Meagher, Dan --- "Regulating History: Australian Racial Vilification Law and History Denial" [2005] UQLawJl 29; (2005) 24(2) University of Queensland Law Journal 499

REGULATING HISTORY: AUSTRALIAN RACIAL VILIFICATION LAW AND HISTORY DENIAL

DAN MEAGHER^[*]

‘The past is never dead. It’s not even past.’^[1]

I. Introduction

This article is concerned with the practice of history denial. In particular, it is concerned with whether it is possible under Australian law to regulate more sophisticated instances of history denial as a form of racial vilification without proscribing and chilling controversial but bona fide historical scholarship.^[2] The characteristics of this species of history denial are an amalgam of style and substance. They include the extensive use of scholarly trappings (such as footnotes and bibliographies) and publication through the traditional academic forms of journals, books and conferences.^[3] And the content of the historical account outlined is usually the pretext to advance an extreme ideological or political viewpoint. Its defining characteristic is, however, the deliberate falsification or gross distortion of the historical record to advance that viewpoint. This is why it betrays and undercuts the historical enterprise. As the historian E H Carr famously observed:

It does not follow that, because a mountain appears to take on different shapes from different angles of vision, it has objectively either no shape at all or an infinity of shapes.^[4]

The centrality of probity to historical scholarship is of course common ground amongst historians. Richard Evans, for example, says of the past that historians

really can, if [they] are very scrupulous and careful and self-critical, find out how it happened and reach some tenable though always less than final conclusions about what it all meant.^[5]

Even postmodernists acknowledge that historians clearly do not and cannot invent the raw material of history, though they ‘construct the analytical and methodological tools to make out of this raw material their ways of reading and talking about it’.^[6] So whilst the writing of history is a matter of interpretation, it cannot be fabrication or wilful misrepresentation. In a discipline where contingency is the commonplace, it is the absence of historical probity—not the controversy and contestability of an account—that are the hallmarks of history denial. An example is the Holocaust denial found in the publications and speeches of English historian David Irving.^[7] And as made clear below, Irving’s historiography would constitute unlawful racial vilification under current Australian law.^[8] For it ‘is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate’^[9] a person or group on account of their race or ethnicity and is not done reasonably and in good faith for an academic, artistic, scientific, research or any other purpose in the public interest.^[10]

In any event, my inquiry will raise two logically distinct though related questions. The first is whether the law can ever make a reasonable assessment and determination on matters of the historical record. If not, then my proposed analysis hits an insurmountable, threshold objection. Even if this threshold objection can be overcome, the second question is whether current Australian law equips our judges and other relevant decision-makers with the analytic and prescriptive tools capable of identifying and flushing out instances of racial vilification cloaked in the accoutrements of bona fide historical scholarship.

These two issues will be addressed in Parts III and IV of the article respectively. In Part III, it is argued that in most instances the law is ill-equipped to make definitive pronouncements on the past but is institutionally capable of assessing the quality and veracity of a historiography where the historical record relevant to the matter in issue (whether comprising oral testimony, documents or other real evidence) is sufficiently detailed and available for scrutiny through the court processes of cross-examination and expert evidence.^[11] In Part IV, my analysis demonstrates that with one exception current Australian law can regulate meaningfully history denial as racial vilification and do so in a manner that is sensitive to and accommodating of controversial but bona fide historical scholarship. It is therefore concluded that no case currently exists in Australia for laws that specifically target history denial as racial vilification for civil or criminal proscription.

II. Some Preliminary Points

From the outset I want to make three points that underline the purpose of the article and the ground my analysis will cover. First, as the title of the article suggests, it is not my intention to consider whether or not it is a good idea to legally proscribe racial vilification. This would simply rehearse the more fundamental debate regarding the compatibility of racial vilification laws in general with a strong commitment to freedom of speech for which there already exists an ample body of scholarly literature.^[12] Laws proscribing racial vilification exist in every Australian jurisdiction with the exception of the Northern Territory.^[13] So the battle to regulate or not in Australia is over, at least for the foreseeable future.^[14] This is not to deny or diminish the importance a strong commitment to freedom of speech had upon the shape of existing racial vilification laws and its ongoing relevance to the content and trajectory of future developments in the area.^[15] Indeed of central concern to this article is the significant free speech concern that controversial but bona fide historical scholarship is not proscribed or chilled by current Australian racial vilification law. But the upshot of this established regulatory regime is that as a matter of legal principle racial vilification is not tolerated in Australia and may attract civil or criminal consequences.^[16]

So if history denial can amount to racial vilification—and I argue below that it can^[17]—then if this principle is to be taken seriously in Australian law, such conduct should attract legal sanction, even in a community with a strong commitment to freedom of speech. It is difficult, for example, to understand what free speech, scholarly or any other public interest is served by the publication of a narrative that deliberately falsifies or misrepresents the historical record in order to vilify a person or group on the grounds of race.^[18] In any event, this article assumes the efficacy of regulating history denial as racial vilification if it is possible under Australian law for it to be done meaningfully and in a manner sensitive to and accommodating of the significant free speech interest involved.

Second, I have made a detailed argument elsewhere that current Australian racial vilification laws are compatible with the implied freedom of political communication.^[19] It is my view that even though these laws may in some instances restrict the freedom to communicate on government and political matters, that burden is not significant.^[20] And, in any event, the laws are effective, appropriate or rational measures to secure a compelling constitutional end, provide benefits that significantly outweigh any detriment to ‘political communication’ and represent reasonable legislative efforts to do so in a manner that minimises the infringement of the implied freedom. So my analysis proceeds from the assumption that current Australian racial vilification laws are constitutional.^[21]

Third, racial vilification is already proscribed under Australian law as noted. It is considered abhorrent and antithetical to the interests of a meaningful democracy and a tolerant, multicultural citizenry.^[22] Moreover, there is a cogent argument that history denial as racial vilification is capable of inflicting equal if not greater damage to the immediate victim and wider public interest than a base racial epithet.^[23] Even those with a particularly strong commitment to freedom of speech now acknowledge the very real and serious harms occasioned by racial vilification.^[24] When it assumes a more sophisticated form like history denial, a number of factors can operate to magnify these deleterious consequences. Take the case of Holocaust denial, for example. Michael Shermer and Alex Grobman note that

[w]hen historians talk about the ‘Holocaust’, what they mean at the most general level is that about six million Jews were killed in an intentional and systemic fashion by the Nazis using a number of different means, including gas chambers.^[25]

So Holocaust denial involves the refutation of the Holocaust’s ‘three key components—the killing of six million, gas chambers and intentionality.’^[26] And this is done by deniers to demonstrate that the Holocaust is a “myth” perpetuated by Jews to justify the extraction of massive war reparations from Germany after World War II and to garner international sympathy for the creation and maintenance of the State of Israel.^[27] In any event, the consequences of Holocaust denial are many and serious. They include that old wounds are re-opened, horrific memories are revived and defiled and simmering prejudices inflamed. For when this systematic destruction of humanity is dismissed as the great Jewish swindle designed to extract massive reparations from Germany and then hold a guilt-ridden world to financial and political ransom, the clear message is that Jews are greedy, untrustworthy and deserving of persecution. Further, this inversion and distortion of history may underpin and nourish the hatred of those who oppose the continued existence of the State of Israel. It assists them in erasing (in their own minds) or blurring (in the minds of others) the line between legitimate criticism of Israeli government policy towards the Palestinians, for example, and anti-Semitism. It is a classic example of the Faulkner notion that ‘[t]he past is never dead. It’s not even past.’^[28]

The pernicious nature of history denial as racial vilification is exacerbated by the fact that its expression in most instances will not be irrational, brusque or disingenuous. Nor will it be dissuaded or quelled by reasoned debate or open discourse. It will usually reflect a considered and committed position.^[29] This not only suggests the efficacy of regulating, if possible, history denial as racial vilification, but there may be a case where specifically tailored legal regulation ought to be seriously considered. It is, after all, a regulatory step already taken in a number of European jurisdictions where history (specifically Holocaust) denial as racial vilification is considered particularly heinous due to its direct experience of Nazism.^[30] But to make the point that history denial as racial vilification may present a case for specific legal regulation does not ipso facto mean that current Australian law can or should be amended to meet this special regulatory need.^[31] That will depend on whether it is even possible to regulate meaningfully matters concerning the historical record.^[32] And, if so, whether a specific law is appropriate in the context of Australian society or necessary in light of its treatment under current law. It is to these matters that I now turn.

III. Is There A Problem With The Law And History?

A. Is History ‘Justiciable’? - The Challenge Of Postmodernism

This important threshold question needs to be addressed before my proposed analysis can be undertaken. The concern is with the elusive (some would argue unattainable) nature of objective historical truth and the institutional (in)capacity of judicial tribunals to engage in such an inquiry. But in posing the question to be considered in this part of the article, I am not using the term ‘justiciable’ in its strict or technical sense. For if a complaint of history denial racial vilification is litigated in an Australian court then it is doubtful whether the Court, otherwise properly seized of jurisdiction, can decline to determine an issue in the exercise of discretion.^[33]

I am, however, suggesting that the application of a (racial vilification) law will sometimes throw up questions that a judicial tribunal lacks the expertise, resources and, therefore, legitimacy to satisfactorily resolve. So if legal institutions cannot competently evaluate and determine matters of the historical record then maybe judges and other relevant decision-makers in this area ought to acknowledge that, although history denial as racial vilification may exist and is prima facie proscribed,^[34] they lack the expertise or legal tools necessary to identify and regulate such conduct.^[35] It would not, as noted, be a matter of a court declining to entertain a question or exercise its jurisdiction. Rather, it would be an acknowledgment that, in the exercise of that jurisdiction, they are incapable of satisfactorily assessing (and therefore upholding) complaints of history denial as racial vilification.^[36]

In any event, some judges have been comfortable making definitive pronouncements on historical matters. The judgments of Crispin J in Re Thompson; Ex parte Nulyarimma^[37] and Olney J in Yorta Yorta^[38] are notable examples. In the former and in order to provide the context necessary to understand the claims of genocide made by the Aboriginal applicants, Crispin J outlined in six pages of his judgment the ‘broad sweep of Australian history’.^[39] He then, extraordinarily, took judicial notice of this historical account.^[40] In the latter, Olney J relied significantly upon the writings of Edward Curr—a frontier pioneer and pastoralist—to reject a native title claim on account of the failure to establish amongst other things that ‘the ancestors through whom the claimants claim title [occupied] their traditional lands in accordance with their traditional laws and customs’.^[41]

On the other hand, other judges express discomfort when history enters the courtroom and the nature of the litigation, the law to be applied or the manner in which the case is to be argued requires that a judicial determination be made regarding at least an approximation as to the historical record. Even in those cases where such determinations have in fact been made the presiding judges are at pains to distinguish history from law and deny that any definitive legal judgment has or can be made about the past. Justice Gray, for example, began his judgment in the libel trial of David Irving with the following disclaimer:

[I]t is important that I stress at the outset of this judgment that I do not regard it as being any part of my function as the trial judge to make findings of fact as to what did and what did not occur during the Nazi regime in Germany. It will be necessary for me to rehearse, at some length, certain historical data. The need for this arises because I must evaluate the criticisms of or (as Irving would put it) the attack upon his conduct as an historian in the light of the available historical evidence. But it is not for me to form, still less to express, a judgement about what happened. That is a task for historians. It is important that those reading this judgment should bear well in mind the distinction between my judicial role in resolving the issues arising between these parties and the role of the historian seeking to provide an accurate narrative of past events.^[42]

This is a slim but important distinction. For the relevant judicial duty in Irving was to determine whether the defendants (Deborah Lipstadt and Penguin Books Ltd) could establish the defence of justification for Lipstadt’s defamatory claim that David Irving was ‘one of the most dangerous spokespersons for Holocaust denial’^[43] and that he deliberately falsified and misrepresented historical evidence to conform with his ideological agenda and virulent anti-Semitism. This required detailed examination of the documentary evidence cited by Irving to see whether he had indeed engaged in its systematic and widespread distortion. The determination of this legal issue did not require a formal finding as to whether the Holocaust occurred or not; though the nature of the defamatory allegations and the defence pleaded made it logically impossible for Gray J to deliver his judgment without at least first being satisfied that massive numbers of Jews and other minority groups were put to death in purpose-built gas chambers. For that is what Lipstadt claimed the historical record demonstrated and why Irving chose to falsify it.^[44] Indeed, Gray J made this precise ‘judgment of what happened’:

[I]t is my conclusion that no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews.^[45]

A similar willingness to disavow the role of judge as historian was present in the judgment of Hely J in the recent Federal Court matter of Jones v Scully.^[46] The case involved the distribution of a leaflet containing particularly vicious anti-Semitic material also with the claim that the Holocaust was a hoax.^[47]

I am not in a position to determine, as a matter of fact, whether the claim made by the author of the pamphlet that the Holocaust never occurred is true or not. I do not have the evidence which would be needed to enable me to make that determination, assuming that the matter is susceptible of proof in a court.^[48]

These and other examples may evidence a judicial acceptance, in principle at least, that the threshold concern has merit. This formal judicial unease with pronouncing upon the historical record in the course of quelling a legal controversy appears to have become more acute in recent times. In the Communist Party case, for example, Dixon J did not seem unduly anxious when outlining the common law rule for admissibility of historical evidence.

