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Transcript
Pages 81-104
MR ROTHMAN: Yes, your Honour. The learned articles to which I was
referring are in tabs 16 and 17 and they are referred to in the submission
that we handed up before lunch and I do apologise for the lateness of it.
If I can take your Honours then to the International Convention and the
articles therein. In particular if I can take your Honours to article 2. 2.1
refers to:
Stated parties condemning racial discrimination and undertake to
pursue by all appropriate means and without delay .....
understanding among all races...
I emphasise those last words:
and to this end...
If I can then take your Honours to paragraph (e):
Each stated party undertakes to encourage where appropriate
integrationist multiracial organisations and movements .....
discourage anything which tends to strengthen racial division.
Now, again, I emphasise those words. Any one of those words, in our
respectful submission, would on a proper construction of the authorities in
the High Court on the external affairs power allow the enactment of the
provisions which are now the Racial Vilification Provisions.
My learned friend, the learned Solicitor, deals with article 4 at length and
we say that a proper reading of article 4 and the authorities in question
allow, of itself, leaving aside article 2, would allow the enactment of the
provisions in Part 2A of the Act but we also draw attention to articles 6 and
7 of the Convention, in particular in article 6:
The acts of racial discrimination, violation of human rights and
fundamental freedoms...
Etcetera, and in 7:
The undertaking of immediate and effective measures in the fields of
teaching, education, cultural and information with a view to
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combating...
That is particularly not only:
with a view to combating prejudices which lead to racial
discrimination and promoting understanding, tolerance and
friendship.
Now, your Honours, with respect, Part 2A would fit within any one of
those and we say within article 4. We referred your Honours to Richardson
and I make particular reference to Richardson. I know my friend is without
an instructor and solicitor, I'm happy to - - -
CARR J: Are you referring to Mr Maxwell's absence, is that correct?
MR ROTHMAN: Yes, your Honour.
CARR J: Well, this isn't the first time. Mr Maxwell, I have noticed, has
taken it upon himself to - obviously for good reason to depart so he has
voluntarily introduced that situation.
MR ROTHMAN: I could understand the concern, your Honour. Your
Honour, particularly the reference in Richardson which of course is found
in 164 CLR, the particular passage at page 312. I don't wish to read it to
your Honours. It is set out in the outline. What we say is Parliament is
entitled to give force to the Convention by enacting provisions which
Parliament reasonably holds or give effect to it. It's not, as I understand it,
suggested that the publication of vilifying material cannot reasonably be
considered as appropriate to the purpose.
The question is even if one is confined to article 4 as my learned friend
suggests the prohibition on the publication of vilifying material is a process
which Parliament could reasonably appropriately, if one likes, come to the
view that it is a proper connection and appropriate for the implementation of
the Convention and therefore within the external affairs power in its present
form and it is therefore unnecessary to constrain the reading of the ordinary
words in 18C and 18B as they interact and it is unnecessary to depart from
the view expressed by her Honour below and expressed by a number of
other Judges of this Court in a manner which was most appropriate.
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Your Honours, other than the outlines that we have filed I have tried to
truncate the submissions as best I can.
KEIFEL J: Yes, thank you, Mr Rothman. Mr Bennett?
MR BENNETT: If your Honours please. Your Honours, like my learned
friends may I formally adopt everything in my submissions without going
through them. I propose to deal first with the construction and then with
deal with .....
Your Honours, we would submit that there is no ambiguity and that the
structure of part 2A is quite clear. It has three positive requirements and
their negative requirements. The positive requirements are that it be
otherwise than in private. That it be reasonably likely to offend, insult,
humiliate or intimidate a person or group. Those two are uncontroversial in
this case. And thirdly, it is done because of the race, colour, or national or
ethnic origin etcetera. And the fourth requirement, of course, is the
negative one in 18D and I will come to that in a moment.
In relation to 18C(1)(b) with which this case is concerned we can first
ignore the last dozen or so words. The words "of the other person" or "of
some order of people in the group" are merely descriptive. The
requirement is, we would submit, that it is done because of race, colour, or
national or ethnic origin. Namely, the particular race, colour, or national
or ethnic origin of the person who is offended and suffers humiliation,
etcetera. But that is the sole purpose of those words, and that explains the
slightly awkward draughtsmanship. If a person says something which is
offensive to a group the person would not normally be saying it because the
group have that ethnicity but rather because of that ethnicity for one reason
or another. So, it is important to realise that those words are merely
descriptive.
There have been some examples given which are useful in explaining how
(1)(b) operates. One of the cleverest is one Allsop J gave this morning.
The one about the Belgian Congo. If one saw an article highly critical of
the behaviour of Belgians in the Belgian Congo, and that article was in a
book of which one chapter was critical of the British in South Africa, one
was critical of the French in Central Africa and one of the Germans in some
other part of Africa, one would say it is not a book about Belgians it is a
book about colonialism and its excesses. If, on the other hand, it was in a
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book where each chapter was about some other presumed misconduct by
Belgians one would say it fell fairly squarely within (b) and would fall
within the Act unless saved by 18D. That is the structure.
