November 2003 page 61
RACE-HATRED OFFENCE: Full Federal Court upholds rejection of racial hatred on the internet
By DAVID D. KNOLL
David Knoll is a barrister at 9th Floor Selborne Chambers. He was junior counsel for Mr Jones in Töben v
Jones.
A
COMPLAINT BY MR JEREMY JONES that Frederick Töben, as director of The
Adelaide Institute, vilified the actions and the characteristics of Jews, in
part by denial of the Holocaust, was upheld in a recent decision by a full bench
of the Federal Court of Australia: Töben v Jones [2003] FCAFC
137.
Legislative
background
In 1994 the Racial Hatred Bill was
introduced into Commonwealth Parliament as a Bill to amend the Crimes Act
1914 and Racial Discrimination Act 1975.1 The Bill acted
on findings of the National Inquiry into Racist Violence and the Royal
Commission into Aboriginal Deaths in Custody. Its simple objective was to ensure
that no person in Australia had to live in fear because of his or her race,
colour or national origin.2 The Bill attracted significant
controversy, and eventually the criminal provisions were dropped.
The enacted provisions have
been the subject of some considerable litigation. See for example, Creek v
Cairns Post Pty Ltd (2001) 112 FCR 352; Jones v Scully [2002] FCA
1080; McGlade v Lightfoot [2002] FCA 1457; and Hagan v Trustees of the
Toowoomba Sports Ground Trust (2001) 105 FCR
56. At the time of his initial
complaint, Mr Jones was the Executive Vice-President of the Executive Council of
Australian Jewry, the peak body of Australian Jewish organisations.3
The Federal Court decision
affirmed the powers of Australian courts to make orders about the use of the
internet, provided important clarification of the scope of the Racial
Discrimination Act to protect against hatred and vilification, and affirmed
the constitutional validity of the legislation. It has positive implications for
Indigenous Australians and other ethnic minorities who are vilified by way of a
denial of their history.
What constitutes
racial hatred?
The key operative provision, s.18C of
the Racial Discrimination Act, utilises an effects test for outlawing
racial hatred.4 It implements in particular Article 4 of the
International Convention on the Elimination of All Forms of Racial
Discrimination.5 In its relevant part, this requires States to
“undertake to adopt immediate and positive measures designed to eradicate
all incitement to, or acts of, ... discrimination”. The range of
activities to be proscribed is set out as “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”.The Convention
was in part an international response to what has been described as an
“epidemic” of swastika-painting and other manifestations of
anti-Semitic hatred and prejudice in the northern hemisphere winter of
1959-60.6 In the 1960s, racial hatred was perceived as a particularly
vile form of racial discrimination. In one case heard in Norway a person was
convicted for distributing leaflets strongly attacking Norwegian policy on the
immigration of Islamic foreign workers and the religion of Islam. The Court
ruled that the leaflets exposed Islamic foreign workers to hatred and contempt
and, unless the attacks were punished, that minority group would not receive the
protection intended by the law. The conviction was upheld on appeal.7
Ironically, it is a resurgence of anti-Semitic incidents in Europe, and sadly,
in Australia, that has brought the Convention back into the limelight.
Expressions of hatred for Jews that were considered taboo are returning. Today,
the use of the internet to vilify racial and ethnic groups causes harm
internationally.
Holocaust denial as a
form of racial
hatred
In her article in the first issue of
the Australian Journal of Human Rights entitled: “Hate Vilification
Legislation and Freedom of Expression – Where is the
Balance?”,8 Professor Kathleen Mahoney notes the following:
“In recent years, racial hatred has evolved from words to action in ways
in which the Western world has not seen since World War II. ... Some forms of
hate propaganda are more pernicious than others. Holocaust denial is especially
pernicious because for survivors of the Holocaust, it is the essence of cruelty.
It not only denies the harm done to them and belittles the enormous,
indescribable pain they suffered and still suffer to this day, for those that
were murdered, it defames their
deaths”.9Professor
Mahoney concludes that denial of the Holocaust goes beyond Jewish interests, but
is rather a human rights concern because it undermines efforts to learn from
history. She also makes the argument that free speech is enhanced when
vulnerable groups are protected from serious harm through racial hate
speech.10
The decision at first
instance
Despite many adjournments, Töben
chose not to file a defence or any affidavits, and Branson J, at first instance,
determined the matter on an application made by Jones for summary
judgment.11 Her Honour identified two key issues.
