• Specific Year
    Any

Meagher, Dan --- "So Far So Good?: A Critical Evaluation of Racial Vilification Laws in Australia" [2004] FedLawRw 10; (2004) 32(2) Federal Law Review 225

[*] School of Law, Deakin University. My thanks are due to Professor George Williams and the anonymous referees for providing valuable comments and suggestions on earlier drafts of this article. I would also like to thank Lawrence McNamara for assisting with the defamation-related issues and the Gilbert and Tobin Centre of Public Law for providing such a friendly and supportive environment in which to write this article.

[1] Martin Luther King, 'An Address Before the National Press Club' in James Melville Washington (ed), A Testament of Hope: The Essential Writings of Martin Luther King Jr (1986) 99, 100.

[2] For a detailed account of using counter-speech as a method for addressing race hate speech see Katharine Gelber, Speaking Back: The Free Speech Versus Hate Speech Debate (2002).

[3] Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 3–4 where the author writes that

[b]ecause racial vilification laws are a feature of the Australian legal system, scholarly analysis need not be limited to the conventional threshold question regarding the philosophical compatibility of racial vilification legislation with philosophical, political or legal commitments to free speech. Indeed, the existence of racial vilification laws in Australia demands that additional lines of research inquiry be pursued.

[4] The three reports were: Human Rights and Equal Opportunity Commission, Racist Violence: Report of National Inquiry into Racist Violence in Australia (1991), Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992), Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997). A selection of Critical Race Theory writings are contained in Mari Matsuda, Charles Lawrence, Richard Delgado and Kimberle Crenshaw, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993).

[5] Melinda Jones, 'Empowering Victims of Racial Hatred by Outlawing Spirit-Murder' [1994] AUJlHRights 19; (1994) 1 Australian Journal of Human Rights 299, 302.

[6] Luke McNamara, 'The Merits of Racial Hatred Laws: Beyond Free Speech' [1995] GriffLawRw 3; (1995) 4 Griffith Law Review 29, 29.

[7] Kathleen Mahoney, 'Hate Vilification Legislation and Freedom of Expression: Where is the Balance?' [1994] AUJlHRights 21; (1994) 1 Australian Journal of Human Rights 353, 369.

[8] In accepting that existing racial vilification laws are a fixture on the Australian legal landscape and taking them as the starting point of my analysis, I am not suggesting that philosophical issues are now foreclosed for discussion. On the contrary, free speech considerations, for example, are a continuing focus of this article. This recognises the inextricable link and possible conflict between racial vilification laws and speech and communication interests and the ongoing dialogue that must necessarily occur between them.

[9] Criminal Code (WA) ss 76–80; Racial Vilification Act 1996 (SA) ss 4, 6; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) ss 65–7; Anti-Discrimination Act 1991 (Qld) ss 124A, 131A; Racial and Religious Tolerance Act 2001 (Vic) ss 712, 245; Anti-Discrimination Act 1998 (Tas) ss 17, 19. For a detailed account of the different types of regulatory mechanisms implemented in Australian racial vilification laws see McNamara, above n 3.

[10] The Australian holocaust-denial cases are examined below in Part III(c)(2)(ii).

[11] In Lipshutz v Melbourne Underground Film Festival (Unreported, Victorian Civil and Administrative Tribunal, Higgins J, 7 July 2003) the applicant unsuccessfully sought an injunction to prevent the screening of the David Irving documentary The Search for Truth in History. However, the Melbourne Underground Film Festival chose not to screen the film after protests from the Jewish and wider community.

[12] At the time of writing Judge Michael Higgins of the Victorian Civil and Administrative Tribunal was hearing Islamic Council of Victoria v Catch the Fire Ministries Inc. The matter involves members of a conservative Christian group at a seminar describing Muslims as rapists and terrorists: see Barney Zwatrz, 'Group Wants Vilification Law Axed', The Age (Melbourne) 16 October 2003, 6. See further William Jonas, 'Listen — National Consultations on Eliminating Prejudice against Arab and Muslim Australians' (Speech delivered at the launch of the Isma Project, Sydney, 21 March 2003); John Lyons, 'Terror Target no 1: the Jewish Community', Channel Nine Sunday Program, 7 September 2003, <http://sunday.ninemsn.com.au/sunday/cover_stories/transcript_1376.asp> at 22 June 2004.