One could have an example of a case where a statement which might
offend, insult, etcetera, was made although there was no intention having
any relation to this. Let me give a slightly bizarre example. Most
examples are bizarre in this area, especially if one tries to be politically
correct in giving them.
Let us suppose that Ruritanians are noted for having very large ears, and
are frequently teased and are the subject of mockery because of their large
ears. Now, a person who makes a lot of public statements about how
unpleasant and unattractive it is to have large ears might well fall within (a).
In order to see whether it fell within (b) one would have to ask, was the
person making the statement because he intended to make a statement about
Ruritanians? Or, was he making the statement because, for example, he
was a spruiker for a plastic surgeon who did ear operations and wanted to
embarrass people with big ears so his employer would get more business?
Now, if the second was the case it would not fall within (b).
That, as I say, is a whimsical example. But it is an example which
illustrates that the factor which may be the relevant factor might have
nothing to do with race. It might have something to do with a number of
races, as in the first Belgian Congo example. But it must be the race,
colour, or national or ethnic origin of the group that is insulted, humiliated,
etcetera. So, it is only that group with which we are concerned here.
And one can multiply examples in this area. The Cairns Post case is, in a
sense, example. It is interesting because one comment your Honour made
in this case which in my respectful submission explains the distinction rather
neatly. It is Creek v Cairns Post 112 FCR 352. The statement is in
paragraph 29. And of course the suggested sting there, which had it been
present might have resulted in a different finding, was the sting that the
child was being moved to premises of a different nature and so on because
of the aboriginality of the plaintiff. But your Honour said this:
There was nothing in the article which provides an insight of this
question as to whether it is motivated by ...(reads)... of race as a
cause may well have been satisfied.
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In other words, the result would have been different if there had been a
different attempt to portray the humpy as the home of the applicant. Now,
it is the finding of fact there which led to the result. Again, if the article is
not about race in that sense it is not within the section.
It is said by my learned friend that there were clues to the construction of
the section which lead the opposite way. One is the heading to the part,
Prohibition of Offensive Behaviour Based on Racial Hatred. Now the
heading, of course, was put there when there was a prohibition. When
there was a criminal version. But the heading is only relevant if the section
is ambiguous. And in a very broad sense most cases that fall within the
section will be cases of racial hatred. But the heading is not a universal. If
headings were universal there would be no need for text. The heading is
merely a general indication of subject matter. And as such when one adds
18D it is a fairly accurate representation of subject matter. It isn't a precise
representation of the effect of 18C(1)(b), because that paragraph is not the
paragraph which introduces the elements of opprobrium and so on. It is the
combination. The fact that it is done in public, the fact that is likely in the
circumstances to offend, insult, humiliate or intimidate. And the fact that it
is done because of race, colour, etcetera. And that is not done reasonably
and in good faith for any of the legitimate purposes in 18D. If one has
those four elements the heading ceases to be so inaccurate. And it is much
harder for my learned friend to think of examples.
My learned friend gave four examples. There were English football
hooligans. The reference to the behaviour of the British Government in the
18th century in the March of Folly. The Belgians in the Congo which
Allsop J picked up on. And the example of Poles killing Jews. Can I just
deal with those separately.
The example in the March of Folly is a very good example of something
which would not fail the test of paragraph (b). The book, I don't think
your Honours have read it, but it is a book which contains as my learned
friend says a number of chapters dealing with a series of events which are
said to be examples of human folly.
The first one is the Trojans taking the wooden horse into Troy and it's
probably fictional, anyhow and then the American revolution is one, the
Vietnam War is one and there are a number of them. But the point of the
book is it is a book about human folly taking a number of things, it is not a
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book about the British in the eighteenth century and even to the extent it is,
it is about the folly of particular decision makers in government. It's also
hard to imagine it offending (a), it's very hard to imagine even the most
nationalistic group being offended, insulted and humiliated or intimidated by
a critical description of the behaviour of the British Government in the
eighteenth century, I suppose it's just possible that certainly once one adds
the word, reasonably, it's very hard to imagine. So, one can reject that
example.
The example of Belgians in the Congo has been dealt with. The example of
Poles killing Jews again, might depend on the purpose and context of the
article, is it an article about Poles, generally critical of everything Poles do,
in which case it might be on one side of the line? Is it about murders
generally? Is it about events in Europe at a particular time? Is it about
Jews being murdered more than Poles murdering them? We have to look at
the overall context and one would look for clues in the article itself to see
what the author was talking about but not what the author's intention was,
whether the author was motivated by hatred or anything else, that element is
not required.
The first example, English football hooligans is really an example which
would probably have to be saved by saved by section 18D, there may be a
question of how reasonable it is to be offended and/or subsequently
humiliated by English football hooligans. One could take a robust view and
say, well, we wouldn't reasonably be offended by that description but
maybe some people would be. But if it was in an article where it was
completely unnecessary to refer to the national origin with the whole
emphasis on the article was on their national origin, ignoring other football
hooligans, fall foul of (b).
