FEDERAL COURT OF AUSTRALIA Toben v Jones [2003] FCAFC 137 HUMAN RIGHTS AND DISCRIMINATION LAW – RACIAL DISCRIMINATION – appeal from declaratory orders made to enforce determination of Human Rights and Equal Opportunity Commission that material published by the respondent racially vilified Jewish people – whether the primary judge erred in concluding that the material was reasonably likely to offend, insult, humiliate or intimidate Jews in Australia and that whether the publication was done 'because of' the race or ethnic origin of a group of people – the meaning of 'because of' – whether publication done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest. CONSTITUTIONAL LAW – Racial Discrimination Act 1975 (Cth) Part 2A whether constitutionally valid – external affairs power, s51(xxix) of the Constitution – implementation of the International Convention on the Elimination of all Forms of Racial Discrimination – whether the Act is reasonably appropriate and adapted to implementing a treaty to which Australia is a party. WORDS AND PHRASES – 'because of'. Commonwealth Constitution s 51(xxix) Racial Discrimination Act 1975 (Cth), ss 18B, 18C, 18D Acts Interpretation Act 1901 (Cth), s 15A Evidence Act 1995 (Cth), ss 97, 98, 100 Racial Hatred Act 1995 (Cth) Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 referred to Koowarta v Bjelke-Petersen (1981) 153 CLR 168 referred to Victoria v The Commonwealth (1996) 187 CLR 416 applied Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 referred to and discussed Jones v Scully [2002] FCA 1080 referred to and discussed McGlade v Lightfoot [2002] FCA 1457 referred to Vines v Djordjavitch (1955) 91 CLR 512 referred to Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 referred to and discussed Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 referred to and discussed Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 referred to Waters v Public Transport Corporation (1991) 173 CLR 349 referred to Hall v Nominal Defendant (1966) 117 CLR 423 applied Wickstead v Browne (1990) 30 NSWLR 1 applied Dart v Norwich Union Life Australia Ltd [2002] FCA 168 applied Maher v Commonwealth Banking Corporation [2002] FCAFC 104 applied Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 applied Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 applied Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 applied Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 applied Oyston v Blaker [1996] 1 WLR 1326 referred to CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 applied Inglis v Robertson [1898] AC 616 applied Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54 applied The Commonwealth v Tasmania (1983) 158 CLR 1 applied Richardson v Forestry Commission (1988) 164 CLR 261 applied Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 referred to Virginia v Black, U.S Supreme Court, 7 April 2003 referred to Kapoor v Monash University (2001) 4 VR 483 referred to University of Ballarat v Bridges [1995] 2 VR 418 referred to Schwelb "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996 Lerner The U.N. Convention on the Elimination of all Forms of Racial Discrimination (Sijthoff & Noordhoff 1980 2nd Ed) Bennion Statutory Interpretation (3rd Ed) Forbes Similar Fact Evidence ch 10 Heydon Cross on Evidence (6th Ed) pp 601-604 Human Rights and Equal Opportunity Commission: the National Enquiry into Racist Violence 1991 Royal Commission into Aboriginal Deaths in Custody 1991 Australian Law Reform Commission: Multiculturalism and the Law 1992 McNamara Regulating Racism: Racial Vilification Laws in Australia FREDRICK TOBEN v JEREMY JONES N 1049 of 2002 CARR, KIEFEL & ALLSOP JJ 27 JUNE 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1049 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FREDRICK TOBEN APPELLANT AND: JEREMY JONES RESPONDENT JUDGES: CARR, KIEFEL & ALLSOP JJ DATE OF ORDER: 27 JUNE 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1049 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FREDRICK TOBEN APPELLANT AND: JEREMY JONES RESPONDENT JUDGES: CARR, KIEFEL & ALLSOP JJ DATE: 27 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT carr j introduction 1 This appeal raises three questions in relation to the Racial Discrimination Act 1975 (Cth) ("the Act"). The first is whether Part IIA of the Act is constitutionally valid. The second concerns the degree of causal connection, required by the words "because of" in s 18C of the Act, between a particular act alleged to be unlawful, and the race, colour or national or ethnic origin of another person, for there to be a contravention of that section. The third question is whether the relevant act of publication by the appellant was done reasonably and in good faith in the course of a discussion or debate made or held for any "genuine academic purpose" or "genuine purpose in the public interest" within the meaning of those phrases in s 18D(b) of the Act. factual and procedural background 2 On 30 March 2001 the respondent (as applicant at first instance) filed an application in this Court to enforce determinations made by the Human Rights and Equal Opportunity Commission ("the Commission") on 5 October 2000. In summary, the Commission found that the appellant, representing "the Adelaide Institute" had engaged in conduct rendered unlawful by s 18C of the Act by publishing certain material on the internet which the Commission found to be "racially vilificatory of Jewish people". 3 It is not necessary to refer to the fairly extensive procedural history of the matter at first instance, all of which was described in some detail in the reasons for judgment of the learned primary judge when she granted summary judgment in favour of the respondent. In essence, the appellant failed to comply with procedural directions which included a direction for the filing of a defence. The appellant also made it clear that he had no intention of co-operating in the preparation of the case for hearing. He did this by, among other things, remaining silent when asked to respond at the last directions hearing, and by not attending on the first day on which the summary judgment application was heard. In determining the application for summary judgment her Honour read affidavit evidence filed by the respondent. She made several findings of fact and reached conclusions of law, most of which are not in dispute. Her Honour granted summary judgment in the form of a declaration that the appellant had engaged in conduct rendered unlawful by Part IIA of the Act by publishing on the World Wide Web a document headed "About the Adelaide Institute" ("the Document"), the full text of which is set out below. She also granted injunctions requiring the appellant to remove the Document from any web site controlled by him or the Adelaide Institute, and not to publish or re-publish the Document or any other substantially similar material. The appellant was also ordered to pay the respondent's costs of the application. I refer below to some of the detail of her Honour's reasons. 4 The appellant filed a notice of appeal which raised a considerable number of points. But the issues have since been narrowed to the three matters which I have described above. 5 When the appeal came on for hearing last February, it appeared that a constitutional question might be involved. Accordingly the appeal was adjourned so that notices could be given to the Attorneys-General pursuant to s 78B of the Judiciary Act 1903 (Cth). 6 In response to those notices, the Attorney-General of the Commonwealth intervened in the appeal. No other Attorney-General did so. The Solicitor-General of the Commonwealth made submissions as to the validity of Part IIA and certain connected questions of statutory construction. the competence of the appeal 7 The respondent filed a notice of motion challenging the competence of the appeal and seeking an order that it be dismissed. In the alternative, the respondent sought an order that the appellant's grounds of appeal be confined to the existence of a prima facie case for the relief granted and the exercise of the discretion to enter a default of summary judgment under Order 10 rule 7 and Order 11 rule 23 of the Federal Court Rules. The respondent submitted that the judgment at first instance, being a default judgment, was capable of being set aside, was not final and appealable as of right. The appellant submitted that the judgment should properly be regarded as a final judgment because, if it stood, it finally determined the rights of the party. Alternatively, if the judgment were to be regarded as interlocutory, the appellant sought leave to appeal. 8 In my view, it is not necessary for us to decide whether leave to appeal is required. If it is required, I would grant leave to appeal because, in my view, the construction of s 18C(1)(b) of the Act raises a matter of importance which it is appropriate should be determined by a Full Court – see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399. The legislative framework 9 Part IIA was inserted into the Act by the Racial Hatred Act 1995 (Cth). It comprises ss 18B to 18F. The provisions relevant to this appeal are as follows: 'PART IIA—PROHIBITION OF OFFENSIVE BEHAVIOUR BASED ON RACIAL HATRED Reason for doing an act 18B. If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin. Offensive behaviour because of race, colour or national or ethnic origin 18C. (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. (2) For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. (3) In this section: "public place"includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. Exemptions 18D. Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.' the decision at first instance 10 In the respondent's affidavit in support of his application for summary judgment he listed several publications which formed the subject matter of his complaint to the Commission. Her Honour found that the Document was the only material identified in the statement of claim which was the subject of evidence before the Court (in the form of the respondent's affidavit). 11 The Document had an index of contents which included the items "Revision links", "Australia Links" and "Myth Links". The next page was headed "The Continuing Intellectual Adventure of the 21st Century" under which appeared three photographs. Immediately above the photographs was the notation "Dr Fredrick Töben, Director. Visiting Auschwitz-Birkenau, Krema II". Below the three photographs were the following respective descriptions: "Entering the alleged gas chamber", "View of the roof, Töben disappears", "The four alleged gas-induction holes do not exist!" followed by, in bold type, "No holes – no Holocaust!", the statement "I have been looking at these pictures for six months and there are still no holes!" and a comment "Dr Töben is attending the international conference 'Zionism and Revisonism' in Beirut, Lebanon. Conference Cancelled!" 12 The next page contained a small diagram comprising a cross with what appears to be a helmet above it and the words "ALERT! Blue Ribbon Campaign", followed by an invitation to send comment by e-mail, telephone or fax. The main text of the Document (other than a reproduction of the Australian flag and what appears to be a photograph of the appellant and a Mr David Brockschmidt) was as follows [I have added numbers in the margin for the purposes of certain references which I make below]: 1 'About the Adelaide Institute 2 We are a group of individuals who are looking at the Jewish-Nazi Holocaust, in particular we are investigating the allegation that Germans systematically killed six million Jews, four million alone at the Auschwitz concentration camp. In our investigations we refuse to be intimidated by anyone because we believe that the first step in any murder investigation is to forensically test the alleged murder weapon. In the Auschwitz murder case, certain individuals wish to prevent us from focusing upon such an investigation. 3 The latest version of how the Germans gassed millions of Jews at Auschwitz is propagated by Professor Deborah Lipstadt of Emory University in the U.S.A. who claims that mortuaries were converted into homicidal gas chambers. Proof of this is apparently found in so-called "conversion plans". We have requested of Professor Lipstadt and of the Holocaust Museum, Washington, to provide us with copies of such conversion plans. We are still waiting for them to provide us with these plans. 4 In the meantime we have noted the original four million Auschwitz death figure has been reduced by Jean Claude Pressac to a maximum of 800,000. This in itself is good news because it means that around 3.2 million people never died at Auschwitz – a cause for celebration. 5 We are worried about the fact that to date it has been impossible to reconstruct a homicidal gas chamber. Even the Holocaust Museum in Washington informed us that it could not bring one across from Europe because there are none available. This is like a space museum without a rocket or the Vatican without a Crucifix. We are justifiably sceptical about the homicidal gas chamber claims. 6 We reject outright that a questioning of the alleged homicidal gas chamber story constitutes "hate talk", is "anti-Semitic", "racist" or even "neo-Nazi" activity. The director of the Adelaide Institute, Dr Fredrick Töben, puts it thus: "If I offend anybody because I show poor taste in my sometime blunt and honest questioning, then I apologise. However, if I offend because I am politically incorrect by asking uncomfortable questions, then I claim it as my right, under the free speech principle, to say these things." We at the Adelaide Institute also focus on the Jewish-Bolshevik Holocaust, a matter which Australian author Helen Demidenko-Darville has raised in her book The Hand That Signed The Paper. The controversy generated by this novel still continues. Adelaide Institute associate, Mr David Brockschmidt, sums up the essence of Demidenko-Darville's 'crime' in writing this book: "The merit of Helen Demidenko-Darville's novel – and hidden agenda of the anti-Demidenko affair – is that she has revealed a basic historical fact, viz, that Lenin's henchman, Trotzky (Bronstein) and Stalin's henchman, Kaganovich, were Jewish mass murderers. This historical fact clearly shows that Jews are not always victims in history, but also murderers. Australia's mass media has failed to publicise this important fact. Why?" David Brockschmidt displays his parents' medal received from the West German government for saving Jews during World War II. The Brockschmidt family was also honoured by the Israeli Government and a tree in their memory has been planted in the Avenue of the Righteous Gentiles, Jerusalem, Israel. David's father was also instrumental in providing Oskar Schindler with the trucks which transported the Schindler Jews from Poland to Czechoslovakia. Steven Spielberg, who knew the vital role Brockschmidt played in this operation failed to give credit to David's father. Why? These two historical issues – the Jewish-Bolshevik Holocaust and the Nazi-Jewish Holocaust – are worthy subjects for an intellectual enquiry. We are aware of the fact that to venture forth in to such an enquiry can be dangerous. Professor Robert Faurisson (France), Mr David Irving (England), Dr Wilhelm Stä, Professor Udo Walendy, Messrs Gü Deckert, Germar Rudolf, Mr Thies Christopherson, Pastor Manfred Junger (Germany), Mr Ditlieb Felderer (Sweden), Mr Hans Schmidt (U.S.A.), and Mr Ernst Zü (Canada) are people who have suffered physically, mentally and materially as a result of their search for truth in history. The enemies of freedom of speech will use physical and legal violence – persecution through prosecution – to stifle debate on these contentious historical issues. There is a tremendous pressure placed