IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT
REGISTRY No. WAD 195/2010
NATIONWIDE NEWS PTY LTD
T/A THE SUNDAY
INTERVENER’S OUTLINE OF SUBMISSIONS
Application for leave to intervene
Basis for intervention
- On 27 July 2011 the Australian Human Rights Commission filed a motion
seeking leave to intervene in this proceeding. The bases upon which leave is
sought are set out in the affidavit of the President of the Commission, the
Hon Catherine Branson QC, dated 18 July 2011.
- In summary, the bases of the proposed intervention are s 11(1)(o) of
the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act)
and s 20(e) of the Racial Discrimination Act 1975 (Cth)
(RDA). These sections provide that the Commission has the function of
intervening in legal proceedings that involve human rights issues or racial
discrimination issues, where the Commission considers it appropriate to do so
and with the leave of the court hearing the proceedings, subject to any
conditions imposed by the court.
- This proceeding involves both human rights issues and racial discrimination
issues. These include issues concerning the right of people to be free of
discrimination based on race, and the freedom to seek, receive and impart
information and ideas.
Why leave to intervene should be
The Commission has an interest and expertise in relation to the
interpretation of the RDA, the application of the International Convention of
the Elimination of all forms of Racial Discrimination (CERD), and racial
discrimination issues generally, as set out in paragraphs 14 and 15 of the
affidavit of Ms Branson dated 18 July 2011.
The Commission has reviewed the applicant’s outline of submissions
filed on 2 August 2011. The Commission’s submissions, set out below,
address issues not dealt with by the applicant in her submissions, namely:
- The Commission’s submissions also develop in more detail some matters
raised by the applicant, including:
- The Commission thus offers the Court assistance in relation to the above
issues that will likely not be offered by other
Issues on which the Commission makes
If the Commission is granted leave to intervene, it proposes to rely on the
following written submissions. These submissions (including those dealing with
constitutional law) are the submissions of the Commission and not of the
Commonwealth Government. The Commission does not seek leave to make oral
These submissions deal with:
9.1. the interpretation and application of ss 18C and 18D of the RDA;
9.2. the application of the International Covenant on Civil and Political
Rights (ICCPR) and CERD
to the interpretation to be given to ss 18C and 18D of the RDA; and
9.3. the relevance of the implied freedom of political communication to Part
IIA of the RDA and Part IIB of the AHRC Act.
- The submissions that the Commission seeks to make can be summarised as
Interpretation and application of the RDA
10.1. The question of whether the respondent’s act was
“reasonably likely in all the circumstances to offend, insult, humiliate
or intimidate” involves the application of an objective test. It will be
sufficient if a subset of the broader group of Aboriginal people may reasonably
be offended by the act or acts complained of.
10.2. The words “offend, insult, humiliate or intimidate” should
be given their ordinary meanings, and regard should be had to historical and
current socio-economic disadvantage and racism and the minority position of
Aboriginal people in Australia in determining what is “reasonably
likely” to offend, insult, humiliate or intimidate.
10.3. The acts complained of should be found to be done “because
of” race if one of the reasons for doing the act was the race of the
applicant or her children (regardless of whether or not race was the dominant
reason or even a substantial reason). A relevant inquiry is whether there is
anything to suggest race as a factor in the actions of the respondent.
- 10.4. The onus of proof with respect to an exemption under s 18D rests
with the respondent. The respondent must show that the act or acts complained
of were done: reasonably, in good faith, and within terms of one of the
particular exemptions relied on by the respondent.
ICCPR and CERD
Implied freedom of political
- 10.6. Part IIA is constitutionally valid.
- 10.7. In light of the exemptions in s 18D, Part IIA does not burden
freedom of communication about government or political matters, and does not
need to be read down to achieve this result. It is difficult to conceive of
genuine comment about government or political matters that is insulting or
offensive and done because of race. When the exemptions in s 18D are
considered, the Commission submits that if such acts are also not objectively
reasonable or are not done in good faith (or in one of the fields of activity in
s 18D(a) to (c)), then there is no room for them to be the kind of
communication contemplated by the implied freedom of political communication.
- 10.8. Alternatively, to the extent that the implied freedom of political
communication may be burdened, Part IIA is appropriate and adapted to serve one
or more of the following legitimate ends in a manner that is compatible with the
system of representative and responsible government prescribed by the
- 10.8.1. the fulfilment of Australia’s international obligations under
Arts 19(3)(a) and 20(2) of the ICCPR;
- 10.8.2. the fulfilment of Australia’s international obligations under
CERD, in particular (but not limited to) Art 4;
- 10.8.3. eliminating racial discrimination in all its forms.
- The Commission does not seek to make submissions about the ultimate issue of
whether or not the particular comments alleged by the applicant in fact
contravene Part IIA of the RDA.
- Sections 18C and 18D of the RDA provide as follows:
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private,
(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
(b) is done in a public place; or
(c) is done in the sight or hearing of people who are in a public place.
(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 admission to the place.
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;
(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
Reasonably likely to offend, insult, humiliate or
The factual background to this matter appears to be common ground between
Ms Natalie Clarke, the applicant, is the mother of three boys killed in a
motor vehicle accident on 27 June 2008. One of the boys’ cousins was also
killed in the accident. Ms Clarke is an Aboriginal person.
Nationwide News Pty Ltd, the respondent, is the publisher of the Sunday
Times newspaper and the PerthNow website. On 28 June 2008, Nationwide News
published an article about Ms Clarke’s deceased sons and their cousin.
Further articles were published by the respondent in relation to the same
incident on 29 June 2008, 3 July 2008, 5 July 2008, 6 July
2008, 11 July 2008, 17 July 2008 and 3 August 2008.
The respondent published a number of comments submitted to the respondent by
members of the public for publication along with the articles referred to
The applicant claims that the publication by the respondent of a number of
comments pleaded and particularised in paragraphs 7.5, 8 and 9 of the Re-amended
Statement of Claim contravenes s 18C of the RDA.
It is necessary for the Court to first determine whether the acts complained
of are “reasonably likely in all the circumstances to offend, insult,
humiliate or intimidate another person or a group of people” under
s 18C(1)(a) of the RDA.
- The applicant relies on the effect of the comments singly or together and in
the context of the articles published by the
The test under s 18C(1)(a) is an objective
one. It is not necessary for an
applicant to prove that any person was actually offended, insulted, humiliated
or intimidated by the conduct in question. Evidence that a member of a
particular racial group was in fact offended by the conduct in question, is
admissible on, but not determinative of, the issue of
In the present proceeding, the applicant has given evidence that she was
hurt, upset and offended by the comments complained
- The objective test to be applied is a “reasonable victim test”.
The reasonable victim is a reasonable and ordinary person, not particularly
susceptible to being roused or incited, with the racial, ethnic or other
relevant attributes of the
complainant. This test ensures
cultural sensitivity when deciding the types of acts that are considered
Person or group of people affected
It is not necessary to establish that all Aboriginal people may be offended
by the acts complained of. It will be sufficient to show that a subset of the
broader group of “Aboriginal people” may reasonably be affected by
the conduct. For example:
23.1. in McGlade v Lightfoot (at ), the relevant group was
defined as “an Aboriginal person or a group of Aboriginal persons who
attach importance to their Aboriginal culture”;
23.2. in Creek v Cairns Post (at ), the relevant group was
defined as “an Aboriginal mother, or one who cares for children, and who
resides in the township of Coen [the applicant’s town]”; and
- 23.3. in Jones v Toben (at
-), the relevant group was
defined as “members of the Australian Jewish community vulnerable to
attacks on their pride and self-respect by reason of youth, inexperience or
to offend, insult, humiliate or intimidate
The words “offend, insult, humiliate or intimidate” should be
given their ordinary English
meanings. Various dictionary
definitions of these words were set out by Hely J in Jones v Scully (at
), by Branson J in Jones v Toben (at ), and by French J in Bropho v HREOC (at ) which may assist the Court in interpreting them.