But we could probably be saved by 18D, as any other genuine purpose in
the public interest or 18D(c), when the fair and accurate report of an event
or a fair comment, etcetera. Obviously in this area it's always been
recognised that there are questions of degree and there are, of course,
sensitive areas where one has to be more careful and less careful and there
are difficulties. But in my respectful submission, none of those examples
are examples which suggest that paragraph (b) has to be the way my friend
seeks to give it.
There is another example I could give, a slightly less politically correct
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example but an example in the context of the Holocaust to show that event
here 18C(1)(d) may have a role. Suppose one had an eccentric philosopher
who said, nothing that I have not seen with my own eyes exist; the Roman
Empire didn't exist, Queen Victoria didn't exist, the Second World War
didn't exists, China doesn't exists, nothing exists that I haven't seen with
my own eyes and the person puts forward this eccentric philosophy in a
book.
If in the course of it he says the Holocaust didn't exist, that would be a
classic example, perhaps one of the few examples of a holocaust denial that
did not fall within paragraph (b), so one could have examples of that. But
that is just not this case and it's not this case for the reasons which could be
- - -
ALLSOP J: When you say the motif of the Act or the author is irrelevant,
you are still looking for why the act was done aren't you because of is a
why question and to that issue, the evidence of the act of him or herself
might be germane.
MR BENNETT: Yes and that's illustrated though perhaps an intermediate
example, if one goes back to my Rulitanians with big ears, if the person
specifically uses loud speakers which denigrate people having big ears
outside some Rulitanian community centre and says, I was doing it because
they were Rulitanians but that's because I've got my maximum audience for
people who need ear operations that way, then well, we have the borderline
case where it's because of race in one sense or national origin or ethnic
origin but in another sense, in a deeper sense for a more underlying reason.
A person who was obsessed with the fact or with the belief that too large
part of the budget was being spent on Aboriginal education and who made
racist comments about Aborigines in that context and said, I'm just trying to
save the government and argue there should be less money spent. A person
who concentrated solely on that issue would probably fall foul of (b) unless
it would bring himself or herself with 18D. But a person who was critical
of a whole range of Social Service spending, of which that was merely one
would not be caught.
It's been said in New York that a person who advocates the spending of
public money on the building of highways rather than on more public
transport is being racist, now that would not fall within (b) if that is racist;
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(b) of conservative of the fact that one is making the statement because of
race and one has to ask that. Now, it may be that one is making the
statement because of race for another reason, like the spruiker for the
plastic surgeon on the - well, he's making it in the third example I just gave
about that, one where he does it outside the Rulitanian community centre in
order to bring it to their attention.
There he may well be making the statement because of race, so he may be
caught. But that's why one has to distinguish why one says it at various
levels. It's a bit like the old question about, is the reason I open my car
door to get into my car or is the reason to go work, they are not
inconsistent reasons. One can have one reason as part of a larger reason
but most of the work done in that area is done by section 18B which says
when there's more than one motive or more than one reason, all those
things follow.
But what it doesn't need to be under 18C(1)(b) is a guilty reason or an evil
reason. One can be referring to a race for other reasons and indeed, that's
picked up by 18D because why would one need 18D if 18B, sorry, if
18C(1)(b) itself contained within it some requirement of mens rea, if one
likes or prejudice intent. If one had that one just wouldn't need 18D, in
fact 18D would almost be an abomination because it would be permitting a
form of speech one wouldn't wish to be made. That's a very good example
of why 18C(1)(b) should be read widely.
Now, the second matter I want to make some submissions on is the
Constitutionality and I can deal with that very briefly. It would be quite
wrong, we would submit, to suggest these provisions are justified only by
paragraph (a) of Article 4. What they are justified by is by a number of
matters in this Convention, my learned friend has referred to some of them,
they include Article 7 which provides that:
State parties undertake to adopt immediate and effective measures
(reads)... which lead to racial discrimination.
We express those rights. Again, in the opening words of Article 4:
States parties ...(reads)... all incitement to acts of such
discrimination.
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Again with article 2 it states:
Parties will condemn racial discrimination ...(reads)... in all its
forms.
The important thing about these provisions is they are an instruction to the
secretaries to a treaty to adopt measures designed to prevent racial
discrimination, racial hatred, various other forms of unacceptable conduct.
One could do it in a number of ways; one could do it by ways having
nothing to do with speech. One could do it, for example, as is done in
America, by busing white children to black schools so as to have a racial
mix in the schools. One could do it, for example, by requiring classes in
certain forms of civics and equality being given to children at a certain level
in schools. One could do it by banning ethnic jokes. One could do it in a
number of ways. There's no supervening obligation of freedom of speech
or anything else here. That is clear because article 4 specifically says:
With due regard to the principles embodying the universal
declaration of human rights -
It goes on to require:
The declaration and an offence punishable by law ...(reads)... of
certain types -
and so on. So it's clearly setting up a different regime. It is also important
to note that the words:
With due regard to the principles embodying the universal
declaration of human rights -
don't appear in the other articles. It is authorising a very wide range of
activity by states. Now, when one look at the authorities, we have set
them out in our submissions, and there are three which are the major ones;
Victoria v Commonwealth, Commonwealth v Tasmania, Richardson v
Forestry Commission. Each of these just has one very short passage I want
to just remind your Honours of. Your Honours are probably familiar with
these passages. In Commonwealth v Tasmania which is reported at 58 CLR
1 at 232 in the judgment of Brennan J as he then was:
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The scope of the legislative power ...(reads)... undertaken to do.