on people who dare touch these taboo subjects. All too often the first thing that snaps is the family unit, followed by professional and social ostracism. So, be warned – this final intellectual journey is not for the faint-hearted. If you dare to seek the truth, in particular about the alleged homicidal gassings, then you will be smeared, libelled and defamed by those who are intellectual midgets but materialistic giants. If you are mentally strong enough to seek the truth of the matter, then force an open debate. Don't get side tracked by details and always refocus on the basics. Too many individuals drown in a sea of particulars. People who claim that during World War II, the Germans gassed millions of Jews are levelling three allegations at the Germans: 1. They planned the construction of huge chemical slaughter houses; 2. They constructed these huge chemical slaughterhouses during the middle of WWII; and 3. They used these huge slaughterhouses to exterminate millions of Jews. Any normal person familiar with bureaucratic red tape will now ask: What proof is there to back up these claims? Firstly, where are the plans of this enterprise? Secondly, where is the budget needed to finance the massive enterprise? Finally, it is inconceivable that such a massive undertaking would get past first base without an executive order. To date, we have been led to believe that 'a wink and a nudge' began the alleged extermination project. We at Adelaide Institute believe that those who level the homicidal gassing allegations at the Germans owe it to the world to come up with irrefutable evidence that this happened. Instead, these defamers and libellers of the Germans use legal means to stifle debate on the topic. They claim that anyone who asks questions is engaging in 'hate-talk', is 'anti-Semeitic' is a 'racist', even a 'neo-Nazi'. If that doesn't work, then physical violence is used to silence those who want to know the truth. So, come on board if you have the courage to look for truth. We naturally maintain that should – after fifty years – proof of the homicidal gassings be forthcoming, we shall gladly publicise this as well. To date, there has been no proof offered to the world. Robert Faurisson sums it up well; 'No holes, no Holocaust!" We are not 'holocaust deniers'. We proudly proclaim that to date there is no evidence that millions of people were killed in homicidal gas chambers. That is good news all round. Why would anyone find this offensive? We are celebrating the living who were thought dead. How can this be an offence – unless it offends those who have their snout in the trough which Jewish academic, Dr Frank Knopfelmacher called, "The Holocaust racket". If there is to be a mission statement from Adelaide Institute, then it is best summed up in a letter which appeared in The Australian on 22nd February, 1996. Written by John Buchner of Camden of NSW, nine days before the 2nd March federal election: OPEN SEASON ON GERMANS Phillip Adams referred in a recent column of Review, 13th – 14th January 1996, to a number of foreign situations, which are dealt with in a jocular fashion, but he refers to the German people in a contemporary sense as "Nazi swine". Many people from a German background have settled in Australia and made a significant contribution to it, including serving in its armed forces against the Nazi regime. Their memory is vilified by Mr Adams' reference. During my school years here, I endured continual vilification because of my German origins and countless "Hitler Salutes". However, my complaint to you is not motivated by a chip on the shoulder because of these events. Like most Australians, I can take it and abhor the treatment other national groups have received. My concern is that there seems to be a perpetual open season on all Germans, as though all Germans must forever bear the guilt and shame of the Nazi regime. I can bear references to "Nazi Swine", albeit without amusement. But what of my children? Are my children to be forever classed "Nazi Swine" in this country? John Buchner Camden, NSW Interestingly, a climate of political correctness pervaded the run-up period to the 2nd of March federal elections, with Liberal and National candidates coming in for some sharp rebukes from their Labor colleagues over publicly-made alleged racist statements. For example, there was Bob Katter who lashed out an "enviro-Nazis", "femi-Nazis" and "slant-eyed ideologues". Only the latter statement created an uproar. The "Nazi" word has been used by a number of politicians from all parties because it still has a sting to it. After all, everything done by the Germans prior to and after World War II is eclipsed by what is alleged to have happened at Auschwitz concentration camp. The argument is always "from Mozart, Beethoven and Wagner to the homicidal gas chambers at Auschwitz". That's the card pulled out by anyone who is faced with competition from a German-born Australian or Australian of German descent. It is from this basis that we take it as our right to challenge the taboo topic's veracity – did the Germans operate homicidal gas chambers at Auschwitz? It is too cheap for us to decry our work as that of "hate-mongers", "anti-Semites", "racists" or "neo-Nazis". Let us repeat; we are not deniers of the Jewish-Nazi Holocaust. We affirm that to date there is no proof that millions of people were gassed by Germans in homicidal gas chambers. Dare you join in this continuing intellectual adventure of the 21st Century?' the constitutional question 13 The preamble to the Act relevantly reads as follows: 'An Act relating to the Elimination of Racial and other Discrimination WHEREAS a Convention entitled the "International Convention on the Elimination of all Forms of Racial Discrimination" (being the Convention a copy of the English text of which is set out in the Schedule) was opened for signature on 21 December 1965: AND WHEREAS the Convention entered into force on 2 January 1969: AND WHEREAS it is desirable, in pursuance of all relevant powers of the Parliament, including, but not limited to, its power to make laws with respect to external affairs, with respect to the people of any race for whom it is deemed necessary to make special laws and with respect to immigration, to make the provisions contained in this Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, to make provision for giving effect to the Convention:' 14 I shall refer to the Convention described in full above as "the Convention". Section 7 of the Act provides that approval is given to ratification by Australia of the Convention. 15 The appellant submitted that the insertion of Part IIA into the Act by the Racial Hatred Act 1995 (Cth) was clearly intended to implement Article 4 of the Convention which, in its relevant part, provides as follows: 'States Parties condemn all propaganda and all organisations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; …' 16 The appellant contended that the "… touchstone of the offence contemplated by the Convention" was the dissemination of ideas based on racial superiority or hatred. The title of the 1995 Act and the heading of Part IIA itself, so it was put, confirmed that that Part was intended only to proscribe acts which could be characterised as expressions of racial hatred. If s 18C was not so construed, it was beyond the constitutional power of the Commonwealth. my reasoning 17 The Act in its then form (i.e. prior to the insertion of Part IIA) was held by the High Court of Australia [in Koowarta v Bjelke-Petersen (1982) 153 CLR 168] to be constitutionally valid, as an exercise of the external affairs power conferred by s 51(xxix) of the Constitution. It was common ground that the constitutional validity of Part IIA depended upon whether it too was an exercise of the external affairs power. As the Solicitor-General submitted, one basis on which the requisite connection with the subject-matter of "external affairs" is established is that the law is reasonably capable of being considered as appropriate and adapted to implementing a treaty to which Australia is a party: Victoria v The Commonwealth (1996) 187 CLR 416. 18 Part IIA of the Act does not fully implement Article 4 of the Convention. There were provisions in the Racial Hatred Bill 1994 which proposed the creation of criminal offences in respect of racial hatred, by amendment of the Crimes Act 1914 (Cth). The Senate rejected those portions of the Bill and the House of Representatives accepted the amendments which had that result; see Hansard, the Senate 24 August 1995 pp 303-329; 18 September 1995 p 890. However, as was explained in the joint judgment in Victoria v The Commonwealth at 489: 'Deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention.' 19 In my view, the failure to create criminal offences, but only to enact the provisions of Part IIA is not a deficiency of the type referred to in the latter part of the above passage. Furthermore, in my opinion, an assessment of whether Part IIA is within power requires reference not only to Article 4 but also to Articles 2 and 7 of the Convention and to Article 20 paragraph 2 of the International Covenant on Civil and Political Rights ("the ICCPR") which entered into force for Australia on 13 November 1980. Article 2 of the Convention imposes an obligation on States Parties to take measures to prohibit racial discrimination. The relevant part of Article 4 imposes an obligation to adopt immediate and positive measures designed to eradicate all incitement to acts of racial hatred and discrimination. Article 7 imposes an obligation to adopt measures with a view to combating prejudices which lead to racial discrimination and to promoting tolerance, particularly in the fields of teaching, education, culture and information. Article 20 paragraph 2 of the ICCPR relevantly requires prohibition by law of any advocacy of racial hatred that constitutes incitement to discrimination, hostility or violence. I accept the Commonwealth's submission that acts done in public which are objectively likely to offend, insult, humiliate or intimidate and which are done because of race, colour or national or ethnic origin are likely to incite other persons to racial hatred or discrimination or to constitute acts of racial hatred or discrimination. In my view, the Convention can be seen to be directed not only at acts of racial discrimination and hatred, but also to deterring public expressions of offensive racial prejudice which might lead to acts of racial hatred and discrimination. 20 In my opinion it is clearly consistent with the provisions of the Convention and the ICCPR that a State Party should legislate to "nip in the bud" the doing of offensive, insulting, humiliating or intimidating public acts which are done because of race, colour or national or ethnic origin before such acts can grow into incitement or promotion of racial hatred or discrimination. The authorities show that, subject to the requisite connection referred to in paragraph 17 above, it is for the legislature to choose the means by which it carries into or gives effect to a treaty – Victoria v The Commonwealth at 487. 21 In my view the provisions of Part IIA are constitutionally valid as an exercise of the external affairs power. Causation 22 The appellant conceded that publication of the Document was an act which he had done otherwise than in public and which was reasonably likely, in all the circumstances, to offend and insult a group of people, namely Australian Jewry. The concession was made in terms that the appellant accepted that the material in the Document was in all the circumstances "… reasonably likely to offend Australian Jews, the group identified by her Honour". As mentioned below, her Honour identified two groups. I think that it is reasonable to infer, and I do so, that the concession extends to both such groups. The appellant also made a concession that he took no issue with her Honour's conclusion that "… the first limb of s 18C" [obviously a reference to s 18C(1)(a)] was satisfied. Her Honour, in the passages which I set out below, referred to race and ethnic origin interchangeably. No issue about that was raised in the appeal. That is, if there might be a distinction between race and ethnic origin (which the draftsperson of Part IIA appears to have assumed, although the descriptions may well overlap), that was not a matter of argument in this appeal. 23 The appellant submitted that her Honour had erred in law in finding that his act of publishing the Document had been done "because of … the ethnic origin" of the abovementioned group within the meaning of s 18C(1)(b). The appellant's focus was on the words "because of". 24 The primary judge adopted the approach taken to this question by Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 359 as applied by Hely J in Jones v Scully [2002] FCA 1080 at [114]. That was to inquire whether "anything suggests race as a factor in the respondent's decision to publish" the work in question. The primary judge reasoned as follows: '99. In my view, it is abundantly clear that race was a factor in the respondent's decision to publish the material set out in [81] above. The material includes many references to Jews and events and people characterised as Jewish. It is particularly concerned with the Holocaust and with the conduct of German forces during World War II, matters of particular importance to Jewish people. It is, in my view, plainly calculated to convey a message about Jewish people (see Jones v Scully per Hely J at [116]-[117]). 100. I am satisfied that the act of publishing on the World Wide Web the material set out in [81] above was done because of the ethnic origin, namely the Jewishness, of the people in the groups which I have identified above (see [95] and [96]).' 25 The groups which her Honour identified at [95] and [96] were, respectively, Australian Jewry, and those members of the Australian Jewish community who were vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability. 26 The appellant submitted that the approach taken in Cairns Post and adopted by her Honour in this case robbed the words "because of" of virtually all their meaning and effect. To speak of ethnic origin as being "a factor in the decision to publish" was, so it was put, altogether different from saying that the act of publication was actuated by the ethnic origin of the persons concerned. 27 The appellant also submitted that such an interpretation ignored altogether the requirement that the unlawful act be based on racial hatred. Section 18C(1)(a) should, so it was contended, be read down so as to be limited in scope by the concept of racial hatred in order to be constitutionally valid. my reasoning 28 For the reasons which I have set out above, I do not consider that there is any need, relating to the Constitution, to read down s 18C(1)(b) by inserting a requirement of hatred. 29 Section 18B relevantly provides that if an act is done for two or more reasons and one of those reasons is the ethnic origin of a person (whether or not it is the dominant reason or a substantial reason) then, for the purposes of Part IIA, the act is taken to be done because of the person's ethnic origin. 30 In my view, as a general proposition, the words "because of" form the first part of a response to the question "why?" The questions in the present context were - why did the appellant publish the Document?; was one reason for such publication the ethnic origin of the groups referred to in paragraph [24] above or some of the people in those groups? 31 The authorities on the issue of causation in the context of discrimination legislation were reviewed by Kiefel J in Cairns Post at paragraphs [19] to [27]. It seems clear from what her Honour said at paragraph [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person's intention or motive. Regard was to be had to all the circumstances. I respectfully agree with that approach. 