[13] Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37(1); Discrimination Act 1991 (ACT) s 66(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s 55.

[14] Indeterminacy occurs in a number of areas including, but not limited to, the law of obscenity and blasphemy, the scope of the implied constitutional right to freedom of political communication in Australia, what constitutes jurisdictional error in administrative law, the law of incitement and sedition and even the concept of the reasonable person so central to the law of torts and aspects of the criminal law.

[15] Timothy Endicott, 'The Impossibility of the Rule of Law' (1999) 19 Oxford Journal of Legal Studies 1, 4–6 where the author gives the example of definitions of offences of violence in the criminal law and torts.

[16] Ibid 7–8 where the author argues for example that putting a precise time limit on criminal prosecutions would increase precision but also increase arbitrariness.

[17] Joseph Raz, The Authority of Law (1979) 214 cited in Endicott, above n 15, 2.

[18] See below Part III '"Free Speech/Public Interest Defences" under the RDA and State and Territory Racial Vilification Laws'.

[19] On this point see Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (1994) 357–8 and Justice Michael McHugh, 'The Growth of Legislation and Litigation' (1995) 69 Australian Law Journal 37, 40. For a detailed discussion on this aspect of the rule of law see Geoffrey de Q Walker, The Rule of Law: Foundation of Constitutional Democracy (1988) 25–7. But see Ronald Dworkin, Political Judges and the Rule of Law (1978) 261–2 where the author outlines a substantive, 'rights' conception of the rule of law in contrast to a more 'rule-book' account. My above analysis is probably consistent with the 'rule-book' conception of the rule of law.

[20] Antonin Scalia, 'The Rule of Law as a Law of Rules' (1989) 56 University of Chicago Law Review 1175, 1176.

[21] See Endicott, above n 15, 17–18 for an argument that '[t]here is no coherent way to characterize the rule of law as an ideal that is intrinsically opposed to discretion'. But see Ronald Dworkin, Taking Rights Seriously (1977) 81 where the author rejects the positivist use of discretion to resolve hard cases and argues that even hard cases have a 'right' outcome. On the nature of judicial discretion generally see Aharon Barak, Judicial Discretion (1987).

[22] For an account of this argument see Scalia, above n 20, 1176.

[23] Tom Campbell, 'Democracy, Human Rights and Positive Law' [1994] SydLawRw 16; (1994) 16 Sydney Law Review 195, 196.

[24] Tom Campbell, 'Democratic Aspects of Ethical Positivism' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 3, 4.

[25] See Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 137–8 (Mason CJ); Theophanous v Herald and Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104, 176 (Deane J); Leeth v Commonwealth (1992) 174 CLR 455, 484 (Deane and Toohey JJ); McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140, 230 (McHugh J); Kirmani v Captain Cook Cruises Pty Ltd (No 1) [1985] HCA 8; (1985) 159 CLR 351, 383 (Murphy J); Chief Justice Murray Gleeson, The Rule of Law and the Constitution (2000) 6. But see Simon Evans, 'Why is the Constitution Binding? Authority, Obligation and the Role of the People' (2004) 24 Adelaide Law Review (forthcoming).

[26] Walker, above n 19, 25 (footnote omitted).

[27] For further discussion on this point see Ian Freckelton, 'Censorship and Vilification Legislation' [1994] AUJlHRights 20; (1994) 1 Australian Journal of Human Rights 327, 340–3.

[28] On this point see McHugh, above n 19, 40.

[29] See McNamara, above n 3, 9 where the author noted but did not explore the problem of defining racial vilification.

[30] See also Sally Reid and Russell Smith, Regulating Racial Hatred, Paper no 79, Australian Institute of Criminology Trends and Issues in Crime and Criminal Justice Series (1998) 5 where the authors suggest that 'for the purpose of clarity and to prevent an excessive number of complaints being lodged (particularly in view of the reduction in funding to HREOC), it may be preferable for a higher threshold to be provided for in the legislation itself.'

[31] See below Part II(a)(1) 'Elevating the s 18C harm threshold'.

[32] See below Part II(b) 'The causal connection: When is an act done because of the race, colour or national or ethnic origin of another person or group'.

[33] McNamara, above n 3, 82.