So the question one has to ask is, does having a broad power of the type
which is contained in these sections including 18C(1)(b), does that provide a
way of doing or can it fairly be regarded as providing a way of doing what
we have undertaken to do, namely to eradicate racial discrimination,
etcetera. Now, it's hard to see why it can't. If what it does is say,
regardless of the person's intent, if the person says something which is
offensive to people of a particular race and does so because of that race,
does so in public and doesn't have any of the defences, that person is not
even guilty of an offence but is guilty of conduct which can be dealt with in
certain ways. Can that fairly be regarded as a step towards the high ideals
of the Convention and in my respectful submission it clearly can.
ALLSOP J: It might also be said if it's found in an act which deals with
conciliation, etcetera, about the conduct and if that can't be done then
orders can be made.
MR BENNETT: Yes. It is, we would submit, a completely false and
excessively limited characterisation to take the words of paragraph A of
article 4 of the Treaty alone and then to look at paragraph (b) of section
18C(1) alone and say, well, just a moment, there might be no racial hatred
here so we're outside the Treaty, which is basically the approach my
learned friend takes. In our respectful submission that is just not the correct
approach to dealing with a Treaty of this nature. There's another passage,
from Bannerman's case, at page 261, a judgment of Deane J where his
Honour says:
International agreements ...(reads)... English law.
This is at about point 6 on the page:
The reasons for this is simply ...(reads)... international obligation -
etcetera. There is also a passage in Victoria v Commonwealth, an industrial
relations case, (1996) 87 CLR 416 at 487 where the statement of Deane J is
cited with approval. Then at the bottom of the page:
Where the legislative power is ...(reads)... to that end.
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There are similar passages also in the Leamontad forest case, Richardson v
Forestry Commission, 164 CLR 261 at page 312. The importance of that
passage, which I won't take your Honours to, is it again uses the word
"capable" in being reasonably considered to be appropriate and adapted
citing Starke J in Winters case. So the question is, is this capable of being
reasonably appropriate and adapted to implementing an obligation to
undertake and adopt immediate and positive measures designed to eradicate
incitement, discrimination and so on.
The answer, of course, can only be one thing, clearly to prohibit statements
made for the reason of race which are likely to offend or which are
reasonably likely to offend is something which is a first step perhaps to
eliminating racial discrimination, racial hatred and so on in the same way as
busing children may be, in the same way as lecturing children in schools
about the importance of races being treated as equal. All those things are
things which can be done under the Treaty rules. They are reasonably
capable of being seen as directed to that end.
This is, we would submit, therefore not a case where the mere absence of
the element of racial hatred where the element of intense ..... makes any
difference. That element is not a requirement, one can start with something
less and move up. Of course one doesn't need ..... in precise terms. For
those reasons we would submit that the provisions even with the broad
construction which we give them are that. May it please the court.
CARR J: Thank you, Mr Bennett. Mr Rothman, do you want to add
anything before I turn to Mr Maxwell?
MR ROTHMAN: No, your Honour, when I did say earlier that my
learned friend's solicitor and I differed on the construction, I think I
misunderstood my learned friend's submission in relation to motive and
reason, and I thought that was where we differed, but as explained to the
court, I don't think there is a difference in the construction that we put on
the Act.
CARR J: Thank you, Mr Rothman. Mr Maxwell?
MR MAXWELL: Your Honour's I would like to deal with a couple of
matters raised in the course of argument before coming back to some of the
substantive issues. Your Honour, Allsop J, has asked a couple of times
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about the significance of this being a judgment in default and what
implications that has on this appeal. My learned friend didn't do more than
adopt what I understood your Honour to be saying, which might be that my
client's default would mean that the judgment should stand regardless of
whether her Honour had erred on law.
In our respectful submission, that couldn't be right, where her Honour
elected to embark on a judgment on the merits. That might not have been
necessary in a provisions dealing with default. Indeed the rules don't
require it and a couple of the cases cited, make it clear that the condition
which has to be satisfied is that the default has occurred, and as it plainly
had. But her Honour quite explicitly said, I think this is an appropriate case
for such an order if the applicant has evidence before me to make out the
elements of his case.
One could only speculate as to why her Honour did do that. One obvious
reason, in my submission, is that a judgment in default can be set aside if
there is a defence on the merits. If you've got the matter before you then
there is good sense, it would be said respectfully, in addressing the merits.
But in any event, her Honour did do that and it is not enough now to say,
well that is as it were obiter of unnecessary to do. Her Honour found my
client to have engaged in an unlawful act and made a declaration to that
effect, about that act constituted by that publication.
In our respectful submission, accordingly my client has the right as we
pointed out in our supplementary submission to appeal that judgment. He
might have gone under 35 rule 7, but he wasn't required to. The
foundational principle is that you can't set aside a judgment, once it's been
entered and you have to appeal it, which is what we are doing, and the fact
that we didn't go under 35 rule 7, is neither here nor there, in my respectful
submission.