32 In the present matter the appellant has not placed any evidence before the Court about his intention or motive in publishing the Document. Nevertheless, in the course of an examination of its contents it may be possible to make inferences about his intention or motive in doing so. It is also useful, in my view, to keep in mind the appellant's concession that publication of the Document was reasonably likely to offend Australian Jews. There is no evidence to suggest that he was unaware of that at the time and no submission to that effect. I now turn to the contents of the Document. 33 I refer first to the paragraph marked 1 in the above extract, the subject of which is revisited at the paragraph which I have marked 5. There can be no doubt (see the first paragraph of the text of the Document) that the reference to 800,000 deaths is to the deaths of 800,000 Jewish people. The appellant conceded, in reply, that the term "Holocaust" is associated with the murder of Jews. In my view, at those two points he was attempting what might be described as a very sick inversion and an exercise in sophistry by arguing that the information about the deaths of a maximum of 800,000 Jewish people was good news and a cause for celebration. 34 The fourth and fifth paragraphs of the Document and the quotation in the sixth paragraph all show that the appellant was conscious that the reader might see its contents as being anti-Semitic or racist. He made an attempt to take the sting out of the Document by rejecting that proposition and also tendering a partial apology in advance of the assertions to come. 35 At points 2 and 3 some insight is given to what the Document is about. It is not confined to a dispassionate scientific investigation of the Nazi Holocaust and events at Auschwitz. At these two points an attempt is made to portray Jews as murderers in the completely different context of the Lenin and Stalin eras in Russia. 36 As her Honour pointed out, there are many references in the Document to Jews and events and people characterised as Jewish. There is no suggestion that the critics of the views of the Adelaide Institute are other than Jewish. Those critics are described at point 4 as "… intellectual midgets but materialistic giants" and at point 6 as "those who have their snout in the trough [of] 'the Holocaust racket'". 37 In my opinion, a fair reading of the Document shows that its whole tenor is to offend and insult those who maintain that the Holocaust occurred and, in particular, Jewish people. But it is not necessary to go as far as that to satisfy the requirements of s 18C(1)(b). It is sufficient to conclude that at least one reason why the Document was published was because of the race or ethnic origin of Jewish Australians whom the appellant concedes were reasonably likely to be offended by that publication. 38 In my opinion, a fair reading of her Honour's reasons shows that she was correct in her conclusion that the act of publishing the Document was done because of the ethnic origins, namely the Jewishness, of the people in the relevant groups. the third issue – exemption? 39 As the primary judge observed, the only potentially relevant exemption was that contained in s 18D(b) which provides that s 18C does not render unlawful anything said or done reasonably and in good faith in the course of any publication made for any genuine academic or other genuine purpose in the public interest. Her Honour dealt with this matter, at para [101] of her reasons, in the following terms: 'The onus of proof with respect to an exemption provided for by s 18D rested on the respondent (Jones v Scully per Hely J at [127]-[128]). The respondent did not comply with the direction of the Court to file and serve a defence. This application for summary judgment is to be determined solely on the basis of the evidence placed before the Court by the applicant. Even if the Court were free to have regard to the various material produced to the Court by the respondent, none of that material establishes that the respondent relevantly acted "in good faith". No further consideration need, in the circumstances, be given to s 18D of the RDA.' 40 The appellant submitted that on a fair reading of the Document, it could not be doubted that the position adopted by him was genuine, however extreme or wrong-headed it might be perceived by others to be. The challenge which he had made in the Document to others (to provide evidence in support of the conventional view of the Holocaust) was, so it was put, likewise clearly genuine, however absurd or provocative that challenge might be thought by others to be. The appellant contended that the material was published in order to provoke debate. Whether or not this was to be regarded as a "genuine academic purpose" it was a "genuine purpose in the public interest" within the meaning of s 18D(b). my reasoning 41 The appellant did not challenge her Honour's view that he had had the onus of proof with respect to the exemption provided by s 18D(b). I think that is correct. In McGlade v Lightfoot [2002] FCA 1457 at [68] and [69] I noted that Hely J in Jones v Scully appeared to have assumed that the onus of proof with respect to an exemption provided for by s 18D rested on the respondent. I also noted her Honour's conclusion in the present matter and recorded my respectful agreement with both of their Honours. I went on to express the view that the exemptions provided by s 18D of the Act fell within the category of exemptions described by the High Court of Australia in Vines v Djordjevitch (1955) 91 CLR 512 at 519-520. 42 Senior counsel for the appellant said that there did not need to be any evidence in relation to the exemption; he relied simply "on the material", by which he meant the Document. 43 In my opinion the contents of the Document, taken as a whole, do not establish on the balance of probabilities that publication by the respondent of it was done reasonably and in good faith for any genuine academic or other genuine purpose in the public interest. 44 In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views. 45 In my opinion, the Document shows that the appellant made no such effort. On the contrary, the terms of the Document are, in my view, deliberately provocative and inflammatory. The reference to the Lenin and Stalin eras was, in my opinion, contrived to smear those on the receiving end of the appellant's message. The appellant described the Jews as "also murderers". This reference was made almost as an aside, clearly to paint Jews in a bad light, before the author resumed his flamboyantly-worded challenge. 46 I think that the primary judge was correct in finding that there was no proof of good faith. I would go further and hold that there was no proof that the publication was done reasonably or in good faith. 47 In those circumstances it is not necessary to consider whether the publication was for any genuine academic or other genuine purpose in the public interest. conclusion 48 For the foregoing reasons I would dismiss the appeal with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr. Associate: Dated: June 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1049 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FREDERICK TOBEN APPELLANT AND: JEREMY JONES RESPONDENT JUDGES: CARR, KIEFEL & ALLSOP JJ DATE: 27 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT KIEFEL J: 49 The history of the proceedings, the findings made by her Honour the primary Judge and the issues arising on the appeal are set out in the reasons for judgment of Carr J. I agree that, if necessary, leave to appeal should be granted in a case such as this. 50 The provisions of Part IIA of the Racial Discrimination Act 1975 (Cth) and in particular ss 18B, 18C, and 18D, are within the power conferred by s 51(xxix) of the Constitution, the external affairs power, as Carr J explains. I respectfully agree with his Honour's reasoning in that regard. It is not necessary to read into subs 18C(1) a requirement that the act in question be done because of racial hatred to reach that conclusion. 51 The subsection does however require a causal connexion between the act in question and the race or ethnic origin of the people affected by it. It requires not only that the act be likely to have a particular impact, such as offending or insulting a person or group, but also that the act be done 'because of the race … of some or all of the people in the group'. The question in this case is what is involved in the second requirement and whether it is made out. 52 Section 18C(1) of the Act provides: 'Offensive behaviour because of race, colour or national or ethnic origin 18C(1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.' 53 Section 18B ('reason for doing an act') provides: '18B. If: (a) an act is done for two or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing that); then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin.' 54 Section 18D subs (b) provides, relevantly, that s 18C does not render unlawful anything said or done reasonably and in good faith 'in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest …'. 55 Her Honour, the primary Judge did not accept that the respondent, Mr Jones, had proved the publication of all of the articles or papers identified in the Statement of Claim. The only article with which her Honour was then concerned is that set out in the reasons of Carr J (at [11] and [12]). The respondent, during argument on the appeal, sought to support the conclusion reached by her Honour, as to whether the requirements of s 18C(1)(b) were made out, by reference to this other material. No notice of contention was however given, and the respondent conceded that he was unable to include the other material in his argument, at least on that issue. 56 Her Honour (at [88]) was satisfied that the publication contained the following meanings or imputations: '(a) there is serious doubt that the Holocaust occurred; (b) it is unlikely that there were homicidal gas chambers in Auschwitz; (c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and (d) some Jewish people, for improper purposes, including financial gain, exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.' 57 Having resolved the question as to whether the requirements of s 18C(1)(a) were met, a matter no longer in issue, her Honour turned to consider whether the act of publishing the material on the worldwide web was an 'act done because of the … ethnic origin' of the relevant group, namely the Australian Jewry and other members of the Australia Jewish community within that group. As Carr J observes, the terms race and ethnic origin were used interchangeably at some points in the judgment, but nothing turns upon it. 58 In Jones v Scully [2002] FCA 1080 at [114], Hely J observed that the phrase 'because of' requires consideration of the reason or reasons for which the relevant act was done (and see Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 at 60, at [23] (Full Court)). It was important to note, his Honour considered, that pursuant to s 18B, if an act is done for one or more reasons, it is enough that one of the reasons is the race, colour or national or ethnic origin of the person or a group of people, whether or not it is the dominant purpose or the substantial reason for doing the act. It was submitted before his Honour that the test to be applied under s 18C(1)(b) was whether race is a 'material factor' in the performance of the act in question. His Honour followed the approach I had outlined in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352, namely to inquire whether 'anything suggests race as a factor in the respondent's decision to publish the work in question'. Her Honour also followed that course. Her Honour found (at [99] and [100]): 'In my view, it is abundantly clear that race was a factor in the respondent's decision to publish the material set out in [81] above. The material includes many references to Jews and events and people characterised as Jewish. It is particularly concerned with the Holocaust and with the conduct of German forces during World War II, matters of particular importance to Jewish people. It is, in my view, plainly calculated to convey a message about Jewish people (see Jones v Scully per Hely J at [116-117]). I am satisfied that the act of publishing on the World Wide Web the material set out in [81] above was done because of the ethnic origin, namely the Jewishness, of the people in the groups which I have identified above (see [95] and [96]).' 59 It was properly conceded by senior counsel for the appellant that the requirements of s 18C(1)(a) were met and that the publication, viewed objectively (see Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15], per Drummond J); Jones v Scully at [56]), was likely to offend the group or groups of persons identified by her Honour. So far as concerned the application of Part IIA, there remained two issues: whether it could be concluded that the appellant had published the statements 'because of' the race of those persons and whether he had acted in good faith and in the course of discussion for a genuine academic or general purpose in the public interest. 60 The appellant's submissions as to the construction of s 18C(1)(b) may be stated shortly. It is submitted that, even if racial hatred is not expressed as a requirement, nevertheless the words 'because of' require a strong causative link. Her Honour, in holding that it was sufficient that considerations of race be a factor in the decision to publish, has applied a lesser test. I understood the appellant to contend that in the approach taken race was present as a background factor, but it was not causally connected with or shown to be the reason for the publication. As her Honour's approach is said to have followed that in Creek v Cairns Post, it is necessary for me to say something about the test I there suggested as appropriate. 61 One of the questions with which I was concerned in Creek v Cairns Post was the relevance of a person's motive or intention in relation to their conduct, in the context of discrimination legislation. Some judgments, in cases dealing with other discrimination legislation provisions, had suggested that it did not matter if motive or intention was not shown on the facts: Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 176, per Deane and Gaudron JJ; Waters v Public Transport Corporation (1991) 173 CLR 349 at 359, per Mason CJ and Gaudron JJ; discussed at Creek v Cairns Post at [19]. Such a view might bear upon whether a causal connexion was necessary as between the conduct complained of and the relevant attribute of the person affected. In my view a causal connexion was required by s 18C(1)(b) and the relevant enquiry was as to what was the reason for the conduct in question. This would be consistent with the references in s 18B to the reasons for an act. I respectfully followed the test propounded by McHugh J in Waters (at 400-401) in relation to the phrases 'on the ground of' and 'by reason of'. 