[34] For a detailed discussion on the legislative history of the RHB see ibid 40–9.

[35] See below Part III '"Free Speech/Public Interest Defences" under the RDA and State and Territory Racial Vilification Laws'.

[36] Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) 1 (emphasis added).

[37] Ibid 9 (emphasis added).

[38] Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1994, 3336–7, 3342 (Michael Lavarch, Attorney-General).

[39] Feghaly v Oldfield [2000] EOC 93–090, 74346 ('Feghaly').

[40] This is the s 20C objective standard and indeed in the former case the conduct was held to offend s 20C. The Lehmann incident resulted in match referee Clive Lloyd reporting him under the International Cricket Council's Code of Conduct and the imposition of a five match ban from one day internationals. No s 20C complaint was, however, lodged by the victim.

[41] [2002] FCA 1080; (2002) 120 FCR 243, 269–70 [103] ('Scully').

[42] [1972] UKHL 6; [1972] 2 All ER 1297.

[43] In addition to the summary offence created by s 5 for conduct which is or likely to cause harassment, alarm or distress, the Public Order Act 1986 (UK) s 64 also contains another summary offence for conduct which is or likely to cause fear or provocation of violence and six criminal offences (ss 18–23) which proscribe conduct intended or likely to stir up racial hatred. A common threshold component of each of these offences is the need for conduct that is 'threatening, abusive or insulting' (emphasis added). See further J C Smith and Brian Hogan, Criminal Law (7th ed, 1992) 757–61 and Anne Twomey, 'Laws Against Incitement to Racial Hatred in the United Kingdom' [1994] AUJlHRights 15; (1994) 1 Australian Journal of Human Rights 235.

[44] Brutus v Cozens [1972] UKHL 6; [1972] 2 All ER 1297, 1300 (emphasis added).

[45] Acts Interpretation Act 1901 (Cth) s 15AB. But see McNamara, above n 3, 82.

[46] McNamara, above n 3, 82.

[47] Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23 (emphasis added) ('Bryant').

[48] [1998] HREOCA 24 (Commissioner Innes,) ('Shron').

[49] [1998] HREOCA 26 (Commissioner McEvoy) ('De La Mare').

[50] [2001] FCA 1007; (2001) 112 FCR 352 (,Kiefel J) ('Cairns Post').

[51] Cairns Post (2001) 112 FCR 352, 356 [16]; Scully (2002) 120 FCR 243, 269 [102].

[52] See also the comments in McLeod v Power [2003] FMCA 2; (2003) 173 FLR 31 (Brown FM) [67] ('McLeod'). But see Cairns Post (2001) 112 FCR 352, 357 [18] where Kiefel J stated that '[w]hilst one may accept that hatred of other races is an evil spoken of in the statute, I do not consider that the heading creates a separate test — one which requires the behaviour to be shown as having its basis in actual hatred of race.'

[53] [2002] FCA 1150 (Branson J) ('Toben No 1').

[54] Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1 ('Toben No 2').

[55] Toben No 1 [2002] FCA 1150 [92].

[56] Ibid where Branson J stated that

[i]n Creek v Cairns Post Pty Ltd Kiefel J observed: 'To offend, insult, humiliate or intimidate' are profound and serious effects, not to be likened to mere slights." I do not understand her Honour to have intended by the above observation to imply that a gloss should be placed on the ordinary meaning of the words that Parliament chose to include in s 18C of the RDA.

[57] Ibid (emphasis added).

[58] Acts Interpretation Act 1901 (Cth) s 15AA. In R v L (1994) 122 ALR 464, 468–9 Burchett, Miles and Ryan JJ stated that '[t]he requirement of s 15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature.'

[59] Toben No 1 [2002] FCA 1150 [92].

[60] In Shron [1998] HREOCA 24, Commissioner Innes held that a Telstra phone card containing 'a picture of a World War II German fighter plane with a Nazi swastika on its tail' was not '"reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate" the complainant or some or all of a group whose origin is Jewish.'