It's also of considerable significance that the respondent has conceded that
this is only about one act of publication. In other words the point I made at
the beginning this morning, has been conceded for the purposes of this
proceeding. My learned friend suggested it might have been for an
abundance of caution, but it was plain as he recognised, having an
opportunity to reflect on it, that her Honour had confined herself to that
article, and with respect, we would have adopted what your Honours Carr
and Kiefel JJ were saying about the need for a notice of contention and
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indeed we have made that submission and it is conceded that should have
been given.
As your Honour the presiding judge pointed out, paragraph 99 of the
reasons is where her Honour gives her reasons for saying race was a
reason, and they are drawn from the article. What is important about that
with respect to your Honour Allsop J, is that it's not enough to say, her
Honour said paragraph 99, and then read the 1(b) conclusion. Paragraph 99
is the content on that conclusion in my respectful submission. Her Honour
says - "It's clearly the case that race was a factor", and then gives the three
matters I have referred to. The conclusion then is, 1(b) is satisfied.
I am satisfied because of those matters.
Because of those matters, because race was a factor in those three respect, I
am satisfied that this was done because of the racial origin of those in the
group. That is her Honour's exegesis of the section. It's not thinking along
the way, that is the test which has been enunciated by her Honour for this
section.
My learned friend wanted to suggest, I think, that what is really being said,
where you say race is a factor, it really means any reason which is a factor
or else the factor is the same as reason. With respect, that is not so. They
are just different concepts. The statute says, reason for the act - it's not
with respect open to say I will substitute a different test for that test.
CARR J: What's the difference between a reason and a factor?
MR MAXWELL: With respect I would only be repeating what I said to
your Honour before, in that, is something a relevant factor, means it's
something that I took into account in coming to my decision. I had regard
to the fact that the application for a minim license was in relation to ground
which had previously been explored. That was a relevant factor, but that
wasn't my reason for making the decision.
KIEFEL J: You mean it's neutral as to whether or not it's influential?
MR MAXWELL: Exactly so. It may have had a part in the consideration
and with respect that is where the notion of the agenda for consideration and
administrative law has work to do. There are matters to be taken into
account, but if I am explaining my reasons for doing something, I won't
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necessarily list all or any of the things that I took into account. The reason
I sacked you was because I wanted to get rid of you. The factors I took
into account were your misbehaviour, your lack of punctuality and your
rudeness. But they weren't my reasons - perhaps in that example, invented
on, they might be rather close to being my reasons, and we get into
ultimate purpose and so forth. But there is, in our respectful submission, a
conceptual distinction and there is no warrant for supplanting the words of
the statute with some other words.
Your Honours, I want to deal with the chain of articles example which your
Honour Allsop J advanced. As I understood it and with respect I adopt it,
the function of your Honour's point was to say, well a single article
mightn't tell you much about the reasons for its publication. A series of
articles might give you something which you won't get from the individual
article. With respect that is in my submission, altogether logical, but I
don't say that you don't look at each article on its own. My whole point is,
we have to look at this article on its own and there is no chain of articles
from which one might divine a reason for publishing, which is not apparent
on the face of the document.
ALLSOP J: If you are correct about paragraph 99 and properly understood
her Honour looked at something short of a reason, but properly understood
as a factor, what should happen. If it be the case that the court is of a view
that the article when looked at does disclose a reason and it's a reason in
1(b).
MR MAXWELL: Then your Honours would dismiss the appeal. I am not
for a minute suggesting the court isn't in as good a position to make the
judgment and your Honour's might say, yes, that terminology is too broad,
but even properly construed the answer was correct and the appeal would
fail.
ALLSOP J: Thank you.
MR MAXWELL: I do want to make this point and I will come back to it.
In your Honour's example of 10 articles about various acts of misjudgment
or venality by Belgiums, I might have the view the Belgiums are a moral
recidivist, that they always misbehave and have done down the centuries.
The question though: is that the kind of expression of view which this
legislation would ever have been thought to be concerned with.
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That's maybe the very point I want to make. You look at the 19th century
and the 18th century and the Belgian Congo and there are just three
examples. That might be my thesis, and I'm not an academic, I'm not in
the respectable 18D category, I'm a bit of a fringe player, but I do have
that view. That's not racial hatred. That's a view which I want to
propound and defend, for which I say there's evidence. The converse is to
say I attack a conventionally held view because I think there isn't evidence.
Your Honours, I'm sorry this is a little bit discontinuous. The heading
point, I only touched on it in opening but my learned friend the solicitor has
come back to it. It's not right to say categorically, "You only look at the
heading if it's ambiguous". The solicitor relies on Mansfield J in APRA v
Holloway, and he doesn't say that. I looked at it overnight and I refer your
Honours to this passage at 537 paragraph 48:
A provision which is unambiguous will not necessarily be read down
by a heading.