62 An enquiry as to the reason for a person's conduct requires consideration of their motive, or as McHugh J said in Waters at 400-401, 'The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did'. It was from his Honour's statement that I drew the question which I considered relevant to the facts in Creek v Cairns Post and which appears in the following passage (at [28]): 'In the present case the question is whether anything suggests race as a factor in the respondent's decision to publish the photograph. The context of the article is of course race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race can be taken to have actuated the publication. It is something which commonly occurs in media reports. Rather the inquiry is whether the publication of a photograph, showing the applicant's apparent living circumstances, was motivated by considerations of race.' 63 The inquiry as to motive or reason is not however limited to the explanation a person might provide for their conduct or their genuine understanding as to what motivated them. The enquiry is as to the true reason or true ground for the action (see Banovic at186, per Dawson J). A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions. 64 It is, I think, important to bear in mind with respect to the question posed by s 18C(1)(b), that it is a separate question and not one to be combined with the enquiry under subs (1)(a) as to whether a statement or other conduct is likely to offend or insult a group. More is required to answer the question as to the motivation of the person complained about and whether the race of the group was one reason. It will in each case be necessary to carefully consider the statements or other conduct and any other relevant evidence with the enquiry of subs (1)(b) in mind and to determine if any apparent motives have the quality the legislation is concerned with. 65 The conclusion reached by her Honour, that the publication in question on the appeal was plainly calculated to convey a message about Jewish people, would seem to me to state the necessary causal connexion. It does not show that her Honour departed from an enquiry as to the appellant's reasons for making and publishing the statements in question. The question, it seems to me, is whether that conclusion was open. This involves a consideration of the imputations (at [56] above) found by her Honour to arise from the publication. 66 With respect to the imputations at (a) and (b), doubt is cast upon the Holocaust, or the extent of it, and the methods of extermination utilised. The article is clearly concerned to challenge, and call for proof of, the events said to constitute the Holocaust and for which the German people have, in the writer's view, been held to account. It concerns events of great significance to Jewish people. Even if it does not amount to a complete denial of the Holocaust, it is more than likely to offend and insult many Jewish people. It is clear that this would have been appreciated by the appellant. He predicted it and offered what was said to be an apology. The question which then arises is whether these factors are sufficient to impute a racially based motive. 67 As I have earlier observed, the consideration of the likelihood, objectively assessed, of offence being caused by statements, the question under s 18C(1)(a), is quite separate from this enquiry. Generally speaking, the fact that that test is satisfied will not, without more, answer the second enquiry under subs (1)(b). The relevance of the offensiveness of statements to this enquiry is as to what may be deduced from it about motive. 68 It may be possible in some cases to infer that a person must have intended offence to the racial or ethnic group in question by what is said or done. In such a case the reason is exposed for the purposes of s 18C(1)(b). Such a conclusion might be reached by reference to the gravity of the offence likely to be caused and the apparent relevance of the statement in the context in which it appears. 69 Some statements which cause offence to a group may be made without a racially based motive and because of a lack of sensitivity or even thought towards others. The making of a statement which is likely to, or which does offend will not be sufficient to qualify it as motivated as s 18C(1)(b) requires. Hagan v Trustees of the Toowoomba Sports Ground Trust provides an example. The sign on the spectator stand was capable of offending, but the evidence showed that the reason for the offending description derived from the nickname of the person it had been named after, many years before. Part IIA does not render unlawful insensitive statements or those made in poor taste. 70 In other cases it may be that, in pursuing an historical or other discourse, offence cannot be avoided. The reason for the statement causing the offence will not lie in considerations of the affected group's race. In such a case however, one would expect to discern the argument or other discussion being pursued. Part IIA would not operate to prohibit these pursuits, so long as a racially based motive was not present. 71 In the last-mentioned category, where it is said that the only purpose in making a statement is the pursuit of a bona fide purpose, s 18D may need to be considered. I leave to one side the prospect that in some cases it may be difficult to apply the exemptions provided in the face of a finding that there was a racially-based motive. It may be observed, that the question whether one of the purposes referred to in s 18D is the reason for the conduct may also be relevant to the enquiry under s 18C(1)(b). I do not however consider that it follows that the person whose conduct is in question has the burden of disproving motive. I did not understand the respondent to make such a submission. 72 Both elements of s 18C(1) must be established by those alleging a contravention of Pt II and to the requisite standard. A contravention cannot be made out by assumptions as to motive, as distinct from inferences which may properly be drawn. In the present case, whether the appellant was motivated by the Jewishness of the group or groups is to be determined by reference to the statements made by him. At the point when judgment was given in the proceedings no opportunity for enquiry or examination of the appellant had arisen. 73 It was submitted for the appellant that the Court should not draw too much from the fact that the statements were likely to cause offence, because it can be seen that he was motivated by considerations which do not include a desire to convey any accusation or message about Jewish people in particular. It can be seen, it was submitted, that he has a genuine interest in the historical truth about the Holocaust. He challenges the basis for the reports of what occurred and gives as his reason the fact that the German people have been defamed by those making assertions about the members of Jewish people killed. 74 These proceedings do not involve any determination about the truth or falsity of the appellant's claims or the historical records which he challenges. Nevertheless, if it were shown that the appellant knew his challenges to be without foundation, and that they were therefore cynically made, a conclusion that he intended offence to the group could be readily drawn. I do not, however, see how this can be gleaned from his article, which principally contains denials of what is said to be historical fact, even if those denials seem incomprehensible. 75 An important aspect of the publication, it is submitted, is that it does not expressly link Jewish people to two inflammatory and insulting statements. This is relevant to the imputations in (c) and (d). They are the meanings most likely to convey the 'message' about which her Honour spoke. Assuming for present purposes that the meaning in (c) is referrable to Jewish people, it may be stated even more widely than her Honour did. Her Honour thought the aspersion cast was as to the intelligence of Jewish people, but the statement would seem to me to refer to peoples who both lack intellect and are avaricious. It is said in the article that the persons concerned are 'those who are intellectual midgets but materialistic giants'. In the passage referrable to imputation (d), the reference is to 'those who have their snout in the trough, which Jewish academic, Dr Frank Knopfelmacher called, "The Holocaust racket"'. It is submitted that in neither of these passages, nor elsewhere, are Jewish people identified. 76 It is difficult to accept, particularly with respect to the last reference, that Jewish people were not intended to be included amongst those seen as obtaining an interest or benefit. I accept however that they are not singled out and the statements made may refer to others as well. It does not, in my respectful view, seem possible to determine that they were the target of the remarks save by making assumptions drawn from the fact that Jewish people were most concerned in the general topic of the article and would be offended by it. 77 There is, however, one aspect of the publication which is telling and which, in my view, supports the conclusion reached by her Honour. In the passage which refers to the novel written by Helen Demidenko-Darville, it is said that that author 'has revealed a basic historical fact viz that Lenin's henchman, Trotsky (Bornstein) and Stalin's henchman, Kaganovich, were Jewish mass murderers'. It is then said that that historical fact 'clearly shows that Jews are not always victims in history, but also murderers'. This provides more than a little insight into what actuated the appellant to publish the article, in my opinion. Much was made in the submissions of his pursuing a discourse about the unfair blame of the German people about the Holocaust and of his genuine concern about the lack of proof of the numbers of Jewish people in fact killed and the methods by which they were killed. Identification of these subjects however serves only to highlight the irrelevance of this passage to them. The likelihood that the appellant wrote only to pursue the truth of those subjects is rendered implausible by this unnecessary aside, which appears to have no real purpose in such a debate other than to disparage Jewish people. In my view, it confirms what a reading of the article as a whole raises as a prospect, namely that it was published with Jewish people in mind, as those responsible for concocting the Holocaust and, indeed, as an attack upon them. 78 So far as concerns the exemption provided by s 18D, I respectfully agree with the views expressed by Carr J. Her Honour was, in my view, right in holding that there was no proof of the appellant's good faith. I would add that the irrelevant passage above referred to, together with the tenor of the publication, tend to confirm the absence of it. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel. Associate: Dated: June 2003 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1049 of 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: FREDRICK TOBEN APPELLANT AND: JEREMY JONES RESPONDENT JUDGES: CARR, KIEFEL & ALLSOP JJ DATE: 27 JUNE 2003 PLACE: SYDNEY REASONS FOR JUDGMENT ALLSOP J: 79 The reasons for judgment of Carr J, with which (subject to more specific comment herein) I generally agree, relieve me of the need to set out the history of the proceedings. I will refer to the "Document" in the way defined by Carr J at [3], [11] and [12] of his Honour's reasons. 80 The appeal, as finally argued, raised five issues: A. whether leave to appeal was required and, if so, whether leave should be granted; B. the proper construction of s 18C of the Racial Discrimination Act 1975 (Cth) (the RD Act) in the light of the permissible constitutional reach of the section; C. a subsidiary question as to the construction of par 18C(1)(b) of the RD Act and the meaning of the phrase "done because of…", and whether par 18C(1)(b) was satisfied in this case; D. the validity of two of the imputations found by the primary judge: imputations (c) and (d) at [88] of her Honour's reasons; and E. the question of "good faith" and the application of s 18D of the RD Act. A. Leave to Appeal 81 The orders by the primary judge were in the nature of default orders. As such they were interlocutory: Hall v Nominal Defendant (1966) 117 CLR 423, 440; Wickstead v Browne (1990) 30 NSWLR 1, 11; Dart v Norwich Union Life Australia Ltd [2002] FCA 168 at [2]; and Maher v Commonwealth Banking Corporation [2002] FCAFC 104. 82 Leave to appeal was and is required. For the reasons given by Carr J at [8], I would grant leave to appeal. B. The Construction and Constitutional Validity Issue 83 This issue concerns the proper construction and interpretation of important provisions of the RD Act. The issue raises the constitutional validity of one of those provisions, s 18C, and in particular par 18C(1)(b). 84 The provisions in question are, relevantly, ss 18B, 18C and 18D of the RD Act. They appear in Part IIA under the heading of the part: "Prohibition of offensive behaviour based on racial hatred" 85 The provisions were inserted into the RD Act by the Racial Hatred Act 1995 (Cth) (the RH Act), the preamble to which stated: An Act to prohibit certain conduct involving the hatred of other people on the ground of race, colour or national or ethnic origin, and for related purposes. 86 The Explanatory Memorandum to the Racial Hatred Bill 1994 included the following statement: The proposed prohibition on offensive behaviour based on racial hatred … 87 Sections 18B, 18C and 18D are, relevantly, in the following terms: 18B If: (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act); then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin. 18C (1) It is unlawful for a person to do an act, otherwise than in private, if: (a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. … 18D Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. 88 Article 4 of the International Convention on the Elimination of all Forms of Racial Discrimination (the "Convention") which is a schedule to the RD Act provides as follows: States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia: (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination. [emphasis added] 89 The primary contention of the appellant was that par 18C(1)(b) was founded on an attempted implementation into Australian domestic law of Article 4 of the Convention, and should be construed or interpreted as only dealing with an act that can be characterised as an expression of racial hatred. As is evident, those words do not appear in par 18C(1)(b), rather the relevant connection is that the act in question is "done because of the race" etc of the person or persons who is or are reasonably likely to be offended etc under par 18C(1)(a). 90 That this meaning is to be given to par 18C(1)(b) is required, it was said, for, amongst other reasons, the provision to be a constitutionally valid exercise of legislative power under s 51(xxix) of the Constitution implementing the Convention. 91 In order to deal with this submission it is necessary to understand not only the immediate history of the passing of the RH Act, but also the history and content of the Convention. the Convention 92 The immediate impetus for the events that led to the Convention was what Schwelb described as an "epidemic" of swastika-painting and other manifestations of anti-Semitic hatred and prejudice in the northern hemisphere winter of 1959-60. (See Schwelb "The International Convention on the Elimination of all forms of Racial Discrimination" (1966) 15 International and Comparative Law Quarterly 996, 997 ff.) The matter was taken up by the United Nations Sub-Committee on Prevention of Discrimination and Protection of Minorities, which was sitting at the time and which thereafter reported to the General Assembly. The General Assembly, at its fifteenth session in 1960, adopted resolution 1510 condemning all manifestations and practices of racial, religious and national hatred in the political, economic, social, educational and cultural spheres of the life of society as violations of the Charter of the United Nations and the Universal Declaration of Human Rights: see Lerner The U.N. Convention on the Elimination of all Forms of Racial Discrimination (Sijthoff & Noordhoff 1980 2nd Ed) p 1. 