- Kiefel J in Creek v Cairns Post at  stated that the words
“offend, insult, humiliate or intimidate” imply “profound and
serious effects, not to be likened to mere
slights”. This statement
was considered by Branson J in Jones v Toben. Branson J stated that she
did not understand Kiefel J to have intended that a “gloss” be
placed on the ordinary meaning of the words in s 18C (at
Rather, I understand Her Honour to have found in the
context provided by s 18C of the RDA a legislative intent to render unlawful
only acts which fall squarely within the terms of the section and not to reach
to ‘mere slights’ in the sense of acts which, for example, are
reasonably likely to cause technical, but not real, offence or insult (see also
Jones v Scully per Hely J at ). It would be wrong, in my view, to place a
gloss on the words used in s 18C of the RDA.
In assessing what is “reasonably likely, in all the circumstances, to
offend, insult, humiliate or intimidate another person or a group of
people”, regard should be had to the relative historical and
socio-economic positions of the parties. Such an approach is consistent with
the “reasonable victim” test described above. The Commission
submits that communications about an historically oppressed minority group are
far more likely to cause relevant harm to that group than communications which
relate to a dominant majority: see Akmeemana and Jones, “Fighting Racial
Hatred” in Racial Discrimination Act 1975: A Review (Race
Discrimination Commissioner, Commonwealth of Australia, 1995, at pages 151-152);
see also the comments of Brown FM in McLeod v Power at  and .
This context is vital to properly understanding the impact of particular words
The truth or falsity of a statement is not determinative of whether it can
or does constitute racial vilification. A true statement can nevertheless be
offensive in the relevant
In these proceedings, the respondent has filed an affidavit given by the
Managing Editor of the PerthNow website, Mr Newton. In that affidavit, Mr
Newton has accepted that at least some of the comments complained of by the
applicant “could be offensive or
hurtful”. In particular,
Mr Newton identified the comments appearing at subparagraphs 7.5(c), 7.5(e) and
7.5(i) of the Re-amended Statement of Claim. Mr Newton goes on to say that in
his view, “it is a balancing act between giving offence or hurt and
allowing a valid discussion to take place around a particular issue”.
This appears to be a reference to one of the exemptions in s 18D. The
relevant exemptions are considered in more detail below.
- The Commission does not make any submission about whether the comments
identified by Mr Newton or any of the other comments particularised by the
applicant are or are not reasonably likely to offend, insult, humiliate or
intimidate a person or group of people.
An argument raised in the Amended Defence is that the particular comments
complained of by the applicant “formed part of” a series of 114
comments published on 11 July 2008 and 179 comments published on
17 July 2008, and that the particular comments complained of did not carry
the alleged imputations “having regard to the totality of those
This raises for consideration a number of issues, some of which overlap with
a consideration of the exemptions in s 18D which are considered in more
detail below. These issues are:
31.1. First, whether the approval of each comment was a relevant act by the
respondent, or whether the relevant act was the approval of 114 comments over
one period and/or 179 comments over another period.
31.2. Secondly, whether the context in which the comments were published
should be taken into account in determining whether the comments fell within one
of the exceptions in s 18D.
- 31.3. Thirdly, whether published comments that would otherwise be in breach
of s 18C can lose that character if other anodyne or balancing comments are
- In relation to the first issue, it appears that each of the comments was
considered separately for publication and was separately approved. The comments
were published at different times throughout the periods of 11-12 July 2008
(for the 114 comments) and 17 July 2008 – 8 September 2008 (for the
179 comments). There seems to be a reasonable basis to consider the publication
of each comment as a separate act.
- However, even if they were part of the same act, it may still be appropriate
to deal with each comment separately when considering whether the exemptions in
s 18D(b) and (c) apply. In Bropho v HREOC, French J considered at
 an argument in relation to a particular cartoon published in a newspaper
that: “if there are parts of the work which are not for a public
purpose those parts cannot be published with impunity just because they are
attached to another part with a purpose which is genuine and in the public
interest”. Ultimately, his Honour did not engage in an assessment of
whether this had occurred as there was a risk of trespassing into merits review
(see ). However, his Honour noted (at ) that:
well be correct to say that, in considering the application of the exemptions in
paras [(b) and (c) of s 18D] it is relevant and necessary to consider the
inclusion of material which is calculated simply to insult, offend, humiliate or
intimidate persons of a particular race and has no bearing upon any genuine
academic, artistic or scientific purpose or other event or matter of public
In relation to the second issue, it will be necessary to consider any act
said to breach s 18C in the context in which it is
performed. Context may be
relevant, for example, in assessing whether the act forms part of a discussion
or debate or whether it is fair comment on a matter of public interest. It is
necessary, however, to distinguish this second issue from the third issue.
- In relation to the third issue, the Commission submits that while each act
must be considered in context, particularly in considering the application of
the exemptions, it is not appropriate to engage in a process of seeking to
assess whether material which is offensive to people of a particular race is
balanced by material that is neutral or supportive of such people. The Court
should not be asked to engage in an exercise of seeking to take an average of
the offence caused across a number of publications. This position finds support
in the comments of Lee J in Bropho v HREOC at  (his Honour in that
case was dissenting as to the result, but these comments do not appear to have
been disapproved by the other judges):
The Commission appears to
have been of the view that the proven vice in the act of publication, namely,
the reasonably likely consequence that Aboriginal persons would be offended,
insulted, humiliated or intimidated was redressed in some manner by prior
articles and editorial comment published by WA Newspapers. If that were so, the
Commission misdirected itself in a serious respect. Contemporaneous, or prior,
publication of anodyne material would not, in itself, make an act of publication
done because of race and involving racially offensive material, an act done
reasonably and in good faith.
Requisite causal relationship
Section 18C(1)(b) requires that the act complained of 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 necessitates a consideration of
the reason or reasons for which the act is
Section 18B of the RDA provides that if an act is done for two or more
reasons, it is taken to be done because of the person’s race if race is
one of the reasons for the act, regardless of whether or not race was the
dominant reason or even a substantial reason.
One expression of the relevant inquiry approved by several judges of the
Federal Court is “whether anything suggests race as a factor” in the
actions of the respondent. This
is a distinct question from that asked under s 18C(1)(a). The fact that
s 18C(1)(a) is satisfied will not, without more, answer the inquiry in
- In coming to a conclusion that the act was done “because of”
race, it is not necessary to have direct evidence about the state of mind of the
person engaging in the act. Inferences can be drawn from the act itself and the
context in which it is done. In Jones v Toben, Branson J found (at )
that the material before her included many references to Jews and events and
people characterised as Jewish. Her Honour considered that the material was
“plainly calculated to convey a message about Jewish people”. This
approach was approved on appeal in Toben v
Jones. In McGlade v
Lightfoot, the respondent had made comments to a newspaper journalist
expressing his views about Aboriginal people. Carr J found at 
the evidence establishes that the respondent’s act
was done because of the fact that the persons about whom the respondent was
talking were of the Australian Aboriginal race or ethnic origin ... there could
be no other reason for the respondent’s statements than the race or ethnic
origin of the relevant group of people.
