An Examination of the Constitutional

AN EXAMINATION OF THE CONSTITUTIONAL

AND LEGAL FRAMEWORKS FOR THE REGULATION

OF RACIAL VILIFICATION IN AUSTRALIA

Daniel Meagher

A thesis submitted in fulfilment of the requirements for the degree of Doctor of Philosophy

Faculty of Law

University of New South Wales

November 2006

ABSTRACT

This thesis involves an analysis of the constitutional and legal frameworks for the regulation of racial vilification in Australia. In doing so, it has two aims.

First, I wish to discern the constitutional parameters for Australian laws where political communication forms part of the conduct sought to be regulated. The High

Court has recognised that the Australian Constitution contains an implied right to freedom of political communication (‘implied freedom’). It operates to invalidate legislative and executive action which impairs the effective operation of our system of constitutional government. The scope of the implied freedom remains unclear, however. There is no consensus on the High Court as to what constitutes ‘political communication’ or when a law can be said to impair constitutional government. I will seek to answer these open constitutional questions and in doing so outline a methodology to determine whether racial vilification may count as political communication. If so, I will then consider whether this, consequently, imperils the validity of existing Australian racial vilification laws.

And second, I want to critically evaluate the normative legitimacy of Australian racial vilification laws and propose legislative reform in the event that my analysis reveals any serious flaws in the current legal framework. The methodology outlined in the first part of the thesis provides the relevant constitutional parameters within which any proposed legislative reform must fall.

In the result, I conclude that racial vilification can amount to political communication but that most Australian racial vilification laws are, nevertheless, compatible with the implied freedom and valid as a consequence. However, my evaluation of Australian civil and criminal racial vilification laws reveals that most are seriously flawed.

Consequently, a detailed reform program is outlined to remedy the major legislative

deficiencies.

It is my view that the law has an important but limited role to play in the regulation of

racial vilification in Australia. It is certainly reasonable and prudent to have precise

and well-targeted laws to proscribe and punish racial vilification but policy and lawmakers should not overstate or overestimate the ability of the law to effect grass roots attitudinal and behavioural changes on matters of race.

ORIGINALITY STATEMENT

“I hereby declare that this submission is my own work and to

the best of my knowledge it contains no materials previously

published or written by another person, or substantial

proportions of material which have been accepted for the

award of any other degree or diploma at UNSW or any other

educational institution, except where due acknowledgement is

made in the thesis. Any contribution made to the research by

others, with whom I have worked at UNSW or elsewhere, is

explicitly acknowledged in the thesis. I also declare that the

intellectual content of this thesis is the product of my own

work, except to the extent that assistance from others in the

project’s design and conception or in style, presentation and

linguistic expression is acknowledged.”

Signed ......

iii

‘I hereby grant the University of New South Wales or its

agents the right to archive and to make available my thesis or

dissertation in whole or part in the University libraries in all

forms of media, now or here after known, subject to the

provisions of the Copyright Act 1968. I retain all proprietary

rights, such as patent rights. I also retain the right to use in

future works (such as articles or books) all or part of this

thesis or dissertation.

I also authorise University Microfilms to use the 350 word

abstract of my thesis in Dissertation Abstract International

(this is applicable to doctoral theses only).

I have either used no substantial portions of copyright

material in my thesis or I have obtained permission to use

have applied/will apply for a partial restriction of the digital

copy of my thesis or dissertation.’

Signed ......

Date ......

AUTHENTICITY STATEMENT

‘I certify that the Library deposit digital copy is a direct

equivalent of the final officially approved version of my

thesis. No emendation of content has occurred and if there are

any minor variations in formatting, they are the result of the

conversion to digital format.’

Signed ......

Date ......

ACKNOWLEDGMENTS

I wish to thank my supervisor – Professor George Williams – for his judicious

guidance and unwavering support of my thesis. George stimulated my interest in this

area and, most importantly, gave me the confidence to pursue it.

I would like to thank the following institutions for giving me the opportunity to

research and write in such comfortable and supportive surrounds: The University of

Cape Town and the Centre for Comparative Constitutional Studies at the University

of Melbourne. And especially to my friends at the Gilbert + Tobin Centre of Public

Law at the University of New South Wales for being my home away from home during the writing of my thesis.

I am also eternally grateful to the following people for their encouragement, conversation and friendship: Simon Bronitt, Scott Johns, Andrew Lynch, Lawrence

McNamara, Luke McNamara, Irene Nemes, Luke O’Sullivan, Greg Peele, Alex

Reilly, Philippa Spark, Adrienne Stone, Garry Wall, Val and Ernie Watkins, John

Williams and George Winterton.

Finally, to my family – Mum and Dad, Susie, Ben and John – for your loyalty, values and interest. I love you dearly.

This thesis is dedicated to Fi and Spencer, the two people who make me happy every single day. And to Chris Nolan, an old friend who shares my three passions: constitutional law, red wine and rock n’ roll!

TABLE OF CONTENTS

ABSTRACT ...... i

ORIGINALITY STATEMENT ...... iii

AUTHENTICITY STATEMENT...... v

ACKNOWLEDGMENTS...... vi

TABLE OF CONTENTS...... vii

INTRODUCTION...... 1

CHAPTER ONE WHAT IS ‘POLITICAL COMMUNICATION’? THE RATIONALE AND SCOPE OF THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION...... 6

I INTRODUCTION ...... 6

II THE RATIONALE OF THE IMPLIED FREEDOM UNDER THE AUSTRALIAN CONSTITUTION ...... 9

A LOCATING THE RATIONALE: THE INADEQUACY OF CONSTITUTIONAL TEXT AND STRUCTURE...... 9

B THE ‘CLASSIC TRIO’ OF COMMUNICATION RATIONALES ...... 11

1 The trio’s influence on the implied freedom jurisprudence of the High Court .... 11

2 Why the ‘classic trio’ are not the primary rationales of the implied freedom...... 17

C A MINIMALIST MODEL OF JUDICIALLY-PROTECTED POPULAR SOVEREIGNTY: THE RATIONALE OF THE IMPLIED FREEDOM...... 27

1 Constitutional history and logic ...... 29

2 The tradition of freedom of communication protection in Australia ...... 32

3 The limited institutional capacity of the judiciary...... 40

D PROVISIONAL CONCLUSION ...... 42

III WHAT COUNTS AS ‘POLITICAL COMMUNICATION’ AFTER LANGE?...... 43

A THE SCOPE OF THE LANGE DECISION ...... 43

vii

B A MINIMALIST MODEL OF JUDICIALLY-PROTECTED POPULAR SOVEREIGNTY AND THE SCOPE OF ‘POLITICAL COMMUNICATION’ ...... 47

C HOW STRONG MUST THE NEXUS REQUIREMENT BE TO COUNT AS ‘POLITICAL COMMUNICATION’?...... 48

D A TEST FOR DETERMINING WHEN A COMMUNICATION IS ‘POLITICAL’ ...... 53

1 The ‘likely audience’ test ...... 53

2 The application of the ‘likely audience’ test ...... 57

E PROVISIONAL CONCLUSION ...... 61

IV CONCLUSION...... 62

CHAPTER TWO THE PROTECTION OF POLITICAL COMMUNICATION UNDER THE AUSTRALIAN CONSTITUTION...... 65

I INTRODUCTION ...... 65

II HOW THE LANGE TEST FOR CONSTITUTIONALITY OUGHT TO BE APPLIED ...... 67

A THE TWO-TIER APPROACH OR A SINGLE STANDARD OF REVIEW? . 67

B THE ROLE OF PROPORTIONALITY ...... 75

C THE PROPOSED REVIEW MODEL...... 81

1 The Rationale of the Implied Freedom ...... 81

2 The Test for Proportionality...... 87

III THE COMPATIBILITY OR OTHERWISE OF AUSTRALIAN RACIAL VILIFICATION LAWS WITH THE IMPLIED FREEDOM...... 101

A THE CONSIDERATION OF THE COMPATIBILITY ISSUE IN THE LOWER COURTS ...... 101

B WHY THE IMPLIED FREEDOM IS A THREAT TO THE VALIDITY OF AUSTRALIAN RACIAL VILIFICATION LAWS AFTER LANGE...... 105

C THE APPLICATION OF THE LANGE TEST FOR CONSTITUTIONALITY TO AUSTRALIAN RACIAL VILIFICATION LAWS ...... 109

viii

1 Do Australian racial vilification laws ‘effectively burden freedom of communication about government or political matters either in [their] terms, operation or effect?’...... 110

2 Assessing the Significance of the Detriment to ‘Political Communication’ Effected by Australian Racial Vilification Laws ...... 114

3 Are Australian Racial Vilification Laws ‘reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government’?...... 121

IV CONCLUSION...... 131

CHAPTER THREE CIVIL LAWS ...... 134

I INTRODUCTION ...... 134

A THE CASE FOR CIVIL RACIAL VILIFICATION LAWS IN AUSTRALIA...... 135

B THE METHOD USED TO CRITICALLY EVALUATE AUSTRALIAN CIVIL RACIAL VILIFICATION LAWS...... 138

II FREEDOM OF SPEECH...... 144

A THE RDA HARM THRESHOLD ...... 144

1 Parliamentary intent and the ‘the vice of linguistic over-inclusiveness’...... 145

III TEXTUAL CLARITY AND PRECISION...... 149

A SECTION 18C OF THE RDA ...... 149

1 Elevating the s 18C harm threshold: Parliamentary intent and the interpretive malady ...... 150

2 The causal connection: When is an act done because of the race, colour or national or ethnic origin of another person or group? ...... 154

3 No s 18C harm threshold analysis or reasoning...... 157

B FREE SPEECH/PUBLIC INTEREST DEFENCES UNDER THE COMMONWEALTH AND NEW SOUTH WALES MODELS ...... 161

1 Are the defences too broad (and indeterminate as a consequence)? ...... 163

2 The impact of the implied freedom on the scope of free speech/public interest defences...... 166

3 When is conduct that occasions civil racial vilification done ‘reasonably and in good faith’?...... 167

IV CONCLUSION...... 176

A PROPOSALS FOR REFORM...... 178

1 Amending the s 18C harm threshold...... 178

2 The meaning of ‘reasonably and in good faith’ in the free speech/public interest defences requires clarification...... 180

3 Low end racial vilification ought to be unregulated...... 181

CHAPTER FOUR CRIMINAL LAWS ...... 183

I INTRODUCTION ...... 183

II CRIMINAL RACIAL VILIFICATION LAWS IN AUSTRALIA: A BRIEF HISTORY...... 186

III THE NEW SOUTH WALES MODEL...... 190

A FREEDOM OF SPEECH ...... 192

B THE TEXTUAL CLARITY AND PRECISION OF THE S 20D OFFENCE . 195

C THE POSITION OF THE NEW RACIAL VILIFICATION CRIME WITHIN THE EXISTING CRIMINAL LAW FRAMEWORK...... 199

D PROVISIONAL CONCLUSION I...... 204

IV THE WESTERN AUSTRALIAN MODEL ...... 206

A FREEDOM OF SPEECH ...... 215

B THE TEXTUAL CLARITY AND PRECISION OF THE WESTERN AUSTRALIAN OFFENCES...... 224

C THE POSITION OF THE WESTERN AUSTRALIAN OFFENCES WITHIN THE EXISTING CRIMINAL LAW FRAMEWORK...... 227

D PROVISIONAL CONCLUSION II ...... 234

V THE COMMONWEALTH MODEL: GROUP RACIAL INCITEMENT AS SEDITION...... 235

A FREEDOM OF SPEECH ...... 239

B THE TEXTUAL CLARITY AND PRECISION OF THE COMMONWEALTH OFFENCE ...... 246

C THE POSITION OF THE COMMONWEALTH OFFENCE WITHIN THE EXISTING CRIMINAL LAW FRAMEWORK...... 249

VI CONCLUSION...... 257

A THE CASE FOR REPEALING THE CURRENT AUSTRALIAN CRIMINAL RACIAL VILIFICATION LAWS...... 257

B CRIMINAL RACIAL VILIFICATION LAWS IN AUSTRALIA: A REFORM PROPOSAL...... 259

CHAPTER FIVE REGULATING HISTORY: AUSTRALIAN RACIAL VILIFICATION LAW AND HISTORY DENIAL ...... 264

I INTRODUCTION ...... 264

II SOME PRELIMINARY POINTS...... 266

III IS THERE A PROBLEM WITH THE LAW AND HISTORY?...... 272

A IS HISTORY ‘JUSTICIABLE’? – THE CHALLENGE OF POSTMODERNISM ...... 272

1 Irving v Penguin Books Ltd & Lipstadt ...... 284

2 Cubillo v Commonwealth ...... 287

B PROVISIONAL CONCLUSION I...... 290

IV THE TREATMENT OF HISTORY DENIAL AS RACIAL VILIFICATION UNDER CURRENT AUSTRALIAN LAW...... 291

A THE EXISTING CIVIL LAW FRAMEWORK...... 291

1 The unique challenge posed by history denial as racial vilification...... 293

B WHY, THROUGH THE ‘GOOD FAITH’ REQUIREMENT, CIVIL RACIAL VILIFICATION LAW IS EQUIPPED THEORETICALLY TO DISTINGUISH BETWEEN CONTROVERSIAL BUT BONA FIDE HISTORICAL SCHOLARSHIP AND HISTORY DENIAL AS RACIAL VILIFICATION...... 301

1 The ‘History Wars’ and the Windschuttle controversy: a case study ...... 301

2 A practical concern with making a claim of history denial as racial vilification under current Australian law ...... 311

3 Why the harm threshold under s 18C of the Racial Discrimination Act 1975 (Cth) is a threat to controversial but bona fide historical scholarship and how it might be lessened...... 314

C THE EXISTING CRIMINAL LAW FRAMEWORK...... 319

1 The New South Wales Model ...... 319

2 The Commonwealth Model...... 320

3 The Western Australian Model ...... 321

D PROVISIONAL CONCLUSION II ...... 324

1 Australian civil racial vilification laws can regulate meaningfully history denial as racial vilification...... 324

2 Most Australian criminal racial vilification laws pose no threat to controversial but bona fide historical and race scholarship ...... 325

3 No case exists for major legislative surgery or a specifically tailored law to proscribe history denial as racial vilification...... 326

V CONCLUSION...... 328

CONCLUSION...... 330

LIST OF REFERENCES ...... 344

xii

INTRODUCTION

In 2002, Luke McNamara published his treatise Regulating Racism: Racial

Vilification Law in Australia. This important work was the first detailed treatment of

racial vilification law in Australia. This thesis will build upon McNamara’s valuable

research by undertaking a root and branch analysis of the constitutional and legal frameworks for the regulation of racial vilification in Australia. It is an opportune time for such an inquiry as there is both a need ‘to develop an Australian conception of freedom of political communication’1 and - with racial vilification laws now on the

statute books for over 15 years and operating in all Australian jurisdictions except the

Northern Territory - sufficient time has elapsed to undertake a meaningful evaluation

of their normative legitimacy and regulatory value.

My thesis, therefore, has two aims. First, I am interested in discerning what are the

constitutional parameters for Australian laws where political communication forms

part of the conduct sought to be regulated. The High Court has recognised that the

Australian Constitution contains an implied right to freedom of political

communication (‘implied freedom’). It operates to invalidate legislative and executive

action that

impairs or tends to impair the effective operation of the constitutional system

of representative and responsible government by impermissibly burdening

communications on political or governmental matters.2

However, the precise scope of the implied freedom depends on what are

‘communications on political and governmental matters’ and when laws will ‘impair

1 Adrienne Stone, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 University of New South Wales Law Journal 842, 851. 2 Coleman v Power (2004) 220 CLR 1, 49 (McHugh J) (‘Coleman’).

the effective operation’ of constitutional government. Presently, there is no consensus

on the Court as to these matters. I will address these crucial questions and in doing so

outline a methodology that can determine whether racial vilification may count as political communication and, if so, whether this consequently imperils the validity of existing Australian racial vilification laws. And second, I want to critically evaluate

the normative legitimacy and regulatory value of Australian racial vilification laws

and propose legislative reform in the event that my analysis reveals any serious flaws

in the current legal framework.

My constitutional analysis will involve developing a theoretical justification for the

implied freedom. It is important, for an understanding of the theoretical underpinnings

of the implied freedom helps to determine its scope. This, in turn, provides the

methodology to assess the compatibility of Australian racial vilification laws with the

implied freedom. My analysis of the current legal framework will also further

advance the relevant literature by considering racial vilification laws that McNamara

did not consider (Tasmania) and others which were not enacted (Victoria,

Commonwealth) or have been substantially amended (Western Australia) since the

publication of his treatise.

Before I detail how the two aims of this thesis will be addressed, I want to make clear,

however, what this thesis is not about. I do not intend to rehearse in any detail the

arguments as to whether racial vilification laws are a good idea or not. An extensive

literature on this threshold question already exists.3 More importantly, my analysis

3 See for example Wojciech Sadurski, ‘Offending with Impunity: Racial Vilification and Freedom of Speech’ (1992) 14 Sydney Law Review 163; Kathleen Mahoney, ‘Hate Vilification Legislation and Freedom of Expression: Where is the Balance?’ (1994) 1 Australian Journal of Human Rights 353; Ian Freckelton, ‘Censorship and Vilification Legislation’ (1994) 1 Australian Journal of Human Rights 327; Luke McNamara, ‘The Merits of Racial Hatred Laws: Beyond Free Speech’ (1995) 4 Griffith Law Review 29; Michael Chesterman, Freedom of Speech in Australian Law (2000) 193-248.

proceeds from McNamara’s sound proposition that racial vilification laws are now, in all likelihood, a permanent fixture on the Australian legal and political landscape.4

That is why I consider it a more fruitful and useful line of inquiry to examine and critique the existing constitutional and legal frameworks for the regulation of racial vilification in Australia.

In any event, my aims will be addressed in the following way. The constitutional analysis will be undertaken in Chapters One and Two. In Chapter One I will develop an argument as to the rationale of the implied freedom in order to delimit its scope. In doing so, the constitutional parameters for Australian laws where political communication forms part of the conduct sought to be regulated will be delineated.

Once this is done, I have the methodology needed to determine what counts as political communication and whether racial vilification can be so considered. It is concluded that some instances of racial vilification can amount to constitutionally protected political communication.

Upon answering these questions, I then turn to consider my other central constitutional concern: the compatibility or otherwise of Australian racial vilification laws with the implied freedom. This analysis is the focus of Chapter Two. However, the test endorsed by the High Court for determining whether legislative or executive action is invalidated by the implied freedom – the Lange test5 - must be considered in

4 Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 3-4. 5 A two part test was outlined by the Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 567-568 (footnotes omitted): ‘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 second limb of the test was slightly modified in Coleman (2004) 220 CLR 1, 50 (McHugh J) to now read: ‘is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible

more depth before this analysis can be undertaken. For the articulation of the test

itself does not make clear its scope or how it is to be applied. So in this Chapter I will

develop a more sophisticated review model to perform the constitutional analysis

which is founded on the Lange test and animated by the rationale of the implied

freedom. The application of this review model demonstrates that most - but not all -

Australian racial vilification laws are compatible with the implied freedom.

My second thesis aim will be addressed in Chapters Three, Four and Five. The civil

laws will be considered in Chapter Three and criminal laws in Chapter Four. I will do

so by assessing them against the following criteria:

- Whether the laws are drafted in a way that so valuable freedom of speech

(including constitutionally protected political communication) is not

proscribed or chilled.

- Whether the laws are drafted with sufficient clarity and precision.

- Whether – in the case of the criminal laws – they sit comfortably within their

criminal law frameworks. That is, whether the criminal racial vilification laws

are compatible with existing criminal law policy, principle and procedure.

I will argue that - and explain why - the normative legitimacy of the (civil and criminal) laws largely turns on whether they sufficiently meet these criteria. If so, they have the capacity to perform a meaningful role in the regulation of racial vilification in Australia. However, my analysis will demonstrate that most Australian racial vilification laws are seriously flawed. Some lack precision and clarity - making them practically unworkable as consequence - others operate to proscribe and chill

with the maintenance of the constitutionally prescribed system of representative and responsible government?’ This rewording was endorsed by Gummow and Hayne JJ (78) and Kirby J (82).

valuable (and constitutional) speech. They are in need of fundamental reform. To this end, I conclude Chapters Three and Four with proposed legislative reforms that are

developed within the framework provided by the three criteria outlined above and the

constitutional parameters established in Chapter One.

Chapter Five, then, provides an opportunity to test some of the key arguments made

in Chapters Four and Five. These will include that the low harm threshold in s 18C of

the Racial Discrimination Act 1975 (Cth) and the criminal racial vilification laws

more generally pose a significant threat to valuable public discourse on race-related

issues. I do this by way of a case study. It will consider how Australian racial vilification laws may operate upon a controversial form of speech - history denial –

and whether my ‘free speech’ criticisms of them (and consequent reform proposals) have merit.

I will ultimately conclude that - even though the current crop of laws are problematic and need reform - properly framed racial vilification laws do have the capacity to play a meaningful (though limited) role in the regulation of racial vilification in Australia.

CHAPTER ONE

WHAT IS ‘POLITICAL COMMUNICATION’? THE RATIONALE AND SCOPE OF THE IMPLIED FREEDOM OF POLITICAL COMMUNICATION

I INTRODUCTION

For judges the question is not whether freedom of speech is in principle a matter

of rights or of utility, but what theory or view of the matter is taken by the

Constitution, as revealed by its text, history, and legal precedent.1

This Chapter has two parts, but aims to answer one important question: namely, what counts as ‘political communication’ for the purpose of the implied freedom of political communication?2 My interest in addressing this question is twofold. First, whilst the High Court in Lange v Australian Broadcasting Corporation unanimously agreed that the implied freedom was part of Australian constitutional law and enunciated a single test for constitutionality,3 it did not endorse a definition of

‘political communication’. The definition ultimately adopted will delimit the proper scope of the implied freedom and in doing so provide the constitutional parameters

11 Eric Barendt, Freedom of Speech (1985) 6. 2 I will refer to it as the ‘implied freedom’ for the remainder of the Chapter. 3 (1997) 189 CLR 520, 567–8 (citations omitted) (‘Lange’), where the Court outlined the following test: ‘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 second limb of the test was slightly modified in Coleman v Power (2004) 220 CLR 1, 50 (McHugh J)(‘Coleman’) to now read: ‘is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?’ This rewording was endorsed by Gummow and Hayne JJ (78) and Kirby J (82).

for Australian laws where political communication forms part of the conduct sought

to be regulated. Secondly, I will clarify whether racial vilification, a particularly controversial species of communication, can be considered ‘political communication’.

This is important as it is the first step that must be taken to assess the constitutionality or otherwise of current Australian racial vilification laws.4 This analysis will be

undertaken in Chapter Two.

It is, however, necessary and desirable to establish a sound theoretical basis for the

implied freedom before the question of what counts as ‘political communication’ can

be properly considered. This is done in Part II of the Chapter where I examine the

‘classic trio’5 of rationales that underpin most free speech and communication guarantees: the search for truth, the promotion of individual autonomy and the

argument from democracy or self-government. I conclude that a particular conception of popular sovereignty – one that approximates a thinner version of the argument from self-government made by Alexander Meikeljohn - is the rationale that must guide the interpretation and application of the implied freedom. It fits best with the text and structure of the Constitution and the Australian tradition of freedom of communication protection.

The departure point for this analysis is the Lange decision which clarified the textual basis of the implied freedom. In doing so, the case confirmed that the implied freedom exists not in the nature of a positive right, but as a means to secure more effective representative and responsible government.6 I will not, therefore, discuss in

any great detail the pre-Lange case law, except where necessary to develop and

4 See Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 238–43. 5 See generally Tom Campbell, ‘Rationales for Freedom of Communication’ in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication (1994) 17. 6 Lange (1997) 189 CLR 520, 561.

articulate my argument and to understand the reasoning employed in Lange. Nor will

I consider the nature and application of the Lange test for constitutionality or engage

in debate as to the merits or otherwise of the constitutional reasoning from which the

implied freedom was derived.7 The logic of the Lange decision will, however, be

closely examined.

While no bright line exists between political and non-political communication, a workable and principled definition can be located if the rationale of the implied

freedom is kept firmly in mind. My analysis will show, for two reasons, that the

rationale requires a generous zone of ‘political communication’ to attract

constitutional protection. However, securing the theoretical basis for the implied

freedom and identifying what it requires will not alone determine whether a particular

communication is ‘political’ in the relevant constitutional sense. Consequently, in Part

III of the Chapter, a test is proposed to this end. It states that a communication is

‘political’ and thus constitutionally-protected if the subject matter of the

communication may reasonably be relevant to the federal voting choices of its likely

audience. The ‘likely audience’ test is then applied to a range of real controversies

and hypothetical communications, some of which involve varying degrees of racial vilification. From this, a broad conception of ‘political communication’ emerges and it is demonstrated that some, but not all, instances of racial vilification count as

‘political communication’.

7 See Nicholas Aroney, Freedom of Speech in the Constitution (1998) chs 4, 5; Andrew Fraser, ‘False Hopes: Implied Rights and Popular Sovereignty in the Australian Constitution’ (1994) 16 Sydney Law Review 213; Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 150; Jeffrey Goldsworthy, ‘Constitutional Implications and Freedom of Political Speech: A Reply to Stephen Donaghue’ (1997) 23 Monash University Law Review 362.

II THE RATIONALE OF THE IMPLIED FREEDOM UNDER THE

AUSTRALIAN CONSTITUTION

The non-existence of a clear textual principle of free speech in the Australian

Constitution, therefore, not only allows consideration of the kinds of foundational

questions about free speech not permitted in many other countries, but quite

possible [sic] demands it.8

A LOCATING THE RATIONALE: THE INADEQUACY OF

CONSTITUTIONAL TEXT AND STRUCTURE

It is necessary to locate the theoretical basis for the implied freedom in order to articulate the core matter (the range of communications that attract constitutional protection) and chart the trajectory of the implied freedom. It is also desirable because it allows the constitutional freedom to develop incrementally and in a manner more likely to be coherent and principled.9 The greater clarity, consistency and predictability achieved when constitutional doctrine develops in this manner will assist legislators (in framing laws), judges (in applying the implied freedom), lawyers

(in advising clients) and the citizenry (in recognising and utilising the zone of

constitutionally-protected communication). Moreover, the High Court will be

required in future controversies to consider some of the difficult questions that

8 Frederick Schauer, ‘Free Speech in a World of Private Power’ in Campbell and Sadurski, Freedom of Communication, above n 5, 2. But see Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219, 235, where Stone warns against the High Court endorsing a theory of the implied freedom too quickly: ‘There are serious competing visions of freedom of speech and to make a choice between them at this point is a relatively risky enterprise which should be avoided where possible’. 9 This approach is perhaps ‘ambitious’, for as Stone points out, ‘[t]he stakes of a single decision are … high’: Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’, above n 8, 238. If such an underlying, general principle can be reasonably discerned from the history, text and structure of the Constitution, then judges, lawyers and the citizenry will benefit from the greater clarity and consistency that flows from the development of constitutional doctrine in the manner described above. Moreover, Stone notes that Richard Posner, amongst others, considers that common law ‘bottom up’ reasoning ‘requires some kind of theory to determine whether one case is relevantly “like” another’: at 240.

surround the interpretation and application of the implied freedom. Defining the scope of ‘political communication’ is one such question.10 How a judge will answer these questions will necessarily be informed by his or her view as to the rationale of the implied freedom, whether or not that theoretical commitment is explicitly

11 articulated.

In Lange, the High Court made it clear that ‘the freedom of communication which the

Constitution protects is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.’12 Yet the constitutional text and structure alone do not reveal the rationale behind the implied freedom. Consequently, it is necessary to move beyond its strictures to search for an answer.

As Adrienne Stone has persuasively argued, the Court’s exclusive reliance on the text and structure of the Constitution in defining and developing the implied freedom is unsustainable.13 She illustrates her point in relation to the standards of review that the

Court must at some point choose to employ when applying the Lange test. Namely, should it favour a proportionality test or something more akin to the American notion

10 The other key unresolved question is how the Lange test for constitutionality will be applied. While a single test for constitutionality was outlined in Lange, in later cases, some judges endorse a two-tiered approach that more strictly scrutinises laws that target ideas, rather than the mode of ‘political communication’: see Levy v Victoria (1997) 189 CLR 579, 614 (Toohey and Gummow JJ), 619 (Gaudron J), 647 (Kirby J) (‘Levy’); Coleman (2004) 220 CLR 1, 123 (Heydon J); Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 200 (Gleeson CJ)(‘Mulholland’). The two- tiered approach first appeared in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 143 (Mason CJ), 235 (McHugh J) (‘ACTV’). On this point, see Adrienne Stone, ‘Case Note: Lange, Levy and the Direction of the Freedom of Political Communication under the Australian Constitution’ (1998) 21 University of New South Wales Law Journal 117, 131–4. 11 Stone notes that ‘the High Court has precluded, and intended to preclude, the development of a theoretical or philosophical basis for free political communication’: Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668, 696 (emphasis omitted). 12 (1997) 189 CLR 520, 561. 13 Stone, ‘The Limits of Constitutional Text and Structure’, above n 11, 696–9.

of strict scrutiny?14 Her contention is that such a choice depends on extra-

constitutional values and ideas such as the rationales of freedom of communication

itself 15 and the appropriate level of judicial deference to Parliament,16 the very kinds

of values and ideas that a purely textual approach necessarily eschews.17 This

criticism holds for the other key question of concern to this Chapter: what counts as

‘political communication’ for the purpose of the implied freedom? To this end, I will

examine the text, structure and history of the Constitution and Australia’s tradition of freedom of communication protection and argue that the rationale of the implied freedom is a particular conception of popular sovereignty.

B THE ‘CLASSIC TRIO’ OF COMMUNICATION RATIONALES

1 The trio’s influence on the implied freedom jurisprudence of the High Court

I argue below that Australia’s tradition of freedom of communication protection demonstrates that the ‘classic trio’ of communication rationales are not the primary justifications for the implied freedom.18 There have, however, been a number of cases

where judges have considered one or more of these rationales to be relevant to the

interpretation of the implied freedom. This part of the Chapter will critique those

judgments and explain why they do not sit well with this tradition. In doing so, the

proposition that they must all ‘be taken into account, to some extent at least, in any

14 Ibid 699–707. 15 Ibid 696–8. 16 Ibid 699. 17 But see Coleman (2004) 220 CLR 1, 46-50 where McHugh J responds to Stone’s criticisms and Adrienne Stone, ‘The Limits of Text and Structure Revisited’ (2005) 28 University of New South Wales Law Journal 842 for the author’s reply. 18 See below Part II(C)(2).

discussion of the theoretical basis for the implied freedom of political communication’19 will be challenged.

There are a number of reasons why, in most liberal democracies, speech, expression and communication attract strong legal and constitutional protection. As noted in the introduction, the ‘classic trio’ are the search for truth 20 (and its associated

‘marketplace of ideas’ metaphor), 21 the right to self-determination or individual autonomy22 and the argument from ‘democracy and self-government’.23 Frederick

Schauer has also made a modified argument on the basis of truth. He considers the argument from truth to be flawed, 24 but notes that the ‘focus on the possibility and history of error makes us properly wary of entrusting to any governmental body the authority to decide what is true and what it false, what is right and what is wrong, or what is sound and what is foolish’.25 To this list we could add ‘tolerance’,26 ‘the flourishing of plurality … the efficient allocation of resources … [and even] the intrinsic worth of the communicative experience.’27

19 Chesterman, Freedom of Speech in Australian Law, above n 4, 22. 20 See John Stuart Mill, On Liberty (1859); Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 15–34; Wojciech Sadurski, Freedom of Speech and Its Limits (1999) 8–16; Barendt, Freedom of Speech, above n 1, 8–14. 21 See Abrams v United States, 250 US 616, 630 (1919) (Holmes J in dissent)(‘Abrams’). 22 See Edwin Baker, Human Liberty and Freedom of Speech (1989); Thomas Scanlon, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy and Public Affairs 204, 214–22; Schauer, Free Speech, above n 20, 60–72. 23 See Alexander Meiklejohn, Political Freedom: The Constitutional Powers of the People (1965) This was a republication in expanded form of his earlier work Free Speech and its Relation to Self- Government (1948); Alexander Meiklejohn, ‘The First Amendment Is an Absolute’ [1961] Supreme Court Review 245; Schauer, Free Speech, above n 20, 35–46. 24 Schauer, Free Speech, above n 20, 33. Schauer identifies two major flaws of the argument from truth. First, ‘it rests on an assumption about the prevalence of reason, for which the argument offers no evidence at all’: at 33. Second, ‘a strong version of the argument … elevate[s] the search for knowledge to a position of absolute priority over other values’, which makes it ‘unworkable’, whilst a weaker version that recognises ‘the quest for knowledge is a value that ought to be considered … says very little’: at 33. 25 Ibid 34. 26 See Lee Bollinger, The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986) 10. 27 Campbell, ‘Rationales for Freedom of Communication’ in Campbell and Sadurski, above n 5, 17.

In the twin High Court decisions from which the implied freedom was derived,28

there was much enthusiasm for the American First Amendment cases and their

underlying premises. Of particular attraction to at least four members of the Court

was the notion that laws that target the idea rather than the mode of communication

require a more exacting level of judicial scrutiny.29 This approach reflects the key

First Amendment principle that governments cannot be trusted to regulate speech, so

that any regulation must be sufficiently content and viewpoint neutral.30 There was

also support for the argument on the basis of truth, which states that ‘the best test of

truth is the power of the thought to get itself accepted in the competition of the

market’.31 The approach of Mason CJ in Australian Capital Television Pty Ltd v

Commonwealth evinced, moreover, an express distrust of government regulation of

communication,32 a close approximation of the modified truth argument made by

Schauer. The least surprising endorsement, considering the textual origins of the implied freedom, was an approximation of the argument from ‘democracy and self- government’ commonly associated with the First Amendment theory of Alexander

28 The two decisions were Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (‘Nationwide News’) and ACTV (1992) 177 CLR 106. 29 Nationwide News (1992) 177 CLR 1, 76–7 (Deane and Toohey JJ); ACTV (1992) 177 CLR 106, 143 (Mason CJ), 234–5 (McHugh J). 30 ‘[The] government has no power to restrict expression because of its message, its ideas, its subject matter, or its content’: Police Department of the City of Chicago v Mosley, 408 US 92, 95–6 (1972). See also Lawrence Tribe, American Constitutional Law (2nd ed, 1988) 789–804; Cass Sunstein, Democracy and the Problem of Free Speech (1993) 4–14. 31 Abrams, 250 US 616, 630 (1919) (Holmes J in dissent). See Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 131 (Mason CJ, Toohey and Gaudron JJ), 182–3 (Deane J) (‘Theophanous’), where these judges endorsed the United States Supreme Court case of New York Times v Sullivan, 376 US 254 (1964). Stone has pointed out that a key influence on this decision was the notion of ‘the marketplace of ideas’: Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’, above n 8, 234. 32 (1992) 177 CLR 106, 145.

Meiklejohn.33 Indeed, Mason CJ wrote the following under the sub-heading ‘Freedom

of Communication as an Indispensable Element in Representative Government’:

Indispensable to that accountability and that responsibility is freedom of

communication, at least in relation to public affairs and political discussion …

Only by exercising that freedom can the citizen criticize government decisions

and actions, seek to bring about change, call for action where none has been

taken and in this way influence the elected representatives … Absent such a

freedom of communication, representative government would fail to achieve its

purpose, namely, government by the people through their elected

representatives.34

In these seminal cases, the Court showed a desire to align the core content and future

development of the implied freedom with the trajectory of the First Amendment. A

number of commentators have criticised the haste with which the High Court

imported First Amendment jurisprudence and its underlying rationales into the

embryonic constitutional freedom.35 As Stone notes:

the High Court rather quickly allied itself with a philosophical tradition based on

suspicion of government, a choice which does not necessarily follow from its

33 See, eg, Nationwide News (1992) 177 CLR 1, 48–51 (Brennan J), 72–5 (Deane and Toohey JJ); ACTV (1992) 177 CLR 106, 138–40 (Mason CJ), 159 (Brennan J), 210–12 (Gaudron J), 230–3 (McHugh J). 34 ACTV (1992) 177 CLR 106, 138–9. 35 See Eric Barendt, ‘Free Speech in Australia: A Comparative Perspective’ (1994) 16 Sydney Law Review 149, 164–5; Deborah Cass, ‘Through the Looking Glass: The High Court and the Right to Political Speech’ in Campbell and Sadurski, Freedom of Communication, above n 5, 184–91; Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’, above n 8, 234–5; Tom Campbell, ‘Democracy, Human Rights and Positive Law’ (1994) 16 Sydney Law Review 195, 206–7; Gerald Rosenberg and John Williams, ‘Do Not Go Gently into That Good Right: The First Amendment in the High Court of Australia’ [1997] Supreme Court Review 439, 448–56, 458–64.

identification of the freedom of political communication with representative

government.36

This enthusiasm was surprising considering that the derivation of the implied freedom owed more to the pre-Charter37 jurisprudence of the Canadian Supreme Court than

American constitutional law, a point acknowledged by Brennan J in Nationwide News

Pty Ltd v Wills38 and Mason CJ in ACTV.39 The pre-Charter constitutional architecture of Canada bore a close similarity to our own, particularly as it too did not contain the kind of free-standing right to free speech found in the First Amendment.

In any event, if given free reign, these First Amendment principles had the potential to bend the implied freedom completely out of shape. The development of a new constitutional defence to defamation in Theophanous v Herald & Weekly Times Ltd 40 and the stunning expansion in the scope of communications accorded constitutional protection in Theophanous41 and Cunliffe v Commonwealth 42 might now be considered manifestations of a constitutional freedom unhinged from its textual moorings.43

36 Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’, above n 8, 235. 37 The Charter referred to is the Charter of Rights and Freedoms. The Charter is contained in sch B, pt I of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK) c 11. 38 (1992) 177 CLR 1, 48–50. 39 (1992) 177 CLR 106, 140–1. See also Nationwide News (1992) 177 CLR 1, 48–50 (Brennan J). For a critique of the use made of Canadian precedents by Mason CJ and Brennan J in ACTV and Nationwide News respectively, see George Williams, Human Rights Under the Australian Constitution (1999) 171– 2. 40 (1994) 182 CLR 104, 136–7 (Mason CJ, Toohey and Gaudron JJ), 185 (Deane J). See also Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211, 234 (Mason CJ, Toohey and Gaudron JJ), 257 (Deane J) (‘Stephens’). 41 Political communication was defined as ‘all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about’: Theophanous (1994) 183 CLR 104, 124 (Mason CJ, Toohey and Gaudron JJ), quoting Barendt, Freedom of Speech, above n 1, 152. 42 (1994) 182 CLR 272, 298–9 (Mason CJ), 336 (Deane J), 379–80 (Toohey J), 387 (Gaudron J) (‘Cunliffe’). 43 See McGinty v Western Australia (1996) 186 CLR 140, 230–6 (McHugh J).

The Lange decision, however, did much to ground the implied freedom within the

text, structure and history of the Constitution. On the one hand, the Court confirmed

the essence of the earlier decisions, declaring that

ss 7 and 24 and the related sections of the Constitution necessarily protect that

freedom of communication between the people concerning political or

government matters which enables the people to exercise a free and informed

choice as electors.44

At the same time, the Court firmly rejected the notion that the development of the

implied freedom could proceed by reference to a free-standing, extra-constitutional

principle of representative democracy. In doing so, the Court asserted the primacy —

indeed exclusivity — of the text and structure of the Constitution to this new

interpretive enterprise.45 In stating that the relevant question was not what was

required by representative and responsible government but rather what the terms of the Constitution prohibit, authorise and require,46 the Court put the implied freedom on a more secure constitutional footing.

By highlighting this aspect of the implied freedom and distinguishing it from the First

Amendment in these two important respects, the Court in effect rejected the sway that

American precedents previously held in this area. As my analysis will make clear, the

rationales of truth, individual autonomy, self-government and so on were not made irrelevant in the Australian free speech context, but the reasoning in Lange clearly

required that isolating the reason why political communication attracts constitutional

protection must be a home-grown, primarily text-based project.

44 Lange (1997) 189 CLR 520, 560. 45 See above nn 13–17 and accompanying text for Stone’s criticism of this exclusively text-based interpretive approach. 46 Lange (1997) 189 CLR 520, 567.

2 Why the ‘classic trio’ are not the primary rationales of the implied freedom

I will now examine each of the ‘classic trio’ of rationales to explain why they are not the primary justifications for the implied freedom.

(i) The argument from truth (and its modified form)

The inappropriateness of the argument from truth (and its corollary notion that the marketplace of ideas provides the best means to secure this end) as the primary

rationale becomes apparent when the textual origins of the implied freedom are

considered. Political communication attracts constitutional protection to facilitate the

flow of information between and amongst the electors and the elected to allow the

casting of a free and informed vote in a federal election.47 While this constitutional imperative creates an ‘information marketplace’ of sorts, its purpose is not the discovery of identifiable and objective political truths. Furthermore, it makes no sense to speak of the ‘truth’ or otherwise of the Coalition’s health policy or Labor’s immigration strategy as they represent considered opinions and statements of intention on subject matters upon which reasonable minds will differ. Indeed, the name of the game for political communication under the Constitution is mostly persuasion, not proof.48 As Tom Campbell has noted, ‘the fact that someone “selects”

an opinion is not itself evidence of its truth. Nor is “market success” (namely the fact

47 Ibid 561. 48 For a critique of the ‘marketplace of ideas’ metaphor, see Rosenberg and Williams, above n 35, 458– 64; Cass, above n 35, 184–7; Owen Fiss, ‘Free Speech and Social Structure’ (1986) 71 Iowa Law Review 1405.

that an opinion is selected by large numbers of people) convincing evidence of its

accuracy.’49

This is not to suggest that citizens are unconcerned as to the truth of political facts.

For example, an allegation that the Prime Minister was taking bribes in return for

political favours or that a Member of Parliament was once a member of a far-right

paramilitary group may well affect the federal election choices of many voters.50 The

factual content of most political communications is, however, incapable of objective

verification. Thus, if truth were the primary rationale of the implied freedom, a broad

range of important political communications, including discussion of government and

Opposition policies and federal laws, would not necessarily qualify for constitutional protection.

Indeed, even if we restrict the marketplace metaphor to the notion of enhancing access to political information, its importance lies in the fact that it represents a precondition to further the purpose of the implied freedom, rather than a rationale in its own right. It is undeniable that providing premium conditions for the free exchange of political communication ‘enables the people to [better] exercise a free and informed choice as electors’51 and may, incidentally, aid the discovery of the truth. What is more contentious is the role that the High Court should play in

attempting to secure these conditions. This issue arises when the High Court is asked

to determine whether a law infringes the implied freedom.

Furthermore, any rationale for the implied freedom must be consistent with

Australia’s constitutional heritage. Mason CJ’s support in ACTV of the modified

49 Campbell, ‘Rationales for Freedom of Communication’ in Campbell and Sadurski, above n 5, 24. 50 I am grateful to Adrienne Stone for this point. 51 Lange (1997) 189 CLR 520, 560.

argument from truth can, however, be construed as the reverse: redefining our

constitutional heritage to suit a particular rationale.52 While Schauer may well be correct in doubting the ability of the state to decide when speech is true or false, the text, structure and history of the Constitution exhibit a commitment to, and trust in,

representative and responsible government. In conjunction with the Australian tradition of freedom of communication protection, this provides a strong argument for rejecting the modified argument from truth as the primary rationale of the implied

freedom.53

(ii) The argument from individual autonomy

Stone has made a strong argument that individual autonomy may be a rationale of the implied freedom.54 This argument effectively transposes into the Australian context

an argument made by the American constitutional theorist Thomas Scanlon:55

the system of representative and responsible government instituted by the

Constitution logically requires, or is premised upon, some respect for the

autonomy of the individual. Such an argument would bring with it the

consequence that the concept of personal autonomy would guide the

interpretation of the freedom of political communication, even when personal

autonomy is not instrumental to the protection of representative and responsible

government.56

52 ACTV (1992) 177 CLR 106, 145. 53 See below Part II(C)(2). 54 Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 374, 390–400. For a similar argument, see Michael Chesterman, ‘When Is a Communication “Political”?’ (2000) 14(2) Legislative Studies 5, 10–11. 55 Scanlon, above n 22, 214. 56 Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 393.

The proposition made in the first sentence is clearly correct and uncontroversial.

However, I query whether it necessarily carries with it the consequence stated in the

second sentence.

The Constitution exists as a blueprint for parliamentary government. In this way, it

secures the sovereignty of the people and constitutes the institutional mechanism for

its ongoing exercise. Therefore, the underlying premise is that the citizen is best served by responsible government and structural principles that diffuse and delimit public power, such as federalism and the separation of powers,57 but the Constitution

for the most part does not speak directly to the individual.58 One must look to the sub- constitutional level to locate common law and statutory rules underpinned by a commitment to protecting and promoting personal autonomy.

It is not that the protection and promotion of individual autonomy is unimportant

within our constitutional arrangements, but simply that the Constitution itself does not

directly perform that role or guarantee those interests.59 While the efficacy of our

constitutionally-mandated system of representative and responsible government does

require ‘some protection of personal autonomy’,60 that constitutional protection stems

incidentally from the institutional fortification provided by the implied freedom.

Consequently, as a constitutional principle, the implied freedom exists to secure the

57 See below Part II(C)(1). 58 See below Part II(C)(2). 59 See below Part II(C)(1). Stone is not, however, advancing or advocating individual autonomy as an independent rationale of the implied freedom. Her point is that, as a consequence of the reasoning in Lange and its exclusive and ultimately unsustainable reliance on the constitutional text and structure, it is ‘possible that the freedom of political communication could be grounded in a concept of representative and responsible government that requires some protection of personal autonomy’: Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 398 (emphasis in original). As Stone illustrates (at 396), if the citizenry are not ‘autonomous participants in a public debate … and able to contest the terms on which the debate occurs … voters would feel controlled and would be subject to a state- imposed conception of what public debate should be like. Choices made in this context would not be the ‘true’ choices that the Constitution requires.’ 60 Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 398.

effective functioning of our system of constitutional government rather than to uphold personal freedoms. As Harrison Moore noted:

Fervid declarations of individual right, and the protection of liberty and property

against the government, are conspicuously absent from the Constitution; the

individual is deemed sufficiently protected by that share in the government which

the Constitution ensures him.61

Political communication, not individual autonomy, is protected by the Constitution to the extent necessary to secure our system of constitutional government, although the ultimate beneficiary of the application of the implied freedom by the courts is of course the citizenry, who, as individuals, enjoy the democratic spoils of the greater good. Furthermore, political, rather than judicial, remedies may apply where a law properly enacted undercuts the system of representative and responsible government or offends personal autonomy without violating the implied freedom or any other constitutional requirement of that system.62

61 Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 14 (emphasis added). 62 Such laws might include, for example, amending the current proportional voting system for the Senate such that it extinguishes the possibility of minority representation or even enacting a new restrictive procedure in a state Constitution. Compare this with the American approach as outlined in the famous footnote four of United States v Carolene Products, 304 US 144, 152 (1938): ‘It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny … than are most other types of legislation’. On this approach, see further John Hart Ely, Democracy and Distrust (1980) 117. Ely states that ‘unblocking stoppages in the democratic process is what judicial review ought preeminently to be about’: at 117. His approach to judicial review is primarily concerned with process values, not substantive values. It is, however, grounded in, and given teeth by, the guarantees in the Bill of Rights, making much of it inappropriate for direct application in the Australian context. To be sure, there are aspects of the Ely approach relevant to the Australian context, namely, his proposals to make the legislature more accountable for their laws (at 131–4) and the process more transparent (at 125–31). It is, however, worth noting that in Mulholland (2004) 220 CLR 181, Kirby J appeared at 264 to endorse an approach to judicial review with strong echoes of Ely’s theory. For an Australian account of these points, see Geoffrey Lindell, ‘Responsible Government’ in Paul Finn (ed), Essays on Law and Government: Volume 1 Principles and Values (1995) 75, 93–7.

On this basis, the Scanlon argument should be rejected in the Australian context, at least insofar as it concerns the constitutional means by which individual autonomy is protected and promoted, and the role played by the implied freedom.63 Justifying the protection of the freedom of communication on the basis of personal autonomy has no textual or structural foothold in the Constitution, and neither is it present in its history or consistent with its logic.64 It cannot, therefore, be the primary rationale of the implied freedom.65

(iii) The Meiklejohn argument from democracy and self-government

The argument from democracy and self-government made by Alexander Meiklejohn appears consistent with the textual basis for the implied freedom.66 Indeed, the earlier manifestation of the Meiklejohn theory has much in common with the High Court’s view of the implied freedom as a necessary precondition for effective representative and responsible government. Meiklejohn wrote:

Under the new Constitution, the people, now a corporate body of self-

governing citizens, forbade their legislative agents to use, for the protection of

63 At this point, it should be noted that another consequence of the Scanlon argument is a more expansive role for the judiciary in the application of the freedom. In this regard, the Scanlon argument resembles the argument made by Williams regarding the proper judicial role in the application of the implied freedom: Williams, above n 39, 230. However, the analysis that will be undertaken later in this piece suggests that a limited, supervisory judicial role is more consistent with the logic of the implied freedom and the Constitution more generally: see below Part II(C). 64 Cf art 1 of the German Basic Law. It states that the dignity of the human person is inviolable. The General Federal Constitutional Court wrote that ‘[w]hen exercising the power granted, the legislature must respect the inviolability of human dignity (art 1(1) BL), which is the highest constitutional principle’: Life Imprisonment Case 45 BverfGE 187 (1977). This principle informs the interpretation of all other constitutional rights including the right to freedom of expression, information, the press and broadcasting guaranteed in art 5(1). 65 See also Williams, above n 39, 168: ‘the freedom of political communication implied from the Australian Constitution … has an institutional rather than an individual foundation in that it is designed to facilitate the operation of representative government and not, except incidentally, to promote the general welfare of the individual. 66 Meiklejohn argued that the First Amendment ‘protects the freedom of those activities of thought and communication by which we “govern”. It is concerned, not with a private right, but with public power, a governmental responsibility’: Meiklejohn, ‘The First Amendment Is an Absolute’, above n 23, 255. See also Ely, above n 62, 93–4.

the nation, any limitation of the religious or political freedom of the people

from whom the their legislative authority was derived.67

In this regard the First Amendment was not, he contended, ‘the guardian of

unregulated talkativeness’.68 For Meikeljohn ‘the prize of victory which our

forefathers won when the First Amendment was adopted was not the unlimited right

of the people to “speak”. It was the unlimited right of “Religious and Political

Freedom” – whatever those words may be found to mean.’69 However, Harry Kalven

attacked this view. He considered Meikeljohn’s theory a wholly inadequate

justification for a broad-ranging free speech guarantee like the First Amendment:

[T]he modern defense of Alexander Meikeljohn do[es] not help much when

the question is why the novel, the poem, the painting, the drama, or the piece

of sculpture falls within the protection of the First Amendment…The

emphasis is clearest in Meikeljohn’s argument that free speech is

indispensable to the informed citizenry required to make democratic self-

government work. The people need speech because they vote...[But] [n]ot all

communications are relevant to the political process. The people do not need

novels or dramas or paintings or poems because they will be called upon to

vote…Thus there seems to be a hiatus in our basic free-speech theory.70

In direct response to Kalven’s criticism,71 Meikeljohn re-worked and, as a

consequence, significantly expanded the scope of his argument:

67 Alexander Meikeljohn, ‘What Does the First Amendment Mean?’ (1953) 20 University of Chicago Law Review 461, 464. 68 Meiklejohn, Political Freedom, above n 23, 26. 69 Meikeljohn, ‘What Does the First Amendment Mean?’, above n 67, 464. 70 Harry Kalven Jr, ‘The Metaphysics of the Law of Obscenity’ (1960) Supreme Court Review 1, 16. 71 See Meilkeljohn, ‘The First Amendment is an Absolute’, above n 23, fn 4.

Self-government can exist only insofar as the voters acquire the intelligence,

integrity, sensitivity, and generous devotion to the general welfare that, in

theory, casting a ballot is assumed to express…72

…[and] there are many forms of thought and expression within the range of

human communications from which the voter derives the knowledge,

intelligence, sensitivity to human values: the capacity for sane and objective

judgment which, so far as possible, a ballot should express. These, too, must

suffer no abridgment of their freedom.73

It therefore follows, according to Meikeljohn, that even if voting is the quintessential

democratic right, a broader range of communicative experiences and opportunities must be accorded constitutional protection before that act can be said to be

meaningful.74 He considered that these forms of thought and expression included

‘education’, ‘philosophy and the sciences’, ‘literature and the arts’ and ‘public

discussions of public issues’.75

It appeared for a time that the implied freedom jurisprudence would follow this

trajectory. The Theophanous,76 Stephens v West Australian Newspapers Ltd 77 and

Cunliffe78 trilogy of cases heralded a significant expansion in the range of communications considered ‘political’ and the creation of a new constitutional

defence. In Theophanous, the joint judgment of Mason CJ, Toohey and Gaudron JJ

made clear that ‘political communication’ was not limited to information required to

72 Ibid 255. 73 Meiklejohn, ‘The First Amendment Is an Absolute’, above n 23, 256. 74Ibid. See Abood v Detroit Board of Education, 431 US 209, 231 (1977), where the Supreme Court noted that ‘our cases have never suggested that expression about philosophical social, artistic, economic, literary, or ethical matters … is not entitled to full First Amendment protection.’ 75 Meiklejohn, ‘The First Amendment Is an Absolute’, above n 23, 257. 76 (1994) 182 CLR 104. 77 (1994) 182 CLR 211. 78 (1994) 182 CLR 272.

cast an informed vote but ‘refers to all speech relevant to the development of public

opinion on the whole range of issues which an intelligent citizen should think

about’.79 The rationale for the implied freedom quickly came to resemble the fully-

formed Meiklejohn argument from democracy and self-government.

The Lange decision confirmed, however, that the implied freedom only protects

communications necessary to make informed federal voting choices without

addressing or delineating the precise scope of ‘political communication’. It is

reasonable to assume that the Court, by insisting upon a nexus between

communication and federal voting choices and rejecting any notion that the

Constitution contained a free-standing principle of representative democracy,

favoured a narrower conception of constitutionally-protected communication than that

ultimately advanced by Meiklejohn.80 Indeed, if the Meiklejohn argument from

democracy and self-government underpinned the implied freedom, it would transform

a limitation on legislative and executive power into a comprehensive and independent

right to free speech and communication. This is perfectly consistent with the absolute

terms of the First Amendment, but in my view it cannot be supported by the textual

origins of the implied freedom, nor is it justified in terms of its limited instrumental

purpose.81

Moreover, it seems clear that the Court in Lange considered that our constitutional system of representative and responsible government takes voters as it finds them. As the Court explained, the choice provided for in ss 7 and 24 of the Constitution must be

79 (1994) 182 CLR 104, 124 (Mason CJ, Toohey and Gaudron JJ), quoting Barendt, Freedom of Speech, above n 1, 152. 80 See Lange (1997) 189 CLR 520, 559–62. For further discussion of this point, see below Part III(A). 81 See below Part II(C)(2).

a true choice.82 This entails ‘an opportunity to gain an appreciation of the available

[political] alternatives’,83 not the assumption that voters must be intellectually

enriched through exposure to the broad range of speech and communication that

Meiklejohn argued ought to attract constitutional protection. A democracy undoubtedly benefits from a citizenry with ‘the knowledge, intelligence, sensitivity to human values [and] capacity for sane and objective judgment’84 that such

communicative exposure may engender. In this regard it may be highly desirable to

bestow constitutional protection upon works of philosophy, science, literature and the

arts, but it can hardly be claimed that it is ‘necessary for the effective operation of that

system of representative and responsible government provided for by the

Constitution.’85 But as Kalven rightly noted, ‘[t]he people do not need novels or

dramas or paintings or poems because they will be called upon to vote.’86

The implied freedom is not a broad-ranging free-speech guarantee like the First

Amendment. But to adopt the fully-formed Meikeljohn argument from self-

government as its primary rationale would make them indistinguishable. However, his

First Amendment argument as first conceived – a limited guarantee of political

freedom that protects speech required to make democratic self-government work –

approximates what is in my view the rationale of the implied freedom. In the next

section I will outline the contours of this rationale and explain why - in the context of

the implied freedom - I call it ‘a minimalist model of judicially-protected popular

sovereignty’.

