The Nizkor Project: Remembering the Holocaust (Shoah)

Issues For The Inquiry


2.1 The Legislation

The complaint made by Mr Jones was that the material contained in the Adelaide Institute website was contrary to section 18C of the Act. Section 18C is contained within Part IIA – "PROHIBITION OF BEHAVIOUR BASED ON RACIAL HATRED". This Part of the Act came into operation on 13 October 1995. The relevant sections of that Part to this inquiry are sections 18B, 18C, and 18D.

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 a dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.

18C(1) It is unlawful for a person to do an act, otherwise than in private, if:

    1. the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
    2. 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.

18C(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

    1. causes words, sounds, images or writing to be communicated to the public; or
    2. is done in a public place; or
    3. is done in the sight or hearing of people who are in a public place.

18C(3) In this section:

"public place" includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for the admission to the place.

18D Section 18C does not render unlawful anything said or done reasonably and in good faith:

    1. in the performance, exhibition or distribution of an artistic work; or
    2. in the course of any statement, publication, discussion or debate made or held for any general academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
    3. in making or publishing:
    1. a fair and accurate report of any event or matter of public interest; or
    2. 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 statement."

2.2 Issues Raised by the Respondent

In the directions conferences prior to the public hearing of this matter, Dr Toben raised two particular matters which he claimed were central to his response to the complaint. Both were related, although they raised different issues as matters of law.

The first was raised somewhat tangentially by Dr Toben on a number of occasions, but specifically at the directions conference on 27 November 1997. On this occasion Dr Toben indicated he wished to make submissions on the validity of the legislation contained in Part IIA of the Act. At that directions conference I indicated to Dr Toben that as an Inquiry Commissioner I was not empowered to determine any question as to the validity of Commonwealth legislation, as the Commission does not constitute a court for such a purpose.

The second issue which permeated Dr Toben’s response, both in terms of the evidence which he wished to adduce before the inquiry and his objection to the process and direction which I adopted in the course of the inquiry, was that "truth is a defence".

2.2.1 Validity of the legislation

The issue of the constitutional validity of Part IIA of the Act might be raised by the development in the High Court of Australia of the constitutionally entrenched freedom of political communication, implied from terms of the Australian Constitution: (see in particular, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, and other related cases).

It is my view it is clear that as a Commissioner exercising power under an Act which does not entail any investment of the judicial power of the Commonwealth as set out in Chapter III of the Constitution, I am unable to comment in any meaningful way on the validity of this legislation. It is appropriate that I assume the constitutional validity of the legislation which I am required to apply: (see Re Adams and the Taxation Agents Board (1976) 12 ALR 239, per Brennan P). This is a well established principle and one which, with respect, I accept. It was pursuant to this principle I advised Dr Toben I would not entertain his submissions on the validity of the legislation, as in my view such submissions are misplaced and must be made more appropriately before a court exercising the judicial power of the Commonwealth. As I understand it, no such challenge to the validity of Part IIA has been made before a court of appropriate authority.

Nevertheless, it is appropriate to give some consideration to the principles relating to the implied freedom of political communication, as I take the view Parliament would not have enacted legislation which was intended to operate contrary to the constitutional principles limiting the exercise of its power. Those principles are usefully summarised by the High Court in Lange’s case at pages 567-8, where the Court set out the relevant questions to be considered in determining whether the principle had been infringed:

"First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s.128 for submitting a proposed amendment of the Constitution to the informed decision of the people… If the first question is answered "yes" and the second is answered "no", the law is invalid."

The relevant consideration to my mind is whether the restrictions imposed by Part IIA of the Act do effectively burden freedom of political communication in a way which is not reasonably appropriate and adapted to serve a legitimate end, the fulfilment of which is compatible with representative and responsible government in Australia. I note section 18D (set out above) sets out a number of exemptions which apply in relation to material which would otherwise come within the proscribed behaviour defined in section 18C: it would appear these exemptions are included in the Part for the purpose of addressing the issue of making the law reasonably appropriate and adapted to serve the legitimate ends of preventing the form of racial discrimination sought to be proscribed by this Part. Without making any determination (as I am unable to do) on the issue of validity, I do accept Parliament in passing this legislation addressed its mind to the issue of what Dr Toben described as "freedom of speech", and which the High Court describes as freedom of political communication guaranteed under the Australian Constitution. In considering whether the complaint before me comes within the scope of Part IIA of the Act, it is appropriate I interpret the relevant provisions (sections 18C and 18D) in the light of these constitutional limitations on the assumption Parliament intended them to be read and applied in that context.

2.2.2 Truth as a Defence

Dr Toben raised on a number of occasions the issue of whether "truth is a defence". He did so both in the context of the material which he wished to present before this inquiry and in a criticism of my conduct of the inquiry and of the Commission and its processes generally.

Dr Toben wished to adduce evidence before this inquiry as to "the truth" of "the alleged Holocaust" (his expression). I indicated to Dr Toben that was not the issue before me or the issue I had to determine under the Act. My view is that I am required to determine whether a public act has been carried out by Dr Toben which "is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people", and further whether if that is the case, that act has been done because of the "race, colour or national or ethnic origin of the other person or some or all of the people in the group". The "truth" of an assertion made is not the only factor which the legislation requires to be taken into account in making this determination. It may well be the case that even if an assertion is "true", it might still bring section 18C into operation. The "truth" may be more relevant to the operation of section 18D, which provides an exemption from the unlawfulness established by section 18C. I shall address this issue and in particular section 18D below.

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