[61] De La Mare [1998] HREOCA 26 concerned a television program called 'Darkest Austria' which satirised the content and stereotypes of ethnographic documentaries that examine African culture and traditions. The program amongst other things discussed 'expeditions' to 'the heart of Europe' and 'the natives' (Austrian men) love of 'magic paper' (money) and the ritual of 'drinking festivals' and the 'state of trance' (drunkenness) they induced. Commissioner McEvoy at [5.2.2] held that 'it [was] not reasonably likely that the broadcast of the film Darkest Austria would have offended, insulted, humiliated or intimidated any person or group of persons.'

[62] Rugema v J Gadsten Pty Ltd [1997] EOC 92–887 ('Rugema'); Combined Housing Organisation Ltd v Hanson [1997] HREOCA 58 ('Combined Housing'); Feghaly [2000] EOC 93–090; McMahon v Bowman [2000] FMCA 3 (Raphael FM) ('McMahon'); Horman v Distribution Group [2001] FMCA 52 (Raphael FM) ('Horman').

[63] This may explain the determinations in Rugema and McMahon where the relevant statements involved were respectively you 'lazy black bastard' uttered by an employer to an employee and 'get off my property you black bastard' from one neighbour to another.

[64] [1997] HREOCA 58.

[65] Ibid 2 (emphasis added).

[66] Ibid. For a detailed critique of Combined Housing see Lawrence McNamara, 'The Things You Need: Racial Hatred, Pauline Hanson and the Limits of the Law' [1998] SCULawRw 6; (1998) 2 Southern Cross University Law Review 92.

[67] A similar criticism can be levelled at the decision in Horman [2001] FMCA 52. In that case, Raphael FM held that a number of racial epithets directed at an employee breached s 18C without addressing the respondent's argument that they were made in jest and with the consent of the complainant.

[68] Scalia, above n 20, 1176.

[69] Ibid 1180–1. It should be noted that a bright line cannot be drawn between law and fact in many instances. But the use of 'in all the circumstances' in s 18C makes clear that liability will turn on a factual determination not the application of an existing legal standard to those facts. In other words, in this situation the factual determination is the law not the precondition for the application of the law.

[70] Ibid 1176.

[71] Ibid 1182.

[72] RDA s 18C(1)(a) (emphasis added).

[73] Scalia, above n 20, 1181.

[74] Ibid.

[75] McNamara, above n 3, 88.

[76]/a> See, eg, Bryant [1997] HREOCA 23 (President Wilson); Shron [1998] HREOCA 24 (Commissioner Innes); Cairns Post (2001) 112 FCR 352, 356–7 [16] (Kiefel J); Corunna v West Australian Newspapers Ltd (2001) EOC 93–146, 75468 ('Corunna'); McLeod (2003) 173 FLR 31 [65] (Brown FM); Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 [16] (Drummond J) ('Hagan'). But see De La Mare [1998] HREOCA 26 [5.2.2] where Commissioner McEvoy stated that the relevant test was 'whether a reasonable person in all the circumstances would be likely to have been offended, insulted, humiliated or intimidated.'

[77] Hagan [2000] FCA 1615 (Drummond J).

[78] Ibid [10][13].

[79] Ibid [31] (emphasis added).

[80] For detailed discussion of Hagan see Ernst Willheim, 'Australia's Racial Vilification Laws Found Wanting? The "Nigger Brown" Saga: HREOC, the Federal Court, the High Court and the Committee on the Elimination of Racial Discrimination' (Speech delivered at the International Law/Public Law Seminar, Canberra, 5 August 2003).

[81] Scalia, above n 20, 1181.

[82] Korczak v Commonwealth (Unreported, Human Rights and Equal Opportunity Commission, Commissioner Innes, 16 December 1999) ('Korczak'); Walsh v Hanson (Unreported, Human Rights and Equal Opportunity Commission, Commissioner Nader, 2 March 2000) ('Hanson'); Cairns Post [2001] FCA 1007; (2001) 112 FCR 352 (Kiefel J); McLeod [2003] FMCA 2; (2003) 173 FLR 31 (Brown FM).

[83] George Merritt (ed), Pauline Hanson — The Truth: on Asian Immigration, the Aboriginal Question, the Gun Debate and the Future of Australia (1997).

[84] Hanson (Unreported, Human Rights and Equal Opportunity Commission, Commissioner Nader, 2 March 2000) 23.

[85] Ibid 24.

[86] Ibid 4–7.

[87] Ibid 28 (emphasis in original).