82 Lange (1997) 189 CLR 520, 560. 83 ACTV (1992) 177 CLR 106, 187 (Dawson J). 84 Meiklejohn, ‘The First Amendment Is an Absolute’, above n 23, 256. 85 Lange (1997) 189 CLR 520, 561 (emphasis added). 86 Kalven, above n 70, 16 (footnote omitted).

C A MINIMALIST MODEL OF JUDICIALLY-PROTECTED POPULAR SOVEREIGNTY: THE RATIONALE OF THE IMPLIED FREEDOM

At the outset, I want to define my use of the term ‘popular sovereignty’, for it is a

notoriously elusive concept in the context of Australian constitutional law. There is

still a lively academic debate as to what makes our Constitution legally binding, but I

am not here using ‘popular sovereignty’ in the sense of asserting it as the ultimate

constitutional grundnorm.87 Rather, it is a principle that flows from a constitutional

system where the people have both the authority to elect representatives to exercise

public power on their behalf and the power to disapprove any proposed changes to the

Constitution. Like the principles of federalism, responsible government and the rule

of law, popular sovereignty permeates the Constitution and assists in its

interpretation,88 particularly those provisions that establish our system of

representative and responsible government from which the implied freedom is

derived.

Popular sovereignty as a principle that guides constitutional interpretation can,

however, cut both ways — it can work either to limit or extend the operation of a

constitutional right, depending on the nature of that right and the context in which it

arises. As George Williams explains:

it can be argued that the sovereignty of the people is exercised in accordance with

the Constitution by the people’s representatives in Parliament, who in this

87 A number of High Court judges have stated both judicially and extra-judicially that popular sovereignty underpins the legitimacy of the Constitution: ACTV (1992) 177 CLR 106, 137–8 (Mason CJ); Theophanous (1994) 182 CLR 104, 176 (Deane J); Leeth v Commonwealth (1992) 174 CLR 455, 484 (Deane and Toohey JJ); McGinty v Western Australia (1996) 186 CLR 140, 230 (McHugh J); Chief Justice Murray Gleeson, The Rule of Law and the Constitution (2000) 6. Cf ACTV (1992) 177 CLR 106, 181 (Dawson J); Simon Evans, ‘Why Is the Constitution Binding? Authority, Obligation and the Role of the People’ (2004) 25 Adelaide Law Review 103. 88 Re Wakim; Ex parte McNally (1999) 198 CLR 511, 542 (Gleeson CJ), 557–8 (McHugh J), 574–5 (Gummow and Hayne JJ). See Justice Bradley Selway, ‘Methodologies of Constitutional Interpretation in the High Court of Australia’ (2003) 14 Public Law Review 234, 245.

capacity should be given the maximum scope to implement the wishes of the

people as they see them … Under this approach, the ability of Parliament to

implement its mandate is to be preferred to … judicial review …On the other

hand, in the latter guise the doctrine of popular sovereignty might support a role

for the High Court as a buffer between governmental power and the people. The

doctrine suggests that the Court has a role to play in ensuring that the people

remain sovereign and in resisting any exercise of government power that would,

for example, undermine the electoral process by which the people exercise this

sovereignty. In this way, popular sovereignty can serve as an effective

counterpoint to the view that the Constitution should be applied to maximise the

power of a parliament.89

I argue that a conception of popular sovereignty that embodies elements of both versions described above is the rationale of the implied freedom.90 This conception

acknowledges that the conditions for the exercise of sovereignty by the people are

ultimately determined and enforced by the judiciary, for it is they who define and

apply the implied freedom. When discharging this role however, the courts must keep

firmly in mind that the primary purpose of the implied freedom is to secure the

effective functioning of our constitutional system of representative and responsible

government — that is, to guarantee the democratic framework through which ‘the

people’s representatives in Parliament … [can] implement the wishes of the people as

they see them’91 subject to the Constitution. It is in this regard – to use the language

89 Williams, above n 39, 230 (citations omitted). 90 In making this argument, I am not suggesting that my conception of ‘popular sovereignty’ ought to be the rationale that informs the interpretation of every constitutional right. On the contrary, it is now orthodox practice for the High Court to give a broad construction to constitutional rights, even those that also restrict legislative power. This is consistent with an expansive conception of judicially- protected popular sovereignty that sees a more active role for the judiciary to check arbitrary government action: see ibid. 91 Ibid.

of Meikeljohn - a limited guarantee of political freedom that protects the

communications required to make work the system of democratic self-government established by the Constitution. This is the rationale of judicially-protected popular

sovereignty.92

However, this protection ought not to involve the judiciary taking a more expansive and proactive role in securing what they consider to be the optimum conditions for the exercise of popular sovereignty. A more limited, supervisory judicial role is apposite for the following three reasons.93 First, it fits best with the history and logic of the

Constitution. Second, the tradition of freedom of communication protection in

Australia underlines why this conception of judicially-protected popular sovereignty

underpins the implied freedom. Third, it properly recognises the limited institutional

capacity of the judiciary to determine what is necessary for the effective operation of

representative and responsible government under the Constitution.

For the remainder of the Chapter I will refer to this rationale as the ‘minimalist model

of judicially-protected popular sovereignty’. It is a minimalist model in that it reserves

an important but limited role for the judiciary in guaranteeing the basic democratic

framework that secures the sovereignty of the people and provides the conditions for

its meaningful exercise.

1 Constitutional history and logic

If there was one controlling idea that permeated the drafting of the Constitution, it

was the faith the framers placed in responsible government to deliver efficient,

92 I am grateful to Adrienne Stone for making valuable suggestions regarding the use of different terms in this area and their respective connotations. 93 But see Williams, above n 39, 230–1 for the argument that a more expansive conception of judicially-protected popular sovereignty ought to guide the interpretation of the implied freedom.

democratic and just governance.94 The history and tradition of the Constitution is one

of trust, not distrust, of government. This found constitutional expression in a number

of important ways. For example, the architecture for representative and responsible

government was provided by ss 7, 24 and 64, but key aspects of its content and

evolution were left to Parliament. To this end, a number of constitutional provisions

detailing, for example, elector qualifications, voting systems and election formulae were to remain in force ‘until the Parliament otherwise provides’.95 Moreover, although the mechanism for altering the Constitution is ultimately entrusted to the people, any proposed amendment must be instigated by Parliament.96

The absence of a Bill of Rights in the Constitution was also no accident,97 and there

are both orthodox and other reasons for the omission. The orthodoxy states that the

freedoms and liberties were not unimportant to the framers, but that they ‘accepted

the view that individual rights were, on the whole, best left to the protection of the

common law and the supremacy of parliament’.98 The other reasons were more

sinister, at least by contemporary standards:

they sought to establish the means by which the rights of other sections of the

community could be abrogated. In this respect the framers were driven by a

94 See Moore, above n 61; Sir Owen Dixon, ‘Two Constitutions Compared’ in Judge Woinarski (ed), Jesting Pilate and Other Papers and Addresses (2nd ed, 1997) 100, 101–2; Sir Robert Menzies, Central Power in the Australian Commonwealth (1967) 54; Aroney, above n 7, 55–6; Helen Irving, To Constitute a Nation: A Cultural History of Australia’s Constitution (1997) 162–70; ACTV (1992) 177 CLR 106, 136 (Mason CJ), 186 (Dawson J); Kruger v Commonwealth (1997) 190 CLR 1, 61 (Dawson J) (‘Kruger’). 95 See, eg, Australian Constitution ss 7 (The Senate), 24 (Constitution of House of Representatives), 29 (Electoral divisions), 30 (Qualification of electors), 34 (Qualifications of members); Moore, above n 61, 78–9. For an argument along these lines regarding the appropriate judicial role in the application of the implied freedom see Coleman (2004) 220 CLR 1, 31 (Gleeson CJ); Mulholland (2004) 220 CLR 181, 188-191 (Gleeson CJ). 96 Australian Constitution s 128. 97 See John La Nauze, The Making of the Australian Constitution (1972) 227–32; Dixon, above n 94, 101–2; Menzies, above n 94, 54. But see Aroney, above n 7, 56, in which the point is made that the Constitution ‘entrenches many of the key provisions of the Bill of Rights 1689 and the Act of Settlement 1701’ (citations omitted). 98 Kruger (1997) 190 CLR 1, 61 (Dawson J).

desire to maintain race-based distinctions, which today would undoubtedly be

regarded as racism.99

The true motivations of the framers for eschewing rights-protective provisions do not,

however, change the nature of the constitutional system they established. Indeed, our

system of representative and responsible government was perfectly consistent with the faith the framers had in parliamentary government and the common law to secure

their interests whilst excluding those persons considered unworthy from similar

judicial and democratic protections. It is a system grounded in the centrality of

Parliament, a powerful and efficient executive and a judiciary that ensures that both

branches act within the parameters of the Constitution and, where possible, safeguards

the liberty of the individual.

This history and logic is such that ‘[i]f the Constitution is silent on a subject, then it is

up to the Parliament, from time to time, to deal with that subject — or not to deal with

it — as it thinks fit’.100 It does not, of course, preclude the making of implications.101

However, it is reasonable to suggest that the content and development of those implications should be grounded in and informed by this constitutional history and logic. While the implied freedom operates as a restriction on legislative and executive power, the Court emphasised in Lange that it is only to the extent ‘necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.’102 This is consistent with a minimalist model of

99 Williams, above n 39, 25. For a discussion of the racially-motivated objections that led to the absence of a Bill of Rights in the Constitution, see Williams 25–7, 41–3; Irving, above n 94, 162–9; John Williams and John Bradsen, ‘The Perils of Inclusion: The Constitution and the Race Power’ (1997) 19 Adelaide Law Review 95, 105–9. 100 Gleeson, above n 87, 70. 101 See Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 85 (Dixon J); Victoria v Commonwealth (1971) 122 CLR 353, 401–2 (Windeyer J); ACTV (1992) 177 CLR 106, 133–6 (Mason CJ). 102 Lange (1997) 189 CLR 520, 561 (emphasis added).

judicially-protected popular sovereignty and the view of Sir Edmund Barton that the aim of the Constitution was ‘to enlarge the powers of self-government of the people of Australia.’103

2 The tradition of freedom of communication protection in Australia

There is a temptation to consider the protection of freedom of communication in

Australia to be a post-1992 phenomenon, but Australia has a legal tradition in this regard like any other liberal democracy. As the Court noted in Lange, ‘[w]ithin our legal system, communications are free only to the extent that they are left unburdened by laws that comply with the Constitution’.104 On one level, this merely states the obvious, but on a deeper level, it is an important statement regarding the hierarchy of constitutional values in Australia. With a few notable exceptions,105 the Constitution provides for only residual protection of individual liberties such that ‘everybody is free to do anything, subject only to the provisions of the law’.106 For the most part, individual liberties exist only to the extent that they are accorded common law protection and are not contrary to statute. This underlines the constitutional logic outlined above.

Interestingly, it has long been the view that there is no common law right to freedom of speech or communication,107 though the High Court has strongly suggested

103 Official Report of the National Australasian Convention Debates, Adelaide, 23 March 1897, 17 (Edmund Barton), cited in Lange (1997) 189 CLR 520, 557. 104 Lange (1997) 189 CLR 520, 567. 105 Australian Constitution ss 51(xxxi), 80, 116, 117. 106 Lange (1997) 189 CLR 520, 564, quoting A-G (UK) v Guardian Newspapers Ltd [No 2] [1990] 1 AC 109, 283 (Lord Goff). 107 See Sir Gerard Brennan, ‘Foreword’ in Chesterman, Freedom of Speech in Australian Law: A Delicate Plant, above n 4, vii, vii: ‘There is no common law right to free speech which trumps other legal rights but there is a general freedom of speech because of the common law principle that “everybody is free to do anything, subject only to the provisions of the law”’ (citations omitted).

otherwise in its recent jurisprudence.108 Yet the centrality of the common law to the

legal protection of communication in Australia is undeniable and pervasive. Michael

Chesterman has correctly observed that ‘the implied freedom clearly exemplifies the

notion of an ‘independent’ principle of freedom of speech within a legal system.’109

But the common law principle of freedom noted above still remains the key to

understanding the way in which communication is protected in the Australian legal

tradition.

As Sir Owen Dixon wrote: ‘In Australia, we begin with the common law.’110 This

means that ‘in the working of our Australian system of government we are able to avail ourselves of the common law as a jurisprudence antecedently existing into which our system came and in which it operates.’111 The common law, then, provides the backdrop of legal principle upon which both the Constitution and statutes have been enacted and must be interpreted. In this regard, the common law ‘is the source of the legal conceptions that govern us in determining the effect of the [Constitution].’112

Moreover, the freedom to communicate recognised by the common law forms part of

the relevant legal context within which statutes operate. In order to protect and promote this freedom so far as is constitutionally permissible, the common law recognises that statutes may infringe the freedom but requires ‘a legislature [to] mark the boundary it sets with clarity.’113 This interpretive presumption – sometimes called

the ‘principle of legality’ - operates to protect the freedom to communicate and other

fundamental common law rights in the following manner:

108 See Coleman (2004) 220 CLR 1, 75 (Gummow and Hayne JJ), 96-97 (Kirby J). 109 Chesterman, Freedom of Speech in Australian Law: A Delicate Plant, above n 4, 3. 110 Dixon, above n 94, 203. 111 Ibid 204. 112 Ibid 205. 113 Coleman (2004) 220 CLR 1, 75 (Gummow and Hayne JJ).

Courts do not impute to the legislature an intention to abrogate or curtail

certain human rights or freedoms…unless such an intention is clearly

manifested by unambiguous language, which indicates that the legislature has

directed its attention to the rights and freedoms in question, and has

consciously decided upon abrogation or curtailment.114

The capacity of the principle of legality to provide robust common law protection of

the freedom to communicate was demonstrated in the High Court’s recent decision in

Coleman v Power.115 In Coleman the impugned statute proscribed amongst other

things the use of threatening, abusive or insulting words or conduct in a public place

when a person in that place (whether actually present or not) could view or hear it.116

The accused was prosecuted and convicted for using ‘insulting words’ in a public

place for his conduct whilst protesting in a Townsville shopping mall against

members of the local police force whom he considered corrupt. Coleman was

‘distributing pamphlets which contained charges of corruption against several police officers’117 and when the respondent asked to see a pamphlet he pushed him and ‘said loudly: “This is Constable Brendan Power, a corrupt police officer”.’118

On appeal, the High Court overturned Coleman’s conviction with three of the four majority judges – Gummow, Hayne and Kirby JJ – employing the principle of legality in order to do so. These judges found that Coleman’s words were a communication on

political or government matters and were, therefore, prima facie protected by the implied freedom. They then narrowly construed what constituted ‘insulting words’ for

114 Al-Kateb v Godwin (2004) 219 CLR 562, 577 (Gleeson CJ). 115 (2004) 219 CLR 562. 116 Vagrants, Gaming and Other Offences Act 1931 (Qld) s 7(1)(d). 117 Coleman (2004) 220 CLR 1, 184 (Gleeson CJ). 118 Ibid.

purposes of the offence to delimit the scope of the law to criminally proscribe

expressive conduct not constitutionally protected by the implied freedom.119 ‘It follows – [from the principle of legality] – that the curtailment of free speech by legislation directed to proscribing particular kinds of utterances in public will often be read as “narrowly limited”.’120 And as Kirby J noted, ‘[e]ven more clearly will this

approach govern the interpretation where the common law right in question is

protected by an implied constitutional freedom’.121 In this way, the principle of

legality - buttressed by the implied freedom – preserved the greatest possible space for the common law freedom to communicate which the words of the ambiguous statute permitted.

However, the protection afforded political communication by the Constitution is not absolute as noted, and neither is the common law freedom to communicate. In regards to the latter, Sir Gerard Brennan has made the following important observation:

The freedom recognised by the common law is confined only by limitations

imposed by statute or by other rules of the common law that seek to protect

the common good or those personal interests to which the common law

accords priority.122

For example, a number of common law rules and remedies operate to restrict freedom

of communication in order to safeguard and promote other important values such as

privacy, equality, and fairness. These include the laws of defamation, blasphemy,

119 They did so by limiting ‘insulting words’ to those ‘words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation.’ – Ibid 77 (Gummow and Hayne JJ); 98-99 (Kirby J). 120 Ibid 76 (Gummow and Hayne JJ). 121 Ibid 97. 122 Chesterman, Freedom of Speech in Australian Law, above n 4, vii.

obscenity, contempt, parliamentary privilege and prior restraints.123 Similarly, there are statutes that proscribe a range of communicative conduct, including that which amounts to racial vilification124 or sex discrimination125 or is commercially misleading or deceptive.126

On closer inspection however, most of these common law and statutory rules cut both ways. That is, they restrict some forms of communication while protecting and even enhancing others. For example, the common law defence of qualified privilege permits the media, or any other publisher, to make defamatory communications to a wide audience on government or political matters, provided the publication was reasonable and not actuated by malice.127 The oral and written statements made during parliamentary proceedings are, moreover, absolutely privileged.128 In these contexts, common law rules protect and enhance freedom of communication.

Similarly, laws that proscribe racist and sexist communications tend to have the corresponding and inverse effect of giving, increasing or protecting the voice of those who are the subject of this conduct.129 This indirectly protects and enhances the

123 On the free communication implications of these common law rules, see Barendt, Freedom of Speech, above n 1, 173–7 (defamation), 167, 260 (blasphemy), 244–79 (obscenity), 220–3 (contempt), 1, 175, 222 (parliamentary privilege), 114–44 (prior restraints). 124 On the free communication implications of Australian racial vilification laws, see Chesterman, Freedom of Speech in Australian Law, above n 4, 220–9, 243–7. 125 On the issue of sex discrimination and free communication, see Anne Scahill, ‘Can Hate Speech Be Free Speech?’ (1994) 4 Australasian Gay and Lesbian Law Journal 1, 19–23; Jenny Gentles, ‘A Legal Remedy for Sexual Injustice’ (1995) 5 Australasian Gay and Lesbian Law Journal 65, 70–7. 126 On the issue of free communication and commercial speech, see Chesterman, Freedom of Speech in Australian Law, above n 4, 46–8; Barendt, Freedom of Speech, above n 1, 54–63. 127 Lange (1997) 189 CLR 520, 571–3. For a discussion of the expanded common law defence of qualified privilege established in Lange, see Chesterman, Freedom of Speech in Australian Law, above n 4, 96–102; Sally Walker, ‘Lange v ABC: The High Court Rethinks the “Constitutionalisation” of Defamation Law’ (1998) 6 Torts Law Journal 9. 128 Parliamentary Privileges Act 1987 (Cth) s 16(1); Imperial Act Application Act 1969 (NSW) s 6; Constitution Act 1975 (Vic) s 19(1); Defamation Act 1889 (Qld) s 10(1); Constitution Act 1934 (SA) s 38; Parliamentary Privileges Act 1891 (WA) s 1; Defamation Act 1957 (Tas) s 10(1); Legislative Assembly (Powers and Privileges) Act 1992 (NT) ss 4, 6; Australian Capital Territory (Self- Government) Act 1988 (Cth) s 24(3). 129 See Owen Fiss, The Irony of Free Speech (1996) 15–18.

freedom of communication opportunities of those effectively silenced by the racist

and sexist communications of others.

Moreover, what is important is that these common law and statutory rules not only

protect freedom of communication but embody their own context-specific rationales

for doing so. For example, the law of defamation in broad terms recognises the

importance of the value of truth, whilst the purpose of its associated defences of

qualified and absolute privilege (at least on the occasions specified above) is to

promote democracy and self-government. On the other hand, the communication

rationales that underpin racial vilification and sex discrimination laws include the

promotion of tolerance, plurality, individual autonomy, truth, and maybe even the

efficient allocation of resources. They explain why laws that proscribe misleading and deceptive communications exist.

While it is my view that political communications do not attract constitutional protection in Australia for the primary purpose of seeking truth or promoting tolerance or individual autonomy,130 it is wrong to conclude that these important

rationales have no place or role in our constitutional order. They are located within an

eclectic range of common law and statutory rules, and operate to protect and enhance

freedom of communication in these varied, sub-constitutional contexts. Importantly,

this is consistent with, and is a manifestation of, the hierarchy of constitutional values

in Australia outlined above.

Therefore, it is evident that within the Australian legal system, freedom of communication is protected and promoted at a number of different levels and for

130 But see Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 374, where Stone argues that individual autonomy may well be an underlying rationale of the implied freedom. See above Part II(B)(2)(b).

different reasons. The Constitution — specifically ss 7, 24, 64 and 128 — is more concerned with the efficacy of parliamentary government than the interests of the individual. Consequently, it protects only those communications necessary to secure the effective functioning of this system.131 Individuals, on the other hand, are left with the freedom to communicate as they choose within that space ‘left unburdened by laws that comply with the Constitution.’132 This may explain why the Court in Lange was so keen to abandon the constitutional defamation defence created in

Theophanous133 and the notion of private rights arising from the Constitution.

However, the notion that Theophanous provided a constitutional remedy and Lange did not fails to withstand closer scrutiny.134

Our tradition of freedom of communication protection therefore confirms why the implied freedom is not a positive right but merely a restriction on legislative power that need only be applied for this limited, instrumental purpose. Conversely, there is the emerging principle that constitutional rights and guarantees must be given a broad construction, even when they operate to restrict legislative power.135 This has been the High Court’s approach to the interpretation of s 51(xxxi) for some time136 and

131 This is not to suggest that, because it attracts constitutional protection, ‘political communication’ is necessarily more important or valuable than other forms of communication. As Cass Sunstein notes, ‘this would be an absurd conclusion. It is because constitutional protection against politics is peculiarly necessary when political speech is involved’: Sunstein, above n 30, 135–6. 132 Lange (1997) 189 CLR 520, 567. 133 Ibid 568–75. 134 See Adrienne Stone, ‘The Common Law and the Constitution: A Reply’ (2002) 26 Melbourne University Law Review 646, 653–5. But see Greg Taylor, ‘Why the Common Law Should Be Only Indirectly Affected by Constitutional Guarantees: A Comment on Stone’ (2002) 26 Melbourne University Law Review 623. See also Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 400– 17, where Stone argues that the High Court was incorrect to hold that the implied freedom restricted legislative and executive power but not, except indirectly, the common law. She states that this occurred because the Court mistakenly viewed this as a necessary consequence of the characterisation of the implied freedom as a ‘negative’ right. 135 See A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559, 603 (Gibbs J), 614–15 (Mason J), 652–3 (Wilson J); Leslie Zines, The High Court and the Constitution (4th ed, 1997) 409; Cheng v The Queen (2000) 203 CLR 248, 277–8 (Gaudron J). 136 See Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 349–350 (Dixon J); Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480, 509 (Mason CJ, Brennan,

has, more recently, been applied to s 80 by some judges.137 This may well reflect an

increased willingness of the Court to draw inspiration from jurisdictions like the

United States and Canada, whose jurisprudence ‘is pervaded with the objective of

protecting the individual from arbitrary governmental interference.’138

There is, moreover, a strong argument that the High Court should take a more active

and expansive role when interpreting a constitutional right such as s 117, which

operates to protect the liberty of the individual.139 However, there is a key difference

between the implied freedom and a constitutional guarantee like s 117 relevant to its

interpretation. The rights component of s 117 has a direct operation, and its purpose is to protect the individual from arbitrary state action.140 This is not, however, the nature

or purpose of the implied freedom, as was made clear in my earlier discussion.141 The

implied freedom is a limitation on legislative and executive power and exists only to

the extent necessary to facilitate parliamentary government as guaranteed by the

Constitution. The High Court has consistently read constitutional limitations on

power narrowly, except when the operation of those provisions has a direct effect

upon the individual.142 This provides a further reason why the High Court should take

Deane and Gaudron JJ); Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297, 303 (Mason CJ, Deane and Gaudron JJ). 137 See Cheng v The Queen (2000) 203 CLR 248, 277–8 (Gaudron J), 307 (Kirby J) and the interpretive approach of Kirby J in Re Colina; Ex parte Torney (1999) 200 CLR 386, 405 (‘Re Colina’) and Brownlee v The Queen (2001) 207 CLR 278, 304. In Re Colina, Callinan J recognised that s 80 was a constitutional guarantee: at 438–9. It is also well established that constitutional guarantees are generally to be given a broad construction. On this point, see Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480, 509 (Mason CJ, Brennan, Deane and Gaudron JJ). 138 Williams, above n 39, 233. 139 Ibid 230–4. 140 Street v Queensland Bar Association (1989) 168 CLR 461, 485 (Mason CJ), 503 (Brennan J), 522 (Deane J), 541 (Dawson J), 554 (Toohey J), 566–7 (Gaudron J). See further Williams, above n 39, 123–7. 141 See above Part II(B)(2)(b). 142 See A-G (Vic) ex rel Black v Commonwealth (1981) 146 CLR 559, 603 (Gibbs J), 614–15 (Mason J), 652–3 (Wilson J); Cheng v The Queen (2000) 203 CLR 248, 277–8 (Gaudron J).

a more supervisory role in relation to the implied freedom than would properly be the

case when interpreting and applying a positive constitutional right.

In any event, it becomes clear why it is now right to view ‘the Australian Constitution

as an underpinning of the freedom of speech recognised by the common law.’143

However, this discussion demonstrates that in Australia it is to the rules of the

common law and statues that we must turn to locate the many sources of protection for our freedom to communicate and the traditional free speech rationales which underpin them.

3 The limited institutional capacity of the judiciary

The third reason why a minimalist model of judicially-protected popular sovereignty is the primary rationale of the implied freedom is the limited institutional capacity of the judiciary to determine what is necessary for the effective operation of representative and responsible government under the Constitution. The difficulty is that a question of this nature will often have as much to do with politics and sociology

as the law. As Campbell observes:

This must be a highly speculative matter of political science and political

philosophy which is very dependent on what particular conception of

representative government is involved and what are the economic realities of

effective communication.144

The legislation struck down in ACTV is a classic example. It sought, among other

things, to prohibit political advertising on television during an election period. The

High Court had to determine the likely effect of this law on the freedom of political

143 Chesterman, Freedom of Speech in Australian Law, above n 4, vii. 144 Campbell, ‘Democracy, Human Rights and Positive Law’, above n 35, 203.

communication, and ultimately whether it would ‘make the Australian system more or

less representative’.145

This is not to suggest that there is anything unique about judges having to consider

difficult and contested social, political or economic issues in the application of laws.

For example, this kind of analysis is routinely required in Australia for laws regarding

anti-discrimination,146 freedom of interstate trade147 and economic competition.148

However, the judicial task in relation to the implied freedom is not the application of

complex statutory rules but a determination whether an otherwise valid law offends

an implied – and indeterminate - constitutional principle. The analysis may not

necessarily be any more complex but ‘[t]he power to declare invalid an expression of

the will of a democratically elected legislature involves a responsibility of a special

kind.’149 In this regard there may be legitimate separation of powers concerns if the

judiciary ignores the political nature of this task when applying the implied freedom

and second-guesses the judgment of Parliament on questions it is no better (maybe

worse) placed to answer and that take it beyond its field of expertise and experience.

Cass Sunstein has made this point in relation to the First Amendment and the problem

of determining what kinds of speech lie at the core of that constitutional guarantee:

It is for this reason that constitutional law is not political philosophy, and that

some constitutional rights are ‘underenforced’ through the judiciary … On these

145 Ibid. 146 See for example the rule against indirect sex discrimination in section 7B of the Sex Discrimination Act 1984 (Cth). 147 Section 92 of the Australian Constitution states that ‘trade, commerce and intercourse amongst the States…shall be absolutely free.’ 148 See for example the rule against corporations misusing their market power in section 46 of the Trade Practices Act 1974 (Cth). 149 Gleeson, above n 87, 133.

matters, an aggressive judicial role in the service of the best theory would strain

judicial competence and legitimacy.150

The notion of the judiciary ‘under-enforcing’ a constitutional right is apposite to the implied freedom. In this regard, it echoes one aspect of the American political question doctrine that counsels against the judiciary examining an issue when the

‘resolution of the question demand[s] that a court move beyond areas of judicial expertise’.151 In the context of the implied freedom, it cannot of course amount to the refusal to exercise jurisdiction, as it is the constitutional duty of the Court to determine its proper limits.152 However, the High Court can and should exercise this jurisdiction in a manner that is more deferential to Parliament when faced with questions that arise in its interpretation and application that require consideration of difficult issues of social, political and economic policy.153

D PROVISIONAL CONCLUSION

My analysis has suggested that while the ‘classic trio’ of rationales are not the primary rationales for the implied freedom, they do inform the content and development of a range of common law and statutory rules. In this way, important individual and more general democratic concerns find expression and promotion at

150 Sunstein, above n 30, 151. 151 Goldwater v Carter, 444 US 996, 998 (1979). The political question doctrine also requires that the judiciary avoid questions that are committed by the Constitution to another arm of government or would create the possibility of ‘multifarious pronouncements by various departments on one question’: Baker v Carr, 369 US 186, 217 (1962). In the Australian context, see Sir Anthony Mason, ‘The High Court as Gatekeeper’ (2000) 24 Melbourne University Law Review 784, 795–6. 152 ACTV (1992) 177 CLR 106, 144 (Mason CJ). 153 There have been instances where the High Court has employed this approach. See, eg, Gerhardy v Brown (1985) 159 CLR 70, 138–43 (Brennan J); Richardson v Forestry Commission (1988) 164 CLR 261, 296 (Mason CJ and Brennan J). See also Rosenberg and Williams, above n 35, 477, where the authors state that (citations omitted): ‘if justices of constitutional courts wish to decide cases that have major policy ramifications, they must have a solid grasp of existing behaviour … it is incumbent upon them to be informed about practice. If they are not, then they should either defer to the legislature or, if appropriate, remand the case to lower courts for further development of the empirical record. This is particularly the case in democratic countries like Australia where there is no bill of rights and courts traditionally defer to parliamentary actions.’

the sub-constitutional level. The rationale of the implied freedom is a minimalist

model of judicially-protected popular sovereignty. It is a thinner version of the

Meikeljohn argument from self-government where the judiciary perform a more

limited, supervisory role in its application. This rationale fits best with the text,

structure and history of the Constitution, our tradition of freedom of communication

protection and the limited judicial capacity to determine what is required to secure the

effective operation of our constitutional system of government. The identification of

the rationale of the implied freedom establishes the framework necessary to determine

the proper scope of ‘political communication’ after Lange, and whether racial

vilification can be so considered.

III WHAT COUNTS AS ‘POLITICAL COMMUNICATION’ AFTER

LANGE?154

A THE SCOPE OF THE LANGE DECISION

In Lange, the High Court did not define ‘political communication’ for the purpose of

the implied freedom, but insisted that, to attract constitutional protection, a nexus

must exist between a communication and federal voting choices (‘the nexus

requirement’).155 A narrower conception of ‘political communication’ than the one

endorsed in Theophanous156 is more consistent with this line of reasoning,157 though

any possible narrowing is qualified in two important respects. First, the Court

established that the implied freedom was not confined to election periods.158 Second,

through the system of responsible government, the implied freedom covers the

154 See generally Chesterman, ‘When Is a Communication “Political”?’, above n 54. 155 (1997) 189 CLR 520, 560. 156 ‘[It] refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about’: Theophanous (1994) 182 CLR 104, 124 (Mason CJ, Toohey and Gaudron JJ), quoting Barendt, Freedom of Speech, above n 1, 152. 157 See Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 377–8. 158 Lange (1997) 189 CLR 520, 561.

conduct of the entire executive — not just ‘Ministers and the public service … [but also] the affairs of statutory authorities and public utilities which are obliged to report to the legislature or to a Minister who is responsible to the legislature.’159 Moreover,

the decision in Levy v Victoria made it clear that ‘political communication’ includes

‘non-verbal conduct which is capable of communicating an idea about the

government or politics of the Commonwealth’.160

Whether the implied freedom embraces a freedom of movement and association is

less certain. However, considering the tenor of the Lange reasoning and its insistence

that an implication must be firmly rooted in the text and structure of the Constitution,

the better view is that these freedoms are ‘merely ancillary to, and therefore parasitic

upon, the freedom of political communication.’161 In other words, freedom of movement and association receive constitutional protection to the extent necessary to enable citizens to give and receive ‘political communications’ needed to cast an

informed vote at a federal election.162 Indeed, this is the essence of the Lange

decision.163

The nexus requirement makes it clear that although racial vilification can amount to

‘political communication’, it will not always be so.164 The difficult question is how to

determine when a subject matter — in this instance racial vilification — is relevant to

making a voting choice at a federal election or referendum. Whilst Lange left this

159 Ibid. 160 (1997) 189 CLR 579, 595 (Brennan CJ). For a discussion of symbolic speech, see Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 1334-39. 161 Blackshield and Williams, above n 160, 1179. 162 See Kruger (1997) 190 CLR 1, 91 (Toohey J), 115–16 (Gaudron J), 142 (McHugh J). 163 Lange (1997) 189 CLR 520, 560, 571. 164 On this point, see Chesterman, Freedom of Speech in Australian Law, above n 4, 238–40; Chesterman, ‘When Is a Communication “Political”?’, above n 54, 16–18. Stone considers it unlikely that the High Court would count hate speech as ‘political communication’: Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 399 fn 136.

question open, it would appear correct to state that the range of matters that may be relevant to federal voting choices cannot be fixed.165 This approximates the view taken on this point by the joint judgment of Mason CJ, Toohey and Gaudron JJ in

Theophanous.166 For example, the turning away of the MV Tampa from Australian waters by the federal government and its associated refugee policy dominated the

2001 federal election in the same way that terrorism dominated the 2004 federal election. Neither issue has truly been on the federal political radar before,167 though a communication on these topics would now be manifestly ‘political’. These examples underline the fluid and enigmatic nature of federal politics, and suggest that the subject matters that attract constitutional protection must remain open to honour the constitutional imperative established in Lange.168

The existence of the nexus requirement emphasised in Lange also does not in principle preclude ‘commercial speech’ or ‘entertainment’ from constituting ‘political communication’ in certain instances.169 For example, the broadcasting of a song on a youth radio network by a fictional character satirising a controversial federal

165 There is authority that says the discussion of religious matters falls outside the scope of the implied freedom on account of the protection it receives from s 116 of the Constitution: Harkianakis v Skalkos (1999) 47 NSWLR 302. However, it seems to me that there is no reason why the discussion of religious matters – if they have the capacity to influence federal voting choices - ought not to be constitutionally protected political communications for the purpose of the implied freedom, irrespective of the nature and scope of the protection offered by s 116. 166 (1994) 182 CLR 104, 123. 167 The only previous occasion where it might be said that the issue of terrorism was on the federal political agenda was the bombing of the Hilton Hotel in Sydney on 13 February 1978 during the Commonwealth Heads of Government Meeting. See further Jenny Hocking, Terror Laws: ASIO, Counter-Terrorism and the Threat to Democracy (2004) ch 6. However, that event did not have the same domestic political impact as the recent attacks in New York City and Bali and the ongoing ‘War on Terror’. Stone has made a similar point regarding, inter alia, the issue of gun control following the Port Arthur massacre in 1996: see Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 385. 168 This argument finds some support in Lange (1997) 189 CLR 520, 570–1, where the Court endorsed a passage from the judgment of McHugh J in Stephens (1994) 182 CLR 211, 264. 169 But see Theophanous (1994) 182 CLR 104, 123–5 (Mason CJ, Toohey and Gaudron JJ), where their Honours said that entertainment and commercial speech would not generally count as political communication. For a discussion on this point, see Chesterman, Freedom of Speech in Australian Law, above n 4, 46–9.

politician might well constitute ‘political communication’,170 as it certainly has the potential to influence the federal voting choices of its listeners.171

In any event, the most difficult issue is determining the strength of the nexus needed before a communication ought to be considered ‘political’. This is particularly important for the area of racial vilification, where many communications take place in the workplace, neighbourhood or sporting arena — occasions where there is no obvious connection to federal elections. It presents a significant challenge for the

High Court, as assessing the impact of a law upon the communicative processes connected to federal parliamentary government requires a difficult social and political analysis that judges are not necessarily well-equipped to undertake. This is not a lament, but merely an observation.172 This interpretive challenge is, however, no more or less demanding than the one posed, for example, by s 92 of the Constitution and the economic analysis that the section necessarily entails.173 The High Court must in time develop a principled way of distinguishing between communications that

‘could affect [voter] choice in federal elections’174 and those that cannot. The method chosen must be informed by and serve to further the rationale of the implied freedom discussed above.

170 However, on these facts, the Queensland Court of Appeal held that this communication did not amount to political communication for the purpose of the implied freedom: Australian Broadcasting Corporation v Hanson (Unreported, Supreme Court of Queensland, Court of Appeal, de Jersey CJ, McMurdo P and McPherson JA, 28 September 1998) (‘Hanson’). 171 See below text accompanying nn 213–217 for a detailed discussion and critique of this case. 172 But see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, 331–8, where Callinan J, though accepting the authority of Lange, said he would not have found an implied freedom of political communication. His Honour disagreed with the reasoning by which the implied freedom was derived and also because the analysis that it necessarily requires strays far from the kind usually associated with judicial proceedings. 173 In assessing whether a law infringes s 92, the Court must determine whether it imposes on interstate traders discriminatory burdens of a protectionist kind by conferring on local traders a commercial or market advantage: Cole v Whitfield (1998) 165 CLR 360, 407–8. The High Court made clear that this inquiry would involve an assessment of both the legal and practical effects of the law. The latter entails looking at the actual economic effects of an impugned law. On the difficulty of this s 92 analysis, see Zines, above n 135, 151–3. 174 Lange (1997) 189 CLR 520, 571.

B A MINIMALIST MODEL OF JUDICIALLY-PROTECTED POPULAR

SOVEREIGNTY AND THE SCOPE OF ‘POLITICAL

COMMUNICATION’

At first blush, a minimalist model of judicially-protected popular sovereignty seems

to mandate the narrowest possible conception of ‘political communication’. The

implied freedom is, after all, a restriction on the legislative and executive powers of

the Commonwealth, and it is implicit in this rationale that, subject to the Constitution,

‘the people’s representatives in Parliament … should be … [able] to implement the

wishes of the people as they see them.’175 So, prima facie, the less communication that is constitutionally protected, the greater the scope of Parliament’s powers. This could be secured by insisting upon a very strong nexus between the communication and federal voting choices. For example, the speaker in an open and public forum must have intended to communicate on a subject matter of direct relevance to the next federal election. This approach, however, fails to focus on voter behaviour which is the essence of the constitutional imperative established in Lange. It would also be extremely difficult to apply and would likely lead to the drawing of artificial and unsustainable lines between political and non-political communication.176

175 Williams, above n 39, 230. 176 It would involve an assessment by a court as to the subjective intention of a speaker and a reasonably precise definition of when a matter is of direct relevance to federal voting choices. The former question is notoriously difficult to answer and may be unanswerable without direct testimony from the speaker, and then only if we can be certain that they are speaking truthfully. The latter would require a court to engage in the extremely difficult — perhaps impossible — task of drawing a reasonably precise and principled distinction between communications that may have a direct effect on federal voting choices and those that could only have an indirect effect. The amorphous nature of political discourse and the unpredictability of voter attitudes and behaviour makes any distinction of this type a subjective and value-laden assessment.

Indeed, on closer inspection, a minimalist model of judicially-protected popular

sovereignty requires that more, rather than less, political communication be

constitutionally protected. The ultimate goal of the implied freedom is to secure and

provide for the meaningful exercise of the sovereignty of the people through the

effective operation of our system of constitutional government, which is promoted by

a broad-ranging and informed political discourse.177 However, it must be borne in mind that while a broad conception of ‘political communication’ would seem to widen the operation of the implied freedom (given that the implied freedom restricts power), expanding the range of communications considered ‘political’ does not itself effect a corresponding diminution of legislative and executive power. That ultimately turns on the level of judicial deference shown to Parliament when a court decides whether a law is constitutional, notwithstanding that it may restrict political communication.178

C HOW STRONG MUST THE NEXUS REQUIREMENT BE TO COUNT AS

‘POLITICAL COMMUNICATION’?

The rationale of the implied freedom requires that a broad conception of ‘political communication’ be judicially recognised. The difficult question is how broad that conception can be without going beyond what the Constitution can reasonably support. Michael Chesterman has argued that Lange, in contrast to the majority views

177 Stone has also argued that if the High Court took seriously the logic of the implied freedom as outlined in Lange, with its commitment to what enables electors to make a ‘true’ electoral choice, a much broader definition of ‘political communication’ must follow: Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 389. 178 The scope of the implied freedom ultimately depends on the test of constitutionality that a court employs when determining whether a law that infringes ‘political communication’ is nevertheless constitutional by being reasonably appropriate and adapted to serve a legitimate end consistent with the system of representative and responsible government guaranteed by the Constitution: Lange (1997) 189 CLR 520, 567–8. A test that more closely scrutinises a law would, for example, make a finding of invalidity more likely and effect a corresponding expansion in the scope of the implied freedom. For an argument in favour of ‘strict scrutiny’ of laws that proscribe communications which constitute racial vilification see Wojciech Sadurski, ‘Offending with Impunity: Racial Vilification and Freedom of Speech’ (1992) 14 Sydney Law Review 163, 167-173.

in Theophanous and Cunliffe, ‘explicitly limited “political discussion” to

communications which are “calculated to affect choices”.’179 However, the critical

word, ‘calculated’, is not mentioned in the Lange judgment. Instead, the High Court

stated that the implied freedom protects political and governmental communications

‘that might be relevant’180 or ‘could affect [voters’] choice in federal elections or

constitutional referenda’.181 ‘Calculated’ implies intention, while ‘might’ and ‘could’

carry no such subjective connotation. This use of terminology by the Court is

important, as it casts the question in a significantly different light. It necessarily

entails a broader conception of ‘political communication’ than one in which

‘calculated’ is the operative standard.

While the definition of ‘political communication’ remains an open question,182 Lange

stated that a narrow view should not be taken regarding the subject matters that may

attract constitutional protection.183 However, by endorsing the following passage in

ACTV, the Court may have envisaged something approaching a direct nexus between

the communication and federal voting choices: ‘legislative power cannot support an absolute denial of access by the people to relevant information about the functioning of government in Australia and about the policies of political parties and candidates for election’.184

179 Chesterman, Freedom of Speech in Australian Law, above n 4, 50 (emphasis added). 180 Lange (1997) 189 CLR 520, 561 (emphasis added). 181 Ibid 571 (emphasis added). The High Court also uses the phrase ‘which enables the people’: at 560– 1 (emphasis added). 182 There has been some discussion of the scope of ‘political communication’ in the post-Lange case law. The High Court has confirmed that symbolic speech may count as ‘political communication’: Levy (1997) 189 CLR 579, 594 (Brennan CJ), 613 (Toohey and Gummow JJ), 622–3 (McHugh J), 638 (Kirby J). Toohey and Gaudron JJ have also endorsed a broad, Theophanous-style definition of ‘political communication’: Kruger (1997) 190 CLR 1, 90–1 (Toohey J), 114 (Gaudron J). But see Chesterman, Freedom of Speech in Australian Law, above n 4, 44. 183 Lange (1997) 189 CLR 520, 570–1. 184 Ibid 560, quoting ACTV (1992) 177 CLR 106, 187 (Dawson J).

In other words, only ‘explicitly political communication’185 attracts constitutional protection. If this is so, the conception of ‘political communication’ is narrowed considerably. Moreover, a strictly construed nexus requirement would inferentially preclude discrete state political and governmental matters from constitutional protection. At the time of writing however, it is far from clear that this is the case.186

In any event, on this approach, a website187 or pamphlet 188 that published vicious anti-Semitic propaganda denying the Holocaust and claiming that it was a lie concocted for economic and strategic political gain would not appear relevant to federal political and governmental matters, and would therefore fall outside the scope of ‘political communication’. An employer calling an employee a ‘lazy black bastard’ in the workplace would also fall outside the scope of ‘political communication’,189 as would a newspaper article reporting a decision made by a state government department to remove an Aboriginal child from the care of a white family and place them in the custody of an Aboriginal relative, where the accompanying photo misleadingly depicts the relative as living in a ‘primitive’ camp.190

It is probably true to say that none of these communications relate directly to ‘the functioning of [federal] government in Australia and … the policies of political

185 See Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 384, where Stone uses the term first coined by Robert Bork to define a category of Australian ‘communications about the behaviour, policy and personnel of the federal Parliament or federal executive or about the referendum procedure.’ 186 The federal election nexus requirement established in Lange would seem inconsistent with the principle in Stephens that purely state political matters may count as political communication. This view was supported by Brennan CJ and McHugh J: Levy (1997) 189 CLR 579, 596 (Brennan CJ), 626 (McHugh J). However, in the same case, Kirby J favoured the opposite conclusion: at 643–4. Four judges in Roberts v Bass (2002) 212 CLR 1 seemed to favour the view that discrete state political matters may count as ‘political communication’: at 29–30 (Gaudron, McHugh and Gummow JJ), 58 (Kirby J). For a discussion of this issue, see Geoffrey Lindell, ‘The Constitutional and Other Significance of Roberts v Bass — Stephens v West Australian Newspapers Ltd Reinstated?’ (2003) 14 Public Law Review 201, 201. 187 See Toben v Jones (2003) 129 FCR 515 (‘Toben’). 188 See Jones v Scully (2002) 120 FCR 243 (‘Scully’). 189 See Rugema v J Gadsten Pty Ltd [1997] EOC ¶92-887 (‘Rugema’). Chesterman has made a similar point regarding Rugema: Chesterman, Freedom of Speech in Australian Law, above n 4, 239–40. 190 See Creek v Cairns Post Pty Ltd (2001) 112 FCR 352.

parties and candidates for election.’191 Yet a person who visits the anti-Semitic

website or reads the pamphlet may be so sickened or enraged that at the next federal election they choose to vote for the Australian Labor Party partly because of their policy to introduce criminal sanctions for racial vilification.192 Similarly, a person

reading the above newspaper article may not appreciate the federal–state distinction

and decide to vote for One Nation at the next federal election because they believe the

party will not support Aboriginal interests.193 Moreover, sustained exposure to racial vilification in the workplace may stir an employee’s own racist views and lead to a vote for a far-right, anti-immigration candidate.

The important point is that, in each of the above scenarios, it is possible that these communications will affect the federal voting choices of a particular person or group

of persons.194 A communication is made no less ‘political’ by its author not intending nor understanding its capacity to affect federal voting choices. As the High Court made clear in Lange, the constitutional duty assigned to the Court by sections 7, 24,

64 and 128 of the Constitution in relation to the implied freedom is to identify for protection those communications that ‘may’ or ‘might’ in fact affect federal voting

choices. However, if the argument is taken to its logical conclusion, every communicative act could be ‘political’. If this is so, the implied freedom becomes a comprehensive and autonomous guarantee of free communication and the Meiklejohn conception of ‘political communication’ emerges. As noted earlier, this conception

191 Lange (1997) 189 CLR 520, 560. 192 Robert McLelland, of the Australian Labor Party, proposed the private member’s Bill entitled the Racial and Religious Hatred Bill 2003. If passed, the Bill would create three federal offences. It would be a crime to threaten property damage or physical harm to another person or group because of their race, colour, religion or national or ethnic origin. Engaging in public acts that have the intention and likely effect of inciting racial or religious hatred against a person or group would also be a crime. 193 See Chesterman, Freedom of Speech in Australian Law, above n 4, 239, where Chesterman notes that the emergence of the One Nation Party in Australian federal politics and its discriminatory policies ‘illustrate[s] the potential overlap between racial vilification and political communication.’ 194 See ibid 240, where Chesterman makes a similar point in relation to Rugema.

cannot be supported by either the textual origins and limited purpose of the implied

freedom or the constitutional reasoning at the heart of the Lange decision.195

On the other hand, for the High Court to draw clear lines where none exist would also

betray the Lange constitutional imperative. To narrow the spectrum of ‘political

communication’ to those matters that may, according to a judge, ‘properly influence

the outcome of those elections’196 runs the risk of the Court defining ‘political

communication’ in terms of what it ought to be, not what it is.197 Much ‘political

communication’ emanates from, and is properly the discourse of, the citizenry. For

example, for a judge to state that a protest against duck-hunting ‘relate[s] to the

discrete State issue of the appropriateness of the relevant Victorian laws’198 may be strictly correct, but it presupposes that a voter can and will make fine distinctions between state and federal issues. It is an assessment by the politically enlightened given judicial imprimatur. Even so, it fails to focus on how the communication may in fact affect the voter, which Lange makes clear is the key criterion for determining

whether a communication is ‘political’. This blurring of the federal–state divide is, of

course, compounded by the ‘increasing integration of social, economic and political

matters in Australia’.199 A voter may appreciate the federal–state distinction but still

195 Stone has argued that the logic of the implied freedom as defined in Lange requires a particularly broad conception of ‘political communication’. To this end, she considers that four categories of communication ought to be constitutionally protected: ‘explicitly political communication’, ‘potential subjects of government action’, ‘communication that influences attitudes towards public issues’ and ‘communication that develops qualities desirable in a voter’: Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 383–7. The problem with this definition is that every communicative act could be ‘political’. 196 Kruger (1997) 190 CLR 1, 69 (Dawson J) (emphasis added). 197 See Chesterman, ‘When Is a Communication “Political”?’, above n 54, 12, where Chesterman correctly notes that the view expressed by Dawson J in Kruger (1997) 190 CLR 1, 68–9 implies that it is up to the High Court, not the citizen, to determine the scope of ‘political communication’. In this regard the Court ‘performs part of the state’s function of “high-minded parliamentarian”’. 198 Levy (1997) 189 CLR 579, 596 (Brennan CJ). 199 Lange (1997) 189 CLR 520, 572.

choose to vote at the federal level against the political party that enforced the relevant

Victorian duck-hunting law.200

The adoption of a narrow conception of ‘political communication’ would, moreover, undercut the rationale of the implied freedom. It would be predicated upon the erroneous assumption that a court has the expertise and experience to draw a bright line between political and non-political communication. The court should acknowledge the amorphous nature of the concept, the possibility that a broad range of matters may count as ‘political communication’ and its own limited institutional capacity to determine a question of this kind.201 Of course, the precise scope of

‘political communication’ is not revealed in making this point and the application of

the implied freedom requires that the question be answered. However, the adoption of

a narrow conception would lead to the High Court seeking to define and control the

concept in terms of what it ought to be rather than what it is. A minimalist model of

judicially-protected popular sovereignty requires judicial deference in this context,

and involves keeping the categories of political communication open and broad.202

D A TEST FOR DETERMINING WHEN A COMMUNICATION IS

‘POLITICAL’

1 The ‘likely audience’ test

200 The decision in Levy did not turn on this issue, as the High Court held that the impugned Victorian regulation that restricted public access to land reserved for duck hunting was reasonably appropriate and adapted to a legitimate purpose (the protection of public safety) consistent with representative and responsible government: Levy (1997) 189 CLR 579, 597 (Brennan CJ), 608 (Dawson J), 614–15 (Toohey and Gummow JJ), 619 (Gaudron J), 627 (McHugh J), 648 (Kirby J). 201 See above Part II(C)(3). 202 Another argument to support a broad definition of ‘political communication’ is advanced by Stone: ‘the line should be drawn more generously to allow for the possibility of error, especially given difficulties that courts might experience in distinguishing between political and non political speech’: Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 389.

The above analysis reveals the impossibility of drawing precise lines in this area. The

text and structure of the Constitution and the limited purpose of the implied freedom

do not support the Meiklejohn conception of ‘political communication’. On the other

hand, a conception that is too narrow would serve to undermine its rationale. A

middle ground needs to be located and that position must articulate the strength of the

nexus requirement (to honour the Lange constitutional imperative) and outline a

workable test for its consistent application. Moreover, the rationale of the implied

freedom requires the relevant test to carve out a generous zone of constitutionally-

protected ‘political communication’. First, this recognises both the breadth of matters

that may constitute ‘political communication’ and the limited institutional capacity of

the judiciary to determine this issue. Second, and more importantly, it provides the

conditions for the sovereignty of the people to be meaningfully exercised through an

informed and wide-ranging political discourse.

The nexus requirement can be defined in terms of the intention of the

communicator.203 However, as noted earlier, a communication is made no less

political if its author neither intended nor understood its capacity to affect federal

voting choices.204 The intention of a communicator is not relevant to voter behaviour

even when their communication has in fact affected a federal voting choice.

On the other hand, the following proposition articulates a defensible, middle ground

position: for the purpose of the implied freedom, a communication is considered

‘political’ if the subject matter of the communication is such that it may reasonably be

relevant to the federal voting choices of its likely audience. This proposition is consistent with the nexus requirement and its emphasis on voter behaviour, yet keeps

203 On this point, see Chesterman, Freedom of Speech in Australian Law, above n 4, 51. 204 But see Chesterman, ‘When Is a Communication “Political”?’, above n 54, 11.

the subject matters that may attract constitutional protection open and broad, as

required by the rationale of the implied freedom. The context in which a

communication is made is of course important, but its subject matter is the key

determinant as to whether it will qualify for constitutional protection.

As a result, any number of private, social or work-related communications may fall

within the scope of the implied freedom. It might be thought that the often private

nature of such exchanges or the nature of the relationship between the relevant

participants makes these communications unsuitable for constitutional protection. If

the Lange constitutional imperative and the rationale of the implied freedom are to be

taken seriously however, it is the capacity of a communication to affect federal voting

choices that determines whether or not it attracts constitutional protection. The kind of

‘political’ dialogue that regularly occurs between family, friends and work colleagues

in a private and informal context are often the key communications that shape an

individual’s federal voting choices.

Consider a dinner conversation between two friends where one informs the other

about the nefarious activities of their local federal member, or an informal exchange

of emails between two employees discussing the wisdom or otherwise of Australia

entering into a free trade arrangement with the United States. These communications may affect the federal voting choices of their likely audience even if that amounts

only to one other person. On the basis of the Lange constitutional imperative and the

‘likely audience’ test they are ‘political communication’ par excellence.205 It is, of

course, unlikely that a court will have cause to pronounce upon the constitutional

status of such private and informal communications, for a law that sought to curtail or

had the effect of curtailing such fundamental discourse would be extremely politically

205 I am grateful to Adrienne Stone for this point.

imprudent. It is, nonetheless, an important constitutional safeguard should such

egregious legislation ever come to pass.

The ‘likely audience’ test has further benefits. First, constitutional protection will not

turn on the size of a communication audience. A communication ought to count as

‘political’ whether it is published in a major daily newspaper, made in the newsletter

of a political ‘think tank’ with a circulation of 100, or found in a pamphlet dropped in

the letterboxes of a residential street. Its capacity to be reasonably relevant to the

federal voting choices of its likely audience is the key issue. In this way, the ‘likely

audience’ test takes voters as it finds them and therefore reflects the reality of

political communication, not what it ought to be in the eyes of the politically

enlightened or ‘high-minded parliamentarian’.206 For this reason, the test works better than a standard based on the reasonable or intelligent person, for what may affect federal voting choices is not always reasonable, rational or considered.207

Second, the incorporation of an objective standard prevents the development of an unlimited definition of ‘political communication’ which may occur if the subjective voting behaviour of a likely audience were determinative. It is quite possible that every communication may be relevant to the federal voting choices of at least one person in its likely audience.

And third, the ‘likely audience’ test makes the difficult question of how the implied freedom should deal with a discrete state issue less problematic. If a communication on what is properly considered a purely state matter may reasonably be relevant to the federal voting choices of its likely audience, then it is ‘political’. In conjunction with

206 Chesterman, ‘When Is a Communication “Political”?’, above n 54, 12. 207 See Levy (1997) 189 CLR 579, 623 (McHugh J).

the ‘increasing integration of social, economic and political matters in Australia’,208 this provides a powerful argument against the prima facie exclusion of state matters from the scope of the implied freedom. Moreover, it honours the rationale of the implied freedom by keeping the citizen qua voter as the focus, and aligns the scope of

‘political communication’ with what in fact affects federal voting choices.

2 The application of the ‘likely audience’ test

I will now apply the ‘likely audience’ test to a hypothetical situation and five real controversies in order to illustrate the range of communications that will attract constitutional protection under the test, and whether it is likely to include those involving racial vilification.