That's a very different proposition from, "will never be read down by a
heading". It's to say: well it might well be but it won't necessarily be. In
other words that statement helps me rather than him by saying: it can
certainly be read down by reference to the heading when it's unambiguous,
but it won't necessarily be. That's at 537 in APRA v Holloway, reported in
104 FCR 521. That's at 537 paragraph 48.
Secondly, Professor Pierce makes very clear in his book, which your
Honours will have access to at page 223, that the case relied on to say, "not
if it's unambiguous", Hornsby, was superseded by the case we rely on,
Concrete Constructions, and it's in our list of authorities, where the High
Court held that the heading, Consumer Protection, to section 52 Part 5,
could be used to limit the ambit of that unambiguous provision. In any
event we adopt our learned friend, the solicitor's statement that the heading
is pretty accurate anyway.
If I might take your Honours to some Constitutional points raised by our
learned friend's written submission; that's our learned friend for the
respondent. I'll just take your Honours quickly to some points which seem
rather to support my argument than the reverse. If I might refer you to
paragraphs 18 and 19, the respondent seems to rely, as I did, on what the
attorney said about hatred and intense dislike or enmity, and likewise makes
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a statement in 19 which I would happily rely on. Paragraph 19:
It was intended that Courts have regard to all relevant circumstances
in determining whether objectively a particular act was reasonably
likely in all the circumstances to incite racial hatred.
That's exactly the kind of touchstone we say the provision has, though the
words aren't there. If I might go to paragraph 21 again, our learned friend
picks up language which I would be happy with, that this was about, the
third line of 21:
rectifying an inadequacy in relation to racial hostility and racial
violence.
Paragraph 23, and this is from Michael Banton's book which is in the
volume, and this your Honours will see reflects the submission I made
about what the core concepts are in Article 4. That book says that Article
4A:
requires States' parties to penalise four categories of misconduct.
I won't read them. Your Honours will see they correspond exactly with
what I said were the four core concepts of Article 4. Your Honours will
see, looking at those four subparagraphs again, this provision bears no
resemblance whatever to those concepts. That's putting it too strongly:
bears only the most remote resemblance to provisions which would be
defined by those core ideas; unless, and this is what the solicitor said really
merges into my argument, unless the words "because of" are given the kind
of meaning for which I contend. I'll come back to that in a moment.
They helpfully point out in paragraph 35 something I didn't mention from
the explanatory memorandum that, quote:
Race must be of real importance as a reason for the doing of a
prohibited act.
Well, that accords with what the Full Court said in Hagan, but it again
gives a bit more bit to: it's not just that it's a factor, but it's got to be of
real importance as the reason, so the second reading speech says.
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ALLSOP J: It's got to be the reason, a reason, so in a sense without
substituting other words, it's got to be operating - - -
MR MAXWELL: Exactly so, your Honour, and it's clear that it doesn't
have to be more than that from 18B. Then our learned friends refer to the
reasonable proportionality test in paragraphs 46 and following. I simply to
the Court's attention that doubt is cast in the most recent case, Victoria v
Commonwealth, on the utility of the reasonable proportionality test at the
page the solicitor was referring to, 487, and the top of 488 the majority
said:
The notion of reasonable proportionality will not always be
particularly helpful.
And they go on to say that to ask that question is really just simply to
restate the basic question and to come back and say, "That's not a different
test from: reasonably capable of being considered appropriate and adapted".
ALLSOP J: But the importance is that we don't undertake an exercise
whether it is reasonably appropriate or adapted.
MR MAXWELL: That's so.
ALLSOP J: That's almost non-judiciable. That's for Parliament; that is:
what is reasonably capable - - -
MR MAXWELL: That's so, yes: "Was it open, reasonably, for it to be so
regarded". Yes, your Honour. Now, our learned friend relies on Article 2
of the convention, and in particular on (e). Of course under 1D the core of
the Racial Discrimination Act itself was enacted; that is to make unlawful
racial discrimination. That's what the body of the Act is about. (E): it is
said that the last phrase:
and to discourage anything which tends to strength racial division.
is a basis for this legislation. Well, that's illuminating because that's the
kind of concept that I'm focusing on: something which has a tendency to
create racial division. So that's gives no broader basis for this legislation
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than Article 4 does, except that it's slightly different language.
ALLSOP J: Racial division is slightly different to racial hatred.
MR MAXWELL: I accept that, your Honour. It's softer. But the
problem is, as I've said repeatedly, 18C simply doesn't wrestle with any
such concepts of effect. Article 7, the solicitor refers to the statement
about, "combating prejudices which lead to racial discrimination". I made
the point earlier that self-evidently that is an article about education,
culture, information and teaching. It's not meant to, by a side wind, deal
with things which are expressly dealt with elsewhere in the Convention, and
that's not supposed to be a cute point of construction; it's just saying, "Let's
have a sensible look at what these articles are about, and Article 7 is not
about banning hate speech". It's about education promoting a healthy
attitude towards members of other races and, in any event, "lead to racial
discrimination" has a connection with what I'm arguing based on Article 4,
that is the tendency to incite or promote, which are the concepts in Article
4.
So in our respectful submission the attempt by the respondent and the
intervenor to say no this is all about racial discrimination you can basically
do anything you like as long as it's got something to do with race which is
essentially the submission. As long as we're saying that if there is a link
with race then it's caught by the Convention. In my respectful submission,
that's not nearly sufficient for the rigour of the test about reasonably
capable.