- The contents of Mr Newton’s affidavit filed on behalf of the
respondent are relevant to this question. On the one hand, Mr Newton states
Australia, and probably Australia, has a significant problem with youngsters who
steal cars, particularly underage and unlicensed youngsters, and kill or injure
themselves and their passengers. This is a problem that is not confined to
- On the other hand, Mr Newton states in the following paragraph of his
incident cannot be divorced, in my opinion, from the issue of well-known
problems in aboriginal communities.
- Further, the respondent in its Amended Defence pleads that the matters
complained of by the applicant related to issues including the
- (i) juvenile crime;
- (ii) in particular, juvenile crime constituted by the theft of and
unlawful use of motor vehicles by children and young people resulting in
accidents and the deaths of those involved because of recklessness;
- (iii) in particular, juvenile crime of the type referred to in (ii)
committed by young indigenous people;
- (v) parental responsibility for such
crimes and the extent to which parents of delinquent juveniles are
responsible for such crimes.
It would be open to the Court to find that at least one reason for the
publication of the comments (and the approval of those comments by journalists
employed by the respondent) was because of the race of the children involved in
the accident and their mother.
Part IIA of the RDA contains provisions dealing with vicarious liability.
As a result of s 18E, a corporate respondent will be liable for the acts of
its employees done in connection with their duties as employees. In the present
circumstances, this means that the respondent will be responsible for the
actions of employed journalists. Liability will not attach to an employer in
circumstances where the employer took all reasonable steps to prevent the
employee from doing the act.
In circumstances where a publisher is reproducing comments made by another
person, at least one relevant act to consider will be the act of publication.
There may be other relevant acts. For example, if comments made by other
parties are reviewed and approved prior to publication, then those may also be
The act must be done “otherwise that in private”. Section
18C(2)(a) relevantly provides that an act is not taken to be done in private it
causes words, sounds, images or writing to be communicated to the public.
One example of a broadcaster being found liable for comments made by another
person is the case of Wanjurri v Southern Cross Broadcasting (Aus)
Ltd. In that case, the
broadcaster of a talkback radio program on Radio 6PR in Perth, and its host Mr
Howard Sattler, broadcast a segment called “Taxi Talk” in which Mr
Sattler sought the views of the taxi drivers of Perth on a variety of local
issues. Mr Sattler had control over whether particular comments would be
broadcast as he had access to a 7 second “dump button”. Comments
made by two guests on the show were found to be in breach of s 18C(1)(a) of
the RDA on the basis that a reasonable Nyungah or Aboriginal person would have
found the comments offensive, insulting, humiliating or intimidating. Given the
content of the segment, the Commissioner found that one of the reasons for the
broadcast of the segment by the respondents was the race of the persons referred
to, and of the complainants. The respondents were found to have contravened
Part IIA of the RDA.
The relevant acts alleged by the applicant in the present case involved
approving content to be published on the PerthNow website and the publication of
those comments. These acts need to be considered in the context of evidence of
any guidance or training provided to moderators of the PerthNow website, and in
the context of the articles published by the respondent in the Sunday
Times and on the PerthNow website.
Mr Newton’s affidavit records that all contributions to the PerthNow
website are moderated. In order
for a comment by a member of the public to appear on the PerthNow website, it
must be approved by a moderator. Moderators are journalists with at least 5 years’ experience in
- It appears that when a member of the public submits a comment to the
PerthNow website, a message is displayed which provides, among other
will be rejected if it does not add to a debate, or is a purely
personal attack, or is offensive, repetitious, illegal or meaningless, or
contains clear errors of fact.
This message appears to be described by Mr Newton as comprising
It appears that PerthNow asks people submitting a comment to provide their
full name. The field in which
this is to be entered is described as “Display Name”. The
“Location” field is described as being optional. It appears from a
review of the names accompanying the comments on the website that many people
choose to provide a pseudonym rather than their full name, and that the
respondent is prepared to publish comments on this basis.
It is the decision of Mr Newton to allow a journalist to moderate
readers’ comments. Mr
Newton suggests that from time to time he may test a journalist’s
potential as a moderator. He
also encourages moderators not to allow comments that they believe were not made
in good faith, or was not the opinion of the person making the
comment. It does not appear
from Mr Newton’s affidavit that there is otherwise any training procedure
established by the respondent for moderators.
The question of the extent to which a publisher can be liable under
s 18C for publishing a comment by another person (who is not an employee or
agent of the publisher) that would otherwise offend s 18C, was also
considered in Silberberg v Builders Collective of Australia
Inc. In that case, the
respondent operated a website which included a Builders’ Collective
Discussion Forum (the Forum) which had the purpose of enabling members of
the public to discuss and debate issues relating to the building industry. Only
a registered user could post messages on the Forum. Messages were posted
automatically without intervention by the Collective. There was no monitoring
of the content of messages by the Collective at the time of posting and no
systematic monitoring thereafter, although postings were reviewed from time to
time. Conduct by an individual user of the Forum in posting comments about the
applicant was found to contravene s 18C. However, the conduct by the
operator of the Forum itself in failing to remove those comments within a
reasonable time was not found to breach s 18C.
Gyles J held that:
54.1. failure to remove known offensive material would be caught by
s 18C(1)(a) bearing in mind s 3(3) of the RDA;
54.2. constructive knowledge was sufficient, such that failure to remove
offensive material within a reasonable time of it having been posted was an act
caught by s 18C(1)(a);
- 54.3. however, in the circumstances of that case, the failure to remove the
offensive material was not shown to have any relevant connection with race or
ethnic origin of the applicant.
- There are two ways in which the facts of that case differ from the present
- First, the relevant act in Silberberg was the failure to remove
particular postings. Here, it appears that the relevant act is either the
approval by journalists employed by the respondent of comments drafted by
members of the public, or the publication by the respondent of those
- Secondly, it appears that a significant part of the rationale of the Court
in Silberberg for finding that the failure to act did not have any
relevant connection with race, was that the failure to remove the comments may
have been as a result of “inattention or lack of diligence”.
Relevant to this finding was the lack of involvement by the Collective in the
posting of messages and monitoring the content of the messages. It appears that
the way in which the relevant website is monitored in the present case is
- The context of the articles published by the respondent in the Sunday
Times and on the PerthNow website is also a factor that the Court is
entitled to take into account in assessing whether:
- 58.1. at least one of the reasons that the comments complained of were
approved by journalists employed by the respondent was because of the race of
the applicant or her deceased children;
- 58.2. any of the pleaded exemptions in s 18D apply.
- The applicant contends that her sons could be identified as Aboriginal
people through the publication of their photographs and their
- It appears from the articles in evidence that:
60.1. a significant element in each of the articles published by the
respondent was a reference to the comments that had been made by members of the
60.2. the articles acknowledged that these comments were
“polarising”, and sought to summarise these views including as
60.2.1. “many people claiming the four boys deserved little sympathy
because they were in a stolen car” (Clarke pp 31 and 35);
60.2.2. “many people believing such a loss could have been avoided
with better parental care” (Clarke p 33);
60.2.3. “PerthNow has received hundreds of comments (below) from
readers voicing disbelief at how young boys could be so poorly unsupervised
[sic] that were out at night in a stolen car” (Clarke p 33);
60.2.4. “an outpouring of comments from Perthnow and Sunday
Times readers, critical of the family for allowing their young children out
unsupervised late at night to steal cars” (Clarke pp 52 and
- 60.3. the articles also acknowledged that “others took a more
compassionate view” (Clarke pp 31 and 35) and “others sympathised
that it was not possible to control children all the time” (Clarke p
- 60.4. one article identified the subject matter of the “massive
community debate” as being about “parental control” (Clarke p
- 60.5. that article then encouraged readers to contribute further comments,
including encouraging readers to identify “who’s to blame for out of
control kids” (Clarke p 33).