[The] courts may use the general facts of history as ascertained or ascertainable from the accepted writings of serious historians … and employ the common knowledge of educated men upon matters and for the verification refer to standard works of literature and the like.^[49]

But much has changed in the discipline and study of history since the time of Sir Owen Dixon. Most notably, the withering postmodernist attack on history that emerged during the 1980s that has shaken (some would say shattered) the theoretical foundations of the notion of objective historical truth. The idea that writing history was a largely subjective interpretive enterprise was not original. ^[50] But the postmodernist attack ran far deeper. In very simple terms, it accused historians of having ‘a kind of wilful methodological naivete’^[51] and rejected the ‘status [of history] as an autonomous and self-authenticating mode of thought’.^[52] Taken to its logical extreme, objective historical truth becomes a chimera.^[53] English historian Richard Evans has noted the destabilising and confidence-sapping effect the postmodernist critique has had upon the discipline and its exponents.

Such has been the power and influence of the postmodernist critique of history that growing numbers of historians themselves are abandoning the search for truth, the belief in objectivity, and the quest for a scientific approach to the past.^[54]

In light of this challenge to the very theory and practice of history, one can understand why judges no longer feel the solid historical ground upon which Sir Owen Dixon apparently stood in 1951. It is hard to imagine the (post)modern judge confidently asserting the existence of the ‘general facts of history’, ‘accepted writings’, ‘serious historians’, and ‘standard works of literature’.^[55] It is no surprise then to read the reference to the ‘Court’s use of history’ in the recently published Oxford Companion to the High Court of Australia:

The pressure on the High Court to make more and more use of historical material is occurring against a backdrop in which historians themselves are less prepared to consider the product of their researches as leading to some version of ‘truth’. Historians are less prepared than ever to present the fruits of their labour as the unqualified ‘truth’. Historical accounts are increasingly seen as provisional and, at least to some degree, fictitious. Nevertheless, while there is a growing realisation, among both historians and lawyers, that historical truth is hardly ever more than a descriptive hypothesis, it also recognised that once a particular version of history is given the imprimatur of ‘authenticity’ by a superior court it becomes the definitive account of the particular event. Once a particular version of history is enshrined in precedent it becomes legal truth, which has a performative nature.^[56]

The point that the doctrine of precedent perpetuates and probably, given time, authenticates in the minds of many a judicial determination on matters of the historical record is well made. This is so notwithstanding ‘the different methodological frameworks of legal and historical inquiries’.^[57]

[T]he courts are required to form a view on what happened in the past. That view will be taken from a selection of alternatives that are shaped by the strictures of legal procedure and evidence; it will be limited by the answers that must and can be given to the questions the law requires and permits to be asked … The court’s view will be shaped by its ‘preoccupation … with the finality of determination, as opposed to the historian’s acceptance of ambiguity and conflicting interpretations’.^[58]

So a legal judgment not only stands as an important historical document in its own right (and one whose authority will usually accrete with time) but when matters of history are fiercely contested, the cultural, political and even economic consequences of that judgment are likely to be significant and enduring.

On the other hand, one might reasonably argue that every judicial determination as to a fact (most which relate to past events) has a performative nature and will generate legal consequences, both immediate and future. For the interested parties it will inform how and what rule is to be applied which in turn determines the content and therefore status of that rule within the wider community of laws to govern the future conduct of the citizenry. Moreover, the related claim that legal truth tends to become historical truth overstates the matter.^[59] It assumes that historians uncritically accept a judicial determination as to the historical record and move on to other, still open, fields of inquiry. It also implies a notion that the authentic version of a historical event is snap frozen at the time the relevant judicial determination is made. But there is clear evidence to the contrary in Australian law, particularly when that fact is controversial or requires re-evaluation in light of new historical evidence. The most celebrated example being the High Court’s decision in Mabo v Queensland (No 2)^[60] to reject the common law assumption made by the Privy Council in ‘Cooper v Stuart … that the colony of New South Wales was “without settled inhabitants or settled law”’.^[61] The correction of this fundamental historical (and therefore legal) error was informed by the historical scholarship of Henry Reynolds and in particular his strong attack on the doctrine of terra nullius.^[62] Another is the decision in Sue v Hill^[63] where the High Court held that the United Kingdom was a foreign power for the purposes of the Australian Constitution. It was a case of constitutional and legal theory following and accommodating Australia’s political history, most notably its gradual emergence as a sovereign nation. Indeed, these decisions demonstrate how historical scholarship can inform the development of legal principle. So when the two disciplines inevitably intersect it may suppose too much of the law’s cultural power to suggest it creates and then enshrines an historical orthodoxy that becomes accepted currency amongst historians and the wider community.^[64]

However judges ought to tread warily when the nature of the legal controversy may require or invite a definitive pronouncement on the past. For in most instances legal methodology is ill-suited to this task. It cannot identify and accommodate disparate interpretations of past events which historians accept as a legitimate, inevitable and (probably) desirable part of their discipline.^[65] In short, the legal desire for certainty and finality is often at odds with the provisional and contingent nature of historical inquiry. Yet as noted, a legal judgment as to what happened in the past is itself an important historical document and one that attains a degree of permanence and authority through the doctrine of precedent. So the unease in the judgments of Gray J in Irving and Hely J in Scully arises for good reason and shows an understanding of the difficulties, dangers and consequences that attend judicial determinations of this nature.

It is my argument however (and I think judicial practice demonstrates) that legal methodology can make cogent historical judgments. The extent to which this is possible will vary with the nature of the historical question raised in the litigation, the kinds of historical materials available for scrutiny^[66] and judges being cognisant of the significant difficulties that attend judicial pronouncements on the past.

First, the determination of some legal disputes will involve ‘recourse to [historical] materials with which lawyers are accustomed to deal.’^[67] In Brownlee v The Queen, for example, the High Court examined the relevant legislative history both before and after federation and traced the evolution of the institution of trial by jury at common law and in the United States before determining that a jury of ten persons and their separation during a criminal trial did not offend the trial by jury guarantee in s 80 of the Constitution.^[68] The deployment of such materials in the resolution of a legal controversy is not mechanical or without controversy.^[69] But experience with this part of the historical record gives judges the competence and legitimacy to make assessments of it when the application of the law so requires.^[70]

Second, in some judicial controversies the important distinction noted by Gray J in Irving comes into play. That is, cases will arise where a judge ‘must evaluate the criticisms of or … the attack upon [the] conduct [of] an historian in the light of the available historical evidence’.^[71] But in doing so ‘it is not for [the judge] to form, still less to express, a judgement about what happened’.^[72] In these instances a court is not required (or equipped) to make a definitive pronouncement on the past but is assessing the quality and veracity of a historiography. In my view, the processes and rules that govern our trial system including pleadings, discovery, cross-examination and expert evidence make courts institutionally capable of making reasonable (though not perfect or unimpeachable) assessments of this nature and usually able to detect a deliberate falsification of history.^[73] These processes can identify the matter in issue, provide for the different accounts to be placed before the court, allow for detailed interrogation of those accounts and authorial motivation which assists the court in understanding the context, materials and persons relevant to that part of the historical record.^[74]

Third, there is a need for judicial caution when asked or required to make a judgment on history. Indeed, my institutional faith in courts to make cogent historical judgments in these kinds of cases comes with a significant proviso; and it is one even more pertinent in matters like Yorta Yorta and Nulyarimma where a court is being asked or feels the need to make a determination as to what happened in the past in order to quell a legal controversy. There will be times where part of the historical record relevant to the legal controversy is deficient, lost, destroyed or unable to be reconstructed through documentary or oral evidence. In these instances it is inappropriate, indeed impossible, for a court to make a reasonable historical determination with the consequence that the cause of action or prosecution necessarily must be abandoned or fail. This is not to suggest that judgment can only be delivered upon judicial satisfaction that the historical record before the court is close to complete. But a judge must resist the temptation to fill in the gaps in the historical record in order to deliver a more comprehensive factual judgment.^[75] There are two recent decisions that demonstrate and support both my argument and its proviso. It is to those cases that I now turn.

1. Irving v Penguin Books Ltd & Lipstadt

The first is the libel trial of David Irving.^[76] There were serious and understandable concerns as to the capacity and therefore legitimacy of the English High Court to consider the events known as the Holocaust and determine whether or not they took place.^[77] Indeed, as noted, even the presiding judge denied the necessity and propriety of a judge making such a finding though his judgment, in effect, did precisely that. What was interesting, according to English historian Richard Evans (who gave expert evidence for the defence), was the suitability of the trial process to provide a decent forum for a thorough presentation and examination of the relevant historical materials in that instance.

[I]n many respects the High Court turned out to be rather a good place to settle the historical and methodological points at issue in the Irving case. There were, for a start, none of the usual constraints of time and space which limit what can be said or written in other arenas of debate. In a radio or television programme, each side has at best only ten or fifteen minutes to make its points, at worst little more than a couple of sound-bites; in court, however, we could pursue every point, no matter how minor, for hours on end (often to the frustration of the attending journalists), until we exhausted the subject or the judge was satisfied that everything had been said that was necessary and asked us to move on. In an academic seminar or conference, the speaker is never allowed to go on for more than an hour, and discussion seldom extends even to that amount of time. In the High Court, proceedings went on for the best part of three months. Academic controversies in journals, newspapers and magazines are limited by the space available, and books are subject to severe restrictions on their length which are imposed by the economics of publishing, even in quite arcanely academic subject areas. There were no such limits on the space the experts had to write their reports in the Irving trial: we simply wrote as much as we needed to fulfil the commissions we had been given, which in Robert Jan Van Pelt’s case was over 600 pages and in mine over 700.^[78]

The objectivity of these trial observations might be open to question.^[79] But before one too quickly dismisses them as simply another instance of the victors writing history (or at least praising the processes that endorsed their version of history) a careful reading of the accounts of those who witnessed the trial and the judgment of Gray J is apposite. Though the volume of historical material before the court was immense, the trial turned on the original German documents upon which Irving’s research and the expert reports were based.^[80] This gave the conduct of the trial some shape and manageability.^[81]

Moreover, the painstaking manner in which these materials were presented, explained and dissected by Irving, the expert witnesses and the judge provided, in this instance, a decent forum to ventilate and assess the claim made against the probity of Irving’s historiography.^[82] The judgment of Gray J, in particular his findings on the defence of justification, were comprehensive and strikingly clear. Each of the central, disputed events was assessed against the original German documents and the interpretations given to them by Irving and the expert witnesses.^[83] That part of the judgment that dealt with the events at Auschwitz, for example, examined and pronounced upon matters as specific as the scale of the killing of Jews in the gas chambers, the likelihood of there being holes in the roof of one crematorium and whether the gas chambers were used for fumigation purposes or to serve as air raid shelters.^[84] This led to the definitive conclusion ‘that no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews’.^[85] But when the historical record was equivocal^[86] or inconclusive,^[87] Gray J quite properly resisted the temptation to extrapolate or deduce from these materials.

The manner in which the Irving trial was conducted and the judgment delivered was a salient reminder that a court is capable of making a reasonable judgment as to the quality and veracity of a historiography when the historical record (whether composed of oral testimony, documents or other real evidence) is available, detailed, of sufficient quality and can be scrutinised meaningfully through the court processes of cross-examination and expert opinion.^[88] It suggested, moreover, that even if establishing objective and unimpeachable historical truths is elusive to historians and beyond the processes of the law, under the right conditions it is possible for a court to identify a deliberate falsification or gross misrepresentation of history.