If a hypothetical article were published in The Courier-Mail in Brisbane, castigating the Commonwealth for not doing more to secure the welfare of Australians held at

Guantanamo Bay, it would merit protection under the ‘likely audience’ test. Less certain would be an article in an Australian academic journal that simply denounced the putative legal blackhole at the same location, without an express Australian reference or connection. It is, however, arguable that the likely audience of an academic journal may still consider this United States government policy reasonably relevant to their federal voting choices, given the strong and consistent support of the

United States position by the current Australian government.

Characterising the article that was considered in Brown v Classification Review

Board 209 is similarly problematic. The article, entitled ‘The Art of Shoplifting’, was published in Rabelais, the La Trobe University student newspaper. It briefly espoused

208 Lange (1997) 189 CLR 520, 572. 209 (1998) 82 FCR 225 (‘Brown’).

the evils of capitalism, before providing detailed instructions on how to steal. The

publication was clearly political in a general sense. The newspaper included articles on the pending execution in the United States of a black activist, the attitudes of the

Victorian government towards homosexuals, access to university education, the governments of Nepal and South Africa and privatised prisons. The subject matter of the article was wide-ranging and polemical in nature, but its basic point was to advocate shoplifting as a political and ideological act or ‘we may as well sell ourselves into bonded slavery now, or join the Liberal Party.’210 The fact that only

one of seven sections in the article was devoted to the anti-capitalism diatribe is not

determinative when that section underlines the entire political premise of the article.

Nevertheless, is it ‘political’ in the relevant constitutional sense? The Full Federal

Court said no.211 On balance, however, if a broad conception of ‘political

communication’ is apposite for the reasons outlined above, a decent argument can be

made that this article may reasonably be relevant to the federal voting choices of its

likely audience, particularly in light of the prominence these sorts of political issues

possess when many university students are actively debating and forming their

political views and electoral preferences for the first time.212

On the other hand, notwithstanding the decision of the Queensland Court of Appeal to

the contrary, the application of the ‘likely audience’ test to the communication in

Australian Broadcasting Corporation v Hanson213 is less problematic.214 That case

210 Ibid 247 (Heerey J) (emphasis added). 211 Ibid 238–9 (French J), 246 (Heerey J), 258 (Sundberg J). 212 For a comment on this decision, see Adrienne Stone, ‘The Australian Free Speech Experiment and Scepticism about the UK Human Rights Act’ in Tom Campbell, K D Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (2001) 391, 403; Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 381–2. 213 (Unreported, Supreme Court of Queensland, Court of Appeal, de Jersey CJ, McMurdo P and McPherson JA, 28 September 1998).

involved the broadcast on a national youth radio station (Triple J) of a song entitled

‘Backdoor Man’. The song crudely lampooned the controversial federal politician,

Pauline Hanson, whose political platform was based upon a strong resistance to the

claims of Aboriginal people, restricting Asian immigration and dismantling the policy

of multiculturalism. The singer was a satirical artist called Pauline Pantsdown who,

during the course of the song, claimed she was a homosexual before stating

‘[b]ackdoor, clean up our own backdoor … backdoor — all our fears will be

realised’215 and then ‘I’m a backdoor man for the Klu Klux Klan with very

horrendous plans.’216 The highly critical subject matter of the song, which took aim at

Hanson’s policies at a time when her political fortunes were very much in the

ascendancy, may reasonably be relevant to the federal voting choices of its likely

audience. For many of its listeners, Triple J is a primary source and forum for the

discussion and debate of federal issues, constituting classic ‘political communication’

for those particular voters. To deny it constitutional protection would betray the

essence of the implied freedom and the reality of political discourse.217

However, the application of the ‘likely audience’ standard would deny constitutional

protection to the communication made in Rugema v J Gadsten Pty Ltd, which

involved an employer calling an employee a ‘lazy black bastard’ in the workplace.218

The fact that the relationship is commercial, work-related and mostly private will not

214 The result, however, in Hanson was that the Queensland Court of Appeal dismissed an appeal against the injunction granted to the respondent to restrain the radio station from broadcasting the song. In relation to the relevance of the implied freedom, the Court said that preventing the broadcast of the song ‘could not possibly be said to infringe against the need for “free and general discussion of public matters” fundamental to our democratic society’: ibid 8. 215 Ibid. 216 Ibid 3. 217 For a comment on the Hanson decision, see Stone, ‘The Australian Free Speech Experiment’, above n 212, 403; Stone, ‘Rights, Personal Rights and Freedoms’, above n 54, 382–3. 218 [1997] EOC ¶92-887, 77 195, 77 198 (Commissioner Webster).

take the communication outside the scope of the implied freedom.219 It is difficult, however, to establish a sufficient connection between the subject matter of the communication and the federal voting choices of its likely audience without proceeding to an unreasonable level of abstraction. The likely audience will view the communication as a crude and personalised racial epithet occurring in the confines of the workplace, which they may or may not condemn. The subject matter of the communication in isolation is unlikely to trigger a conscious decision either then or at the next federal election to vote for a particular candidate.

The cases of Jones v Scully220 and Toben v Jones221 involved the publication of

vicious anti-Semitic propaganda in a pamphlet and on the internet respectively. The

gist of the communications was that Jews were anti-democratic, immoral, sexually

deviant and tyrannical, 222 and that they fabricated and exploited the Holocaust for

financial and political gain.223 The subject matter was general and purportedly

historical, with no concern for or connection with Australian political or

governmental matters. For this reason, it is relatively easy to characterise these materials under the ‘likely audience’ test. The likely audiences of these

communications were either like-minded anti-Semites and revisionists, or those who

happened upon the publication by receiving it in their letterbox or finding it through

an internet search. The communications would have fanned the flames of racial hatred

for some while triggering revulsion and anger in others, but would not be reasonably relevant to their federal election choices. It is, of course, quite possible under the

219 For example, a speech given by a factory employee in their capacity as a union delegate on the shop floor regarding proposed federal industrial reforms may count as ‘political communication’ notwithstanding its workplace and commercial context. The subject matter of the speech makes it reasonably relevant to the federal voting choices of its likely audience — factory employees. 220 (2002) 120 FCR 243. 221 (2003) 129 FCR 515. 222 Scully (2002) 120 FCR 243, 248, 251 (Hely J). 223 See Toben (2003) 129 FCR 515, 520–4.

‘likely audience’ test for even an extreme anti-Semitic invective to be ‘political’. For

example, a claim made in a public lecture suggesting that the two major Australian

political parties willingly propagated Jewish lies under duress from the United States

would be an absurd and racist claim, but may count as ‘political communication’.

Less clear is the classification of a newspaper article and misleading photograph by a

state government department regarding the foster care of an Aboriginal child, which

was considered in Creek v Cairns Post Pty Ltd.224 A key fact was that ‘[t]he principal

issue which the article explored was whether the Department’s decision was a

reaction to the “Stolen Generation” report’.225 A sound argument can therefore be

made that the major premise or subject matter of the article — that a government

decision was possibly made for an improper purpose against the best interests of the

child — against the backdrop of the polarised national reaction to the Stolen

Generation report may be reasonably relevant to the federal election choices of many readers of the Cairns Post,226 particularly those with strong views on Aboriginal

issues.

E PROVISIONAL CONCLUSION

Two points have been made in this part of the Chapter. First, while Lange made it

clear that a nexus must exist between a communication and federal voting choices to

attract constitutional protection, this does not determine what may be considered to be

‘political communication’. Second, the rationale of the implied freedom requires that

the zone of ‘political communication’ that attracts constitutional protection be

224 (2001) 112 FCR 352. 225 Ibid 354 (Kiefel J). 226 The Cairns Post is read by 83 per cent of the Cairns population: Roy Morgan Research, Roy Morgan Research Results for the Year Ending December 2003 (2003) .

generously sized. This both recognises the limited institutional capacity of the

judiciary to identify the precise line between political and non-political

communication, and provides the conditions for the sovereignty of the people to be

meaningfully exercised. To this end, I have proposed the ‘likely audience’ test as a

mechanism to determine when a communication will attract constitutional protection.

This test emphasises the centrality of voter behaviour as mandated by the nexus requirement established in Lange and allows a broad conception of ‘political communication’ to emerge. It is not, however, a test that goes beyond the textual origins of the implied freedom, or what its limited instrumental purpose can reasonably support. It also demonstrates that racial vilification can amount to

‘political communication’. Racial vilification will constitute ‘political communication’ for the purposes of the implied freedom if it may be reasonably relevant to the federal voting choices of its likely audience.

IV CONCLUSION

The scope of ‘political communication’ after Lange remains an open question. Lange did, however, establish that the interpretation of the implied freedom must be a home- grown, text-based project and that a nexus must exist between a communication and federal voting choices before it can attract constitutional protection. How ‘political communication’ is defined will turn on what the High Court considers to be the rationale of the implied freedom. Consequently, the articulation of a theoretical basis for the implied freedom is not only necessary (even if the Court is reluctant to do so explicitly), but also desirable, as it allows the implied freedom to develop in a manner that is principled and coherent. To this end, in Part II I have shown that none of the

‘classic trio’ of rationales are the primary rationales for the implied freedom, although

they do inform the content and development of a range of common law and statutory

rules. My analysis demonstrates that a minimalist model of judicially-protected

popular sovereignty is the rationale of the implied freedom. It translates to a more

limited, supervisory judicial role in the interpretation and application of the implied

freedom, and requires that a generous zone of ‘political communication’ attract constitutional protection.

In order to propose an answer to the question left open in Lange, in Part III I

developed the ‘likely audience’ test to better define the scope of ‘political

communication’. This test honours the centrality of voter behaviour inherent in the

nexus requirement established in Lange, so that the categories of ‘political

communication’ remain open. Furthermore, as required by the rationale of the implied

freedom, a broad conception of ‘political communication’ emerges from its

application. The ‘likely audience’ test also ensures that not every communication is

‘political’ and, in doing so, prevents the scope of the implied freedom from moving

beyond what the text, structure and history of the Constitution can support. It does,

however, acknowledge the amorphous nature of ‘political communication’ while

eschewing any attempt to draw narrow, unsustainable lines between the political and

non-political. Additionally, the test provides a mechanism for a court to identify and

accord constitutional protection to the reality of political communication, not just

what passes for such in the circles of the ‘politically enlightened’.

The application of the ‘likely audience’ test demonstrates that racial vilification can in

certain circumstances amount to ‘political communication’. This conclusion is relevant to the compatibility or otherwise of Australian racial vilification laws with

the implied freedom. These laws are primarily concerned with restricting certain ideas

and information, not the modes by which they are transmitted. Therefore, when an

instance of racial vilification falls within the scope of ‘political communication’, its

proscription by a racial vilification law will necessarily infringe the implied freedom.

However, there are a number of Australian laws that permit racial vilification if they

fall within a defence based on free speech or public interest.227 Of course, many instances of racial vilification are not so protected. Consequently, racial vilification

laws will sometimes limit ‘political communication’ and infringe the implied

freedom. The question is then whether the laws are reasonably appropriate and

adapted to serve a purpose compatible with representative and responsible

government.228 This constitutional inquiry is the focus of Chapter Two.

227 Racial Discrimination Act 1975 (Cth) s 18D; Anti-Discrimination Act 1977 (NSW) s 20C(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1991 (Qld) s 124A(2); Civil Liability Act 1936 (SA) s 73(1); Anti-Discrimination Act 1998 (Tas) s 55; Discrimination Act 1991 (ACT) s 66(2). 228 On this point, see Chesterman, Freedom of Speech in Australian Law, above n 4, 240–3.

CHAPTER TWO

THE PROTECTION OF POLITICAL COMMUNICATION

UNDER THE AUSTRALIAN CONSTITUTION

I INTRODUCTION

In Chapter One I outlined the constitutional parameters for Australian laws where political communication forms part of the conduct sought to be regulated and determined that some instances of racial vilification will fall within this constitutionally protected zone of expression. In this Chapter I first want to develop an argument as to how the test for constitutionality outlined in Lange v Australian

Broadcasting Corporation ought to be applied when assessing the compatibility of a law with the implied freedom of political communication.1 It is an important issue, for in the post-Lange case law the test has been applied in two different ways and my analysis will demonstrate that the validity of a law may well depend on which approach is taken.

In Part II of the Chapter I then argue that the proper application of the Lange test requires that one approach (the two-tier approach) be abandoned. On this approach, if a law regulates the content of a political communication (as opposed to the mode of its delivery), more rigorous judicial scrutiny will follow. Instead, I argue for a single test for constitutionality where its application is through the proportionality framework and informed by the rationale of the implied freedom outlined in Chapter

1 (1997) 189 CLR 520 (‘Lange’). For the remainder of the Chapter referred to as the ‘implied freedom’.

One. Under this proposed review model, what counts is the isolation and evaluation of the communication interest at stake. So, for example, if the effect or practical operation of a law is to significantly restrict political communication, then more rigorous judicial scrutiny is appropriate. To then pass constitutional muster, the law must have a ‘compelling justification’ and provide benefits that outweigh its detrimental impact on political communication.

In Part III of the Chapter this conception of the Lange test and the proposed review model are applied to Australian racial vilification laws in order to assess their compatibility with the implied freedom.2 This analysis is important in its own right for the issue has not been considered by the High Court nor been subject to detailed treatment in the lower courts or in academic literature.3 It also provides an instructive case study to outline, explain and justify the principles that underpin my argument for this conception of the Lange test. In this regard, it should be of interest to constitutional lawyers more generally. It is concluded that, save for the four strict or

2 The following Australian jurisdictions have racial vilification laws: Racial Discrimination Act 1975 (Cth) Part IIA; Anti-Discrimination Act 1977 (NSW) ss 20(C), (D). See also Criminal Code 1913 (WA) ss 76–80H; Racial Vilification Act 1996 (SA) ss 3, 6; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) ss 65–7; Anti-Discrimination Act 1991 (Qld) ss 124A, 131A; Racial and Religious Tolerance Act 2001 (Vic) ss 7–14, 24–5; Anti-Discrimination Act 1998 (Tas) ss 17, 19, 55. 3 The constitutionality of Australian racial vilification laws has, however, been examined in four lower court judicial and quasi-judicial decisions. For a detailed analysis of these cases, see below Part III(A). For relevant academic commentary on the issue see Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 237–43; Luke McNamara and Tamsin Solomon, ‘The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment’ (1996) 18 Adelaide Law Review 259, 278–83; Saku Akmeemana and Melinda Jones, ‘Fighting Racial Hatred’ in Commonwealth of Australia, Race Discrimination Commissioner, The Racial Discrimination Act: A Review (1995) 156–62. It is worth noting that before the 9 October 2004 election the Australian Labor Party introduced the Racial and Religious Hatred Bill 2003, a Private Members’ Bill that was originally moved by Robert McClelland MP. The Bill provided for the following criminal sanctions in serious cases of racial vilification: it would be a crime to threaten property damage or physical harm to another person or group because of their race, colour, religion or national or ethnic origin; and engaging in public acts that have the intention and likely effect of inciting racial or religious hatred against a person or group would also be a crime. The criminal provisions are nearly identical to those that formed part of the original Racial Hatred Bill 1994 (Cth) but were deleted during its passage through the Parliament. See further Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 40–2.

negligent liability Western Australian offences, the other Commonwealth, State and

Territory racial vilification laws are compatible with the implied freedom.

II HOW THE LANGE TEST FOR CONSTITUTIONALITY OUGHT TO BE

APPLIED

A THE TWO-TIER APPROACH OR A SINGLE STANDARD OF REVIEW?

In Lange the High Court unanimously endorsed a test for assessing the compatibility

of a law with the implied freedom.

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.4

However, notwithstanding this unanimity, the cases that immediately followed saw

the emergence of two distinct applications of the Lange test. One approach employs a single test for constitutionality regardless of whether the law regulates the content or

mode of a political communication and in a manner deferential to the Parliament.5

This involves extending a ‘margin of appreciation’ to the Parliament, recognising the

Court’s limited institutional capacity to evaluate the substantive effect a law may have

4 (1997) 189 CLR 520, 567–8. 5 Levy v Victoria (1997) 189 CLR 579, 596–7 (Brennan CJ)(‘Levy’).

on the implied freedom.6 The other is a two-tier approach that varies the level of judicial scrutiny depending on the nature of the law. This entails more rigorous scrutiny of laws that regulate the content rather than the mode of a ‘political communication’.7 The reason is that content-restrictive laws are thought to necessarily impose a more significant burden on the implied freedom. The upshot is that there must be a ‘compelling justification’8 or ‘overriding public purpose’9 for the

State to regulate content but a law that only targets the mode of a communication need not meet such an exacting standard.10 The two-tier approach recently found favour with Heydon J in Coleman11 and Gleeson CJ in Mulholland.12 Some judges have in addition, or maybe as an adjunct, to the two-tier approach considered

‘whether less drastic measures are available.’13 In this way the two-tier approach

6 Brennan J first endorsed this approach in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 159 (‘Australian Capital Television’) and then again in Levy (1997) 189 CLR 579, 598. This approach was endorsed by the Full Court of the Federal Court in Mulholland v Australian Electoral Commission (2003) 198 ALR 278, 289 (Black CJ, Weinberg and Selway JJ). More recently, McHugh J said ‘the reasonably appropriate and adapted test gives legislatures within the federation a margin of choice as to how a legitimate end may be achieved’: Coleman v Power (2004) 220 CLR 1, 52-53 (‘Coleman’). On the other hand, Kirby J found the concepts of ‘margin of appreciation’ and ‘deference’ unhelpful in Mulholland v Australian Electoral Commission (2004) 220 CLR 181, 263 (‘Mulholland’). This appeared to reflect a view that such notions may ‘distract courts from their duty to uphold the law.’ 7 See Adrienne Stone, ‘Lange, Levy and the Direction of the Freedom of Political Communication Under the Australian Constitution’ (1998) 21 University of New South Wales Law Journal 117, 131–4. 8 Levy (1997) 189 CLR 579, 647 (Kirby J). 9 Ibid 619 (Gaudron J). 10 Wojciech Sadurski also advocates a strict scrutiny test for the review of racial vilification laws primarily ‘due to the proximity of [racist] speech to a public debate on political issues’: Wojciech Sadurski, ‘Offending with Impunity: Racial Vilification and Freedom of Speech’ (1992) 14 Sydney Law Review 163, 193. 11 (2004) 220 CLR 1, 123. 12 (2004) 220 CLR 181, 200. 13 Kruger v Commonwealth (1997) 190 CLR 1, 128 (Gaudron J)(‘Kruger’). A similar approach is apparent in two judgments in Levy (1997) 189 CLR 579, 614–5 (Toohey and Gummow JJ), 619 (Gaudron J). But see Levy (1997) 189 CLR 579, 598 where Brennan CJ explicitly rejects the notion that ‘overbreadth’ has any place in Australian constitutional law. It is worth mentioning here that in the more recent case of Roberts v Bass (2002) 212 CLR 1 both Gaudron J and Kirby J applied the Lange test to assess whether the common law defence of qualified privilege was compatible with the implied freedom without employing the two-tier approach which they advocated in the earlier post-Lange decisions noted above. It was unclear whether this represented a complete retreat from this approach by both judges or that they considered it inappropriate when measuring the common law (as opposed to statute law) against the constitutional freedom. See 26–30 (Gaudron, McHugh and Gummow JJ), 58– 63 (Kirby J). But in my view a bifurcated review approach is unsustainable as both statute and common law have the capacity to regulate the content and/or mode of a political communication. It is, however, worth noting that in Mulholland, Kirby J appeared to abandon the two-tier approach in favour of an

seems to embody (at least to some extent) the American constitutional law notion of

‘strict scrutiny’14 that originated from the famous footnote four in United States v

Carolene Products.15 It holds that laws containing content-based restrictions will only be found constitutional if ‘necessary to serve a compelling state interest and … narrowly drawn to achieve that end’.16

Moreover, there are cogent reasons for favouring a two-tier/strict-scrutiny approach in

the application of the implied freedom. Adrienne Stone has noted that this rule-based

approach ‘brings with it more defined standards of review.’17 The virtue of which is

that in the application of the test ‘the judge’s discretion is reduced. [For] [t]he rule

requires that in certain circumstances free political communication is to be accorded a

special weight.’18 In doing so, it advances a number of important rule of law values. It

promotes ‘judicial decision-making based on reasons generalisable beyond the

particular case.’19 This increases the law’s clarity and certainty which in turn provides

accessible and concrete ‘guidance to lower courts, legislators, litigants and others who

may seek to rely on, or apply, [it].’20 But maybe the greatest strength in this approach

is that ‘rules are regarded as providing more protection for the freedom of speech,

approach that echoes the theory of judicial review propounded by John Hart Ely in Democracy and Distrust (1980): (2004) 220 CLR 181, 264-265. On this point, see below text accompanying n 26–8. 14 On strict scrutiny in relation to the regulation of speech in American constitutional jurisprudence see Lawrence Tribe, American Constitutional Law (2nd ed, 1988) 789–804; see also Sadurski, above n 10, 178–9 for a discussion of strict scrutiny in the context of Australian racial vilification laws. 15 304 US 144, 152 fn 4 (1938). It suggests that legislation restricting ‘those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny’. 16 Perry Education Association v Perry Local Educators Association, 460 US 37, 45 (1983)(‘Perry’). 17 Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review nad the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668, 688. 18 Ibid 686. 19 Ibid 691. 20 Ibid.

particularly in times of intolerance.’21 As Stone notes, this important insight stems from ‘the historical context of the First Amendment.’22

American scholars, mindful that the First Amendment provided little

protection from the intolerance of the McCarthy years, have argued that First

Amendment doctrine ought to be constructed with such intolerant periods in

mind. Rules ought to be formed now so that they might better withstand the

pressure of intolerant times.23

However, there are in my view important differences between the implied freedom

and the First Amendment that make these arguments for the two-tier/strict scrutiny

approach less persuasive in the Australian context. First, there are an immense range

of cases and speech issues that fall within and require resolution under the First

Amendment.24 A rule-based approach best equips judges to understand, articulate and

develop a coherent First Amendment doctrine from this speech labyrinth. The scope

of the implied freedom is extremely narrow by comparison. Consequently, there is not

the same practical necessity for a rule-based approach in the application of a limited

implied guarantee of political freedom. Second, as noted in Chapter One, the distrust

of government that lies at the core of First Amendment theory is not prominent in the

history and logic of the Australian Constitution. The imperative to construct rules to

constrain judges and check State infringement of speech in times of national

intolerance is not, then, as paramount in a constitutional tradition rooted in

parliamentary government and its ability to deliver efficient, democratic and just

21 Ibid 696. 22 Ibid 695. 23 Ibid. 24 See Ibid 688 where the author notes that ‘First Amendment law is now characterised by a myriad of complex and often overlapping categories [of speech] to which particular standards of review apply.’ Some of those categories include defamation of public figures, obscenity, pornography, invasion of privacy and commercial speech.

governance. These points, however, only suggest that the two-tier/strict scrutiny

approach is not necessarily suited to Australian constitutional conditions. I will now

outline a positive case for why a single standard of review is more appropriate in the

context of the implied freedom. But before doing so I want to acknowledge the force

of the rule of law points outlined above regarding the two-tier/strict approach and flag

that I will engage with them more fully when I outline my preferred test for the implied freedom below.25

The argument that assessing a law’s restrictive impact on (political) communication

ought not to proceed by drawing a rigid distinction between laws that regulate content

rather than mode (the two-tier approach) is not original. In the First Amendment

context, John Hart Ely provides the following example to illustrate the point:

[T]he regulation of certain forms of communication for reasons other than

their content may discriminate de facto (or even intentionally, though in a way

that may not be provable) against certain clusters of messages. Sound-trucks,

for example, are more frequently resorted to by those whose access to more

expensive and less annoying media is limited. That surely is something that

belongs in the calculation: a more serious threat should be required when

there is doubt that the speaker has other effective means of reaching the same

audience.26

Similarly, in Canada, a contextual rather than rigid categorical approach is favoured

in the application of their constitutional guarantee of freedom of expression. What is

critical when considering the restrictive impact of a law is ‘the importance of the

25 See below Part II(C)2 – ‘The Test for Proportionality’. 26 Ely, above n 13, 111 (footnotes omitted and emphasis added).

freedom of expression interest at stake on the facts of the case.’27 In Australia, Jeremy

Kirk has also forcefully made the argument that a two-tier approach should not be

used in the application of the implied freedom:

The utility or accuracy of the suggested two-tier approach is limited. If a law

on the means or mode (rather than the content) of communication restricted

the freedom significantly then such a law would and should be required to

have a weighty justification. A law rationing the number of television or radio

licences is clearly the sort of law envisaged as falling into the more easily

justified category. Yet it is doubtful that a law restricting the number of

newspapers would be viewed with the same equanimity. The difference

between these cases is not the nature of the law but the presence of a sufficient

justifying purpose. The restrictive effect on the freedom and the weight of the

justifying ends are what is important, not the form of the law.28

Kirk’s argument provides a strong normative justification for rejecting an approach

where the level of judicial scrutiny undertaken is determined by a preliminary

assessment as to whether law regulates the content or mode of a political

communication. It may well be the case that a greater political communication interest

is usually at stake with laws that target the content rather than the mode of a

communication. In any event, the key point for the purpose of my argument is that -

as Ely, the Canadian Supreme Court and Kirk have shown – the two-tier approach can

27 R v Keegstra [1990] 3 SCR 697, 761 (Dickson CJ) (emphasis added)(‘Keegstra’) endorsing the contextual approach outlined by McLachlin J in the case of Rocket v Royal College of Dental Surgeons of Ontario [1990] 2 SCR 232. But for a criticism of this contextual approach see Jamie Cameron, ‘The Past, Present, and Future of Expressive Freedom under the Charter’ (1997) 35 Osgoode Hall Law Journal 1. 28 Jeremy Kirk, ‘Constitutional Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1, 17 (footnotes omitted and emphasis added). But for an argument in favour of a more rule-based approach to the application of the implied freedom ‘of which strict scrutiny is one example’ see Adrienne Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, above n 17, 702–8.

become an inflexible and sometimes misleading threshold question with the

consequence that the ‘freedom of expression interest at stake’29 might be missed, undervalued or, in the worst case, even avoided. If so, it then becomes impossible to

properly apply the Lange test. For this requires a court to answer whether,

notwithstanding its burden on the implied freedom, the law is reasonably and

appropriately adapted to secure an end consistent with our system of constitutional

government.

It is, therefore, my argument that a single test should be employed with the isolation

and evaluation of the ‘freedom of expression at stake’ the critical first step required in

the review analysis. This evaluation might include, amongst other things, whether the

restriction curtails the ability of a person or group from ‘participation in the political

process’30 (Ely’s sound-truck example), the importance of the communication in the particular political climate (an address, for example, regarding immigration policy in the wake of the so-called ‘war on terror’) and the amount and source of the expression restricted (the political advertising law invalidated in Australian Capital Television31).

Once this is done, it enables a judge to more confidently assess whether a law has ‘a sufficient justifying purpose’32 to constitutionally warrant the (political)

communication infringement.

This is not to deny that the level of judicial scrutiny will depend on the nature and

operation of a law. But the relevant level of scrutiny employed ought not be

determined by a preliminary assessment as to whether the law regulates the content

(more) or mode (less) of a political communication. For, as noted, that kind of

29 Keegstra [1990] 3 SCR 697, 761 (Dickson CJ). 30 Keegstra [1990] 3 SCR 697, 761 (Dickson CJ). 31 (1992) 177 CLR 106. 32 Kirk, above n 28, 17.

threshold judgment may result in the actual freedom of expression interest at stake

being missed, undervalued or avoided. In the context of my argument, more rigorous

judicial scrutiny is appropriate when the effect or practical operation of the impugned law is to significantly infringe communication on political or government matters. It

is then incumbent on the State to convince the court that the law has a ‘compelling

justification’ and that it provides benefits that outweigh its restrictive effect on

‘political communication’.33 Consequently, it may well be that Tony Blackshield is

correct that in the application of the implied freedom, the distinction made by some

judges between laws that regulate content as opposed to the mode of a political

communication is not significant. For those judges in practice use ‘substantially the

same test’ as those who advocate a single test for constitutionality.34

It is also worth noting here that Kirby J, an earlier proponent of the two-tier approach,

appeared to abandon it in Mulholland.35 Instead, he advocated a more general

approach to judicial review suggesting that ‘in certain circumstances, courts have a

heightened vigilance towards the potential abuse of the lawmaking power inimical to

the rule of law’:

Such vigilance may be specially needed when the power is directed against

unpopular minorities. In those cases, or in circumstances where current

33 On this point, see below Part II(C)(2) and Part III(C)(2). 34 ‘The Implied Freedom of Communication’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law (1994) 253–4. But see Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ above n 17, 685–6 where the author argues that with the two-tiered approach ‘the scales [are] already weighted in favour of the freedom of political communication … [which] … reduce[s] the flexibility accorded by the proportionality test.’ 35 (2004) 220 CLR 181, 263-264.

lawmakers pursue their own partisan advantage, courts may subject the

legislative vehicles of such advantage to close attention.36

In this approach, there are close parallels with the theory of judicial review propounded by Ely. He said the courts should act as a referee for representative democracy, intervening only when the ‘ins are choking off the channels of political change to ensure they will stay in and the outs will stay out’ or ‘an effective majority are systematically disadvantaging some minority out of simple hostility or a prejudiced refusal to recognise commonalities of interest.’37 For Kirby J, the Lange

test now embodies a single constitutional principle whose application is to be

informed by the theory of judicial review just outlined, not the preliminary assessment

at the heart of the two-tier approach.

B THE ROLE OF PROPORTIONALITY

It should first be noted that the language of the Lange test is somewhat misleading

regarding the level of judicial scrutiny it entails.

Despite the High Court’s use of the formulation ‘reasonably appropriate and

adapted to’, it is clear that in the context of the freedom of communication, the

Court does not use it to mean the minimal kind of review seen in other

contexts … [T]he High Court has been quite explicit that, in this context, the

formulation is synonymous with proportionality.38

36 Ibid 264. 37 Ely, above n 13, 103. 38 Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, above n 17, 678 citing Lange (1997) 189 CLR 520, 567 where the Court said that ‘[i]n this context, there is little difference between the test of “reasonably appropriate and adapted” and the test of proportionality.’

This point was explicitly acknowledged by Kirby J in both Coleman39 and

Mulholland,40 though he personally favours the use of proportionality for representing

a more accurate and useful description of and explanation for the characterisation

process involved in the application of the implied freedom. And in Mulholland,

Gleeson CJ said he had no objection to the use of either the reasonably appropriate

and adapted test or one of proportionality.41 It was, however, ‘important to remember,

and allow for the fact, that [proportionality] has been developed and applied in a

significantly different constitutional context.42 Further, the slight re-wording of the

second limb of the Lange test in Coleman by McHugh J to make ‘clear that the Court

did intend [it] to be read in a way that requires that both the end and the manner of its

achievement be compatible with the system of representative and responsible

government’43 and the Court’s rejection in the same case of the submission made by

the Attorneys-General of the Commonwealth and New South Wales that the test

‘should be weakened by requiring only that the law in question be “reasonably

capable of being seen as appropriate and adapted”’44 acknowledged that a more

rigorous, proportionality-style review was appropriate and in fact undertaken by the

Court.45

39 (2004) 220 CLR 1, 90-91. 40 (2004) 220 CLR 181, 267. 41 Ibid 200. 42 Ibid (Gleeson CJ). 43 (2004) 220 CLR 1, 50. That part of the test would now read: ‘is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?’ This rewording was endorsed by Gummow and Hayne JJ at 78 and Kirby J at 82. 44 Ibid 78 (Gummow and Hayne JJ), 48 (McHugh J), 82 (Kirby J). 45 It is worth noting here that McHugh J in Coleman made it clear that by inserting the phrase ‘in a manner’ into the second limb of the Lange test the Court requires that both the end and the means of an impugned law be compatible with constitutional government. However, in the same judgment at 49 he denies that this part of the Lange test involves the weighing or balancing of interests which is the essence of one component of the test for proportionality. If in fact McHugh J would reject the view that he applies something close to a proportionality test, then it is reasonable to ask how he would assess and apply the ‘in a manner’ part of the Lange test?

In any event, proportionality is generally understood to have three levels of inquiry

involving graduating degrees of judicial scrutiny.46 First, whether a law is ‘suitable’

in the sense of being ‘an effective, appropriate or rational means of achieving the

claimed end.’47 Second, whether a law is ‘necessary’, ‘in the sense that there are no

alternative means available to achieve the same end which are less restrictive of the

protected interest.’48 Third, whether the legitimate end of a law outweighs the

restriction it imposes.49 For a law to be proportional it must satisfy each of these

levels of inquiry. It is clear, as noted, that the High Court’s implied freedom

jurisprudence has involved the different proportionality levels both before and after

Lange.50 In particular, the strict scrutiny-style analysis and balancing process involved in second (necessity) and third level (balancing) proportionality respectively have been present in the reasoning of those judges that have employed the two-tier approach. For example, in Australian Capital Television, Mason CJ said that a

‘compelling justification’ must exist for a law that targets the content of a ‘political communication’ and it ‘must be no more than is reasonably necessary to achieve the protection of the competing public interest’.51

Similarly, in Levy,52 Gaudron J said that ‘[i]f the direct purpose of the law is to

restrict political communication, it is valid only if necessary for the attainment of

some overriding public purpose.’53 In addition, first level proportionality (suitability)

is contemplated by that part of the Lange test that asks whether a law that burdens the

46 See Kirk, above n 28, 2–5. 47 Ibid 6. 48 Ibid 7. 49 Ibid 8–9 where Kirk outlines the ‘balancing’ process involved in third level proportionality. 50 See Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, above n 17, 681–4 and Kirk, above n 28, 16–19. 51 (1992) 177 CLR 106, 143; see also 235 (McHugh J). 52 (1997) 189 CLR 579. 53 Ibid 619; see also 614–5 (Toohey and Gummow JJ) and Kruger v Commonwealth (1997) 190 CLR 1, 128 (Gaudron J).

implied freedom ‘serve[s] a legitimate end the fulfilment of which is compatible with

the maintenance of the constitutionally prescribed system of representative and

responsible government’.54

However, whilst the test of proportionality ‘provides an efficient framework for

judging restrictions and specifying objections,’55 the ‘test itself does not give any

guidance as to, and consequently does not place any restriction on, how judges assign

weight to the competing interests.’56 It means that ‘[f]or each level of proportionality

it is possible to assess the requirements rigorously or deferentially’.57 This choice,

which a court inevitably must make when it undertakes this review analysis, requires reference to a theory or view as to the purpose of the implied freedom. This is the crux of the criticism made by Adrienne Stone regarding the High Court’s anti- theoretical approach to the implied freedom. That is, relying exclusively on the text and structure of the Constitution in order to ascertain the scope of the implied freedom cannot sufficiently guide a judge as to how the Lange test ought to be applied in any given scenario.58 In Coleman, McHugh J acknowledged the force of Stone’s

criticism but said it was ill-founded:

In determining whether a law is invalid because it is inconsistent with freedom

of political communication, it is not a question of giving special weight in

particular circumstances to that freedom … Freedom of communication

always trumps federal, State and Territorial powers when they conflict with

54 Lange (1997) 189 CLR 520, 567. 55 Kirk, above n 28, 63. 56 Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, above n 17, 686. 57 Kirk, above n 28, 5. 58 For her important argument that the development of such a theory requires considerations external to the text and structure of the Constitution and is for this reason incompatible with the interpretive methodology outlined in Lange, see Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, above n 17, 696–9.

the freedom. The question is not one of weight or balance but whether the

federal, State or Territorial power is so framed that it impairs or tends to

impair the effective operation of the constitutional system of representative

and responsible government by impermissibly burdening communications on

political or governmental matters.59

But in my view, this riposte simply restates the relevant constitutional principle. It

says nothing more as to how the court ought to measure or assess that impairment.60

On the other hand and more promisingly, there were passages in the judgments of

Gleeson CJ in Coleman and Mulholland and Kirby J in the latter which may suggest the nascent stages of a theory of the implied freedom for each judge. In Kirby J’s case, a theory of judicial review more generally was suggested, as earlier noted. In

Coleman, for example, Gleeson CJ proposed a standard of judicial review that he said was ‘consistent with the respective roles of the legislature and the judiciary in a representative democracy.’61 His Honour then expanded on this theme in Mulholland

by outlining in some detail the constitutional context in which the implied freedom

arises and is to be applied. In the main, he emphasised the central role of Parliament

in our constitutional system and whilst ‘[c]oncepts such as representative democracy

and responsible government no doubt have an irreducible minimum content’,62 he

noted ‘how little of the detail of that system is to be found in the Constitution, and

how much is left to be filled in by Parliament.’63 This, for example, ‘gives Parliament

a wide range of choice’ in the form and regulation of the electoral process.64 For

59 (2004) 220 CLR 1, 49 (McHugh J). 60 For Stone’s reply to these comments made by McHugh J in Coleman see Adrienne Stone, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 University of New South Wales Law Journal 842. 61 Ibid 192. 62 (2004) 220 CLR 181, 189. 63 Ibid 188. 64 Ibid 195.

Gleeson CJ, this constitutional context explains why judicial review of legislative action against the implied freedom ‘does not involve the substitution of the opinions of judges for those of legislators upon contestable issues of policy.’65

In the absence of some kind of theory, the application of the implied freedom (and the second limb of the Lange test, in particular) becomes ‘a ritual incantation, devoid of clear meaning.’66 Indeed, it may be true that even if a theoretical position is not explicitly articulated or consciously avoided, it cannot be forestalled.67 For how a judge in fact applies the test for constitutionality must say something as to their view regarding the reason for or purpose of the implied freedom.68 In this way, employing the two-tier approach might evidence a commitment to constitutionally protect a wide range of political communication irrespective of its content in order to further the important speech/expression values of truth69 in political discourse and more informed democracy and self-government.70 For example, the two-tier approach employed by Mason CJ in Australian Capital Television was grounded in the values

65 Ibid 197. See also Coleman (2004) 220 CLR 1, 31 (Gleeson CJ). 66 Coleman (2004) 220 CLR 1, 90 (Kirby J). See also 110 where Callinan J said he considered the second limb of the Lange test to be ‘somewhat inscrutable’ and that ‘an appreciation of what is reasonably appropriate and adapted to achieving a legitimate end may be very much a matter of opinion.’ However, unlike Kirby J, he favours a more relaxed test, though continuing to express strong reservations as to the place of the implied freedom in Australian constitutional law. 67 See Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, above n 17, 696 where Stone suggests that the High Court in Lange deliberately avoided articulating a theoretical basis for the implied freedom though points out (fn 166) that strict adherence to the constitutional text and structure is itself a ‘philosophical commitment’. 68 There is, however, an argument that a judge ought to expressly articulate the why and let that inform the how. It would still allow the incremental development of the implied freedom but in a manner that is more likely to be coherent and principled. But see Adrienne Stone, ‘Freedom of Political Communication, the Constitution and the Common Law’ (1998) 26 Federal Law Review 219, 235, 238. 69 The argument from truth is generally associated with the political theory of John Stuart Mill, On Liberty (People’s ed, 1913). It entered American constitutional jurisprudence through the famous dissent of Justice Holmes in Abrams v United States, 250 US 616, 630 (1919) (joined by Brandeis J dissenting): ‘[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.’ 70 The argument from self-government originates from the work of Alexander Meikeljohn, Political Freedom: The Constitutional Powers of the People (1965) and ‘The First Amendment is an Absolute’ (1961) Supreme Court Review 245.

of self-government and a modified argument from truth.71 The latter evinced an express distrust of the government regulating political communication, a close approximation of the argument made by Frederick Schauer that doubts the ability of government to decide what speech ‘is true and what is false’.72

In the next part of the Chapter I will briefly re-count the argument developed in

Chapter One as to what I consider to be the primary rationale of the implied

freedom.73 For this theoretical position, in turn, suggests how the Lange test ought to

be applied and I propose a review model to that end.

C THE PROPOSED REVIEW MODEL

1 The Rationale of the Implied Freedom

I argued in Chapter One that the rationale of the implied freedom is a minimalist

model of judicially protected popular sovereignty. To recall, this conception

acknowledges that the conditions for sovereignty of the people are ultimately

determined and enforced by the judiciary for it is they who define and apply the implied freedom. But when discharging this role the courts must keep firmly in mind that the purpose of the implied freedom is to secure the effective functioning of our constitutional system of representative and responsible government. That is, to guarantee the democratic framework through which ‘the people’s representatives in

71 (1992) 177 CLR 106, 138–9, 145. 72 Frederick Schauer, Free Speech: A Philosophical Inquiry (1982) 33. In relation to racial vilification laws, Sadurski considers that ‘a suspicion that politicians and legislators will overstate the degree of harm produced by a given activity’ is at the heart of why strict judicial scrutiny is appropriate: see above n 10, 178. 73 See Chapter One: Part II(C).

Parliament … [can] implement the wishes of the people as they see them’74 subject to the Constitution.75

I offered three reasons to support my argument. First, it fits best with the history and logic of the Australian Constitution. This is underpinned by a trust and faith in the ability of parliamentary government and the common law to secure the liberty of the individual and the collective welfare of the citizenry.76 Second, the tradition of freedom of communication protection in Australia underlines why the classic trio of free speech/expression rationales – the search for truth, the promotion of individual autonomy and the Meikeljohn argument from democracy or self-government – are not the primary rationales of the implied freedom and why a minimalist model of judicially protected popular sovereignty does. This tradition is founded on a

Constitution that provides only for the residual protection of individual liberties, its primary concern being the effective functioning of parliamentary government to secure the sovereignty of the people and provide the conditions for its meaningful exercise. The classic trio of rationales are located within a range of common law and statutory rules and operate to protect and enhance freedom of communication in these

74 George Williams, Human Rights Under the Australian Constitution (1999) 230. 75 It is worth noting here that Jeremy Waldron has developed a strong theoretical basis for the protection of rights through the ordinary democratic/legislative process. He argues ‘that our respect for such democratic rights is called seriously into question when proposals are made to shift decisions about the conception and revision of basic rights from the legislature to the courtroom, from the people and their admittedly imperfect representative institutions to a handful of men and women, supposedly of wisdom, learning, virtue and high principle’. ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 20. My argument regarding the rationale of the implied freedom outlined in this part of the article similarly emphasises the centrality of the democratic process to the realisation of this particular constitutional right. But on my conception the judiciary still plays an important (though more supervisory) role in guaranteeing the democratic framework necessary to secure the sovereignty of the people and provide the conditions for its meaningful exercise. On the other hand, Waldron’s theory of constitutional rights highlights ‘the difficulty, complexity, and controversy attending the idea of rights’ (19) and the ongoing and inevitable disagreement amongst the citizenry as to their basic content. In these circumstances, he rejects the wisdom, democratic legitimacy and therefore moral authority of the courts to perform this constitutional role. 76 On this point see John La Nauze, The Making of the Australian Constitution (1972) 227–32; Sir Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 78; Sir Owen Dixon, Jesting Pilate (2nd ed, 1997) 101–2; Sir Robert Menzies, Central Power in the Australian Commonwealth (1967) 54; Helen Irving, To Constitute a Nation (1997) 162–70; Mulholland (2004) 220 CLR 181, 188-191 (Gleeson CJ); Chapter One: Part II(C)(1).

varied, sub-constitutional contexts.77 And third, it recognises the limited institutional

capacity of the judiciary to determine what is necessary for the effective operation of

our system of constitutional government. In addition, there may be legitimate

separation of powers concerns if the judiciary ignores the political nature of this task

and second-guesses the judgment of Parliament on questions that they are no better

equipped to answer.78

In sum, a minimalist model of judicially protected popular sovereignty translates to a

more limited, supervisory role for the judiciary in the interpretation and application of

the implied freedom without, of course, leaving the issue of a law’s validity to be

determined by the Parliament or executive. Kirk makes the further point that the

implied nature of the freedom raises ‘arguments of democratic legitimacy’.79 He

concludes that in relation to the implied freedom, ‘[t]he appropriate response is

caution’80 and the level of deference to the Parliament ought to be more than for

express constitutional guarantees but less than when employed for the purposes of

characterisation.81 That seems about right.82 It now falls to consider in more detail the

degree of deference that ought to be applied at the different proportionality levels

when assessing the compatibility of laws with the implied freedom.

But first, it is worth remembering that the test of proportionality need only be

considered if a law effectively burdens political communication. A number of

77 See Chapter One: Part II(C)(2). 78 On this point, see Chapter One Part II(C)(3). 79 Kirk, above n 28, 61. See also 55 and 61–3 where Kirk also notes the relevance of the limited institutional capacity of courts to determine issues of this nature to the level of judicial deference to the Parliament in the application of the implied freedom. 80 Ibid 56. 81 Ibid 62–3. 82 There is considerable strength in the Kirk view that ‘[t]he court generally should be more deferential in the characterisation context than for constitutional guarantees, although an intermediate category of deference may be justified for implied guarantees’ ibid 63. As he notes, in the context of the implied freedom, its implied nature raises a democratic concern that does not exist for the characterisation of express legislative powers, so the complex social and political science evidence and issues that inevitably arise support an intermediate category of deference.

scholars have highlighted the analytical challenge that the infringement question

poses for a court and made criticisms of the High Court’s sometimes dogmatic

treatment of this question in their implied freedom jurisprudence.83 There was also a

further, more significant development on this point in the judgments of McHugh,

Gummow and Hayne, Callinan and Heydon JJ in Mulholland. The central issue in that

case was whether a law offended the implied freedom for denying a political party the

right to have their name appear on the ballot paper for failing to satisfy two of the

registration requirements under the relevant legislation. The first was the ‘500 rule’

which said that a party must have 500 members to be entitled to registration unless

they have at least one member in Parliament. The second was the ‘no overlap rule’

that ‘prohibit[ed] two or more parties from relying on the same person as a member in

calculating the number of members.’84 These judges held that the law did not burden freedom of political communication ‘[b]ecause the [party] ha[d] no right to make communications on political matters by means of the ballot-paper other than what the

Act gives’.85 This finding was grounded in the following proposition:

[The implied freedom] gives immunity from the operation of laws that inhibit

a right or privilege to communicate political and governmental matters. But, as

Lange shows, that right or privilege must exist under the general law.86

83 See, eg, Tom Campbell, ‘Democracy, Human Rights and Positive Law’ (1994) 16 Sydney Law Review 195, 201–4; Gerald Rosenberg and John Williams, ‘Do Not Go Gently into that Good Right: The First Amendment in the High Court of Australia’ (1997) Supreme Court Review 439, 458–64; Deborah Cass, ‘Through the Looking Glass: The High Court and the Right to Speech’ in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication (1994) 184–91. The failure to properly address the infringement question has also been a feature of those lower court decisions where racial vilification laws have been challenged, as my analysis below will demonstrate: see Part III(A). 84 Mulholland (2004) 220 CLR 181, 186 (Gleeson CJ). 85 Ibid 223 (McHugh J), 247-249 (Gummow and Hayne JJ), 297-298 (Callinan J), 303-304 (Heydon J). 86 Ibid 223 (McHugh J) citing a passage in his judgment in Levy (1997) 189 CLR 579, 622. This passage was endorsed at 246 (Gummow and Hayne JJ) and 303 (Heydon J).

That is, as a threshold requirement, there must be a pre-existing right of

communication under the common law or statute before an issue as to the implied

freedom can logically arise.87 This was said to be the consequence of the negative

nature of implied freedom – it operates to limit legislative and executive power, it

does not create or confer personal rights upon individuals.88 But in my view this

reasoning may operate to distort its proper application in some instances. For

example, as these judges have noted, the bedrock concern of the implied freedom is to

protect freedom of communication to the extent ‘necessary for the effective operation

of that system of representative and responsible government provided for by the

Constitution’.89 That is the essence of the implied freedom and represents the primary duty of the court in its interpretation and application. It ‘has an institutional rather than individual foundation in that it is designed to facilitate the operation of representative government and not, except incidentally, to promote the general welfare of the individual.’90 So it is correct to emphasise the negative nature of the

freedom and deny it as a source of individual rights. Lange makes clear that the court must consider whether a law burdens freedom of political communication in its terms, operation or effect.91 Therefore, if the effect of a law is to burden a species of

communication considered necessary for the effective operation of constitutional

government then the implied freedom is prima facie infringed and legislative or

executive power is limited to that extent.92 Such a limitation may result in an

individual obtaining some kind of benefit or privilege. This benefit or privilege is not

87 For a detailed critique of this reasoning see Elisa Arcioni, ‘Developments in Free Speech Law: Coleman and Mulholland’ (2005) 33 Federal Law Review 333. 88 Ibid. 89 See Coleman (2004) 220 CLR 1, 49 (McHugh J), 77 (Gummow and Hayne JJ), 110 (Callinan J), 121 (Heydon J) citing Lange (1997) 189 CLR 520, 561. 90 Williams, above n 74, 168. 91 (1997) 189 CLR 520, 567. 92 A law of this kind can, of course, still pass constitutional muster if it meets the second limb of the Lange test.

sourced directly to or housed within the implied freedom but flows incidentally from the limitation upon legislative or executive power necessary to secure constitutional government in that instance.93

The proposition derived by Callinan and Heydon JJ in Mulholland from the

concession made by the appellant ‘that a legislative prohibition on the appearance of

any party affiliation on the ballot paper would not contravene the implied freedom’94

highlights, in my view, the problematic nature of this reasoning:

It follows that to legislate for a mixture of permissions and prohibitions, so as

to permit the party affiliations of some candidates but not others to appear on

the ballot paper, cannot interfere with the implied freedom.95

It is probably true that a blanket prohibition would not offend the implied freedom.

Whilst it may deprive many voters of useful information, it cannot be said that the

effective operation of constitutional government is precluded as every citizen must then rely upon or seek alternative sources of information to inform their votes.

However, on Callinan and Heydon JJ’s reasoning, a law, for example, that prohibits party names on a ballot paper with the exception of the ALP and the Liberal Party could not, by definition, burden the implied freedom.96 But if Gleeson CJ and

93 There is a parallel here with the argument made by Adrienne Stone that the High Court was incorrect in Lange to hold that, due to the negative nature of the implied freedom, it did not apply to the common law, except indirectly. She argues, persuasively in my view, that the direct application of the Constitution to the common law is perfectly consistent with the negative nature of the implied freedom: Adrienne Stone, ‘Rights, Personal Rights and Freedoms’ (2001) 25 Melbourne University Law Review 374, 400–17. 94 (2004) 220 CLR 181, 303 (Heydon J), 298 (Callinan J). 95 Ibid 303-304 (Heydon J). 96 Indeed, Heydon J does not even consider what appears on a ballot paper to be political communication, only a communication ‘between the executive government and the electors’: ibid 304. No other judge in Mulholland came to this conclusion. On the contrary, Gleeson CJ, correctly in my view, said that ‘[i]t is a communication about a matter that is central to the competitive process involved in an election’: ibid 196. Kirby J agreed: ibid 269. McHugh J considered it political communication but only in the limited sense of the ballot paper being a record of a voter’s electoral preference: ibid 223.

Gummow and Hayne JJ were correct in considering this information important for

many voters based on actual voting practice97 and a significant advantage to those

parties on the ballot paper98 (and I think that they are), then there is an argument that

a law of this nature – that discriminates heavily in favour of the two major parties –

distorts the reality of political communication to an extent that may imperil the

effective operation of constitutional government. If so, then the implied freedom

ought to be applied and failure to do so, because an individual in that instance may

incidentally derive a legal benefit or privilege, is to ignore the operation and effect of

the law on actual political communication. I say may because the Constitution would

not in this instance compel the Parliament to provide all political parties with a

statutory right to have their names appear on the ballot paper. For as noted, a law with

a blanket prohibition, though not ideal for voters, would not on that count offend the

implied freedom.

In any event, it is not inconsistent with the negative nature of the freedom for an

individual to benefit incidentally from its application, as explained above. Indeed in

some cases, its proper application will require it. That is not to assert that the implied

freedom is a font of free-standing individual rights. It simply recognises that in

protecting the freedom of communication necessary for the effective operation of

constitutional government, there may be situations where an individual will obtain

incidentally a legal benefit or privilege. This, in my view, honours rather undermines

the essence of the implied freedom.99

2 The Test for Proportionality

97 Ibid 195 (Gleeson CJ), 231 (Gummow and Hayne JJ). 98 Ibid 196 (Gleeson CJ), 230 (Gummow and Hayne JJ). 99 See ibid 276 where Kirby J, for this reason, rejects the analysis of McHugh, Gummow, Hayne, Callinan and Heydon JJ on this point.

I will now outline my review model. In doing so, I am not suggesting that the current

High Court has endorsed or will endorse this model. However, central aspects of it received support in some of the recent judgments in Coleman and Mulholland as will be detailed below. This model is informed by my rationale for the implied freedom and embodied within the proportionality framework.

But before doing so I want to return to the important point made by Stone regarding the rule of law values promoted by the rule-based two-tier approach. As noted, the test of proportionality – and the balancing process it entails - may provide an efficient framework for the application of the implied freedom but it says nothing as to how – rigorously or deferentially - the proportionality levels ought to be assessed. This goes to the heart of the rule of law concerns with using a balancing rather than rule-based test in the context of the implied freedom. It risks the implied freedom being applied on case by case basis through an ad-hoc and unprincipled process of judicial intuition.

The law of the implied freedom then becomes unpredictable if not unknowable. In any event, as Stone rightly notes, ‘the proportionality test requires a balancing of interests and to do this the Court must make some judgments as to the values that the freedom of political communication serves.’100 It is my argument that these important rule of law concerns would be significantly – though not completely – met if the

Court were to renounce its hitherto anti-theoretical approach to the implied freedom.

That is, the kind of rule of law values that Stone correctly identifies with the two-tier approach might also be promoted if the Court articulated its rationale(s) for the implied freedom to inform and guide the application of a single (proportionality- based) test of constitutionality. I am not suggesting that this would reduce judicial

100 Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’, above n 17, 703.

discretion to the same extent as the two-tier approach but it would certainly increase

the clarity, consistency and predictability of the law of the implied freedom. Indeed,

one of my primary aims in Chapter One in developing a theoretical justification for

the implied freedom was to further these rule of law values in relation to the

development and application of the implied freedom.

I now turn to consider my review model.

(i) Suitability

The requirement of suitability (first level proportionality) is not difficult to satisfy. A

law is suitable if it is ‘an effective, appropriate or rational means of achieving the

claimed end.’101 As Kirk explains, this question ‘serves as an objective test of purpose

… [It] assesses whether the measure can in fact be characterised as having been made

for that claimed purpose.’102 No assessment, however, is made as to whether the

claimed end is legitimate, simply whether ‘the measure can in fact be characterised as

having been made for that claimed purpose.’103 So the effectiveness of a law at this stage ought not to be an inquiry as to whether it is the ‘most practically desirable or effective way to achieve the end.’104

It is, however, possible to be quite rigorous even with first level proportionality. An example is the judgment of McLachlin J in the Canadian Supreme Court case of

Keegstra105 regarding a Canadian criminal provision that made it an offence

101 Kirk, above n 28, 6 (emphasis added). 102 Ibid. 103 Ibid. 104 Ibid 5. 105 [1990] 3 SCR 697.

punishable by imprisonment for two years to wilfully promote hatred against any

section of the public distinguished by colour, race, religion or ethic origin:106

Where … there is an indication that the measure may in fact detract from the

objectives it is designed to promote, the absence of a rational connection

between the measure and the objective is clear … In my view, s 319(2) of the

Criminal Code falls in this class of case … [I]t is far from clear that it

provides an effective way of curbing hate-mongers.107

This introduces a strict qualitative component into the suitability analysis. Such an

approach is inconsistent with its treatment in Australian constitutional law and is best

considered at the second and third levels where different types of balancing processes

are undertaken.108 Employing a non-qualitative approach at this level in the

proportionality analysis is, moreover, consistent with the rationale of the implied

freedom and the more limited, supervisory judicial role that it entails.

(ii) Necessity

The most significant effect that my rationale of the implied freedom has on the proposed review model occurs at the level of necessity (level two proportionality).