93 In 1961, the Economic and Social Council recommended to the General Assembly the adoption of a draft resolution on Manifestations of Racial Prejudice and National and Religious Intolerance. The draft resolution referred to: "continued existence and manifestations of racial prejudice and national and religious intolerance in different parts of the world" (See Lerner op.cit. p 1) 94 The matter was considered again by the General Assembly in 1962. The General Assembly allocated the draft resolution to its Third Committee. A convention was proposed, in particular by a number of African States. This proposal (the Report of the Third Committee and an amendment by Liberia: see Schwelb op.cit. p 998) was for the preparation of an instrument or instruments aimed at the elimination of religious and racial discrimination. 95 Two declarations and two conventions were decided upon, dealing separately with racial discrimination and religious intolerance. (For the largely political reasons for this division see Schwelb op.cit. p 999 and Lerner op.cit. p 2.) 96 The Declaration on the Elimination of All Forms of Racial Discrimination was proclaimed on 20 November 1963 (Resolution 1904, eighteenth Session). On that day, the General Assembly requested the Economic and Social Council to have the Commission on Human Rights give absolute priority to the preparation of a convention on the topic (Resolution 1906, eighteenth Session): see Schwelb op.cit. p 999. The Commission on Human Rights then, spending thirty-six meetings on the task, prepared a draft which was presented by the Economic and Social Council to the General Assembly on 20 July 1964. In the twentieth Session, between 11 October 1965 and 15 December 1965 (after the intervening nineteenth Session had been paralysed for unrelated reasons) the General Assembly's Third Committee devoted forty-three meetings to the drafting of the Convention. A final form was submitted to the General Assembly on 21 December 1965, on which date it was adopted in plenary session 106 votes to 0, with 1 abstention, Mexico, which later gave an affirmative vote. 97 In speaking on the day on which the Convention was unanimously adopted, the president of the General Assembly (Amintore Fanfani) said in the General Assembly: "States Members of the United Nations attach special importance to the fight against racial discrimination, thus stressing one of the most urgent and crucial problems that have arisen in the matter of protecting fundamental human rights". (See Lerner op.cit. pp 7-8) 98 The above history (taken from the works of scholars, Lerner and Schwelb, working contemporaneously with events) is given to illuminate what it was that the international community was dealing with. By this time in the twentieth century, the nations of the world had experienced a century stained by, amongst other catastrophes, racial slaughter, pogroms, forced removal and relocations of whole peoples, religious and ethnic genocide, and were undergoing the trauma involved in the break-up and disintegration of colonial empires and national and regional political structures based on racial characteristics. The unexpected recrudescence, in the winter of 1959-60, of some of the most recent and horrific manifestations of racist behaviour enlivened the world community to act swiftly and (with an inevitable degree of variation in political perspective) unanimously, to take steps towards the elimination of the perceived evil. The perceived evil was all forms of racial discrimination and racial prejudice, the manifestation of which had been, in recent generations, at times horrifically violent and strident, at times overt, and at times less overt and less brutal, but nevertheless insidiously pervasive. In any form, it was recognised, by all nations in the international community, to strike at the dignity and equality of all human beings. 99 This aim, to eliminate racial discrimination in all its forms, can be seen in the pre-amble to the Convention. The States Parties to this Convention, Considering that the Charter of the United Nations is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in co-operation with the Organization, for the achievement of one of the purposes of the United Nations which is to promote and encourage universal respect for and observance of human rights and fundamental freedoms for all, without distinction as to race, sex, language or religion, Considering that the Universal Declaration of Human Rights proclaims that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin, Considering that all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination, Considering that the United Nations has condemned colonialism and all practices of segregation and discrimination associated therewith, in whatever form and wherever they exist, and that the Declaration on the Granting of Independence to Colonial Countries and Peoples of 14 December 1960 (General Assembly resolution 1514 (XV)) has affirmed and solemnly proclaimed the necessity of bringing them to a speedy and unconditional end, Considering that the United Nations Declaration on the Elimination of All Forms of Racial Discrimination of 20 November 1963 (General Assembly resolution 1904 (XVIII)) solemnly affirms the necessity of speedily eliminating racial discrimination throughout the world in all its forms and manifestations and of securing understanding of and respect for the dignity of the human person, Convinced that any doctrine of superiority based on racial differentiation is scientifically false, morally condemnable, socially unjust and dangerous, and that there is no justification for racial discrimination, in theory or in practice, anywhere, Reaffirming that discrimination between human beings on the grounds of race, colour or ethnic origin is an obstacle to friendly and peaceful relations among nations and is capable of disturbing peace and security among peoples and the harmony of persons living side by side even within one and the same State, Convinced that the existence of racial barriers is repugnant to the ideals of any human society, Alarmed by manifestations of racial discrimination still in evidence in some areas of the world and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation, Resolved to adopt all necessary measures for speedily eliminating racial discrimination in all its forms and manifestations, and to prevent and combat racist doctrines and practices in order to promote understanding between races and to build an international community free from all forms of racial segregation and racial discrimination, Bearing in mind the Convention concerning Discrimination in respect of Employment and Occupation adopted by the International Labour Organisation in 1958, and the Convention against Discrimination in Education adopted by the United Nations Educational, Scientific and Cultural Organization in 1960, Desiring to implement the principles embodied in the United Nations Declaration on the Elimination of All Forms of Racial Discrimination and to secure the earliest adoption of practical measures to that end, Have agreed as follows: [emphasis in original] 100 Racial hatred was one form or manifestation of the perceived evil. Unhappily, it was a form with which the nations in the General Assembly in 1960 to 1965 were all too familiar. It was the form of the perceived evil most likely to lead to brutality and violence, but it was not the only form of the perceived evil antithetical to the dignity and equality inherent in all human beings upon which the Charter of the United Nations was based. It was to all such forms and manifestations that the Convention was directed. 101 The definition of "racial discrimination" in Article 1 of the Convention confirmed the wide aim of the Convention: Article 1 1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 102 It is unnecessary to explore any tension in the width of Article 1 and the list of rights in Article 5: Schwelb op.cit. pp 1003-1006. 103 Articles 2 to 7 contained the obligations of the States Parties. The obligations included the following. 104 By Article 2 the States Parties : (i) condemned racial discrimination; (ii) undertook to pursue, by all appropriate means and without delay, a policy of eliminating racial discrimination in all its forms and promoting understanding among all races; (iii) in furtherance of the end referred to in (ii) above, undertook to prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization: see par (d); and (iv) in furtherance of the end referred to in (ii) above, undertook to encourage, where appropriate, integrationist multi-racial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division: see par (e). 105 Article 2, and in particular par (d), were not without difficulty in their drafting, but can be viewed as of great significance. Schwelb considered Article 2(d) the "most important and far reaching of all the substantive provisions of the Convention": Schwelb op.cit. pp 1015-1021, esp p 1017 and see Lerner op.cit. p 38. 106 Article 3 condemned apartheid. 107 By Article 4 (which is set out in full at [88] above) the States Parties: (i) condemned all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin or which attempt to justify or promote racial hatred and discrimination in any form; (ii) undertook to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination ("such discrimination" being "racial hatred and discrimination in any form" referred to in (i) above); and (iii) in furtherance of the end referred to in (ii) above, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in Article 5 of the Convention; undertook, inter alia, (a) to declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof; (b) to declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; (c) not to permit public authorities or public institutions, national or local, to promote or incite racial discrimination. 108 The principles embodied in the Universal Declaration of Human Rights and the rights set forth in Article 5 of the Convention, referred to in [107](iii) above, included the rights to freedom of thought, conscience, religion, opinion, expression, assembly and association. 109 In dealing with Article 4, Schwelb, after restating the condemnation contained in the first paragraph of article 4, stated: "The article proceeds to list immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination." [emphasis added] (See Schwelb, op.cit. p 1021.) 110 That learned commentator saw racial hatred as a form or manifestation of racial discrimination. That is how the Convention had developed; that is how the Convention was structured. 111 It is unnecessary to rehearse here the difficulties involved in the drafting of Article 4. (See generally Schwelb, op.cit. pp 1021-1025 and Lerner, op.cit 43-53.) 112 Articles 6 and 7 were in the following terms: Article 6 States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination. Article 7 States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnic groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention. 113 The Convention was done at New York on 7 March 1966, came into force generally on 4 January 1969 (except article 14 which did so on 4 December 1969) and was signed for Australia on 13 October 1966. Australia deposited a reservation to article 4(a) on 30 September 1975 (for reasons to which I will come). The Convention entered into force for Australia on 30 October 1975. the legislative history of Australian domestic law 114 In 1974 the Racial Discrimination Bill was introduced into the Commonwealth Parliament. The bill, in large part, formed the basis of the RD Act. Clause 28 of the bill was in the following terms: A person shall not, with intent to promote hostility or ill-will against, or to bring into contempt or ridicule, persons included in a group of persons in Australia by reason of the race, colour or national or ethnic origin of the persons included in the group – (a) publish or distribute written matters; (b) broadcast words by means of radio or television; or (c) utter words in any public place, or within the hearing of persons in any public place, or at any meeting to which the public are invited or have access, being written matter that promotes, or words that promote, ideas based on – (d) the alleged superiority of persons of a particular race, colour or national or ethnic origin over persons of a different race, colour or national or ethnic origin; or (e) hatred of persons of a particular race, colour or national or ethnic origin. Penalty: $5,000 115 This was a proposed statutory offence, the introduction of which was directly related to the implementation of the obligation upon Australia in Article 4(a) of the Convention, which, in terms, called for the introduction of an offence into the domestic law of State Parties. Clause 28 became known (as it is described in McNamara Regulating Racism: Racial Vilification Laws in Australia) as a "racial vilification" provision, as distinct from "discrimination provisions", that is, those civil provisions dealing with comparative treatment. 116 There was debate in the Commonwealth Parliament concerning the in-road into freedom of speech and the perceived unwisdom of the criminalisation of expression of thought: see generally McNamara op.cit. pp 36-37. Clause 28 was deleted by Senate amendment, which deletion was accepted by the House of Representatives. The failure to enact clause 28 led to the deposit of Australia's reservation to Article 4(a). 117 The issue was revisited in 1983 by a discussion paper published by the Human Rights Commission entitled Proposed Amendments to the Racial Discrimination Act Concerning Racial Defamation. It was suggested that certain conduct be made unlawful, but not criminal, and set within the framework of the conciliation procedures available to the Commission. Such conduct was proposed to be in the following terms: …make it unlawful for a person to publicly utter or publish words which, having regard to all the circumstances, are likely to result in hatred, intolerance or violence against a person or persons, or a group of persons, distinguished by race, colour, descent or national or ethnic origin [and] … make it unlawful to publicly insult or abuse an individual or group, or hold that individual or group up to contempt or slander, by reason of their race colour, descent or national or ethnic origin. 118 The issue returned to some prominence in the late 1980s and early 1990s. At this time, State and Territory legislatures took the initiative and enacted laws dealing with what was termed "racial vilification": the Anti-Discrimination Act 1977 (NSW) (the NSW Act) ss 20C and 20D (those provisions were inserted by the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW)); the Criminal Code 1913 (WA) (the WA Act) ss 77 - 80 (those provisions were inserted by the Criminal Code Amendment (Racist Harassment and Incitement to Racial Hatred) Act 1990 (WA)); and the Discrimination Act 1991 (ACT) (the ACT Act) ss 66 – 67. 119 Other States later passed similar legislation: the Racial Vilification Act 1996 (SA) (the SA Act) ss 3 – 6 (the SA Act also inserted a provision relating to "racial victimisation" into the Wrongs Act 1936 (SA), s 37); the Anti-Discrimination Act 1991 (Qld) (the Qld Act) ss 124A, 131A (those provisions were inserted by the Anti-Discrimination Amendment Act 2001 (Qld) and amended by the Discrimination Law Amendment Act 2002 (Qld)); and the Racial and Religious Tolerance Act 2001 (Vic) (the Victorian Act) ss 7 – 12 and 24 –25. 