- On 3 August 2007, Mr Newton wrote an editorial about an incident that he
considers was similar. That
editorial gives the impression that a factor that PerthNow may take into account
in approving and publishing comments is whether or not it will increase debate.
The article at Annexure F to his affidavit ends with the
The debate keeps raging. Take a look at the comments on
our website, www.perthnow.com.au where you can tell us if we’ve allowed
our readers to go too far.
Whether any of the statutory exemptions
The respondent relies on two exemptions found in
s 18D to conduct that would otherwise contravene s 18C.
The first exemption relied on, in s 18D(b), is for anything said or
done reasonably and in good faith in the course of a discussion or debate held
for a genuine purpose in the public
The second exemption relied on, in s 18D(c)(ii), is for anything said
or done reasonably and in good faith in making or publishing a fair comment on a
matter of public interest if the comment is an expression of a genuine belief
held by the person making the
- The onus of proof in relation to an exemption under s 18D rests with
The interpretation of ‘reasonably’ and ‘good
In the context of each of the exemptions in s 18D, there are two
preliminary and independent requirements. First, the act must be done
reasonably. Secondly, the act must be done in good faith. Reasonableness is
assessed objectively, while good faith contains both subjective and objective
An act is done reasonably in this context if it bears a rational
relationship to one of the protected activities in paragraphs (a), (b) or (c) of
s 18D, and is not disproportionate to what is necessary to carry out that
- It is necessary to consider the nature and seriousness of the harm caused by
an act in determining whether it is disproportionate to a what is necessary to
carry out an activity that would otherwise be exempt under
s 18D. In general, the
more serious the harm caused by a particular act, the less likely it is to be
proportionate and, hence,
reasonable. Where acts relate
to minority groups who have historically been subject to racism, an objective
approach requires consideration of the known experience of these groups. For
example, in Toben v Jones, Carr J stated (at ):
context of knowing that Australian Jewish people would be offended by the
challenge which the appellant sought to make, a reasonable person acting in good
faith would have made every effort to express the challenge and his views with
as much restraint as was consistent with the communication of those views.
- A requirement to act in good faith is a requirement of honest action and
fidelity to an identified norm, rule or obligation. That fidelity may extend
beyond compliance with the black letter of the law absent the good faith
requirement, and may require adherence to the spirit of the
- In Toben v Jones, Allsop J considered what was necessary to satisfy
the tests of “reasonably and in good faith” under s 18D(b) and
(c)(ii). Without deciding on outer limits of the requirements of reasonableness
and good faith in the context of these exemptions, Allsop J indicated certain
minimum requirements at :
At a minimum under, relevantly,
s 18D(b) or (c)(ii), whatever else is required, there should be an honest
attempt to put forward a contribution embodying a genuine purpose, or genuine
purpose in the public interest, or a fair comment by way of genuine
- The requirement of honesty inherent in the concept of good faith is a
subjective element. Where
insult or offence is found to be deliberate, this would suggest very strongly an
absence of good faith. However,
good faith requires more than subjective honesty and legitimate purposes. As
French J noted in Bropho v HREOC at
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. This may be assessed objectively.
Public interest exemptions
The respondent relies on two exemptions, both of which incorporate a
requirement that the act is in the public interest. The exemptions are:
- When considering the content of the public interest in the context of Part
IIA of the RDA, account should be taken of public interest considerations both
in doing the relevant act and refraining from doing the relevant act. In
relation to the latter, the Court should take into account the public interest
in ensuring that people of a particular racial group are not subject to acts
that are reasonably likely to offend, insult, humiliate or
intimidate. This is consistent
with comments made by the then Attorney-General in the second reading speech for
the Racial Hatred Bill 1994 (Cth) that the amendments target “behaviour
which affects not only the individual but the community as a
- In Toben v Jones, Kiefel J at  adverted to the prospect that in
some cases it may be difficult to apply the exemptions in s 18D in the face
of a finding that there was a racially based motive for the publication.
- As noted above, the onus of proof in making out a relevant exemption under
s 18D rests with the respondent. If no evidence is put forward that the
act was done for one of the genuine purposes referred to in s 18D(1)(b) or
that the circumstances in s 18D(1)(c)(ii) applied (including the
circumstance that the act was an expression of genuine belief) then the
exemption will not be made out.
- In relation to the publication of comments by others, in order to rely on
the exemption in s 18D(c)(ii) it appears that it is necessary to provide
evidence that the comment was an expression of genuine belief held by the person
making (rather than the person publishing) the
Breadth of statutory exemptions: relevance of
Anti-discrimination legislation is beneficial
and remedial legislation and should be given a liberal construction in
accordance with its purposes and objects. Exemptions to anti-discrimination
legislation should be narrowly
Consistent with that presumption, the Commission submits that the exemptions
in s 18D should be construed narrowly. A broad reading of the exemptions
in s 18D should not be preferred as it would potentially undermine the
protection afforded by the racial hatred
provisions. To the extent that
there is ambiguity in the breadth to be accorded to the exemptions in s 18D
the Commission submits that regard may be had to relevant international
- It is well settled that, as a general proposition, legislative provisions
that are ambiguous are to be interpreted by reference to the presumption that
Parliament did not intend to violate Australia’s international
obligations. The requirement of
ambiguity has been interpreted broadly; as Mason CJ and Deane J observed in Teoh:
are strong reasons for rejecting a narrow conception of ambiguity. If the
language of the legislation is susceptible of a construction which is consistent
with the terms of the international instrument and the obligations which it
imposes on Australia, then that construction should prevail.
The principle that legislation is to be construed so as to give effect to,
and not to breach, Australia’s international obligations assists in
minimising the risk of legislation inadvertently causing Australia to breach
international law. Any breach of international law occasioned by an Act of
Parliament ought to be the result of a deliberate decision by Parliament. To
this end, where a construction that is consistent with international law is
open, that construction is to be preferred over a construction that is
inconsistent with international
Justice French in Bropho v HREOC has described the post-war
recognition of fundamental human rights and freedoms, and associated with them
“a powerful norm of non-discrimination on grounds of
race”. This norm finds
expression in the Universal Declaration of Human
Rights, the ICCPR and
- In Koowarta v
Bjelke-Petersen, the High
Court found that RDA (prior to the introduction of Part IIA) was validly
supported by the external affairs power in s 51(xxix) of the Constitution.
Justice Stephen considered (at 220) that there was “much to be said”
for the submission by the Commonwealth that:
... the norm of
non-discrimination on the grounds of race, is now part of customary
international law, as both created and evidenced by State practice and as
expounded by jurists and eminent publicists.
In a series of cases, the High Court has taken the view that where a statute
implements a treaty, the treaty (and hence the statute) is to be interpreted in
light of international norms of interpretation, and further that treaties ought
to be interpreted uniformly by contracting
The following provisions of the ICCPR and CERD are relevant in the context
of a consideration of Part IIA of the RDA.
Article 19 of the ICCPR recognises the right to freedom of expression,
including “freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in writing or in print, in
the form of art, or through any other media”. However, this right is not
absolute. In particular, Art 19(3) notes that the freedom of expression
“carries with it special duties and responsibilities”. In
particular, the freedom is subject to any restrictions provided by law and
necessary “for respect of the rights or reputations of others”.
