as Mr Maxwell
did, the elements in 99, it is not to put a gloss on what her Honour said, but
her Honour identifies those three matters in 99, but then applies a judgment
to the particular document in question, in answering a question, was this
brought into existence because of the Jewishness of these people? Or was
it, in the way I expressed it earlier, was he wanting to write about the Jews
not just dealing with an historical subject and that is what I was doing to
precisely identify, but you look at those and we've all got the same
document in front of us and if you ask yourself the right question, was the
existence of the article brought about because of the Jewishness of the
subject matter - of the people, and her Honour said yes. Other readers may
or may not have a different impression, I am not sure.
MR ROTHMAN: Well, that may be the case, your Honour, but I would
probably argue against it.
ALLSOP J: I know you would but even accepting that they did, her
Honour has looked at that document and said - the only evidence in front of
her, she was not assisted by any other evidence, "I can conclude out of that
on a default application under order 10 or 11, that one of the reasons this
was brought into existence was the Jewishness of the people".
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MR ROTHMAN: Indeed, your Honour, and the test my learned friend has
to say, is that it was not open to her Honour to come to that view and in my
respectful submission - unless my friend is successful on the fact that the
whole act has to be read down in a way which hitherto has not - my friend
has not come down to that end. Even it had to be read down in the way my
friend says, we say it was still open to her Honour to find, in a way, the
wrong thing.
We say, your Honour, in terms of the document that is before the court and
was before her Honour, that it is racial hatred, if one has to go that far, to
blame the victim on the basis of the race, or to attempt a moral equivalent
between the genocide of a people because of their race on the one hand, and
the participation of one or more person of that race in another genocide.
That in itself shows a factor in which the race is a factor, if not the
predominant factor, in the various parts of the same article.
Your Honour, in relation to 18D,I will go to paragraph 19, I will rely on
the submissions that we have put, we say, your Honour, in the same way
that her Honour did and we rely on her Honour's judgment and the
reasoning of it rather, and indeed, the reasoning of Hely Js judgment and
others, that the test in 18D, Hely J in the passage to which we have referred
the court goes to the explanatory memorandum of the bill. It is clear 18D
is a matter put at the foot of the respondent below that it is a matter in
which the onus is on the respondent having satisfied 18C, if one wishes to
avail oneself of the terms of 18D it is a matter for the respondent to prove.
The test is both reasonable and in good faith, at least in part it is subjective
the respondent below chose not to call evidence in relation to anyone of
those. Her Honour was entitled to take into account therefore any
inferences that could arise on the material that was before her. Unlike the
position in terms of 18C if it comes to the question of the genuineness of
the belief and the reasonableness of the belief her Honour is entitled to take
into account all of the other matters that went before her in terms of the
belief of the publisher and the respondent below and the matters on which it
relies.
In that regard without taking a lot of time can I refer the Court - there are
many passages which go to the bona fides and reasonableness of the views
of the respondent in publishing this material, when I say respondent I meant
respondent below. Can I without reading it to the Court at this stage if I
could ask the Court in that regard to look at, in particular, the passage at
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appeal book 180 headed:
Lies of Jeremy Jones, prominent Australian Jew, ..... lie and deceit
and hatred.
And the passage which then goes over the page for one and a half pages to
about point 3 on page 182 and likewise the poem at page 215 followed by
the article at page 216. It's probably unnecessary for me to go to any
others. They are sufficient to show that on the material that was before her
Honour it would have been quite inappropriate for her Honour to have
drawn the inference from all of the material that the onus of showing bona
fides and reasonableness had been satisfied by the respondent below.
The last matter is the issue of the construction. Your Honours, we rely on
the material that is put in the supplementary submission. Might I draw
particular attention without seeking to read it to - my learned friend has
concentrated on article 4, the Convention which is at tab 10 of the
extraneous material document. While the learned Solicitor nor those that
were doing our research could find or locate immediately the preparatory
works there are nevertheless in that extraneous material two particular
articles to which we refer one of which extracts parts of the preparatory
material and which we would ask the Court at least insofar as we cited in
the written submission to look at. But in terms of the article itself might I
take your Honours to article 2.
CARR J: You use the word, articles, obviously in the sense of
publications. Could you give me the tab numbers for those two publications
which have the extracts from the preparatory works? Not necessarily now
but later will do, thanks.
MR ROTHMAN: Yes, your Honour.
CARR J: You are moving on to articles in the Convention now, I think.
MR ROTHMAN: I'm sorry, your Honour, I've used, articles, in two
different ways and I apologise.
CARR J: Yes, I know, that can be dug up later but you're moving on to
some articles, other articles in the Convention.
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