First, whether the publication
of the above material, or any of it, “is reasonably likely, in all of the
circumstances, to offend, insult, humiliate or intimidate” a Jewish
Australian or a group of Jewish Australians: s.18C(1)(a). Secondly whether the
publication of the above material was done because of the ethnic origin of
Jewish Australians:
s.18C(1)(b).12 The
findings on two preliminary issues were important also. First, her Honour had no
difficulty in following earlier Federal Court decisions in finding that Jews
constituted a group of people with a common “ethnic origin” within
the meaning of s.18C of the RDA.13 Second, Branson J found that a
non-password-protected website was a public, not private,
communication.14 Her
Honour’s substantive orders were broad and ordered removal from the
website of material which conveyed imputations that “there is serious
doubt that the Holocaust occurred, it is unlikely that there were homicidal gas
chambers at Auschwitz, Jewish people who are offended by and challenge Holocaust
denial are of limited intelligence, and 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”.
Defining the words
‘offend, insult, humiliate or intimidate’
Justice Branson had little difficulty
in finding that the material on the Adelaide Institute website was reasonably
likely to engender feelings of hurt and pain in the living survivors of the
Holocaust and that “it is more probable than not that the material would
engender in Jewish Australians a sense of being treated contemptuously,
disrespectfully and offensively”.15 Her Honour also found that
the website publication “would cause damage to the pride and
self-respect of vulnerable members of the Australian Jewish community, such as,
for example, the young and the impressionable”.16 The material
thus met the statutory requirement that it “offend, insult, humiliate or
intimidate”.
An objective test for
causation
That such hurt is felt is
insufficient of itself to make conduct unlawful. As Drummond J confirmed in
Hagan v Trustees of the Toowoomba Sports Ground Trust, an
“objective test must be applied in determining whether the act complained
of has the necessary offensive, insulting, humiliating or intimidatory quality
for it to be within the
sub-section”.17As
to what degree of likelihood is required, her Honour adopted the test in
Tilmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’
Union18 requiring that the necessary offensive, insulting,
humiliating or intimidatory quality be more probable than not to flow from the
challenged website publication. Guidance was taken from the law of defamation,
an approach previously adopted in a case brought by Mr Jones against Olga
Scully, a Tasmanian woman who had made a practice of vilifying Holocaust
survivors and other members of the Tasmanian Jewish community.19 The
Court determined that the act of publication was “because” of Jewish
ethnic origin, applying the statutory test in s.18B which requires only that
“one of the reasons” for an act be “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)”.20
The
appeal
Frederick Töben appealed the
decision, raising three quite fundamental questions about the validity and scope
of operation of the Act. He challenged the causation test adopted by Branson J;
suggested that the respondent’s case did not demonstrate that the relevant
act of publication was not 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 exemptions in
s.18D(b) of the Act; and that Part IIA of the Act was constitutionally
invalid.21The
Attorney-General of the Commonwealth intervened in the appeal, and made
submissions as to the validity of Part IIA and certain connected questions of
statutory construction. On 27
June 2003 Justices Carr, Kiefel and Allsop rendered separate judgments all
dismissing the appeal.
Casual
connection
On appeal, Töben had argued that
for there to be an unlawful act “because of race”, these words
should be read as “because of hatred of race” or that the act
be able to be characterised as an expression of racial hatred.22 But
the insurmountable difficulty for Töben was that the object of the
Convention is to eliminate racial discrimination in all its forms. The
effects test applied regardless of the subjective actuation of the
perpetrator.23Carr J
was particularly unimpressed by material on the website which denied that
millions had been murdered at Auschwitz.24 Nor was his Honour
impressed by references to Jews as “murderers”, “intellectual
midgets but materialistic giants”, or as “those who have their snout
in the trough [of] ‘the Holocaust racket’”.25 His
Honour, with Allsop J in agreement, found the key document, upon which Branson J
had focussed her judgment, “deliberately provocative and
inflammatory,26 as “contrived to smear” Jews and as
containing reference to “paint Jews in a bad light”.27
Allsop J further found that Töben “was intending to offend and insult
Jews”. Thus the attack on
Branson J’s approach to the issue of causation was
unsuccessful.
A genuine interest in
the historical truth
Töben submitted that he had and
was expressing a genuine interest in the historical truth about the Holocaust,
and that he was motivated by defamation of the German people by those making
assertions about the numbers of Jewish people who were murdered during the
Holocaust. All three Justices rejected this argument, concluding that
Töben’s real purpose was to “disparage Jewish
people”.28In
an effort to create a balance between the principle of free speech and the need
to protect minorities from racial hatred, the Act provides for a broad range of
exempt conduct. Section 18D exempts hate speech which occurs: “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”. Among other exemptions, it also preserves the right
to make or publish “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”. These important exemptions encapsulate the
legislative intent to maintain freedom of speech while protecting minorities in
our society from racial hatred.