For in relation to the implied freedom, it is at this level where the amount of deference shown to the Parliament is likely to have the greatest impact on the final determination of a law’s validity. In its strictest form, this proportionality level asks

‘whether the legislation impairs the right to the minimum extent possible.’109 Or in

American constitutional law parlance, whether a law is ‘necessary to serve a

106 Criminal Code, RSC 1985, c C–46, ss 319(2), (3). 107 [1990] 3 SCR 697, 852. 108 As Kirk notes, above n 28, 8 ‘in an indirect fashion, necessity may presuppose some weighing of interests.’ 109 Keegstra [1990] 3 SCR 697, 854 (McLachlin J).

compelling state interest and … narrowly drawn to achieve that end’.110 The presence

of these constitutional notions in the High Court’s implied freedom jurisprudence has

been noted.111 It is, however, my argument that the validity of a law should not be

imperilled by the fact that the means least restrictive of the protected communication

interest were not employed. This proposition involves the rejection of the nexus

between more rigorous judicial scrutiny and a strict scrutiny-style analysis that exists

in American constitutional law, amongst some judges on the Canadian Supreme Court

and in the two-tier approach.

In the context of my argument, as earlier noted, more rigorous judicial scrutiny is

appropriate when the effect or practical operation of the impugned law is to

significantly infringe communication on political or government matters. It is then

incumbent on the State to convince the court that the law has a ‘compelling

justification’ and that it provides benefits that outweigh its restrictive effect on

‘political communication’.112 This cost-benefit analysis113 is undertaken mostly at the

third level of the proportionality inquiry.

In any event, level two proportionality ought not to involve a strict scrutiny-style analysis in the context of the implied freedom for two reasons. First, a minimalist

model of judicially protected popular sovereignty recognises the limited institutional

capacity of a court to determine what is necessary for the effective operation of

representative and responsible government under the Australian Constitution. The

strict scrutiny/compelling justification nexus ignores or fails to sufficiently appreciate

this judicial limitation. Whilst an appellate court can require lower courts to build a

110 Perry 460 US 37, 45 (1983). 111 See above Part IIA. 112 See further below Part III(C)(2). 113 This is the phrase used by Kirk to describe the balancing process undertaken at the third proportionality level: Kirk, above n 28, 8.

strong factual record before hearing a case, invite relevant amicus curiae briefs and

utilise experienced court staff such as masters and registrars to assist in its

deliberations, the fact is that analysis of this kind drags courts as institutions and

judges in particular into areas in which they possess no special expertise or insight. As

one American judge succinctly put it, ‘judges are trained in the law. They are not penologists, psychiatrists, public administrators, or educators.’114 Therefore, it is

appropriate, in my view, that courts are more deferential to the judgment of

parliament when faced with social policy issues that they are no better (and maybe

worse) placed to answer. It again underscores why the Sunstein notion of ‘under-

enforcing’ a constitutional right – outlined in Chapter One - is appropriate in the

context of the implied freedom.115

In this regard, I would suggest that there something is amiss when a judge strikes

down a racial vilification law based on little more than intuition, (dubious) logic and

unsupported factual proposition in a system where constitutional rights are not

absolute but may be qualified by reasonable laws that ‘can be demonstrably justified in a free and democratic society’.116 This was the case with the dissenting judgment of McLachlin J in Keegstra. Her claims included that ‘it is far from clear that [a criminal provision] provides an effective way of curbing hate-mongers. Indeed, many have suggested it may promote their cause.’117 The evidence of the ‘many’ was a

newspaper article that suggested that the criminal trial of a person for racist

expression may have given the unrepentant accused ‘a million dollars worth of

114 Frank M Johnson Jr, ‘The Role of the Federal Courts in Institutional Litigation’ (1981) 32 Alabama Law Review 271, 274. 115 See Chapter One: Part II(C)2 – ‘The Limited Institutional Capacity of the Judiciary’. 116 Canadian Charter of Rights and Freedoms, s1, pt I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c–11. 117 Keegstra [1990] 3 SCR 697, 852 (McLachlin J) (emphasis added).

publicity’118 and the status of a martyr. The support for the latter claim was a passage from a Franz Kafka novel.119 The judge further queried the congruence of the purpose

and efficacy of the relevant (criminal) racial vilification law in the following manner:

The argument that criminal provisions for this kind of expression will reduce

racism and foster multiculturalism depends on the [dubious] assumption that

some listeners are gullible enough to believe the expression if exposed to it.120

This is a sweeping psychological and sociological proposition for a judge to make, especially in the absence of any empirical support. The treatise of Canadian lawyer and academic A Alan Borovoy was, moreover, the sole support cited for the two propositions that were critical to McLachlin J’s ultimate finding of invalidity. The first was that ‘[h]istorical evidence … gives reason to be suspicious of the claim that hate propaganda laws contribute to the cause of multiculturalism and equality.’121 The

evidence provided by Borovoy was the existence of racial vilification laws in pre-

Hitler Germany and the fact that ‘this type of legislation proved ineffectual on the one

occasion when there was a real argument for it.’122 On this logic, one ought to do away with the principle of the separation of powers, federalism, freedom of the press and association and even the rule of law (‘Rechtsstaat’), for these constitutional principles and institutional arrangements were also ineffectual when really put to the test during the rise of Nazism in the 1930s.123 The second proposition doubted

‘whether criminalization of expression calculated to promote racial hatred is

necessary’124 based on the conclusion drawn by Borovoy that ‘[h]uman rights

118 Ibid 853 citing an article published in the Globe and Mail (Toronto), March 1, 1985, 1. 119 Ibid citing The Trial (1976) 203. 120 Ibid. 121 Ibid 854. 122 Ibid citing A Alan Borovoy, When Freedoms Collide: The Case for our Civil Liberties (1988) 50. 123 See Michael Stolleis, The Law under the Swastika (1998) 1–22. 124 Keegstra [1990] 3 SCR 697, 861.

legislation, focusing on reparation rather than punishment, has had considerable success in discouraging such conduct.’125 If these represent the best reasons and evidence for substituting the considered opinion of a democratic legislature on a matter of serious public concern with that of an appellate court judge, then the limited institutional capacity of a court to properly determine these sorts of difficult issues is manifest.

Secondly, according to a minimalist model of judicially protected popular sovereignty, the implied freedom exists to guarantee the democratic framework mandated by the Constitution so ‘the people’s representatives in Parliament … [can] implement the wishes of the people as they see them.’126 This is consistent with both the history and logic of the Constitution (which, for better or worse, is one of trust not distrust of government)127 and our tradition of freedom of communication protection, where the Constitution is concerned with the efficacy of parliamentary government to secure the sovereignty of the people and provide the conditions for its meaningful exercise.128 On the other hand, the constitutional protection accorded to the individual

125 Ibid citing Borovoy, above n 122, 221–5. 126 Williams, above n 74, 230. 127 See above Part II(C)(1) and for a more detailed treatment see Chapter One: Part II(C). 128 But see Sadurski, above n 10, where the author, though concerned primarily with the ‘philosophy of free speech’ (165), situates his argument for strict scrutiny within the context of racial vilification laws existing in Australia and in other European and North American jurisdictions. Importantly, he states that so long as a society has a right to free speech, whether constitutional or otherwise, ‘the underlying idea adopted … is that the [strict scrutiny] framework is of universal application’(168). However, this claim of ‘universality’ is problematic. For there are fundamental differences in the nature of the free speech ‘rights’ that exist, for example, in Australia, Canada and the United States. Each right has a unique text, history and position within its constitutional framework. This is central to and suggestive of the kind of judicial review that best fits that constitutional tradition. This point was made recently by Gleeson CJ in Mulholland (2004) 220 CLR 181, 199 where he noted that regarding the test for proportionality in the application of the implied freedom, it is ‘important to remember, and allow for the fact, that [the test] has been developed and applied in a significantly different constitutional context.’ Sopinka J of the Canadian Supreme Court has also noted that Canadian ‘courts have tended to be more deferential to governmental restrictions on freedom of expression. This is due to a number of factors. Canada evolved in a tradition of parliamentary supremacy where legislative decisions are final. Moreover, s 1 of our Charter specifically permits the government to justify infringements’: Justice John Sopinka, ‘Should Speech that Causes Harm be Free’ in Jane Duncan (ed), Between Speech and Silence: Hate Speech, Pornography and the new South Africa (1996) 134–5. Australia too has this tradition of parliamentary supremacy and a qualified right to freedom of speech. But compare this with the review

to communicate freely stems incidentally from the institutional fortification performed by the implied freedom.129 So the relevant constitutional duty of the High

Court when measuring a law against the implied freedom is to protect political communication to the extent necessary to secure our system of constitutional government. This is a different inquiry with a different focus to that which characterises a strict scrutiny-style analysis. For it is quite possible for a court to uphold the validity of a law (which entails a finding that the political communication necessary to secure our system of constitutional government is preserved) without employing the means least restrictive of the protected communication interest.130

It is my argument, that in the context of the implied freedom, the Canadian approach to necessity has much to commend it. In practice, the Canadian Supreme Court has been more deferential to the Parliament than the phrase ‘minimal impairment’ (their necessity/level two proportionality synonym) would suggest. This is particularly so when reviewing laws whose subject matters fall outside traditional areas of judicial expertise.131 The very strict language and approach employed in R v Oakes132 (the

approach of some judges of the Constitutional Court of South Africa who urge rigorous scrutiny of laws that burden the right to freedom of expression especially ‘[having] regard to our recent past of thought control, censorship and enforced conformity to governmental theories’ – S v Mamabolo 2001 (3) SA 409 (CC) [37] (Kriegler J) (Chaskalson P, Ackermann, Goldstone, Madala, Mokgoro, Ngcobo, Yacoob JJ, Madlanga AJ and Somyalo AJ concurring). This passage was cited with approval in the majority judgment of Langa DCJ in Islamic Unity Convention v Independent Broadcasting Authority and Others 2002 (4) SA 294 (CC). So in this regard Sadurski’s argument and framework for strict scrutiny cannot be ‘universal’ save in the most limited, abstract sense. It is not appropriate in the Australian context. For as earlier argued, the two-tier approach is incompatible with the Lange test and the need for rigorous scrutiny of laws that significantly burden the implied freedom ought not to imply the content-based restriction/strict scrutiny nexus that exists, most notably, in American First Amendment law – see above Part II(A). 129 On this point see Chapter One: Part II(B)(2)(ii). 130 The decision of the Canadian Supreme Court in Keegstra is an example. So too is the decision of the Federal Court in Jones v Scully (2002) 120 FCR 243. For it is clearly possible to frame a law less restrictive of the implied freedom than sections 18C & D of the RDA. This would be done if s 18C embodied the higher harm threshold (‘incite hatred towards, serious contempt for, or severe ridicule of’) present in the racial vilification laws of the State and Territory jurisdictions or if the free speech/public interest defences in s 18D were drawn more broadly. 131 See Irwin Toy v Quebec [1989] 1 SCR 927, 994 (‘Irwin Toy’). 132 R v Oakes [1986] 1 SCR 103 (‘Oakes’).

law ‘should impair “as little as possible” the right or freedom in question’133) was

quickly modified in the cases that immediately followed. The nature and complexity

of these constitutional disputes made the Court realise that some level of deference to

the Parliament was not only desirable but necessary.134 Peter Hogg noted two

conundrums the Court would face if Oakes-style strictness at this proportionality level

were maintained. The first concerns the application of such a test in a federation, a

point relevant to the Australian context:

A strict application of the least-drastic-means requirement would allow only

one legislative response to an objective that involved the limiting of a Charter

right. The law that least impaired the Charter right would be acceptable; all

alternatives would fail. In a federal country like Canada, there ought to be

some room for distinctive provincial responses to similar social objectives.135

The second, more important one is that

[i]n view of the ease with which a less drastic alternative to virtually any law

could be imagined, the process of s 1 justification looked like the camel

passing through the eye of the needle.136

The Court, therefore, recognised that

[a] reasonable limit is one which, having regard to the principles enunciated in

Oakes, it was reasonable for the legislature to impose. The courts are not

133 Ibid 139 (Dickson CJ). 134 On this point see Peter Hogg, Constitutional Law of Canada (2000) 750–2. 135 Ibid 752. 136 Ibid 753.

called upon to substitute judicial opinions for legislative ones as to the place at

which to draw a precise line.137

In the later case of Irwin Toy Ltd,138 the Court provided some important, additional comments as to how its ‘minimal impairment’ analysis (level two proportionality) may vary depending on the subject matter of the law:

whenever the government’s purpose relates to maintaining the authority and

impartiality of the judicial system, the courts can assess with some certainty

whether the ‘least drastic means’ for achieving the purpose have been chosen,

especially given their accumulated experience in dealing with such questions

… The same degree of certainty may not be achievable in cases involving the

reconciliation of claims of competing individuals or groups or the distribution

of scarce government resources.139

Importantly, the more deferential approach was appropriate when the Court was

‘called upon to assess competing social science evidence respecting the appropriate means for addressing [a] problem’.140

This Court will not, in the name of minimal impairment, take a restrictive

approach to social science evidence and require legislatures to choose the least

137 R v Edwards Books [1986] 2 SCR 713, 781–2. 138[1989] 1 SCR 927. 139 Ibid 994. There is some evidence that in the Australian context the High Court is also willing to more strictly scrutinise laws whose subject matters relate to the operation of the judicial system (its independence, procedures, accessibility) and that a more adventurous streak emerges when interpreting the scope of the separation of judicial power effected by Chapter III of the Constitution. On judicial independence, see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; legal representation in criminal trials: Dietrich v The Queen (1992) 177 CLR 292; separation of judicial power effected by Chapter III of the Constitution: Re: Wakim; Ex parte McNally (1999) 198 CLR 511; due process: Leeth v Commonwealth (1992) 174 CLR 455. For an excellent critique of this approach in comparison with the strict textualism of Lange and its implied freedom progeny, see Williams, above n 74, 240–3. 140 Irwin Toy [1989] 1 SCR 927, 994.

ambitious means to protect vulnerable groups. There must nevertheless be a

sound evidentiary basis for the government’s conclusions.141

For these reasons a similar approach to necessity is appropriate and necessary in the

application of the Lange test.142 It was employed by a majority of the Canadian

Supreme Court in Keegstra when considering whether there was minimal impairment of the freedom of expression guarantee by the Canadian Criminal Code race hatred

provision.143 It recognises the limited institutional capacity of a court to answer with

certainty the complex, multi-layered social science questions that inevitably arise in

this review analysis. When measuring laws in terms of necessity, Australian courts

ought, therefore, to be ‘looking for a reasonable legislative effort to minimize the

infringement of the [implied freedom], rather than insisting that only the least possible

infringement could survive.’144 This is consistent with the rationale of the implied

freedom and the more limited, supervisory judicial role it entails. It is worth noting

here that a number of judges in Coleman and Mulholland expressed support for the

proposition that the application of the Lange test ‘does not call for nice judgments as to whether one course is slightly preferable to another’145 or ‘a judicial conclusion

that the law is the sole or best means of achieving that [legitimate] end.’146 As

Gleeson CJ noted:

141 Ibid 999. 142 In the Canadian context, Hogg has noted that regarding ‘hate propaganda laws’ (756, fn 184) the Canadian Supreme Court has accorded the Parliament a margin of appreciation for ‘it does not take a vivid imagination to devise a law that would be less intrusive of the … Charter right than the law that was enacted’: Hogg, above n 134, 756. 143 ‘It … must be shown that [the criminal provision] is a measured and appropriate response to the phenomenon of hate propaganda, and that it does not overly circumscribe the … guarantee’: Keegstra [1990] 3 SCR 697, 771 (Dickson CJ) (emphasis added). 144 Hogg, above n 134, 754. 145 Coleman (2004) 220 CLR 1, 53 (McHugh J). 146 Ibid 124 (Heydon J).

the word ‘necessary’ has different shades of meaning. It does not always mean

‘essential’ or ‘unavoidable’, especially in a context where a court is evaluating

a decision made by someone else who has the primary responsibility for

setting policy.147

Importantly, it may reasonably be argued that this approach was central to the

reasoning of McHugh J in Coleman and Finn J of the Federal Court in Bennett v

President, Human Rights and Equal Opportunity Commission.148 In both cases the

impugned laws were held to offend the implied freedom and were invalidated. These

cases demonstrate that the review model approach I propose still provides meaningful

scrutiny of legislative and executive action even though the judicial role in this area is

a more limited and supervisory one.

One final point regarding laws that deal with a subject matter as sensitive and

controversial as racial vilification, is that they are usually the product of a long

gestation period, are subject to rigorous parliamentary debate and committee scrutiny

and often represent the final response to a range of expert reports and inquiries.149 In my view and on the review model proposed, this parliamentary history may be relevant to the question of necessity. I do not wish to suggest that the level of parliamentary scrutiny can determine the validity of a racial vilification or that the end

147 Mulholland (2004) 220 CLR 181, 199. 148 (2004) 204 ALR 119. In that case, Finn J held that regulation 7(13) of the Public Service Regulations 1998 (Cth) was invalid for offending the implied freedom, stating at 141–2 that ‘[i]t is one thing [for the Commonwealth] to regulate the disclosure of particular information for legitimate reasons relating to that information and/or effects of its disclosure. It is another to adopt the catch-all approach of reg 7(13) which does not purport either to differentiate between species of information of the consequences of disclosure … [I]t unreasonably compromises the freedom by transforming the freedom into a dispensation. It is not an appropriate filtering device to protect the efficient workings of government in a way that is compatible with the freedom.’ (emphasis added). 149 For example, in Keegstra [1990] 3 SCR 697, 724–5, Dickson CJ outlined the pre-legislative history of the impugned criminal provision. This included the formation of the Special Committee on Hate Propaganda in Canada and the publication of a unanimous report in 1966. Luke McNamara has documented in considerable detail the same for the racial vilification laws of the Commonwealth, NSW, WA and SA: see above Regulating Racism, above n 3, 35–49, 121–30, 222–37 and 259–79, respectively.

legislative product of this process will always display optimum sensitivity to the relevant constitutional right. But, the process itself and its considerable depth may

provide material support for an argument that a reasonable legislative effort was made

to frame a law that minimises the infringement of the implied freedom. It should at

least give an appellate court judge reason for pause before striking down a law in the

name of constitutional necessity if there is ‘a sound evidentiary basis for the

government’s conclusions.’150

(iii) Balancing

This level of the proportionality inquiry considers whether ‘the restrictions or

detriments caused [by the law] outweigh the importance of the end of the beneficial

result achieved.’151 The amount of work the balancing stage (level three

proportionality) has to do in the application of the Lange test will depend on the

extent to which a law restricts or infringes the implied freedom. For example, if a law

significantly restricts political communication then it will require a ‘compelling

justification’ or ‘overriding public purpose’ to be valid. But even a law with a

compelling justification may infringe the freedom so seriously that its benefit will not

outweigh its detriment. On the other hand, it will be relatively easy for the State to

justify a law where its restrictive impact is minimal.

It is worth noting that if a law is intact when it reaches the balancing stage, a court has

already found that the law is an effective, appropriate or rational means to secure its

claimed end and represents a reasonable legislative effort to minimise the

infringement of the implied freedom. It may follow that in many cases an ultimate

finding of validity is likely, particularly so when the purpose of or justification for a

150 Irwin Toy [1989] 1 SCR 927, 999. 151 Kirk, above n 28, 8.

100

law is compelling.152 But it is certainly possible under my review model for a law to

be ‘necessary’ but fail the balancing test. Consider, for example, a law enacted during wartime that restricted the publication of material that may seriously undermine the prosecution of the war. This would be a rational end to help secure the State’s goal of a national and unified war effort. If it were the only workable option open to the

legislature, then it would be a reasonable effort to frame a law that minimises its

infringement of the implied freedom. However, this measure may so seriously

infringe political communication or the protected interest may be considered so

important in the circumstances that any benefit the law achieves is outweighed by the

detriment it causes.153

So in the application of the Lange test, this level of the proportionality inquiry may

have important work to do if the law seriously infringes the implied freedom or in the

circumstances the protection of political communication is considered paramount.

III THE COMPATIBILITY OR OTHERWISE OF AUSTRALIAN RACIAL

VILIFICATION LAWS WITH THE IMPLIED FREEDOM

A THE CONSIDERATION OF THE COMPATIBILITY ISSUE IN THE

LOWER COURTS

152 Hogg makes a similar, though stronger, point in relation to a law that is constitutionally intact upon reaching the balancing component of the Canadian Charter of Rights and Freedoms s 1 limitation analysis: ‘If a law is sufficiently important to justify overriding a Charter right (first step), and if the law is rationally connected to the objective (second step), and if the law impairs the Charter right no more than is necessary to accomplish the objective (third step), how could its effects then be judged to be too severe?’: Hogg, above n 134, 757. 153 However, during World War I, the United States Supreme Court held that a law with a similar operation did not offend the First Amendment: Schenck v United States 249 US 47 (1919). The defendant printed and distributed to men who had been drafted for military service a circular that said conscription was ‘despotism in its worst form and a monstrous wrong against humanity in the interest of Wall Street’s chosen few.’ It exhorted them to resist the conscription law and not ‘support an infamous conspiracy.’

101

The High Court is yet to consider the compatibility or otherwise of any Australian

racial vilification law with the implied freedom. There have, however, been four judicial and administrative decisions that have done so.154 They are Kazak v John

Fairfax Publications,155 Deen v Lamb,156 Jones v Scully157 and Islamic Council of

Victoria v Catch the Fire Ministries.158 The most important was the decision of the

Federal Court in Scully.159

In Scully, the respondent argued that the racial vilification provisions in Part IIA of

the Racial Discrimination Act 1975 (Cth) (‘RDA’) were invalid. Curiously, Hely J did not expressly consider the important threshold question of whether racial vilification even amounted to political communication. The Lange test was in fact applied, so one can assume that it was so characterised.160 If it was not considered political

communication, then no issue as to the validity of these racial vilification provisions

on account of the implied freedom could logically arise. The respondent had

published and distributed a pamphlet to the residents of a suburb in Launceston,

Tasmania claiming amongst other things that Jews were anti-democratic, immoral,

sexually deviant and tyrannical.161 One might reasonably question the possible

connection between a communication of this kind and federal voting choices; this,

according to Lange, is the nexus required before a communication is considered

‘political’ and accorded constitutional protection.162 It seems clear enough, however,

154 There has also been a challenge to the racial vilification provisions in the RDA in Toben v Jones (2003) 199 ALR 1 but this was on characterisation grounds rather than for infringing the implied freedom. 155 [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000). 156 [2001] QADT 20 (Unreported, President Walter Sofronoff, 8 November 2001). 157 [2002] FCA 1080 (Unreported, Hely J, 2 September 2002)(‘Scully’). 158 [2003] VCAT 1753 (Unreported, Higgins J, 21 October 2003). 159 [2002] FCA 1080 (Unreported, Hely J, 2 September 2002). 160 Ibid [235]–[240]. 161 Ibid [44]. 162 Lange (1997) 189 CLR 520, 560–1.

102

that on this formula racial vilification can amount to political communication.163 For example, a vicious and hateful anti-Arab immigration diatribe at a political rally that called on Australians to vote for Jane Doe (a federal candidate with this policy) would prima facie be protected political communication even though it likely constitutes unlawful racial vilification.164

In any event, the relevant focus of the constitutional inquiry is whether the impugned

law in its terms, operation or effect is compatible with the implied freedom.165 So notwithstanding the doubt as to whether the relevant communications in Scully amounted to political communication and the absence of consideration to that end, the constitutional analysis undertaken by Hely J was still required and relevant. In this regard, after consideration of Australia’s international obligations under the

International Convention on the Elimination of All Forms of Racial Discrimination,

Hely J had little trouble in finding that the ‘legitimate end sought to be obtained by the RDA is the elimination of racial discrimination.’166 He then said that ‘bearing in

mind the exemptions available under s 18D, Part IIA of the RDA is reasonably

appropriate and adapted to serve the legitimate end of eliminating racial

discrimination.’167

The Lange test requires, however, consideration of the logically prior and more

complex issue of whether the impugned law in fact burdens the implied freedom.168

In this instance, it was at least arguable that the implied freedom was not infringed,

163 See further Chapter One: Part III(A). 164 For the reason why see below Part III(C)(1). 165 On this point see Tony Blackshield and George Williams, Australian Constitutional Law and Theory (4th ed, 2006) 1341. 166 Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [239]. See also International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969). 167 Ibid [240]. 168 On this point see above Part II(C)(1).

103

because conduct that amounts to racial vilification is still lawful if a free

speech/public interest defence is available. That is, if the conduct was done

reasonably and in good faith for an academic, artistic, scientific, research or public interest purpose, it is lawful. Though instances of unlawful racial vilification

amounting to constitutionally protected political communication may be few, they are possible as the Jane Doe hypothetical illustrates. So Hely J was probably correct to hold that ‘[i]t is conceivable that the restrictions imposed by … the RDA might in certain circumstances effectively burden freedom of communication about government and political matters.’169 What is of concern is the absence of

justificatory reasoning on a question of some complexity before this conclusion was

reached.

The failure to properly address this difficult question, the cornerstone of the relevant constitutional review analysis, occurs in another racial vilification case where the same issue was considered and the implied freedom jurisprudence more generally.170

It is perfectly understandable for a judge to be ill at ease with such an inquiry. The

determination of the substantive impact of an impugned law on the freedom of

political communication ‘must be a highly speculative matter of political science and

political philosophy which is very dependent on what particular conception of

representative government is involved’.171 The limited institutional capacity of a court

to confidently answer a question of this nature is not therefore surprising. But this fact

ought to be acknowledged rather than glossed over or, worse still, ignored.

169 Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [238]. 170 The issue was not considered in Kazak v John Fairfax Publications [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000) and was given a mostly superficial treatment by the majority judges in Australian Capital Television (1992) 177 CLR 106. On this point regarding Australian Capital Television, see Campbell, above n 83, 201–4. The recent notable exception, however, was the case of Mulholland where there was detailed discussion of whether the impugned law burdened political communication; see above Part II(C)(1). 171 Campbell, above n 83, 203.

104

Notwithstanding the lack of detailed constitutional analysis, in each of the four cases

the impugned Australian racial vilification law was found to be compatible with the

implied freedom.172 Two further points of possible import emerged from these cases.

First, in two decisions the view was expressed that the relevant racial vilification

provisions would be invalid but for the presence of the broadly defined free

speech/public interest defences.173 Second, none of the judges expressly employed the

two-tier approach. This may simply reflect the fact that three of the four decisions

were made in an administrative (quasi-judicial) setting where detailed constitutional

analysis is considered inappropriate. But at least in the case of Scully it may be a

conscious decision to employ a single test for constitutionality (as endorsed in Lange)

irrespective of whether the impugned law regulates the content or mode of a

communication. I will return to this important point and elaborate on its possible relevance in the next part of the Chapter.

B WHY THE IMPLIED FREEDOM IS A THREAT TO THE VALIDITY OF

AUSTRALIAN RACIAL VILIFICATION LAWS AFTER LANGE

Even though the issue of the constitutionality of Australian racial vilification laws has

received little judicial scrutiny, one might argue that they ought not to be in doubt

considering the logic of the Lange test. After all, proscribing racial vilification in

order to tackle racism and the serious harms and inequalities that it engenders are

172 Islamic Council of Victoria v Catch the Fire Ministries [2003] VCAT 1753 (Unreported, Higgins J, 21 October 2003) found the Racial and Religious Tolerance Act 2001 (Vic) to be valid; Deen v Lamb [2001] QADT 20 (Unreported, President Walter Sofronoff, 8 November 2001) found s 124A of the Anti-Discrimination Act 1991 (Qld) to be valid; Scully found Part IIA of the RDA to be valid; Kazak v John Fairfax Publications [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000) found s 20C of the Anti-Discrimination Act 1977 (NSW) to be valid. On the constitutionality of Australian racial vilification laws see further Chesterman, above n 3, 238–43. 173 See Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [238]; Deen v Lamb [2001] QADT 20 (Unreported, President Walter Sofronoff, 8 November 2001) 2.

105

goals ‘compatible with the maintenance of the constitutionally prescribed system of

representative and responsible government’.174 This argument is further buttressed by

the fact that in most Australian jurisdictions conduct that amounts to racial vilification

is still lawful if done reasonably and in good faith for an academic, artistic, scientific,

research or public interest purpose.175 Indeed, notwithstanding the rigorous scrutiny employed by the majority judges in Australian Capital Television,176 it was noted that

the implied freedom may be infringed ‘for the protection or vindication of the

legitimate claims of individuals to live peacefully and with dignity within such a

society.’177 Such a qualification seems tailor-made to cover laws proscribing racial

vilification. Even in comparative terms, it seems incongruous that Australian racial

vilification laws could be vulnerable when, for example, the widely drawn Canadian

criminal provision earlier noted survives constitutional challenge within a legal

framework that contains a comprehensive and free-standing right to freedom of

expression in a constitutional Charter of Rights.178

I will shortly argue that most Australian racial vilification laws are constitutionally

sound.179 But it is by no means certain that the current or a future High Court would

agree when one considers the open-ended nature of the Lange test and the fact that the

precise scope of the implied freedom remains far from settled. It is well to remember

that at the time of the passage of the Racial Hatred Bill 1995 (Cth)180 through the

House of Representatives, former Commonwealth Solicitor-General Sir Maurice

Byers thought it was clearly unconstitutional due to the fact that ‘freedom of

174 Lange (1997) 189 CLR 520, 567. 175 See Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s55. 176 (1992) 177 CLR 106, 143 (Mason CJ), 169–76 (Deane and Toohey JJ), 234–5 (McHugh J). 177 Ibid 174 (Deane and Toohey JJ). 178 Keegstra [1990] 3 SCR 697. 179 See below Part III(C). 180 This was the law that incorporated the racial vilification provisions (Part IIA) into the RDA.

106

communication on public affairs and political discussion is, in truth, no different from freedom of speech’.181 Indeed, as noted in Chapter One, one of the two central questions regarding the scope of the implied freedom that remain presently open is the definition of political communication. This was not considered in Lange182 and has received only minimal further elucidation in later cases.183 But at least for present purposes, my Chapter One analysis made clear that racial vilification can amount to

‘political communication’.184

In any event, what is important for the purposes of this part of the Chapter is the re- emergence of the two-tier approach in the implied freedom cases after Lange.185 As earlier noted, this approach embodies to some extent the American constitutional law notion of ‘strict scrutiny’.186 Should a majority of the High Court endorse and then take seriously the logic of its two principles then all Australian racial vilification laws are constitutionally vulnerable.187 For the primary concern of these laws is to restrict

181 Sir Maurice Byers, ‘Free Speech a Certain Casualty of Race Law’, The Australian (Sydney) 21 November 1994, 11. Sir Maurice Byers also appeared as counsel in Australian Capital Television. 182 On this point see Chapter One: Part III(A). But see Chesterman, above n 3, 44–9. 183 The most important case is Levy (1997) 189 CLR 579 where the High Court made clear that non- verbal conduct or symbolic speech ‘which is capable of communicating an idea about the government or politics of the Commonwealth’ counts as ‘political communication’: 595 (Brennan CJ). In addition, there have been two State Supreme Court decisions where political communication was held not to encompass discussions regarding the conduct of the judiciary: John Fairfax Publications Pty Ltd v Attorney-General (NSW) (2001) 181 ALR 694; Herald & Weekly Times & Bolt v Popovic [2003] VSCA 161 (Unreported, Winneke ACJ, Gillard and Warren AJJA, 21 November 2003). More recently, the High Court confirmed in Coleman and Mulholland that political communication included ‘[c]ommunications between the executive government and public servants and the people’: Mulholland (2004) 220 CLR 181, 219 (McHugh J). 184 It is worth noting, for precedential value, the broad conception of ‘political communication’ favoured in Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, that it ‘refers to all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about’:124 (Mason CJ, Toohey and Gaudron JJ) quoting Eric Barendt, Freedom of Speech (1987) 152. Deane J said ‘political communication and discussion “extends to all political matters, including matters relating to other levels of government within the national system [of government] which exists under the Constitution”’: 164 (footnotes omitted). This may well be good law absent a clear statement to the contrary by the current, very differently constituted, High Court. It was this definitional breadth and elasticity that lay at the heart of Sir Maurice’s constitutional concerns. 185 The two-tier approach has found favour most recently with Heydon J in Coleman (2004) 220 CLR 1, 123 and Gleeson CJ in Mulholland (2004) 220 CLR 181, 200. 186 See above Part II(A). 187 Adrienne Stone, for example, considers that the two-tier approach is likely to prevail: see Stone, ‘Lange, Levy and the Direction of the Freedom of Political Communication Under the Australian

107

certain political ideas and information not the modes of their communication. So on the two-tier approach, if a particular racial vilification law were challenged, strict or more rigorous scrutiny must be applied and its constitutionality may turn on whether the measures it employed were least restrictive of the implied freedom.188 And if a judge is so disposed, it takes no great feat of judicial ingenuity to devise an alternative racial vilification law that may place a lesser burden on the implied freedom.

In Western Australia, for example, only criminal sanctions exist for the regulation of racial vilification. It would be quite reasonable for a judge in a strict scrutiny analysis to ‘suggest that the very fact of criminalization itself may … represent an excessive response to the problem of hate propagation.’189 ‘Criminalization’ may not, moreover, be ‘necessary’ if ‘[o]ther remedies are perhaps more appropriate and more effective’ considering that the ‘sanction of the criminal law may pose little deterrent to a convinced hate-monger who may welcome the publicity it brings’.190 These were some of the arguments made by the three minority judges of the Canadian Supreme

Court in Keegstra to strike down as overbroad the provision of the Canadian Criminal

Code earlier noted.191 It follows that the proper application of the two-tier approach and its principles of strict scrutiny may well invalidate the Western Australian criminal provisions and a range of other Australian racial vilification laws besides.192

Constitution’, above n 7, 134. Whilst writing at a time when only NSW and Western Australian had racial vilification laws, Wojciech Sadurski considered it unlikely that these kinds of group vilification laws would survive strict scrutiny: Sadurski, above n 10, 190. 188 It should, however, be noted that even though Gleeson CJ and Heydon J have recently endorsed the two-tier approach, both judges reject a conception and application of the Lange test that requires a law to employ means least restrictive of the implied freedom – see Coleman (2004) 220 CLR 1, 124 (Heydon J); Mulholland (2004) 220 CLR 181, 197-199 (Gleeson CJ), 305 (Heydon J). 189 Keegstra [1990] 3 SCR 697, 860–1 (McLachlin J). 190 Ibid 861. 191 Ibid 852–62 (McLachlin J) (La Forest and Sopinka JJ concurring). 192 The racial vilification laws of NSW, the ACT, SA, Qld and Vic also contain criminal provisions. It should, however, be noted that, unlike the Canadian criminal provision reviewed in Keegstra, these State and Territory laws only affix criminal liability where there is an aggravating factor (threat to the person or property) accompanying the act of racial vilification.

108

C THE APPLICATION OF THE LANGE TEST FOR

CONSTITUTIONALITY TO AUSTRALIAN RACIAL VILIFICATION

LAWS

I have argued that the two-tier approach is incompatible with the Lange test properly

understood. It may operate to distort the application of the test by establishing an

analytical framework grounded in a sometimes misleading threshold distinction

between laws that regulate the content as opposed to the mode of a political

communication. Instead, I advocated a single test for constitutionality unanimously

endorsed by the High Court in Lange and proposed a review model informed by the

rationale of the implied freedom to this end. That review model will now be applied

to current Australian racial vilification laws to assess their compatibility or otherwise

with the implied freedom.

There are four kinds of racial vilification regimes operating in Australia. In Tasmania

and under the RDA, racial vilification is subject to civil sanction only. The laws of

New South Wales, the Australian Capital Territory, South Australia, Queensland and

Victoria contain both civil and criminal provisions. In Western Australia, there are

criminal offences only. And since December 2005, it is now a Commonwealth crime

to urge one racial group to use force or violence against another when that force or

violence would threaten the peace, order and good government of the

Commonwealth.193 I will call this new Commonwealth offence ‘seditious racial incitement’.

193 Criminal Code Act 1995 (Cth) s 80.2(5). It should be noted that the s 80.2(5) offence is not limited to racial incitement. It also proscribes group incitement on account of religion, nationality or political opinion. A more detailed discussion of this offence is undertaken in Chapter Four: Part IV.

109

1 Do Australian racial vilification laws ‘effectively burden freedom of

communication about government or political matters either in [their] terms,

operation or effect?’194

The Jane Doe hypothetical amounts to political communication for the subject matter of the communication is such that it may reasonably be considered relevant to the federal voting choices of its likely audience.195 If the RDA proscribes this communication (and I think that it does), it necessarily infringes the implied freedom because its primary purpose is to restrict that species of communication. The RDA proscribes this communication for it is ‘reasonably likely, in all the circumstances, to offend, insult, or humiliate another person or a group of people’ and race and ethnic origin is clearly one reason for the communication.196 The communication also falls outside the free speech/public interest defences for not being made ‘reasonably and in good faith’.197 Whilst the case law is unsettled on this point, I will argue in Chapter

Three that the better view is that ‘reasonably’ refers to the method by which the communication is made not its content.198 Making this communication at a public rally is clearly ‘reasonable’ in this sense. But the case law suggests that the language

194 Lange (1997) 189 CLR 520, 567. 195 The likely audience of this communication would include attendees at the political rally and those persons whom may reasonably be informed of it by the media or other communication conduits. The relevance of the communication to their federal voting choices may, of course, have either a positive or negative impact. For a more detailed treatment of this point see Chapter One: Part III(D)(1). 196 RDA 1975 (Cth) s 18C. 197 RDA 1975 (Cth) s 18D: an instance of racial vilification will be lawful if done reasonably and in good faith for an academic, artistic, scientific or other public interest purpose. 198 The following cases endorse this view – Commonwealth: Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002)[159]; Warner v Kucera (Unreported, Commissioner Johnston, 10 November 2000) 2, 33–4; Toben v Jones (2003) 199 ALR 1, 13 (Carr J),19 (Kiefel J), 38 (Allsop J); NSW: Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78,268 (Bartley, Farmer and Luger); Hellenic Council of NSW v Apoleski and Macedonian Youth Association (No 1) [1995] NSWEOT (Unreported, Biddulph, Alt, Mooney, 25 September 1997) 16); Hellenic Council of NSW v Apoleski (No 2) [1995] NSWEOT (Unreported, Biddulph, Alt, Mooney, 25 September 1997) 10. Qld: Deen v Lamb [2001] QADT 20 (Unreported, President Walter Sofronoff QC, 8 November 2001) 2. For a detailed discussion on this point see Chapter Three: Part III(C)(2)(i).

110

and behaviour used by the communicator must also be reasonable.199 So making this

political communication in a vicious and hateful manner would, therefore, be

considered unreasonable. Moreover, the fact that a communication is made in this

way will not only make it unreasonable but may evidence an absence of ‘good faith’.

In other words, the extreme nature of a racist communication may suggest that its

underlying purpose is vilification rather than a bona fide contribution to political

discourse.200 As French J recently noted in Bropho v Human Rights and Equal

Opportunity Commission:201

good faith requires more than subjective honesty and legitimate purposes. It

requires, under the aegis of fidelity or loyalty to the relevant principles in the

Act, a conscientious approach to the task of honouring the values asserted by

the Act.202

It can, therefore, be concluded that the RDA may ‘effectively burden freedom of

communication about government or political matters either in [their] terms, operation

or effect.’203

If in the Jane Doe hypothetical the communication would ‘incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground

of the race of the person or members of the group’, then a similar conclusion can be

199 For example, in Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78,268 (Bartley, Farmer and Luger) the respondent at a local council meeting challenged the bona fides of Aboriginal land claims in the Wagga Wagga region and the reconciliation process. But he did so using vulgar and odious racial epithets. The NSW Equal Opportunity Tribunal held that the respondent’s actions were not done reasonably or in good faith pointing out that ‘proper procedures to oppose the claim were available to Mr Eldridge, and there was no need to act as he did’ (78,268). 200 For example, in Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) Hely J found at [197]–[198] that the respondent acted neither reasonably or in good faith in distributing a leaflet that, amongst other things, suggested that Judiasm is worse than a Satanic Cult. On this point, see Chapter Three: Part III(C). 201 (2004) 204 ALR 761. 202 Ibid 786. 203 Lange (1997) 189 CLR 520, 567.

111

made regarding the civil racial vilification provisions in New South Wales, South

Australia, the Australian Capital Territory, Queensland, Victoria and Tasmania. These laws employ this same, more elevated harm threshold204 and their provisions incorporate free speech/public interest defences equivalent to those found in the

RDA.205 This communication will not attract a free speech/public interest defence as noted above. Moreover, for the communication to attract civil liability, it need not be shown that the speaker subjectively intended to incite hatred, serious contempt for, or serious ridicule of another or that any incitement in fact occurred.206 It is enough if it is likely to do so in an objective sense. So it seems clear enough that a racist communication of this nature, made in a vicious and hateful manner at a political rally, must objectively incite hatred, serious contempt for, or serious ridicule of another on the ground of their race.207

It is also possible for Jane Doe’s conduct to attract criminal sanction under the racial vilification laws of New South Wales, South Australia, the Australian Capital

Territory, Queensland, and Victoria if she intends for her speech to incite hatred,

204 See Anti-Discrimination Act 1977 (NSW) s 20C(1); Racial Vilification Act 1996 (SA) s 4 and Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66; Anti-Discrimination Act 1991 (Qld) s 124A ; Racial and Religious Tolerance Act 2001 (Vic) s 7(1); Anti-Discrimination Act 1998 (Tas) s 17(1). In addition, the laws of New South Wales, South Australia, the ACT, Queensland and Victoria make criminal conduct that breaches this harm threshold but has an aggravating factor, the threat to person and/or property: see below Part III(C)(3)(b) for an examination of these criminal provisions. 205 See Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s 55. The only difference in the content of the defences is that the Victorian law, unlike its New South Wales, ACT, South Australian, Queensland and Tasmanian counterparts, does not protect conduct that is absolutely privileged under defamation law. This is of no great practical import as it is unlikely that racist conduct that attracts absolute privilege could then be the subject of a complaint under the relevant racial vilification provisions in the absence of express legislative sanction. 206 See Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78,268 (Bartley, Farmer and Luger); Kazak v John Fairfax Publications [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000); Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102 (Unreported, Rees, Silva and Luger, 31 July 2000). See further McNamara, Regulating Racism, above n 3, 182–7. 207 In Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92–701, 78,268 (Bartley, Farmer and Luger) a case with similar facts, it was held that the respondent had objectively incited hatred, serious contempt for, or serious ridicule of this group on grounds of their race.

112

serious contempt for, or serious ridicule of a person or group on account of their race and does so by threatening them or their property with physical harm or incites another to do.208 In any event, what is important is that her political communication is also proscribed by these criminal laws. Therefore, the racial vilification laws of New

South Wales, South Australia, the Australian Capital Territory, Queensland, Victoria and Tasmania also ‘effectively burden freedom of communication about government or political matters either in [their] terms, operation or effect.’209 The Western

Australian law contains eight criminal offences only.210 It was originally enacted and recently amended in direct response to the racist activities of a local white supremacist group and was tailored to combat that specific menace.211 Considering the breadth of the offences available under Western Australian law – which includes

208 See Anti-Discrimination Act 1977 (NSW) s 20D; Racial Vilification Act 1996 (SA) s 4; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 67; Anti-Discrimination Act 1991 (Qld) s 131A; Racial and Religious Tolerance Act 2001 (Vic) s 24. 209 Lange (1997) 189 CLR 520, 567. 210 The Western Australian racial vilification law contains no civil, only criminal, sanctions. On the significance of this point for the law’s validity, see below text accompanying nn 246-8. 211 On the background to the original Western Australian criminal provisions, see McNamara, Regulating Racism, above n 3, 222–5. The original provisions contained in the Criminal Code 1913 (WA) made it a crime to publish, distribute or display written or pictorial material that is threatening or abusive intending to create or promote hatred of any racial group (s 78) or to be in possession of such materials for the same purpose (s 77). It was also a crime to publish written or pictorial material intending to harass any racial group (s 80) or to be in possession of such materials for the same purpose (s 79). These criminal provisions were repealed by the Criminal Code Amendment (Racial Vilification) Act 2004 (WA) and replaced with the following eight offences: It is a crime to engage in conduct, otherwise than in private, by which a person intends to create, promote or increase animosity towards (defined in s 76 to mean hatred or serious contempt), or harassment of, a racial group, or a person as a member of a racial group (s 77) or whose conduct is likely to do so (s 78). It is a crime for any person to possess written or pictorial material that is threatening or abusive, intending the material to be published, distributed, or displayed by that person or another and either intends the publication, distribution or display of the material to create, promote or increase animosity towards, or harassment of, a racial group, or a person as a member of a racial group (s 79) or the publication, distribution or display of the material would be likely to do so (s 80). It is a crime for any person to engage in conduct, otherwise than in private, by which the person intends to harass a racial group, or a person as a member of a racial group (s 80A) or to engage in conduct that is likely to do so (s 80B). It is a crime for any person to possess written or pictorial material that is threatening or abusive, intending the material to be displayed by that person or another and the person either intends the display of the material to harass a racial group, or a person as a member of a racial group (s 80C) or the display of the material would be likely to do so (s 80D). It is, however, a defence to a charge under ss 78, 80, 80B and 80D to prove that the accused person engaged in conduct, or intended the material to be published, distributed or displayed, reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for any genuine academic, artistic, religious or scientific purpose or any purpose that is in the public interest; or (c) in making or publishing a fair and accurate report or analysis of any event or matter of public interest (s 80G).

113

four crimes that can be committed without a subjective mens rea - it seems clear enough that the racist communication described in the Jane Doe hypothetical would attract criminal liability.212

The only racial vilification law with a significantly different scope and purpose is the

Commonwealth’s offence of seditious racial incitement. This is no surprise. For as I outline in greater detail in Chapter Four, s 80.2(5) is primarily a sedition offence not the kind of free-standing racial vilification laws considered so far. It is concerned only with inflammatory racist speech of an extreme and particular kind: when it incites group racial violence that would threaten constitutional government. The range of speech proscribed is, therefore, especially narrow. But even so, the very nature of sedition is that it will, necessarily, catch some ‘political communication’, however marginal. For the essence of seditious conduct or speech is the intent to incite hatred or contempt for the government or the Constitution. The important point is that it too will burden freedom of communication about government and political matters in its terms, operation or effect.

2 Assessing the Significance of the Detriment to ‘Political Communication’

Effected by Australian Racial Vilification Laws

The crucial step in the proposed review model is to make a clear assessment as to the significance of the detriment to political communication effected by a racial vilification law. In other words, once the ‘freedom of [political] expression interest at stake’213 is ascertained, this informs the proper application of the Lange test. If, for example, the RDA provisions operate to restrict an important species of

212 At the very least, the Jane Doe communication is likely to harass a racial group, or a person as a member of a racial group (s 80B) and the unreasonableness of the language used to make the communication would preclude the availability of a free speech/public interest defence under s 80G. 213 Keegstra [1990] 3 SCR 697, 761 (Dickson CJ).

114

communication or the ability of a group to participate meaningfully in the political

process, then the State will need to establish that, notwithstanding the significant

detriment to political communication, the law has a ‘compelling justification’ and is

reasonably tailored to this end. So, determining the ‘freedom of [political] expression

interest at stake’ is the base-point from which the necessity and balance of a racial vilification law can be meaningfully assessed.214

In one sense, any political communication infringement is significant, for it denies to the citizenry that which the Constitution has singled out for protection. But that

protection is not absolute. So if the benefits outweigh the political communication

detriment, then such a law will buttress rather than undercut constitutional

government. It means that not every political communication is equally valued,

constitutionally. In review terms, the lower the value of the political communication

infringed, the easier it is for the government to justify its law. It is my argument that

most Australian racial vilification laws burden little political communication of value.

Whilst ascribing ‘value’ is mostly a subjective assessment, in the context of my

argument it refers to the fact that no instance of racial vilification that amounts to

political communication falls foul of Australian civil racial vilification law (and is

thereby punished or chilled) on the basis of its content unless it was not made

‘reasonably and in good faith’. So long as a person employs a reasonable method for

making their political communication and is not acting for an improper purpose, they

can do or say whatever they want, even if it entails inciting ‘hatred towards, serious

contempt for, or severe ridicule of, a person or group of persons on the ground of the

race of the person or members of the group’.

214 This is different from the two-tier approach, as the effect or practical operation of the law on political communication is the central consideration for the purposes of judicial review, not whether it regulates its content or method of expression: see above Part II(A).

115

The extent of this freedom of political communication sensitivity can be illustrated by

the Jane Doe hypothetical with slightly changed facts. Let us say that the person

makes the anti-Arab immigration speech at the political rally in a manner that is

impassioned and robust rather than vicious and hateful. It would then be made

reasonably and in good faith in the relevant legal sense. During the speech the speaker

cites, again in good faith, a spate of recent violent crimes in Sydney whose

perpetrators were all recently migrated young Arab men as support for his or her

view, though the racial profile of most Sydney criminals is, in fact, very different.

This person will likely offend the harm threshold for, in the current political climate

and in the context of the ongoing ‘war on terror’, this communication is likely in an

objective sense to ‘incite hatred towards, serious contempt for, or even severe ridicule’ of Arabs on account of their race. Even though this communication may be factually inaccurate and racially prejudiced, it communicates a probably common political viewpoint. And, so long as it is made reasonably and in good faith, it is a

‘political communication’ of ‘value’ in our constitutional system of parliamentary government and one that is properly protected under the civil laws of New South

Wales, South Australia, the Australian Capital Territory, Queensland, Victoria and

Tasmania. In this way, the ‘value’ of a political communication is preserved both constitutionally and legislatively, even in circumstances where it amounts to racial vilification.

However, there is still the concern that the laws (in particular the RDA with its low harm threshold) may operate to chill political communication and freedom of speech more generally. The problem, as my above analysis demonstrates, is that it is relatively easy for political communication to offend these civil (objective) harm thresholds. The burden then falls on the ‘speaker’ to establish a free speech/public

116

interest defence to protect their political communication. If they have chosen a

‘reasonable’ method for making their political communication, the defences available under these civil laws will, ultimately, result in its legal protection. But even so, this must be done in public (quasi) judicial proceedings that will be costly in terms of time, money and maybe even reputation, considering the stigma associated with a legal complaint of this nature. Moreover, political arguments and views are not always communicated in a ‘reasonable’ or civil manner. It is in the nature of political discourse that it can, sometimes, be irrational, offensive and combustible.215 So these

civil laws will not always operate to protect political communication on race-related

issues. These factors may, consequently, result in the chilling of political communication. For the coverage and operation of these laws may create a significant disincentive to persons considering whether or not to engage in public political discourse on race matters. The capacity of s 18C of the RDA - and to a lesser extent the civil provisions in New South Wales, South Australia, the Australian Capital

Territory, Queensland and Victoria which incorporate a more elevated harm threshold

– to chill valuable political communication is of course difficult to measure. But at the very least, this self-censorship danger places a significant qualification on my more sanguine assessment made above as to the extent which Australian civil racial vilification laws are sensitive to freedom of political communication.

On the other hand, in those State and Territory jurisdictions (New South Wales, South

Australia, Western Australia, the Australian Capital Territory, Queensland and

Victoria) where serious instances of racial vilification attract criminal liability, the

‘freedom of [political] expression interest at stake’ is, prima facie, significantly lower.

215 See Coleman (2004) 220 CLR 1, 53-54 (McHugh J), 91 (Kirby J); but see 112 (Callinan J), 123 (Heydon J). On this issue more generally see Simon Evans and Adrienne Stone, ‘Developments: Freedom of Speech and Insult in the High Court of Australia’ (2006) 4 International Journal of Constitutional Law 677.

117

For example, in these jurisdictions the only kind of political communication infringed

is that by which ‘a public act, incite[s] hatred towards, serious contempt for, or severe

ridicule of, a person or group of persons on the ground of the[ir] race … by means

which include threatening, or inciting others to threaten, physical harm towards, or

towards any property of, the person or group of persons’.216 In Western Australia, the

only kind of political communication infringed is when the communication (which

can include the possession of threatening or abusive written or pictorial material

whether or not publication is intended) is made with the intent to harass or create,

promote or increase hatred, serious contempt or harassment of a racial group or a

member of that group.217 That such (extreme) conduct is unnecessary to effectively

communicate an idea or viewpoint that may reasonably be relevant to the federal

voting choices of its likely audience seems clear enough, at least under Australian

political conditions. It is also worth noting that these criminal provisions require proof

beyond a reasonable doubt of the mens rea to incite or intend the relevant proscribed

harm or consequence.218 It further lessens the ‘value’ of any political communication

that is so characterised.

Indeed, to sanction racist harassment, incitement and (the threat of) violence as

political communication invites the destruction of constitutional government. For if any means may be employed to make a political communication, we can be sure that persons or groups with an extreme racist agenda will do so. This serves to undermine the very reason why political communication is accorded constitutional status in the

216 See Anti-Discrimination Act 1977 (NSW) s 20D; Racial Vilification Act 1996 (SA) s 4; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 67; Anti-Discrimination Act 1991 (Qld) s 131A; Racial and Religious Tolerance Act 2001 (Vic) s 24. 217 Criminal Code 1913 (WA) ss 77, 79, 80A, 80C. 218 Whilst there is no authority on point due to the fact that no person has been prosecuted under these criminal racial vilification laws, a court will find that mens rea is an essential component of every criminal offence unless there is a clear parliamentary intention to the contrary: Sweet v Parsley [1970] AC 132; He Kaw Teh v The Queen (1985) 157 CLR 523.

118

first place – to secure the conditions that provide for the meaningful exercise of the

sovereignty of the people through our system of constitutional government.

There are, however, four offences in Western Australia that do not require proof of a

subjective mens rea for criminal liability to arise.219 It is a crime, for example, for any

person to engage in conduct that is likely to create, promote or increase hatred, serious contempt or harassment of a racial group or member of a racial group.220 If a political

communication can attract criminal liability in the absence of mens rea, the freedom

of expression interest at stake would seem considerable. But for each of these

offences the same kind of broadly defined, free speech/public interest defences

discussed above are available.221 That is, so as long as a person in Western Australia chooses a reasonable method for making their political communication and is not acting for an improper purpose, they can do or say whatever they like, even if it is

likely to harass or create, promote or increase hatred of or serious contempt for a

racial group or member of a racial group. These defences will, therefore, operate to

protect most political communication that would otherwise offend the harm thresholds in these four offences.

However, as with the civil racial vilification provisions, the availability of these free speech/public interest defences does not quell the capacity of these offences to chill

(as opposed to proscribe) political communication that can make a valuable

contribution to public discourse.222 Consider, for example, a person in Western

Australia who, for cultural, social and economic reasons, wishes to campaign for an

219 Criminal Code 1913 (WA) ss 78, 80, 80B, 80D. 220 Criminal Code 1913 (WA) s 78. 221 Criminal Code 1913 (WA) s 80G: see above n 211 where the defences are outlined. 222 The first limb of the Lange test makes clear that a court must assess whether a law burdens political communication ‘either in terms, operation or effect’. If a law has the capacity to chill political communication this too constitutes an effective or practical restriction on speech that must be considered to make this assessment.

119

immigration policy that is racially discriminatory. This view – however distasteful to

some – makes a contribution to political discourse. But there is certainly an argument

that it is likely to create, promote or increase hatred of, or serious contempt for a

group on account of their race in some parts of the (Western Australian) community.

And even though this kind of political communication would likely attract a free

speech/public interest defence as noted above, a person may choose, wisely, not to

run even the small risk of serious criminal sanction which the airing of this political

viewpoint would entail. In this way, these Western Australian offences may operate to

chill valuable political communication regarding race-related issues.223

The lowest freedom of political communication interest at stake is with the

Commonwealth’s new offence of seditious racial incitement. As noted, it proscribes only a very narrow and extreme kind of ‘political communication’ that when made would threaten the peace, order and good government of the Commonwealth. And even so, this kind of seditious racial incitement will still be lawful if it attracts one of

the defences that are provided for good faith political dialogue or criticism.224 In this

way the law seeks to protect the very institution – constitutional government - from which the implied freedom is derived and which it exists to serve. So it can reasonably be said that s 80.2(5) and the other forms of sedition are, at least in

principle, laws that serve to protect not threaten political communication. In doing so

they also secure rather than undermine the conditions that provide for the meaningful

exercise of the sovereignty of the people through our system of constitutional government.

223 The capacity of the Western Australian strict or negligent liability crimes to serious chill freedom of speech more generally is explored in detail in Chapter Four: Part IIIA. 224 Criminal Code 1995 (Cth) s 80.3.