[88] Korczak (Unreported, Human Rights and Equal Opportunity Commission, Commissioner Innes, 16 December 1999) 30–1.

[89] Ibid.

[90] Commissioner Innes did, however, expressly acknowledge that race need only be one reason for the respondent's act: ibid 30.

[91] See, eg, the matters of Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1 and Scully [2002] FCA 1080; (2002) 120 FCR 243 (Hely J) that involved the publication of vicious anti-Semitic propaganda on the internet and in a pamphlet respectively. It could not be reasonably argued that race or ethnicity was not a least a reason for the conduct in these cases.

[92] [2003] FCAFC 137; (2003) 199 ALR 1.

[93] [2002] FCA 1080; (2002) 120 FCR 243 (Hely J).

[94] It included that Jews 'have their snout in the trough ... called, "The Holocaust Racket"': Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1, 7 (Carr J); and that 'the philosophy and teachings and practice of Jews ... promotes ... paedophilia ... [and] is worse than a satanic cult': Scully (2002) 120 FCR 243, 248 [46].

[95] For example, in Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1, 18 (Allsop J), the appellant argued that he was motivated by the search for historical truth not a desire to convey a message about Jews. See also Scully (2002) 120 FCR 243, 273 [115].

[96] In Korczak (Unreported, Human Rights and Equal Opportunity Commission, Commissioner Innes, 16 December 1999) 30 Commissioner Innes stated that 'an allegation of racial discrimination is an extremely serious one and I must have sufficient evidence before me of the appropriate nexus between the conduct and the complainant's race before I can make a finding that race discrimination has occurred.' On this point see above, Part II(a)(1) 'Elevating the s 18C harm threshold.'

[97] For a more detailed discussion on this point see McNamara, above n 3, 43–9, 127–30, 234–7, 272–9, 304–7.

[98] On the similarities between defamation defences and those available under Australian racial vilification laws see Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 204–10.

[99] Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37(1); Discrimination Act 1991 (ACT) s 66(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s 55. In each of these laws the defences need only be considered once a decision-maker determines that the impugned conduct has in fact crossed the relevant harm threshold. In some cases (De La Mare [1998] HREOCA 26 [5.2.2] (Commissioner McEvoy); Bryl v Nowra [1999] HREOCA 11 [4.3]–[5] (Commissioner Johnston) ('Bryl'); Hanson (Unreported, Human Rights and Equal Opportunity Commission, Commissioner Nader, 2 March 2000) 25–9) the decision-makers have examined the defences without making this logically prior holding. On this point see McNamara, above n 3, 96–9. As earlier noted, this clearly goes against the order logically mandated by the text and structure of the relevant laws.

[100] Criminal Code (WA) ss 77–80.

[101] For a discussion on the relationship between the implied constitutional right to freedom of political communication and the inclusion of the 'free speech/public interest defences' see below Part III(b) 'The impact of the free speech cases on the content of the racial vilification defences.'

[102] This reflects the common distinction in content between criminal laws and human rights laws. The former is determined in courts, primarily punitive, concerned with more serious conduct and therefore unlikely to provide a defence(s) on public interest grounds. The latter is designed to promote and secure human rights through a variety of non-criminal and often non-judicial measures such as private conciliations, public inquiries and administrative orders to desist from racially offensive conduct. Human rights law also seeks to strike an appropriate balance between a range of different rights. This explains why an act of racial vilification may still be protected on 'free speech/public interest grounds'.

[103] Unlike the racial vilification laws in New South Wales, the Australian Capital Territory, South Australia, Queensland and Tasmania, the provisions in the Racial and Religious Tolerance Act 2001 (Vic) do not protect conduct that is absolutely privileged under defamation law. This is of no great practical import as it is unlikely that racist conduct which attracts absolute privilege could then be the subject of a complaint under the relevant racial vilification provisions in the absence of express legislative sanction.

[104] See Melinda Jones, 'The Legal Response: Dealing with Hatred — a User's Guide' in Chris Cunneen, David Fraser and Stephen Tomsen (eds), Faces of Hate: Hate Crime in Australia (1997) 214, 218–19; Freckelton, above n 27, 327, 349–50; Tamsin Solomon, 'Problems in Drafting Legislation Against Racist Activities' [1994] AUJlHRights 17; (1994) 1 Australian Journal of Human Rights 265, 276–7; Kelly-Anne Collins and Karen Sampford, Laws Against Inciting Racial or Religious Vilification in Queensland and Australia: The Anti-Discrimination Bill 2001, Research Bulletin No 1/01 (2001) 18–19. But see Russell Blackford, 'Free Speech and Hate Speech' (2001) 45 Quadrant 10, 14–16.