Even if those were the tests, is it directed at conduct which might lead to
racial division or racial discrimination could only be read as giving effect to
those obligations if its read in the way we contend otherwise for the reasons
argued it will prohibit conduct which has no tendency whatsoever to
promote or incite or create racial discrimination or division or hatred.
That's our essential point that if operating in its terms as it does, it will
catch conduct and the Ruritanian example is perfect.
The speaker is speaking because they're Ruritanians. It is not an act of
racial hatred, it is not going to incite racial discrimination.
ALLSOP J: Well it might.
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MR MAXWELL: His reason for acting your Honour, in my respectful
submission is a financial one as the solicitor defined the example. That's
just the point.
ALLSOP J: But if is, as the solicitor said, if he stands outside the
Ruritanian Social Club on a Friday evening where all the Ruritanians gather
in a particular suburb of a state capital city and says this, it might well
promote not only the feelings of hurt and anguish amongst the Ruritanians
but for others who hear it might well provide the same sort of conduct.
That is jokes about the Ruritanians' ears.
MR MAXWELL: Well your Honour, with respect, that makes my point.
If it has that tendency, that will provide a limit to the section which is not
there at the moment and without which the section goes too far. That's why
the language in the Victorian statute ought to be there so not only does it
offend them but it will incite them to be offensive to the group. Our
submission is, this court should say as a matter of constitutionality, unless it
is read subject to that restriction, the reason for the conduct is to bring that
about, to use my earlier rather strong language, we say the test is in
substance this: I am writing because I hate them.
It is in that sense that race is a reason, I'm writing because I hate them and
because I want you my listeners or readers to hate them too. That's the
kind of speech which intended to be caught. That's the kind of speech
which is faithful to the convention and which would prevent something like
the Ruritanian example from being caught because that's not the reason for
the person saying it at all. He wants to drum up some business. He has no
racist view of Ruritanians at all. He doesn't hate them, he hasn't got any
concern about drumming up any discrimination against them, he just wants
people coming through the door of the practice.
To come back to your Honour's example of writing an article about germs
rather than about communal responsibility, in my respectful submission, that
should be no more caught than where the topic is communal responsibility
rather than the Germans in 1940 nor in my example of the Belgians, I am
writing about the Belgians, I want to make a point about them, I have a
message to convey about them as Belgians. Is that what this legislation is
designed to prohibit? In my respectful submission, clearly not.
Our learned friend says a reference to the Jewish holocaust, is somehow the
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key in this article which makes it clear that this is written by reference to
their ethnic origin but in my respectful submission, the holocaust is
regarded in every day and academic parlance as a Jewish tragedy. Yes,
there were other subgroups, minorities who were massacred but the
historical focus, the international concern has been about the massacre of
millions of Jews. So to talk about the Jewish holocaust is not to convert an
article about the holocaust into an article about Jews, that in a sense is
tautologist in my respectful submission.
Holocaust museums are established for understandable reasons by Jewish
organisations across the world. They are about Jews who died in the
holocaust but it is - - -
MR ROTHMAN: Well that's not right, there is no evidence of that and
it's just not right.
MR MAXWELL: Well I know one in Melbourne, and there's one in New
York and there's one in Berlin.
MR ROTHMAN: They deal with more than Jews.
MR MAXWELL: I realise it is beyond the limits of my limited knowledge
but I do make the submission that your Honours would take judicial notice
of the fact that it is a term that is associated with the murder of Jews. As
my learned friend said, well once you start saying Jewish holocaust then
this shows that you're reason is race in my respectful submission, is not
sustainable. Your Honours, I want to say finally something about the
imputations, if I might take the court for this purpose back to paragraph 81
of the judgement or what seems to be the judgment, it is not 81 but 88.
It is important to point out in relation to imputations C and D that the
passages from which those imputations are alleged to arise do not mention
Jewish people. I might in relation to C take your Honours back to the
sentence that's in the middle of the quoted article. Dr Toben says:
If you dare to seek the truth, you will be smeared, libelled and
defamed by those who are intellectual midgets but materialistic
giants.
Then in relation to the passage from which the imputation about improper
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purposes is to be drawn, again:
Unless it offends those who have their snout in the trough.
I only make the point that it will be said well it's clear what he's referring
to, we would debate whether it's clear or not but the fact that in neither of
those instances does he say, you will be smeared and libelled by Jews who
are intellectual midgets or unless it offends Jews who have their snout in the
trough, it is quite significant to the overall character of the article in my
respectful submission.
CARR J: I thought you accepted imputation C?
MR MAXWELL: I did, your Honour.
CARR J: A, B and C?
MR MAXWELL: I want to qualify my acceptance of it in that respect
because the language does not specify that it is Jewish people who are
offended by rather those who are offended will respond. Now my learned
friend for the respondent, for some reason best known to himself took your
Honours to some of the imputations in the Scully case in relation to an issue
which doesn't arise here about whether it was likely to offend. What is
critically important in my respectful submission, that the implied invitation
to regard this as belonging to some kind of class of publication must be
resisted and that irrelevant references as that was to a quite different
statement by another person on another occasion should be ignored.