120

My analysis demonstrates that, in relation to the civil racial vilification provisions and the offences in Western Australia that can be committed without a subjective mens rea, there is an important ‘freedom of [political] expression interest at stake’. The

Commonwealth’s seditious racial incitement offence and the criminal provisions in

New South Wales, South Australia, Western Australia, the Australian Capital

Territory, Queensland and Victoria are less problematic in this regard, but they too restrict some political communication. So the answer to the first limb of the Lange test must be ‘yes’: all racial vilification laws in Australia do effectively burden freedom of political communication. It now falls to consider the application of the second limb of the Lange test under the proposed review model.

3 Are Australian Racial Vilification Laws ‘reasonably appropriate and adapted to

serve a legitimate end [in a manner] which is compatible with the maintenance

of the constitutionally prescribed system of representative and responsible

government’?225

(i) Suitability

First level proportionality is a relatively easy standard for Australian racial vilification laws to meet. For they need only be ‘an effective, appropriate or rational means of achieving the claimed end.’226 No assessment is made at this level as to the legitimacy of that end or desirability of the measures contained in the law. Whilst the

Commonwealth, State and Territory racial vilification laws employ a range of divergent regulatory mechanisms, they share a common purpose – to address the issue of racism and the serious harms and inequalities that it engenders. The

Commonwealth and Tasmanian Parliaments have chosen to rely exclusively on civil

225 Coleman (2004) 220 CLR 1, 50 (McHugh J). 226 Kirk, above n 28, 6.

121

law and, to this end, have established a two-step process. The first step involves an

attempt at confidential conciliation between the parties facilitated by the

Commonwealth Human Rights and Equal Opportunity Commission (‘HREOC’) and

the Tasmanian Anti-Discrimination Commissioner, respectively. In the event that the

conciliation process is unsuccessful, there is the option, at the Commonwealth level,

for the matter to proceed to judicial determination227 and in Tasmania, to the Anti-

Discrimination Tribunal, a division of its Magistrates Court. 228

The laws of New South Wales, the Australian Capital Territory, Queensland and

Victoria contain similar and sometimes identical civil provisions but have, in addition,

created criminal offences for conduct amounting to serious or aggravated racial

vilification.229 South Australia has also developed an innovative, multi-pronged

legislative regime involving a criminal offence for serious racial vilification,230 the availability of up to $40,000 civil damages as a remedy for the criminal offence231

and a statutory tort for racial vicitimisation.232 As noted, Western Australia relies

exclusively on criminal sanctions to address both its specific racist menace and

proscribe only the more serious instances of racial vilification.

On the other hand, the primary purpose of the Commonwealth’s seditious racial

incitement offence is to safeguard the peace, order and good government of the

Commonwealth. But in identifying group racial incitement as conduct that may

endanger constitutional government - and criminally proscribing it as a consequence –

227 Human Rights and Equal Opportunity Act 1986 (Cth) s 46PO. 228 Anti-Discrimination Act 1998 (Tas) ss 13, 78. 229 See above text accompanying n 208. 230 Racial Vilification Act 1996 (SA) s 4. 231 Racial Vilification Act 1996 (SA) s 6. 232 Wrongs Act 1936 (SA) s 37.

122

the law takes aim at a form of racist conduct that may occasion serious damage to the fabric of the community and its governance institutions if left unchecked.

The specific details of these regulatory mechanisms demonstrate considered and often

context-sensitive legislative responses to different forms of racial vilification. This is no surprise. For the laws were often preceded by a combination of parliamentary reports, commissions of inquiry, detailed scrutiny and robust debate when passing through the respective Legislatures.233 The important point is that they are effective,

appropriate or rational measures to secure their claimed end and meet this

proportionality level as a consequence.

(ii) Necessity

Even if an Australian racial vilification law is an appropriate or rational measure to

secure its claimed end, it still ought to be struck down if it is not ‘a reasonable

legislative effort to minimize the infringement of the [implied freedom]’.234 At first

blush, there may be some doubt as to whether this is the case with the RDA. The

imposition of a relatively low and objective harm threshold (‘offend, insult, humiliate

or intimidate’) may, as noted, result in the proscription of much valued political

communication. But the broad sweep of the free speech/public interest defences

available and the fact that they were expressly included to protect and promote

freedom of communication and shore up the constitutionality of the provisions in

relation to the implied freedom,235 is evidence that the RDA is a reasonable legislative

effort by the Commonwealth to minimise the political communication infringement.

On the other hand, it can be argued that the law burdens more political

233 See above text accompanying nn 149-50. 234 Hogg, above n 134, 754. 235 On this point see McNamara, Regulating Racism, above n 3, 53–4.

123

communication than is necessary and significantly more than what might first appear.

For as noted, if the method by which a communication is made is not reasonable, an otherwise available defence is lost; and the capacity of s 18C of the RDA to chill valuable political communication becomes a very real concern.

But on the review model proposed, necessity need not entail the employment of legislative means least restrictive of political communication. So long as a court is satisfied that the Commonwealth is cognisant of and has made a reasonable legislative response to the ‘freedom of [political] expression interest at stake’ in its racial vilification law, then it satisfies this proportionality level. There is, however, an argument that s18C places an unreasonable burden on political communication. For the very nature of a good deal of political communication on race-related issues is that it is reasonably likely to offend, insult or humiliate a person or group on account of their race and, therefore, breach the RDA harm threshold. This burden is assuaged to some extent by the availability of the free speech/public interest defences. But they do not, as noted, diminish the capacity of the law to chill valuable political communication.

Consequently, it is a vexed question whether s 18C satisfies this proportionality level.

However for three reasons I would suggest, tentatively, that it does. First, as Hely J noted in Scully, the free speech/public interest defences do, nevertheless, provide broad and constitutionally necessary legal protection to much political communication. Second, it is a perfectly reasonable legislative choice to frame a racial vilification law that values and promotes civility in political discourse. The

Commonwealth has done so by denying a defence to a person whose political communication offends the harm threshold unless it is made reasonably and in good

124

faith.236 And third, it is consistent with the rationale of the implied freedom which I

favour, that when faced with a contested social policy question on a subject matter

that lies beyond its areas of expertise and experience, a court ought to defer to the judgment of the legislature if there is a sound basis for the law.

Moreover, on this reasoning, the civil provisions in the racial vilification laws of New

South Wales, the Australian Capital Territory, Queensland, Victoria and Tasmania will also satisfy this proportionality level. These laws indeed have a stronger claim in this regard than the RDA, for they provide equivalent free speech/public interest defences but have a higher harm threshold – and consequently burden less political communication - than s 18C of the RDA.237

It might, however, be argued that, in those jurisdictions where both civil and criminal

sanctions are employed (New South Wales, the Australian Capital Territory, South

Australia, Queensland and Victoria), the additional use of the criminal law is

excessive and makes that which is initially proportionate (the civil provisions) no

longer so. In Keegstra, McLachlin J made a number of arguments along these lines.

They included: that criminal provisions will not deter hate-mongers; that such

provisions make free speech martyrs of the accused; that civil sanctions are more

effective; and that criminal law procedures and sanctions are too severe and operate to

significantly chill legitimate expression.238 I have earlier argued that some of these

propositions may be dubious and certainly lack empirical support.239 But even if

236 See Evans and Stone, above n 215. 237 The higher harm threshold in the State and Territory laws means that more ‘political communication’ is lawful in these jurisdictions than under the RDA. The amount of ‘political communication’ left unregulated by the State and Territory laws is the ‘gap’ between the two harm thresholds. In other words, that range of communications that may reasonably offend, insult, humiliate or intimidate on the grounds of race but do not amount to hatred, serious contempt or severe ridicule, will not attract civil liability. 238 Keegstra [1990] 3 SCR 697, 852–855 and 860–862. 239 See above text accompanying nn 116-125.

125

accepted as true, the State is not required to demonstrate that the legislative means least restrictive of the implied freedom were, in fact, employed to meet the relevant test for necessity. If the criminal provisions are a ‘reasonable legislative effort to minimize the infringement of the [implied freedom]’, they pass constitutional muster.

To this end, and as shown in my earlier analysis on the significance of the detriment caused by these provisions, most of the criminal racial vilification laws proscribe little political communication of value. The only kind of political communication infringed is that by which ‘a public act, incite[s] hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the[ir] race … by means which include threatening, or inciting others to threaten, physical harm towards, or towards any property of, the person or group of persons’ or when the political communication - which can include the possession of threatening or abusive written or pictorial material whether or not publication is intended - is made with the intent to harass or create, promote or increase hatred, serious contempt or harassment of a racial group or a member of that group.240

The extent of the political communication sensitivity becomes apparent when it is

understood that under most of the laws criminal liability is attracted only with the

presence of an aggravating factor (eg, threat to do violence to person or property or an

intent to create, promote or increase hatred of or serious contempt for, or harassment

towards a racial group or member of a racial group). In other words, the idea or

viewpoint contained in the ‘political communication’ is of no concern to these

criminal laws. The need to prove mens rea also ensures that no political

240 See above Part III(C)(2).

126

communication that unintentionally or even negligently incites the relevant, very serious harm will have criminal consequences.241

The one notable exception, however, in this regard are the Western Australian offences that can be committed without a subjective mens rea. The availability of the broadly defined, free speech/public interest defences ensures that political communication cannot attract criminal sanction if it is made in good faith and in a manner that is reasonable. But as detailed above, they do not quell the capacity of these offences to chill valuable political communication on race-related issues. Nor do they protect from serious criminal sanction a person who engages in this kind of political speech in good faith but whose method of communication - the language or conduct used to deliver the message - is considered unreasonable.242 So in my view it misunderstands and under-estimates the nature and extent of the threat to political communication which these offences pose to consider that the defences available ensure that the laws are sufficiently sensitive to and compatible with the implied freedom. The chilling capacity of these criminal laws is of course difficult to quantify.

But it is incumbent on the relevant parliaments to at least take special care when framing criminal laws that may encroach upon this constitutionally protected zone of communication. I have earlier argued that Australian racial vilification laws in general do effectively burden freedom of political communication. So it betrays a distinct lack of sensitivity to the implied freedom to nonetheless enact laws that may expose persons engaging in this form of constitutionally protected speech to the threat of criminal sanction without the prosecution even having to prove that it was undertaken

241 Dickson CJ makes a similar point in the relation to the Canadian criminal provision in Keegstra [1990] 3 SCR 697, 773–6. 242 The meaning of ‘reasonably and in good faith’ in the context of racial vilification defences is point is discussed in detail in Chapter Three: Part IIIC.

127

with the intent of bringing about the proscribed harm.243 I think there must,

consequently, be some doubt as to whether these four offences can be characterised as

reasonable legislative efforts to minimise the infringement of the implied freedom

when framing criminal racial vilification laws.

In relation to the Commonwealth’s criminal offence of seditious racial incitement, the

law has by no means been drafted with sufficient clarity or sensitivity to free

speech.244 There is also ambiguity as to its mental requirements and the lamentable

history of sedition prosecutions more generally. The text of the offence is maladroit

and in important respects – namely the phrase ‘peace, order and good government -

both anachronistic and worryingly imprecise. It is for these reasons that I will argue in

Chapter Four that s 80.2(5) ought to be repealed. But these problems, important as they are, are not dispositive of whether the offence meets this proportionality level. It does not necessarily equate to an unreasonable legislative effort in the relevant

constitutional sense. As noted, only an extreme and therefore very narrow range of

political communication is caught by s 80.2(5). And this minimal infraction of the

implied freedom is lessened – maybe to vanishing point - by the availability of the

defences for good faith political dialogue and criticism. In this regard, Ben Saul is

probably right to note that ‘most of the defences are directed towards protecting

political speech, at the expense of other types of expression.’245 But even if s 80.2(5)

is not sufficiently sensitive to freedom of speech more generally, these defences alone

make the offence a reasonable legislative effort to minimise the political

communication interest at stake.

243 See further Chapter Four: Part IIIA. 244 See further Chapter Four: Part IVC. 245 Ben Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 University of New South Wales Law Journal 875.

128

My analysis has so far demonstrated that, apart from the four Western Australian offences that can be committed without a subjective mens rea, the respective parliaments have made reasonable efforts to minimise the infringement of the implied freedom when framing criminal laws to punish the most serious instances of racial vilification. Moreover, for those civil and criminal provisions that do, individually, satisfy the test for necessity, their combined use in these State and Territory laws can brook no constitutional objection. The comments of Dickson CJ in Keegstra are relevant in this regard. That case also involved a legislative scheme where both criminal and civil racial vilification provisions were utilised:

In my view, having both avenues of redress at the state’s disposal is justified

in a free and democratic society. I see no reason to assume that the state will

always utilize the most severe tool at hand, namely, the criminal law, to

prevent the dissemination of hate propaganda. Where the use of the [criminal]

sanction … is imprudent, employing human rights legislation may be the more

attractive route to take, but there may equally be circumstances in which the

more confrontational response of criminal prosecution is best suited to punish

a recalcitrant hate-monger. To send out a strong message of condemnation,

both reinforcing the values underlying [the criminal provision] and deterring

the few individuals who would harm target group members and the larger

community by intentional communication of hate propaganda, will

occasionally require use of the criminal law.246

But does this passage contain the implicit suggestion (or at least possibility) that a legislative regime that uses criminal provisions only to regulate racial hatred might not satisfy the relevant test for necessity? If so, all the Western Australian criminal

246 Ibid 785.

129

provisions may be constitutionally vulnerable for example. But one might reasonably

argue that using only criminal provisions to regulate racial hatred displays more

sensitivity to the implied freedom by preserving a greater space for ‘political’ and

other forms of communication without attracting the possibility of legal sanction. This point alone may suggest that it is proportional in this sense for a parliament to use a criminal provision as the sole means for regulating racial vilification.247 In any event,

whilst the Western Australian law provides for criminal sanctions only, it is still open

to the citizens of that State to pursue a civil remedy through the RDA.248 So, legal

coverage in Western Australia in fact extends to both civil and criminal sanctions in

the same way as the racial vilification laws of New South Wales, the Australian

Capital Territory, Queensland and Victoria. For these reasons, the Western Australian criminal provisions that require proof of mens rea will likely satisfy the test for necessity.

(iii) Balancing

As earlier noted, if in the application of the Lange test on the review model proposed

a racial vilification law is proportional when it reaches the balancing stage, an

ultimate finding of validity is likely. My analysis has shown that, with the exception

of the Western Australian strict liability offences, each racial vilification law is an effective, appropriate or rational measure to secure its claimed end and a reasonable legislative effort has been made to minimise the infringement of the implied freedom.

247 In Keegstra, Dickson CJ noted that, in relation to addressing racial vilification, ‘the government may legitimately employ a more restrictive measure, either alone or as part of a larger programme of action’: [1990] 3 SCR 697, 785 (emphasis added), though no reason independent of the justification offered for the combined (civil and criminal) legislative package was given for this conclusion. 248 For example, the overarching federal (civil) coverage provided by the RDA was a reason for the shape of SA racial vilification laws: see McNamara, Regulating Racism, above n 3, 267. It cannot, however, have been a factor in WA choosing only criminal sanctions, because its law was enacted in 1990, before the passage of the Racial Hatred Act 1994 (Cth) which incorporated the civil racial vilification provisions in the RDA.

130

These laws, moreover, do have a ‘compelling justification’ - to address the issue of

racism and the serious harms and inequalities that it engenders - and provide a range

of significant benefits to the victims of racial vilification and to the citizenry more generally. These include the provision of a civil and/or criminal remedy to victims of racial vilification who have often suffered serious psychological and physical damage.

This, in turn, operates to protect their personal liberty and freedom of speech and promotes substantive legal equality as a consequence. These conditions serve to advance personal development, meaningful democracy and a tolerant citizenry.

The Commonwealth’s offence of seditious racial incitement serves the additional – fundamental - purpose of protecting constitutional government; the very institution from which the implied freedom is derived and to which it serves. It also – at least partially - implements Australia’s international obligations to make racial (and religious) incitement a crime.249 This is not only an important development in its own

right but makes it likely that section 80.2(5) is a law with respect to (the treaty

implementation aspect of) the external affairs power of the Constitution.250

In sum, these racial vilification laws satisfy the balancing test for providing benefits

that clearly outweigh the negligible detriment they have on ‘political communication’.

IV CONCLUSION

There is disagreement as to how the Lange test should be applied when assessing the

compatibility of a law with the implied freedom. My analysis has shown that the

validity of a law may depend on which review approach a judge chooses to employ.

249 See Australian Law Reform Commission, Review of Sedition Laws, Discussion Paper No. 71 (May 2006) [9.89]-[9.90].

250 See Ibid [9.61].

131

One aim of this Chapter was to demonstrate that the two-tier approach may not

facilitate the proper application of the Lange test. Instead, I argued for a single test of

constitutionality which is informed by and further serves what I consider to be the

rationale of the implied freedom.

In Part II of the Chapter a review model was proposed that incorporates a particular

application of the test for proportionality. This model recognises that the

constitutional duty of the court is to guarantee the necessary rather than optimal level of political communication for our constitutional system of government to effectively function in order to secure the meaningful exercise of the sovereignty of the people. It translates to a more limited supervisory judicial role in the application of the implied freedom. More specifically, it was argued that if a law is an effective, appropriate or rational means to secure a legitimate constitutional end and its benefits outweigh its detriment to political communication then it ought to be valid even when those means are not the least restrictive of the implied freedom.

In Part III of the Chapter this conception of the Lange test and the review model proposed were applied to Australian racial vilification laws to assess their compatibility with the implied freedom. The only laws found to be problematic in this regard were the Western Australian offences that can be committed without a subjective mens rea. Otherwise, the laws were found to be proportional in the relevant

constitutional sense and therefore compatible with the implied freedom. In the

language of Lange, they are reasonably appropriate and adapted measures to secure a

legitimate, indeed compelling, constitutional purpose. If the citizenry still rejects the

efficacy of these racial vilification laws the remedy is political not constitutional. This

132

is what the rationale of a minimalist model of judicially protected popular sovereignty necessarily entails.

133

CHAPTER THREE

CIVIL LAWS

Morality cannot be legislated but behaviour can be regulated. Judicial

decrees may not change the heart but they restrain the heartless.1

I INTRODUCTION

In Chapters One and Two I have outlined the constitutional parameters for Australian laws where political communication forms part of the conduct sought to be regulated and determined that some instances of racial vilification will fall within this constitutionally protected zone of expression. My analysis, however, demonstrated that most Australian racial vilification laws are, nevertheless, compatible with the implied freedom. I now turn to my second thesis aim: a critical evaluation of the normative legitimacy (and regulatory value) of Australian racial vilification laws. I will examine the civil laws in this Chapter, criminal laws in Chapter Four and then will test the key arguments that emerge from these chapters through a case study – on history denial – in Chapter Five.

For three reasons, the time is ripe to consider the normative legitimacy of Australian civil racial vilification laws. First, they have now been on the statute books for over

1 Martin Luther King, speech in Nashville, Tennessee, 27 December 1962, in James Melville Washington (ed), A Testament of Hope: The Essential Writings of Martin Luther King Jr (1986).

134

15 years and operate in every Australian jurisdiction save for the Northern Territory and Western Australia.2 Second, the continuing controversy in Australia surrounding the dissemination of Holocaust-denial material through the internet, pamphlets, books and videos brings into sharp relief the pervasive tension between (civil) racial vilification laws and freedom of speech.3 This tension was highlighted by the storm that surrounded the ultimately unsuccessful attempt by the Melbourne Underground

Film Festival to screen the David Irving film ‘The Search for Truth in History’.4 And third, we have witnessed an upsurge in racial vilification against Australian Muslims,

Arabs and Jews since the September 11 attacks on the World Trade Center in New

York City and the ongoing ‘war against terrorism’ that they triggered.5 This may, prima facie, suggest an increased need for and prosecution of such laws.

A THE CASE FOR CIVIL RACIAL VILIFICATION LAWS IN

AUSTRALIA

There is a range of meritorious reasons why Australian parliaments have enacted

(civil) laws to regulate racial vilification. These include but are not limited to the following:

2 Racial Discrimination Act 1975 (Cth) ss 18C & D; Anti-Discrimination Act 1977 (NSW) ss 18C & D; Racial Vilification Act 1996 (SA) ss 3 & 6; Wrongs Act 1936 (SA) s 37; Discrimination Act (ACT) ss 65; Anti-Discrimination Act (Qld) ss 124A; Racial and Religious Tolerance Act 2001 (Vic) ss 7-14; Anti-Discrimination Act 1998 (Tas) ss 17 & 19. 3 The Australian Holocaust-denial cases are examined below in Part III(B)(3)(ii)(a) and see further Ch 5: Part III(A)(1) for a discussion of Irving v Penguin Books Ltd & Lipstadt. 4 In Lipshutz v Melbourne Underground Film Festival [2003] VCAT 241 (Unreported, Higgins J, 7 July 2003) the applicant unsuccessfully sought an injunction to prevent the screening of the David Irving documentary ‘The Search for Truth in History’. However, the Melbourne Underground Film Festival chose not to screen the film after protests from the Jewish and wider community. 5 See Islamic Council of Victoria v Catch the Fire Ministries Inc. [2004] VCAT 2510 (Unreported, Higgins J, 22 December 2004); Barney Zwatrz, ‘Group wants vilification law axed’, The Age (Melbourne) 16 October 2003, 6; William Jonas, ‘Listen - National Consultations on Eliminating Prejudice against Arab and Muslim Australians’ (Speech delivered at the launch of the Isma Project, Sydney, 21 March 2003); John Lyons, ‘Terror target no. 1: the Jewish Community’ (Cover story on Channel Nine Sunday Program, 7 September 2003) http://sunday.ninemsn.com.au/sunday/cover_stories/article_1376.asp

135

• The need to provide a remedy to persons who suffer the often extremely harmful

psychological and physical effects resulting from racial vilification.

• To nip in the bud racist words or conduct that if left unchecked may fester and

sprout as serious or even deadly violence at a later time.

• To further the value of legal equality through substantive and meaningful legal

measures.

• To send a strong State-sanctioned message that - in an Australian community

which values ethnic and cultural diversity - racist speech and conduct are

unacceptable, harmful, dangerous and will not therefore be tolerated.

• To fulfil our international law obligations.

• To provide an environment where information and ideas can be proffered and

exchanged in a civil and respectful manner. Such societal conditions are more

conducive to personal development, meaningful democracy and a tolerant

citizenry.

The law is however just one of the tools available to combat racial vilification. Others include primary and secondary school education programs, government-sponsored advertising campaigns, affirmative action policies and opportunities for counterspeech either in conjunction with or in the alternative to legal measures.6 However, as

Luke McNamara correctly points out, racial vilification laws are likely to be a

permanent fixture on the Australian legal and political landscape.7 More importantly,

6 For a detailed account of using counter-speech as a method for addressing race hate speech see Katharine Gelber, Speaking Back: The Free Speech versus Hate Speech Debate (2002). 7 Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 3-4 where the author writes that ‘because racial vilification laws are a feature of the Australian legal system, scholarly

136

the time has long gone where dogmatic assertions of the need for free speech absolutism can or ought to carry the day. Three landmark reports on racist violence and race relations in Australia more generally written during the 1990’s and the work of the critical race theorists and other American scholars has documented in stark and often disturbing detail the very real harms8 caused by racist words and conduct.9 And though free speech concerns and arguments regarding racial vilification laws are serious and pervasive, they should not presumptively trump other relevant values and interests or stifle appropriate legislative initiatives to combat racial vilification.

Therefore, a more constructive approach is to accept the (most likely) long-term legal and political reality of racial vilification laws in Australia and turn to consider their efficacy and, if possible, how they might be further refined and improved.10 This is the primary aim of Chapters Three, Four and Five. To this end, I will argue that well- targeted civil laws have the capacity to play an important – though limited – role in the regulation of racial vilification in Australia.

analysis need not be limited to the conventional threshold question regarding the philosophical compatibility of racial vilification legislation with philosophical, political or legal commitments to free speech. Indeed, the existence of racial vilification laws in Australia demands that additional lines of research inquiry be pursued.’ 8 An underlying premise of Australian racial vilification laws is the recognition that racist words and conduct may cause serious physical and psychological harm. This is clearly evidenced by the relevant harm thresholds outlined below and in Chapter Four regarding criminal racial vilification laws. Indeed, under no Australian racial vilification law – civil or criminal – must the plaintiff or prosecution establish that physical harm was occasioned in order for an action to succeed. 9 The three reports were: Human Rights and Equal Opportunity Commission, Racist Violence: Report of National Inquiry into Racist Violence in Australia (1991), Australian Law Reform Commission, Multiculturalism and the Law (1992), Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families (1997). A selection of Critical Race Theory writings are contained in Mari Matsuda et al, Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993). 10 In accepting that existing racial vilification laws are a fixture on the Australian legal landscape and taking them as the starting point of my analysis, I am not suggesting that philosophical issues are now foreclosed for discussion. On the contrary, free speech considerations, for example, are a continuing focus of this Chapter. This recognises the inextricable link and possible conflict between racial vilification laws and speech and communication interests and the ongoing dialogue that must necessarily occur between them.

137

B THE METHOD USED TO CRITICALLY EVALUATE AUSTRALIAN

CIVIL RACIAL VILIFICATION LAWS

In this Chapter I will consider the normative legitimacy of Australian civil racial

vilification laws by evaluating them against two key criteria:

• Whether the civil laws are drafted in a way that does not proscribe or chill

valuable freedom of speech.

• Whether the civil laws are drafted with sufficient precision and clarity.

The very nature of civil racial vilification laws is that some forms of speech are no

longer permissible, or at least can only be communicated if done for a legitimate

public, scientific or academic purpose. It becomes crucial, therefore, that these laws

are sufficiently sensitive to freedom of speech less much valued and valuable speech

is proscribed or chilled. But this is no small matter or straightforward task, for as will

be detailed shortly, the threat to free speech is compounded by the acute difficulty of

drafting laws when speech forms a significant part of the conduct to be regulated.

The second criteria – which has a symbiotic relationship with the first – is especially

important regarding racial vilification laws. It should first be noted, however, that

indeterminacy in the law is not unique nor is precision and clarity always a virtue.11

Timothy Endicott has persuasively argued that vagueness in the law is on occasion

unavoidable,12 and sometimes desirable.13 However, what remains centrally

11 Indeterminacy occurs in a number of areas including but not limited to the law of obscenity and blasphemy, the scope of the implied constitutional right to freedom of political communication in Australia, what constitutes jurisdictional error in administrative law, the law of incitement and sedition and even the concept of the reasonable person so central to the law of torts and aspects of the criminal law. 12 Timothy Endicott, The Impossibility of the Rule of Law (1999) 19 Oxford Journal of Legal Studies 1, 4-6 where the author gives the example of definitions of offences of violence in the criminal law and torts.

138

important is that ‘the law must be capable of guiding the behaviour of its subjects’.14

But in the area of racial vilification there are compelling reasons why sufficient

precision and clarity of legislation is desirable.

First, and most importantly, is that sufficiently clear and precise civil racial

vilification laws lessen the likelihood of valuable speech on race matters being

proscribed or chilled. Whilst broad-ranging defences (the norm in Australian law15) may allay some of these speech concerns, this indeterminacy in turn has the capacity to erode the efficacy of such laws by failing to provide a civil remedy or meaningful protection to victims of racial vilification. Consequently, the primary goal of civil racial vilification laws in Australia – to regulate racial vilification without unreasonably curbing speech – is compromised when the laws themselves lack sufficient precision and clarity. Improving their precision and clarity would make these laws more accessible and, in this instance, strengthen the rule of law.16 With a

firmer understanding of their legal rights and obligations the citizenry can plan their

communicative conduct accordingly. This has an added importance with citizens now

increasingly willing and able to seek legal redress for racial vilification.

Second, laws lacking sufficient precision and clarity ‘leave too much to be decided by

persons other than the people’s representatives’17 and can be rightly criticised as

13 Ibid 7-8 where the author argues for example that putting a precise time limit on criminal prosecutions would increase precision but also increase arbitrariness. 14 Joseph Raz, The Authority of Law (1979) 214 cited in Endicott, above n 12, 2. 15 See below Part III(B): Free Speech/Public Interest Defences Under the Commonwealth and New South Wales Models. 16 On this point see Joseph Raz, Ethics and the Public Domain (1994) 373-374 and Justice Michael McHugh, The Growth of Legislation and Litigation (1995) 69 Australian Law Journal 37, 40. For a detailed discussion on this aspect of the rule of law see Geoffrey de Q.Walker, The Rule of Law: Foundation of Constitutional Democracy (1988) 25-27. But see Ronald Dworkin, Political Judges and the Rule of Law (1978) 261-262 where the author outlines a substantive, ‘rights’ conception of the rule of law in contrast to a more ‘rule-book’ account. My above analysis is probably consistent with the ‘rule-book’ conception of the rule of law. 17 Antonin Scalia, ‘The Rule of Law as a Law of Rules’ (1989) 56 University of Chicago Law Review 1175, 1176.

139

undemocratic on that account. This is not to suggest that reserving a measure of

discretion for decision-makers in this area is objectionable. Indeed it is both inevitable

and desirable with civil racial vilification laws as explained below.18 It is, however,

problematic when in most cases the putative legal standards contained in a law

provide little interpretive guidance to the relevant decision-maker. Where the good faith but ad-hoc assessment by individual judges and administrators of indeterminate concepts determines controversies not the application of reasonably precise and knowable legal standards. It is undemocratic for judges and administrators are, in effect, exercising legislative power by determining the substantive content of the laws they are to apply.19 This argument suggests that courts should limit ‘themselves to

the accurate application of general rules, rules which should be clear, precise and

empirically applicable expressions of the political will of the people’s

representatives.20 It ‘is democratic in that it affirms that the source of these

authoritative rules is empirically identifiable institutional acts which are the outcome

of democratic procedures’21 not the subjective conceptions of justice of judges and

administrators articulated on a case by case basis.

My analysis will show that too often the application of civil racial vilification laws in

Australia has exhibited this undemocratic quality. Consistent with democracy and the

principle of popular sovereignty that underpins the Australian Constitution, legislative

18 See Endicott, above n 12, 17-18 for an argument that ‘[t]here is no coherent way to characterize the rule of law as an ideal that is intrinsically opposed to discretion’. But see Ronald Dworkin, Taking Rights Seriously (1977) 81 where the author rejects the positivist use of discretion to resolve hard cases and argues that even hard cases have a “right” outcome. On the nature of judicial discretion generally see Aharon Barak, Judicial Discretion (1987). 19 For an account of this argument see Scalia, above n 17, 1176. 20 Tom Campbell, ‘Democracy, Human Rights and Positive Law’ (1994) 16 Sydney Law Review 195, 196. 21 Tom Campbell, ‘Democratic Aspects of Ethical Positivism’ 4 in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000).

140

power ought to be exercised by our elected not unelected representatives.22 Moreover,

Geoffrey de Q. Walker has noted that when ‘law is simply a series of patternless

exercises of state power…the outcome of any encounter with government can no

longer be predicted and equality before the law is also lost.23

But the concept of racial vilification is hard to pin down.24 Not least because

reasonable minds will differ as to what level of racist conduct ought to constitute

vilification for civil law purposes and how one can determine with some predictability

when that harm threshold is reached. It is a concept with a subjective component,

meaning that some degree of indeterminacy will necessarily characterise racial

vilification laws. Indeed, it is no bad thing that decision-makers in this area have a

level of discretion, so long as sufficient criteria exist to guide the exercise of that

discretion. This guards against arbitrariness. It is a complex, emotive and delicate area

where free speech and other legitimate concerns may be trammelled if the laws are

enforced in a mechanistic or unthinking manner. Moreover, laws are more likely to be

respected and therefore effective when applied, so far as possible, in a just as well as

principled manner.

However, notwithstanding the elusive nature of racial vilification, I will show that it is

possible and desirable to frame more precise civil laws than currently exist. To this

end, the Chapter concludes with two proposals for legislative reform. If adopted, these

measures ought to secure a measure of consistency in how cases are determined, in

22 See Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 137-138 (Mason CJ)(‘Australian Capital Television’); Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104, 176 (Deane J); Leeth v Commonwealth (1992) 174 CLR 455, 484 (Deane and Toohey JJ); McGinty v Western Australia (1996) 186 CLR 140, 230 (McHugh J); Chief Justice Murray Gleeson, The Rule of Law and the Constitution (2000) 6; Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351, 383 (Murphy J). But see Simon Evans, ‘Why is the Constitution Binding? Authority, Obligation and the Role of the People’ (2004) 25 Adelaide Law Review 103. 23 Walker, above n 16, 25 (footnote omitted). 24 See McNamara, above n 7, 9 where the author noted but did not explore the problem of defining racial vilification.

141

doing so addressing aspects of the free speech, predictability, democracy and equality

concerns noted above.

In any event, my analysis in this Chapter will focus on the two main civil law models

currently operating in Australia.25 The first is the ‘Commonwealth model’ where the key provision – section 18C - is located in the Racial Discrimination Act 1975

(Cth)(‘RDA’). It reads:

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

(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate

or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of

the other person or of some or all of the people in the group.

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

if it:

(a) causes words, sounds, images or writing to be communicated to the public;

(b) is done in a public place; or

(3) In this section:

25 South Australia is the one jurisdiction with a unique civil law model. It incorporates a law similar to the New South Wales model but in the form of a statutory tort not the anti-vilification (human rights) regime which operates in those jurisdictions with the New South Wales model – see further McNamara, above n 7, 259-303.

142

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.

The Commonwealth model is notable for its comparatively low harm threshold -

‘offend, insult, humiliate or intimidate’ – which I will consider in some detail shortly.

The other main civil law model has a similar structure but incorporates a higher harm

threshold. An example is section 20C of the Anti-Discrimination Act 1977 (NSW). It

reads:

It is unlawful for a person, by a public act, to incite hatred towards, serious

contempt for, or severe ridicule of, a person or group of persons on the ground

of the race of the person or members of the group.

Where a public act includes26:

(a) any form of communication to the public, including speaking, writing,

printing, displaying notices, broadcasting, telecasting, screening and playing

of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a))

observable by the public, including actions and gestures and the wearing or display

of clothing, signs, flags, emblems and insignia, and

knowledge that the matter promotes or expresses hatred towards, serious

contempt for, or severe ridicule of, a person or group of persons on the ground

of the race of the person or members of the group.

26 Anti-Discrimination Act 1977 (NSW) s 20B.

143

This kind of civil law - or something very similar – has been enacted in South

Australia, the ACT, Queensland, Tasmania and Victoria.27 I will call it the ‘New

South Wales model’ for it was in this jurisdiction that the first civil racial vilification

law of this kind was passed.28 Consequently, though I will refer only to the New

South Wales model in the following analysis, the arguments made and conclusions

drawn also apply to the civil racial vilification laws operating in these other State and

Territory jurisdictions.

II FREEDOM OF SPEECH

A THE RDA HARM THRESHOLD

The main civil law threat to valuable free speech is the low harm threshold in s 18C of

the RDA. As noted, it is prima facie unlawful for a person to do a public act that ‘is

reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’

another person or group on account of their race or ethnicity. In a diverse and multi-

racial society with a robust democratic and speech tradition, this is a relatively easy to

harm threshold to breach. This is especially so when all that need be shown is that a

reasonable person of that particular race or ethnicity would be so affected.29 It may,

however, be argued that the scope of the free speech/public interest defences significantly diminishes the free speech threat posed by this low (objective) harm threshold.30 But that is to misunderstand the chilling capacity of such a law and, therefore, the full nature of the threat to freedom of speech. For a person who is

concerned that their speech may breach the harm threshold may, wisely, choose to

27 Wrongs Act 1936 (SA) s 37; Discrimination Act (ACT) ss 65; Anti-Discrimination Act (Qld) ss 124A; Racial and Religious Tolerance Act 2001 (Vic) ss 7-14; Anti-Discrimination Act 1998 (Tas) ss 17 & 19. 28 Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW). 29 See below Part III(A)(3). 30 See below Part III(B).

144

remain silent rather than run the risk of a civil action for racial vilification where they

must either settle or marshal the often significant time and financial resources needed

to establish a defence. This process may filter some speech that is repugnant and of

little worth but will also, inevitably, chill that which can make an important and

valuable contribution to public discourse on race-related issues.

I want to now explore in more detail that nature of the free speech threat posed by the

s 18C harm threshold and how it came to pass.

1 Parliamentary intent and the ‘the vice of linguistic over-inclusiveness’31

On reading the parliamentary debates and other relevant materials that proceeded the enactment of the Commonwealth model, it reveals a considerable dislocation between

the stated intent of the Parliament regarding the Racial Hatred Bill 1994 (Cth)(‘RHB’)

– the Bill which introduced the civil racial vilification provisions into the RDA – and

the provisions finally enacted. On one level this is unremarkable as the RHB was significantly amended during its passage through the Parliament. Arguably the centrepiece provisions - those which criminalised a range of serious racist conduct - were deleted from the RHB in the Senate. 32 But the problems run deeper than this.

The clear intent of Parliament regarding the RHB was to criminally and civilly

prohibit acts of racial hatred. It is erroneous, then, to suggest that parliamentary

intent as evidenced in the Second Reading speech of then Attorney-General Michael

Lavarch and the explanatory memorandum is no longer instructive regarding the

meaning of s 18C, as this provision formed an integral part of the RHB as the

following passages from those sources underline.

31 Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 84. 32 For a detailed discussion on the legislative history of the RHB see McNamara, above n 7, 40-49.

145

This Bill makes provision in relation to racial hatred amending the Crimes

Act 1914 to provide for three criminal offences and the Racial Discrimination

Act 1975 to provide for a civil prohibition…In doing so, the Bill closes a gap

in the legal protection available to the victims of extreme racist behaviour.33

The explanatory memorandum made these further, specific comments on the civil

prohibition in the RHB which became s 18C, unaltered.

The proposed prohibition on offensive behaviour based on racial hatred

would be placed within the existing jurisdiction of HREOC to conciliate

and/or determine complaints alleging breaches of the Racial Discrimination

Act.34

These comments were largely reproduced by the Attorney-General in his Second

Reading speech.35 Even the long title of the Act emphasised the centrality of racial

hatred to the new civil provisions: ‘An Act to prohibit certain conduct involving the hatred of other people on the ground of race, colour or national or ethnic origin, and for related purposes.’

But it is clear enough that one can racially insult or offend another without ever expressing or intending hatred for that person’s race or ethnicity. Consider a claim by a politician that ‘[h]ome invasions are ethnically based, Lebanese or Iranian, not

Australian’36 or when Australian cricketer Darren Lehmann called a Sri Lankan

opponent ‘a black cunt’ upon dismissal. These racial epithets no doubt offended and

insulted the relevant victims and, moreover, may well elicit the same response from

33 Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) 1 (emphasis added). 34 Ibid 9 (emphasis added). 35 Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1994, 3336-3337 and 3342 (Michael Lavarch, Attorney-General). 36 Feghaly v Oldfield (Unreported, Commissioner Beech, 19 April 2000) 2 (‘Feghaly’).

146

most members of the relevant racial or ethnic group.37 I would argue, however, that in both cases the conduct of itself did not amount to an expression of racial hatred. These words do not suggest an intense dislike or detestation of that person(s) on account of their race or ethnicity.

Arguably, this sort of low-end racist conduct does not constitute the kind of extreme racist behaviour that Parliament intended its racial vilification law to regulate. The root of the problem lies with Parliament choosing the terms ‘insult’ and ‘offend’ to effect its intentions. They are words and - in the context of s 18C - legal standards capable of covering, and therefore proscribing, an extraordinarily broad range of conduct; from the vicious and calculated epithet to the unintended and relatively trivial slight. The problem in speech terms is that the very nature of public discourse on race-related issues – immigration policy for example – is that it will, inevitably, offend or insult in the relevant legal sense. By choosing inappropriate terms to perform a specific regulatory task – the civil proscription of ‘extreme racist behaviour’ – Parliament has burdened a much broader spectrum of speech than it either intended or required to secure its legislative objective.

In this regard, the s 18C harm threshold constitutes a classic and worrying example of what Frederick Schauer calls the ‘vice of linguistic over-inclusiveness’.38 He explains it in the following terms:

Any exercise of state power involves an attempted ‘fit’ at two levels. The

specific mode of regulation must fit the goals that provide the reason for

37 This is the s 20C objective standard and indeed in the former case the conduct was held to offend s 20C. The Lehmann incident resulted in match referee Clive Lloyd reporting him under the International Cricket Council’s Code of Conduct and the imposition of a five match ban from one day internationals. No s 20C complaint was however lodged by the victim. 38 Schauer, above n 31, 84.

147

regulating, and the actual conduct regulated must fit the particular regulating

rule chosen. If distinctions are especially difficult to draw, the fit may be loose

at both levels, creating a greater than normal risk of over-inclusive regulation.

The hypothesis here is that ‘slippery slope’ and ‘where do you draw the line?’

arguments may have special relevance with respect to regulating

speech….The first type of slippery-slope argument…is the phenomenon of

conceptual vagueness, or, more precisely, linguistic over-inclusiveness. Thus,

assume that x is that which can be regulated, and that y is that which, although

it cannot permissibly be regulated, is nevertheless the source of our slippery-

slope fear. Slippery-slope effects from linguistic over-inclusiveness occur

when the term we use to describe x may also include y as well. It is quite

possible that the infinite variety of linguistic and pictorial expression makes it

impossible, given the current tools of our language, to specify with precision

the utterances that are to be prohibited. If our descriptive language about

speech is less refined or less precise than our descriptive language about other

forms of conduct – and this seems by no means an implausible hypothesis –

then any regulating rule may be particularly vulnerable to the vice of linguistic

over-inclusiveness.39

In other words, Schauer rightly considers it far more difficult to write a (civil racial vilification) law that is reasonably precise in its coverage when that law seeks to regulate speech as opposed to other forms of conduct. For such is the inherently fluid and equivocal nature of speech that there is always a greater danger that a ‘speech law’ will operate to proscribe a much broader range of speech than was originally intended by the legislature. And the seriousness of this ‘vice’ as it pertains to s 18C is

39 Ibid 83-84.

148

even more acute when the Parliament chooses to use largely open-ended and

ambiguous terms such as ‘offend and ‘insult’ to effect its legislative intentions.

Moreover, the open-ended and ambiguous nature of the key terms that constitute the

harm threshold infuses s 18C with a lack of precision and clarity. This indeterminacy

lies at the core of the free speech problem just outlined and triggers a new set of

interpretive problems besides. It is to these issues that I now turn.

III TEXTUAL CLARITY AND PRECISION

A SECTION 18C OF THE RDA

In the interpretation and application of s 18C, its indeterminacy has manifested in

three ways. First, in a series of s 18C determinations the judge or administrator has,

‘effectively elevated the threshold by emphasising the concept of “hatred”.’40 Second,

in determining whether a causal connection exists between the impugned conduct and

the race or ethnicity of the complainant, the cases are conflicting as to the strength of

the causal connection required. Most notably, a pattern has emerged where a stronger

connection is in fact required in cases involving less serious conduct. And third, in a

smaller but still significant number of cases there has been a finding that s 18C has

been offended without any harm threshold analysis or reasoning whatsoever.

The following analysis will, I think, demonstrate that the first two interpretive

phenomena stem from (quasi) judicial attempts to imbue s 18C with some interpretive

clarity and precision by applying it in a manner that is faithful to the intent of

Parliament. That is, to civilly proscribe only extreme racist behaviour. This would, in

40 McNamara, above n 7, 82.

149

turn, diminish the threat to valuable speech on race matters posed by the low harm

threshold in s 18C.

1 Elevating the s 18C harm threshold: Parliamentary intent and the interpretive

malady

The root cause of this phenomenon is the dislocation, outlined above, between the

stated intent of the Parliament regarding the RHB and the civil provisions finally

enacted. It is a problem that also plagues the free speech/public interest defences

contained in s 18D to which I will shortly turn. In choosing terms like ‘insult’ and

‘offend’ to secure its legislative purpose, the Parliament has created an interpretive malady for the relevant decision-makers.

For example, judicial and administrative attempts to define words like ‘insult’ and

‘offend’ become a circular and question-begging exercise. The best that can usually

be done is to outline the Macquarie and/or Oxford English Dictionary definitions of

the terms as Hely J did in Jones v Scully.41 But these dictionaries define the words using synonyms, which is of little use when the task of the decision-maker is to elucidate and then apply a legal standard. It simply raises the same definitional question for the synonyms used, and so on. For example, the difficulty in ascribing a clear meaning to the word ‘insult’ was illustrated by the 1972 House of Lords

decision in Brutus v Cozens.42 The case concerned the interpretation of s 5 of the

Public Order Act 1936 (UK).43 Lord Reid wrote:

41 [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [103] (‘Scully’). 42 [1972] 2 All ER 1297. 43 In addition to the summary offence created by s 5 for conduct which is or likely to cause harassment, alarm or distress, the Public Order Act 1986 (UK) also contains another summary offence for conduct which is or likely to cause fear or provocation of violence and six criminal offences (ss 18-23) which proscribe conduct intended or likely to stir up racial hatred. A common threshold component of each of these offences is the need for conduct that is ‘threatening, abusive or insulting’. (emphasis added) See

150

We were referred to a number of dictionary meanings of ‘insult’ such as

treating with insolence or contempt or indignity or derision or dishonour or

offensive disrespect. Many things otherwise unobjectionable may be said or

done in an insulting way. There can be no definition. But an ordinary sensible

man knows an insult when he sees or hears it…Insulting means insulting and

nothing else.44

The indeterminate nature of the s 18C harm threshold is manifest. In such

circumstances it is appropriate, then, for a judge or administrator to seek recourse to

extrinsic materials such as the Second Reading speech and the explanatory

memorandum to help ascertain the meaning of s 18C.45 As outlined above, these

extrinsic materials suggest that Parliament intended the Commonwealth model to

prohibit acts of racial hatred in an attempt to curb extreme racist behaviour. This may

explain why in at least six s 18C determinations the judge or administrator has

‘effectively elevated the threshold by emphasising the concept of “hatred”.’46

In the first s 18C determination then President of HREOC Sir Ronald Wilson, whilst

dismissing the complaint, said the words ‘pom’ and ‘pommy’ used in a newspaper

article to describe English persons ‘could be unlawful in the context of an article

which was plainly malicious or scurrilous, designed to foster hatred or antipathy in

the reader.’47 These words - suggesting that the s 18C harm threshold embodies a

further J C Smith and Brian Hogan, Criminal Law (7th ed, 1992) 757-761 and Anne Twomey, ‘Laws Against Incitement to Racial Hatred in the United Kingdom’ (1994) 1 (1) Australian Journal of Human Rights 235. 44 Brutus v Cozens [1972] 2 All ER 1297, 1300 (emphasis added). 45 Acts Interpretation Act 1901 (Cth) s 15AB. 46 McNamara, above n 7, 82. 47 Bryant v Queensland Newspaper Pty Ltd [1997] HREOCA 23 (Unreported, President Ronald Wilson, 15 May 1997) 1 (emphasis added) (‘Bryant’).

151

notion of racial hatred - were expressly endorsed in Shron v Telsta48 and De La Mare v Special Broadcasting Service.49

Similarly, in the matters of Creek v Cairns Post Pty Ltd50 and Scully the relevant judges considered that the harm threshold denotes ‘profound and serious effects, not to be likened to mere slights’.51 This conclusion was drawn in both cases after recourse was had to the RHA explanatory memorandum and Second Reading speech to shed light on the meaning of s 18C.52

On the other hand, the Federal Court in Jones v Toben53 and the Full Court on appeal in the same matter clearly rejected this reading of s 18C. In Toben No 1, Branson J stated ‘[i]t would be wrong…to place a gloss on the words used in s 18C of the

RDA.’54 Indeed, although she took issue with the above analysis of Cairns Post,55 she understood Kiefel J to have elicited

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.56

48 [1998] HREOCA 24 (Unreported, Commissioner Innes, 10 July 1998) 1 (‘Shron’). 49 [1998] HREOCA 26 (Unreported, Commissioner McEvoy, 18 August 1998) (‘De La Mare’). 50 [2001] FCA 1007 (Unreported, Kiefel J, 31 July 2001)(‘Cairns Post’). 51 Cairns Post [16]; Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [102]. 52 See also the comments in McLeod v Power [2003] FMCA 2 (Unreported, Brown FM, 14 January 2003) [67] (‘McLeod’). But see Cairns Post where Kiefel J stated [18] that ‘[w]hilst one may accept that hatred of other races is an evil spoken of in the statute, I do not consider that the heading creates a separate test – one which requires the behaviour to be shown as having its basis in actual hatred of race.’ 53 [2002] FCA 1150 (Unreported, Branson J, 17 September 2002) (‘Toben No 1’). 54 Ibid [92]. 55 Ibid where Branson J stated that ‘[i]n Creek v Cairns Post Pty Ltd…Kiefel J observed: “To offend, insult, humiliate or intimidate” are profound and serious effects, not to be likened to mere slights.” I do not understand her Honour to have intended by the above observation to imply that a gloss should be placed on the ordinary meaning of the words that Parliament chose to include in s 18C of the RDA.’ 56 Ibid (emphasis added).

152

By these words I understand Branson J to be saying that a minor though technical

breach of the s 18C harm threshold should not be actionable because this is what

parliament intended. But if the ordinary meaning of the words in s 18C are clear

enough then so too must be the intent of parliament57 - that is, an act, irrespective of

its seriousness or otherwise, which is reasonably likely to offend, insult, humiliate or

intimidate because of the person(s) race or ethnicity infringes s 18C and is actionable.

A minor or technical breach of s 18C is therefore, by definition, still an act that falls

within the terms of the section. Consequently, to draw a distinction between a

technical and real breach of s 18C based upon a judicial understanding of parliamentary intent is to implicitly acknowledge the indeterminacy of the s 18C harm

threshold and to effect the same interpretive result that Branson J expressly eschewed,

namely to ‘place a gloss on the words used in s 18C of the RDA.’58 In other words,

no distinction between a technical and real breach of s 18C need be drawn if the terms

and scope of the section were clear and readily ascertainable.

The reality is, however, that without the notion of racial hatred colouring the

interpretation of the harm threshold, the opposite conclusions regarding this part of s

18C were reasonably open and defensible in Bryant, Shron59 and possibly even De La

Mare;60 cases involving the sort of low-end conduct that based on the explanatory

57 Acts Interpretation Act 1901 s 15AA. In R v L (1994) 122 ALR 464 Burchett, Miles and Ryan JJ stated at 468-469 that ‘[t]he requirement of s 15AA(1) that one construction be preferred to another can have meaning only where two constructions are otherwise open, and s 15AA(1) is not a warrant for redrafting legislation nearer to an assumed desire of the legislature.’ 58 Toben No 1 [2002] FCA 1150 (Unreported, Branson J, 17 September 2002) [92]. 59 In Shron [1998] HREOCA 24 (Unreported, Commissioner Innes, 10 July 1998) 1 Commissioner Innes held that a Telstra phone card containing ‘a picture of a World War II German fighter plane with a Nazi swastika on its tail’ was not ‘”reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate” the complainant or some or all of a group whose origin is Jewish.’ 60 De La Mare [1998] HREOCA 26 (Unreported, Commissioner McEvoy, 18 August 1998) concerned a television program called ‘Darkest Austria’ which satirised the content and stereotypes of ethnographic documentaries that examine African culture and traditions. The program amongst other things discussed ‘expeditions’ to ‘the heart of Europe’ and ‘the natives’ (Austrian men) love of ‘magic paper’ (money) and the ritual of ‘drinking festivals’ and the ‘state of trance’ (drunkenness) they induced. Commissioner McEvoy at [5.2.2] held that ‘it [was] not reasonably likely that the broadcast of

153

memorandum and Second Reading speech for the RHB the Parliament, arguably, had

no intention of legally proscribing. Moreover, if the harm threshold were not elevated

in these matters then valuable free speech may be proscribed or chilled as a

consequence and the legitimacy of the law undermined if seen to operate on conduct

most would consider slight and lacking the degree of seriousness necessary to warrant

State intervention.

2 The causal connection: When is an act done because of the race, colour or

national or ethnic origin of another person or group?

As noted, s 18C requires that a decision-maker be satisfied that a causal connection

exists between the impugned conduct and the race or ethnicity of the complainant.

The interpretive problem is that in cases involving less serious conduct - and therefore the more difficult, borderline controversies - a pattern seems to have emerged where the decision-maker in fact requires the establishment of a stronger causal connection.

There are at least four cases where this has occurred.61 The clearest examples were

Walsh v Hanson and Korczak v Commonwealth.

Hanson concerned comments made in a book entitled “Pauline Hanson – The Truth”.

The book included a number of speeches made by Pauline Hanson and detailed

commentary by the author of the book, George Merritt. These contained a range of

assertions including that aboriginals were ‘unfairly favoured by governments and

courts’,62 that aboriginal Australians had also behaved badly in the past and ‘that the

the film Darkest Austria would have offended, insulted, humiliated or intimidated any person or group of persons.’ 61 Korczak v Commonwealth (Unreported, Commissioner Innes, 16 December 1999) (‘Korczak’); Walsh v Hanson (Unreported, Commissioner Nader, 2 March 2000) (‘Hanson’); Cairns Post [2001] FCA 1007 (Unreported, Kiefel J, 31 July 2001); McLeod [2003] FMCA 2 (Unreported, Brown FM, 14 January 2003). 62 Hanson (Unreported, Commissioner Nader, 2 March 2000) 23.

154

alleged genocide of Aboriginal people [was] a myth.’63 In addition, tracts in the book

suggested that aborigines had engaged in cannibalism of their young and some

Chinese persons.64 Commissioner Nader held that s 18C was not breached as

the statements made were not made “because of the race, colour or national or

ethnic origin” of the complainants. They were made because the respondents

were of the opinion that the Aboriginal community as a whole were being

unfairly favoured by governments and courts. On the evidence before me, it

was not the race or colour of Aboriginal people that was the cause of what the

respondents said but the alleged fact that Aboriginal people were being

unfairly favoured.65

In a case that the decision-maker thought involved borderline conduct – not a view

that I share so far as s 18C is concerned - a very strong causal connection between the

conduct and the person’s race or ethnicity was required. Indeed on these particular

facts, one is left to ponder what kind of additional conduct could have established the

required causal connection.

Korczak, on the other hand, involved a number of instances of workplace abuse of an

employee of Polish origin. Whilst Commissioner Innes considered ‘that race was a

factor in the work environment’,66 he nonetheless dismissed the complaint because

‘Mr Korczak [had] not established that the conduct he [alleged] could be said to have occurred “by reason of” or “because of” his race or national origin.’67 This

notwithstanding that s 18B states that an ‘act is taken to be done because of the

63 Ibid 24. 64 Ibid 4-7. 65 Ibid 28 (emphasis in the original). 66 Korczak (Unreported, Commissioner Innes, 16 December 1999) 30-31. 67 Ibid.

155

person’s race, colour, national or ethnic origin’ if one reason for the act is a person’s

race or ethnicity whether or not it is the dominant or substantial reason.68

The problem is that in other cases where the seriousness of the racist conduct is more

clear-cut, the decision-makers have not insisted upon such a strong causal connection.69 On one level this is unremarkable, as the more serious the conduct the

more self-evident the causal connection will usually be. In particular, when, as noted,

s 18C requires that race or ethnicity need only be a reason, not even the primary or

dominant one, for the act. For example, it could not be reasonably argued that race or

ethnicity was not a least a reason for the impugned conduct in Toben No 270 or

Scully.71 These cases involved the publication of vicious anti-semitic propaganda on

the internet and in a pamphlet respectively.72 But if one were to apply the test in the

strict manner evident in Hanson and Korczak there is, bizarrely, an argument that no

causal connection exists between these seemingly serious and clear-cut examples of

racist conduct and the race or ethnicity of those persons involved.73

It appears that the emerging pattern of a stricter causation test being applied in cases

involving less serious conduct is another manifestation of the relevant decision- makers endeavouring to read the open-ended and ambiguous terms in s 18C in a

manner that honours parliamentary intent. That is, seeking to limit the operation of the

68 Commissioner Innes did however expressly acknowledge that race need only be one reason for the respondent’s act – Ibid 30. 69 See for example the matters of Toben No 2 (2003) 199 ALR 1 and Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) that involved the publication of vicious anti-semitic propaganda on the internet and in a pamphlet respectively. It could not be reasonably argued that race or ethnicity was not a least a reason for the conduct in these cases. 70 (2003) 199 ALR 1. 71 [2002] FCA 1080 (Unreported, Hely J, 2 September 2002). 72 It included that Jews ‘have their snout in the trough…called, “The Holocaust Racket”.’ - Toben No 2 (2003) 199 ALR 1, 7 (Carr J); and that ‘the philosophy and teaching practices of Jews…promote paedophilia; and are worse than a Satanic cult.’ – Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [46]. 73 For example, in Toben No 2 the appellant argued that he was motivated by the search for historical truth not a desire to convey a message about Jews - (2003) 199 ALR 1, 18 (Allsop J). See also Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [115].