The postmodernist critique on history may have precipitated a necessary and overdue re-evaluation of the discipline’s practice and its theoretical underpinnings.^[89] But however much one deconstructs and revises it, the Irving trial and judgment demonstrates that history ‘may be a “story”, but it isn’t fiction’.^[90]

2. Cubillo v Commonwealth

The second case is the Federal Court of Australia decision in Cubillo v Commonwealth (No 2).^[91] It involved civil law claims made by two persons ‘said to be members of “the Stolen Generation”, [a] term that has been widely used to refer to the former practice of taking part-Aboriginal children from their families and placing them in missions or institutions.’^[92] The case demonstrates three points of importance to this article.

First, it highlights how legal methodology is ill-equipped to make definitive pronouncements as to what happened in the past, particularly when those (alleged) events occurred some time ago and lack compelling evidential (legal) corroboration.

Second and in any event, the capacity of a judge to make a reasonable historical judgment will turn on the availability, detail and quality of the historical materials that can be judicially scrutinised. So when sufficient gaps exist in the historical record available to the court, then its institutional capacity to make such a finding evaporates. There may indeed be a legal judgment that an event did not occur. But this stems from a failure to discharge the requisite civil or criminal standard of proof rather than a determination that the event did not in fact take place.^[93]

This was the situation O’Loughlin J faced in Cubillo. There came a point in the litigation where he had to make a number of historical determinations in the plaintiffs’ favour if they were to succeed in their causes of action. But the historical materials required to do so were either unavailable or did not exist.

I have come to the conclusion, in each case, that they have failed to reach the required evidentiary onus. In each case, the applicant has failed in an essential respect—they have failed to satisfy the court that, when (or if) the Director removed and detained them, he did not have the necessary opinion about their interests. It is very disappointing to arrive at this conclusion. It would have been far preferable to have had all relevant written and oral evidence before the court so that an informed decision could have been made on the merits of each case. As it is, people are dead or their memories have faded; documents, if they ever existed, have been lost. There is now no way of knowing what went on in the mind of Mr Moy when he, as the Director of Native Affairs, participated in the removal and detention of Mrs Cubillo. I cannot assume, out of a feeling of sympathy for Mrs Cubillo, that Mr Moy failed to perform his statutory functions.^[94]

The important point is that during litigation an issue—as to what occurred in the past—that a court is institutionally incapable of answering may arise for determination. If a court lacks the evidentiary resources and internal processes to provide for its resolution, an attempt to do so would for this reason lack legitimacy.

Third, the Cubillo decision is an example of legal truth not equating necessarily to historical truth. The inability to assess whether it was likely that the specific impugned events took place due to gaps in the relevant historical record did not mean that such events never occurred.^[95] Indeed, O’Loughlin J was careful to note that he ‘accept[ed] the main thrust of their evidence about the hurt they suffered as a result of their removal and detention’^[96] and was satisfied that there existed ‘a school of thought prevailing at the times that [were] relevant to the claims of Mrs Cubillo and Mr Gunner’ that considered it ‘in the best interests of part-Aboriginal children to assimilate them into the European mainstream’^[97] through a policy of removing them from their mother or family for purposes of a white education. The definitive history regarding the plaintiffs and the events of the Stolen Generation more generally was not established by their failure to make good on their specific factual and ultimately legal claims. There may be a point where, for the purposes of law, history simply runs out. Cubillo was such a case.

But the legal determinations made in Cubillo and other cases relating to the Stolen Generation^[98] have not created or enshrined an orthodox historical truth on these matters. That kind of history, if ever attainable, is told through the narratives of people like Lorna Cubillo and Peter Gunner, the examination of the available original documents and even in works of art, music and film. Further, it is discussed and takes it shape from government reports, academic tomes and commentary in the popular media and amongst the citizenry.

B. Provisional Conclusion I

The nature of a legal controversy may invite or require a judgment on history. But in most instances, legal methodology is ill suited to the task of inquiring into and then pronouncing upon what happened in the past. And whilst legal truth does not in my view equate necessarily with historical truth, a legal judgment is itself an important historical document and one whose authority may increase over time through the doctrine of precedent. These factors point to the difficulties, dangers and consequences of delivering legal judgments on the past and underline why a judge ought to proceed with care and caution when doing so.

On the other hand, the processes and rules governing the conduct of a trial make a court institutionally capable of assessing the quality and veracity of a historiography. The capacity and, therefore legitimacy, of a court doing so in any particular case will, however, turn on the availability and completeness of the relevant historical materials.

IV. The Treatment Of History Denial As Racial Vilification Under Current Australian Law

A. The Existing Regulatory Framework

For two reasons the RDA 1975 (Cth) will be the focus of this article. First, as a Commonwealth law its scope and operation is Australia-wide. Second, it contains the lowest harm threshold of the current Australian racial vilification laws.^[99] So it is likely that a person claiming that an instance of history denial amounts to unlawful racial vilification will choose to proceed under the RDA.

In any event, sections 18B & C, the relevant provisions of the RDA, read as follows:

S 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.

S 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.

There is no reason why pernicious forms of history denial cannot offend this objective and relatively low harm threshold.^[100] Indeed, the Federal Court has so held in three recent cases involving particularly crude anti-Semitic conduct that included the reproduction of some of the more extreme Holocaust denial tracts.^[101] These cases, however, did not involve the kind of sophisticated historical narratives of concern to this article. For the language and method employed in these instances was so direct and viscerally offensive and the claims made so extreme, that the finding of unlawful racial vilification was a formality.

1. The unique challenge posed by history denial as racial vilification

(a) Is there a problem with the regulatory capacity of the objective harm threshold and the free speech/public interest defences in Australian racial vilification law? For two reasons the application of Australian racial vilification law to more sophisticated forms of history denial is not so straightforward. First, if a historical narrative is the product of detailed research, written capably and employs the trappings of academic scholarship, it is difficult for most persons (including judges) to assess a claim that it offends the objective harm threshold outlined above. For example, the relevant test under the RDA is to ask whether the impugned conduct is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate a person or group on account of their race.^[102] It is, therefore, possible that instances of history denial may not in all the circumstances offend this objective harm threshold for its racist message will elude all (including the ‘reasonable victim’^[103]) but the relevantly specialised historian. So it may appear that current Australian law and the manner in which it must be applied, has no analytical tool capable of identifying particularly sophisticated instances of racial vilification. On the other hand, the effect of the impugned conduct must, pursuant to s 18C, be assessed in all the circumstances, so a judge or decision-maker can probably consider other relevant conduct to place the historical work in its proper context.

Second, the RDA and its State and Territory equivalents provide a range of free speech/public interest defences that may operate to protect history denial as racial vilification.^[104] The relevant section of the RDA reads as follows:

S 18D – Exemptions:

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 very nature and form of history denial lends itself to a defence that it was undertaken for at least one of these purposes. In relation to the nature and scope of these defences, Michael Chesterman has observed that

because the legislation requires no consideration of truth or falsity and contains this ‘public interest’ ground of exoneration, what it chiefly proscribes is incivility in the style and content of publication of racist material, not racist content as such.^[105]

So he considers that ‘publicly denying the Holocaust or articulating a theory of racial inferiority’^[106] (possible instances of racial vilification) may be actionable under Australian law depending ‘on whether it transgresses relevant standards of “civility”.’^[107] This understanding of the law led Margaret Thornton to decry it as a ‘clear manifestation of the social reality that racist acts of social elites are privileged, even though the harm occasioned by such acts may be more pervasive that that arising from a crude tract’.^[108] So in the words of one American free speech theorist, ‘limit[ing] censorship to the epithet, create[s] a two-tier approach: chilling of blue-collar muck and preservation of upper-crust mud’.^[109] If this is true, then sophisticated instances of history denial as racial vilification cannot be regulated meaningfully under current Australian law. However, my analysis in the next part of the article casts significant doubt on Thornton’s claim that Australian law accords a privileged status to the ‘racist acts of social elites’.^[110]

(b) The importance of the ‘good faith’ requirement. The notion that promoting a ‘civil’ discourse is the primary concern of Australian racial vilification laws is supported by the view that ‘reasonably’ in the context of the free speech/public interest defences refers to the method by which a message is conveyed not the content of the message itself.^[111] Indeed, the defences exist to protect inquiry and debate on matters of academic, scientific, research and public interest even when certain points of view will be, by definition, offensive, humiliating or intimidating to some on account of their race or ethnicity.^[112] But the relevant act of racial vilification must be done ‘reasonably’ and in ‘good faith’ before a defence is available. ‘Good faith’ in this context ‘appears to imply the absence of “spite, ill-will or other improper motive”’.^[113]

It is important, however, to note that having an ‘honest belief’ as to the truth of the (racist) message conveyed by one’s conduct is not synonymous with acting in ‘good faith’ under Australian racial vilification law.^[114] That is, a belief in the truth of a racist message alone will not attract a defence if the conduct was undertaken due to spite, ill-will or for another improper purpose.

Want of subjective good faith, ie seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act.^[115]

This was made clear in Scully when Hely J did not doubt the sincerity of the respondent’s extreme anti-Semitic views but considered that the vilification of Jews being her underlying purpose ‘then reasonableness, good faith and genuineness of purpose would not be found’.^[116] The case law suggests that the more extreme the racist message the more likely it will be held that the conduct was done for a purpose other than to advance inquiry and debate on a matter of academic, artistic, scientific or public interest. The application of the ‘good faith’ requirement has served to evaluate the racist content of a message and limited in fact how extreme it can be.^[117] This is consistent with Chesterman’s view that ‘incivility’ in the context of Australian racial vilification law ‘is not just a matter of style. It calls for both style and content to be taken into account’.^[118] The consequence is that acts ‘which have such a powerful negative impact on their victims and other hearers, by virtue of both derogatory content and abusive style’,^[119] will amount to unlawful racial vilification under current law.

However, the nature of history denial is such that the derogatory content is often couched in the language of dispassionate academic or scientific inquiry and the style is anything but abusive. And, as noted, if a defence is available then a person may communicate lawfully a racist message (derogatory content) that offends, humiliates or intimidates another person or group. But Australian law is not so ill-equipped to deal with this species of racial vilification as it may first appear. For even if an act that offends the objective harm threshold is done reasonably and for an academic, scientific, research or other public interest purpose, it will still be unlawful if not done in good faith. In other words, if a historical work is motivated by spite, ill will or another improper purpose then the free speech/public interest protection otherwise available under Australian racial vilification law is lost.

For this reason a deliberate falsification or distortion of the historical record of the kind undertaken by David Irving and considered in his libel trial would fall foul of current Australian law.^[120] Gray J considered that Irving’s motivation for doing so was to present historical events in a manner consonant with his ideological beliefs.^[121] They included being ‘an apologist for and a partisan of Hitler’^[122] and a ‘right-wing pro-Nazi polemicist’^[123] who was profoundly anti-Semitic and racist.^[124] The important point is that such a finding demonstrates that Irving’s historical research was undertaken for an improper purpose and would on that account constitute an absence of ‘good faith’ under current Australian law.

So in the ‘good faith’ requirement, Australian judges and decisionmakers do have a legal standard that when applied is capable of identifying and flushing out instances of history denial as racial vilification. As in other areas of law where this legal standard is employed, the application of the ‘good faith’ requirement is neither obvious nor without controversy.^[125] And regarding a claim of unlawful history denial, it will be a more onerous task for a complainant to demonstrate an absence of ‘good faith’ and therefore establish a case of racial vilification (as will be outlined below) and properly so. For the legal proscription of speech is no small matter, particularly when it is otherwise done ‘reasonably’ and for an academic, scientific, research or other public interest purpose. However, what constitutes an absence of ‘good faith’ in the context of Australian racial vilification law has been uncontroversial^[126] and judges can at least draw upon the ‘good faith’ jurisprudence in other areas of law and their own experience in its application. In any event, the important point is that my analysis demonstrates that sophisticated instances of history denial are not beyond the reach of current Australian racial vilification laws.