It is critically important that Dr Toben's expression of his views is quite
different from that of Ms Scully. If Dr Toben had said "All Jews are
fraudulent liars immoral" as this was said in Scully, this would be a
different case. As I say, I don't understand why that language was referred
to in support of argument in this case. This article says no such thing.
My learned friend Mr Rothman says that this article says "Jews are
perpetrating the myth", or "perpetuating the myth". It doesn't say that and
I answered your Honour's question about exaggeration, it doesn't say that.
Some people might argue that Jews perpetuate a myth, but this article
doesn't say it. This article doesn't, as he put it "blame the victim". It is
very important, in our respectful submission, and the difficulty for the court
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and anyone dealing with these issues is that they are sensitive and they are
the subject of a lot of writings of various colours. Some of which would
fall within the race hate box that I say applies to this, and some of which
wouldn't.
Yes, there are questions of degree, as the learned Solicitor said.
KIEFEL J: Mr Maxwell, do you think you could perhaps go back over
what you have already submitted?
MR MAXWELL: Your Honour, I was specifically dealing with things
that are said about this article by the respondent and saying that none of
those characterisations of the article is open, and what I am about to say,
your Honour, is my last remark which is that where, as here, it is sought to
have declared unlawful someone's conduct, your Honours, or a court
applying this legislation and having regard to the Convention framework
within the provisions fall to be interpreted, should not find that conduct is
unlawful unless there is a clear case, that is to say, inferential argument in
anything other than the clearest case is an unsafe basis for reaching the
strong conclusion which subparagraph (b) requires.
As I submitted this morning, unless it is unmistakably the case, this is
published because of race in the relevant sense because the writer wants to
say something about that race which will have the tendency to incite racial
hatred, then the conclusion should be reached that it doesn't breach the
provision. If the court pleases.
ALLSOP J: Mr Maxwell, just before you sit down - I take it from your
silence but I just want there to be no doubt about it in relation to dealing
with 18D in good faith, you do not cavil with Mr Rothman's proposition
that we can properly look to the other material before your Honour to
ascertain that matter?
MR MAXWELL: No, I thought about that, your Honour, it is just another
way of getting another material in via the back door, which is unfortunate.
With respect, I have spent a fair amount of time making the point that this
is just about a certain set of material - - -
ALLSOP J: That is why I have asked you the question.
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MR MAXWELL: Yes, your Honour, I am indebted to your Honour for it
and your Honour drew the right inference from my silence that I would
accept that if I am asking the court to look afresh, as I am, at the question
of 18D, then your Honours could look at the material for that purpose, but
in my respectful submission the weight to be attached to any other material
on a different occasion is extremely limited, and I did mean to say this. It
may be my learned friend referred to what was said by Dr Toben about Mr
Jones. Well, it may be that Dr Toben is an unpleasant person who says
nasty things and it may be that he dislikes Jewish people, I don't know, but
one is in danger of going down the road of propensity - that is to say, well,
he did that on other occasions, so I am inclined to think that he is somebody
who, on this occasion, wasn't in good faith.
I merely make the point, it is primarily to be judged on the character of this
publication and this occasion because to show not in good faith would really
have to be in the defamation sense and misuse of the occasion deliberately,
and difficult to see how an inference of that kind could be drawn by looking
at something else published on another occasion in relation to something
else. So I respectfully submit that your Honours don't need to and should
not look at the other material, but it can't be said a priori that what is in
other material would be, as it were, by definition, irrelevant to the good
faith question, if the court pleases.
MR BENNETT: Might I have leave to hand that to your Honours, a copy
of the treaty in discussing the government of Australia's reservation which
was announced after this legislation. It is a reservation which says, in
effect, sorry, we couldn't get it through as a criminal - - -
CARR J: Please pass it up.
MR BENNETT: It is before the legislation, it is '75, but it is in that
context.
MR MAXWELL: Your Honour, might I, at the very last minute,
withdraw a concession I have just made. Would your Honour have a look
at 18D. It is really, I think, the logical conclusion of the qualifications I
was endeavouring to put on the concession.
CARR J: You submitted towards the end that we weren't to have a look at
it, are you going a bit further now?
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MR MAXWELL: I am going further. I am wanting to say that it would
be inadmissible as evidence on the 18D question on this basis that the
question for the court under 18D is whether what was said was said
reasonably and in good faith in the course of any statement, discussion,
etcetera, held for any genuine purpose, and that is the one we have relied
on, and in our respectful submission, that is to be decided by the material
relevant to deciding the 18C question and that your Honours should not,
cannot as a matter of law, look at the other material that 18D focuses
attention on the character of that occasion to be judged by what was done
on that occasion, where it was published, how it was published and so on,
not by reference to things said on other occasions in other places. If the
court pleases.
CARR J: The court is indebted to counsel and those instructing them and
thanks them for their assistance in this matter. The court will reserve its
decision. The court is adjourned.
ADJOURNED INDEFINITELY [4.27pm]
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