One such restriction is that provided for in Art 20(2) of the ICCPR. This
requires States to prohibit by law “any advocacy of national, racial or
religious hatred that constitutes incitement to discrimination, hostility or
- Specific obligations to limit expressions of racial hatred were undertaken
by States parties to CERD. In particular, Art 4 of CERD provides
States Parties condemn all propaganda and all organizations
which are based on ideas or theories of superiority of one race or group of
persons of one colour or ethnic origin, or which attempt to justify or promote
racial hatred and discrimination in any form, and undertake to adopt immediate
and positive measures designed to eradicate all incitement to, or acts of, such
discrimination and, to this end, with due regard to the principles embodied in
the Universal Declaration of Human Rights and the rights expressly set forth in
article 5 of this Convention, inter alia:
(a) Shall declare an offence punishable by law all dissemination of ideas
based on racial superiority or hatred, incitement to racial discrimination, as
well as all acts of violence or incitement to such acts against any race or
group of persons of another colour or ethnic origin, and also the provision of
any assistance to racist activities, including the financing thereof;
(b) Shall declare illegal and prohibit organizations, and also organized
and all other propaganda activities, which promote and incite racial
discrimination, and shall recognize participation in such organizations or
activities as an offence punishable by law;
(c) Shall not permit public authorities or public institutions, national
or local, to promote or incite racial discrimination.
These obligations should be read in the context of the other obligations in
Arts 2 to 7 of CERD, especially Arts 2, 6 and 7.
The UN Human Rights Committee (HRC) considered the interaction
between Arts 19 and 20(2) of the ICCPR in the case of JRT and the WG Party v
Canada. The WG Party was
founded as a political party in Toronto, Canada. The party and its leader Mr T
attempted to attract members through the use of tape recorded messages which
could be accessed by telephone. The messages warned callers of “the
dangers of international finance and international Jewry leading the world into
wars, unemployment and inflation and the collapse of world values and
Section 13(1) of the Canadian Human Rights Act 1978 provided that it
was a discriminatory practice to repeatedly communicate by telephone “any matter that is likely to expose a person or persons to hatred or
contempt by reason of the fact that the person or those persons are identifiable
on the basis of a prohibited ground of discrimination” including race.
As a result, the telephone service of the WG Party and Mr T was curtailed. Mr T
claimed that s 13(1) was in violation of Art 19 of the ICCPR. The HRC
concluded that the opinions that Mr T sought to disseminate “clearly
constitute the advocacy of racial or religious hatred which Canada has an
obligation under article 20(2) of the Covenant to prohibit”. This
aspect of Mr T’s claim was therefore incompatible with the ICCPR.
Part IIA of the RDA, which contains ss 18C and 18D, implements in part
Art 4 of CERD (while also being directed at Arts 2 to 7 more generally) and
Art 20(2) of the ICCPR. Unlike
the RDA, those obligations are not subject to any relevant exceptions and are
undertaken “with due regard to the principles embodied in the Universal
Declaration of Human Rights”. Hence, when construing the exemptions in
s 18D, a narrow construction will accord more closely with
Australia’s international obligations and is, to the extent the language
of the RDA permits, to be preferred.
Australia has a reservation to Art 20 of the ICCPR which relevantly provides
that: “Australia interprets the rights provided for by articles 19, 21 and
22 as consistent with article 20; accordingly, the Commonwealth and the
constituent States, having legislated with respect to the subject matter of the
article in matters of practical concern in the interest of public order
(ordre public), the right is reserved not to introduce any further
legislative provision on these matters”.
Australia has a reservation to Art 4(a) of CERD which relevantly provides
that: “The Government of Australia ... declares that Australia is not at
present in a position specifically to treat as offences all the matters covered
by article 4(a) of the Convention”.
The reservation in relation to Art 4(a) of CERD is explicitly limited to the
creation of offences contemplated by that article, rather than the creation of
civil prohibitions, such as those contained in Part IIA of the
RDA. It appears that the
reservation in Art 20 anticipates the reservation in Art 4(a) of CERD and deals
with the same issue. The Commission submits that these reservations do not act
to limit the interpretation of the civil prohibitions in Part IIA of the RDA.
The obligation of States to accord people the right to freedom of expression
is the basis for the exemptions in s 18D. As noted above, this freedom is
qualified, particularly by the obligation to prohibit certain forms of
expression that s 18C deals with.
- The Explanatory Memorandum to the Racial Hatred Bill 1994 noted that a
balance between competing rights was carefully considered in the drafting of the
Bill is not intended to limit public debate about issues that are in the public
interest. It is not intended to prohibit people from having and expressing
ideas. The Bill does not apply to statements made during a private conversation
or within the confines of a private home.
The Bill maintains a balance between the right to free speech and the
protection of individuals and groups from harassment and fear because of their
race, colour or national or ethnic origin.
- This was particularly the case in drafting the
section 18D provides a number of very important exemptions to the civil
prohibition created by proposed section 18C. The exemptions are needed to ensure
that debate can occur freely and without restriction in respect of matters of
legitimate public interest.
However, the operation of proposed section 18D is governed by the
requirement that to be exempt, anything said or done must be said or done
reasonably and in good faith.
Implied freedom of political communication
Test for invalidity
The freedom of political communication in Australia is an implication,
derived in particular from ss 7 and 24 of the Constitution which provide,
respectively, that the Senate and the House of Representatives shall be
“directly chosen by the
people”. The content of
the freedom has evolved through a series of High Court cases since 1992. It is
now settled that what is protected is that freedom of communication between the
people concerning political or governmental matters which enables the people to
exercise a free and informed choice as
electors, concerning information
that might be relevant to the vote they cast at a referendum, or concerning the
conduct of the executive branch of government throughout the life of a federal
Importantly, what has been recognised by the High Court is not a personal
right conferred on individuals. Rather, the implication precludes the
curtailment of the protected freedom by the exercise of legislative or executive
Further, the freedom is not absolute. It is limited to what is necessary
for the effective operation of the system of representative and responsible
government provided by the Constitution. In order to determine whether a
particular law is invalid as a result of the implied freedom, two questions must
be asked, as set out in Lange and as modified in Coleman v
- The modification in Coleman v Power involved the insertion of the
words “in a manner” in the second limb of the test (instead of the
words “the fulfilment of”). This clarified that both the manner of
achieving the end and the end itself must be compatible with the maintenance of
the constitutionally prescribed system of representative and responsible
- If the answer is yes to the first question and no to the second, then the
law is invalid.
Whether laws prohibiting insulting language
In Coleman v Power, the High Court was required to consider the constitutional validity of
s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld)
which prohibited the use in a public place of “insulting words to any
person”. No exceptions or exemptions were provided, such as those set out
in s 18D of the RDA, including for comments that were reasonable and made
in good faith in particular circumstances.
The case was heard as an appeal from the Queensland Court of Appeal, which
had held that the first limb of the test in Lange had been satisfied
(that the law did burden the freedom of political communication). As a result,
the High Court was not called upon to decide that issue. The case in the High
Court was limited to whether the law was reasonably appropriate and adapted to a
One of the legitimate ends contended for by the third respondent (the State
of Queensland) was the prevention of breaches of the peace, given that the
subject Act was aimed at the maintenance of public order.
In light of this object, Gummow, Hayne and Kirby JJ construed s 7(1)(d)
as applying where the words were either intended to, or reasonably likely to,
provoke unlawful physical
retaliation. So interpreted,
their Honours considered that the offence provision was reasonably appropriate
and adapted to preserving the peace and public order.