Indeed, and on the contrary, the judgment in Irving may raise a serious free speech concern that the writing of inaccurate or mistaken (as opposed to deliberately false) history may attract legal sanction. As Australian constitutional lawyer and historian Helen Irving has noted:

Accuracy is important, of course, especially in terms of credibility. But historians live in glasshouses. All works of history, even the classics, contain errors. None would stand the test, if that were all that mattered.^[127]

The discovery, however, of mistakes in an historical account may evidence a lack of intellectual merit and research expertise, but not, without more, an absence of ‘good faith’. Even if there existed a catalogue of mistakes in the one direction—that is in each instance the mistake buttressed or undercut a particular viewpoint or theory—that too would or ought to be insufficient to establish an absence of ‘good faith’ under current Australian racial vilification law. For, as Helen Irving again notes, ‘there is no way of proving that inaccuracies in anyone’s work are deliberate’.^[128] But it is well to remember that in Irving it was numerous and deliberate falsifications and distortions of the historical record in the one direction, not mistakes^[129] that were of significance to the law and the final judgment of Gray J:

I find myself unable to accept Irving’s contention that his falsification of the historical record is the product of innocent error or misrepresentation or incompetence on his part … [I]t appears to me that the correct and inevitable inference must be that for the most part the falsification of the historical record was deliberate and that Irving was motivated by a desire to present events in a manner consistent with his own ideological beliefs even if that involved distortion and manipulation of historical evidence.^[130]

Similarly, this catalogue of historical falsifications in the one (racist) direction would in my view constitute an absence of ‘good faith’ under Australian racial vilification law as noted above. But the important point is that even if mistakes in a historical work are numerous, serious and ideologically consistent they will not (or should not) disclose an improper purpose or motive for the publication unless they stem from deliberate, widespread and identifiable falsifications of the historical record. So in this regard, it is my argument that, through the proper application of the ‘good faith’ requirement, current Australian racial vilification law is capable of making the crucial distinction between a mistakenly flawed and deliberately false historiography.^[131]

In the next part of the article I want further to consider the free speech concern outlined above and test my argument that current Australian law can distinguish between history denial as racial vilification and controversial but bona fide historical scholarship. Part of this analysis will involve using the controversy generated by the publication of a polemical historical narrative written by Keith Windschuttle as a case study. It is an appropriate vehicle to assess both claims as the author and his supporters consider his tome to be controversial but bona fide historical scholarship whilst others view it as deeply flawed and maybe an instance of racial vilification.

B. Why Australian Racial Vilification Law Is Equipped Theoretically To Distinguish Between Controversial But Bona Fide Historical Scholarship And History Denial As Racial Vilification

1. The ‘History Wars’ and the Windschuttle controversy: a case study

The Australian ‘History Wars’ refers to the controversy that erupted upon the publication in November 2002 of Keith Windschuttle’s The Fabrication of Aboriginal History, Volume 1 (‘Fabrication’).^[132] In essence, the author claims that historians such as Henry Reynolds and Lyndall Ryan form part of a ‘prevailing consensus’^[133] and academic orthodoxy that, for political reasons, have constructed a myth that Tasmanian aborigines were killed by British colonisers systematically and en masse.^[134] According to Windschuttle, the central political reason is the construction of a historical narrative that furthers Aboriginal interests and in particular its legal claim for indigenous land rights.^[135] This came to fruition in the High Court’s landmark judgments in Mabo^[136] and Wik^[137] where the judges ‘were strongly influenced by their arguments’.^[138] Windschuttle ‘argue[s] that the story the historians have constructed does not have the empirical foundations they claim’:^[139]

Conflict was sporadic rather than systematic. Some mass killings were committed by both sides but they were rare and isolated events where the numbers of dead were in the tens rather than the hundreds. The notion of sustained ‘frontier warfare’ is fictional.^[140]

The response to Windschuttle’s thesis has been rapid, voluminous and sustained.^[141] His critics have characterised Fabrication as both a ‘very bad academic history [and] a poisonous political tract’.^[142] And, importantly for this article, suggested that ‘vilification is not too strong a word’^[143] for its attack on Tasmanian Aborigines. But, as one commentator has noted,

[t]he contributions from Reynolds and Ryan were very much concerned with his attacks on them and in parts were arguably as vitriolic as the attack they were responding to, alleging to various degrees that Windschuttle himself had engaged in distortion, manipulation and fabrication in his writing.^[144]

(a) The treatment of the ‘History Wars’ under defamation law: Lessons and insights for racial vilification law: Lawrence McNamara has recently considered the possibility of defamation law being used to settle the disputes of the ‘History Wars’.^[145] His article contains some valuable insights and arguments regarding the Windschuttle controversy and the problematic intersection between history and law more generally.

(i) The distorting impact of legal judgments on history: Notwithstanding misgivings that he has with the notion of courts delivering judgments on history,^[146] McNamara considers that the nature of this kind of defamation action is superior to other legal actions in the following respect:

Given the ‘objective, fair-minded historian’ test, the court has to effectively determine whether the version of history at issue constitutes a plausible version of events. This will require an examination of the past, but it is a fundamentally different consideration of history than that which takes place in native title cases or criminal prosecutions. It is different because to a significant extent the debate about history takes place on the historians’ terms.^[147]

This view is supported by the observations of Richard Evans earlier detailed, that the court room ‘turned out to be rather a good place to settle the historical and methodological points at issue in the Irving case.’^[148] McNamara further notes that

[i]t is clear from the Irving case that a defamation framework provides an opportunity to address denialism by looking at motivation. That is, although denialism is on the one hand concerned with challenging a historical narrative, it is the unmasking of motivation that distinguishes between denialism and genuine revisionist projects of interpretation.^[149]

Whilst recognising ‘[t]he ability of defamation law to accommodate the interpretive dimensions of historical scholarship’,^[150] McNamara ultimately rejects it as an appropriate mechanism to settle the disputes of the ‘History Wars’. For, in contrast to Irving,

[w]here the History Wars are concerned there is far less documentary material that would empirically support a degree of factual certainty about the occurrence of particular events given the period under dispute is the early 19^th century. This makes a finding of implausibility on either side far less likely and, consequently, the distortive impact of a judgement far more likely.^[151]

That italicised part of the quotation appears to be his central concern. But might that observation as criticism be made about any legal judgment that has an impact beyond the immediate interests of the litigating parties? There is little doubt, for example, that a defamation outcome regarding the ‘History Wars’ (however decided) would have a wider and significant social, economic, political and cultural impact.^[152] And, moreover, that impact may well be distorted by the litigating parties, the media, relevant interest groups and governments amongst others. But the same may reasonably be said of judicial decisions that, for example, awarded damages to a mother for a wrongful birth,^[153] struck down a law that denied single woman and lesbians access to in vitro fertilisation programs,^[154] overturned an award of damages against a tobacco company to a woman dying of smoking-related cancer^[155] and held valid a law that protected a Tasmanian wilderness area from the building of a dam.^[156]

The critical distinction, however, between these cases and one concerned with history denial is that with that latter, once a particular account of history is given the imprimatur of law, even in the more limited sense described by McNamara, it is accorded a legitimacy that may be at odds with ‘the historian’s acceptance of ambiguity and conflicting interpretations’.^[157] And once enshrined in precedent, it may have a more profound and lasting (distorting) impact on the values and ‘self-understanding of the nation and its past’^[158] and how a particular (racial or ethnic) group history is understood and therefore situated under Australian law.

So whilst a defamation judgment on the disputes at the heart of the ‘History Wars’ would be significant culturally and for the legitimacy of the plaintiff’s thesis, its long-term legacy must not be overstated. If, for example, Keith Windschuttle were successfully to sue Lyndall Ryan for defamation, the wider cultural impact of that legal judgment on history would in my view be diluted or qualified to some extent if, for example, a new Commonwealth government won power, formally apologised to Australian Aborigines for past injustices, rolled back the coalition amendments to the Native Title Amendment Act 1998 (Cth) and established a fund to compensate families of the ‘Stolen Generation’. The judgment would still stand as an important historical document and provide a legitimacy fillip to Windschuttle and his supporters. But as my earlier analysis demonstrates, it presumes too much of the law’s cultural power to suggest that a legal finding that an account of the past is plausible (or vice versa) creates then enshrines an historical orthodoxy that becomes the final and definitive word on the matter amongst historians, the wider community and even the law.^[159]

(ii) The problems of evidence and fortuity: McNamara, however, identifies two further (and in my view more fundamental) problems with the use of defamation law to settle the disputes of the ‘History Wars’. I want to consider whether racial vilification law is similarly flawed and, if so, whether this undermines its capacity to regulate racial vilification.

The first problem, as noted, is that

[w]here the History Wars are concerned there is far less documentary material that would empirically support a degree of factual certainty about the occurrence of particular events given the period under dispute is the early 19^th century.^[160]

This evidential problem is not limited to defamation law. It is faced whenever a court must undertake a historical inquiry in order to determine a legal dispute. It is the ‘significant proviso’ earlier noted: when the part of the historical record relevant to the legal controversy is deficient, lost, destroyed or unable to be reconstructed through documentary or oral evidence then, for the purposes of law, history simply runs out.

The second is that the ‘Irving trial was … remarkable as it was only because Irving commenced the action that his work was subjected to scrutiny’.^[161] So the capacity of defamation law to examine the relevant and disputed historical record was, in that instance, fortuitous. Indeed, as McNamara notes, ‘it will always be the plaintiff’s work which is under the microscope; one cannot put an opponent’s thesis to the test by commencing legal action against them’.^[162]

Whilst the capacity of Australian racial vilification law to regulate history denial is subject to the ‘significant proviso’, it is not so procedurally shackled in terms of its operation as defamation law. At Commonwealth level, for example, a person or group with sufficient standing can initiate a complaint with the Human Rights and Equal Opportunity Commission (‘HREOC’) alleging that a denial of history amounts to an act of racial vilification.^[163] This empowers a purported victim to take legal action knowing that the impugned historical account will be the subject of administrative and possibly judicial scrutiny, if the HREOC decision is enforced or reviewed by the Federal Court. In this sense, the capacity of racial vilification law to regulate history denial is not fortuitous, which is a significant benefit.

(iii) A question of motivation rather than truth: McNamara considers that the law is better equipped to assess the motivation of a historian rather than determining the accuracy or otherwise of their account. This, he argues, is the case if a historian sues in defamation for an attack made on their work. This view has merit for at least two reasons.

First, unlike, for example, a native title case, the historian and their impugned historical account or narrative is front and centre in a defamation trial. In other words, consideration must be given to the complete historical work and the context in which it appears for a court to determine whether a defence of justification can be established. On the other hand, in a native title case a historian gives evidence upon a specific and discrete (at least in legal terms) historical question. The court is not concerned with how that specific question might sit within that historian’s wider narrative and the relevant literature more generally.^[164] So an answer provided for this limited judicial purpose can appear unequivocal when the opposite may well be closer to the truth. But the potential for an historical account to be misconstrued or even distorted is diminished if the law ‘permits history to enter the court as history’^[165] and not simply as a rhetorical tool to further a legal argument.

Second, undertaking an inquiry as to the reason or motivation for an act is something that courts routinely do. The application of the law of contract, crime and equity, for example, will often require a judicial assessment of this nature.^[166] The ability of a litigating party to provide written and oral evidence to this end and for the veracity of those assertions to be tested in cross-examination means a court is institutionally capable of (and experienced at) making reasonable assessments of this kind. The extent, however, to which this assessment can be made by a court—particularly in the context of a historical narrative—turns on the availability, quality and completeness of the (historical) evidence, another manifestation of the ‘significant proviso’ earlier noted.

Importantly for the purpose of this article, what will usually distinguish a controversial but bona fide historical account from an instance of history denial as racial vilification is the absence of ‘good faith’ in the case of the latter. If, for example, a complaint were made under the RDA that Fabrication constituted unlawful racial vilification, the likely battleground would be whether Windschuttle could establish that his historical narrative was written in ‘good faith’.^[167] This assumes that the work would offend the relevant harm threshold of being ‘reasonably likely in all the circumstances to offend, insult, humiliate or intimidate’ Australian Aboriginals and it was done because of their race.^[168] This assumption may well be disputed. But it is at least arguable that Fabrication may do so considering the low harm threshold^[169] and the nature of some of the general, more serious propositions that underpin Windschuttle’s thesis.^[170]

It is important to note here that the truth or otherwise of his narrative is not determinative of, and is indeed only marginally relevant to, the question of whether the harm threshold has been offended. The focus of the judicial inquiry would then turn to the availability or otherwise of a free speech/public interest defence under s 18D of the RDA. A critical examination of the existing historical literature on Tasmanian Aboriginals and consideration of whether that history has been fabricated by the relevant historians and others for political and economic gain is conduct that at the very least is done for a purpose that is in the public interest. It is, moreover, done ‘reasonably’ for the purposes of the public interest defence when the results of that research inquiry are published as articles in a widely circulating journal^[171] and in book form in prose that is impassioned and often indignant but in my view well within the bounds of acceptable civil and intellectual discourse.^[172]

The remaining and critical issue which then arises for determination is whether the historical account was written and published in ‘good faith’. The primary focus of this inquiry—and therefore the application of Australian racial vilification laws in these kinds of matters—is also the motivation or reason for Windschuttle’s historical narrative. It is a complex inquiry, as my analysis below will demonstrate.^[173] But it is, nevertheless, one that courts have the experience and institutional capacity to undertake and ‘permits history to enter the court’ on its own terms.^[174]

2. A practical concern with making a claim of history denial as racial vilification under current Australian law

(a) Is the cost of proving an absence of ‘good faith’ prohibitive?: The analysis in this part of the article has so far suggested that Australian racial vilification laws are reasonably well equipped to identify and regulate history denial as racial vilification. But if I am correct in my view that much will turn on whether the impugned historical narrative is published in ‘good faith’, then one problem may arise regarding the accessibility and therefore practical operation of these laws. It is the prohibitive cost that a party may have to incur in order to negative a defendant’s claim that their historical account was written in ‘good faith’.