120 The State and Territory provisions enacted in the late 1980s and early 1990s were as follows: (a) Sections 20C and 20D of the NSW Act: 20C Racial vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful: (a a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 20D Offence of serious racial vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons. Maximum penalty: In the case of an individual—50 penalty units or imprisonment for 6 months, or both. In the case of a corporation—100 penalty units. (2) A person shall not be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution. (b) Sections 77 – 80 of the WA Act: 77. Possession of material for publication, etc., to incite racial hatred Any person who (a) possesses written or pictorial material that is threatening or abusive; and (b) intends the material to be published, distributed or displayed whether by that person or another person; and (c) intends hatred of any racial group to be created, promoted or increased by the publication, distribution or display of the material, is guilty of a crime and is liable to imprisonment for 2 years. Summary conviction penalty: Imprisonment for 6 months or a fine of $2 000. [Section 77 inserted by No. 33 of 1990 s.3.] 78. Publication, etc., of material to incite racial hatred Any person who -- (a) publishes, distributes or displays written or pictorial material that is threatening or abusive; and (b) intends hatred of any racial group to be created, promoted or increased by the publication, distribution or display of the material, is guilty of a crime and is liable to imprisonment for 2 years. Summary conviction penalty: Imprisonment for 6 months or a fine of $2 000. [Section 78 inserted by No. 33 of 1990 s.3.] 79. Possession of material for display to harass a racial group If -- (a) any person possesses written or pictorial material that is threatening or abusive; and (b) that person intends the material to be displayed whether by that person or another person; and (c) that person intends any racial group to be harassed by the display or the material, that person is guilty of a crime and is liable to imprisonment for one year. Summary conviction penalty: $1 000. [Section 79 inserted by No. 33 of 1990 s.3; amended by No. 78 of 1995 s.147.] 80. Display of material to harass a racial group If -- (a) any person displays written or pictorial material that is threatening or abusive; and (b) that person intends any racial group to be harassed by the display of the material, that person is guilty of a crime and is liable to imprisonment for one year. Summary conviction penalty: $1 000. [Section 80 inserted by No. 33 of 1990 s.3; amended by No. 78 of 1995 s.147.] (c) Sections 66 and 67 of the ACT Act: 66 Racial vilification.unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) Nothing in this section renders unlawful. (a) a fair report of a public act referred to in subsection (1); or (b) a communication or the distribution or dissemination of any matter comprising a publication which is subject to a defence of absolute privilege in proceedings for defamation; or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 67 Serious racial vilification.offence A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include. (a) threatening physical harm towards, or towards any property of, the person or group of persons; or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons. Maximum penalty: 50 penalty units. 121 Also, in the early 1990s, there were published the reports of the Human Rights and Equal Opportunity Commission (the National Enquiry into Racist Violence) in 1991, the Royal Commission into Aboriginal Deaths in Custody in 1991 and the Australian Law Reform Commission (Multiculturalism and the Law) in 1992. Each dealt with racial vilification. Each dealt with the very kinds of social difficulties and human conduct, in the Australian context, to which the Convention and the preceding efforts in the United Nations between 1960 and 1965 had been directed. See generally McNamara op.cit. pp 38-39. 122 Once again, at this time, much of the public debate raised the question of the in-road into freedom of speech, especially by any introduction of criminal provisions. Civil provisions, especially fitting into a conciliation regime, were seen as less antithetical to the maintenance of freedom of speech. 123 In 1992, the Racial Hatred Bill was introduced into Commonwealth Parliament. It lapsed with the 1993 federal election. It contained civil provisions intended to be placed into the RD Act and criminal provisions intended to be placed into the Crimes Act 1914 (Cth). 124 The proposed civil provisions in the 1992 bill were: PART 3 – AMENDMENT OF THE RACIAL DISCRIMINATION ACT 1975 Principal Act 6. In this Part, "Principal Act" means the Racial Discrimination Act 1975. 7. After Part II of the Principal Act, the following Part is inserted: PART IIA – PROHIBITION OF RACIAL VILIFICATION Interpretation 19A. In this part, 'public act' means: (a)any act by which words, sounds, images or writings are communicated to the public, including the display or distribution of documents or the broadcasting, telecasting, screening or playing of any kind of material; or (b)any conduct that is seen by the public, including gestures or the wearing or display of clothing, signs, flags, emblems or insignia. Racial vilification to be unlawful "19B(1) Subject to this section, it is unlawful for a person knowingly or recklessly to do a public act that is likely, in all the circumstances, to stir up hatred, serious contempt or severe ridicule against a person or a group of persons on the ground of race, colour or national or ethnic origin. (2) Nothing in this section renders unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for an academic, artistic or scientific purpose or any other purpose in the public interest; or (c) in making or publishing a fair report of, or a fair comment on, any event or matter of public interest. Unlawful to incite the doing of unlawful acts "19C It is unlawful for a person: (a) to incite the doing of an act that is unlawful under the Part; or (b) to assist or promote, whether by financial assistance or otherwise, the doing of such an act. Vicarious liability "19D(1) Subject to subsection (2), if: (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and (b) the act would be unlawful under this Part if it were done by that person; this Act applies in relation to that person as if the person had also done the act. (2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act.". [emphasis in original] 125 A bill was once again brought forward in 1994 into the Commonwealth Parliament. It had, again, both civil and criminal provisions. 126 The proposed criminal provisions in the 1994 bill were in the following terms: PART 2 – AMENDMENT OF THE CRIMES ACT 194 … PART IVA – OFFENCES BASED ON RACIAL HATRED Reason for doing an act "57. If (a) an act is done for 2 or more reasons; and (b) one of the reasons is the race, colour or national or ethnic origin of a person; and (c) that reason is a substantial reason (whether or not it is the dominant reason) for doing the act; then, for the purposes of this Part, the act is taken to be done because of the person's race, colour or national or ethnic origin. Prohibition of threats to cause physical harm because of race, colour or national or ethnic origin "58. A person must not threaten to cause physical harm to another person or a group of people because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group Penalty: Imprisonment for 2 years. Prohibition of threats to property because of race, colour or national or ethnic origin "59. A person must not threaten to destroy or damage property (other than property belonging to the person) because of the race, colour or national or ethnic origin of any other person or any group of persons. Penalty: Imprisonment for 1 year. Prohibition of incitement of racial hatred because of race, colour or national or ethnic origin "60.(1) A person must not, with the intention of inciting racial hatred against another person or a group of people, do an act, otherwise than in private, if the act (a) is reasonably likely, in all the circumstances, to incite racial hatred against the other person or group of people; and (b) is done because of the race,, colour or national or ethnic origin of the other person or of some or all of the people in the group. Penalty: Imprisonment for 1 year. "(2)For the purposes of subsection (1), an act is taken not to be done in private if it: (a) causes words, sounds, images or writing to be communicated to the public; or (b) is done in a public place; or (c) is done in the sight or hearing of people who are in a public place. "(3)In this section: 'public place' includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. … [emphasis in original] 127 The proposed criminal provisions were rejected by the Senate. 128 The civil provisions (now found, relevantly, in ss 18B, 18C and 18D of the RD Act) were new in their terms and structure. They were different from the various provisions of the State and Territory Acts and the provisions in the 1992 bill. The 1992 bill had used the words "hatred, serious contempt or severe ridicule" and recklessness or intent was required. Under the new provisions, no intent or recklessness was required; but s 18D had a body of justified conduct. The words of Part IIA, especially s 18C, did not require there to be an expression of racial hatred, or intended "vilification"; s 18C did not refer to incitement to violence. Rather, Part IIA of the RD Act had a less charged body of expression. It worked in the following way. Reading ss 18B, 18C and 18D together as a cohesive whole, acts were made unlawful which reasonably caused offence etc (see par 18C(1)(a)) to a person or persons in circumstances where one of the reasons (see s 18B as to more than one reason) for the act in question was the race etc (see par 18C(1)(b)) of the person or persons reasonably likely to be offended and where the act was not justifiable as a form of expression contemplated by s 18D. 129 The Explanatory Memorandum contained the material set out below which can be expressed by reference to the terms of the Convention as material concerning: the provision of legal protection to victims of racist behaviour (see Article 6 of the Convention), the strengthening of social cohesion and preventing the undermining of tolerance in the Australian community (seeArticle 2, especially pars (d) and (e)), the removal of fear because of race, colour, national or ethnic origin (see Article 1 and the preamble) and the balancing of free speech and the protections to be afforded (see Article 4 – "due regard"): …the Bill closes a gap in the legal protection available to the victims of extreme racist behaviour. The bill is intended to strengthen and support the significant degree of social cohesion demonstrated by the Australian community at large. The Bill is based on the principle that no person in Australia need live in fear because of his or her race, colour, or national or ethnic origin. … There is no unrestricted right to say or publish anything regardless of the harm that can be caused. … While it is highly valued, the right to free speech must therefore be balanced against other rights and interests. The Bill is not intended to limit public debate about issues that are in the public interest. It is not intended to prohibit people from having and expressing ideas. The Bill does not apply to statements made during a private conversation or within the confines of a private home. The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin. The Bill is intended to prevent people from seriously undermining tolerance within society by inciting racial hatred or threatening violence against individuals or groups because of their race, colour or national or ethnic origin. … By contrast, the civil prohibition in clause 6 of the Bill addresses acts done because of race, colour or national or ethnic origin, otherwise then in private, which are reasonably likely to offend, insult, humiliate or intimidate people. ... The proposed prohibition on offensive behaviour based on racial hatred would be placed within the existing jurisdiction of the Commission to conciliate and/or determine complaints alleging breaches of the RDA. This victim initiated process is quite different from the criminal offence regime where the initiative for action generally involves police and prosecution authorities. … 130 Though the phrase, "racial hatred" was used in the Explanatory Memorandum, it can be seen to be a phrase encompassed by the words deliberately chosen for the new civil provisions; and the phrase "racial hatred" in the Explanatory Memorandum can be seen to be used in the context of the notion of racial discrimination and its elimination, dealt with broadly, as in the Convention. 131 What was said in Parliament in debate on the bill also reflected a use of the phrase "racial hatred" within this broader context of unacceptable racial discrimination in all its forms to which the Convention was directed. The Attorney-General said the following in the House on 15 November 1994 (about the bill which contained both civil and criminal provisions): The Racial Discrimination Act does not eliminate racist attitudes. It does not try to, for a law cannot change what people think. But it does target behaviour – behaviour that causes an individual to suffer discrimination. The parliament is now being asked to pass a new law dealing with racism in Australia. It too targets behaviour – behaviour which affects not only the individual but the community as a whole. The Racial Hatred Bill is about the protection of groups and individuals from threats of violence and the incitement of "racial hatred", which leads inevitably to violence. It enables the Human Rights and Equal Opportunity Commission to conciliate complaints of "racial abuse". This bill is controversial. It has generated much comment and raises difficult issues for the parliament to consider. It calls for a careful decision on principle. [emphasis added] … The bill is intended to close a gap in the legal protection available to the victims of extreme racist behaviour. No Australian should live in fear because of his or her race, colour or national or ethnic origin. The legislation will provide a safety net for racial harmony in Australia, as both a warning to those who might attack the principle of tolerance and an assurance to their potential victims. Three major inquiries have found gaps in the protection provided by the Racial Discrimination Act. The National Inquiry into Racist Violence, the Australian Law Reform Commission Report into Multiculturalism and the Law, and the Royal Commission into Aboriginal Deaths in Custody all argued in favour of an extension of Australia's human rights regime to explicitly protect the victims of "extreme racism". The 1992 report of the national inquiry into racist violence found that while state and territory criminal law punishes the perpetrators of violence, it largely is inadequate to deal with conduct that is a pre-condition of racial violence. The report documented 60 such incidents. The Law Reform Commission report and the royal commission also dealt extensively with examples of extreme racist behaviour. Since then there has been an upsurge in the activities of extremist racist groups which have resulted in harassment and intimidation of individuals. As well, public gatherings of ethnic communities have been disrupted, sometimes violently. In Sydney, police are investigating seven arson attacks on synagogues in less than four years. In Melbourne, there have been reports of teenage gangs targeting Australians of Asian background. While these incidents are not everyday occurrences, they tear at the fabric of our society and cause immense concern to many of our citizens. … Racism should be responded to by education and by confronting the expression of racist ideas. But legislation is not mutually exclusive of these responses. It is not a choice between legislation or education. Rather, it is in the government's view, a case of using both. … In this bill, free speech has been balanced against the rights of Australians to live free of fear and racial harassment. Surely the promotion of racial hatred and its inevitable link to violence is as damaging to our community as issuing a misleading prospectus, or breaching the Trade Practices Act. … [emphasis added} 132 There is no doubt that by the mid 1990s, provisions of the kind found in ss 18B, 18C and 18D of the RD Act were referred to as "racial vilification" and "racial hatred" laws. The heading to Part IIA said as much. The words of ss 18B, 18C and 18D, however, were not in those terms. They can be seen as a deliberate departure from the kind of language used in the State and Territory legislation and in the civil provisions in the 1992 bill. 133 The appellant said that the words of s 18C must be read down to encompass only the expression of racial hatred. It is not easy to read that limitation into s 18C, in particular par 18C(1)(b). What is argued is that for there to be an unlawful act "because of race" etc, these words should be read as "because of hatred of race" etc or that the act be able to be characterised as an expression of racial hatred. 