The Nizkor Project: Remembering the Holocaust (Shoah)

Federal Court of Australia
Rules Against Irving

The Grounds Upon Which the Applicant Seeks an Order to Review

The First Decision - Grounds 1, 2 and 3

The German Conviction

On the applicant's behalf it was said that this was simply a conviction arising out of the expression of Mr. Irving's views, that Australia, being a democratic country, espouses freedom of speech and that a reasonable person would regard such a conviction as being irrelevant to the question of good character. The German conviction for "slander concomitant with disparagement of the dead", so it was put, had no equivalent in Australia.

In my view, that does not mean that the conviction in Germany was irrelevant to the matter of Mr. Irving's character. The fact that a person is prepared to break the law of a country, which he happens to be visiting, is capable of demonstrating a lack of respect for the law and that cannot be said to be irrelevant to the question of good character. When the nature of the conviction is taken into account, defaming the memory of the dead, in a country where the Holocaust might well be a matter of particular sensitivity, the proposition that the conviction is irrelevant to character becomes even harder to sustain.

This was no traffic infringement. This was an offence for which the German legislature saw fit to provide for punishment by up to two years imprisonment and for which an appellate court imposed a fine equivalent to approximately $30,000. It is enough that such a conviction may be relevant to the question of Mr. Irving's character. The weight to be given to that factor is a matter for the Minister and not for this Court.

Then it was said, on behalf of the applicant, that it would be inconsistent to regard the German conviction as being relevant when there is an express provision in Regulation 4(1)(b) dealing with convictions for offences in circumstances indicating, in the reasonable belief of the Minister, habitual contempt or disregard for the law or for human rights. That submission suggests that Regulation 4(1) is a code that defines good character for the purposes of the regulations.

The Full Court held to the opposite effect in the extract from the Hell's Angels case which I have set out above. Regulation 4 is a deeming provision and, in my opinion, cannot render irrelevant a conviction, for example, which might indicate other serious but not habitual contempt or disregard for the law. For those reasons I reject that alternative submission.

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