In Irving, for example, Gray J found that the plaintiff deliberately falsified and distorted the historical record to present a narrative consistent with his virulent anti-semitism and pro-Nazi ideological agenda.^[175] This, as noted, is equivalent to and would constitute an absence of ‘good faith’ under current Australian law.^[176] But in order to demonstrate to the court the underlying motivation for Irving’s historical account, the defendants (Deborah Lipstadt and Penguin Books Ltd) had to expend vast sums of time and money to undertake the task of scrutinising his significant body of work. It involved the painstaking process of checking each asserted fact and supporting footnote by tracing back these references to the original source documents (often written in German) to evaluate their authenticity and accuracy.^[177] This task was undertaken by a Cambridge University Professor of history and two of his PhD students. There were, in addition, a series of expert reports compiled on, amongst other things, the facilities at Auschwitz, Irving’s political ideology and ‘his connections with the far-right, neo-fascist and extremist political organizations’.^[178] In any event, Penguin Books estimated that the trial cost in the order of £ 2 million^[179] and ‘Steven Speilberg and a number of other American Jews [contributed] to the cost of bringing Lipstadt to London for the three month trial’.^[180] It is reasonable to assume that Deborah Lipstadt could not have resisted the defamation action without this significant financial and logistical support.

The problem with sophisticated instances of history denial for current Australian law is that an inquiry of similar complexity, depth and therefore cost could be required in most cases in order to negative an authorial claim of ‘good faith’. For it possesses a close stylistic and methodological proximity to bona fide historical scholarship. And whilst it is the defendant (the author of the impugned history) who must establish ‘good faith’ under racial vilification law, without rebuttal evidence from the plaintiff then a positive finding is likely.^[181]

However, as noted, the legal proscription of speech is no small matter. And the free speech concern that racial vilification laws may operate to sanction inaccurate or mistaken (not just deliberately false) history is a serious one. So it is only proper that the complex and (potentially) costly task of negativing ‘good faith’ is borne by the complainant. A law that lessened this burden would make it easier to make complaints of unlawful history denial. And as I argue below, the low harm threshold in the RDA already makes it too easy for frivolous or vexatious complaints to be made against historians.^[182] And with it the serious consequence that historians are then forced to incur significant costs to resist a claim of unlawful racial vilification.^[183] The chilling potential on historical scholarship is manifest. So the cost of proving the absence of ‘good faith’ may be significant for the complainant. But it cannot and should not be otherwise if Australian racial vilification laws are to protect and promote freedom of historical expression.

(b) The cost benefits of the complaint procedure under the Human Rights and Equal Opportunity Commission Act 1986 (Cth): The procedure to make a complaint under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘HREOCA’) and its State and Territory equivalents is, however, more inquisitorial than adversarial.^[184] An aggrieved person, for example, can make a complaint in writing to the Human Rights and Equal Opportunity Commission (‘the Commission’) alleging an act of unlawful racial vilification. The Commission may then inquire into the complaint and attempt conciliation.^[185] In addition, HREOCA provides the Commission with the power to compel the production of information, documents and witnesses considered relevant to the inquiry.^[186]

In this way, some of the discovery-style costs that must be incurred to establish an instance of history denial as racial vilification are absorbed incidentally by the Commission in order to facilitate its inquiry. In the event that the President of the Commission terminates the complaint,^[187] the complainant may then institute proceedings in the Federal Court or the Federal Magistrates Court.^[188] It is at this stage of the procedure that the costs of rebutting a claim of ‘good faith’ may start to bite.^[189]

3. Why the harm threshold under s 18C of the Racial Discrimination Act 1975 (Cth) is a threat to controversial but bona fide historical scholarship and how it might be lessened

As noted, the harm threshold under the RDA is low. It makes it relatively easy for a complainant to force the author of an impugned historical account to defend a claim of unlawful racial vilification. It then falls to the author to marshal the significant resources necessary to establish a free speech/public interest defence. Whilst this may be likely if the complaint is in truth mischievous and the author is determined and well resourced, the chilling effect on controversial but bona fide historical scholarship may be significant. This is a serious freedom of speech concern. It was, for example, at the heart of the suggestion made recently by French J in Bropho v Human Rights and Equal Opportunity Commission that maybe the defences in the RDA ought to ‘be seen as defining the limits of the proscription in s 18C and not as a free speech exception to it’.^[190] It would then require the complainant to discharge the burden of proof regarding the exemptions not the respondent, as is currently the case. The chilling potential of current Australian racial vilification law on historical scholarship would be reduced as a consequence.

In my view, however, a natural reading of sections 18C and D discloses a parliamentary intent to ‘lay down [a] principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts’.^[191] This is evidenced by the general principle of liability outlined in s 18C and the special grounds for excuse contained in the following section which is headed ‘Exemptions’. In this instance, the burden of establishing an exemption properly falls on the respondent as a matter of form and substance.^[192]

In any event, even if that burden lies with the respondent and in the absence of a desirable statutory modification to elevate the s 18C harm threshold,^[193] the application of the principle of legality noted by French J may alleviate some of the free speech concerns with the RDA racial vilification provisions. This principle states that ‘[f]undamental common law rights are not to be eroded or curtailed save by clear words’.^[194] So the words ‘offend, insult, humiliate or intimidate’ are therefore construed narrowly to minimise the restriction on freedom of speech.^[195] It would then more closely resemble the harm threshold contained in a range of State and Territory laws where conduct will constitute unlawful racial vilification if it is likely ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person or group’ on account of their race.^[196] The harm threshold is, in effect, elevated and the chilling potential on controversial but bona fide historical scholarship is diminished.

Such a construction would also preclude from legal sanction a historian whose narrative is unlikely to breach a more elevated harm threshold but contains deliberate falsifications that suggest an improper purpose is at least one motivation for it. This may be significant in the context of the possible application of racial vilification law to the current ‘History Wars’ as Windschuttle’s critics consider Fabrication to be history denial for which ‘vilification is not too strong a word’.^[197] For this sort of accusation of racial vilification, it is best in my view for the law to err on the side of freedom of speech and allow the competing historical accounts to battle it out in the marketplace of ideas.^[198] Indeed the very presence in the marketplace of controversial, offensive or even bad faith historical narratives may spark academic debate and further scholarship and a wider public dialogue on matters of significant historical interest. This is precisely how a noxious idea or viewpoint may further rather than undercut the advancement of historical knowledge. The swift generation of a significant body of ‘History Wars’ literature buttresses my argument that the robust exchange of historical arguments and accounts in the free speech marketplace may offer in this instance the best forum for these sorts of controversial historical issues to be played out.^[199] But it is not a case of historical inquiry as free speech anarchy. On the contrary, there are the strong ethical and scholarly traditions of the discipline itself^[200] and the possibility of legal sanction when the doing of history becomes a vehicle for the expression and promotion of racial hatred.

C. Provisional Conclusion II

1. Australian racial vilification law can regulate meaningfully history denial as racial vilification

My analysis demonstrates that with one significant exception Australian racial vilification law has the capacity to regulate meaningfully history denial as racial vilification. That exception is the low and ambiguous harm threshold in s 18C of the RDA. The free speech concern that it engenders is not answered or assuaged by the broad scope of the defences provided for in s 18D. For the low RDA harm threshold makes it too easy for a complainant to bring a racial vilification claim against a controversial historian who must then either conciliate or marshal the necessary resources to defend the accusation. In any event, the law’s chilling potential is very real. As noted, the application of the principle of legality discussed by French J in Bropho may operate, in effect, to elevate the harm threshold. But a formal statutory amendment to s 18C of the RDA along the following lines is, in my view, required:

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 incite hatred towards, serious contempt for, or severe ridicule of 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.

This would achieve greater consistency in the operation of racial vilification law throughout Australia,^[201] cure some of s 18C’s current ambiguity^[202] and, most importantly for this article, diminish the likelihood of controversial but bona fide historical scholarship being chilled or proscribed by law.

2. No case exists for major legislative surgery or a specifically tailored law to proscribe history denial as racial vilification

It would also be imprudent in my view to adjust the current legal framework to make it easier for a person to pursue a claim of history denial as racial vilification. There is the possibility that the success or otherwise of such a claim may turn on the ability of a complainant to secure the significant resources that may be needed to establish that an historical narrative was not written in good faith. But for four reasons, that concern is not sufficient to warrant a change to the law.

First, there are public and private avenues currently available for a complainant to secure the required financial and legal support. There is provision in the RDA to apply for assistance in this regard and it may be granted by the Attorney-General if ‘it will involve hardship to that person to refuse the application’ and ‘in all the circumstances, it is reasonable to grant the application’.^[203] Moreover, as noted, the most likely candidates in Australia of history denial as racial vilification are Holocaust and white settlement revisionists. Irving demonstrated that, at least in the former case, there is a decent chance that the litigant affirming the Holocaust will secure some amount of private benefaction. Second, that few cases of history denial as racial vilification are likely to arise in Australia cautions against the reform of otherwise decent and established laws to target a quantitatively small menace. And third, the comprehensive nature of the judgment of Gray J in Irving and the substantial body of historical scholarship generated by the ‘History Wars’ in Australia provides a strong and accessible evidential foundation in the event of a future claim of Holocaust or white settlement denial as racial vilification. The potential financial and legal burden on a complainant for discovery and research costs is lessened as a consequence. And fourth and most importantly, any change to the current law along these lines would, as noted, seriously chill the freedom of historians to write controversial but bona fide historical scholarship.

A corollary of my conclusion that racial vilification law can regulate meaningfully history denial as racial vilification is that no case can be made in Australia for specifically tailored laws to this end. There are two further reasons for eschewing the path taken, for example, by a number of European countries including Austria, France and Germany where Holocaust denial is a crime.^[204] First, as Jonathan Cooper and Adrian Marshall Williams point out:

From a French and continental European perspective, their more direct experience of Nazism has often resulted in a nexus of laws to prevent its resurgence, so that Holocaust denial laws may be a piece of legislation that completes the jigsaw. Additionally, those States with a direct experience of the Holocaust may also have a further, possibly cathartic, motive for introducing such legislation. As silent witnesses to the Holocaust, governments may wish to make a public statement acknowledging that the Holocaust happened and that the Government was part of it and responsible for it.^[205]

Notwithstanding the presence of Holocaust survivors and their families within Australia, in my view our specific historical context does not have the same resonance or carry with it a comparable moral and political imperative. Second, there are rule of law concerns both in the targeting of specific individual persons or groups who propound offensive historical narratives and then the difficulty of drafting reasonably clear laws to proscribe these activities. These concerns do not imperil the constitutionality of such laws but may operate to undermine their long-term efficacy.^[206]

V. Conclusion

This article has made two key arguments. The first is that a court is not equipped to deliver definitive judgments on the past but, through its established rules and procedures, it is institutionally capable of assessing the quality and veracity of a historiography. Its capacity to do so in any given case will, however, turn on the availability, quality and detail of the relevant historical materials and judicial cognisance of the significant difficulties that attend judicial pronouncements on the past.

The second argument is that Australian racial vilification law can regulate meaningfully history denial as racial vilification and do so in a manner that for the most part is sensitive to and accommodating of controversial but bona fide historical inquiry. I have, however, suggested that the low harm threshold in s 18C of the RDA ought to be elevated by statutory amendment to underscore this free speech commitment and diminish the law’s chilling potential.

Finally, my analysis has demonstrated that the primary concern of Australian racial vilification law in regards to impugned historical narratives is not to make definitive pronouncements as to their accuracy or otherwise. It is to address the narrower mischief of employing history as a vehicle to express and promote racial hatred. In the course of making such an assessment, it may require a judge to form a view as to whether an account is seriously flawed and deliberately so. But this is done to establish whether it was written reasonably and in good faith not for the sake of historical truth and posterity per se.