134 The first proposition put in support of this submission is that Part IIA is an intended implementation only of Article 4 of the Convention. Emphasis was placed on the phrase "racial hatred" there appearing. This limitation was picked up in the heading of Part IIA. It was submitted that the touchstone of the offence contemplated by the Convention is the dissemination of ideas based on racial superiority or hatred. 135 A number of things can be said in answer to this first proposition. First, the fact that the offence contemplated by Article 4 was of the character described in par (a) of Article 4 does not, in terms, require civil provisions such as ss 18B, 18C and 18D, set in a framework of conciliation in cognate legislation, to be so limited. 136 Secondly, Article 4 is not the only matter in the Convention to which Part IIA can be seen as directed. The context and aim of the Convention were, as I have sought to explain, racial discrimination and its elimination, in all its forms. Sections 18B, 18C and 18D can be seen as intended to assist in the endeavour of eliminating racial discrimination in all its forms, including by dealing with racial hatred. Many acts comprehended by ss 18B, 18C and 18D will involve an expression of racial hatred, though other acts may not. The provisions can also be seen as intended to pursue a policy of eliminating racial discrimination and promoting understanding among races (Article 2), prohibiting and bringing to an end by an appropriate means, including legislation, as required by circumstances in Australia, racial discrimination by any person (Article 2 par (d)), eliminating barriers between races and discouraging anything which tends to strengthen racial division (article 2 par (e)), adopting positive measures designed to eradicate all incitement to, or acts of, racial hatred and discrimination in any form (Article 4), assuring everyone in Australia effective protection and remedies through competent tribunals against any acts of racial discrimination which violate human rights and fundamental freedoms contrary to the Convention (Article 6), and adopting an effective measure to combat prejudices which lead to racial discrimination and to promote tolerance and friendship among racial or ethnic groups (Article 7). This is how the Attorney-General and the Explanatory Memorandum explained it. Such explanation was in conformity with the genesis, structure and terms of the Convention. 137 Thirdly, whilst the heading to Part IIA is part of the RD Act: subs 13(1) of the Acts Interpretation Act 1901 (Cth) and as such can give assistance to understanding the context and so the scope of a provision, a heading will generally not control words of provisions that are clear and unambiguous: Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1, 16; Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216, 225-26, 234; Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191, 202; and Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594, 601-602. In this context, the function of the heading as a brief guide to the provisions within the part should be borne in mind: Oyston v Blaker [1996] 1 WLR 1326, 1333; and Bennion Statutory Interpretation (3rd Ed), 574 s 255. Here, "racial hatred" was a phrase recognised in the Convention as one form of racial discrimination. It had come, over time, to be a convenient short-hand, along with such phrases as "racial vilification", to encapsulate the subject matter of provisions the subject of public debate in Australia in the 1970s, 1980s and 1990s, see [114] to [132] above and McNamara op.cit. pp 32-49. Further, it was not an entirely inapt, though brief, guide to the subject matter of the provisions. It should not, however, be seen as a control upon otherwise clear words that were deliberately chosen, as a departure from previous models, to deal with the subject matter of the Convention, including, but not limited to, Article 4. 138 The above is not to say that the heading cannot give context to the provisions for their interpretation: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, 408; Concrete Constructions, supra and Inglis v Robertson [1898] AC 616, 630, in the manner, for instance, exemplified by the approach of Drummond J in Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 at [33] to [36]. There, his Honour used the heading as part of the context, assisted also by the Explanatory Memorandum and second reading speeches, to conclude that the scope of the words did not reach to circumstances where the only connection of the act with race was the exhibiting of care to avoid giving offence to a racial group that might be offended. 139 The second proposition put in support of the submission that s 18C must be read down to encompass only the expression of racial hatred, was that to interpret the reach of s 18C and Part IIA otherwise would lead to the constitutional invalidity of s 18C as outside a valid exercise of the power of the Commonwealth Parliament to legislate granted by s 51 (xxix) of the Constitution. Section 15A of the Acts Interpretation Act was called in aid. 140 The relevant principles by reference to which the validity of Commonwealth legislation based on s 51 (xxix) is assessed are the subject of settled High Court authority. First, insofar as the validity of a law under s 51(xxix) depends on its implementation of an international agreement, the law must be one which is reasonably capable of being considered as appropriate and adapted to implementing a treaty to which Australia is a party. It is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal. The law must prescribe a regime that the treaty itself has defined with sufficient specificity to direct the general course taken by the signatory States. Absence of precision in the treaty, however, does not lead to a conclusion of lack of obligation. It is for the legislature to choose the means by which it gives effect to the treaty; and provided the choice is of a means reasonably capable of being considered appropriate and adapted to that end, the law is valid: Victoria v The Commonwealth (1996) 187 CLR 416, 486-87; Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54, 136; The Commonwealth v Tasmania (1983) 158 CLR 1, 130-31, 172, 232, 259; and Richardson v Forestry Commission (1988) 164 CLR 261, 288-89, 303, 311-12, 336, 342. 141 Secondly, the implementation of obligations undertaken by Australia under a treaty does not provide the outer limit of the power: Victoria v The Commonwealth at 487, approving Gaudron J in Richardson v Forestry Commission at 341-42. The pursuit of international objectives or recommendations may also suffice to enliven the power. 142 Thirdly, it is unnecessary for the law to be a full and complete implementation of the treaty. There may be a deficiency in the implementation of the supporting Convention. This is not fatal, unless the deficiency is so substantial as to deny the law the character of a measure implementing the Convention, or unless the deficiency, in the light of other provisions of the domestic law, makes the law inconsistent with the Convention: Victoria v The Commonwealth at 488-89. 143 Here, Part IIA and in particular s 18C, is and are more than a means of achieving an ideal. Australia undertook relevant obligations referred to at [104] (ii), (iii), (iv), [107] (ii), (iii)(a) and [112] above. The provisions of Part IIA can be seen as an attempt to implement these obligations. The attempt to implement the obligations in Article 4(a) ([107](iii)(a) above) fell short of what was called for; nevertheless, it is plain from the Explanatory Memorandum, the second reading speeches in Parliament and the text of s 18D that careful regard was apparently had to the balancing of what might be seen as conflicting principles in the Universal Declaration of Human Rights and the rights in Article 5. 144 In these circumstances, I am of the view that Pt IIA, s 18C, and par 18C (1)(b) in its statutory context, are reasonably capable of being considered as appropriate and adapted to implement the obligations referred to at [104] (ii), (iii) and (iv), [107] (ii), (iii)(a) and [112] above assumed by Australia under the Convention. It might also be said that the provisions can be reasonably capable of being considered as appropriate and adapted to implement the objectives of the Convention referred to at [104](i) and [107](i) above and in the preamble; though, it may be argued that, in this respect, the law is only one means of the achievement of an ideal. It is sufficient for me to conclude that there exists the relevant perceived connection with the obligationsunder the Convention and to conclude, as I do, that there is no apparent inconsistency of Part IIA with the Convention. 145 For these reasons, in my view, Part IIA, s 18C and par 18C(1)((b) are not unconstitutional if not read down in the manner contended for, and there is then no requirement to read down s 18C and par 18C(1)(b) in accordance with s 15A of the Acts Interpretation Act. 146 Whether or not the provisions can be seen as the best method of implementing the obligations in the Convention, or the best balance between the protections intended to be afforded by the Convention and what might be seen to be competing freedoms, are questions for the legislature. Hence the importance of the phrase "reasonably capable of being considered as appropriate and adapted" (as opposed to "appropriate and adapted" or perhaps even "reasonably appropriate and adapted"). 147 It should be noted that no argument was propounded raising any question of any inconsistency between Part IIA, s 18C or par 18C(1)(b) in its statutory context, with the implied freedom of communication dealt with in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 148 The appropriateness of recognising a balance between freedom of speech and expressions of intimidation and hate is evident even in circumstances of the clearest constitutional guarantee of freedom of speech: see Virginia v Black, U.S Supreme Court, 7 April 2003. No such high constitutional hurdle was the subject of argument before us, and not too much can be taken from the American jurisprudence in the context of the First Amendment. Nevertheless, the opinion expressed by Justice O'Connor on behalf of the Court with respect to Parts I, II and III recognises the powerful effect of deeply entrenched symbols and habits of intimidation (the Virginia statute there outlawing cross-burning). Here, the balance, save for any question raised by Lange, is to be struck by Parliament, as long as the result of its legislative activity conforms with the principles set out in Victoria v The Commonwealth and can be seen as a legitimate exercise of legislative power granted by s51(xxix) of the Constitution. C The Subsidiary Construction Issue Regarding Par 18C(1)(b) 149 The appellant submitted that an interpretation of par 18C(1)(b) has been expressed by Judges of this Court which was, on the plain words of par 18C(1)(b), too broad, and so, in error. Reference was made to the discussion by Kiefel J in Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 where her Honour said at 359 [28]: …the question is whether anything suggests race as a factor in the respondent´s decision to publish the photograph. Hely J followed that approach in Jones v Scully [2002] FCA 1080 at [114]. The learned primary judge here referred to that which Hely J had said in Jones v Scully and, like Hely J, expressly followed the approach of Kiefel J in Creek. 150 It was submitted that this approach paid insufficient regard to the word "because" in par 18C(1)(b) and the terms of s 18B. The effect of the impugned approach, it was said, was to reduce the role of influence of race to a factor capable of being characterised as relevant, merely in a background sense. In argument some comparison was made with the notion of relevance in administrative law. I do not think that it is helpful to frame the debate in terms of administrative law concepts. The statute requires there to be a reason. As the Full Court (of which Hely J was a member) said in Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 at 60 [23]: Section 18C(1) is not enlivened unless the relevant act is done "because of the race, colour or national or ethnic origin of the person or group likely to be offended by the act". As earlier indicated, the phrase "because of" requires consideration of the reason or reasons for which the relevant act was done. Counsel for Mr Hagan submitted that in discrimination legislation it is accepted that it is unnecessary for a complainant to prove motive or intention. Whether that be so or not, the expression "because of" in par (b) necessitates a consideration of the reasons for which the act in question was done. 151 It is the reason or reasons for the act which must be discerned. Here the act was the publication of the Document. An investigation of the reason or reasons for the act will involve, as a matter of meaning and language, an enquiry into the explanation for the act or why the act was done. Whilst it may be accurate to say that this is not the same thing as enquiring as to the motive or purpose or intention behind such conduct (cf Kapoor v Monash University (2001) 4 VR 483, 494 – 95 [36] – [38]; and the University of Ballarat v Bridges [1995] 2 VR 418, 424), proof of those matters (motive, purpose or intention) may, in any given case, be relevant, perhaps even central, to the ascertainment of the reason or reasons for the act in question. It is unwise, however, to go too far in explication of the language of s 18B and par 18C(1)(b) lest words be substituted for those chosen by Parliament. I do not see Kiefel J as having been attempting to widen the requirement of par 18C(1)(b) as described in Hagan by the Full Court. Her Honour does not appear to have had the Full Court decision in Hagan cited to her; nevertheless, immediately before the passage highlighted by the appellants (see [149] above) Kiefel J directed herself, correctly in my respectful view, to the need for an enquiry into the reason or reasons for the act (expressing herself in terms of a causal requirement) and left to one side (as I do here as unnecessary to consider) the views of Weinberg J on subs 9(1) of the RD Act. Her Honour said: I should add that Lockhart J in Human Rights and Equal Opportunity Commission v Mt Isa Mines at 321-322 equated the words "by reason of" with "because of", "due to", "based on", "or words of similar import which bring something about or cause it to occur"; although it seems to me that "because of" perhaps marks out the causal requirement more clearly. I am aware that Weinberg J in Macedonian Teachers´ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 at 30 has expressed the view that "based on" in s 9(1) of the RDA encompasses a broader, and perhaps a non-causative relationship, but it is not necessary for me to deal with that question further here (and see also Australian Medical Council v Wilson). 