[105] Jones, 'The Legal Response: Dealing with Hatred — a User's Guide' above n 104, 219.

[106] Luke McNamara and Tamsin Solomon, 'The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment?' [1996] AdelLawRw 9; (1996) 18 Adelaide Law Review 259, 269–70.

[107] Freckelton, above n 27, 327, 350.

[108] See below Part III(c)(2) 'Reasonably'.

[109] A similar point was made by Michael Cobb during the parliamentary debates for the RHB. See Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1994, 3383 (Michael Cobb).

[110] This important point is simply illustrated by the growing body of racial vilification case law. Though not always coherent and principled, the laws have nonetheless been interpreted and applied.

[111] Commonwealth v Baume [1905] HCA 11; (1905) 2 CLR 405, 414 (Griffith CJ); Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 116 ALR 54, 63 (Gummow J). See further Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (4th ed, 1996) 35.

[112] See further Chesterman, above n 98, 208.

[113] Ibid 206.

[114] But see ibid 204–5 where Chesterman notes that in relation to the New South Wales-based legislation '[t]he contribution of defamation law ... resides chiefly in the substantive provisions defining liability.' In particular, 'the statutory formula defining the reaction which must be "incited" within the third party — namely, "hatred", "serious contempt" or "severe ridicule" — echoes the "classic" definition, now more than 150 years old, of the term "defamatory".'

[115] Ibid 206 (footnote omitted). See further 211–16 regarding the differences between the RDA defences and those available under civil defamation law.

[116] Corunna (2001) EOC 93–146, 75472.

[117] For example, for the RDA see Cairns Post (2001) 112 FCR 352, 360 [32] (Kiefel J); Corunna (2001) EOC 93–146, 75469–75; Wanjurri v Southern Cross Broadcasting Ltd [2001] EOC 93–147, 75487–9 (Commissioner Innes) ('Wanjurri'); Scully [2002] FCA 1080; (2002) 120 FCR 243, 274–5 [122][124]; New South Wales — see Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 (Judicial Member Rees and Members Silva and Luger) [79][127] (Judicial Member Rees and Member Silva) ('Jones'); Malco v Massaris [1998] NSWEOT 226–9 of 1996 (Judicial Member Raphael and Members Greenhill and McDonald) 10–11; Queensland — see Deen v Lamb [2001] QADT 20 MIS01/109 (President Sofronoff) 2 ('Deen').

[118] On this point see McNamara, above n 3, 53; Jones, 'The Legal Response: Dealing with Hatred — a User's Guide' above n 104, 214, 235–6; Saku Akmeemana and Melinda Jones, 'Fighting Racial Hatred' in HREOC, Race Discrimination Commissioner (ed), Racial Discrimination Act 1975: A Review (1995) 156, 156–7.

[119] [1992] HCA 45; (1992) 177 CLR 106, 143 (Mason CJ), 234–5 (McHugh J). For a detailed discussion on the scope of 'communication on government or political matters' protected by the Australian Constitution see Chesterman, above n 98, 44–63.

[120] [1997] HCA 25; (1997) 189 CLR 520 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ) ('Lange').

[121] Ibid 567.

[122] [1997] HCA 31; (1997) 189 CLR 579 (Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ).

[123] Ibid 614 (Toohey and Gummow JJ), 619 (Gaudron J), 647 (Kirby J). On the scope of the implied constitutional freedom of political communication after Lange and Levy see Adrienne Stone, 'Case Note: Lange, Levy and the Direction of the Freedom of Political Communication under the Australian Constitution' [1998] UNSWLawJl 38; (1998) 21 University of New South Wales Law Journal 117 and Adrienne Stone, 'The Freedom of Political Communication since Lange' in Adrienne Stone and George Williams (eds), The High Court at the Crossroads: Essays in Constitutional Law (2000) 1.