^[*] School of Law, Deakin University. My thanks to Irene Nemes, Alex Reilly, Professor George Williams and the two anonymous referees for providing valuable comments and suggestions on earlier drafts of this article. An earlier draft of this article was presented at the 24^th Annual Conference of the Australia & New Zealand Law & History Society held at the University of Auckland, New Zealand in July 2005. It greatly benefited from the feedback it received from the conference participants.

[1] W Faulkner, Requiem for a Nun (1951) Act I Scene III.

^[2] It is to be contrasted with forms of history denial where vitriolic language is used and bizarre claims are clearly being made. These instances pose few regulatory problems for current Australian racial vilification law—see below Part IV(A).

^[3] See for example the Journal of Historical Review. It is published by an extreme right wing organization operating in the United States called the Institute for Historical Review. David Irving says of the journal that it ‘has an astounding record of fearlessly shattering the icons of those vested interests who hate and fear the truth’. The Institute for Historical Review also maintains a well resourced website, organises regular conferences and has published the work of David Irving and Fred Leuchter amongst others. It is most well known for its frequent publications and conferences on Holocaust denial. On the Institute for Historical Review see further D Lipstadt, Denying the Holocaust: The Growing Assault on Truth and History (1993) 137-156.

^[4] E H Carr, What is History? (1961) 26-27.

^[5] R Evans, In Defence of History (1999) 220.

^[6] K Jenkins, Re-thinking History (1991) 9.

^[7] For a detailed examination of the historiography of David Irving see Irving v Penguin Books Ltd & Deborah Lipstadt [2001] QB 115 [13.1]-[13.168] (‘Irving’) and R Evans, Telling Lies About Hitler: The Holocaust, History and the David Irving Trial (2002).

^[8] See below Part IV(A)(1)(b)

^[9] Racial Discrimination Act 1975 (Cth) s 18C (‘RDA’).

^[10] RDA s 18D.

^[11] I am employing here the distinction between ‘history and ‘the past’ made by Jenkins: [H]istory is one of a series of discourse about the world. These discourses do not create the world (that physical stuff on which we apparently live) but they do appropriate it and give it all the meanings it has. That bit of the world which is history’s … object of inquiry is the past. History as discourse is thus in a different category to that which it discourses about, that is, the past and history are different things’—above n 6, 5.

^[12] In the Australian context, see for example A Zanghellini, ‘Jurisprudential Foundations for Anti-Vilification Laws: The Relevance of Speech Act and Foucauldian Theory’ [2003] MelbULawRw 17; (2003) 27 Melbourne University Law Review 458; K Gelber, Speaking Back: The Free Speech Versus Hate Speech Debate (2002); R Blackford, ‘Free Speech and Hate Speech’ (2001) 45 Quadrant 10; M Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 193-248; A Flahvin, ‘Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles’ [1995] UNSWLawJl 17; (1995) 18 University of New South Wales Law Journal 327; I Freckleton, ‘Censorship and Racial Vilification Legislation’ [1994] AUJlHRights 20; (1994) 1 Australian Journal of Human Rights 327; K Mahoney, ‘Hate Vilification Legislation and Freedom of Expression: Where is the Balance?’ [1994] AUJlHRights 21; (1994) 1 Australian Journal of Human Rights 353; W Sadurski, ‘Offending With Impunity: Racial Vilification and Freedom of Speech [1992] SydLawRw 14; (1992) 14 Sydney Law Review 163.

^[13] The following Australian jurisdictions have racial vilification laws: RDA 1975 (Cth) Part IIA; Anti-Discrimination Act 1977 (NSW) ss 20(C), (D); Criminal Code (WA) ss 76-80; Racial Vilification Act 1996 (SA) ss 3, 6; Civil Liability Act 1936 (SA) s 73; Discrimination Act 1991 (ACT) ss 65-67; Anti-Discrimination Act 1991 (Qld) ss 124A, 131A; Racial and Religious Tolerance Act 2001 (Vic) ss 7-14, 24-25; Anti-Discrimination Act 1998 (Tas) ss 17, 19, 55.

^[14] But for a robust defence of freedom of speech and a well-reasoned argument that racial vilification legislation undermines it see L Maher, ‘Free Speech and its Postmodern Adversaries’ (2001) 8(2) Murdoch University Electronic Journal of Law.

^[15] On the role freedom of speech concerns played in shaping the content of Australian racial vilification laws see Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 43-49, 127-130, 234-237, 272-279, 304-307.

^[16] The racial vilification laws of New South Wales, the ACT, South Australia, Queensland and Victoria contain civil and criminal sanctions. The laws of the Commonwealth and Western Australia contain only civil and criminal sanctions respectively.

^[17] See below Part IV(A).

^[18] But see below nn 198-200 and accompanying text where it is suggested that controversial, offensive and even bad faith historical narratives may spark academic debate and further scholarship and a wider public dialogue.

^[19] D Meagher, ‘The Protection of Political Communication Under the Australian Constitution’ [2005] UNSWLawJl 4; (2005) 28 University of New South Wales Law Journal 30.

^[20] Ibid Part III(C)(2).

^[21] Ibid Part III(C)(3). But see Zanghellini, above n 12, for an argument that Australian racial vilification laws offend the implied freedom and are unconstitutional for prohibiting Anglo-Australian vilification.

^[22] There were three landmark reports written during the 1990’s that documented the serious threat that racial hatred and violence poses for a harmonious and multicultural Australia. They were: Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997); Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992); and Human Rights and Equal Opportunity Commission, Racist Violence: Report of the National Inquiry into Racist Violence in Australia (1991).

^[23] For an argument along these lines see M Thornton, The Liberal Promise: Anti-Discrimination Legislation in Australia (1990) 50.

^[24] See, eg R Blackford, above n 12, 13; W Sadurski, above n 12, 180-187; F Schauer, Free Speech: A Philosophical Enquiry (1982) 10-12.

^[25] M Shermer and A Grobman, Denying History: Who Says the Holocaust Never Happened and Why Do They Say It? (2000) xv.

^[26] Ibid.

^[27] D Lipstadt, ‘Denying the Holocaust’, above n 3, 23.

^[28] See above n 1.

^[29]On this point regarding hate speech more generally see S Fish, The Trouble With Principle (1999) 70-72.

^[30] For example, there is legislation in Austria, France, Germany and the Netherlands which makes it a criminal offence to deny the Holocaust—see J Cooper and A M Williams, ‘Hate Speech, Holocaust Denial and International Human Rights Law’ (1999) 6 European Human Rights Law Review 593; L Douglas, ‘Policing the Past: Holocaust Denial and the Law’ in R Post (ed), Censorship and Silencing: Practices of Cultural Regulation (1998) 67. See also Robert Faurisson v France, Communication No 550/1993, UN Doc CCPR/C/58/D/550/1993 (1996). In that case, the United Nations Human Rights Committee found the French law (‘Gayssot Act’) which made it ‘an offence to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945’ to be compatible with the right to freedom of expression guaranteed by Article 19 of the International Covenant on Civil and Political Rights. Consequently, Robert Faurisson’s conviction, for denying that there were homicidal gas chambers used for the extermination of Jews in Nazi concentration camps, was upheld.

^[31] See below Part IV(C)(2, for my argument that Australian racial vilification law ought not to be amended to make Holocaust denial a criminal offence.

^[32] I add the qualification ‘meaningfully’ for history denial as a sophisticated form of racial vilification is already prima facie proscribed under Australian law if it offends the relevant harm threshold and no free speech/public interest defence is available. However, a central concern of this article is whether it is possible, in practice terms, for the law to regulate matters of history. This important threshold question is considered in Part III (A).

^[33] On this point and the issue of justiciability more generally see G Lindell, ‘Justiciability’ in T Blackshield, M Coper and G Williams (eds), The Oxford Companion to the High Court of Australia (2001) 391.

^[34] See above text accompanying nn 13-16.

^[35] It should, however, be noted that some courts, in Germany for example, have taken judicial notice of the events known as the Holocaust. On this point see E Stein, ‘History Against Free Speech: The New German Law Against “Auschwitz”—And Other—“Lies”’ (1986-1987) 85 Michigan Law Review 277, 290-291. My thanks to Irene Nemes for this point. On the other hand, in the first trial of Ernst Zundel for the offence of wilfully publishing false news under s 177 of the Canadian Criminal Code, the trial judge refused to take judicial notice of the Holocaust for he considered that such a course would substantially relieve the Crown of its duty to prove the guilt of the accused. For further discussion of the Zundel trial see: L Douglas, above n 30; and L E Hill, ‘The Trial of Ernst Zundel: Revisionism and the Law in Canada.’ (1989) 6 Simon Wiesenthal Center Annual 165-219. My thanks to one of the anonymous referees for this point.

^[36] For an example of this see below Part IIIA(2).

^[37] (1998) 136 ACT 9 (‘Nulyarimma’).

^[38] The Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606.

^[39] Nulyarimma (1998) 136 ACT 9, 13-19.

^[40] Ibid 13. My thanks to Alex Reilly for bringing this judgment to my attention.

^[41] Yorta Yorta [1998] FCA 1606 [129]. For excellent critical accounts of the use of this evidence in Yorta Yorta see A Reilly, ‘The Ghost of Truganini: Use of Historical Evidence as Proof of Native Title’ (2000) 28 Federal Law Review 453, 462-465; D Ritter, ‘The Judgement of the World: The Yorta Yorta Case and the “Tide of History”’ (2004) 35 Australian Historical Studies 106.

^[42] Irving [1.3] (emphasis added).

^[43] D Lipstadt, ‘Denying the Holocaust’, above n 3, 181.

^[44] See Irving [13.91].

^[45] Ibid.

^[46] (2002) 120 FCR 243 (‘Scully’).

^[47] Unlike the relevant Irving publications, however, the pamphlet in Scully was not what I consider sophisticated racial vilification. The language employed was so direct and viscerally offensive and the claims made so extreme and paranoid that the finding of unlawful racial vilification was a formality. They included, that Jews controlled global pornography and engaged in sexual practices against their children in addition to the standard Holocaust denial claims.

^[48] Scully (2002) 120 FCR 243, 291.

^[49] Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1, 196.

^[50] See, eg, E H Carr, above n 4, 7-24.

^[51] H White, Tropics of Discourse: Essays in Cultural Criticism (1978) 28.

^[52] Ibid 29. See also R Evans ‘In Defence of History’, above n 5, 4-9, 11-14; for a more detailed account see P M Rosenau, Post-Modernism and the Social Sciences: Insights, Inroads and Intrusions (1992) 62-76.

^[53] On this point see G Spiegel, ‘History and Post-Modernism’ (1992) 135 Past and Present 189.

^[54] R Evans ‘In Defence of History’ above n 5, 4.

^[55] See above n 49 and accompanying text.

^[56] T Blackshield, M Coper and G Williams, above n 33, 326. The core of this reference comes from A Portelli, ‘The Law and the Making of History: the “April 7” Murder Trial’ (1985) 20 History Workshop 31, where the author wrote that ‘[h]istorical truth is hardly ever more than a descriptive hypothesis; legal truth has a performative nature. Whether things happened as the court says or not, to all practical purposes they now did: a court [decision] creates truth … [l]egal truth, in turn has a tendency to become historical truth as well’.

^[57] L McNamara, ‘History, Memory and Judgment: Holocaust Denial, The History Wars and Law’s Problems with the Past’ [2004] SydLawRw 16; (2004) 26 Sydney Law Review 353, 375(footnote omitted).

^[58] Ibid 376.

^[59] See above n 56.

^[60] [1992] HCA 23; (1992) 175 CLR 1. (‘Mabo’)

^[61] Ibid 38 (Brennan J).

^[62] Ibid 107 (Deane and Gaudron JJ); 181 (Toohey J).

^[63] [1999] HCA 30; (1999) 199 CLR 462.

^[64] See below Part III(A)(2).

^[65] On this point see L McNamara, ‘History, Memory and Judgment’, above n 57, 376-379.

^[66] Justice Gummow has made a roughly equivalent point regarding the use of history in constitutional interpretation—Change and Continuity: Statute, Equity and Federalism (1999) 82, 84, 86.

^[67] Ibid 82.

^[68] [2001] HCA 36; (2001) 207 CLR 278, 287-290 (Gleeson CJ and McHugh J), 296-301 (Gaudron, Gummow and Hayne JJ), 320-333 (Kirby J), 338-343 (Callinan J).