- Gleeson CJ, Callinan and Heydon JJ considered that s 7(1)(d) applied to
insulting words, even if they were not likely to result in a breach of the
peace. Their Honours also
considered that the section as more broadly interpreted was nevertheless
reasonably appropriate and adapted to a legitimate end. For example, Heydon J
In short, [section 7(1)(d)] leaves citizens free
to use insults in private, and to debate in public any subject they choose so
long as they abstain from insults. Even if s 7(1)(d) does create an
effective burden on communication on government and political matters, that is
not its purpose. It is not directed at political speech as such. Its purpose
is to control the various harms which flow from that kind of contemptuous speech
which is ‘insulting’. Its impact on communications about government
and political matters is therefore incidental only.
- Gleeson CJ noted that “almost any conduct of the kind prohibited by
s 7, including indecency, obscenity, profanity, threats, abuse, insults and
offensiveness is capable of occurring in a ‘political’ context,
especially if that term is given its most expansive
application”. However, if a law only incidentally burdens political expression (particularly
at the margins of such expression as expansively construed) and is appropriate
and adapted to a legitimate end, then it will not be invalid. His Honour gave
I gave an example of a mother who takes her children to play in a public park.
Suppose that she and her children are exposed to threats, abuse and insults.
Suppose, further, that the mother is an immigrant, that the basis of such
threats, abuse and insults includes, either centrally or at the margin, an
objection to the Federal Government’s immigration policy, and that the
language used is an expression, albeit an ugly expression, of an opinion on that
matter. Why should the family’s right to the quiet enjoyment of a public
place necessarily be regarded as subordinate to the abusers’ right to free
expression of what might generously be described as a political opinion?
- Callinan J doubted even that a prohibition on insulting words to a person in
a public place could burden the freedom of political communication as required
by the first stage of the Lange test. His Honour described such a
proposition as “far fetched”
or abusive words will no doubt generate heat, but it is equally unlikely that
they will, to adapt the language of the judgment in Lange ‘throw
light on [anything, let alone] government or political matters’.
- As to the second stage of the Lange test, Callinan J
section seeks to further therefore is peaceable, civilized passage through, and
assembly and discourse in public places free from threat, abuse or insult to
persons there. In that sense, the section seeks itself to advance a valuable
freedom. Free speech as this Court said in Lange has never been an
absolute right. Various constraints upon it have always been essential for the
existence of a peaceable, civilized, democratic community.
- McHugh J considered that an unqualified prohibition on the use of insulting
words went beyond what was required for preventing a breach of the
peace. His Honour considered
that further qualifications would be required to the prohibition in order for it
to be appropriate and adapted to that purpose. As noted above, no exceptions or
exemptions were provided in s 7(1)(d), such as those set out in s 18D
of the RDA.
- In the end, six of the seven Justices considered that s 7(1)(d) was
Application of implied freedom to Part
IIA of the RDA
- The exemptions in s 18D of the RDA were
drafted with the implied freedom of political communication in mind. In the
second reading speech, Michael Lavarch, the then Attorney-General,
the Australian High Court has established the existence within the constitution
of an implied guarantee of free expression. The High Court decisions have been
closely examined and the government is fully convinced that the bill does not
infringe on the principles developed by the court.
- Similar comments were made in the Explanatory Memorandum to the
Court has recently established an implied guarantee of free speech inherent in
the democratic process enshrined in our Constitution. But the High Court has
also made clear that there are limits to this guarantee. There is no
unrestricted right to say or publish anything regardless of the harm that can be
caused. A whole range of laws protect people’s rights by prohibiting some
forms of publication or comment, such as child pornography and censorship laws,
criminal laws about counselling others to commit a crime, and Trade Practices
prohibitions on misleading and false advertising or representations.
While it is highly valued, the right to free speech must therefore be
balanced against other rights and interests.
There are two cases which have directly considered the interaction between
Part IIA of the RDA and the implied freedom of political communication. Both
concluded that Part IIA was constitutionally valid.
The first case was a decision of the HREOC Commissioner in Hobart Hebrew
Congregation v Scully. The
case involved the publication and distribution of a pamphlet containing
anti-Semitic material. Commissioner Cavanough referred to Lange and
found that while it was conceivable that the restrictions imposed by
s 18C(1) of the RDA might, in certain circumstances, burden the freedom of
communication about government and political matters, the exemptions available
in s 18D meant that Part IIA of the RDA was reasonably appropriate and
adapted to serve a legitimate end the fulfilment of which is compatible with the
maintenance of government prescribed under the Constitution. The legitimate end
included the fulfilment of Australia’s international obligations under
CERD, in particular Art 4.
- The second case was a decision of Hely J in Jones v
Scully. Mr Jeremy Jones
sought to have the determination of Commissioner Cavanough in Hobart Hebrew
Congregation v Scully enforced. The respondent argued that the racial
hatred provisions in Part IIA of the RDA were constitutionally invalid because
they infringed the implied freedom of political communication. Justice Hely
held that the racial hatred provisions in Part IIA of the RDA were
question is therefore whether the RDA is reasonably appropriate and adapted to
achieve the elimination of racial discrimination having regard to the
requirement of freedom of communication about government and political matters
required by the Constitution. I agree with the Commissioner that, bearing in
mind the exemptions available under s 18D, Pt IIA of the RDA is
reasonably appropriate and adapted to serve the legitimate end of eliminating
racial discrimination. Section 18D, by its terms, does not render unlawful
anything that is said or done “reasonably and in good faith”
providing that it falls within the criteria set out in pars (a)(c). I consider
that those exemptions provide an appropriate balance between the legitimate end
of eliminating racial discrimination and the requirement of freedom of
communication about government and political matters required by the
Constitution. I accordingly reject the respondent’s argument that the RDA
should be declared unconstitutional “for the sake of freedom to
communicate political matters”.
- In Toben v Jones, the
following comments were made in obiter by Allsop J (one of the members of the
Full Court) at -:
It should be noted that no argument
was propounded raising any question of any inconsistency between Pt IIA,
s 18C or para 18C(1)(b) in its statutory context, with the implied
freedom of communication dealt with in Lange v Australian Broadcasting Corp
(1997) 189 CLR 520.
The appropriateness of recognising a balance between freedom of speech and
expressions of intimidation and hate is evident even in circumstances of the
clearest constitutional guarantee of freedom of speech: see Virginia v Black, US
Supreme Court, 7 April 2003. No such high constitutional hurdle was the subject
of argument before us, and not too much can be taken from the American
jurisprudence in the context of the First Amendment. Nevertheless, the opinion
expressed by Justice O’Connor on behalf of the Court with respect to
Pt I, Pt II and Pt III recognises the powerful effect of deeply
entrenched symbols and habits of intimidation (the Virginia statute there
outlawing cross-burning). Here, the balance, save for any question raised by
Lange, is to be struck by Parliament, as long as the result of its legislative
activity conforms with the principles set out in Victoria v The Commonwealth and
can be seen as a legitimate exercise of legislative power granted by
s 51(xxix) of the Constitution.
These comments were made in the context of a finding by his Honour that Part
IIA of the RDA was reasonably capable of being considered as appropriate and
adapted to implement the obligations undertaken by Australia in parts of Arts 2
and 4, and Arts 6 and 7 of CERD (Toben v Jones at ). In the same
case, Carr J held that Part IIA was validly enacted under the external affairs
power (s 51(xxix) of the Constitution) by reference to Arts 2-7 of CERD and
Art 20(2) of the ICCPR (Toben v Jones at ). Justice Kiefel agreed
with these findings of Carr J (Toben v Jones at ).
