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 - Ground 7 (Error of Law)

The applicant claims that the respondent made an error of law within the meaning of s.5(1)(j) of the ADJR Act or, in the alternative, that there had been an improper exercise of power because the German expulsion order was not an expulsion from another country in prescribed circumstances. It was submitted that the applicant's conduct did not constitute a "threat to national security" within the meaning of Regulation 177(d).

It is importand to have regard in the precise manner in which Regulation 177(d) prescribes the relevant circumstances. Regulation 177(d) reads as follows:

"(d) That the authorities of that country considered the person to be a threat to the national security of the country."

Mr. Bates submitted that the expression "national security" in the phrase "the national security of the country" should be construed in the same way as what would be regarded as national security in Australia. He submitted that the terms of the German expulsion order itself showed that the Federal Republic of Germany was concerned more with public security and public order than national security.

In essence, so it was put, the German authorities' complaint was that Mr. Irving would express controversial views and would attend public gatherings which they alleged would require considerable police resources. As an example of why the regulation should be so construed, Mr. Bates suggested that the Chinese authorities might regard criticism of their regime as a breach of their national security but the Australian authorities would be unlikely to regard such circumstances as falling within Regulation 177.

The problem with that submission is that it ignores the clear words of the regulation which defines the relevant circumstances in terms of the authorities of the deporting country considering the person to be a threat to the national security of the country. Whether the person would be considered to be a threat to the national security of Australia is not to the point. The regulation expressly defers to the views of the authorities of the deporting country.

I have examined the terms of the German expulsion order which include the following:

"Your presence in the Federal Republic of Germany infringes public security, public order and also considerably the interests of the Federal Republic of Germany.

For years you have been entering the Federal Republic of Germany, to publicise your ideas at functions ... These ideas constitute the criminal act of insulting and reviling the memory of the dead. The execution of such criminal acts continues regularly the infringement of public security and order. In this case this is of great importance as the insults and reviling concern a whole group of the population and since they are perpetrated in a very public manner.

... Despite the decisions of the Municipal Court in Munich of 06.05.1992 and the Munich State Court of 13.01.1993 you persistantly keep on publicising your ideas.

Your behavior apart from the illegality of your statements infringes public security and order...

Your appearances are being increasingly noticed, which is due to heightened sensitivity of the population concerning right-extremist ideas but mainly due to the resurgence of right-extremist and Neo-Nazi parties... That you don't regard yourself as an active member of right-extremist groups is insignificant. Determining is the fact that three groups use your ideas for their own purposes, become encouraged by your ideas and gain increased importance...

Your behavior consitutes a danger to the inner security of the Federal Republic of Germany in the greater[??] sense[??] and at the same time does great damage to the reputation of the German State:

Your statements and comments[??] as given under number 1.1 [a reference to an earlier paragraph in the Expulsion Order] are able to endanger the peaceful co-existence between Germans and foreigners: they are being regarded as the truth by a small but radical part of the population and they are motivating in the long run to violence and racial hatred."

The Expulsion Order then refers to strengthened National Socialism and right-extremism, the escalation of violence and continues:

"Although the majority of the German population distances itself from such activities, most recent developments show that there is a base of right-extremist prepared for violence. This group of people is especially susceptable to revisionist ideas, feels supported in its political attitude while expressing its opinion with violence ... Your activities as speaker have harmed public security and order ... The interest of revisionists, right- extremists and Neo-Nazi groups at your participation is unabated.

It cannot reasonably be expected of the authorities to supervise your statements at numberous political appearances and to be able to criminally prosecute only after the event. Besides in view of your reputation in right-extremist circles your mere presence at political events is able to harm the interests of the public in the means illustrated above.


An expulsion is therefore imperative as defense against the danger of recurrence ... Therefor your immediate departure is necessary as defense against the danger to public law and order as well as defense against lasting damage to the Federal Republic of Germany."

The New Shorter Oxford English Dictionary (at p.2754) defines 'security' relevantly as being "The condition of being protected from or not exposed to danger; safety spec. the condition of being protected from espionage, attack or theft". The same dictionary defines 'national' as "Of or pertaining to a nation or country, esp. as a whole; affecting or shared by the whole nation". I reject the distinction which the applicant seeks to make between "public security and public order" and "national security". At p.10 of the German expulsion order there appears the following:

"The term public security is understood as a state in which the community and individuals can enjoy undisturbed the rights granted by the Constitution and other rules, Protective legal norms are particularly the criminal law and the penal law, which have the purpose of protecting public security.

Public order comprises all norms concerning actions, omissions and conditions, [??] observance - beyond the limits of current positive public and civil law - in accordance with the prevailing understanding, which may change in sometimes short periods of time, is the imperative condition for a productive human and civic co-existance."

The relevant German authority, at the same page, came to the conclusion that Mr. Irving's continued presence in the Federal Republic of Germany impaired public order and security or interfered with other important interests of that country contrary to s.45(1) of the Law Concerning Foreigners.

In my view, sufficient appears from the German expulsion order to indicate that the authorities of that country considered Mr. Irving to be a threat to the national security of the country not just to local public security. It is also of some relevance that his expulsion was not from a particular area or State of Germany but from the whole of the Federal Republic of Germany. Accordingly, in my opinion, the circumstances of Mr. Irving's expulsion from that country fell within Regulation 177(d).

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