As Mr Töben had filed no
defence, Branson J found that he could not rely on any of the exemptions. In
McGlade v Lightfoot,29 Carr J had noted that Hely J in
Jones v Scully assumed that the onus of proof with respect to an
exemption provided for by s.18D rested on the respondent. The Full Court
rejected Töben’s appeal submission that: “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”,30 and
found nothing which could bring the website material within
s.18D.
The challenge to
constitutional validity
The appellant argued that s.18C(1) of
the Racial Discrimination Act 1975 is beyond the limits of the external
affairs power. The High Court
has adopted a “reasonable proportionality” test for determining
whether a law implementing an external affair in the form of a treaty validly
does so.31 The
premise has to be the Commonwealth Government’s powers are to be
interpreted broadly.32 The test is not whether the law is reasonable,
necessary or desirable, but rather whether the connection between the purpose of
the law and the external affair is more than merely “tenuous, vague,
fanciful or remote”.33
An inherent problem
with the proportionality
test
That greater deference should be
given when applying the characterisation test as opposed to testing a law
against a constitutional guarantee derives its source from the judgment of Mason
CJ in Cunliffe v Commonwealth.34 Jeremy Kirk, in his paper,
“Constitutional Guarantees, Characterisation and the Concept of
Proportionality”, goes so far as to suggest that the simplest resolution
“would be to state that the concept of proportionality has no part to play
in
characterisation”.35There
is an inherent problem with the proportionality test. Once a law is identified
as relating to an external affair, and is not challenged as otherwise than being
for the peace, order and good government of the Commonwealth, any test of degree
creates a limitation on the extent to which legislative power can be exercised
for such peace, order and good government, and necessarily involves the Court in
a qualitative assessment of what constitutes peace, order and good government.
And that has dangerous implications for the separation of powers doctrine.
Justice Dawson emphasised precisely that point in his judgments in Nationwide
News Pty Ltd v
Wills,36 Cunliffe
v Commonwealth37 and Leask v
Commonwealth.38 These
considerations did not need to be addressed by any of the Justices in
Töben v Jones, and remain for another occasion.
Carr J, with whom Allsop J
agreed, specifically found that in amending the Racial Discrimination
Act, Parliament chose not to fully implement Article 4.39 His
Honour accepted the submission of the Solicitor-General and ruled that the
Racial Hatred Act was valid because it “is clearly consistent with
the provisions of the Convention and the ICCPR [International Covenant on Civil
and Political Rights] 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”.40 That the Act only partially implemented the
Convention was no barrier to validity.41
Conclusion
The decision is important for a
number of reasons. It confirms the validity of what is undoubtedly important
human rights legislation, and entrenches Justice Kiefel’s practicable
causation test in Creek v Cairns Post Pty Ltd42 which enables
private individuals and representatives of ethnic groups to approach the Courts
for protection on sensible terms.
In recognising that hate speech
affects entire segments of Australian society, it affirms the protection from
racial vilification of minority groups and acknowledges that in certain
circumstances the falsification of history is especially pernicious and can
amount to incitement to racial hatred. Branson J expressly noted the
“significant symbolic value in the public denunciation of the actions that
are the subject of this complaint. Similarly, there is the potential educative
and ultimately larger preventative benefit that can be achieved by open
discussion of the principles enunciated in this or any Tribunal
decision”.43 One might hope that the larger preventative
benefit is
realised.
Endnotes
1. An earlier version had been
introduced in 1992, but lapsed with the 1993 federal election. The civil
provisions were new in their terms and structure, and were different from the
various anti-vilfication laws in State and Territory Acts, that is, the
Anti-Discrimination Act 1977 NSW, ss.20C and 20D; Criminal Code
1913 WA, ss.77 – 80; Wrongs Act 1936 SA, s.37;
Anti-Discrimination Act 1991 Qld, ss.124A, 131A; Racial and Religious
Tolerance Act 2001 Vic, ss.7 – 12 and 24
-25.
2. Attorney-General
Lavarch, in the second reading speech, drew attention to the increase in racial
violence in the 1990s, public gatherings of ethnic communities subject to
violent disruption, seven arson attacks on synagogues in less than four years
and teenage gangs attacking Australians of Asian background. Racial Hatred Bill
1994, Explanatory Memorandum, the Parliament of the Commonwealth of Australia.
3. Mr Jones is currently its
President.
4. Meron, “The
Meaning and Reach of the International Convention on the Elimination of All
Forms of Racial Discrimination”, (1985) 79 Am. J. Int’l L.
283 at 303; Racial Hatred Bill 1994: Second Reading, 15 November 1994, House
Hansard p.3336ff.
5.
Australian Treaty Series 1975 No
40.
6. Schwelb, “The
International Convention on the Elimination of all forms of Racial
Discrimination”, (1966) 15 International and Comparative Law Quarterly
996, 997ff.