The respondent in the present case challenges the validity of Part IIA of
the RDA and Part IIB of the AHRC
Act. Part IIB of the AHRC Act
deals with redress for unlawful discrimination (including a breach of Part IIA
of the RDA). This redress may
take the form of the conciliation of a complaint lodged with the Commission
under Div 1, and the bringing of proceedings in the Federal Court or Federal
Magistrates Court under Div 2 if a complaint cannot be conciliated. The
Commission submits that if Part IIA of the RDA is valid, then the methods
adopted by Parliament of providing redress for breaches of Part IIA are also
In answer to the first question required to be asked under the two part test
in Lange, the Commission submits that Part IIA of the RDA does not
effectively burden freedom of communication about government or political
matters either in its terms, operation or effect. This is first because
offensive or insulting conduct based on race is inconsistent with genuine
comment on political or governmental matters. Secondly, communications that are
either not objectively reasonable, or not done in good faith, are not
communications that the implied freedom protects.
As noted by Callinan J in Coleman v Power, it is highly unlikely that
insulting language or acts will contribute in any meaningful way to debate on
government or political matters. This proposition is strengthened when one of
the reasons for such an act is the race of a person or group of people.
The prohibition in Part IIA of the RDA is more narrowly circumscribed than
the public order provision that was under consideration in Coleman v
Power. Part IIA of the RDA does not provide a general prohibition on public
acts that are likely to offend, insult, humiliate or intimidate a person or
group of people. Such acts must also be done for reasons that include race in
order to attract the prohibition in Part IIA.
Further, the Commission submits that if the offensive or insulting acts done
because of race are also either not objectively reasonable, or not done in good
faith (or in one of the fields of activity in s 18D(a) to (c)), then they
cannot be the kind of communication that is protected by the implied freedom of
The proposition that communication on political or governmental matters be
reasonable in order to be protected finds support in Coleman v Power and Lange. Callinan J in Colman v Power at  held that “it is only reasonable conduct that the implication protects” citing the Full Court in Lange at 573-574. Heydon J in Coleman v
Power at  reviewed the purposes for which the constitutional freedom
exists and noted at  that: “insulting words, considered as a
class, are generally so unreasonable, so irrational, so much an abuse of the
occasion on which they are employed, and so reckless that they do not assist the
electors to an ‘informed’ or ‘true’
Similarly, there is no basis for the protection of comments that are done
with an absence of good faith. Adopting the words of Allsop J from Toben v
Jones referred to above, if the relevant communications involve no “honest attempt to put forward a contribution embodying a genuine
purpose, or genuine purpose in the public interest, or a fair comment by way of
genuine belief” then it is difficult to conceive of how they would
enable people to exercise a free and informed choice as electors.
The exemptions in s 18D of the RDA already adequately provide for
communications on government and political matters that would otherwise be
covered by the implied freedom of political communication. As a result, the
Commission submits that the freedom is not relevantly burdened. As noted in
paragraph 113 above, the provisions in Part
IIA were drafted with the implied freedom explicitly in mind.
There is therefore no need to either read down s 18C or give s 18D
a more expansive interpretation than is called for by its terms. The
Commission’s submission on the appropriate interpretation of the breadth
of s 18D is dealt with above in paragraphs 62 to 97.
On the basis of its submission that the answer to the first question under
the two part test in Lange is no, the Commission submits that it is not
necessary to consider the second question.
However, the Commission submits that if an act that would otherwise
contravene Part IIA of the RDA could also be characterised as political
communication to which the implied freedom applies, then the prohibition in Part
IIA is reasonably appropriate and adapted to the pursuance of a legitimate end
in a manner which is compatible with representative and responsible government.
That is, if the first question under the Lange test is answered yes, then
the answer to the second question should also be yes, with the result that Part
IIA is constitutionally valid.
The legitimate end includes one or more of the following:
131.1. the fulfilment of Australia’s international obligations under
Arts 19(3)(a) and 20(2) of the ICCPR;
131.2. the fulfilment of Australia’s international obligations under
CERD, in particular (but not limited to)
- 131.3. eliminating racial discrimination in all its
- In assessing whether these ends and the manner in which they are sought to
be achieved through the enactment of Part IIA, are appropriate and adapted, it
is again useful to consider that, as noted in paragraph 113 above, these provisions were drafted with
the implied freedom of political communication explicitly in mind.
- These legitimate ends to which Part IIA is directed differ from the ends
under consideration in Coleman v Power. In that case, three of the
Justices considered that the prohibition on the use of insults should be read as
applying only to insults were either intended to, or reasonably likely to,
provoke unlawful physical retaliation. This limitation was applied having
regard to the legislative object of protecting public order and preventing a
breach of the peace. The ends to which Part IIA is directed are not limited to
the prevention of physical violence. As a result, no limited reading of the
prohibition in s 18C is required along the lines of that proposed by
Gummow, Hayne and Kirby JJ in Coleman v Power. On the basis of the
reasons given by Gleeson CJ, Callinan and Heydon JJ in Coleman v Power,
no limitation would be required, even if Part IIA were directed to preventing
- Further, the inclusion of an additional element in the offence (that at
least one of the reasons for doing the act is the race of a person or group of
people) and the exemptions in s 18D means that Part IIA is appropriately
tailored to the achievement of the ends to which it is directed. It does no
more than what is necessary, having regard to those ends. Any infringement on
the ability of people to communicate about government or political matters
would, at best, be incidental only. Part IIA does not prevent any genuine
public discussion of government or political matters, provided such discussion
is not carried out by way of offensive or insulting acts done because of
10 August 2011
Australian Human Rights Commission
 Done at New York on 7 March 1966, 
 See discussion in Levy
v Victoria (1997) 189 CLR 579 at 603-4 (Brennan
 Done at New York on 16 December 1966,
 ATS 23.
 McGlade v Lightfoot (2002) 124 FCR
106 at 116  (McGlade v Lightfoot) (citing with approval Hagan v Trustees of the Toowoomba Sports Ground Trust  FCA 1615, Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 355  (Creek v
Cairns Post), and Jones v Scully (2002) 120 FCR 243, 268-269
- (Jones v Scully). See also the Explanatory Memorandum
to the Racial Hatred Bill 1994 (Cth) p 10, dealing with the analogous position
under the Sex Discrimination Act 1984 (Cth).
 Jones v Scully at ; McGlade v Lightfoot at -.
 See, for example, affidavit of N Clarke
sworn 20 September 2010 at , -, -, -, ,  and
 McLeod v Power (2003) 173 FLR 31
at 45 , citing Corunna v West Australian Newspapers (2001) EOC 93-146
 Jones v Toben 
FCA 1150 (Jones v Toben).
 McGlade v Lightfoot at ; Jones v Scully at ; Jones v Toben at .
 See also French J in Bropho v Human
Rights and Equal Opportunity Commission (2004) 135 FCR 105 (Bropho v
HREOC) at 124 .
 Jones v Scully at , Jones v Toben at , Creek v Cairns Post at
 Affidavit of A Newton sworn 14
December 2010 at .
 Amended Defence
at [6(b)] and [7(b)].
 See for example Bropho v HREOC per French J at  and per Carr J at .
 Hagan v Trustees of the Toowoomba
Sports Ground Trust (2001) 105 FCR 56 at  and  (Full Court).
 Creek v Cairns Post at , Jones v Scully at , Jones v Toben at , Toben v
Jones (2003) 129 FCR 515 (Toben v Jones) at - per Carr
J. Cf Toben v Jones at - per Kiefel J and at - per
 Toben v Jones at 
and  per Kiefel J.
 Toben v Jones at - per
Carr J, at  per Kiefel J, and at  per Allsop
 Affidavit of A Newton sworn 14
December 2010 at .
 Affidavit of A
Newton sworn 14 December 2010 at .
 Amended Defence, particulars to .
 Human Rights and Equal Opportunity
Commission, Commissioner Innes, 7 May 2001 (2001) EOC
 Affidavit of A Newton sworn 14
December 2010 at .