156

provision to acts of racial hatred.74 And, in so doing, further diminishing the capacity

of the low harm threshold in s 18C to proscribe and chill valuable free speech.

However, the practice of applying the same causation test differently depending on the seriousness of the impugned racist conduct is problematic. In practical terms, it makes it increasingly difficult for lawyers to provide sound and prudent advice in this area and for citizens to arrange their affairs accordingly. Inconsistent and unpredictable decision-making is the handmaiden of inequality before the law. It is

the situation which regrettably pertains to the application of the causation test in the

above controversies and to s 18C determinations more generally.

3 No s 18C harm threshold analysis or reasoning

The final manifestation of the indeterminacy in the Commonwealth model is that in at

least five matters there has been a s 18C determination without any harm threshold

analysis or reasoning.75 This practice alone gives the appearance of arbitrary and

unprincipled decision-making. However, it may be the regrettable but inevitable consequence of having to apply an indeterminate harm threshold to a range of controversies of varying degrees of seriousness. The relevant determinations state what the law directs in each matter without disclosing the legal reasons why. In this regard they more closely resemble an intuitive, result-orientated finding of fact based upon the decision-maker’s conception of what justice required. In some cases it may

74 In Korczak (Unreported, Commissioner Innes, 16 December 1999) Commissioner Innes 30 stated that ‘an allegation of racial discrimination is an extremely serious one and I must have sufficient evidence before me of the appropriate nexus between the conduct and the complainant’s race before I can make a finding that race discrimination has occurred.’ On this point see above Part III(A)(1). 75 Rugema v Gadsten Pty Ltd [1997] HREOCA 34 (Unreported, Commissioner Webster, 26 June 1997)(‘Rugema’); Combined Housing Organisation Ltd v Hanson [1997] HREOCA 58 (Unreported, Commissioner Wilson, 16 October 1997) (‘Combined Housing’); Feghaly (Unreported, Commissioner Beech, 19 April 2000); McMahon v Bowman [2000] FMCA 3 (Unreported, Raphael FM, 13 October 2000) (‘McMahon’); Horman v Distribution Group [2001] FMCA 52 (Unreported, Raphael FM, 19 December 2001)(‘Horman’).

157

be that the judge or administrator considered it to be self evident that the conduct

crossed the harm threshold.76 But the other cases - where the illegality of the conduct was not so clear-cut - are more problematic.

For example, Combined Housing involved a statement made in a newspaper interview by Pauline Hanson. In response to the question as to whom she represented in the seat of Oxley, she replied ‘Yeah, look, the white community, the immigrants, the Italians,

Greeks, whoever, it really doesn't matter, you know, anyone apart from Aboriginal and Torres Strait Islanders, you know.’77 In dismissing the complaint, Sir Ronald

Wilson stated that ‘I appreciate that the complainants and many other members of the

community may find them misguided, unwarranted and offensive’.78 The point is not

that the decision ultimately made was perverse or erroneous but the complete absence

of harm threshold analysis and justificatory legal reasoning when the opposite

conclusion was reasonably open is problematic.79

This absence can be explained in two ways. First, it implicitly acknowledges that the legal rule in s 18C is closer to a ‘personal discretion to do justice’.80 Indeed the

enjoiner in s 18C to assess the conduct in all the circumstances may positively direct this conclusion. The open-ended nature of the s 18C harm threshold makes its application in cases ‘not so much pronouncing the law in the normal sense as

76 This may explain the determinations in Rugema and McMahon where the relevant statements involved were respectively you ‘lazy black bastard’ uttered by an employer to an employee and ‘get off my property you black bastard’ from one neighbour to another. 77 Combined Housing [1997] HREOCA 58 (Unreported, Commissioner Wilson, 16 October 1997) 2 (emphasis added). 78 Ibid. For a detailed critique of Combined Housing see Lawrence McNamara, ‘The Things You Need: Racial Hatred, Pauline Hanson and the Limits of Law’ (1998) 2 Southern Cross University Law Review 92. 79 A similar criticism can be levelled at the decision in Horman. In that case, Raphael FM held that a number of racial epithets directed at an employee breached s 18C without addressing the respondent’s argument that they were made in jest and with the consent of the complainant. 80 Scalia, above n 17, 1176.

158

engaging in the less exalted function of fact finding.’81 A function the discharge of

which legal reasoning can play no meaningful part. It may explain why in these

matters the s 18C determinations were simply asserted rather than arrived at by way of principled legal analysis. Justice Scalia of the United States Supreme Court explains the repercussions when a law such as s 18C in truth amounts to a ‘personal discretion to do justice.’82

[A]t the point where [a decision-maker] says that the remaining issue must be

decided on the basis of the totality of the circumstances, or by a balancing of

all the factors involved, he begins to resemble a finder of fact more than a

determiner of law. To reach such a stage is, in a way, a regrettable concession

of defeat – an acknowledgment that we have passed the point where “law”

properly speaking, has any further application. And to reiterate the unfortunate

practical consequences of reaching such a pass when there still remains a good

deal of judgment to be applied: equality of treatment is difficult to

demonstrate and, in a multi-tiered system, impossible to achieve; predictability

is destroyed; judicial arbitrariness is facilitated; judicial courage is impaired.83

Second, if, as suggested above, legal reasoning can play no meaningful role in making

a s 18C determination then the absence of analysis in these matters is understandable,

inevitable even. This point is really a corollary of the first. It means that in many

cases harm threshold analysis is a futile exercise for it cannot assist nor direct the

decision-maker in pronouncing the law with any degree of certainty or predictability.

81 Ibid 1180-1181. It should be noted that a bright line cannot be drawn between law and fact in many instances. But the use of ‘in all the circumstances’ in 18C makes clear that liability will turn on a factual determination not the application of an existing legal standard to those facts. In other words, in this situation the factual determination is the law not the precondition for the application of the law. 82 Ibid 1176. 83 Ibid 1182.

159

The disposal of the legal issue in s 18C boils down to a judge or administrator making

a good faith but subjective value judgment as to whether or not the impugned conduct

crosses the harm threshold. I am not suggesting here that the judicial application of

vague statutory norms is a new or unusual phenomenon. On the contrary, it is

increasingly – and unfortunately – common for parliaments to enact these sorts of

indeterminate legal standards that leave it all to do for the courts at the point of

application.84 However, as noted, it is especially problematic from a free speech

perspective in my view when that indeterminacy pertains to the harm thresholds in

racial vilification laws.

Moreover, the indeterminacy of s 18C is further compounded through its

incorporation of an objective test of liability. As earlier noted, the harm threshold is

crossed when ‘the act is reasonably likely, in all the circumstances, to offend, insult,

humiliate or intimidate another person or a group of people’.85 The ‘“reasonable man”

standard’86 has been called ‘the most venerable totality of the circumstances test of

them all’.87 The problem is not so much in what that standard entails but achieving a degree of consistency in its application. There now seems to be some consensus that the relevant standard is closer to the reasonable victim rather than reasonable person

‘of the generic, ostensibly “neutral” kind.’88 In the cases this usually translates to an

assessment of the impugned conduct against the likely effect in all the circumstances

on a reasonable person of the same relevant race or ethnicity.89 On this point, the

84 See McHugh, above n 16, 43-44. 85 RDA s 18C(1)(a) (emphasis added). 86 Scalia, above n 17, 1181. 87 Ibid. 88 McNamara, above n 7, 88. 89 For example see Bryant [1997] HREOCA 23 (Unreported, President Ronald Wilson, 15 May 1997) 1; Shron [1998] HREOCA 24 (Unreported, Commissioner Innes, 10 July 1998) 1; Cairns Post [2001] FCA 1007 (Unreported, Kiefel J, 31 July 2001) [16]; Corunna v West Australian Newspapers Ltd (2001) EOC 93-146, 75,468 (‘Corunna’); McLeod [2003] FMCA 2 (Unreported, Brown FM, 14 January 2003) [65]; Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615

160

Federal Court matter of Hagan90 is instructive. The case concerned the name of a

grandstand at a sports field (The ES ‘Nigger’ Brown Stand) that was named after a

local, white sporting identity in 1960. The origins of the name were not certain but it

was likely that it referred not to Brown’s skin colour but his reputation for smart

dressing and wearing dark brown shoes, a colour apparently then known as ‘nigger

brown’.91 In dismissing the complaint, Drummond J held that the act was not

‘reasonably likely in all the circumstances to offend, insult, humiliate or intimidate an

indigenous Australian or indigenous Australians generally.’92 But surely the opposite

conclusion was reasonably open.93 The point being that the application of this vague

legal standard still left the decision-maker with much, if not all, to do.

When the outcomes arising from the application of a legal rule in s 18C are not in

most cases directed or at least suggested as a matter of law and are not therefore

susceptible legal reasoning in any meaningful sense, the relevant law lacks sufficient

precision and clarity.

B FREE SPEECH/PUBLIC INTEREST DEFENCES UNDER THE

COMMONWEALTH AND NEW SOUTH WALES MODELS

The primary concern of Australian parliaments that have civilly proscribed racial

vilification has been, as noted, to draft laws that do not unduly infringe upon freedom

(Unreported, Drummond J, 10 November 2000) [16](‘Hagan’). But see De La Mare [1998] HREOCA 26 (Unreported, Commissioner McEvoy, 18 August 1998) where Commissioner McEvoy stated at [5.2.2] that the relevant test was ‘whether a reasonable person in all the circumstances would be likely to have been offended, insulted, humiliated or intimidated.’ 90 Hagan [2000] FCA 1615 (Unreported, Drummond J, 10 November 2000). 91 Ibid [10]-[13]. 92 Ibid [31] (emphasis added). 93 For detailed discussion of Hagan see Ernst Willheim, ‘Australia’s Racial Vilification Laws Found Wanting ? The ‘Nigger Brown’ Saga: HREOC, the Federal Court, the High Court and the Committee on the Elimination of Racial Discrimination’ (2003) 4 Asia Pacific Journal on Human Rights and the Law 86.

161

of speech.94 To this end, the civil racial vilification laws in the Commonwealth and

New South Wales models incorporate a range of defamation-style defences95 which if successfully pleaded relieve the respondent of liability, notwithstanding that their conduct has breached the relevant harm threshold.96

Whilst minor differences do exist between the jurisdictions regarding the precise wording of the free speech/public interest defences, s 20C(2) of the Anti-

Discrimination Act 1977 (NSW) is representative of what these provisions contain.97

It reads:

Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter

comprising a publication referred to in Division 3 of Part 3 of the Defamation

Act 1974 or which is otherwise subject to a defence of absolute privilege in

proceedings for defamation, or

94 For a more detailed discussion on this point see McNamara, above n 7, 43-49, 127-130, 234-237, 272-279, 304-307. 95 On the similarities between defamation defences and those available under Australian racial vilification laws see Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 204-210. 96 Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37; Discrimination Act (ACT) s 66(2); Anti-Discrimination Act (Qld) s 124A(2); Anti-Discrimination Act 1998 (Tas) s 55; Racial and Religious Tolerance Act 2001 (Vic) s 11. In each of these laws the defences need only be considered once a decision-maker determines that the impugned conduct has in fact crossed the relevant harm threshold. In some cases (De La Mare [1998] HREOCA 26 (Unreported, Commissioner McEvoy, 18 August 1998) [5.2.2]; Bryl v Melbourne Theatre Company [1999] HREOCA 11 (Unreported, Commissioner Johnston, 21 June 1999) [4.3]-[5]; Hanson (Unreported, Commissioner Nader, 2 March 2000, 25-29) the decision-makers have examined the defences without making this logically prior holding. On this point see McNamara, above n 7, 96-99. As earlier noted, this clearly goes against the order logically mandated by the text and structure of the relevant laws. 97 Unlike the racial vilification laws in New South Wales, the ACT, South Australia, Queensland and Tasmania, the provisions in the Racial and Religious Tolerance Act 2001 (Vic) do not protect conduct that is absolutely privileged under defamation law. This is of no great practical import as it is unlikely that racist conduct which attracts absolute privilege could then be the subject of a complaint under the relevant racial vilification provisions in the absence of express legislative sanction.

162

scientific or research purposes or for other purposes in the public interest,

including discussion or debate about and expositions of any act or matter.

1 Are the defences too broad (and indeterminate as a consequence)?

A number of commentators have criticised the overly broad nature of these

defences.98 For example, regarding the Commonwealth model, Melinda Jones writes

that

among the exemptions in s18D is the statement that s 18C does not render

unlawful anything said or done reasonably and in good faith in making or

publishing a fair comment “on any event or matter of public interest if the

comment is an expression of a genuine belief held by the person making the

comment”. It is possible that this section may provide a defence to the most

extreme racists, who are truly convinced of the truth of “white supremacy”. A

further problem potentially arise with respect to the defence of artistic works,

which may provide a shield behind which to present material which would

otherwise be unlawful.99

Luke McNamara and Tamsin Solomon make a related criticism,100 and Ian Freckelton has argued that the broad sweep of these defences were designed to compensate for

98 See Melinda Jones, ‘The Legal Response: Dealing with Hatred – a user’s guide’ in Chris Cunneen, David Fraser, Stephen Tomsen (eds), Faces of Hate: Hate Crimes in Australia (1997) 214, 218-219; Ian Freckelton, ‘Censorship and Vilification Legislation’ (1994) 1 Australian Journal of Human Rights 327, 349-350; Tamsin Solomon, ‘Problems in Drafting Legislation Against Racist Activities’ (1994) 1 (1) Australian Journal of Human Rights 265, 276-277; Queensland, Kelly-Anne Collins and Karen Sampford, Laws Against Inciting Racial or Religious Vilification in Queensland and Australia: The Anti-Discrimination Bill 2001, Research Bulletin No 1/01 (2001) 18-19. But see Russell Blackford, ‘Free Speech and Hate Speech’ (2001) 45 Quadrant 10, 14-16. 99 Jones, ‘The Legal Response: Dealing with Hatred’ above n 98, 219. 100 Luke McNamara and Tamsin Solomon, ‘The Commonwealth Racial Hatred Act 1995: Achievement or Disappointment (1996) 18 Adelaide Law Review 259, 269-270.

163

the open-ended nature of the s 18C harm threshold.101 It should, however, be noted

that in one respect the criticism made by Jones, Solomon and McNamara maybe

overstated. The additional requirement that a fair comment on a matter of public

interest must be made ‘reasonably and in good faith’ has operated in practice to limit

the likelihood of this defence protecting the most extreme examples of racial

vilification, a point to which I will shortly return.102

In any event, the essence of these criticisms is that due to the subjective and

indeterminate nature of the language employed - on at least one reading of the free speech/public interest defences - there is a danger that the exceptions may well swallow the rule.103 If even approximating the truth, such an outcome would condemn

civil racial vilification laws to the dustbin of legal history. Of course in practice, those

charged with the interpretation and application of these laws ensure that such an

unacceptable interpretive deadlock will not occur. Their judgments fashion an

outcome that gives the laws an effective sphere of operation.104 The common law

interpretive principle that all statutory words and phrases (and therefore provisions)

have meaning and effect guarantees as much.105 But the open-ended nature of these

defences would still seem problematic for the same reasons earlier outlined in the s

18C ‘harm threshold’ analysis – that a law lacking sufficient precision and clarity

results in unpredictable decision-making and may operate to proscribe and chill

valuable speech on race-related issues.

101 Freckelton, above n 98, 327, 350. 102 See below Part III(B)(3)(ii). 103 A similar point was made by Michael Cobb during the parliamentary debates for the RHB - Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1994, 3383 (Michael Cobb). 104 This important point is simply illustrated by the growing body of racial vilification case law. Though not always coherent and principled, the laws have nonetheless been interpreted and applied. 105 Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ); Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54, 63 (Gummow J). See further Dennis Pearce and Robert Geddes, Statutory Interpretation (4th ed, 1996) 35.

164

However, though the language employed is indeterminate, this interpretive malady is

assuaged to some extent by the interpretive guidance that decision-makers can obtain

from the rich and extensive defamation law jurisprudence from which the free

speech/public interest defences largely originated.106 But it should be noted that

significant differences exist between the defamation and vilification defences.

Particularly in regards to ‘fair report privilege’ in defamation law which ‘is almost entirely concerned with reports of the proceedings of, or formal documents put out by, official bodies such as courts and houses of parliament.’107 Its racial vilification law

‘equivalent’ is considerably wider in covering a fair report of any ‘public act’.

Moreover, Commissioner Innes in Corunna suggests that the different focus of

defamation law (individual reputation protection) and racial vilification law

(individual and racial group protection) should result in a narrower reading of what is

in the ‘public interest’ for purposes of the latter as it ‘has the potential to be more

socially divisive than…an attack against an individual’s reputation.’108

In any event, the important point is that - these differences notwithstanding - decision- makers, in being able to draw upon this extensive body of defamation jurisprudence, can at least bring a level of certainty and predictability to the interpretive task which in turn assists the citizenry in the organization of their affairs and lawyers in the provision of sound advice. Not surprisingly, it is a reference tool that judges and administrators have regularly employed in the interpretation and application of the free speech/public interest defences in the cases.109

106 See further Chesterman, above n 95, 208. 107 Ibid 206 (footnote omitted). See further 211-216 regarding the differences between the RDA defences and those available under civil defamation law. 108 EOC 93-146, 75,472. 109 For example, for the RDA see Cairns Post [2001] FCA 1007 (Unreported, Kiefel J, 31 July 2001 [32]; Corunna EOC 93-146, 75,469-75,475; Wanjurri v Southern Cross Broadcasting Ltd (Unreported, Commissioner Innes, 30 April 1999) [10.7] (‘Wanjurri’); Scully [2002] FCA 1080

165

2 The impact of the implied freedom on the scope of free speech/public interest

defences

There is some evidence that the breadth and putative indeterminacy of the free speech/public interest defences was a consequence of parliaments seeking to enact civil racial vilification laws that were compatible with the implied freedom.110 The most likely concern were the views expressed by Mason CJ and McHugh J in

Australian Capital Television that a law which sought to restrict the content (as opposed to the mode) of a political communication would be extremely hard to justify.111 This is the two-tiered test discussed in Chapter Two: laws incorporating content-based restrictions are more strictly scrutinised for their object is the direct curtailment of the implie freedom. These laws require a ‘compelling justification’ and must be narrowly tailored to that end to be valid.112

In any event, the view that sufficient width in the free speech/public interest defences was necessary to secure the compatibility of the racial vilification laws with the implied freedom has received administrative113 and judicial endorsement.114

(Unreported, Hely J, 2 September 2002) [122]-[124]; NSW – see Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102 (Unreported, Rees, Silva and Luger, 31 July 2000) [79]-[127] (Rees and Silva) (‘Jones’); Malco v Massaris [1998] NSWEOT (Unreported, Raphael, Greenhill and McDonald, 12 February 1998) 10-11; QLD – see Deen v Lamb [2001] QADT 20 (Unreported, President Walter Sofronoff QC, 8 November 2001) 2 (‘Deen’). 110 On this point see McNamara, above n 7, 53; Jones, ‘The Legal Response: Dealing with Hatred’ above n 98, 214, 235-236; Saku Akmeemana and Melinda Jones, ‘Fighting Racial Hatred’ in HREOC, Race Discrimination Commissioner, The Racial Hatred Act: A Review (1995) 156-157. 111 (1992) 177 CLR 106, 143 (Mason CJ), 234-235 (McHugh J). For a detailed discussion on the scope of ‘communication on government or political matters’ protected by the Constitution see Chesterman, above n 95, 44-63. 112 See Ch 2: Part II(A). 113 See Deen [2001] QADT 20 (Unreported, President Walter Sofronoff QC, 8 November 2001). 114 See Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) where Hely J stated at [240] that the ‘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.’ On the constitutionality of Australian racial vilification laws more generally see Chesterman, above n 95, 237-243; McNamara, above n 7, 2-3 and 53; McNamara and Solomon, above n 100, 278-283; Aleardo Zanghellini, ‘Jurisprudential Foundations for Anti- Vilification Laws: The Relevance of Speech Act and Foucauldian Theory’ (2003) 17 Melbourne University Law Review 458.

166

Interestingly however, the NSW Parliament - whilst it acknowledged that the

defences were included to ensure that free speech was not unduly burdened - was

concerned that their potential width could be unscrupulously exploited. The

requirement that an act be done ‘reasonably and in good faith’ was included in the

New South Wales (and Commonwealth) model as a consequence.115

Ironically, what was clearly intended to be a limiting requirement has, in fact, only

succeeded in adding another layer of uncertainty and imprecision to an already

indeterminate set of defences. The root of the interpretive problem is uncertainty as to

the proper meaning of ‘reasonably’ in the context of the free speech/public interest

defences. It serves to further convolute the precise content of the defences and in

doing so limits the practical utility of the related defamation law jurisprudence to

decision-makers detailed above.

3 When is conduct that occasions civil racial vilification done ‘reasonably and in

good faith’?

(i) ‘Good faith’

The case law reveals reasonably widespread agreement that ‘good faith’ in the context

of the free speech/public interest defences ‘appears to imply the absence of “spite, ill-

will or other improper motive”.’116 This definition again owes a significant debt to

115 See New South Wales, Parliamentary Debates, Legislative Assembly, 4 May 1989, 7490 (John Dowd, Attorney-General). See Discrimination Act 1991 (ACT) s 66(2)(c); Wrongs Act 1936 (SA) s 7(1)(c); Anti-Discrimination Act 1991 (Qld) s 124A(2)(c). Whilst in the Commonwealth and Victorian laws, the ‘reasonably and in good faith’ requirement qualifies all the free speech/public interest defences, not just for the species of public acts noted immediately above. Section 55 of the Anti- Discrimination Act 1998 (Tas), on the other hand, only requires that a public act be done in ‘good faith’ for an academic, artistic, scientific or research purposes; or any purpose in the public interest to attract a defence. 116 Jones [2000] NSWADT 102 (Unreported, Rees, Silva and Luger, 31 July 2000) [122] (Rees and Silva). This definition or close approximations thereof have been endorsed in Corunna (2001) EOC 93- 146, 75,447, 75,470; Bryl [1999] HREOCA 11 (Unreported, Commissioner Johnston, 21 June 1999) [4.3]; Wanjurri (Unreported, Commissioner Innes, 30 April 1999) [10.7.3]; Deen [2001] QADT 20

167

defamation law. In particular, the definition of ‘good faith’ in the statutory qualified privilege defences available under the defamation laws in Queensland and

Tasmania.117 However, this definition (spite, ill-will or other improper motive) does not constitute the full meaning of ‘good faith’ for purposes of those laws. For example, the definition of ‘good faith’ in Tasmania further requires that ‘the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion’ and that the defendant ‘does not believe the defamatory matter to be untrue’.118

Interestingly, the ‘manner and extent of the publication’ aspect of this ‘good faith’ definition closely approximates to one of the interpretations given to the term

‘reasonably’ for the purposes of the free speech/public interest defences.119 Why then, one might ask, did the parliaments choose to incorporate an additional term

(‘reasonably’) when a natural reading of ‘good faith’ may have covered the necessary definitional ground and fulfilled their legislative purpose? Considering the stated

(Unreported, President Walter Sofronoff QC, 8 November 2001) 2; Toben No 2 (2003) 199 ALR 1, 38- 39 (Allsop J). But see McNamara, above n 7, 94-102 where the author has criticised this meaning ascribed to ‘good faith’. He considers that this erroneously ‘introduces a subjective mens rea component into the definition of racial vilification – at least in circumstances where the conduct in question comes within the forms of communication’ included in the free speech/public interest defences. To be sure, the incorporation of ‘good faith’ in s 18D and the other related provisions imports a subjective notion into the content of the free speech/public interest defences. But this does not change the definition of racial vilification nor the objective nature of the test used for determining whether conduct crosses the relevant harm threshold. For it is only when that objective harm threshold is crossed that the defences may come into play. In other words, the relevant conduct has by definition (in an objective sense) occasioned racial vilification but may nevertheless escape legal sanction if one of the defences can be established. Moreover, to interpret ‘good faith’ in a manner that strips it of any subjective connotation - which is what I understand McNamara to be suggesting in the context of racial vilification law - would fly in the face of both the natural meaning of the words and the technical meaning the phrase has acquired over time in this area of law and a range of others besides. A reasonable definition of ‘good faith’ lacking a subjective component seems a contradiction in terms. 117 Defamation Act 1889 (Qld) s 16; Defamation Act 1957 (Tas) s 16. At common law the defence of qualified privilege is also defeated if the plaintiff can establish that the publication was for an improper purpose. As Professor Fleming has noted, this is a wider notion than ‘malice’ ‘because the immunity is defeated not only by spite or a desire to inflict harm for its own sake, but by the misuse of the privileged occasion for some other purpose than than for which it was given by law.’ – John Fleming, The Law of Torts (9th ed, 1998) 637. 118 Defamation Act 1957 (Tas) s 16. 119 See below Part III(B)(3)(ii) where it is suggested that this is the better interpretation of what ‘reasonably’ means in regards to the racial vilification defences.

168

intention of the NSW Parliament outlined above, it is reasonable to assume that they

wanted to make clear that an honest belief of itself (arguably one possible reading of

‘good faith’) was not enough to bring conduct that occasions racial vilification within the province of the free speech/public interest defences. However, the addition of

‘reasonably’ into the legislative mix has unfortunately served to confuse rather than clarify the precise scope of the defences.

(ii) ‘Reasonably’

(a) Message of method?

Whilst the term ‘reasonably’ was included to narrow the scope of the free speech/public interest defences it has, in fact, only succeeded in adding to them another layer of uncertainty and imprecision. Not such a curious result when one considers the indeterminacy of the word. My point, again, is not that the use of the vague standard ‘reasonably’ in statutory rules is in any way unique. But its inherent indeterminacy it is problematic from a free speech perspective when it forms an important component of the defences to otherwise unlawful racial vilification. In any

event, the case law is ambivalent as to the meaning of ‘reasonably’. One set of

decisions considers the term to refer to the reasonableness of the message that a

respondent’s speech or conduct has conveyed;120 another considers it to refer not to

120 Commonwealth: Bryl [1999] HREOCA 11 (Unreported, Commissioner Johnston, 21 June 1999) [4.3]; Corunna (2001) EOC 93-146, 75,470 (Commissioner Innes); Wanjurri (Unreported, Commissioner Innes, 30 April 1999) [10.7.3]. New South Wales: Kazak v John Fairfax Publications [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000) [86]-[92] (‘Kazak’); Jones [2000] NSWADT 102 (Unreported, Rees, Silva and Luger, 31 July 2000) [121] and [150]-[154] (Rees and Silva).

169

the content of the message per se, but to the reasonableness of the respondent’s method or manner by which they have conveyed their message.121

At first blush, both views are consistent with the stated parliamentary purpose of narrowing the scope of the defences. But an interpretation that requires the message to be reasonable rather than the method would clearly effect a more significant narrowing.122 For it prima facie precludes from protection conduct which conveys an extreme racist message whereas under the method interpretation there is scope for such conduct to be protected so long as the method or manner for conveying the message is reasonable. To this extent, the parliamentary purpose for including

‘reasonably’ is better secured by the message interpretation. Moreover, considering, as noted, that one interpretation of ‘good faith’ may include the method/manner requirement, it could be argued that as a matter of interpretive logic and principle the

Parliament must have intended ‘reasonably’ to possess a different meaning, one that was not totally subsumed by the phrase it immediately precedes.123

It is submitted, however, that when one considers why the defences were included in the first place and then reads the racial vilification provisions as a whole, the better

121 Commonwealth: Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002)[159]; Warner (Unreported, Commissioner Johnston, 10 November 2000) 2, 33-34; Toben No 2 (2003) 199 ALR 1, 13 (Carr J),19 (Kiefel J), 38 (Allsop J); New South Wales: Wagga Wagga Action Group v Eldridge (1995) EOC 92-701, 78,268 (Bartley, Farmer Luger); Hellenic Council of NSW v Apoleski and Macedonian Youth Association (No 1) [1995] NSWEOT (Unreported, Biddulph, Alt, Mooney, 25 September 1997) 16 (‘Hellenic Council No 1’); Hellenic Council of NSW v Apoleski (No 2) [1995] NSWEOT (Unreported, Biddulph, Alt, Mooney, 25 September 1997) 10. Queensland: Deen [2001] QADT 20 (Unreported, President Walter Sofronoff QC, 8 November 2001) 2. 122 See for example Kazak [2000] NSWADT 77 (Unreported, Hennessy, Farmer, Jowett, 22 June 2000). The case concerned an article in the Australian Financial Review written by the respondent which stated amongst other things that ‘the Palestinians cannot be trusted in the peace process’ and ‘remain vicious thugs who show no serious willingness to comply with agreements’. The article was found to incite an ordinary reasonable reader to hatred or serious contempt of the Palestinians and was not held to be an act done reasonably and in good faith for a purpose in the public interest including discussion or debate about and exposition of any act or matter. For a criticism of this decision see Blackford, above n 98, 14-15. 123 In Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54 Gummow J stated at 63 that because it is ‘improbable that the framers of legislation could have intended to insert a provision which has virtually no practical effect, one should look to see whether any other meaning produces a more reasonable result.’

170

view is that ‘reasonably’ refers to the method by which the message is conveyed not the content of the message itself. This interpretation is supported by a closer

examination of the extrinsic parliamentary materials.

For example, the explanatory memorandum to the RHB stated in relation to the

proposed s 18D that

[i]t [was] not the intention of that provision to prohibit a person from stating in

public what may be considered generally to be an extreme view, so long as the

person making the statement does so reasonably and in good faith and

genuinely believes in what he or she is saying.124

In his Second Reading speech for the RHB, then Attorney-General Michael Lavarch

said that ‘[t]he bill does not prohibit people from expressing ideas or having beliefs,

no matter how unpopular the views may be to many other people.’125 In a similar

though more subtle vein, Steve Bracks said in his Second Reading speech for the

Racial and Religious Tolerance Bill 2001 (Vic) in relation to the exemptions for conduct or discussion done for an artistic, academic, religious, scientific or any other purpose in the public interest, ‘that the requirement that the conduct be done

‘reasonably and in good faith’ prevents immoderate or inflammatory conduct from being protected.’126

These parliamentary materials suggest that even extreme racist messages can be

protected if the method or manner in which they are made is reasonable. Indeed the whole point of the defences is to protect debate on sensitive matters of academic,

124 Explanatory Memorandum, Racial Hatred Bill 1994 (Cth) 10-11 (emphasis added). 125 Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1994, 3337 (Michael Lavarch, Attorney-General). 126 Victoria, Parliamentary Debates, Legislative Assembly, 17 May 2001, 1284 (Steve Bracks, Premier) (emphasis added).

171

scientific and public interest even when some points of view may be for some (by definition) racially offensive, humiliating or even intimidating. This point was illustrated in Deen. The case involved a pamphlet distributed within an electorate by a

political candidate that was critical of the teachings of the Koran, particularly its purported edict to Muslims not to obey secular governments. The President of the

Queensland Anti-Discrimination Tribunal in dismissing the application said:

The public has an interest in knowing the opinions of candidates, even when

those views are unreasonable, unsupportable, one sided or even plainly

wrong; and perhaps particularly when they are of that character…It is enough

for this case to observe that the pamphlet has been written in moderate

language. It is concise and there is no suggestion that it has been published or

disseminated other than in the electorate.127

Moreover, it is submitted that an extreme racist message is necessarily unreasonable if

it is the content of the message that is being assessed as to its reasonableness.

Therefore, for better or worse, if the purpose of the free speech/public interest defences is to protect - in certain circumstances - even extreme and unpopular racist

messages, the provisions would come to naught if the message must be reasonable

rather than the method of conveying that message. As the Equal Opportunity Tribunal

of New South Wales wrote in Hellenic Council (No 1):

The tribunal agrees that the words “done reasonably” relate to the nature of the

public act and the way in which it was done and do not require consideration

of whether in this case the beliefs stated in the article were in fact reasonable.

As argued by counsel for the Second Respondent, “It is usually the very

127 Deen [2001] QADT 20 (Unreported, President Walter Sofronoff QC, 8 November 2001) 2 (emphasis added).

172

reasonableness of any particular position which is what is most hotly

contested at the front line of any academic discipline”.’128

(b) Consequences of the method interpretation

This interpretation of ‘reasonably’ (method rather than message) is consistent with the

view that Australian civil racial vilification laws are primarily concerned with

‘incivility in the style and content of publication of racist material, not racist content as such.’129

However, this preferred and apposite interpretation of the free speech/public interest defences creates a further - some argue more sinister - problem for the operation of

Australian civil racial vilification laws.130 For if ‘we limit censorship to the epithet,

we create a two-tier approach: chilling of blue-collar muck and preservation of upper-

crust mud.’131 In other words, protection is accorded to a racist communication so

long as it is made articulately, using scholarly language or socially acceptable

conventions. It amounts to a triumph of form over substance if the method rather than

the content of the message determines the availability or otherwise of a defence.

Whilst this dichotomy may be consistent with the underlying purpose of the racial

vilification provisions, the protection of ‘upper-crust mud’ represents for some a

serious and dangerous flaw in Australian racial vilification laws.132

This is a complex issue in its own right, one of significant theoretical and practical

importance to the trajectory and long-term utility of Australian civil racial vilification

128 Hellenic Council No 1 [1995] NSWEOT (Unreported, Biddulph, Alt, Mooney, 25 September 1997) 16 (emphasis added). 129 Chesterman, above n 95, 226-227. Chesterman notes at that this situation pertains because, unlike civil defamation law, ‘the [racial vilification] legislation requires no consideration of truth and falsity’. On this point see further 215-217. 130 Ibid 227 quoting Margaret Thornton, The Liberal Promise (1990) 50. 131 Nicholas Wolfson, Hate Speech, Sex Speech, Free Speech (1997) 48. 132 See Thornton, above n 130, 50.

173

laws. For this reason I will suspend its consideration until Chapter Five, when it will

be given a detailed treatment as part of my case study on history denial and Australian racial vilification law.133

In any event, for the sake of improved legislative clarity Australian parliaments must

employ words and phrases when drafting civil racial vilification provisions that make

as plain as possible their specific policy choices regarding the range of speech and

conduct that is proscribed and, just as importantly, protected. This in turn will better

facilitate the discharge of their legislative purpose by providing clear guidance to

decision-makers as to the proper meaning of these laws. In this regard, adding the

word ‘reasonably’ – without defining it - has served only to confound rather than

clarify the proper scope of the free speech/public interest defences. The extent to

which the Parliament sought to narrow the defences cannot be readily ascertained

when an indeterminate term like ‘reasonably’ is chosen to perform that task.

In addition, the preferred method interpretation would do little to allay the fears of

those commentators concerned that the defences may be given an overly broad

reading.134 Indeed they would be positively alarmed if I am correct in suggesting that,

properly interpreted, the defences will, in some circumstances, protect extreme and

unpopular racist messages that are necessarily racially offensive, humiliating and even

intimidating. It appears to protect vile and hateful acts of racial vilification so long as

they are communicated in a civil manner.

However in practical terms the ‘good faith’ requirement has operated to preclude the

availability of a defence in most cases involving extreme racist conduct. For example

in Scully, Hely J did not doubt the sincerity of the particularly extreme views

133 See Ch 5: Part IV(A)(1)(a) & (b). 134 See above Part III(B)(3)(ii).

174

expressed by the respondent which, amongst other things, included that the Jews

controlled global pornography, had invented the holocaust for financial and political

gain and engaged in sexual practices against their children. These were the reasons

the respondent proffered to justify the distribution of her leaflets. But as Hely J

considered that vilification of Jews was the underlying purpose behind the distribution of the leaflet ‘then reasonableness, good faith and genuineness of purpose would not be found.’135 Similarly, in Toben No 2, Carr J considered that in the appellant’s

circumstances, ‘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.’136

These cases - whilst tending to conflate the ‘reasonably’ and ‘good faith’ analysis -

suggest that the more extreme the racist message the more likely a decision-maker

will find that the conduct was in fact done for a purpose other than to further public

debate on a matter of academic, artistic, scientific or public interest. In other words, the application of the ‘good faith’ requirement has served to evaluate the racist content of a message and effectively limited how extreme it can be.

However, the fact remains that the precise scope of the defences in the New South

Wales and Commonwealth models will remain elusive and contested so long as the word ‘reasonably’ is a key legal standard. And without legislative clarification, the interpretive schism that has developed in the case law is likely to deepen. In blurring the line between lawful and unlawful racial vilification and leaving so much of the interpretive work to the relevant decision-makers in individual cases, we can conclude that the free speech/public interest defences lack sufficient precision and clarity. It

135 Scully [2002] FCA 1080 (Unreported, Hely J, 2 September 2002) [186] (emphasis added). 136 Toben No 2 (2003) 199 ALR 1, 13.

175

denies to the citizenry ascertainable civil racial vilification laws and, therefore, the ability to arrange and conduct their affairs accordingly. Moreover, the indeterminacy of the defence provisions compounds the unpredictable nature of the decision-making process. It leaves more to intuition (and therefore subjective conceptions of justice) than principled legal reasoning. Equality before the law is lost and our system of parliamentary democracy undermined when so much law is left to judges and administrators to create then apply on an individual case basis.

IV CONCLUSION

It has not been my purpose in this Chapter to suggest that civil racial vilification laws have no place on the Australian legal landscape. On the contrary, they represent an important recognition by the State that acts of racial vilification inflict real and serious physical and serious harm upon its victims and, left unchecked, have the capacity to undercut the vibrant, diverse but fragile political community that has developed in

Australia since World War II. Moreover, core democratic principles such as legal equality, personal liberty and freedom of speech become empty, rhetorical slogans if routinely denied (by law) to minority racial and ethnic groups who lack political clout. The law is just one of the many tools that can and should be utilised to regulate and combat racial vilification. However, its ability to effect grassroots attitudinal change on matters of race should not be overstated.

But as difficult as the task most certainly is for legislators, the answer lies not in drafting broad-brush laws that leave too much to the good sense and intuition of individual judges and administrators. In this area - where emotions run high and the legal, cultural and physical consequences deep for the perpetrator, victim and the wider community - we are best served by civil racial vilification laws that do not

176

proscribe or chill valuable free speech and are drafted with sufficient clarity and precision. A civil law that meets these two criteria at least has the capacity to play a meaningful role in the regulation of racial vilification in Australia.

However, my analysis in this Chapter has demonstrated that the civil racial vilification laws in the Commonwealth and the New South Wales models do not sufficiently meet both criteria. The low harm threshold in s 18C of the RDA and its

‘linguistic over-inclusiveness’ operates to proscribe and chill speech that can make a valuable contribution to public discourse on race-related issues. Moreover, the scope of s 18C is indeterminate due to the open-ended and ambiguous nature of key terms –

‘offend’ and ‘insult’ – which constitute the harm threshold. This compounds its free speech problem and generates a range of other interpretive maladies. Most notably, a series of s 18C determinations have seen judges and administrators effectively elevate the harm threshold to incorporate the standard of racial hatred, require a stronger causal connection in cases involving less serious conduct and findings of breach without any harm threshold analysis at all. The free speech/public interest defences available under both models also lack textual clarity and precision. This has the capacity to further chill valuable public discourse on race-related issues when the bounds of lawful speech remain obscure which, as a consequence, complicates the advice-providing and interpretive roles of lawyers and judges respectively.

It is, therefore, my argument that both the Commonwealth and New South Wales’ models are in need of reform. To this end, I will now outline a modest program for the reform of Australian civil racial vilification laws that makes them more compatible with my evaluative criteria and better equipped to perform their important regulatory role as a consequence.

177

A PROPOSALS FOR REFORM

1 Amending the s 18C harm threshold

It should first be noted that the courts have in any other statutory contexts employed the interpretive principle of legality outlined in Chapter One to limit so far as possible the scope of indeterminate terms like ‘offend’ and ‘insult’ to minimise their infraction on the common law freedom to communicate. As Gummow and Hayne JJ noted in

Coleman:

Once it is recognised that fundamental rights are not to be cut down save by

clear words, it follows that the curtailment of free speech by legislation

directed to proscribing particular kinds of utterances in public will often be

read as narrowly limited.137

The application of the principle of legality to the interpretation of these key 18C harm threshold would certainly give them greater clarity and precision and lessen their deleterious impact on free speech as a consequence.

Moreover, there is an argument that over time the development of the case law may endow these indeterminate terms with more concrete meaning. This could also secure an increased clarity in the harm threshold and predictability in the decision-making process. But there are two reasons that suggest otherwise. First, as noted, the interpretive maladies that have plagued the interpretation and application of s 18C stem from a dislocation between parliamentary intent and the words chosen to realise that intent.138 Indeed, my case analysis demonstrated that decision-makers have attempted to rectify the problem by effectively elevating the harm threshold. Whilst

137 (2004) 220 CLR 1, 76. 138 See above Part III(A)(1).

178

this approach may have delivered just and reasonable results in individual cases, it

cannot secure the long-term interpretive clarity that is needed as not all decision-

makers subscribe to this harm threshold interpretation.139 Second, s 18C is now over

ten years old. The harm threshold has already been the subject of considerable case

law analysis but the indeterminacy that has plagued its interpretation still persists.

This interpretive conundrum is a legislative creation that judicial and administrative

exegesis has not satisfactorily resolved. It is, therefore, sensible to consider the repeal

or significant amendment of the current harm threshold.

One option available to the Commonwealth Parliament – which I favour - is to

expressly incorporate the notion of racial hatred into the harm threshold. This could

be achieved by adopting the classic defamation standard of ‘hatred, serious contempt

or severe ridicule’ which is already used in the civil racial vilification laws in the New

South Wales model.140 This would not completely solve the harm threshold indeterminacy as the precise meaning of words such as ‘hatred’ and ‘contempt’ can be similarly elusive.141 But these concerns would be significantly eased with

Commonwealth decision-makers able to draw upon both the developing body of harm

threshold determinations under the New South Wales model and the extant rich and extensive defamation law jurisprudence. In addition, it is probably easier as a practical matter for both citizens and decision-makers to identify with some confidence an act of racial hatred as opposed to one that may (objectively) cause

139 See for example the judgment of Branson J in Toben No 1 discussed above in Part III(A)(1). 140 See also Sally Reid and Russell Smith, ‘Regulating Racial Hatred’ (Paper no.79, Australian Institute of Criminolgy Trends and Issues in Crime and Criminal Justice Series, 1998) 5 where the authors suggest that ‘for the purpose of clarity and to prevent an excessive number of complaints being lodged (particularly in view of the reduction in funding to HREOC), it may be preferable for a higher threshold to be provided for in the legislation itself.’ 141 For example see R v Keegstra [1990] 3 SCR 697, 855-856 (McLachlin J) where her Honour outlined the difficulties and dangers associated with seeking to interpret the word ‘hatred’. ‘[It] is a broad term capable of catching a wide variety or emotion. It is not only the breadth of the term “hatred” which presents dangers; it is its subjectivity.’

179

insult or offence. It is certainly arguable that the subjective component of racial vilification is diminished the more extreme its form. Though a pragmatic point, it may assist citizens in better understanding the scope of civil racial vilification laws, their corresponding legal rights and obligations and facilitate more consistent and predictable judicial and administrative decision-making as a consequence.

Such an amendment would also align the law with the putative intention of the

Parliament when they enacted the civil racial vilification provisions and remove or at least lessen the current interpretive maladies it has generated. Finally, the likelihood of this civil racial vilification law proscribing or chilling valuable free speech is significantly reduced if the harm threshold is elevated in this manner and courts employ the interpretive principle of legality when applying it.

2 The meaning of ‘reasonably and in good faith’ in the free speech/public

interest defences requires clarification

The root cause of the interpretive problems with the free speech/public interest defences is uncertainty as to what ‘reasonably’ means in this context and the indeterminacy this engenders regarding their scope. It is problematic for both the

Commonwealth and New South Wales’ models, as noted. For example, on a broad view of the ‘reasonably and good faith’ requirement and the defences more generally, there is the danger that the exceptions may in fact swallow the rule.

Whilst the various parliaments were likely content to include ‘reasonably’ in their civil laws and then rely upon judicial exegesis to divine its meaning, the case law has

- as noted and not surprisingly - been ambivalent. And it is not acceptable in my view that the line between lawful and unlawful speech may turn upon how ‘reasonably’ is interpreted in each individual case. So the meaning of ‘reasonably’ needs to be

180

legislatively clarified. But this must necessarily follow the antecedent procedure of

parliamentary re-evaluation regarding the extent to which extent acts of racial vilification should receive legal protection. A process of added significance for the

New South Wales model where, by definition, extreme acts of racial vilification

(those that incite hatred towards, serious contempt for, or severe ridicule of a person or group on the grounds of race or ethnicity) can still be lawful. I have argued that it better fits the purpose and internal logic of the civil racial vilification laws if

‘reasonably’ - in the context of the free speech/public interest defences - means the method by which a communication is made not its content.

3 Low end racial vilification ought to be unregulated

A corollary of my harm threshold reform proposal is that low-end racial vilification should remain unregulated in every Australian jurisdiction. The less serious the conduct the more subjective the notion of racial vilification tends to become. For example, with the so-called ‘war on terror’ in full swing and the political prominence of migration issues, the publication of a strong anti-Arab immigration tract constitutes perfectly legitimate communication for some. But for others, it represents classic racial vilification and for the same reasons. The task of objectively identifying racial vilification at the lower end is, therefore, more difficult and contested.142 Also, as

earlier noted, a law that attempts to regulate low-end racial vilification is far more

likely to unreasonably proscribe or chill valuable speech. The fields of science,

academia and public affairs are replete with instances of vigorous but honest opinions

142 See Chesterman on this point, above n 95, 227 where he notes that ‘[e]stablishing the right boundary between the forceful expression of biased but honest opinions and blatant racist ideology is one of the hardest tasks of any law dealing with racial vilification.’

181

that are, arguably, racist.143 Whilst these views will be insulting and offensive to some, freedom of speech ought to prevail at the lower end of the racial vilification spectrum or we risk a cowered and diminished public discourse on matters where race may be relevant.

It now falls for me to consider the normative legitimacy and regulatory value of

Australian criminal racial vilification laws. This will be undertaken in Chapter Four.

143 Margaret Thornton offers the example of Professor Geoffrey Blainey and his views on Asian immigration articulated in his book All for Australia – see Thornton, above n 130, 50. Other examples of forceful expressions of biased but probably honest opinions that also encompass a racist ideology could include George Merritt (ed), Pauline Hanson – The Truth (1997); Carl Campbell Brigham. A Study of American Intelligence (1923); Madison Grant, The Passing of the Great Race (1919); Laurence Auster, The Path to National Suicide: An Essay on Immigration and Multiculturalism (1990).

182

CHAPTER FOUR

CRIMINAL LAWS

I INTRODUCTION

In this Chapter I consider the normative legitimacy and regulatory value of the three

legislative models in Australia that make racial vilification or incitement a crime. This

will be done by critically evaluating each model against the following three criteria:

- Whether the criminal laws are drafted in a way that does not proscribe or chill

valuable freedom of speech, including that zone of political communication

accorded constitutional protection.1

- Whether the criminal laws are drafted with sufficient precision and clarity.

- Whether the criminal racial vilification laws sit comfortably within their existing

criminal law frameworks.2

It will be noted that the first two criteria formed the basis of my analysis in Chapter

Three. The reasons why they are important characteristics of racial vilification laws –

and therefore instructive evaluative criteria – are equally relevant to the criminal laws

1 For a discussion on the tradition of freedom of speech protection in Australian law see Chapter One: Part II(C)(2). 2 On this point more generally see Peter Cane, ‘Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law’ (2005) 25 Oxford Journal of Legal Studies 416.

183

examined in this Chapter.3 Indeed, the need for speech sensitive and sufficiently clear

and precise laws is, arguably, even more important in the case of laws that affix

criminal liability to some forms of racial vilification.

The third – additional - criteria is of particular relevance, however, to criminal racial

vilification laws. For it must be remembered that these laws have been enacted

against a backdrop of established, general criminal laws such as affray, assault,

incitement and property damage that already cover much – if not all - of the conduct

likely to fall within the scope of a racial vilification law. So the regulatory value of a

criminal racial vilification law will likely turn on whether it can find a place in the

existing criminal law framework. This is more likely to occur if legislatures ensure, so

far as possible, that any new offence they create is compatible with existing criminal

law policy, principle and procedure. New social conditions and patterns of behaviour

may require new criminal laws. But as our system of criminal laws are built upon a

foundation of established and durable principles, it makes little sense to re-invent the

doctrinal wheel when new regulatory needs arise.

Moreover, the capacity of a new criminal law to add something of value to the State

armoury depends on whether those public officials responsible for its administration and prosecution (police, Crown lawyers) consider it a viable and, therefore, useful

regulatory option. For example, prosecution authorities – operating under significant time and resource pressures – will only prefer a criminal racial vilification offence to a general crime if there is comparability in the penalties available and an equivalent or better prospect of securing a conviction. If a criminal law sufficiently meets these three criteria, then in my view it at least has the capacity to play a meaningful role in the regulation of racial vilification in Australia.

3 See Chapter Three: Part I(B).

184

In any event, I will briefly outline the history of criminal racial vilification laws in

Australia in Part II of the Chapter and then evaluate the most common (New South

Wales) model in Part III. This model – or something very similar – has been enacted

in South Australia, the Australian Capital Territory, Queensland and Victoria. I then

turn to consider the sui generis Western Australian model in Part IV and conclude

with an examination of the sedition-based Commonwealth model in Part V. My

analysis will demonstrate that the New South Wales and Western Australian models

are defective in significant respects and that most of the criminal laws ought to be

repealed as a consequence. And whilst it is simply too early to take a definitive

position on the Commonwealth model,4 I apply some of the arguments developed and

insights that emerged from the analysis undertaken in Parts II and III to argue that the new Commonwealth offence is similarly flawed. I consider that in its current form there is a real danger that it may be given an overly broad judicial construction. This would expand its function and scope as a racial incitement law far beyond its more limited purpose: to proscribe a very limited, seditious form of incitement to group racial violence. I conclude, therefore, that it too ought to be repealed and that in doing so, the ability of the Commonwealth to secure peace, order and good government within the Australian community – the purpose of sedition offences - would not be compromised in any event.

However, I do not doubt that the criminal law has an important role to play in the regulation of racial vilification in Australia. But the time has come to seriously rethink what form of criminal law(s) might best perform this difficult regulatory task.

I conclude the Chapter with an argument that penalty enhancement statutes are worth considering in this respect. A penalty enhancement statute meets the three evaluative

4 The Anti-Terrorism Act (No.2) 2005 (Cth) which contains the new offence was only enacted in December 2005.

185

criteria and importantly (unlike racially aggravated offences) a criminal conviction

does not ride on having to prove - as an element of the crime - a racist motive or purpose. The model I favour involves vesting a discretionary power in judges to increase a person’s sentence if satisfied that the race or ethnicity of the victim(s) was a reason or motivation for the commission of the crime.

Before moving to the analysis of the New South Wales model, I want to briefly outline the history of criminal racial vilification laws in Australia and why a consideration of their normative legitimacy and regulatory value is timely.

II CRIMINAL RACIAL VILIFICATION LAWS IN AUSTRALIA: A BRIEF

HISTORY

At the time criminal racial vilification laws were first being introduced in New South

Wales and Western Australia and contemplated by the Commonwealth, the significant challenges associated with the drafting of such laws were articulated. First, laws of this nature may burden and chill valuable freedom of speech.5 Second, that framing in

legislation a sufficiently precise and enforceable criminal standard would be

problematic. This may in turn lead to reluctance on the behalf of State authorities to

enforce and prosecute the law. Third, that a criminal prosecution for racial vilification

would provide a public forum for an accused to promote their noxious views and the opportunity to style themselves a free speech martyr.6 Fourth, that they were

5 See for example Russell Blackford, 'Free Speech and Hate Speech' (2001) 45 Quadrant 10; Ian Freckelton. ‘Censorship and Vilification Legislation’ (1994) 1 Australian Journal of Human Rights 338-346 and 350-352; Alan Goldberg, ‘Criminal or Civil Sanctions? – Legislating to Proscribe Incitement to Racial Hatred’ (1990) 1 Without Prejudice 27; Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 43-49; Ann Twomey, ‘Laws Against Incitement to Racial Hatred in the United Kingdom’ (1994) 1 Australian Journal of Human Rights 235. For an excellent, more recent critique see Lawrence Maher, ‘Free Speech and its Postmodern Adversaries’ (2001) 8 Murdoch University Electronic Journal of Law: http://www.murdoch.edu.au/elaw/issues/v8n2/maher82.html 6 See Freckelton, above n 5, 343-345.

186

unnecessary as more general criminal laws already covered the conduct likely to fall within the scope of specific race offences.7 Fifth, that civil regulation of racial vilification - with an emphasis on education, conciliation and, in the last resort, civil sanctions – is preferable, for it lacks the adversarial and public nature of a criminal trial, is more free speech sensitive and provides an opportunity for dialogue rather than a forum for confrontation.8 Sixth, the experience in other jurisdictions suggests that the standard of criminal proof makes the prosecution of specific race offences extremely hard and that juries are, in any event, reluctant to convict.9

On the other hand, compelling reasons were proffered why making the most serious and intentional instances of racial vilification a crime was considered an appropriate and necessary regulatory development. It provides a strong State-sanctioned message that serious racial vilification is not tolerable in a democracy that values, protects and promotes the dignity of each of its citizens.10 It gives domestic effect to Australia’s international law obligations. It recognises the serious harm11 suffered by its victims and, in providing legal redress, protects and promotes their right to live peacefully and

7 Ibid 351-352. 8 See Luke McNamara, ‘The Merits of Racial Hatred Laws: Beyond Free Speech’ (1995) 4 Griffith Law Review 29. 9 See Goldberg, above n 5, 29. 10 See New South Wales, Parliamentary Debates, Legislative Assembly, 4 May 1989, 7491 (John Dowd, Attorney General). 11 As was noted in Chapter Three, an underlying premise of Australian civil and criminal racial vilification laws - as evidenced in the relevant harm thresholds - is the recognition that racist words and conduct cause may cause serious physical and psychological harm. For example, the fact that no physical harm needs to be proven for a successful prosecution under any criminal racial vilification law in Australia constitutes State recognition that psychological harm to the victim is sufficient to warrant the intervention of the criminal law. Of course, this does not resolve or end the important theoretical debate as to when the State is justified in deploying the criminal law to proscribe and regulate this kind of racist conduct: see Simon Bronitt and Bernadette McSherry, Principles of Criminal Law (2nd ed, 2005) 52-54. However, an examination of that debate is beyond the scope of this study. I am content for present purposes to accept the correctness of the underlying assumption of these laws that serious psychological harms may be occasioned by racial vilification and that is sufficient to justify criminal (and civil) prohibitions in Australia.