7. See Meron
supra note 4 at 291, 297,
304.
8. (1994) 1 AJHR 353-369,
www.austlii.edu.au/au/journals/AJHR/1994/1.html.
9.
Ibid at p.2 of 13.
10. Ibid at
p.4 of 13. In a media release issued on 27 June 2003, Mr Jones echoed Professor
Mahoney’s approach, hailing the Full Federal Court decision as “a
significant victory for all those concerned with human rights in
Australia”.
www.ecaj.org.au/media/270603.htm.
11.
Branson J did not accept that Mr Jones had proved the publication of all of the
articles or papers identified in the Statement of Claim, but focussed on one in
particular as sufficient to make findings against
Töben.
12. [2002] FCA 1150
at [82].
13. Jones v Scully
[2002] FCA 1080; per Hely J at [110]-[113]; Miller v Wertheim [2002]
FCAFC 156 at [14].
14. [2002]
FCA 1150 at [73]-[75]. This approach has been followed in May 2003 by Allsop J
in Kailash Center for Personal Development Inc v Yoga Magik Pty Limited
[2003] FCA 536 (30 May
2003).
15. [2002] FCA 1150 at
[93].
16. [2002] FCA 1150 at
[96].
17. [2000] FCA 1615 at
[15]; Also see Creek v Cairns Post Pty Ltd [2001] FCA 1007 at
[12].
18. (1979) 42 FLR
331.
19. Ms Scully had
distributed anti-Semitic literature in letterboxes in Launceston, Tasmania, and
at a public market in Launceston. Jones v Scully [2002] FCA 1080 (Hely
J).
20. [2002] FCA 1150 at [99];
Jones v Scully [2002] FCA 1080 at
[116]-[117].
21. Allsop J noted
that 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.” [2003] FCAFC 137 at
[147].
22. [2003] FCAFC 137 at
[133].
23. [2003] FCAFC 137 at
[136] per Allsop J
24. [2003]
FCAFC 137 at [33]
25. [2003]
FCAFC 137 at [36]
26. [2003]
FCAFC 137 at [45]
27. [2003]
FCAFC 137 at [161]
28. [2003]
FCAFC 137 at [77]. Allsop J rejected the submission of genuine interest and
noted that material which is relied upon to demonstrate that objectively, a
publication satisfies s.18C(1)(a) “may assist in drawing a conclusion as
to why the person published the material.” [2003] FCAFC 137 at
[154].
29. [2002] FCA 1457 at
[68] and [69]; Accord, Vines v Djordjevitch (1955) 91 CLR 512 at
519-520
30. [2003] FCAFC 137 at
[40].
31. There are four key
High Court decisions on point. They are Koowarta v Bjelke-Peterson,
(1982) 153 CLR 168, Commonwealth v Tasmania, (1983) 158 CLR 1 (the Dams
case), Richardson v Forestry Commission of Tasmania (1988) 164 CLR 261
and Queensland v Commonwealth (1989) 167 CLR
232.
32. See Jumbunna Coal
Mine NL v Victoria Coal Miners Association (1999) 6 CLR 309, 367-68; R v
Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297,
313-14; New South Wales v Commonwealth (1990) 169 CLR 482, 498 (Mason CJ,
Brennan, Dawson, Toohey, Gaudron and McHugh JJ), 506 (Deane J).
33. R v Sharkey (1949)
79 CLR 121, 151. Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 338,
347, 354; Cunliffe v Comonwealth, 182 CLR at 295, 315, 319,
321.
34. 182 CLR 272, 297-98,
300; also see Leask v Commonwealth (1996) 187 CLR 579 at 606 per Dawson
J.
35. Kirk,
“Constitutional Guarantees, Characterisation and the Concept of
Proportionality”, (1997) 21 Melb. U. L. Rev. 1 at 41.
36. (1992) 177 CLR 1,
85-89.
37. (1994) 182 CLR 272,
354-55.
38. (1996) 140 ALR 1,
13-19.
39. Töben v
Jones [2003] FCAFC 137 at
[18].
40. [2003] FCAFC 137 at
[19]-[20]; See Allsop J at [142]; State of Victoria v Commonwealth of
Australia (The Industrial Relations Case) (1996). 187 CLR 416 at 489;
State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329,
354.
41. State of Victoria v
Commonwealth of Australia (The Industrial Relations Case) (1996) 187 CLR 416
at 489.
42. (2001) 112 FCR
352.
43. Her Honour drew upon
the decision of the Canadian Human Rights Tribunal in another famous Holocaust
denial case, Citron v Zündel Citron v Zündel (No. 4) (2002), 41
CHRRD/274 (CHRT). |
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