[124] See Deen [2001] QADT 20 MIS01/109 (President Sofronoff).

[125] See Scully (2002) 120 FCR 243, 306 [240] where Hely J stated that the 'exemptions provide an appropriate balance between the legitimate end of eliminating racial discrimination and the requirement of freedom of communication about government and political matters required by the Constitution.' On the constitutionality of Australian racial vilification laws more generally see Chesterman, above n 98, 237–43; McNamara, above n 3, 2–3 and 53; Jones, above n 104, 235–6; McNamara and Solomon, above n 106, 278–83.

[126] See New South Wales, Parliamentary Debates, Legislative Assembly, 4 May 1989, 7490 (John Dowd, Attorney-General).

[127] Discrimination Act 1991 (ACT) s 66(2)(c); Wrongs Act 1936 (SA) s 7(1)(c); Anti-Discrimination Act 1991 (Qld) s 124A(2)(c); Anti-Discrimination Act 1998 (Tas) s 55.

[128] Whilst there is no express mention in the parliamentary debates of the Commonwealth, Australian Capital Territory, South Australia or Queensland as to why the 'reasonably and in good faith' requirement were similarly incorporated, it is reasonable to assume that in replicating the New South Wales legislation these Parliaments intended the phrase to connote the same meaning.

[129] But see McNamara, above n 3, 94–102.

[130] Jones [2000] NSWADT 102 [122] (Judicial Member Rees and Member Silva). This definition or close approximations thereof have been endorsed in Corunna [2001] EOC 93–146, 75447, 75470; Bryl [1999] HREOCA 11 [4.3] (Commissioner Johnston); Wanjurri [2001] EOC 93–147, 75488–9 (Commissioner Innes); Deen [2001] QADT 20 MIS01/109, 2 (President Sofronoff); Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1, 38–9 (Allsop J).

[131] Defamation Act 1889 (Qld) s 16; Defamation Act 1957 (Tas) s 16. At common law the defence of qualified privilege is also defeated if the plaintiff can establish that the publication was for an improper purpose. As Professor Fleming has noted, this is a wider notion than 'malice', 'because the immunity is defeated not only by spite or a desire to inflict harm for its own sake, but by the misuse of the privileged occasion for some other purpose than that for which it was given by law' — John Fleming, The Law of Torts (9th ed, 1998) 637.

[132] Defamation Act 1957 (Tas) s 16.

[133] See below Part III(c)(2) 'Reasonably', where it is suggested that this represents the preferred interpretation of what 'reasonably' means in regards to the racial vilification defences.

[134] McNamara, above n 3, 98.

[135] See Deen [2001] QADT 20 MIS01/109 2 where President Sofronoff surveys the meaning of 'good faith' in a range of different areas of law and concludes that although 'it is difficult to find a definite exposition of the term', the common thread in every field is 'the use of a power for an improper purpose'. The Butterworths Concise Australian Legal Dictionary defines 'good faith' to mean 'propriety or honesty', see Peter Nygh and Peter Butt (eds), Butterworths Concise Australian Legal Dictionary (2nd ed, 1998) 194. It is submitted that for a person to do an act for an improper purpose requires that person to make a considered (necessarily subjective) decision.

[136] McNamara, above n 3, 98 (emphasis in original).

[137] Ibid 94–102; McNamara and Solomon, above n 106, 269–70.

[138] See Toben No 1 [2002] FCA 1150 [101].

[139] Horrocks v Lowe [1975] AC 135, 149 (Lord Diplock); Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361, 373 (O'Connor J). See further Fleming, above n 131, 638.

[140] Commonwealth: Bryl [1999] HREOCA 11 [4.3] (Commissioner Johnston); Corunna [2001] EOC 93–146, 75470 (Commissioner Innes); Wanjurri [2001] EOC 93–147, 75488–9. New South Wales: Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 [86][92] (Deputy President Hennessy, Members Farmer and Jowett) ('Kazak'); Jones [2000] NSWADT 102 [121], [150][154] (Judicial Member Rees and Member Silva).