^[69] For critiques of the High Court’s use of historical materials to interpret the Australian Constitution see A Simpson and M Wood, ‘“A Puny Thing Indeed”—Cheng v The Queen and the Constitutional Right to Trial by Jury’ [2001] FedLawRw 5; (2001) 29 (1) Federal Law Review 95, 107-111 and R McQueen, ‘Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia’ (1990) 19 Federal Law Review 245. There is also the more specific issue as to the bindingness or otherwise of the original intention of the framers of the Australian Constitution in the elucidation of contemporary constitutional meaning. See for example the exchange on this issue between Justice Michael Kirby (‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1) and Professor Jeffrey Goldsworthy (‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677). It is important to note, however, that even Justice Kirby (who rejects the bindingness of the framers’ original intentions even if they are discoverable) recognises that it is appropriate and helpful in some circumstances to examine the history of a constitutional word or phrase and its legal heritage in order to ascertain its contemporary constitutional meaning — see Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 523 (Kirby J); Re Refugee review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 133 (Kirby J).

^[70] See W M C Gummow, above n 66, 80-88; and on the legitimate and necessary use of historical materials in both its constitutional and common law work see Justice Michael Kirby, ‘Living With Legal History in the Courts’ (2003) 7 Australian Journal of Legal History 17.

^[71] Irving [1.3].

^[72] Ibid.

^[73] But see A Reilly, above n 41, 467-468 where the author notes that courts place ‘great faith on the determinacy of historical records’ and traditionally accord less weight to oral testimonies. This can make it more difficult to establish native title at common law though ‘may be … the written word is no less reliant on memory than oral history’. See also 469-472 where Reilly notes the importance and legitimacy of courts permitting historians to give expert evidence (in native title claims).

^[74] Lawrence McNamara has made a similar point as to how a defamation action might operate if employed by an historian to resist a claim of history denial. In such instances ‘[t]he court does not need to arrive at a conclusion about what happened in the past. Rather, it need only arrive at a conclusion about what might have happened. The ‘oceans of uncertainty’ can be acknowledged because the search is for plausibility and not the certainty of a historical narrative’: above n 57, 379. This is a very different inquiry to one where a judge seeks to make a definitive pronouncement on the past. As McNamara rightly points out, it is then that disjunctures between law and history come into sharp relief. In particular, that court and historians have divergent methods for ascertaining the truth and do so for very different reasons: at 376 - 379

^[75] See A Reilly, above n 41, 460 where the author, after detailing the successful establishment of native title in Ward v Western Australia [2000] FCAFC 191; (2000) 170 ALR 159, says that ‘[i]n other claims, in which the claimants do not have access to such a wealth of documentary evidence of a continuing connection to land, claimant groups are more vulnerable to the impact of the narrative of extinction in historical evidence’. This may operate harshly on those other claimant groups but a court must be cognisant of its limited institutional capacity to reconstruct the past in the absence of written or oral testimony that can be tested through the usual court procedures such as cross examination. In my view, established rules of evidence should not be relaxed in order to facilitate what may be considered a morally sound judgment.

^[76] For detailed accounts of the Irving trial see Yehuda Bauer, ‘Holocaust Denial: After the David Irving Trial’ (2003) 15(1) Sydney Papers 154; R Evans, ‘Telling Lies About Hitler’, above n 7; D D Guttenplan, The Holocaust on Trial: History, Justice and the David Irving Libel case (2001); D Lipstadt, ‘Irving v Penguin UK and Deborah Lipstadt: Building a Defense Strategy’ (2002) 27 Nova Law Review 243; R van Pelt, The Case for Auschwitz: Evidence from the Irving Trial (2002).

^[77] For a summary of these concerns see R Evans, ‘Telling Lies About Hitler’, above n 7, 194-196.

^[78] Ibid 196.

^[79] A few points are, however, worth noting that suggest the objectivity of Evans’ expert evidence and therefore ability to make a reasonable appraisal of the trial processes in regards to doing history. Before the trial Evans was not intimate with Irving’s work though he was aware of his reputation as a military historian and as a ‘famously combative figure’:see ibid 14, 36. Evans’ speciality was modern German history, not the Holocaust or World War II. In this sense, he came to the oeuvre of David Irving with fresh eyes and the analytical tools (command of the German language and familiarity ‘with the documentary basis on which a lot of modern German history was written’: ibid 14) necessary to critically evaluate its scholarly integrity. In addition, the primary duty of Evans as an expert witness was to the Court, not the defence. His role was to help the judge understand a body of knowledge beyond the realm of judicial expertise in order to assist in the determination of a fact in issue. To be sure, his report would not have been utilised unless favourable to the defence and expert witnesses are not infallible or always free from bias. But the possibility of a well-respected academic historian deliberately writing a flawed or misleading report is significantly reduced when that person knows that he must testify to and be cross-examined upon its contents on oath.

^[80] Ibid 197.

^[81] This was also assisted by the absence of a jury which dispensed with the need for the defence witnesses having to give their (long and complex) evidence orally.

^[82] The trial process was not however perfect by any means. Most notable was the fact that Irving represented himself. This put him at a serious disadvantage, particularly during the discovery process. It resulted in the reception of much (otherwise excludable) material—see D D Guttenplan, above n 76, 90-103. But one can brook no serious objection on that account for it was Irving who brought the libel action.

^[83] On the conduct of the trial see R Evans, ‘Telling Lies About Hitler’, above n 7, 198-201.

^[84] See Irving [13.71]-[13.91].

^[85] Ibid [13.91].

^[86] See, eg, ibid [13.39] and [13.47].

^[87] See, eg, ibid [13.25].

^[88] It is worth noting here the interesting point made by Lawrence Douglas regarding the adversarial trial and cases involving accusations of Holocaust denial. He notes that by permitting Holocaust deniers and revisionists to lead expert evidence, it ‘may have the ironic effect of contributing to the erosion of the very boundary between truth and fiction that the law attempts to police’—above n 30, 80-81. The response to this is that a trial must be fair and a litigant must be allowed to present their case in full. And, in any event, it is within the discretion of the trial judge to permit or allow a person to give expert evidence.

^[89] On this point see R Evans, ‘In Defence of History’, above n 5, 3-12.

^[90] H Irving, ‘Footnotes to a War’ (Historical Research), Spectrum, Sydney Morning Herald (Sydney), 13-14 December 2003, 6.

^[91] [2000] FCA 1084; (2000) 103 FCR 1 (‘Cubillo’).

^[92] Ibid 11.

^[93] My thanks to Irene Nemes for this point.

^[94] Cubillo [2000] FCA 1084; (2000) 103 FCR 1, 387 (emphasis added); see also 26-29, 358, 360, 385 and 395-396 where O’Loughlin J made similar comments regarding critical gaps in the historical record that prejudiced the plaintiffs claims.

^[95] A finding adverse to the plaintiffs in Cubillo meant that the plaintiffs failed to discharge the requisite burden of proof. That is, they were unable on the balance of probabilities to establish their claims.

^[96] Cubillo [2000] FCA 1084; (2000) 103 FCR 1, 483.

^[97] Ibid 482.

^[98] See, eg, Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1 where the High Court held that legislation which provided for the forced institutionalisation of part-Aboriginal children was constitutionally valid.

^[99] See, eg, the following racial vilification laws: Anti-Discrimination Act 1977 (NSW) s 20C(1); Racial Vilification Act 1996 (SA) s 4; Discrimination Act 1991 (ACT) s 66; Anti-Discrimination Act 1991 (Qld) s 124A ; Racial and Religious Tolerance Act 2001 (Vic) s 7(1); Anti-Discrimination Act 1998 (Tas) s 17(1). They incorporate the same, more elevated harm threshold in making it unlawful to do a public act that would ‘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’.

^[100] For an argument as to the problematic nature of the low harm threshold in the RDA see D Meagher, ‘So Far So Good?: A Critical Evaluation of Racial Discrimination Laws in Australia’ (2004) 32 Federal Law Review 225, 231-235.

^[101] Scully (2002) 120 FCR 243; Jones v Toben [2002] FCA 1150 (‘Toben No 1’); Toben v Jones [2003] FCAFC 137; (2003) 199 ALR 1 (‘Toben No 2’). For a discussion of these decisions see ibid 234, 239.

^[102] RDA s 18C.

^[103] There now seems to be some consensus that the relevant standard is closer to the reasonable victim. This usually translates to an assessment of the impugned conduct against the likely effect in all the circumstances on a reasonable person of the same relevant race or ethnicity—see Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23; Shron v Telstra Corporation Ltd [1998] HREOCA 24; Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 [16]; Corunna v West Australian Newspapers Ltd (2001) EOC 93-146, 75468 ('Corunna'); McLeod v Power [2003] FMCA 2; (2003) 173 FLR 31 [65] ; Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 [16] ('Hagan'). But see De La Mare v Special Broadcasting Service [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’.

^[104] RDA s 18D; Anti-Discrimination Act 1977 (NSW) s 20C(2); Civil Liability Act 1936 (SA) s 73; Criminal Code (WA) s 80; 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.

^[105] M Chesterman, above n 12, 226 (emphasis added).

^[106] Ibid 229.

^[107] Ibid 230.

^[108] Ibid 227, quoting Thornton, above n 23, 50.

^[109] N Wolfson, Hate Speech, Sex Speech, Free Speech (1997) 48.

^[110] M Chesterman, above n 12, 227, quoting Thornton, above n 23, 50.

^[111] Commonwealth: Scully (2002) 120 FCR 243, 286 [159]; Warner v Kucera (2001) EOC 93–137, 75374; Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1, 13, 19, 38; New South Wales: Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78268; Hellenic Council of NSW v Apoleski and the Macedonian Youth Association [1997] NSWEOT 9–11 of 1995 16 ('Hellenic Council No 1'); Hellenic Council of NSW v Apoleski [1997] NSWEOT 10 of 1995 10. Queensland: Deen v Lamb [2001] QADT 20 MIS01/109 2. For a detailed discussion on this point see D Meagher, ‘So Far So Good’, above n 100, 247-249.

^[112] For a free speech/public interest defence only need be pleaded when the impugned conduct is held to offend the relevant objective harm threshold—see Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 204 ALR 761, 785 (French J) (‘Bropho’).

^[113] Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102 [122]. This definition or close approximations thereof have been endorsed in Corunna [2001] EOC 93–146, 75447, 75470; Bryl and Kovacevic v Nowra and Melbourne Theatre Company [1999] HREOCA 11 (21 June 1999) [4.3] (Commissioner Johnston); Wanjurri [2001] EOC 93-147, 75488-9; Deen v Lamb [2001] QADT 20 MIS01/109 2; Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1, 38-9 .

^[114] Bropho [2004] FCAFC 16; (2004) 204 ALR 761, 785.

^[115] Ibid.

^[116] Scully (2002) 120 FCR 243, 293.

^[117] On this point see D Meagher, ‘So Far So Good’, above n 100, 250.

^[118] M Chesterman, above n 12, 230.

^[119] Ibid (emphasis added).

^[120] Jeremy Jones has argued that the contents of a David Irving video The Search for Truth in History would offend s 20C of the Anti-Discrimination Act 1977 (NSW) if delivered in Australia — ‘Holocaust Denial—“Clear and Present” Racial Vilification’ [1994] AUJlHRights 10; (1994) 1 Australian Journal of Human Rights 169, 178. Without disagreeing with this argument, I would note that it was reached without any discussion or analysis of the potential relevance of the free speech/public interest defences which is required for a fully reasoned conclusion on the matter.

^[121] Irving [13.163].

^[122] Ibid [13.136].

^[123] Ibid [13.162].

^[124] Ibid.

^[125] See Deen v Lamb [2001] QADT 20 MIS01/109 2 where President Sofronoff surveys the meaning of 'good faith' in a range of different areas of law (including administrative law, defamation law, insurance law and the law of equity) 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 P Nygh and P Butt (eds) Butterworths Concise Australian Legal Dictionary (2^nd ed, 1998) 194.

^[126] The case law reveals reasonably widespread agreement that 'good faith' in the context of these defences 'appears to imply the absence of "spite, ill-will or other improper motive"’: Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102 [122]. This definition or close approximations thereof have been endorsed elsewhere: see above n 113.

^[127] H Irving, above n 90, 6.

^[128] Ibid.

^[129] Irving however claimed that at worst he was guilty ‘of making errors in his handling of the historical record’. Irving [13.4].

^[130] Ibid [13.163].

^[131] On this point see D Meagher, ‘So Far So Good’, above n 100, 245-250.