 Affidavit of A
Newton sworn 14 December 2010 at .
 Affidavit of A Newton sworn 14 December 2010 at
 Affidavit of A Newton sworn 14
December 2010, Annexure A.
of A Newton sworn 14 December 2010 in index on page
 See for example Affidavit of N
Clarke sworn 20 September 2011 at pp 73 and
 Affidavit of A Newton sworn
14 December 2010 at .
 Affidavit of
A Newton sworn 14 December 2010 at
 Affidavit of A Newton sworn 14
December 2010 at -.
 (2007) 164
 Affidavit of N Clarke sworn
20 September 2011 at  and .
 Affidavit of A Newton sworn 14 December 2010 at
 Amended Defence
 Amended Defence .
 Jones v Scully at 
extracting the Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) pp
10-11, McGlade v Lightfoot at -, Jones v Toben at 
(this point was not challenged on appeal: Toben v Jones at  per Carr
J), Bropho v HREOC at  per Lee J and at - per Carr J. Cf Bropho v HREOC at  per French J.
 Bropho v HREOC at -
per French J, at  per Lee J (dissenting as to the result, but agreeing with
French J as to the legal test). Cf Carr J at  who considered that the test
was objective, but that evidence of a person’s state of mind may be
relevant. The approach of French and Lee JJ finds support in the approach taken
by the Queensland Anti-Discrimination Tribunal in Deen v Lamb  QADT
20, in considering the meaning of “reasonably and in good faith” in
the context of s 124A(2)(c) of the Anti-Discrimination Act 1991 (Qld). Commissioner Sofronoff stated (at page 12): “In also making
reasonableness a requirement the statute adds a further objective standard to
the requirement that the act be done in good faith
 Bropho v HREOC at  per French J.
 Bropho v HREOC at  per Lee
J, referring to Western Aboriginal Legal Service Ltd v Jones 
NSWADT 102 at .
 Bropho v
HREOC at  per Lee J.
 Bropho v HREOC at  per French
 Bropho v HREOC at  per
 Toben v Jones at
- per Allsop J, Bropho v HREOC at  per French
 See also Bropho v HREOC at
 per Lee J.
 Amended Defence at
 Amended Defence at
 Corunna v West Australian
Newspapers Ltd (2001) EOC 93-146 at 49.
 Commonwealth, Parliamentary
Debates, House of Representatives, Tuesday 15 November 1994, p 3336,
Michael Lavarch MP, Attorney-General.
 McGlade v Lightfoot at , Corunna v West Australian Newspapers Ltd (2001) EOC 93-146 pp 52-53
 Corunna v West
Australian Newspapers Ltd (2001) EOC 93-146 at 52-53 [184.108.40.206].
 Waters v Public Transport
Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v
City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23,
per Gaudron J, at 27 per Toohey J, at 39 per Gummow J and 58 per Kirby J; X v
Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways
Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J.
 Cf comments by French J in Bropho v
HREOC at  (referring to the first instance comments of RD Nicholson J)
where his Honour considered that a broad interpretation of the exemptions was to
be preferred. For the reasons set out in these submissions, the Commission
submits that these comments of French J should not be followed.
 This principle was first stated in the
Commonwealth context in Jumbunna Coal Mine No Liability v Victorian Coal
Miners’ Association (1908) 6 CLR 309 at 363. It has since been
reaffirmed by the High Court on many occasions: see, eg, Zachariassen v
Commonwealth (1917) 24 CLR 166 at 181 (Barton, Isaacs and Rich JJ); Polites v Commonwealth (1945) 70 CLR 60 at 68-69, 77, 80-81; Dietrich
v R (1992) 177 CLR 292 at 306 (Mason & McHugh J); Chu Kheng Lim v
Minister for Immigration (1992) 176 CLR 1 at 38 (Chu Kheng
Lim) (Brennan, Deane and Dawson JJ); Minister for Immigration &
Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Teoh); Re
Minister for Immigration and Multicultural and Indigenous Affairs (2003) 214
CLR 1 at 33 (McHugh and Gummow JJ); Al-Kateb v Godwin (2004) 219 CLR 562
(Al-Kateb); Coleman v Power (2004) 220 CLR 1. Despite his
stringent criticism of the rule, in Al-Kateb at - McHugh J
acknowledged that “it is too well established to be repealed now by
 (1995) 183
CLR 273 at 287-8.
 Teoh (1995) 183 CLR 273 at 362
(Mason CJ and Deane J); Chu Kheng Lim (1992) 176 CLR 1 at 38 (Brennan,
Deane and Dawson JJ).
 Bropho v
HREOC at  per French J.
 Universal Declaration of Human
Rights, GA Resolution 217A(III), UN Doc A/810 at 71
 (1982) 153 CLR 168.
 See, eg, Povey v Qantas Airways
Ltd (2005) 223 CLR 189 at 202 - (Gleeson CJ, Gummow, Hayne and
Heydon JJ); Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty
Ltd (1980) 147 CLR 142 at 158-60; A v Minister for Immigration &
Ethnic Affairs (1997) 190 CLR 225 at 239-240 (Dawson J); Commonwealth v
Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 104; Thiel v
Federal Commissioner of Taxation (1990) 171 CLR 338 at 349-350 (Dawson
 Communication No. 104/1981 (names
 See Toben v Jones at -
per Carr J, at  per Kiefel J and at  per Allsop J. See also the second
reading speech for the Racial Hatred Bill 1994 (Cth) which provided that the
bill was “consistent with the Commonwealth’s own human rights
regime” and made reference to the travaux preparatoires to
 See the reports submitted by Australia
to the United Nations Committee on the Elimination of Racial Discrimination
pursuant to Art 9 of CERD on 20 July 1999 (CERD/C/335/Add.2) at ; and on 7
January 2010 (CERD/C/AUS/15-17) at
 Explanatory Memorandum to the
Racial Hatred Bill 1994 (Cth) p 1.
 Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) pp
 Lange v Australian
Broadcasting Corporation (1997) 189 CLR 520 (Lange) at
 Lange at
 Lange at
 Lange at 560.
 Lange at 567 as modified in Coleman v Power at 32 per Gleeson CJ, at 50-51 per McHugh J, at 78
per Gummow and Hayne JJ, and at 82 per Kirby
 (2004) 220 CLR
 Coleman v Power at 74 per
Gummow and Hayne JJ, and at 87 and 98-99 per Kirby
 Coleman v Power at 24 per
Gleeson CJ, at 108 per Callinan J, and at 117 per Heydon
 Coleman v Power at 31 per
 Coleman v Power at
32 per Gleeson CJ.
 Coleman v
Power at 114 per Callinan J.
 Coleman v Power at 112 per Callinan
 Coleman v Power at 53 per
 Commonwealth, Parliamentary
Debates, House of Representatives, Tuesday 15 November 1994, p 3338,
Michael Lavarch MP, Attorney-General.
 Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) p 1.
 Human Rights and Equal Opportunity
Commission, Commissioner Cavanough QC, 21 September 2000 (2000) EOC
 Human Rights and Equal Opportunity
Commission, Commissioner Cavanough QC, 21 September 2000, at 12-14 (2000)
 (2002) 120 FCR 243.
 Jones v Scully at
 (2003) 129 FCR
 Amended Defence at
 See the definition of
“unlawful discrimination” in s 3 of the AHRC
 Hobart Hebrew Congregation v
Scully p 13, and the preamble to the RDA.
 Jones v Scully at ; Toben v Jones at  per Carr J, at  per Kiefel J and at  and
 per Allsop J.