[141] Commonwealth: Scully (2002) 120 FCR 243, 286 [159]; Warner v Kucera [2001] EOC 93–137, 75374 (Commissioner Johnston); Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1, 13 (Carr J), 19 (Kiefel J), 38 (Allsop J); New South Wales: Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78268 (Judicial Member Bartley and Members Farmer and Luger); Hellenic Council of NSW v Apoleski [1997] NSWEOT 9–11 of 1995 16 (Judicial Member Biddulph and Members Alt and Mooney) ('Hellenic Council No 1'); Hellenic Council of NSW v Apoleski [1997] NSWEOT 10 of 1995 10 (Judicial Member Biddulph and Members Alt and Mooney). Queensland: Deen [2001] QADT 20 MIS01/109, 2 (President Sofronoff).

[142] See, eg Kazak [2000] NSWADT 77 (Deputy President Hennessy, Members Farmer and Jowett). The case concerned an article in the Australian Financial Review written by the respondent which stated amongst other things that 'the Palestinians cannot be trusted in the peace process' and 'remain vicious thugs who show no serious willingness to comply with agreements.' The article was found to incite an ordinary reasonable reader to hatred or serious contempt of the Palestinians and was not held to be an act done reasonably and in good faith for a purpose in the public interest including discussion or debate about and exposition of any act or matter. For a criticism of this decision see Blackford, above n 104, 14–15.

[143] In Minister for Resources v Dover Fisheries Pty Ltd [1993] FCA 366; (1993) 116 ALR 54, 63 Gummow J stated that because it is 'improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.'

[144] Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) 10–11 (emphasis added).

[145] Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1994, 3337 (Michael Lavarch, Attorney-General).

[146] Victoria, Parliamentary Debates, Legislative Assembly, 17 May 2001, 1286 (Steve Bracks, Premier) (emphasis added).

[147] Deen [2001] QADT 20 MIS01/109, 2 (emphasis added).

[148] Hellenic Council No 1 [1997] NSWEOT 9–11 of 1995 (Judicial Member Biddulph and Members Alt and Mooney) 16 (emphasis added).

[149] Chesterman, above n 98, 226 (emphasis added). Chesterman notes that this situation pertains because, unlike civil defamation law, 'the [racial vilification] legislation requires no consideration of truth or falsity'. On this point see further 215–17.

[150] Ibid 227 quoting Margaret Thornton, The Liberal Promise (1990) 50.

[151] Nicholas Wolfson, Hate Speech, Sex Speech, Free Speech (1997) 48.

[152] Chesterman, above n 98, 227 quoting Thornton, above n 150, 50.

[153] See above Part III(c)(2) 'Reasonably'.

[154] Scully (2002) 120 FCR 243, 293 [186] (emphasis added).

[155] Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1, 13.

[156] On this point see Jones, 'Empowering Victims of Racial Hatred by Outlawing Spirit-Murder' above n 5, 313–17.

[157] Thanks to one of the anonymous referees for pointing out this argument to me.

[158] See above Part II(a)(1) 'Elevating the s 18C harm threshold: parliamentary intent and the interpretive malady'.

[159] See, eg, above Part II(a)(1) for a discussion of the judgment of Branson J in Toben No 1 [2002] FCA 1150 .

[160] See, eg, R v Keegstra [1990] INSC 224; [1990] 3 SCR 697, 855–6 (McLachlin J) where her Honour outlined the difficulties and dangers associated with seeking to interpret the word 'hatred'. '[It] is a broad term capable of catching a wide variety of emotion. It is not only the breadth of the term "hatred" which presents dangers; it is its subjectivity.'

[161] See Chesterman on this point, above n 98, 227 where he notes that '[e]stablishing the right boundary between the forceful expression of biased but honest opinions and blatant racist ideology is one of the hardest tasks of any law dealing with racial vilification.'

[162] Margaret Thornton offers the example of Professor Geoffrey Blainey and his views on Asian immigration articulated in his book, All for Australia (1984), see Thornton, above n 150, 50. Other examples of forceful expressions of biased but probably honest opinions that also encompass a racist ideology could include George Merritt (ed), Pauline Hanson — The Truth: on Asian Immigration, the Aboriginal Question, the Gun Debate and the Future of Australia (1997); Carl Campbell Brigham, A Study of American Intelligence (1923); Madison Grant, The Passing of the Great Race, Or, the Racial Basis of European History (1916); Laurence Auster, The Path to National Suicide: An Essay on Immigration and Multiculturalism (1990).

Download

No downloadable files available