^[132] There is indeed a book by S McIntyre and A Clark titled The History Wars (2003). It was written largely in response to the claims made by Windschuttle in Fabrication. The term ‘the History Wars’, as the authors explain at 9, originated in the United States regarding a controversial exhibition at the Smithsonian Museum ‘to mark the fiftieth anniversary of the end of the Pacific Wars [and] [i]ts invitation that visitors ponder the moral legitimacy of using the atomic bomb against Japan’.

^[133] K Windschuttle, The Fabrication of Aboriginal History (2002) 3.

^[134] See ibid 2-5.

^[135] Ibid 6.

^[136] Mabo (No 2) [1992] HCA 23; (1992) 175 CLR 1.

^[137] Wik Peoples v Queensland (1996) 187 CLR 1.

^[138] K Windschuttle, above n 133, 6.

^[139] Ibid 3.

^[140] Ibid.

^[141] See, eg, S McIntyre and A Clark, above n 132; R Manne (ed), Whitewash: On Keith Windschuttle's Fabrication of Aboriginal History (2003).

^[142] J Boyce, ‘Fantasy Island’ in R Manne (ed), above n 141, 69.

^[143] H Reynolds, ‘Terra Nullius Reborn’ in Manne (ed), ibid 133 (emphasis added).

^[144] L McNamara, ‘History, Memory and Judgment’ above n 57, 361.

^[145] Ibid. The author notes at 354 that it was Colin Tatz who first argued ‘that, in the absence of a prosecution for genocide, the best way to settle the disputes of the History Wars and to find out about the past was to use the laws of defamation’. (footnote omitted).

^[146] See ibid 376-379.

^[147] Ibid 378-379 (emphasis added).

^[148] R Evans, ‘Telling Lies About Hitler’ above n 7, 196.

^[149] L McNamara, ‘Truth, Memory and Judgment’ above n 57, 383 (emphasis added).

^[150] Ibid 392.

^[151] Ibid (emphasis added).

^[152] As M Krygier and R van Kriekan note in ‘The Character of the Nation’ in R Manne (ed), above n 141, 82, ‘[m]ost of us care deeply about both the character of the nation to which we belong and the calibre of the civilisation we embody. It is because we care that discussions of Aboriginal history under settler-colonialism have evoked the attention, not to mention the passions, sometimes hatreds, often pain, which they have in this country.’

^[153] Cattanach v Melchior [2003] HCA 38; (2003) 215 CLR 1.

^[154] Re McBain; Ex parte Australian Catholics Bishops Conference [2002] HCA 16; (2002) 209 CLR 372.

^[155] British American Tobacco Services Ltd v Cowell (Representing the Estate of McCabe (deceased) [2002] VSCA 197; (2002) 7 VR 524.

^[156] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.

^[157] L McNamara, ‘Truth, Memory and Judgment’ above n 57, 376 citing J G Reid, W C Wicken, S E Patterson and D G Bell, ‘History, Native Title Issues and the Courts: A Forum’ (1998) 28 Acadiensis 3.

^[158] L McNamara, ‘Truth, Memory and Judgment’ above n 57, 376.

^[159] On this point see above nn 59-64 and accompanying text. And for an interesting thesis that the landmark US Supreme Court decisions on civil rights, abortion, the environment, reapportionment and criminal law have effected minimal consequential change to American society see G Rosenberg, The Hollow Hope: can courts bring about social change? (1991). But for a range of critical evaluations of the Rosenberg thesis see D A Shultz (ed), Leveraging the Law: Using the Courts to Achieve Social Change (1998).

^[160] L McNamara, ‘Truth, Memory and Judgment’ above n 57, 392.

^[161] Ibid 373.

^[162] Ibid.

^[163] Human Rights and Equal Opportunity Act 1986 (Cth) s 46P.

^[164] It is true, however, that in order to assess the credibility or otherwise of an historian as a witness and their testimony, a court may consider the wider context of their work and whether, for example, they have testified to the same effect in other cases. My thanks to Alex Reilly for this point.

^[165] L McNamara, ‘Truth, Memory and Judgment’ above n 57, 379.

^[166] For example, the reason or motivation for an act is relevant to the intention to create legal relations in contract law, the issue of mens rea in criminal law and the law of unconscionability in equity.

^[167] The burden falls on the defendant to establish a free speech/public interest defence in the event the relevant harm threshold in the RDA or State and Territory racial vilification law is offended. For a discussion on this point see L McNamara, ‘Regulating Racism’ above n 15, 96-99.

^[168] It is worth recalling that the race or ethnicity of a person or group need only be one of the reasons for the impugned conduct to establish the requisite causal connection in s 18 of the RDA.

^[169] For a detailed examination of the low harm threshold in s 18C of the RDA see D Meagher, ‘So Far So Good’, above n 100, 231-235.

^[170] See for example K Windschuttle, above n 133, 26, where the author writes: ‘To fabricate a death toll of “close to a hundred”, as descendents of the Tasmanian Aborigines have done, is to abandon any semblance of veracity in order to milk the event for maximum political gain’. See also 403: where he states that ‘the most obvious falsehoods of historians’ regarding Aboriginal history ‘lead[s] many Aborigines to seek comfort in myth, legend and victimhood. They blame all their social problems on the distant past and thus avoid taking responsibility for their own lives now and that of their children in the future.’ In addition, see 433-434: on the increased number of persons in Tasmania who identify themselves as of Aboriginal descent, ‘[p]art of the reason would no doubt be that Aboriginality is no longer a badge of inferiority … But it is equally clear that a great incentive is access to the more generous welfare payments available to Aborigines than to whites.’

^[171] Windschuttle first presented his Fabrication thesis in three articles published in the journal Quadrant. They were ‘The Myths of Frontier Massacres in Australian History, Parts I-III’ published in the October, November and December (2000) issues of Quadrant respectively.

^[172] See above text accompanying n 111 for the point that ‘reasonably’ in this context refers to the method by which a message is conveyed and not to the content of the message itself.

^[173] See below n 181 and accompanying text.

^[174] See L McNamara, ‘Truth, Memory and Judgment’ above n 57, 378-379.

^[175] Irving [13.163].

^[176] See above n 120-124 and accompanying text.

^[177] See R Evans, Telling Lies About Hitler, above n 7, 37-43.

^[178] Ibid 35.

^[179] D DGuttenplan, above n 76, 284.

^[180] Ibid 2.

^[181] If a defendant seeks to rely on any of the exemptions in s 18D of the RDA it would be normal, permitted and necessary for the complainant to lead evidence or to cross-examine the defendant to demonstrate that conduct that may otherwise attract a defence was not done reasonably and/or in good faith. My thanks to Chris Maxwell QC (now Justice Maxwell, President of the Court of Appeal of the Supreme Court of Victoria) for this point.

^[182] See below Part IV(B)(3).

^[183] My thanks to one of the anonymous referees for this point.

^[184] See HREOCA s 46P; Anti-Discrimination Act 1977 (NSW) s 88; Discrimination Act 1991 (ACT) s 72; Anti-Discrimination Act 1991 (Qld) s 134; Anti-Discrimination 1998 (Tas) s 60; Racial and Religious Tolerance Act 2001 (Vic) s 19.

^[185] HREOCA s 11.

^[186] HREOCA s 21.

^[187] The grounds for terminating a complaint include: that the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination; the complaint was trivial, vexatious, misconceived or lacking in substance; or the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court and the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation — see HREOCA s 46PH.

^[188] HREOCA s 46PO

^[189] But note that HREOCA s 46PU provides that a person who has commenced or proposes to commence proceedings in the Federal Court or the Federal Magistrates Court under this Division, or is a respondent in proceedings in the Federal Court or the Federal Magistrates Court under this Division, may apply to the Attorney-General for the provision of assistance under this section in respect of the proceedings. If a person makes an application for assistance and the Attorney-General is satisfied that it will involve hardship to that person to refuse the application and in all the circumstances, it is reasonable to grant the application; the Attorney-General may authorise the provision by the Commonwealth to that person, on such conditions (if any) as the Attorney-General determines, of such legal or financial assistance in respect of the proceedings as the Attorney-General determines. This provision could possibly provide a source of financial assistance to a plaintiff wishing to pursue a claim of history denial as unlawful racial vilification. However, Ms Lucy Holt of the Commonwealth Attorney General’s Office noted in a telephone conversation with the writer that limited funds were available under this provision, few applications are made and none, thus far, have been for the purpose of funding a claim of history denial as unlawful racial vilification.

^[190] Bropho [2004] FCAFC 16; (2004) 204 ALR 761, 780.

^[191] Vines v Djordjevitch [1955] HCA 19; (1955) 91 CLR 512, 519 (per curium).

^[192] In this regard French J is correct to note that ‘[w]hether an exemption from a statutory liability is to be demonstrated by the person upon whom it is sought to impose the liability is a matter of substantive statutory construction not a mere matter of form’—Bropho [2004] FCAFC 16; (2004) 204 ALR 761, 780.

^[193] For a detailed treatment of this argument see D Meagher, ‘So Far So Good’, above n 100, 251-253.

^[194] Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 227 (‘Coleman’) citing Re Bolton; Ex parte Beane [1987] HCA 12; (1987) 162 CLR 514, 523; Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1, 18; Plenty v Dillon [1991] HCA 5; (1991) 171 CLR 635, 654; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427, 435-438; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543.

^[195] See Bropho [2004] FCAFC 16; (2004) 204 ALR 761, 779-780. A similar approach was employed in Coleman [2004] HCA 39; (2004) 209 ALR 182 where three members of the Court used the principle of legality to construe narrowly a Queensland law which made it an offence to use insulting words to any person in a public place to minimise its restriction on freedom of speech - see 227 (Gummow and Hayne JJ) and 237 (Kirby J).

^[196] Anti-Discrimination Act 1977 (NSW) s 20C; Discrimination Act 1991 (ACT) s 66; Racial Vilification Act 1996 (SA) s 4; Anti-Discrimination Act 1991 (Qld) s 124A; Anti-Discrimination 1998 (Tas) s 19; Racial and Religious Tolerance Act 2001 (Vic) s 7.

^[197] See above n 143.

^[198] The marketplace of ideas metaphor was first articulated by Holmes J in his dissenting judgment in Abrams v United States, [1919] USSC 206; 250 US 616, 630 (1919) where he said that ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’. It is, however, a fiercely contested notion and a number of commentators have queried its coherence, neutrality, openness and capacity to deliver the truth—see, for example, E Barendt, Freedom of Speech (1987) 8-9; T Campbell, ‘Rationales for Freedom of Communication’ in T Campbell and W Sadurski (eds), Freedom of Communication (1994) 24-26; S Fish, There’s No Such Things as Free Speech and It’s a Good Thing Too (1994) 16-17; C Sunstein, Democracy and the Problem of Free Speech (1993) 24-26, 178-179. I would, however, note that in the context of the ‘History Wars’ in Australia the marketplace metaphor is reasonably appropriate—see n 199 on this point and its accompanying text. The protagonists have been free (indeed encouraged) to speak to the controversies in public forums and their arguments are published in books, journals and the popular media. In this instance there has been reasonably equitable access to the marketplace, the publication of one view has not silenced another (to the contrary) and, whilst the discovery of the truth is not guaranteed, at least the key controversies have been exposed to rigorous and sustained critical evaluation. My thanks to one of the anonymous referees for this point.

^[199] See, for example, B Attwood and S G Foster (eds), Frontier Conflict: The Australian Experience (2003); Manne (ed), ‘Whitewash’, above n 141; S McIntyre and A Clark, ‘The History Wars’, above n 132.

^[200] See for example S Fish, ‘Holocaust Denial and Academic Freedom’ (2001) 35 Valparaiso University Law Review 499, 518-524; W K Story, Writing History (1999) 25-43 and R Evans, ‘In Defence of History’, above n 5, 100-110 for a description of the events surrounding the publication of The Collapse of the Weimar Republic (1981) by D Abraham. There were serious claims made by a number of historians regarding the scholarly integrity of the book which ultimately resulted in the book being largely discredited and the author leaving the history academy.

^[201] This amendment to the harm threshold in s 18C of the RDA would make it consistent with the harm threshold in the racial vilification laws of New South Wales, South Australia, the ACT, Queensland, Victoria and Tasmania—see above n 99.

^[202] For a detailed treatment of these points regarding s 18C of the RDA see D Meagher, ‘So Far So Good’, above n 100, 251-253.

^[203] HREOCA s 46PU.

^[204] See above n 30.

^[205] J Cooper and A M Williams, above n 30, 12.

^[206] On this point see D Meagher, ‘So Far So Good’, above n 100, 227-230.