152 Thus, I would not read the passage in Kiefel J's reasons in Creek set out at [149] above as departing from a need for an enquiry as to the reason or reasons for the act as stated by the Full Court in Hagan. I would not read Hely J (a member of that Full Court) in Jones v Scully as departing from what the Full Court said in Hagan; nor would I read what the primary judge said here (her Honour having quoted the whole of the relevant paragraph of Hely J's reasons in Jones v Scully, which itself referred to the Full Court in Hagan) as departing from what the Full Court said in Hagan. 153 I read [99] of the primary judge's reasons as explaining why, in her Honour's view, the act of publication was because of the race or ethnic origin of Jews or because of Jewishness in the causal sense used by Kiefel J in Creek and in the sense used by the Full Court in Hagan. 154 What is necessary to consider for the application of par 18C(1)(b) is whether the act was "because of" race etc. The act here is the act of publication of the Document. It is of course clear that the questions of the satisfaction of pars 18C(1)(a) and (b) are different and separate enquiries. Nevertheless, as perhaps here, the material relevant to one may be relevant the other. For instance, the ease with which one can draw the conclusion that, objectively, the publication satisfies par 18C(1)(a) may assist in drawing a conclusion as to why the person published the material. If something is obviously offensive, that may, in the circumstances, assist a conclusion that the act of publication was because of race etc. I agree entirely with the reasons of Carr J at [32] to [38] above for concluding, as his Honour does, that the link provided for by par 18C(1)(b) was satisfied here. In addition to the reasons given by Carr J for this conclusion, I would also refer to my conclusions expressed at [161] to [163] below as further underpinning my conclusion that par 18C(1)(b) was satisfied. Thus, even if, contrary to my view, the primary judge applied an inappropriate test to assess the par 18C(1)(b) question, that would make no difference because, for the above reasons, there was ample ground to find, as I would find, that the act was done because of race or ethnic origin. 155 I would only wish to add that if the connection of the act with race etc. involved in "because of" is looser than I have identified, a question might then arise as to whether the provision (par 18C(1)(b)) could reasonably be capable of being considered to be appropriate or adapted to implement the Convention. D The Imputation Question. 156 Embedded within the appellant's argument about par 18C(1)(b) was a contest (although initially the matter appeared to be conceded) as to whether imputations (c) and (d) referred to in [88] of the reasons of the primary judge were conveyed by the Document. These imputations were: (c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence; and (d) some Jewish people, for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed. 157 I think that these imputations arise. I refer in particular to the parts of the Document as set out in Carr J's reasons adjacent to the numbers '4' and '6' and the comments of Carr J in [32] to [38] and [45] of his Honour's reasons. 158 Thus, I would take no issue with the form of mandatory order or restraint in orders 2(a)(iii) C and D and 3(iii) C and D. No argument was directed independently to the form of the primary judge's orders. E The Good Faith Issue 159 I agree entirely with the reasons of Carr J that the contents of the Document, taken as a whole, do not establish that the publication was done reasonably and in good faith. 160 The primary judge did not restrict herself to the Document in assessing this question; her Honour looked at all the material before her. In my view, for the reasons I later give, her Honour was entitled to look at all the material to assist her to form a view about the question of good faith. 161 It is unnecessary and inappropriate, in the absence of full argument on the question, to explore the limits of the content of the words "reasonably and in good faith" in s 18D. At a minimum under, relevantly, pars 18D (b) or (c)(ii), whatever else is required, there should be an honest attempt to put forward a contribution embodying a genuine purpose, or genuine purpose in the public interest, or a fair comment by way of genuine belief. Carr J, correctly in my respectful view, has described parts of the document as "deliberately provocative and inflammatory" as "contrived to smear" Jews and as containing reference to "paint Jews in a bad light". His Honour, correctly in my respectful view, has said that the tenor of the Document was to offend and insult, amongst others, Jews. I would add that this, in the absence of any explanation, if any be available, appears to have been deliberate. It appears to me, from my reading of the Document, that the appellant was intending to offend and insult Jews. The paragraph marked '3' by Carr J in his reasons, in which Trotsky and Kaganovich are mentioned and the juxtaposition is made of what is referred to as the "Jewish-Bolshevik Holocaust" and the "Nazi-Jewish Holocaust", contains not merely the imputation that two senior Bolsheviks, who were or may have been Jewish, may be described as murderers, but also the imputation that Jews (as a group) have been murderers as well as victims in history. The phrase "Jewish-Bolshevik Holocaust" conveys that Jews as a group (as Bolsheviks also) have been responsible for perpetrating a "Holocaust" comparable to that ascribed in modern history to the Nazis. 162 Further, this part of the Document, by the identification of senior Bolsheviks as Jews and by the use of the phrase "Jewish-Bolshevik Holocaust", makes the associative connection of Communism with Jewry. This association was, as is too notorious to admit of debate, a virulent theme of National Socialism and its propaganda. I am prepared to infer (in the absence of any evidence from the respondent) that the appellant was aware of, and intended that this material would convey, this link. 163 Without any reference to further material and in the absence of explanation (if there be any), I conclude that the Document was designed and intended, amongst other things, to smear, hurt, offend, insult and humiliate Jews. I would draw these conclusions even leaving to one side my conclusions concerning the associative connection of Communism with Jewry referred to at [162] above. 164 On no conception of the phrase "good faith" could the Document be so characterised. 165 These inferences and conclusions, which I draw from the Document, especially that the appellant intended the reader to draw from the Document the association between Communism and Jewry, can be made all the more confidently when one has regard to some of the other material on the website for which the appellant was responsible and which was in evidence. One body of material, said to be written by someone called Selzer, is set out in detail on the website. It purports to be advice from a Mr Selzer to those running the Adelaide Institute. This material included the following: Various pieces of political advocacy published in your newsletter are perfectly clear and convincing – but only to those who have been already politicised and share your point of view, as well. Moreover, your potential audience is further limited to those who actually bother to read – and to subscribe, in the first place. You may have created a solid shield of facts, which could be put to good use in a political debate, if and when such debate is allowed to take place – but it won't be, not unless it can be deliberately provoked. But in order to provoke anything in the political arena, in addition to the 'shield of facts', you need a 'sword' to provide the cutting edge. Otherwise none of those facts will ever reach the public at large. … Of course, here in Australia, most of those fellows are too laid-back or ignorant or both to forge their own 'sword'. So if no one bothers to supply them with some sharp-edged material in the form of stickers or A4-size leaflets, then everyone loses out by default. Michael Brander puts out a very decent-looking tabloid, but it's more like Völkischer Beobachter than Der Stürmer. And it was Der Stürmer that carried out the bulk of the propaganda work in its time. In short, you need an A4 or A3 sheet with the sharpest and cleverest cartoons jumping off the pages, as it were, which should enable you to attack the enemy from the position of intellectual superiority, however low-brow may be this publication's outward appearance. Of course, in this banana monarchy with no First Amendment, 'normal' people such as yourselves cannot handle hot things like that. But you don't have to, anyhow. Skinheads, bikies and other pro-Australian persons with nothing to lose can do it for you. You only need supply them with a few pages of captivatingly boisterous material at a time. Whatever may be its exact form, this material must be, at a glance, so fascinating and so obviously brilliant as to produce in the reader an instant feeling of most pleasurable 'Schadenfreude' manifested by a lively outburst of self-gratifying laughter. This 'high' eventuating upon the sighting of the cartoon or upon comprehending of the caption is a concrete physiological reward consummated by the reader, which he may well be eager to share with others. And the more eager he is, the more photocopies he himself bothers to make, so much the further you material is propagated. Ideally, an excellent propaganda product ought to be able to spread itself like an airborne contagion. Why not have skinheads got up as kosher Jews loudly protesting at the entrance of any major bank: "We deposited $6 million in 1939 – and they say they don't remember us!" Or "Don't bank with Jew-Killers!" .. 166 The website then set out the appellant's comments on what was said to be the expression of Mr Selzer's views. The appellant stated that Mr Selzer's thoughts were "stimulating"; and the appellant continued: …However, Adelaide Institute'srole is not to peddle any form of ideology other than the 'objective' scientific method – which has already discredited, as liars and falsifiers, those whom Mr Selzer calls "the merchants of the 'Shmolocaust'". Interestingly, Mr Selzer, as a Jew, has himself objectified his own status in the following: [emphasis added] There then appeared the following verse, said to have been written by Mr Selzer: Kosher Confession We, the Jews, are the conscience of the world! We, the Jews, are absolutely innocent! There is no one more innocent than us, Jews! We perpetrated most of our murders by the hands of others! We only brought forth the homicidal ideology Which enveloped half the planet like a cloud of poison gas And killed of hundred times more than lousy six million! But we had nothing at all to do with it! And anyone who begs to differ Is an anti-Semite who wants to kill all Jews! [Emphasis added] The website then concluded on this subject matter by setting out the balance of what was said to be Mr Selzer's communication: Mr Selzer's communication ends with two quotations taken from James Murphy's 1939 translation of Hitler's Mein Kampf: By presenting this [Marxist] doctrine as part and parcel of just revindication of social rights, the Jew propagated that doctrine all the more effectively… For, under the cloak of purely social concepts there are hidden aims which are of Satanic character… This Marxist doctrine is an individual mixture of human reason and human absurdity; thought the combination is arranged in such a way that only the absurd part of it could ever be put into practice, but never the reasonable part of it. (p. 268) … As soon as the Jew is in possession of political power he drops the last few veils which have hitherto helped to conceal his features … In the course of a few years he endeavours to exterminate all those who represent the national intelligence. And by thus depriving the people of their natural intellectual leaders, he fits them for their fate as slaves under a lasting despotism… Russia furnishes the most terrible example of such a slavery. In that … the Jew killed or starved thirty millions of the people in a bout of savage fanaticism… so that a gang of Jewish literati and financial bandits should dominate over a great people (p 274). 167 It was submitted on behalf of the appellant, in reply, and without any elaboration, that the primary judge was not entitled to have recourse to the other publications on the website in evidence, including the material referred to at [165] and [166], in order to assist in judging the good faith of the respondent in publishing the Document. Presumably this was based on some notion of the inadmissibility of similar fact evidence. This exclusionary rule is now embodied within ss 97 and 98 of the Evidence Act 1995 (Cth). 168 No argument was directed to these sections, including whether or not they applied. I am not aware of whether any notice was given as contemplated by those sections. I assume not. I take it, however, that the appellant had ample notice of the evidence led by the applicant which revealed what was on the website at various times. No submission was put that he did not. The Court may, under s 100 of the Evidence Act, dispense with the notice provided for by ss 97 and 98. No argument took place as to the inapplicability of ss 97 and 98 dealing with the "tendency" and "coincidence" rules, and the admissibility of the other material on the website as circumstantial evidence of the appellant's state of mind: see generally, Forbes Similar Fact Evidence ch 10 especially pp 221-22 and 228-9 and Heydon Cross on Evidence (6th Ed) pp 601-604. 169 Dealing with the matter with the disadvantage of lack of argument to supplement bare assertion, I would conclude that ss 97 and 98 have nothing to do with the admissibility of the other material before her Honour on the good faith issue and that the other material was and is available, as circumstantial evidence, to assess the existing attitude or state of mind in the appellant akin to knowledge, and available to be considered in assessing good faith in relation to the Document. To the extent that I am wrong about ss 97 and 98, and given the placement of the evidence on affidavits before the hearing, I would conclude that there would have been ample, indeed overwhelming, grounds for the primary judge to dispense with the requirement of notices. 170 Whether or not her Honour erred in her approach to good faith (which in my view she did not) I would conclude, on my own reading of the Document, that not only was it not shown to be published in good faith, but that it was not published in good faith. My views are reinforced by (but do not depend on) reference to the other material before the primary judge to which I have referred and which, the evidence disclosed, was put on the website at some time by the appellant. 171 For the reasons above, I would grant leave to appeal and dismiss the appeal, with costs. I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop. Associate: Dated: 27 June 2003 Counsel for the Applicant and Appellant: Mr C. Maxwell QC Solicitor for the Applicant and Appellant: Sue Owens Counsel for the Respondent: Mr S Rothman SC and Mr D.D Knoll Solicitor for the Respondent: Geoffrey Edwards & Co Counsel Intervening: Mr D.M.J Bennett QC, Solicitor-General of the Commonwealth and Ms C Ronalds Solicitor Intervening: Australian Government Solicitor Date of Hearing: 19 May 2003 Date of Judgment: 27 June 2003