187

speak freely.12 It acknowledges that unless the criminal law makes timely intervention, serious racial vilification may spiral into deadly violence.13 And if used in conjunction with civil (anti-discrimination) law, it can provide the State with a range of regulatory options to address racial vilification depending on the context and the seriousness of the relevant conduct.14

It was this kind of law – incorporating both civil and criminal sanctions - that New

South Wales enacted in 1989 when it became the first Australian jurisdiction to make serious racial vilification a crime.15 And notwithstanding the above concerns, a comprehensive criminal law framework has been erected in Australia in less than 15 years. Serious racial vilification is now a crime in six of the eight States and

Territories and in 2005 the Commonwealth incorporated a seditious form of incitement to group racial violence in one of its anti-terror laws.16

In this time, however, only one person has been convicted of a racial vilification crime.17 This does not of course demonstrate that the existing criminal laws and enforcement mechanisms are defective per se. When one considers the exceptional nature of serious racial vilification, it would be singularly unhelpful, indeed

12 See New South Wales ‘Parliamentary Debates’ (John Dowd, Attorney-General) above n 10, 7488 and 7491. 13 See Commonwealth, Parliamentary Debates, House of Representatives, 15 November 1994, 3340 (Michael Lavarch, Attorney-General). 14 See New South Wales ‘Parliamentary Debates’ (John Dowd, Attorney-General) above n 10, 7489; R v Keegstra [1990] 3 SCR 697, 785 (Dickson CJ). 15 Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW). 16 Anti-Discrimination Act 1977 (NSW) s 20D; Racial Vilification Act 1996 (SA) s 4; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 67; Anti-Discrimination Act 1991 (Qld) s 131A; Racial and Religious Tolerance Act 2001 (Vic) s 24; Criminal Code 1913 (WA) ss 77-80D; Criminal Code Act 1995 (Cth) s 80.2(5). 17 See further below Part IV(B). I note that in August/September 2006 a 15 year old Aboriginal girl faced court in Western Australia on two criminal charges for an assault on a woman in Kalgoolie. It is alleged that at the time of the assault the accused called the victim a ‘white bitch’ and a ‘white slut’. The charges were assault (to which she has plead guilty) and for engaging in conduct intended to racially harass (to which she has plead not guilty). The latter charge was the first under the new Western Australian racial vilification laws that are considered below in Part IV. In the result, the racial vilification charge was dismissed.

188

disingenuous, to assess the legitimacy and value of such laws based upon the

frequency of their prosecution. The lack of criminal prosecutions may, for example,

be construed as evidence of the current laws regulatory success or the increasing

racial harmony within Australia society. And considering the exceptional nature of

the conduct, serious racial vilification prosecutions are likely to be infrequent

whatever form the laws happen to take.18

However, at least since the events of 9/11 and the ensuing war on terror there is

growing evidence that domestic racist attacks are significantly on the increase.19 And the recent decision in Western Australia to prosecute persons under the general criminal law for conduct that its racial vilification law was tailor made – indeed specifically drafted - to cover was also instructive.20 It suggests that Western

Australian authorities were reluctant to prosecute a racial vilification law even when

the relevant conduct fell squarely within its purview. And the same is true regarding

the aftermath of the race riots that erupted in December 2005 at the Sydney beach of

Cronulla and the revenge attacks that occurred in the beach suburbs of Maroubra and

Brighton-le-Sands. There have been a number of riot and affray charges, a conviction

for malicious property damage and entering a building with intent to commit an

indictable offence and even charges of using a carriage service to menace, harass or

18 A further reason for the lack of criminal prosecutions to date may be the requirement under the New South Wales model that the consent of the Attorney-General must be obtained before a prosecution can commence – see The Report of the Review by the Hon James Samios MLC into the Operation of the Racial Vilification Laws of New South Wales (Sydney) August 1992, 30 (‘Samios Report’); New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW), Report No 92 (November 1999) 551-552 (‘New South Wales Law Reform Commission Report’). 19 See Western Australia, Parliamentary Debates, Legislative Assembly, 18 August 2004, 5159 (Geoffrey Gallop, Premier); William Jonas, 'Listen — National Consultations on Eliminating Prejudice against Arab and Muslim Australians' (Speech delivered at the launch of the Isma Project, Sydney, 21 March 2003); John Lyons, 'Terror Target no 1: the Jewish Community', Channel Nine Sunday Program, 7 September 2003, 20 See below Part IV regarding the history of the original Western Australian offences and the decision not to use them in the prosecution of Jack Van Tongeren for his alleged involvement in a series of racist attacks undertaken in Perth in February and July 2004.

189

cause offence, but no prosecutions under New South Wales’s criminal racial

vilification laws.21

It at least begs the wider question of whether the near complete absence of criminal

prosecutions for racial vilification in Australia is explicable on the grounds that these

cases are emblematic of a widespread prosecutorial concern or antipathy towards such

laws. It makes it an opportune time to consider the legitimacy and value of the current

criminal law framework for the regulation of racial vilification in Australia.

III THE NEW SOUTH WALES MODEL

The criminal offence in the New South Wales model is an aggravated and intentional

form of civil racial vilification law considered in Chapter Three. The relevant

provisions read as follows:

Section 20C

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious

contempt for, or severe ridicule of, a person or group of persons on the ground

of the race of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an

occasion that would be subject to a defence of absolute privilege (whether

21 See AAP, ‘Man in Court Over Race Text Riots’, The Age (Melbourne) 27 January 2006 and below Part V(A) for a discussion as to whether the text message said to trigger Cronulla riots could be prosecuted under the new Commonwealth racial vilification offence.

190

under the Defamation Act 2005 or otherwise) in proceedings for defamation,

scientific or research purposes or for other purposes in the public interest,

including discussion or debate about and expositions of any act or matter.

Section 20D

(1) A person shall not, by a public act, incite hatred towards, serious contempt

for, or severe ridicule of, a person or group of persons on the ground of the

race of the person or members of the group by means which include:

(a) threatening physical harm towards, or towards any property of, the person

or group of persons, or

(b) inciting others to threaten physical harm towards, or towards any property

of, the person or group of persons.

Maximum penalty:

In the case of an individual—50 penalty units or imprisonment for 6 months,

or both. In the case of a corporation—100 penalty units.

(2) A person shall not be prosecuted for an offence under this section unless

the Attorney General has consented to the prosecution.

As noted, the New South Wales model (or something similar) has been enacted in

South Australia, the Australian Capital Territory, Queensland and Victoria.22

22 What these jurisdictions have in common is that criminal liability is attracted when ‘a public act, incite[s] hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the

191

Consequently, though I will refer only to s 20D and the New South Wales model

more generally in the analysis to follow, the arguments made and conclusions drawn

also apply to the equivalent offences in these Territory and State jurisdictions. I now

turn to consider the New South Wales model against my three relevant criteria.

A FREEDOM OF SPEECH

The most pressing concern for the architects of the New South Wales model was to frame criminal laws to catch the worst instances of racial vilification without proscribing or chilling valuable public discourse on race-related issues. In his second reading speech for the Anti-Discrimination (Racial Vilification) Amendment Bill 1989

(NSW), then Attorney-General John Dowd said that ‘[l]egislation against racial vilification must involve a balancing of the right to free speech and the right to a dignified and peaceful existence free from racial harassment and vilification.’23 This

difficult challenge was largely met in my view.

The technique employed was to construct a crime from the civil definition of racial

vilification: a public act, to incite hatred towards, serious contempt for, or severe

ridicule of, a person or group of persons on the ground of the race of the person or

members of the group. This act constitutes a crime if done with the intent to cause the

relevant harm and the means adopted include ‘threatening physical harm towards, or

towards any property of, the person or group of persons, or…inciting others to

threaten physical harm towards, or towards any property of, the person or group of

ground of the[ir] race…by means which include threatening, or inciting others to threaten, physical harm towards, or towards any property of, the person or group of persons.’ Racial Vilification Act 1996 (SA) s 4; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 67; Anti-Discrimination Act 1991 (Qld) s 131A; Racial and Religious Tolerance Act 2001 (Vic) s 24. 23 New South Wales ‘Parliamentary Debates’ (John Dowd, Attorney-General) above n 10, 7488.

192

persons.’24 This legislative format is significant for freedom of speech. For criminal

liability is attracted only with the presence of an aggravating factor – the threat to do

violence to person or property or inciting another to do so. The idea or viewpoint per se contained in speech is of no material concern to the offence.25 And it seems likely

– in the absence of relevant case authority on point - that the prosecution must prove

the mens rea of intent in order to establish the incitement requirement in s 20D(1)

ensures that even speech that negligently or recklessly causes the relevant - very

serious - harm will not attract criminal sanction.26

Moreover, s 20D does not undercut the reasons why freedom of speech is valued and protected in our legal order. These reasons include the search for truth, the right to self-determination or individual autonomy and its centrality to democracy and self- government.27 It is possible to argue that an instance of serious racial vilification may,

for example, have at its core the idea or viewpoint that persons of a particular race

pose a terrorist threat to Australia that warrants immediate deportation and a blanket

ban on future migration.28 At the very least, this kind of racist communication makes

a contribution (however marginal) to public debate and discussion, the lifeblood of

democracy and self-government.29 And the freedom to voice any idea or viewpoint,

however odious, adds to the pool of information and arguments necessary for

individuals to make informed and intelligent decisions. The capacity for personal

24 Anti-Discrimination Act 1977 (NSW) s 20D. 25 For a detailed discussion on this point see Chapter Two: Part III(C)(3). 26 If a court characterise s 20D as a form of incitement – which is likely considering its textual and conceptual similarities –then the common law suggests that recklessness is not enough to satisfy the fault element for incitement – Giorgianni v The Queen (1985) 156 CLR 473, 506 (Wilson, Deane and Dawson JJ). 27 For an excellent discussion on the philosophical justifications for freedom of speech see Frederick Schauer, Free Speech: A Philosophical Inquiry (1982) 15-72; see also Chapter One: Part II(C)(2). 28 Macquarie University academic Andrew Fraser made an argument along these lines recently when called for African and Asian migration to Australia to cease. He argued that African migration increases the likelihood of violent crime and that Asian migration for it will result in a ruling managerial class of Asian elites – Andrew Fraser, ‘Rethinking the White Australia Policy’ 29 For an argument along these lines see Schauer, above n 27, 38-40.

193

development is enhanced as a consequence.30 Moreover, this argument from

individual autonomy also buttresses to some extent those relating to truth and self-

government.31 The racist communication enters the marketplace of ideas and will

meet other (likely compelling) arguments and viewpoints. It is posited that truth (or

more accurately some approximation of it) will emerge and that public dialogue is a

necessary ‘precondition of “self-government”.’32

But as noted, it is the presence of an aggravating factor - not the idea or viewpoint

that inheres in the racist communication - that attracts criminal sanction under the

New South Wales model. In other words, so long as the method used for making a

racist communication does not involve a threat to person or property, the content of

the relevant message alone – however loathsome - is not enough to attract criminal

sanction. In this way, freedom of speech – and the reasons why it is a central legal

value - is both protected and promoted. This criminal law may also serve to enhance

the capacity of victims of serious racial vilification to speak freely and safely.33 In

doing so a different - but no less important – free speech value is protected and

promoted in law.34 So the replication of s 20D in the other States and Territory comes

30 See Thomas Scanlon, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy and Public Affairs 204, 214-222. 31 See Schauer, above n 27, 72. 32 Adrienne Stone, ‘Rights, Personal Rights and Freedoms: The Nature of the Freedom of Political Communication’ (2001) 25 Melbourne University Law Review 395 citing an argument made by Robert Post in ‘Meiklejohn’s Mistake: Individual Autonomy and the Reform of Public Discourse’ (1993) 64 University of Colorado Law Review 1118. 33 See Dan Meagher, ‘The “Fighting Words” Doctrine: Off the First Amendment Canvas and Into the Implied Freedom Ring?’ (2005) 28 University of New South Wales Law Journal 856-858. 34 See New South Wales, Parliamentary Debates, Legislative Council, 10 May 1989, 7817 (James Samios); Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5160. For an argument in the First Amendment context on the silencing effect of (hate) speech and therefore the need for the State to address it see Owen Fiss, The Irony of Free Speech (1996) 5-26.

194

as no surprise then, as the same freedom of speech concerns were central to the lawmaking process in those jurisdictions as well.35

B THE TEXTUAL CLARITY AND PRECISION OF THE S 20D OFFENCE

The creation of sufficiently clear and precise legislation is necessary and desirable for many reasons.36 Lon Fuller, for example, claimed that ‘[t]he desideratum of clarity represents one of the most essential ingredients of legality.’37 And as noted in Chapter

Three, the law is more accessible to the citizenry and the rule of law is strengthened as a consequence.38 It is also ‘democratic in that it affirms that the source of these authoritative rules is empirically identifiable institutional acts which are the outcome of democratic procedures’39 rather than ‘leave too much to be decided by persons other than the people’s representatives’.40

On that account, it might be thought unwise to base a new racial vilification offence on the crime of incitement. The inchoate nature of the crime and its lack of proximity to the commission of a completed offence make its proof no easy matter.41 The fact, then, that incitement is rarely prosecuted should come as no surprise.42 However, it is not that the crime of incitement lacks sufficient textual clarity and precision.

35 On this point see McNamara ‘Regulating Racism’ above n 5, 234-237 (Western Australia), 272-279 (South Australia), 304-307 (Queensland). 36 For a detailed discussion on this point regarding Australian racial vilification laws see Chapter Three: Part I(B). 37 The Morality of Law (1964) 63. 38 On this point see Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (1994) 373–4 and Justice Michael McHugh, 'The Growth of Legislation and Litigation' (1995) 69 Australian Law Journal 37, 40. For a detailed discussion on this aspect of the rule of law see Geoffrey de Q Walker, The Rule of Law: Foundation of Constitutional Democracy (1988) 25–7. 39 Tom Campbell, 'Democratic Aspects of Ethical Positivism' in Tom Campbell and Jeffrey Goldsworthy (eds), Judicial Power, Democracy and Legal Positivism (2000) 3, 4. 40 Antonin Scalia, 'The Rule of Law as a Law of Rules' (1989) 56 University of Chicago Law Review 1175, 1176. 41 As Ira Robbins notes, this crime ‘allow[s] the judiciary to punish conduct far back on the continuum of acts leading to a completed crime – conduct that constitutes “mere preparation” by attempt standards.’ – ‘Double Inchoate Crimes’ (1989) 26 Harvard Journal on Legislation 31. 42 See Criminal Law Officers Committee of the Standing Committee of Attorneys-General, ‘Model Criminal Code: Chapter 2 - General Principles of Criminal Responsibility - Final Report’ (December 1992) 93.

195

Insusceptibility to evidential proof is, in my view, the real problem. For a successful prosecution requires proof of two things. First, that the accused has commanded, requested, proposed, advised, encouraged or authorised43 another to commit an

offence. And second, that the accused intended their conduct to incite that offence.44

In the absence of a confession, the latter requirement will always be difficult to prove

beyond a reasonable doubt.45

So - at least for the purposes of textual clarity and precision - the choice, then, of the

New South Wales parliament to build the s 20D offence upon the foundations of

existing and well-established criminal law (incitement) principles may seem a prudent

one. And the ‘strong reluctance to criminalise racial vilification in the absence of

violent aggravation’46 reflected the significant free speech concerns detailed above.

The framing of a racial vilification offence in this way makes good sense. It provides

a degree of legislative clarity and, as a practical matter, the prosecution and

application of a law ought to be easier when it is understood that only racial

vilification but a step removed from physical violence to person or property will

attract criminal sanction. Moreover, even those lawyers and philosophers whose

commitment to freedom of speech is particularly strong will tolerate laws of this kind.

Lawrence Tribe, for example, notes that the law

need not sanctify the deliberate infliction of pain simply because the vehicle

used is verbal or symbolic rather than physical. And legislatures may create

43 This is a modified version of the definition of incitement in s 2A of the Crimes Act 1958 (Vic) which reads ‘incite includes command, request, propose, advise, encourage or authorize.’ 44 See, for example, Crimes Act 1958 (Vic) s 321G(2). 45 This may, for example, be a reason why the New South Wales Attorney-General, as at January 2002, had not consented to a criminal prosecution notwithstanding that ten complaints has been referred to their office in accordance with the Anti-Discrimination Act 1977 (NSW) – see McNamara ‘Regulating Racism’ above n 5, 199. 46 McNamara ‘Regulating Racism’ above n 5, 133.

196

remedies for the damage done with words so long as these remedies display

sufficient sensitivity to freedom of expression as well.47

The putative legislative clarity of s 20D may not, however, withstand more rigorous

scrutiny. On its face the offence appears to simply extend the scope of the existing

crime of incitement. But the defining characteristic of incitement - that it involves

seeking to encourage or persuade another person to commit an offence48 - is absent

from the main corpus of the crime. For possessing hatred, serious contempt or severe ridicule for a person or group on account of their race is not a crime in its own right.

Section 20D is not, therefore, an instance of encouraging or persuading a person to commit another crime as understood in orthodox incitement law. The main corpus of the crime is in truth detailed in subsections (a) and (b) of s 20D(1), not s 20D(1) itself.

That is, it is defined by the means by which the ‘offence’ may be committed – (a) threatening physical harm to a person or group or their property (b) inciting others to threaten physical harm to a person or group or their property. When viewed in this way, s 20D is more accurately understood as an amalgam of the general crimes of affray, threatening to damage or destroy property, common assault and incitement when undertaken with the specific intention of inflaming racial hatred.

In formal terms, then, the ‘incitement’ in s 20D(1) is really an additional mens rea requirement: the intent that the public act - defined in subsections (a) and (b) - incite hatred towards, serious contempt for, or severe ridicule of a person or group on account of their race. This additional mens rea requirement may pose significant problems of proof for a prosecutor. For it really amounts to the proof of the motive or

47 American Constitutional Law (2nd ed, 1988) 856. I note that the author made this comment in relation to the First Amendment of the American Constitution but it is equally applicable in the Australian legal context in my view. 48 See for example R v Gurr [1968] 2 QB 944; Crimes Act 1958 (Vic) s 321G(1).

197

purpose underlying the core criminal conduct outlined in subsections (a) and (b). It is

one thing for motive to ‘be relevant in attributing intention to an accused,’49 it is

something altogether different to require a prosecutor to in effect prove the motive of

a crime beyond a reasonable doubt.

Consider, for example, a person who abuses a group of African exchange students in

a university quadrangle by making loud and terrifying physical threats towards them.

The person may hate these persons on account of their race and this statement would constitute threatening physical harm towards a person or group or their property as outlined in subsection (a). But that is not enough to offend s 20D. The speaker also must intend for their public act to incite in others hatred towards, serious contempt for, or severe ridicule of a person or group on account of their race. In this instance the additional mens rea requirement is difficult to prove save for when the person makes a confession of this kind to investigating authorities.

In addition, one might also point to the statutory command that, in sentencing, a judge must have regard to any aggravating factor concerning the offender or the circumstances of the crime.50 This provides scope in sentencing when a crime is

motivated (and therefore aggravated) by racial hatred. However, if at sentencing an

aggravating circumstance is alleged which the offender denies, the prosecution must

establish those facts beyond a reasonable doubt.51 So at least in theory it ought to be

no easier to prove an aggravating factor in sentencing for a more general crime than

49 Bronitt and McSherry, above n 11, 175. 50 See for example Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2); Sentencing Act 1991 (Vic) s 5(2)(g). 51 R v Storey [1998] 1 VR 359, 371. This decision was endorsed by the High Court in R v Olbrich (1999) 199 CLR 270.

198

as an element of the s 20D offence.52 But at least in the former case a conviction does

not ride on having to prove this additional intention.53 In any event, the foregoing

analysis suggests that the value of s 20D as a regulatory tool may be undermined as a

practical matter by its lack of textual clarity and precision.

C THE POSITION OF THE NEW RACIAL VILIFICATION CRIME

WITHIN THE EXISTING CRIMINAL LAW FRAMEWORK

(i) Location of s 20D within the existing criminal law framework

The decision of the New South Wales Parliament to situate s 20D within civil (anti-

discrimination) legislation was a mistake in my view. It prevented the new offence

from taking root in the existing criminal law framework. It sent a mixed and diluted

message regarding the seriousness of criminal racial vilification to the community and

those public officers responsible for its administration and enforcement. And its

separation from the corpus of ordinary criminal law statutes suggested that it was,

somehow, a sui generis crime. This is odd considering the conceptual similarities

between the offence and those of assault, property damage and incitement, crimes

located in the jurisdiction’s main criminal statute. To be sure, the incorporation of

what amounts to criminal purpose or motive as an element of the crime was unusual.

But it was not a case of having to re-imagine doctrine to address conduct previously

unknown or recognised by the (criminal) law.

These criticisms, moreover, are not new. As early as 1992, a report into the operation

of the New South Wales racial vilification law by James Samios MLC highlighted the

52 It is, however, interesting to note that in private discussions with members of the Victorian Criminal Bar there was a consensus that it would be easier in practise to satisfy a judge of an aggravating factor at sentencing rather than proving the “aggravating factor” as an element of a substantive offence. 53 My thanks to Scott Johns of the Victorian Criminal Bar for this point.

199

placement problems with the criminal offence. The Samios Report recommended its

relocation to the Summary Offences Act 1988 (NSW).54 The same recommendation

was made in 1999 when the New South Wales Law Reform Commission said that it

was more appropriate for the offence to be located in the Crimes Act 1900 (NSW).55

However, on both occasions the recommendation was ignored. Indeed the New South

Wales model - with both civil and criminal provisions located in anti-discrimination

or other civil legislation – became, as noted, the statutory blueprint for South

Australia, the Australian Capital Territory, Queensland and Victoria.

In any event, though the creation of new and useful criminal laws is a difficult task, it

can be done. For example, similar controversy and doubt attended the creation of the

new statutory offence of stalking in Australia.56 The crime is not free from problems of definition and administration.57 But at least its placement in the main criminal statute for each State and Territory jurisdiction and the tough maximum penalties available sent clear State-sanctioned messages to the citizenry and public officials that it was a serious crime that will no longer be tolerated.58 Now, the investigation and

prosecution of stalking is not uncommon59 and there exists a developing body of appellate court jurisprudence.60 In a relatively short time the crime of stalking has

found a place within the existing criminal law frameworks.

54 Samios Report above n 18, 30. 55 New South Wales Law Reform Commission Report above n 18, 552. 56 See Matthew Goode, ‘Stalking: Crime of the Nineties?’ (1995) 19 Criminal Law Journal 21. 57 On this point see Emma Ogilvie, Stalking: Legislative, Policing and Prosecution Patterns in Australia (2000) 71-81. 58 Crimes Act 1958 (Vic) s 21A (10 years imprisonment); Crimes Act 1900 (NSW) s 562AB (5 years imprisonment); Crimes Act 1900 (ACT) s 34A (5 years imprisonment); Criminal Law Consolidation Act 1935 (SA) s 19AA (5 years imprisonment); Criminal Code Act 1899 (Qld) s 359A (7 years imprisonment); Criminal Code Act 1924 (Tas) s 192 (21 years imprisonment); Criminal Code (NT) s 189 (5 years imprisonment); Criminal Code Act 1913 (WA) s 338E (8 years imprisonment). 59 See Ogilvie, above n 57, 87-98. 60 See for example Gerard Nash and Mirko Bagaric, Criminal Legislation Victoria 2004 (2004) 203- 205.

200

It is my argument that one consequence of the anomalous placement of s 20D in the

New South Wales model was to deny the fledging and controversial criminal rule the

same opportunity. Another is that its placement within anti-discrimination - or other civil - legislation sends a message that the crime of racial vilification is somehow less serious than similar, more general offences such as assault, property damage and incitement. And as will be discussed in more detail below, the comparatively modest penalty for the racial vilification offence supports my claim that the State considers – or least gives the impression - that it is less serious in terms of criminal culpability than its generic counterparts.

(ii) Compatibility of s 20D with criminal law policy

It is sound policy that a new crime is needed only when existing laws do not

sufficiently cover the conduct a political community wishes to criminally proscribe.

On one view, this did not pertain in New South Wales when they enacted section

20D.61 In New South Wales, the relevant conduct proscribed by s 20D(1)(a) – inciting

hatred, serious contempt or severe ridicule of a person or group on account of their

race by threatening physical harm to them or their property – would constitute the

crimes of affray,62 common assault,63 or threatening to destroy or damage property.64

The scope of s 20D(1)(b) – inciting others to do the conduct proscribed in (1)(a) - was

61 Compare this with stalking-like conduct which was considered beyond the reach of the criminal law until the new statutory offence of stalking was created – see Ogilvie, above n 57, 53-56. 62 Crimes Act 1900 (NSW) s 93C: A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years. 63 Crimes Act 1900 (NSW) s 61: Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years. 64 Crimes Act 1900 (NSW) s 199: A person who, without lawful excuse, makes a threat to another, with the intention of causing that other to fear that the threat would be carried out: (a) to destroy or damage property belonging to that other or to a third person, or (b) to destroy or damage the first-mentioned person s own property in a way which that person knows will or is likely to endanger the life of, or to cause bodily injury to, that other or a third person, is liable to imprisonment for 5 years.

201

covered also by the crime of incitement at common law.65 And the fact that this

conduct is done to incite hatred, serious contempt and severe ridicule on account of

race would constitute a serious aggravating factor statutorily required to be taken into

account in determining an appropriate sentence.66

Even so, there is in my view a compelling policy reason for the creation of a separate

criminal offence of racial vilification. It is for the State to acknowledge and proscribe

a particular type of serious and exceptional criminality.67 That is, notwithstanding the

relevant criminal conduct may be caught by the more general offences noted, the

charging of one or more of those offences may not reflect the true – more obnoxious –

nature of the criminality involved.68 In theory at least, the State-sanctioned message

that serious racial vilification is harmful, dangerous and anathema to a democracy that

values individual dignity and racial diversity ought to be stronger when made through

a specific criminal offence. Section 20D was not necessary to plug an obvious gap in

the coverage of the criminal law. But to have an offence that expressly reflects the

aggravated nature of the relevant criminal conduct supports the introduction of a

specific racial vilification offence.

(iii) Compatibility of s 20D with criminal law principle

It is my argument that s 20D is at odds with the principle that the seriousness of the

offence ought to be reflected in the severity of the punishment.69 I will call it the

‘penalty anomaly’. As Andrew Ashworth explains:

65 Invicta Plastics v Clare [1976] Crim LR 131. 66 Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2). 67 See Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159. 68 My thanks to Scott Johns of the Victorian Criminal Bar for this point. 69 On this point see Glanville Williams, ‘Convictions and Fair Labelling’ (1983) 42 Cambridge Law Journal 85.

202

The maximum penalties attached to offences may…be taken to convey the

relative seriousness of the types of offence: indeed one of the main functions

of criminal law it to express the degree of wrongdoing, not simply the fact of

wrongdoing. This is integral to determining the proper label for the offence

and the appropriate degree of punishment.70

Section 20D attracts a modest maximum penalty. This is not per se problematic.71

What is, however, is its comparative modesty when measured against those other

general offences that proscribe the same core criminal conduct. In New South Wales,

for example, the maximum penalty for a s 20D conviction is six months

imprisonment, a $5500 fine or both compared with the more general offences of

affray (five years), threatening to destroy or damage property (five years) and

common assault (two years). A similar situation pertains in the other jurisdictions

with the New South Wales model.72 In Victoria, the crime of serious racial

vilification attracts a maximum penalty of six months imprisonment, a fine of $6000

or both compared with incitement (five years73), threatening to destroy or damage

property (five years74) and common assault (five years75). As noted, the s 20D

offence constitutes an aggravated form of these more general crimes, yet the

respective maximum penalties strongly suggest otherwise. This penalty anomaly

undermines the seriousness principle in criminal law and provides a strong

70 Andrew Ashworth, Principles of Criminal Law (5th ed, 2006) 35. 71 It should be noted here that in 1992 the Samios Report recommended that the s 20D maximum penalty be doubled – see above n 18, 31. This recommendation was not accepted by the New South Wales government. 72 Australian Capital Territory: racial vilification ($5000 fine), affray ($1000 fine), common assault (2 years); Queensland: racial vilification (6 months), affray (1 year), common assault (3 years); South Australia: racial vilification (3 years), threats to property (5 years), common assault (3 years). 73 The penalty for incitement in circumstances that would constitute the offence of serious racial vilification is likely to be a maximum of 5 years imprisonment: see Crimes Act 1958 (Vic) s 321I(c) which states that the penalty for incitement is the same for the relevant (incited) offence which in this case is common assault. 74 Crimes Act 1958 (Vic) s 198. 75 Crimes Act 1958 (Vic) s 320.

203

disincentive to prosecutors to prefer a racial vilification offence even when the facts

make it the most appropriate charge.

(iv) Compatibility of s 20D with criminal law procedure

The s 20D offence appears distinctive from ordinary criminal procedure in one

important respect. It seems to require the consent of the New South Wales Attorney-

General before a prosecution can commence.76 This is not to suggest that this

procedural requirement is unknown to the criminal law. The same initiating

mechanism, for example, exists for a prosecution for treason and sedition under

Commonwealth law.77

However, the Attorney-General’s power in this regard was delegated to the Director

of Public Prosecutions in 1990.78 This was a welcome procedural development for this kind of discretionary power would place an Attorney-General in an invidious position. For a decision to prosecute, however appropriate and considered, will inevitably give rise to claims that the government is engaged in political censorship.

And even when a decision is made not to prosecute in circumstances when parts of

the community consider it appropriate, the Attorney-General will be accused of

favouring certain political viewpoints over others.

D PROVISIONAL CONCLUSION I

In this part of the Chapter I have critically evaluated the criminal racial vilification

offence in the New South Wales model. My analysis demonstrates that the offence

76 Anti-Discrimination Act 1977 (NSW) 20D(2). 77 See Criminal Code Act 1995 (Cth) s 80.1(3) for treason, s 80.5 for sedition. 78 This delegation was made pursuant to section 11(2) of the Director of Public Prosecutions Act 1986 (NSW) and published in the New South Wales Government Gazette on 10 July 1990. My thanks to Luke McNamara for this point.

204

does not unreasonably proscribe or chill valuable public discourse on race-related

issues. However, the location of the offence in civil (anti-discrimination) legislation

and its penalty anomaly has denied it the opportunity to take root in the existing

criminal law framework. These problems are compounded by s 20D lacking in textual

precision and clarity.

It is, therefore, my argument that when faced with conduct that may offend both s

20D and its more general counterparts, a prudent prosecutor will always choose to

proceed under the latter. This is especially so when prosecution authorities operate

under significant time and resource pressures79 and will commence a criminal

prosecution only when there is a reasonable prospect of a conviction being secured.80

It should come as no surprise, then, that no one has yet been prosecuted under s 20D or its Territory and State equivalents.81 Indeed the charges that arose from the

Cronulla riots and the subsequent revenge attacks are instructive. The only person to face court in relation to the text messages said to have triggered the riots – Brett

Andrew King – was ‘charged with using a carriage service (the mobile phone system) to menace, harass or cause offence, as well as one count of printing or publishing writing which incited, urged or encouraged riot and affray.’82 And as noted, others

have faced charges including armed robbery in company with wounding, malicious

79 See for example the comments of the Victorian Director of Public Prosecutions in Office of Public Prosecutions Victoria, Annual Report 2003-2004 2-3. 80 See for example Office of Public Prosecutions Victoria, The Criteria Governing the Decision to Prosecute [4] at 81 It has also been observed that in other jurisdictions with racial vilification laws that, when prosecutions are undertaken, juries and judges are reluctant to convict in any event – see Sharyn Ch’ang, Legislating Against Racism: Racial Vilification Laws in New South Wales’ in Sandra Coliver (ed), Striking a Balance: Hate Speech, Freedom of Expression and Non-Discrimination (1992) 99; Goldberg above n 5, 29. 82 See AAP, ‘Man in Court Over Race Text Riots’, The Age (Melbourne) 27 January 2006

205

wounding with intent, assault occasioning actual bodily harm, riot and affray.83 So

notwithstanding the suitability of criminal racial vilification charges to these events, they remain conspicuous by their absence.

But even if prosecutions are rarely undertaken, there is, as noted, a compelling policy reason for keeping laws on the statute books that specifically criminalise racial

vilification. That is to send a strong State-sanctioned message that serious racial vilification is abhorrent and will not be tolerated. But there is a danger if ‘the

regulatory value of criminalisation is not just primarily symbolic, but exclusively

symbolic.’84 It risks the important State-sanctioned message not only being

diminished, but undercut.

IV THE WESTERN AUSTRALIAN MODEL

A very different criminal law framework was established in Western Australia with

the passage of its Criminal Code Amendment (Racist Harassment and Incitement to

Racial Hatred) Act 1990 (WA). First, the laws were specifically drafted to counter the

activities of the Australian Nationalists Movement (‘ANM’), a neo-Nazi organisation

operating in Perth at the time.85 Members of the ANM, including its leader Jack Van

Tongeren, were convicted and jailed for crimes including arson, bombing and

conspiracy to cause detriment to person arising from a series of racist attacks that took

place in the mid to late 1980’s. Second, and as a consequence of their provenance, the

laws targeted only written and pictorial racist communications.86 For much of the

83 Ibid. 84 McNamara ‘Regulating Racism’ above n 5, 201 (emphasis in the original). 85 On the background to the original Western Australian criminal provisions see Ibid 222-225. 86 The original provisions contained in the Criminal Code 1913 (WA) made it a crime to publish, distribute or display written or pictorial material that is threatening or abusive intending to create or promote hatred of any racial group (s 78) or be in possession of such materials for the same purpose (s 77). It was also a crime to publish written or pictorial material intending to harass any racial group (s 80) or be in possession of such materials for the same purpose (s 79).

206

ANM’s criminal activity during this time involved spray painting racist messages on

private property and distributing racist pamphlets and other materials in prominent

public spaces. And third, only criminal laws were enacted.

The laws, however, lay dormant until 2004 when Damon Blaxall – a fellow ANM

member - became the first and only person in Australia to be convicted of a criminal

racial vilification offence. This dearth of criminal prosecutions replicates the

experience with the laws in the New South Wales model. And this despite an upsurge

in racist violence since the events of 9/11, according to the Western Australian

government:

Since the attacks in the United States on 11 September 2001, the Bali bombing

of 12 October 2002 and the controversies relating to the handling of asylum

seekers and refugees in Australia, vilification against Arab and Muslim

Australians has increased. Perth’s Sikh community has experienced serious

incidents of racism, as has our Jewish community. Indeed, since 11 September

2001, the number of anti-Semitic incidents throughout Australia has

doubled.87

Most notably, a new wave of racist attacks were carried out in Perth in July 2004

which bore a striking similarity to those perpetrated by the ANM in the 1980’s. These

attacks generated community outrage in Western Australia and significant legislative

reform to the existing racial vilification laws as a consequence. The Criminal Code

Amendment (Racial Vilification) Act 2004 (WA) was passed. Premier Geoff Gallop explained in his second reading speech why, in the government’s view, the new laws were needed:

87 Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159.

207

In the past, prosecuting authorities have not utilised the current Criminal Code

provisions. This has been due to difficulties in proving intent and, as the

Director of Public Prosecutions has advised, the low criminal penalties that

currently exist. As a consequence, when crimes of racial vilification may have

occurred, it has been easier to charge offenders with other offences that either

are easier to prove or have higher penalties attached or both. This Bill

addressed the deficiencies that have been identified in the current provisions in

a number of important ways. A two-tiered approach is proposed for each type

of offence. The first tier in each case is an offence requiring intent to be

established with a higher maximum penalty. The second tier is a strict liability

offence in which it can be established that the conduct in question is likely to

have the effect described, and alternative verdicts are available.88

The amending Act repealed the original offences and replaced them with eight new

offences. The Western Australian framework still provides for criminal sanctions

only, but the new laws significantly expands the range of conduct now considered

criminal. Of the new offences, some are specifically intended to cover similar

territory to section 20D in the New South Wales model,89 whilst others re-enact original provisions and sections 78, 80, 80B and 80D create - for the first time in

Australian racial vilification law – crimes of strict liability; at least this was the view of Premier Gallop in his second reading speech.90 But I think there must be some

doubt as to whether these offences are, properly considered, strict liability crimes as

88 Ibid. 89 Western Australia, Parliamentary Debates, Legislative Assembly, 16 September 2004, 6009 (James McGinty, Attorney-General). 90 Western Australia, ‘Parliamentary Debates’ (Geoff Gallop, Premier), above n 19, 5159.

208

opposed to imposing liability for criminal negligence.91 In any event, they are the first racial vilification crimes on the Australian statute book that can be committed without a subjective mens rea.92 The new provisions read as follows:

77. Conduct intended to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, by which

the person intends to create, promote or increase animosity towards, or

harassment of, a racial group, or a person as a member of a racial group, is

guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: s. 78, 80A or 80B.

78. Conduct likely to incite racial animosity or racist harassment

Any person who engages in any conduct, otherwise than in private, that is

likely to create, promote or increase animosity towards, or harassment of, a

racial group, or a person as a member of a racial group, is guilty of a crime

and is liable to imprisonment for 5 years.

Alternative offence: s. 80A or 80B.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

91 On this point it is worth noting that racial vilification provisions in the United Kingdom with similar wording and coverage – most notably sections 18, 19 and 23 of the Public Order Act 1986 (UK) – that use ‘likely’ as their fault term are considered to impose liability for criminal negligence. That is, they are not crimes of strict liability but require proof of an objective mens rea in the sense that a reasonable person in all the circumstances would have or ought to have known that is was likely that their conduct would incite/stir up racial hatred – see Ashworth, above n 70, 196-197; A T H Smith, Offences Against Public Order: Including the Public Order Act 1986 (1987) 154-157; Richard Card, Criminal Law (15th ed, 2001) 468-472. In any event, as Ashworth notes at 203, ‘[o]ffences that rely on the court’s assessment of the probable effect of certain conduct may be said to impose a form of strict liability, or at least liability for negligence.’ Therefore, in the absence of instructive Western Australian case law on point, I will use the phrase ‘strict or negligent liability crimes’ in the remainder of the Chapter. 92 On the distinction between objective and subjective mens rea standards see David Brown et al, Brown Farrier Neal and Weisbrot’s Criminal Laws (4th ed, 2006) 348-349.

209

79. Possession of material for dissemination with intent to incite racial animosity

or racist harassment

Any person who

(a) possesses written or pictorial material that is threatening or abusive

intending the material to be published, distributed or displayed whether by that

person or another person; and

(b) intends the publication, distribution or display of the material to create,

promote or increase animosity towards, or harassment of, a racial group, or a

person as a member of a racial group,

is guilty of a crime and is liable to imprisonment for 14 years.

Alternative offence: s. 80, 80C or 80D.

80. Possession of material for dissemination if material likely to incite racial animosity or racist harassment

(a) any person possesses written or pictorial material that is threatening or

abusive intending the material to be published, distributed or displayed

whether by that person or another person; and

(b) the publication, distribution or display of the material would be likely to

create, promote or increase animosity towards, or harassment of, a racial

group, or a person as a member of a racial group,

210

the person possessing the material is guilty of a crime and is liable to

imprisonment for 5 years.

Alternative offence: s. 80C or 80D.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

80A. Conduct intended to racially harass

Any person who engages in any conduct, otherwise than in private, by which

the person intends to harass a racial group, or a person as a member of a racial

group, is guilty of a crime and is liable to imprisonment for 5 years.

Alternative offence: s. 78 or 80B.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

80B. Conduct likely to racially harass

Any person who engages in any conduct, otherwise than in private, that is likely to

harass a racial group, or a person as a member of a racial group, is guilty of a crime

and is liable to imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12

000.

80C. Possession of material for display with intent to racially harass

Any person who

211

(a) possesses written or pictorial material that is threatening or abusive

intending the material to be displayed whether by that person or another

person; and

(b) intends the display of the material to harass a racial group, or a person as a

member of a racial group,

is guilty of a crime and is liable to imprisonment for 5 years.

Alternative offence: s. 80 or 80D.

Summary conviction penalty: imprisonment for 2 years and a fine of $24 000.

80D. Possession of material for display if material likely to racially harass

(a) any person possesses written or pictorial material that is threatening or

abusive intending the material to be displayed whether by that person or

another person; and

(b) the display of the material would be likely to harass a racial group, or a

person as a member of a racial group,

the person possessing the material is guilty of a crime and is liable to

imprisonment for 3 years.

Summary conviction penalty: imprisonment for 12 months and a fine of $12

000.

212

80E. Conduct and private conduct

(1) A reference in section 77, 78, 80A or 80B to conduct includes a reference

to conduct occurring on a number of occasions over a period of time.

(2) For the purposes of sections 77, 78, 80A and 80B conduct is taken not to

occur in private if it

(a) consists of any form of communication with the public or a section of the

public; or

(b) occurs in a public place or in the sight or hearing of people who are in a

public place.

80F. Belief as to existence or membership of racial group

For the purposes of proceedings for an offence under section 77, 79, 80A,

80C, 313, 317, 317A, 338B or 444 it does not matter whether a group of

persons was a racial group or whether a person was a member of a racial

group as long as the accused person believed at the time of the alleged offence

that the group was a racial group or that the person was a member of a racial

group, as the case may be.

80G. Defences

(1) It is a defence to a charge under section 78 or 80B to prove that the

accused person's conduct was engaged in reasonably and in good faith

(a) in the performance, exhibition or distribution of an artistic work;

213

(b) in the course of any statement, publication, discussion or debate made or

held, or any other conduct engaged in, for

(i) any genuine academic, artistic, religious or scientific purpose; or

(ii) any purpose that is in the public interest;

or matter of public interest.

(2) It is a defence to a charge under section 80 or 80D to prove that the

accused person intended the material to be published, distributed or displayed

(as the case may be) reasonably and in good faith

(a) in the performance, exhibition or distribution of an artistic work;

(b) in the course of any statement, publication, discussion or debate made or

held, or any other conduct engaged in, for

(i) any genuine academic, artistic, religious or scientific purpose; or

(ii) any purpose that is in the public interest;

or matter of public interest.

The Act also amended the Criminal Code crimes of common assault, assaults occasioning bodily harm, assaults with intent, threats and criminal damage to provide

214

for enhanced penalties when undertaken in circumstances of racial aggravation.93

These amendments were made at the behest of shadow Attorney-General Sue Walker

who told Parliament that the racist attacks in Perth in the 1980’s and in July 2004

were ‘not about incitement to racial hatred; [they were] about urban terrorism, violence and the instilling of threats and fear into racial groups.’94 This was an

observation (and criticism) of some import to which I shall later return. I now turn to

critically evaluate the new Western Australian offences against my three criteria.

A FREEDOM OF SPEECH

The need to strike an appropriate balance between freedom of speech and other

important public interests in the new offences was recognised by Premier Gallop.95

Interestingly, though, he emphasised just as strongly the need to protect and promote

freedom of speech from the perspective of the victims of racial vilification, tying this

in with a claim for substantive legal equality of the kind argued for in the United

States by the critical race theorists.96

Every person has the right to a dignified and peaceful existence, free from

racist vilification and harassment. The right to freedom of speech also applies

equally to targets of vilification. Those people should not be subjected to

93 See Criminal Code 1913 (WA) s 313 (common assaults), s 317 (assaults occasioning bodily harm), s 317A (assaults with intent), s 338B (threats), s 444 (criminal damage). 94 Western Australia, Parliamentary Debates, Legislative Assembly, 15 September 2004, 5926 (Sue Walker, shadow Attorney-General). 95 Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5160. 96 For a collection of Critical Race Theory writings see Mari Matsuda et al (eds), Words That Wound: Critical Race Theory, Assaultive Speech, and the First Amendment (1993). But for an excellent critique of the critical race theorists free speech arguments see James Weinsten, Hate Speech, Pornography, and the Radical Attack on Free Speech Doctrine (1999) 67-123.

215

intimidation so as to make them reluctant to exercise their own freedom of

speech. People have a right not to be threatened into silence.97

From this free speech perspective, it is the silencing capacity of such conduct that

underpins the new criminal regime in Western Australia. This, maybe counter-

intuitively, provides a powerful free speech justification for strong State action in this

area, at least in regards to serious racial vilification.98 To this end, the common denominator of the new offences is the proscription of conduct that is intended (or likely) to incite or cause racial animosity or harassment. This free speech interest is promoted further by the use of criminal sanction upon breach and the availability of heavy penalties. However, notwithstanding the legitimacy of this free speech interest, the means by which Western Australia has chosen to advance it raises other (arguably more serious) free speech concerns. Indeed the same characteristics of the laws that advance the free speech interest noted above seriously undermine it for other reasons.

The root of the problem is with the potential scope of the terms ‘animosity towards’

(defined as ‘hatred of or serious contempt for’) and ‘harass’ (‘includes to threaten, seriously and substantially abuse or severely ridicule’). Both the terms and their accompanying definitions lack precision, especially when they form the core of very serious criminal offences. This is not, however, an argument that questions the goal or legitimacy of proscribing serious racial vilification for, amongst other things, its silencing capacity. But I do want to highlight the difficulty of writing sufficiently precise laws when speech forms a significant part of the conduct proscribed and why valuable freedom of speech may be sacrificed as a consequence. It is, as explained in

97 Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5160. 98 See Fiss, above n 34, 5-26. But see Schauer, above n 27, 125-128 where the author makes a strong argument as to why the State ought not interfere to provide the less powerful in society with equality of free speech opportunity and Weinstein, above n 96, 162-163 where the author repudiates the ‘silencing’ argument made by Fiss.

216

Chapter Three, the ‘vice of linguistic over-inclusiveness’.99 To recall, Frederick

Schauer rightly considers it far more difficult to write a law that is reasonably precise

in its coverage when that law seeks to regulate speech as opposed to other forms of

conduct. For such is the inherently fluid and equivocal nature of speech that there is

always a greater danger that a ‘speech law’ will operate to proscribe a much broader

range of speech than was originally intended by the legislature. It is all the more dangerous from a free speech perspective when – like the Western Australian model - it pertains to laws that impose serious criminal sanctions upon speech.

As in those jurisdictions with the New South Wales model, it is clear enough that the

Western Australian Parliament intends the new offences to catch only the worst

instances of racial vilification.100 But the ‘vice of linguistic over-inclusiveness’ is

significantly less with s 20D in the New South Wales model. For as noted, criminal

liability is attracted only with the presence of an aggravating factor – the threat to do

violence to person or property or inciting another to do so. This provides the law with

some linguistic and operational clarity. The chance of its central terms catching y when proscription is intended only for x is much smaller when it is understood that only racial vilification but a step removed from physical violence to person or property will attract criminal sanction.

The new Western Australian offences, however, lack the limiting language of the kind provided by the aggravating factor in s 20D. The exception is that part of the ‘harass’ definition that refers to ‘threats’. The identification of speech that amounts to a threat is usually straightforward. And its legal status as a criminal ‘act’ is well established

99 Schauer, above n 27, 84. 100 See Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159.

217

and considered unproblematic from a free speech perspective.101 Otherwise the core

terms - ‘animosity towards’ and ‘harass’ - are open-ended, particularly for serious

criminal offences. It increases sharply the ‘vice of linguistic over-inclusiveness’ and

its accompanying deleterious effects on free speech. Interestingly, the government

recognised the problem and danger of ‘linguistic over-inclusiveness’ posed by the

new offences. This was the reason why it resolved that in those ‘cases in which a

provision technically has the potential to catch circumstances that are beyond the

intention of the legislation’102 the consent of the Director of Public Prosecutions must

be obtained before a prosecution can commence.

However, to these linguistic concerns one might reasonably reply that these terms are

synonymous with the ‘hatred towards, serious contempt for, or severe ridicule of’

formula found in s 20C, the civil provision in the Anti-Discrimination Act 1977

(NSW) considered in Chapter Three.103 The availability of a comparative

jurisprudence ought to limit the danger of ‘linguistic over-inclusiveness’ and confine

the operational scope of these terms in fact as a consequence. In the criminal context,

however, no comparative Australian jurisprudence exists due to the total absence of

criminal prosecutions under the New South Wales model. And even if it did (or may

some time in the future) the meaning of the s 20D formula must be informed by the

context in which it appears, namely the limiting language of the aggravating factor.

This must reduce how instructive such a comparative jurisprudence could ever be.

101 On this point see Schauer, above n 27, 89, 102. 102 Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5160. 103 This harm threshold is replicated in the following civil racial vilification laws: Racial Vilification Act 1996 (SA) s 4 and Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66; Anti- Discrimination Act 1991 (Qld) s 124A ; Racial and Religious Tolerance Act 2001 (Vic) s 7(1); Anti- Discrimination Act 1998 (Tas) s 17(1).

218

On the other hand, the courts can apply the principle of legality to limit the scope of

these indeterminate terms and the significant free speech danger they pose. As the

High Court demonstrated in Coleman, this presumption is a valuable interpretive tool that courts can use to preserve the greatest possible space for the common law freedom to communicate. Indeed, the Coleman decision is of particular relevance to the interpretation of these Western Australian offences. For the Court clearly exhibited a heightened awareness of the very real free speech threat posed by open- ended criminal offences of this kind and a willingness to rigorously apply the principle of legality – underpinned by the implied freedom - to limit their operation so far as the relevant statutory language constitutionally permits.

Moreover, the government sought to address some of the free speech concerns with the new offences. To this end, the most serious Western Australian offences have a rigorous mens rea requirement,104 the prosecution of the ‘incitement’ offences (ss 77,

78, 79 & 80) is conditional on obtaining the consent of the Director of Public

Prosecutions105 and a range of free speech/public interest defences are available for

others.106 A person cannot commit the most serious offences unless it is proved beyond a reasonable doubt that they intended to incite racial animosity or harassment.

This mens rea requirement and the DPP’s consent for certain prosecutions may provide incidental free speech protection. The former for precluding the possibility of criminal sanction for speech that negligently or even recklessly causes the relevant

harm;107 the latter as it reduces the chance of free speech being infringed by the

104 The mens rea of ‘intention’ must be proven to make out the two offences that carry a maximum punishment of 14 years imprisonment (ss 77 & 79). On this point see further Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159. 105 Criminal Code 1913 (WA) s 80H. 106 Criminal Code 1913 (WA) s 80G. 107 However, proof of criminal intent is hardly surprising when the offences are punishable by 14 years imprisonment and is, in any event, consistent with orthodox mens rea principles for incitement – see Bronitt and McSherry, above n 11, 435-436.

219

inappropriate or overzealous prosecution of the serious incitement crimes. This procedural safeguard has additional importance considering that two of the offences can be committed without a subjective mens rea.108

These three legislative measures may reduce the threat to freedom of speech posed by a criminal prosecution in Western Australia. But they do not curb the serious chilling effect of these laws caused by their ‘linguistic over-inclusiveness’.109 That is, the threat of legal sanction - combined with uncertainty amongst the citizenry as to the potential scope of the laws - will inevitably result in the self-censorship of speech that can make a valuable contribution to public discourse on race-related issues to make sure that the legal boundaries of speech are not transgressed. And when the threat is one of serious criminal sanction - including strict or negligent liability in some instances - the risk of this kind of damaging self-censorship is greater still. 110

The inclusion of four crimes that can be committed without a subjective mens rea was, as noted, considered necessary to due to perceived difficulties in proving intent under the original laws. Premier Gallop stated in his second reading speech that the new legislative ‘approach means that an offence can still be established, even if the intent of the accused person cannot be proved’.111 And the obvious free speech concerns with having strict or negligent liability (racial vilification) crimes were, according to the government, met by the availability of the new free speech/public interest defences.112 But as the following analysis will demonstrate, this significantly underestimates the threat to freedom of speech posed by these crimes, the defences notwithstanding.

108 Criminal Code 1913 (WA) ss 78 & 80. 109 On the origins of the ‘chilling effect’ in free speech law see Tribe, above n 47, 863-864. 110 On this point see Keegstra [1990] 3 SCR 697, 861 (McLachlin J). 111 Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159. 112 See Ibid 5159-5160.

220

The text of the Western Australian criminal defences closely tracks those available under the civil racial vilification laws in the Commonwealth and New South Wales models.113 In fact, sections 78 (conduct likely to incite racist animosity) and 80B

(conduct likely to racially harass) proscribe the same range of conduct as the civil laws in these jurisdictions.114 There is a significant difference, however. In the jurisdictions with the Commonwealth and New South Wales models where there are free speech/public interest defences to the racial vilification offences, they are civil not criminal laws. The significance of this from a free speech perspective becomes clear when case law from these other jurisdictions is considered.

In following instances, for example, the impugned conduct was found to offend the relevant racial vilification harm threshold and fall outside the scope of the free speech/public interest defences:

- A talkback radio segment where the following was said regarding Aboriginal

protests against the redevelopment of an old brewery site in Western Australia:

‘You know for eighty years while it was brewing grog it didn’t worry the Waugyl,

as soon as it stopped brewing grog, up pops Waugyl…Yeah, well what I can’t get

over, remember that a few years ago when they were camping there, no it’s a so-

113 The defences available in the jurisdictions with the New South Wales model replicate those provided under s 20C(2) of the Anti-Discrimination Act 1977 (NSW). It reads: Nothing in [s 20C(1)] renders unlawful: a fair report of a public act referred to in subsection (1), or a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 114 In those jurisdictions with the New South Wales model the harm threshold in the civil provision is ‘hatred towards, serious contempt for, or severe ridicule of’. In the Western Australian model, the harm threshold in s 78 is ‘animosity towards or harassment of’ and in s 80B is ‘harass’ where ‘animosity towards’ means hatred of or serious contempt for and ‘harass’ includes to threaten, seriously and substantially abuse or severely ridicule. Consequently, and notwithstanding the divergent wording, the harm threshold in these Western Australian offences covers the same ground as the harm threshold in the civil provisions of the racial vilification laws in those jurisdictions with the New South Wales model.

221

called sacred site, isn’t it. Yes. They were urinating, they were defecating and they

were fornicating.’115

- The following comments of a radio talk show host: ‘So the Aboriginal woman

argued discrimination and she got an award of six thousand dollars. Now I think

that’s a joke. And I’ll tell you why I think it is. If I owned the only property on the

real estate agent’s list…and a bloke walked through the door, and I don’t care

what colour he is, looking like a skunk and smelling like a skunk, with a sardine

can on one foot and sandshoe on the other, and a half drunk bottle of beer under

the arm, and he wanted me to rent the final property available and it was mine, I’d

expect the agent to say no without giving reasons. What discrimination would the

agent be guilty of then?’116

The threat to freedom of speech becomes apparent when it is understood that these three instances of civil racial vilification would be crimes under Western Australian law punishable by imprisonment for two years or a fine of $24,000 at minimum.117 I do not wish to deny the offence and harm caused by these sorts of words, nor suggest that they ought, necessarily, be immune from legal sanction. But making it a crime to engage in this kind of speech goes too far in my view, particularly when the relevant offence is one of strict or negligent liability. If even non-intentional conduct can attract serious criminal sanction – which is, after all, the government’s express

115 Wanjurri v Southern Cross Broadcasting Ltd [2001] EOC¶93–147, 75479 (Commissioner Innes). 116 Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 (Judicial Member Rees and Members Silva and Luger) [6] (Judicial Member Rees and Member Silva). It should be noted, however, that in Jones and 2UE v Western Aboriginal Legal Service Ltd [2000] NSWADTAP 28 (Deputy President Judge Latham, Goode, Antonios) the respondents (Jones and 2UD) successfully appealed the original decision on the grounds that the Western Aboriginal Legal Service Ltd did not have standing to bring the complaint. 117 I say at minimum for it is possible that the conduct described in the above three cases may constitute one of the more serious Western Australian crimes (other than sections 78 or 80B), particularly if there were evidence that the respondent/accused had undertaken to perform the conduct with the intent to cause the relevant harm. The same conduct proscribed by sections 78 and 80B if undertaken with the mens rea of intent would expose a person to a maximum punishment of 17 years and 5 years imprisonment respectively.

222

rationale for these offences – then widespread and damaging self-censorship amongst

the citizenry of speech that can make a valuable contribution to public discourse on

race-related issues is, again, the inevitable consequence. Moreover, as was argued in

Chapter Two, a distinct lack of sensitivity to constitutionally protected political

communication must cast doubt on the compatibility of these four offences with the

implied freedom.118

My final free speech concern with the criminal laws in the Western Australian model

is the reach of the ‘possession’ offences, in particular those created by sections 80 and

80D. They criminally proscribe a form of speech (‘possession of written and pictorial

material’) that occurs in private, is yet to be published, distributed or displayed and

where no harm has been caused.119 These kinds of inchoate offences are not unknown

to the criminal law. The offences of attempt, conspiracy and incitement are prime

examples. But each of these offences requires proof beyond a reasonable doubt that a

person intended to carry out the complete offence.120 The section 80 and 80D

offences are, on the other hand, crimes of strict or negligent liability. In this way, it

can be argued that these ‘possession’ offences reach further back into the factual

timeline than any other comparable inchoate offence for liability is affixed before the

formation of a criminal intent. And when, as noted, speech is the proscribed conduct,

the further back the law reaches the greater its capacity to unduly infringe and chill

freedom of speech.

118 See Chapter Two: Part III(C)(3)(b). 119 I note here that an equivalent offence exists in the United Kingdom (Public Order Act 1986 (UK) s 23) and that controversial Muslim cleric Abu Hamza al-Masri was recently convicted of this offence for possessing threatening, abusive or insulting audio and video tapes with a view to them being distributed, shown or played with an intent to stir up racial hatred or in circumstances where racial hatred was likely to be stirred up. It is, however, also important to note that Abu Mamza was convicted on six (more serious) counts of soliciting to murder for the same conduct – ‘Abu Hamza Jailed For Seven Years’, BBC News, 7 February 2006, http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk/4690224.stm 120 For attempt see Knight v The Queen (1992) 175 CLR 495, 501 (Mason CJ, Dawson and Toohey JJ); conspiracy see Gerakiteys v The Queen (1984) 153 CLR 317; incitement see, for example, Crimes Act 1958 (Vic) s 321G(2).

223

B THE TEXTUAL CLARITY AND PRECISION OF THE WESTERN

AUSTRALIAN OFFENCES

The ‘linguistic over-inclusiveness’ of the new Western Australian offences –

especially the ‘incitement’ and ‘harassment’ offences created by sections 77, 78, 80A and 80B - deprives them of textual clarity and precision. They do, however, have one benefit in this regard compared with s 20D. The offences cover similar ground to the racial incitement crimes found in number of international jurisdictions.121 This

comparative jurisprudence at least provides judges with an interpretive tool that may

prove useful in giving the laws an operational clarity.122 But the mens rea offences (ss

77 & 80A) are no more susceptible to proof than s 20D in my view. For as with s

20D, their successful prosecution requires in fact proof that a specific racist motive or

purpose is the reason for the relevant criminal conduct. For the purposes of the criminal law, [i]ntention is not the same as motive which is generally referred to as an emotion prompting an act.’123 And in the absence of a confession, proof of a racist

motive will always pose a significant evidential hurdle for a prosecutor.

The ‘possession’ offences (sections 79, 80, 80C and 80D) also lack precision and are

quite unwieldy. Section 79, for example, requires the prosecution to prove not only

that a person possessed threatening or abusive written or pictorial material but that

they intended for it to be published or displayed by them or another and intended that

(intended) publication or display to create, promote or increase racial animosity or

121 See for example Criminal Code, RSC 1985, c C-46, ss 319; Public Order Act 1986 (UK) ss 18 & 19; Human Rights Act 1993 (NZ) s 131. 122 I note, however, that prosecutions for racial incitement have also been rare in the United Kingdom and New Zealand – see Geoffrey Bindman, ‘Incitement to Racial Hatred in the United Kingdom: Have We Got The Law We Need?’ in Coliver (ed), above n 81, 260-262; Paul Rishworth et al (eds) The New Zealand Bill of Rights (2003) 324-325. This limits the depth of the comparative jurisprudence and, therefore, its value as an interpretive tool. 123 Bronitt and McSherry, above n 11, 174 (emphasis added).

224

harassment. The relevant criminal conduct is the act of possession. But the offence is essentially inchoate in nature, for the twin mens rea requirement pertains to

unperformed or unrealised (racist) conduct. This makes the offence textually complex

and, again, difficult to prove as a practical matter without a confession.

These claims have some empirical support, something of a rarity in Australian racial vilification law considering the lack of criminal prosecutions.124 As noted, the

original Western Australian offences were a direct legislative response to the racist

activities of the ANM in Perth during the 1980’s. Then, in February and July 2004

similar attacks took place where homes and businesses in six Perth suburbs were

daubed with racist slogans, Chinese restaurants were firebombed and a Jewish

synagogue was sprayed with anti-semitic messages and swastikas. Four men were

arrested in relation to the attacks including, again, Jack Van Tongeren. He was

charged with 19 counts of criminal damage and plotting to commit four arson

attacks.125 Simon Post was charged with and plead guilty to five counts of criminal

damage. He was sentenced to a term of six months and three weeks imprisonment.126

Damon Blaxall was charged with four counts of criminal damage and one count of

possessing material with the intent to create, promote or increase racial hatred,

through its publication, distribution or display. In December 2005, after having his

application for legal aid refused, Blaxall plead guilty to the charges in the Perth

Magistrates Court and was sentenced to 12 months imprisonment.127 Van Tongeren,

however, remained in custody - with no trial date set down – until he and his co-

124 But see above n 119, regarding the recent conviction of Abu Hamza in the United Kingdom for an analogous crime. 125 AAP, ‘White Supremacist Held’, Sydney Morning Herald (Sydney) 8 August 2004, 4. 126 AAP, ‘Jail for Race-Hate Graffiti’, The Australian, 20 April 2005, 3. 127 ‘Former White Supremacist Jailed For Synagogue Attack’, ABC News Online, 20 December 2005 http://www.abc.net.au/news/newsitems/200512/s15335272.htm. Thank you also to Perth lawyer Andre Horrigan for providing this information in a phone conversation with the author.

225

accused (Matthew Billing) were granted bail in January 2006. In February 2006, Van

Tongeren and Billing absconded and remain on the run at the time of writing.128

In any event, of the 33 charges laid only one was a racial vilification offence,

notwithstanding that the (alleged) conduct was precisely the kind for which the

original offences were intended to cover. Significantly, the key terms in the original offences were, also, ‘hatred’ and ‘harass’ and when the time came for them to play a meaningful role in the regulation of racial hatred in Western Australia, the prosecution authorities made a clear choice to prosecute, almost exclusively, general crimes rather than racial vilification offences.

Indeed, the inability of these offences to play a meaningful regulatory role in the aftermath of the 2004 attacks was cited by Premier Gallop in his second reading speech as the catalyst for the amendments to the Criminal Code.129 The gist of the

legislative response was two-fold: to significantly increase the maximum penalties

available and to create offences that can be committed without a subjective mens rea.

But in light of the apparent regulatory failure of the original ‘possession’ offences, it

is hard to understand why two of them (ss 77 & 79) were re-enacted in toto in the new

law (ss 79 & 80C). Though the penalty anomaly between them and their generic

counterparts was resolved, the new ‘possession’ offences remain complex and

unworkable. Further, the foregoing analysis and past prosecutorial practice suggests

that the new ‘possession’ offences are unlikely to play a meaningful regulatory role in

the new Western Australian criminal framework.

128 ‘Police Search for Van Tongeren’, ABC Online, 28 February 2006 http://www.abc.net.au/pm/content/2006/s1580671.htm 129 See Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159-5160.

226

As noted, the aggravated offences were belatedly included in the amendments at the behest of the shadow Attorney-General Sue Walker. In Parliament she made the reasonable criticism that the legislative emphasis on the criminal proscription of

‘incitement’ and ‘harassment’ was misguided.130 Citing the 1980’s trial of Van

Tongeren in support, Ms Walker said that ‘[h]is intention was not to incite racial hatred; it was to drive out Asians and other racial groups from the community.’131 It was, in her view, a problem of ‘urban terrorism’ effected through direct violence against racial groups not a plan to inflame racial hatred in others.132 That is why she so strongly advocated the need for racially aggravated offences where increased maximum penalties are available when general offences regarding violence to person and property are committed in circumstances of racial aggravation.133 This made good policy and practical sense. And by building the aggravated offences upon the textual and doctrinal foundations of these established general crimes, it gives the former a clarity and precision seldom found in specific race crimes.

C THE POSITION OF THE WESTERN AUSTRALIAN OFFENCES

WITHIN THE EXISTING CRIMINAL LAW FRAMEWORK

(i) Location of offences within the existing criminal law framework

The new offences are located in Part II Division XI of the Criminal Code 1913 (WA).

Part II is headed ‘Offences Against Public Order’ which covers Sedition (Division

XII), Unlawful Assemblies (Division IX) and Offences Against Political Liberty

(Division X). The available penalties are comparable with the general offences of

130 See Western Australia ‘Parliamentary Debates’ (Sue Walker, shadow Attorney-General) above n 94, 5923. 131 Ibid. 132 Ibid 5926. 133 Ibid 6827.

227

assault and property damage. Indeed, the need for penalty comparability was

identified by the government as central to the Criminal Code amendments and will be

discussed in more detail below.134 This sends a clear State-sanctioned message

regarding the serious criminality of such conduct. In doing so it acknowledges the

damage it causes its victims and the threat posed to democratic participation in

Western Australia. The placement of the new offences in the Criminal Code gives

them the opportunity to take root in the existing Western Australian criminal law

framework.

However, it may at first blush seem a little odd for the new offences to be grouped

with sedition and other offences against public order. It suggests that the primary

harm to which they are directed is the (potential) damage done to the peace, order and

good government of society, not the person or group the subject of the racial

animosity or harassment. This placement has an added curiosity, as some of the new

offences are concerned with (potential) harm to a person or group on account of their

race, not the capacity of conduct to incite racial animosity or harassment in others and

the threat posed to public order as a consequence.135 But it is worth noting that the

Commonwealth’s seditious racial incitement offence - considered in Part IV of this

Chapter - is similarly placed.

In any event, there are sound reasons for locating the new offences in Part II Division

XI of the Criminal Code. First, the bulk of the new offences are concerned with either

inciting racial hatred or the public display of threatening or abusive material designed

to racially harass.136 They are in this respect directed at the proscription of serious racist acts that threaten or disturb public order. Second, and as Premier Gallop made

134 See Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159. 135 See Criminal Code 1913 (WA) ss 80A and 80B. 136 See Criminal Code 1913 (WA) ss 77, 78, 79, 80, 80C and 80D.

228

clear in his second reading speech, the new offences are designed to outlaw conduct

that deprives its victims of the ability to enjoy and exercise their political rights and

liberties:

[Racism] can destroy people’s sense of safety and wellbeing and their ability

to participate in community life. This can marginalise them from the

community, thereby damaging the quality of our democratic society and our

ability to live together peacefully, respecting our differences.137

This democratic communitarian concern is shared with other Criminal Code Part II offences such as interfering with political liberty138 unlawful assembly,139 and riot.140

Third, the events that gave rise to the original (and new) offences were very public racist attacks directed at racial groups in general rather than specific individuals.

Finally, the general offences that can now be committed in circumstances of racial

aggravation are primarily concerned with individual harms and are, therefore,

properly located in those parts of the Criminal Code that deal with offences against

the person and property.141

(ii) Compatibility of the offences with criminal law policy

It makes good sense from a policy perspective that the Criminal Code crimes of

common assault, aggravated assaults and criminal damage can now be committed in

137 Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5160. 138 Criminal Code 1913 (WA) s 75: Any person who by violence, or by threats or intimidation of any kind, hinders or interferes with the free exercise of any political right by another person, is guilty of a crime, and is liable to imprisonment for 3 years. 139 Criminal Code 1913 (WA) s 63: Any person who takes part in an unlawful assembly is guilty of an offence and is liable to imprisonment for 12 months and a fine of $12 000. 140 Criminal Code 1913 (WA) s 65: Any person who takes part in a riot is guilty of a crime and is liable to imprisonment for 5 years. 141 Sections 313 (common assaults), 317 (assaults occasioning bodily harm), 317A (assaults with intent) and 338B (threats) are located in Part V - Offences against the person and relating to marriage and parental rights and duties and against the reputation of individuals. Section 444 (criminal damage) is located in Part VI - Offences relating to property and contracts.

229

circumstances of racial aggravation. It recognises and specifically proscribes the

aggravated context of a crime but does so by building upon a foundation of

established criminal law doctrine. This gives the aggravated offences an orthodox

doctrinal base and textual clarity as a consequence. It makes their successful

prosecution more likely. This is important for the prosecution of race-related crimes is

plagued by the reluctance of prosecutors to prefer specific (often complex) race crimes when simpler, more general ones are available which also happen to carry equivalent or tougher penalties.142 It can only hasten their integration into the existing

Western Australian criminal law framework.

(iii) Compatibility of the offences with criminal law principle

Not so impressive in terms of principle was the decision to create four strict or

negligent liability crimes. This is not to say there is anything unusual about a

legislature choosing to add strict liability offences to its regulative armoury. In

Australia they are commonplace in laws that regulate the environment, roads, traffic,

food and workplace safety. It is said that the regulation of these and many other areas

of common human activity would be practically impossible if proof of subjective

mens rea was required in every instance.143 But it is important to keep in mind that these Western Australian offences are serious crimes that target an insidious but

exceptional form of speech not an area ‘of social and economic activity in respect of

which many persons engage.’144 A charge and conviction exposes the defendant to ‘a

142 This has been the experience in Western Australia see ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159. This echoes the UK experience regarding the prosecution of the racist offences contained in the Crime and Disorder Act 1998 (UK) – see Elizabeth Burney and Gerry Rose, Racist Offences – How is the Law Working?: The Implementation of the Legislation on Racially Aggravated Offences in the Crime and Disorder Act 1998, Home Office Research Study 244 (July 2002) xiv. 143 See Glanville Williams, Criminal Law (2nd ed, 1961) 257. 144 Ibid 85.

230

significant measure of moral stigma’,145 in some instances a jury trial146 and serious punishment besides (penalties range from imprisonment for one year or a fine of

$12,000147 to imprisonment for five years).148

Moreover, crimes with negligence as the relevant standard of liability are certainly not uncommon in Australia with prominent examples including the crimes of manslaughter, culpable driving and a range of statutory assaults. And as Ashworth has convincingly argued, ‘people who cause harm negligently may be culpable, in so far as they fail to take reasonable precautions when they have the capacity to do so.’149

The thesis is that negligence may be an appropriate standard where there are

well-known risks of serious harm. This argues in favour of negligence as a

standard of liability for certain serious offences against the person, including

some serious sexual offences, and also for some serious offences against the

environment and property.150

However, the Western Australian offences cannot in my view be characterised in this way. They are not concerned with situations where the risk of serious harm – such as death, physical injury or widespread pollution – is obvious. On the contrary, the indeterminate nature of the offences key terms – ‘likely to create, promote or increase animosity towards or harassment of’ - make it anything but obvious when and in what circumstances conduct is likely to occasion this type of psychological nature. I am not suggesting here that the harm proscribed by these offences is never serious. But it is not the kind of harm that is so obvious that in advance a person can take reasonable

145 Peter Gilles, Criminal Law (3rd ed, 1993) 84. 146 The section 77 & 79 offences must be tried by jury. 147 Criminal Code 1913 (WA) ss 80B and D. 148 Criminal Code 1913 (WA) ss 78 and 80. 149 Ashworth, above n 70, 193. 150 Ibid 194.

231

precautions to avoid it. And to this fundamental concern one can add the following,

more general, point of principle:

To have negligence as a standard of liability would…move away from

advertence as the foundation of criminal responsibility, and in doing so might

show insufficient respect for the principle of autonomy. Thus it would dilute

the element of individual culpability which justifies the public condemnatory

element in a criminal conviction.151

This is why in terms of principle the Western Australian strict or negligent liability

offences are objectionable in my view.

The new Western Australian criminal law framework has, however, achieved greater penalty comparability between its racial vilification and general offences. As noted, the aggravated offences impose increased maximum penalties when the crimes of common assault, aggravated assaults and criminal damage are committed in circumstances of racial aggravation.152 Similarly, the most serious racial incitement

offences carry the maximum punishment that can be imposed for any kind of

incitement crime in Western Australia.153 The greater penalty comparability was

needed, according to Premier Gallop, to address the concern of the Western

Australian Director of Public Prosecutions (‘DPP’) that in the past ‘when crimes of

racial vilification may have occurred, it has been easier to charge offenders with other

151 Ibid 192. 152 Common assaults (increase from 18 months to 3 years imprisonment); Assaults occasioning bodily harm (increase from 5 to 7 years imprisonment); Assaults with intent (increase from 5 to 7 years imprisonment); Threats (increase from 3 to 7 years imprisonment); Criminal damage (increase from 10 to 14 years imprisonment, 14 to 20 years imprisonment if property is destroyed or damaged by fire. 153 The racial incitement offences in sections 77 & 79 have a maximum punishment of 14 years imprisonment. And, s 533 of the Criminal Code 1913 (WA) states that a person found guilty of inciting a crime punishable by life imprisonment is liable to a punishment of 14 years imprisonment.

232

offences that are either easier to prove or have higher penalties attached, or both.’154

So the penalty anomaly that plagues those jurisdictions with the New South Wales

model is no longer a problem in Western Australia. In doing so, the seriousness

principle in criminal law is respected and prosecutors are not dissuaded from

preferring a specific race offence when factually appropriate on account of its

comparatively minor punishment.

(iv) Compatibility of the offences with criminal law procedure

A notable change made to procedure in the recent Criminal Code amendments was to

require the consent of the DPP before a prosecution under sections 77, 78, 79 or 80

can be commenced.155 These are the offences that are punishable by 14 years

imprisonment and their strict or negligent liability analogues. As noted, this

mechanism was included to allay the free speech concerns arising from the fact that

the offences suffer from the ‘vice of linguistic over-inclusiveness’.156

Even though it is the laying of a charge by police that ordinarily commences a

prosecution,157 police and the DPP will liaise closely in the preparation and

prosecution of most indictable offences in any event. And having the DPP – an

independent statutory authority - initiate a prosecution lacks the political

contentiousness of requiring the consent of the Attorney-General to do the same as is

required in some of the jurisdictions with the New South Wales model. This,

importantly, denies to the accused the opportunity to claim the status of a free speech

154 Western Australia ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5159. 155 Section 80H. 156 See ‘Parliamentary Debates’ (Geoffrey Gallop, Premier) above n 19, 5160. 157 For a discussion on the usual method for commencing a criminal prosecution see Jill Hunter, Camille Cameron and Terese Henning, Litigation II: Evidence and Criminal Process (7th ed, 2005) 653-659. This method is not, however, unknown to the criminal law – see for example Crimes Act 1958 (Vic) s 47A(7): a prosecution for the offence of maintaining a sexual relationship with a child under the age of 16 must not be commenced without the consent of the Director of Public Prosecutions.

233

martyr. Moreover, a procedural mechanism of this kind at least provides another set

of expert, prosecutorial eyes to assess the appropriateness and likely success of a

criminal prosecution. This is of some practical import for the prosecution of these

sorts of offences is likely to be complex and attract significant public attention (and

therefore pressure) due to the nature of factual allegations involved.

D PROVISIONAL CONCLUSION II

In this part of the Chapter I have critically evaluated the new criminal racial vilification laws in the Western Australian model. My analysis demonstrates that some offences contain serious flaws whilst others have hit upon a formula that substantially meets each of my three key criteria.

In the former category are the ‘incitement’ (ss 77 and 78), ‘possession’ (ss 79, 80,

80C and 80D) and ‘harassment’ (ss 80A and 80B) offences. These offences suffer from the ‘vice of linguistic over-inclusiveness’ with the proscription and chilling of valuable public discourse on race-related issues a serious possibility. The deleterious effects on speech are further exacerbated by the offences that can be committed without a subjective mens rea (ss 78, 80, 80B and 80D) which are objectionable also in policy terms for imposing serious punishment on exceptional conduct that carries with it a ‘significant measure of moral stigma’. The ‘possession’ offences are problematic as well. Their complexity and textual imprecision makes them practically unworkable, a view supported by the factual record in Western Australia. It makes it unlikely that they will play a meaningful role in the regulation of racial hatred in the future.

The Western Australian model has, however, got a number of things right. In locating the racial vilification offences in the Criminal Code, the State has sent a clear

234

message that these are serious crimes to be administered and enforced through ordinary criminal law processes. This provides the new offences with the opportunity to take root in the existing criminal law framework. The penalty comparability between the offences and their generic counterparts also recognises the serious harms caused by such conduct and ensures that prosecutors are not dissuaded from preferring a racist offence when factually appropriate on account of a comparatively minor punishment.

In my view, however, the racially aggravated offences are the strongest component of the Western Australian model. In providing for an increased punishment when certain crimes of violence against person or property are committed in circumstances of racial aggravation, they have only an incidental impact upon freedom of speech and also recognise the additional harm caused by such conduct. Moreover, constructing the offences upon established criminal law doctrine gives them an orthodox doctrinal base and textual clarity as a consequence. But there is one significant problem with them. It stems from the circumstance of racial aggravation being an element of these offences. This raises the same problems of proof discussed earlier in relation to s 20D in the New South Wales model: that the prosecution must, in effect, prove beyond a reasonable doubt that there was a racist purpose or motive for the criminal conduct.

This considerable evidential obstacle to securing a conviction for a racially aggravated offence may, ultimately, dissuade prosecutors from using these otherwise sound laws when serious racial vilification is perpetrated in Western Australia in the future.158

V THE COMMONWEALTH MODEL: GROUP RACIAL INCITEMENT AS

SEDITION

158 My thanks to Irene Nemes for this point.

235

In December 2005 the Commonwealth secured the passage of the Anti-Terrorism Act

(No. 2) 2005 (Cth).159 It was the latest in a series of laws that it has enacted since the events of 9/11 and the ‘war on terror’ it triggered.160 It was, however, the public transport bombings in Madrid and London (in particular) that were the catalyst for this law.161 Its focus was to strengthen law enforcement powers and the counter- terrorism framework to counter the threat of domestic terrorism. In this regard it provides for better surveillance at airports and on board aircraft, extends powers to stop, question and search persons in relation to terrorist acts and permits the issuing of control and preventative detention orders when necessary to prevent (and protect the public from) a terrorist act.162 The law also repealed the sedition provisions in the

Crime Act 1914 (Cth) and incorporated five new sedition offences in the Criminal

Code Act 1995 (Cth). They included the following offence163:

S 80.2(5) - Urging violence within the community

A person commits an offence if:

(a) the person urges a group or groups (whether distinguished by race,

religion, nationality or political opinion) to use force or violence

against another group or other groups (as so distinguished); and

(b) the use of the force or violence would threaten the peace, order and

good government of the Commonwealth.

159 For the remainder of the Chapter I shall call it the ‘new anti-terror law’ in the main body of the text. 160 For a chronology of legislative and other legal developments since 11 September 2001 see http://www.aph.gov.au/library/intguide/law/terrorism.htm#terraustralia 161 See The Hon John Howard MP, Prime Minister, ‘Counter Terrorism Laws Strengthened’ (Press Release, 8 September 2005); Commonwealth, Parliamentary Debates, House of Representatives, 29 November 2005, 56-57 (Philip Ruddock, Attorney-General). 162 Anti-Terrorism Act (No.2) 2005 (Cth) Schedules 4, 5, 8 & 19. 163 For the new sedition provisions see Anti-Terrorism Act (No.2) 2005 (Cth) Schedule 7.

236

Penalty: Imprisonment for 7 years.

It is the first time a form of racial vilification164 has been made a crime under federal law.165 Whilst significant in its own right, it also reverses a long-held antipathy of the federal coalition parties of making racial vilification a specific crime.166 But it must be kept in mind that s 80.2(5) is primarily a sedition offence not the kind of free- standing criminal racial vilification laws in the New South Wales and Western

Australian models.167 As I explain below, this ought to mean that its function and scope as a racial vilification law will be limited as a consequence.

In any event, the explanatory memorandum for the new anti-terror law said that s

80.2(5) and the new sedition provisions made good on a number of recommendations made in the Review of Commonwealth Criminal Law undertaken by Sir Harry Gibbs in 1991.168 But to my knowledge neither the federal Attorney-General or any other member of the government has explained publicly why it was now necessary (and

164 But the s 80.2(5) offence is not limited to racial incitement as subsection (a) makes clear. It also proscribes group incitement on account of religion, nationality or political opinion. 165 For a detailed discussion of s 80.2(5) see Ben Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’ (2005) 28 University of New South Wales Law Journal 868. 166 The Racial Hatred Bill 1994 (Cth) contained both civil and criminal provisions. However, the coalition parties and the Western Australian Greens opposed the criminalising of racial vilification and amended the Bill in the Senate by deleting these provisions. It was the Bill in its amended form that was enacted in law in 1995 – see McNamara ‘Regulating Racism’ above n 5, 40-49. It is worth noting that in the last Parliament before the 9 October 2004 election the Australian Labor Party introduced the Racial and Religious Hatred Bill 2003, a Private Member’s Bill that was originally moved by Robert McClelland MP. The Bill provided for the following criminal sanctions in serious cases of racial vilification: It would be a crime to threaten property damage or physical harm to another person or group because of their race, colour, religion or national or ethnic origin. Engaging in public acts that have the intention and likely effect of inciting racial or religious hatred against a person or group would also be a crime. The criminal provisions are near identical to those that formed part of the original Racial Hatred Bill 1994 (Cth). It remains ALP policy to criminalise racial vilification. 167 On this point see Australian Law Reform Commission, Review of Sedition Laws, Discussion Paper No. 71 (May 2006) [9.87]. 168 Explanatory Memorandum, Anti-Terrorism Bill (No.2) 2005 (Cth) 88. But Bret Walker SC rejects this position: ‘The Attorney General has suggested recently that the proposed amendments to the sedition laws are occurring in the way recommended by the Fifth Interim Report. However, this seems disingenuous because the recommendations were quite different in context, and certainly did not include any recommendation to enact laws to the effect stated in subsections (7) and (8) of s.80.2 of the current Bill’ – Memorandum of Advice Re: The Anti-Terrorism Bill 2005 and Proposed Amendments to the Laws of Sedition’ 24 October 2005 prepared for the ABC Media Watch program. http://abc.net.au/mediawatch/img/2005/ep36/counsel.pdf

237

urgent) to have a sedition-related crime of racial incitement on the statute book.169 It is possible that it was enacted to address the controversy that erupted in July 2005 regarding the availability of radical Islamic literature in a Sydney bookshop.170 The consensus in the legal and political community at the time was that such conduct was unlikely to offend federal law.171 The Australian Federal Police recently expressed a similar view to the Senate Legal and Constitutional Committee when it examined the new anti-terror law at Bill stage stating that ‘[t]he committee would recall media coverage this year of publications inciting violence for sale in Australia, which highlighted that there is currently no clear offence to deal with this situation.’172

The Attorney-General’s Department also said that the enactment of s 80.2(5) was not required by but is consistent with Australia’s obligations under international law to make incitement to racial and religious hatred a crime.173 However, the Australian

Law Reform Commission has noted ‘that a broader range of offences is required in order to implement fully Australia’s international obligations’174 for, as will be explained in detail below, the scope of s 80.2(5) as a racial incitement crime is

169 There was no explanation by Attorney-General Ruddock in his second reading speech or extra- parliamentary comments as to why the new sedition provisions were urgently needed. He did, however, state that the provisions were appropriate and that [s]edition has become a more relevant offence…The internet and computer technology have made it much easier to disseminate material that urges violence in much the same way that technology has made child pornography easier to disseminate.’ Commonwealth ‘Parliamentary Debates’ (Philip Ruddock, Attorney-General) above n 161, 58. 170 It was reported that a Sydney bookshop was selling radical Islamic literature that discussed ‘suicide bombings, compares westernisation to a malignant growth, describes Australia as a land of discrimination, victimisation, drugs, prostitution and gambling and asks “For how long will the believing youths be held back and restrained from Jihad?”’ – ‘“Weak” Laws May Hinder Hate Books Investigation’, ABC Online, 20 July 2005 http://www.abc.net.au/pm/content/2005/s1418809.htm 171 Ibid. I note that at the time of writing (August 2006) that federal Attorney-General Ruddock has written to State Attorneys-General seeking their approval for tighter guidelines and rules for the Classification Review Board that would result in the banning of any material ‘”counselling, urging, providing instruction or praising” acts of terrorism’ – David Marr, ‘Ruddock Aims to Tame Big Brother’, The Age (Melbourne), 26 July 2006. This was proposed after the Classification Review Board banned only two of the eight “hate” books that the Attorney-General submitted for classification. 172 Senate Legal and Constitutional Committee, Parliament of Australia, Provisions of the Anti- Terrorism Bill (No.2) 2005 (2005) [5.65] (‘Senate Committee’). 173 See Australian Law Reform Commission, ‘Review of Sedition Laws’, above n 167, [9.73]. 174 Ibid [9.90].

238

extremely limited: to be actionable the incitement must threaten the peace, order and

good government of the Commonwealth.

Whatever may have prompted the government to include s 80.2(5) in its new anti-

terror law, the important fact is that Australia now has a third model where a

particular form of racial vilification is made a crime. I will now assess the new

offence against my three criteria in order to evaluate its value as both a racial vilification and sedition law.

A FREEDOM OF SPEECH

There are sound reasons in principle to support the government’s claim that the new sedition provisions will not unreasonably infringe freedom of speech, save when words are used to incite violence or hatred.175 For example, only a very narrow range

of speech seems caught by s 80.2(5).176 It is not enough for a person to urge a racial

group to use force or violence against another racial group. The seditious component

of the offence must also be satisfied. That is, it must be established that the force or

violence ‘would threaten the peace, order and good government of the

Commonwealth.’ What level or species of racial incitement might constitute such a

threat is not legislatively defined. But it is my argument that part (b) of the offence

significantly limits its scope. The offence is after all a seditious form of group racial

incitement. The context in which it must be interpreted strongly suggests that only

inflammatory racist speech of an extreme and very particular nature ought to offend s

175 See Senate Legal and Constitutional Committee, above n 172, [5.77]. 176 The section only proscribes speech that is intended to incite one racial group to use force or violence against another racial group where the force or violence would threaten the peace, order and good government of the Commonwealth. Moreover, speech intended to that incite violence between racial groups does nothing to advance – indeed undermines – the freedom of speech arguments from truth and self-government – see Schauer above n 27, 192-197.

239

80.2(5).177 That is why I consider that its function and scope as a racial vilification law is limited necessarily as a consequence.

The government, moreover, says that ‘urging’ is ‘a plain English way of capturing the essence of the [incitement] offence’.178 If so, then a person must intend for their speech to cause one racial group to use force or violence against another in order to satisfy part (a) of s 80.2(5).179 And there are a range of defences to s 80.2(5) that provides legal protection to good faith political dialogue and criticism.180 These two factors further narrows the range of speech that may offend s 80.2(5).

There are free speech concerns with s 80.2(5), however. Of particular note is part (b) of the offence regarding uncertainty as to when - and what is meant by - ‘the use of the force or violence would threaten the peace, order and good government of the

Commonwealth.’ Without a legislative definition, the problem of ‘linguistic over- inclusiveness’ with this phrase is very real. Its terminology is so imprecise and open- ended that it could reasonably support a very broad construction and, as a consequence, catch conduct never intended by the legislature.181 Ben Saul, for example, has suggested that the person who sent the text message said to trigger the

177 On this point it is worth noting that the Human Rights and Equal Opportunity Commission said of the Crimes Act 1914 (Cth) s 24A(1)(g) – the forerunner of s 80.2(5) – that it ‘would require racist words or actions of an extreme nature.’ - Human Rights and Equal Opportunity Commission, Racist Violence: Report of National Inquiry into Racist Violence in Australia (1991) 30-31. 178 Senate Legal and Constitutional Committee, above n 172, [[5.95]. This is consistent with the suggestion of the Criminal Law Officers Committee of the Standing Committee of Attorneys-General to use the word ‘urge’ instead of ‘incite’ – Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code. Chapter 2, General Principles of Criminal Responsibility: Final Report (Canberra, 1993) 93. But see Senate Legal and Constitutional Committee [5.96]-[5.116] for contrary views regarding the meaning of ‘urging’ in the new sedition provisions. 179 I note here that the Australian Law Reform Commission has recommended that s 80.2(5) be amended to insert the word ‘intentionally’ before the word ‘urges’ to make clear this mens rea requirement – see Australian Law Reform Commission ‘Review of Sedition Laws’, above n 167, [9.94]-[9.95]. 180 Criminal Code 1995 (Cth) s 80.3. 181 See Commonwealth ‘Parliamentary Debates’ above n 161, 58 where the Attorney-General Ruddock, in the context of the discussing the new sedition provisions, said ‘[a]s there have not been prosecutions for a long time, people have argued that in the present environment, where at times people are on the internet and elsewhere urging the use of force or violence to overthrow democratic institutions, these new factors might not warrant law dealing with them.’ (emphasis added).

240

race riots at Cronulla could be charged under s 80.2(5).182 The text apparently read

‘Come to Cronulla this weekend to take revenge. This Sunday every Aussie in the

Shire get down to North Cronulla to support the Leb and wog bashing day…’183 The message may well satisfy part (a) of the offence, though there must at least be a doubt as to whether two distinct racial groups were involved.184 And if part (b) is given a broad construction, then there is an argument that such conduct would threaten the peace, order and good government of the Commonwealth.

However, this example perfectly illustrates the ‘linguistic over-inclusiveness’ of part

(b) of s 80.2(5) and therefore the offence as a whole. Notwithstanding the abhorrent and inflammatory nature of these racist words, I seriously doubt that on any reasonable view they would or could threaten the peace, order and good government of the Commonwealth. A serious breach of the peace is not (or ought not to be) enough to satisfy this element of the offence. The inclusion of the word ‘and’ in the phrase is important in this context for it makes it a collective phrase with one statutory meaning not three self-contained words, each with their own meanings.185 To be sure, the text message may well constitute criminal incitement to violence.186 But the

182 Ben Saul, ‘Making Incitement to Religious Violence Illegal Would Send a Strong Message to the Community’, Australia Policy Online, 14 December 2005, www.apo.org.au/webboard/results.chtml?filename_num=64228 183 David Marr, ‘Alan Jones: I’m The Person That’s Led This Charge’, The Age (Melbourne) 13 December 2005 7. 184 It is worth noting here that s 80.2(5) does not include what amounts to a deeming provision that is, for example, present in the Racial and Religious Tolerance Act 2001 (Vic). Section 10 of that Act reads: In determining whether a person has contravened section 7 or 8, it is irrelevant whether or not the person made an assumption about the race or religious belief or activity of another person or class of persons that was incorrect at the time that the contravention is alleged to have taken place. 185 But see the judgment of Dixon J in R v Sharkey (1949) 79 CLR 121, 153 (‘Sharkey’) where, in the context of interpreting the legislative forerunner of s 80.2(5), he said ‘[w]hen the disjunctive “or” is substituted for “and”, it seems to make no real alteration in the meaning of the phrase. It points perhaps to the necessity of considering separately or distributively the elements that go to make up the welfare of the people. But that is all. The words are in my opinion incapable of any definite meaning which would provide the necessary connection with the subjects of Federal power’. 186 It is worth noting, again, that the only person to face court so far in relation to the text messages said to trigger the Cronulla riots was charged with using a carriage service (the mobile phone system) to menace, harass or cause offence, as well as one count of printing or publishing writing which incited,

241

essence of the s 80.2(5) offence is (or, again, ought to be) its seditious capacity. It is

not designed to simply catch incitement to group racial violence.187 It seems to me

that part (b) also requires that the incitement to group racial violence would threaten

constitutional government.188

In making this point, I am not suggesting that Saul is necessarily wrong. On the contrary, the imprecise and open-ended nature of the part (b) may well prove him right.189 I am, however, making an argument that s 80.2(5) - properly interpreted and

applied - ought not to catch such conduct. This points up why I consider s 80.2(5) to

be problematic from a free speech perspective. Its ‘linguistic over-inclusiveness’ can

burden – indeed make a serious crime – speech that clearly lacks the requisite

seditious capacity. In doing so it transforms an offence that ought to be concerned

only with a very limited, seditious form of racial incitement into a more general racial

vilification law, one punishable by seven years imprisonment. And as Saul points out,

the defences available do little to quell these free speech concerns:

The defences are directed towards protecting political speech, at the expense

of other types of expression, By contrast, good faith defences commonly

found in state and federal anti-vilification legislation typically protect

statements made in good faith for academic, artistic, scientific, religious,

journalistic or other public interest purposes…The range of human expression

urged or encouraged riot and affray – see AAP, ‘Man in Court Over Race Text Riots’, The Age (Melbourne) 27 January 2006 187 On this point see further Australian Law Reform Commission ‘Review of Sedition Laws’, above n 167, [9.97]. 188 See Sharkey (1949) 79 CLR 121, 159-160 where Williams J said in relation to s 24A(1)(g) that ‘[t]he words “so as to endanger the peace, order or good government of the Commonwealth” must limit the generality of the preceding words and confine the seditious intention to an intention to promote feelings of ill-will and hostility between different classes of His Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth as a body politic.’ (emphasis added) 189 See Saul ‘Making Incitement to Religious Violence Illegal Would Send a Strong Message to the Community’, above n 182.

242

worthy of legal protection is much wider than these narrowly drawn

exceptions, which appear more concerned with not falling foul of the implied

constitutional freedom of political communication than about protecting

speech as inherently valuable.190

A corollary of the ‘linguistic over-inclusiveness’ problem is, as the Senate Committee

noted, ‘the potential for “self-censorship” by a community cautious of the potential

breadth of the provisions.’191 And though the requirement of the Attorney-General’s

consent before a prosecution can commence may reduce the chances of the law being

inappropriately prosecuted, it does nothing to counter the chilling capacity of s

80.2(5). Indeed the likelihood and extent of ‘self-censorship’ is even greater for the

fact that a s 80.2(5) conviction is, as noted, punishable by imprisonment for 7 years

and part (b) may have no mental or fault requirement. That is, a person must intend their conduct to cause one racial group to use force or violence against another. But as

I explain in more detail below, if it is sufficient to satisfy part (b) without an additional mental or fault requirement, the chilling capacity of s 80.2(5) is more serious than first appears.192

The final and most pressing free speech concern is the history of sedition prosecutions

in Australia and abroad. It is somewhat of an understatement to say that sedition does

not have a glittering track record.193 Mahatma Ghandi, Nelson Mandela and,

apparently, even Jesus Christ were prosecuted for sedition.194 And in Australia, David

Marr notes that ‘Peter Lalor and his followers at the Eureka Stockade were charged

190 Saul ‘Speaking of Terror’ above n 165, 875. 191 Senate Legal and Constitutional Committee, above n 172, [5.169]. 192 See below Part V(C)(iii) for a detailed discussion on this point. 193 See further Australian Law Reform Commission ‘Review of Sedition Laws’, above n 167, Chapters 2 and 3. 194 See David Marr, ‘Sedition: Our Cross to Bear?’, The Age (Melbourne) 5 November 2005, Insight 4.

243

with sedition and the editor of the Ballarat Times was found guilty of sedition for praising the revolt’.195 Most relevantly for present purposes were the sedition charges laid against members of the Australian Communist Party in the aftermath of World

War II when the cold war was dawning. Of particular note is a 1949 decision of the

High Court - R v Sharkey196 - that interpreted and applied the forerunner to s 80.2(5).

In that case, a majority of the High Court affirmed the sedition conviction of Laurence

Sharkey.197 It arose from the publication of a statement he made in an interview to a newspaper journalist when asked about the policy of the Communist party ‘in the event of the invasion of Australia by Communist forces.’198 It is worth extracting

Sharkey’s reply in full to grasp the nature of the free speech threat now posed by s

80.2(5) and the new sedition offences more generally.

If Soviet Forces in pursuit of aggressors entered Australia, Australian workers

would welcome them. Australian workers would welcome Soviet Forces

pursuing aggressors as the workers welcomed them throughout Europe when

the Red troops liberated the people from the power of the Nazis. I support the

statements made by the French Communist leader Maurice Thorez. Invasion

of Australia by forces of the Soviet Union seems very remote and hypothetical

to me. I believe the Soviet Union will go to war only if she is attacked and if

she is attacked I cannot see Australia being invaded by Soviet troops. The job

of Communists is to struggle to prevent war and to educate the mass of people

against the idea of war. The Communist Party also wants to bring the working

class to power but if Fascists in Australia use force to prevent the workers

195 Ibid. 196 (1949) 79 CLR 121. 197 Latham CJ, Rich, McTiernan, Williams and Webb JJ. Dixon J dissenting. 198 See Sharkey (1949) 79 CLR 121, 139 (Latham CJ).

244

gaining that power Communists will advise the workers to meet force with

force.199

Notwithstanding the largely hypothetical nature of Sharkey’s reply and its remoteness

from actual events, the Court found that his words were expressive of a ‘sedition

intention’. This was defined in the statute to include, amongst other things, when

words ‘promote feelings of ill-will and hostility between different classes of His

Majesty’s subjects so as to endanger the peace, order or good government of the

Commonwealth’.200 The provenance, then, of s 80.2(5) becomes clear. In any event,

the Crown relied upon this instance of ‘seditious intention’ and three others in its

successful prosecution of Sharkey.201 This decision and its sorry companion case –

Burns v Ransley202 - are instructive for three reasons. First, there are close factual

parallels between the time of the cold war (when these cases were decided) and the

present war on terror. And these decisions demonstrate just how broad a judicial

construction s 80.2(5) (and the new sedition offences more generally) may be given in

similar political circumstances and the real threat this poses to freedom of speech as a

consequence. Second, Sharkey demonstrates how the ‘linguistic over-inclusiveness’

of an offence can, if the courts give it an overly broad construction, transform what

ought to be a crime that proscribes only a very limited, seditious form of incitement

199 See Ibid 146 (Dixon J). 200 Crimes Act 1914 (Cth) s 24A(1)(g). 201 The others were s 24(1)(A)(b) to excite disaffection against the Sovereign or the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom (c) to excite disaffection against the Government or Constitution of any of the King’s Dominions (d) to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth. 202 (1949) 79 CLR 101. (‘Burns’) Gilbert Burns was convicted of uttering seditious words when he gave the following answer to a question posed ‘at a public debate in Brisbane between representatives of the Queensland People’s Party and the Australian Communist Party upon the subject “That Communism is not compatible with personal liberty’: ‘We all realise the world could become embroiled in a third world war in the immediate future between Soviet Russia and the Western Powers. In the event of such a war what would be the attitude and actions of the Communist Party in Australia? If Australia was involved in such a war it would be between Soviet Russia and American and British Imperialism. It would be a counter-revolutionary war. It would be a reactionary war. We would oppose that war, we would fight on the side of the Soviet Union’ - (102).

245

into a more general and open-ended (racial vilification) offence. And third, they give credence to the view that ‘[t]he clear lesson from the history of sedition laws is that they are used routinely by oppressive regimes, or used by more liberal regimes at times of great national stress.’203

B THE TEXTUAL CLARITY AND PRECISION OF THE

COMMONWEALTH OFFENCE

The phrase - ‘peace, order and good government of the Commonwealth’ – in part (b) of s 80.2(5) is not legislatively defined nor has it been the subject of meaningful judicial exegesis in a relevant context.204 The best we have is the High Court decisions in Sharkey and Burns. But even they shed little light on this pivotal statutory phrase. For example in Sharkey, Latham CJ wrote that

endangering the peace, order or good government of the Commonwealth

should be read as a reference to that peace, that order and that government

which the Commonwealth may lawfully protect, maintain or undertake; that

is, to peace, order and good government as lawfully established under the

Constitution.205

No surprise, then, that his Honour affirmed Sharkey’s sedition conviction. Rich J said

203 These are the words of lawyer Chris Connolly quoted in Marr ‘Sedition’ above n 194. 204 The phrase ‘peace, order and good government’ has a constitutional provenance. It was used in the Constitution Acts of many British colonies and dominions in the provision conferring legislative power –see further Sharkey (1949) 79 CLR 121, 150-154 (Dixon J). For example, s 51 of the Australian Constitution states: ‘The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to’ thirty-nine subject matters. Dixon J noted at 152 that ‘the words appear to have been understood as giving a plenary character, within their ambit, to the powers over the specific subject matters afterwards enumerated’. The High Court has, moreover, in United Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 held at 10 that the ‘indistinguishable’ phrase (‘peace, welfare and good government’) in the New South Wales Constitution ‘are not words of limitation.’ However, the very different legal context in which the phrase appears makes the above judicial exegesis of limited value to the interpretation of s 80.2(5) in my view. 205 (1949) 79 CLR 121, 137-138.

246

[i]t relates to a definite intention or purpose or promoting ill-will and hostility

so as to encourage mutiny and to cause dissension between different sections

of the community and endanger the government of the country according to

law.206

Whereas Dixon J ‘was at a loss to know what specific element in the crime these words describe.’207

What is the specific connection with the affairs of the Federal Government

which must exist in fact and must be endangered by the seditious words? It is

impossible to define it…[I]t describes no definite thing or state of fact capable

of connecting the utterance with a subject of Commonwealth power or any of

the affairs of the Commonwealth.208

Indeed, such was the vagueness of this pivotal phrase, that Dixon J held the provision to be invalid.209 Dixon J was, however, in dissent in Sharkey (and Burns for that

matter) and his judgment was written long before Australia ratified the international

treaties that, as noted in Chapter Two, make it likely that s 80.2(5) is now considered

a law with respect to the external affairs power of the Constitution.

In any event, what is clear enough is that part (b) of the offence lacks textual precision

with its meaning open-ended as a consequence. This makes it difficult to give even a

reasonable approximation of the scope of s 80.2(5) and the range of conduct it may

206 Ibid 145. 207 Ibid 152. 208 Ibid 154. 209 Dixon J held s 24(1)(g) was invalid for not being a law with respect to one of the legislative subject matters of the Commonwealth. It is worth noting here that a future constitutional challenge to s 80.2(5) would likely require the Commonwealth to establish not only that the law is supported by a legislative head of power but is also compatible with the implied constitutional right to freedom of political communication. On this point see Saul ‘Speaking of Terror’, above n 165, 882-885 and more generally Chapter Two: Part III(C).

247

proscribe. But if it were to receive a broad judicial construction – as occurred with its

forerunner in Sharkey – this would also expand the function and scope of s 80.2(5) as

a racial vilification law far beyond its more limited purpose.

I also noted earlier that the government considers that ‘urging’ in the context of the new sedition provisions is ‘a plain English way of capturing the essence of the

[incitement] offence’.210 On this view, therefore, to satisfy part (a) of s 80.2(5) a

person must intend for their conduct to cause one racial group to use force or violence

against another. But there is disagreement regarding this definition of ‘urging’ which

has led to confusion as to the relevant mental or fault requirements in the new sedition provisions. Bret Walker SC, for example, argues that

apart from an intention that the offender be required to intentionally engage in

the act which amounts to the urging, it is not required that he be shown to

intend the result. On one view of it at least, one could make a statement

intentionally, and which might be seen as amounting to urging another to use

force or violence against another group, without intending that result at all.211

This interpretive disagreement suggests that the mental or fault requirement in s

80.2(5) (and the sedition offences more generally) is anything but clear. And whilst

one can reasonably expect that judicial construction will at some point resolve this

disagreement, it is unacceptable that the mental element of an offence that has the

capacity to seriously trench on freedom of speech is ambiguous. This is particularly

210 Senate Legal and Constitutional Committee, above n 172, [5.95]. 211 Walker, above n 168, 11. See also the submissions of the Human Rights and Equal Opportunity Commission and the Arts and Creative Industries of Australia to the Senate Legal and Constitutional Committee, above n 172, [5.114]-[5.116].

248

so when the mens rea requirement for the old sedition provisions - including the

forerunner to s 80.2(5) - were clear enough.212

C THE POSITION OF THE COMMONWEALTH OFFENCE WITHIN THE

EXISTING CRIMINAL LAW FRAMEWORK

(i) Location of s 20D within the existing criminal law framework

Even though s 80.2(5) is primarily a sedition offence, the Commonwealth has sent an important message to the Australian community by criminalising racial incitement at the federal level for the first time and choosing to locate the new offence in its main criminal statute.213 However Saul, whilst agreeing with the decision to make racial incitement a crime, has said that

characterising incitement to group violence as sedition is an error of

classification. The idea of sedition centres on rebellion against, or subversion

of, political authority; it has little to do with communal violence between

groups…The appropriate place for such an offence is within the framework of

anti-vilification…214

This point is well made, though I don’t think the classification error stems from the

proscription of incitement to racial group violence per se. For the essence of the s

80.2(5) offence is the seditious threat to the peace, order and good government of the

Commonwealth that such communal violence would pose. The offence, properly

interpreted, would criminally proscribe only a very limited and extreme form of racial

group incitement that would threaten constitutional government. So to characterise

212 See Senate Legal and Constitutional Committee, above n 172, [5.96]-[5.106]. 213 See Saul ‘Speaking of Terror’, above n 165, 876-877; Australian Law Reform Commission ‘Review of Sedition Laws’, above n 167, [9.88]. 214 Ben Saul, ‘Preventing Communal Violence? Blurring Sedition, Vilification and Terrorism’ (2005) Human Rights Defender (November/December 2005) 16.

249

this kind of racial incitement offence as a form of sedition is not, necessarily, a

classification error in my view.

However, the danger is that a s 80.2(5) prosecution is likely to occur at a time of great

national stress and history suggests – and the ‘linguistic over-inclusiveness’ of the

offence certainly invites – an overly broad judicial construction in this context. This

may extend the operation of s 80.2(5) beyond cases of incitement to racial violence

with a seditious capacity to those that may (only) cause a serious breach of the peace.

If so, a law with this scope would have nothing to do with the subversion of political

authority and should be located in anti-vilification law as Saul suggests.

(ii) Compatibility of s 80.2(5) with criminal law policy

A recurring theme in the submissions made to the Senate Committee was the potential

for overlap between the new sedition provisions and existing offences such as treason

and incitement to crime.215 This concern was indeed central to the Committee’s final recommendation that the new sedition offences were not needed and ought to be removed from the proposed law.216

However, in response to this overlap concern particularly with s 80.2(1), (3) and (5)

the Attorney-General’s Department (‘the Department’) said

that the crime of incitement was harder to prove because the crime of

incitement requires the prosecution to prove not only that the person urged the

215 See Senate Legal and Constitutional Committee, above n 172, [5.56]-[5.69]. 216 Ibid [5.168].

250

commission of the criminal offence, but also that the person intended that the

crime urged be committed.217

Whether or not this response ought to allay (or heighten) concerns with the sedition

provisions is another matter, one that I will consider shortly. But it seems to me the

point the Department was making was that at least some of the new provisions plug

existing gaps in the law. This was, as noted, the view of the Australian Federal Police

regarding s 80.2(5). Their main concern appeared to be the inability to prosecute

anyone under existing law in relation to instances such as the Sydney Islamic

bookshop controversy. On definitional grounds at least, both the Department and AFP

are correct in my view. For a s 80.2(5) conviction may not require proof that a person

intended for the racial group violence to threaten the peace, order and good government of the Commonwealth.

Moreover, notwithstanding the considerable overlap between s 80.2(5) and the offences of treason and incitement to crime, there is, as earlier noted, a compelling policy reason for a legislature to create a specific race crime. It is for the State to acknowledge in law – sending a clear message to its citizens in the process - that such conduct constitutes an exceptional and very serious form of criminality that inflicts harm not only upon its victim(s) but the fabric of the community more generally.

(iii) Compatibility of s 80.2(5) with criminal law principle

There is a significant problem of principle with s 80.2(5) if its seditious component can be committed without proof of a mental or fault requirement. A plain reading of s

80.2(5) suggests that the offence is committed if a person urges (ie. intends for their conduct to incite) one racial group to use force or violence against another and the

217 Ibid [5.59].

251

force or violence would – considered objectively or as a matter of fact - threaten the

peace, order and good government of the Commonwealth. A s 80.2(5) conviction

may, still, obtain though the person did not intend or know that their conduct would

threaten the peace, order and good government of the Commonwealth. If so, this is

objectionable for the essence of sedition is the possession of a ‘seditious intent’.218 In this instance it is the capacity for incitement to group racial violence to endanger constitutional government. To create a new species of ‘sedition’ that can be committed without the relevant intent to match the putative seditious act would undercut this baseline principle. It is what Ashworth calls the principle of fair labelling.

Its concern is to see that widely felt distinctions between kinds of offences and

degrees of wrongdoing are respected and signalled by the law, that offences

should be divided and labelled so as to represent fairly the nature and degree

of the law-breaking…Fairness demands that offenders be labelled and

punished in proportion to their wrongdoing.219

However, section 5.6 of the Criminal Code may supply a fault element to part (b) of s

80.2(5). Section 5.6(2) reads:

If the law creating the offence does not specify a fault element for a physical

element that consists of a circumstance or a result, recklessness is the fault

element for that physical element.

218 Ibid 779. See also Burns (1949) 79 CLR 101, 115-116 where Dixon J wrote that ‘[w]hat constitutes the offence [of sedition] is the expression of a real intention to effect the seditious purpose and that purpose itself must be a reality. It is not sufficient that words have been used upon which a seditious construction can be placed’. 219 Ashworth, above n 70, 88-89.

252

There is a decent argument that ‘the use of force or violence would threaten the peace,

order and good government of the Commonwealth’ meets this description. If so, a

person in order to offend s 80.2(5) must then intend that their conduct incite one racial

group to use force or violence against another and be aware of a substantial risk that

this would threaten the peace, order and good government of the Commonwealth and,

knowing this, that it was unjustifiable to take that risk.220

In terms of principle, this construction of s 80.2(5) is clearly preferable. It would

underscore not undermine the principle of fair labelling and in doing so preserve the

essence of sedition: the possession of a seditious intent or at least in this instance recklessness that constitutional government would be threatened by their intentional act. It would also operate to narrow the scope of the offence and reduce the deleterious impact of s 80.2(5) on free speech as a consequence.

(iv) Compatibility of s 80.2(5) with criminal law procedure

The Commonwealth has made the prosecution of the new sedition offences, including s 80.2(5), conditional upon obtaining the Attorney-General’s written consent.221 It considers this an important safeguard to ensure that ill-considered prosecutions do not trammel freedom of speech. This holds true in so far as placing an additional procedural obstacle in the path of a s 80.2(5) prosecution must, incidentally, protect free speech.

But this comes at a prohibitive cost. For such a mechanism removes s 80.2(5) – and the other sedition offences – from the ordinary and well-established procedures for

220 Criminal Code Act 1995 (Cth) section 5.4 defines ‘recklessness’ as follows: A person is reckless with respect to a circumstance/result if they are aware of a substantial risk that the circumstance exists or will exist or the result will occur and having regard to the circumstances known to them, it is unjustifiable to take the risk. 221 Criminal Code 1995 (Cth) s 80.5.

253

prosecution. And whilst s 80.2(5) is an exceptional crime and one whose prosecution

in the ordinary course of events will be rare, I fail to see why these factors or the free

speech interest at stake compel the need for this exceptional method of initiating a

prosecution. The imputation must be that there is something in the nature of s 80.2(5)

- and related federal security offences for that matter222 - that makes them unsuitable for prosecution by the (Commonwealth) DPP or, for example, that the free speech interest at stake may not be given sufficient weight by the DPP when considering whether to prosecute. This strikes me as odd. Sedition is, after all, a crime against constitutional government. The inherently political nature of a s 80.2(5) prosecution

makes the Attorney-General (a politician) wholly unsuitable for this role in my

view.223 For the decision whether to allow a person to be prosecuted for a s 80.2(5) offence is being made by a senior figure in the very institution (government) the

subject of that person’s political ire and hostility.

The Attorney-General is placed in an invidious position as a consequence. A decision

to prosecute, however appropriate and considered, will inevitably give rise to claims

that the government is acting to strengthen its own position of political power rather

than safeguard constitutional government. These criticisms may of course lack merit,

but they will be made. And even the perception – however misguided - that the

criminal law is being selectively applied for political gain is, as noted, damaging for

political authority, the administration of criminal justice and the rule of law more

generally.

222 For example, prosecutions for treason and offences relating to espionage cannot be commenced without the consent of the Commonwealth Attorney-General - see Criminal Code 1995 (Cth) ss 80.5 & 90.1. 223 This kind of argument was made in a number of submissions to the Senate Legal and Constitutional Committee, above n 172, [5.146]-[5.154].

254

A related concern is that when the Attorney-General consents to a prosecution this will provide the accused with a perfect (and unnecessary) platform to claim the status of a free speech martyr. There would be some irony in this. For the accused will, inevitably, deploy the often powerful and persuasive rhetoric of free speech and raise the very concerns this prosecuting mechanism was designed to allay. It can be seen, then, that any free speech benefit that may be thought to accrue initially will, in practice, be undercut by requiring the Attorney-General’s consent for prosecution.

Indeed it seems to me that the inherently political nature of s 80.2(5) and the other forms of sedition makes the DPP – an institution whose political independence is statutorily enshrined – the only logical prosecuting authority in our criminal justice system for these kinds of offences.224

D PROVISIONAL CONCLUSION III

In sum, there are good reasons for making group racial incitement a federal crime.225

But it must keep in mind that s 80.2(5) is, as noted, primarily a sedition offence not a racial incitement crime per se or the kind of criminal law found in the New South

Wales and Western Australian models. It proscribes a very serious but limited species of racial incitement that would threaten constitutional government.

However, my analysis in this part of the Chapter demonstrates that the flaws with s

80.2(5) are many and serious. First, its ‘linguistic over-inclusiveness’ has the capacity to seriously burden and chill freedom of speech. The few cases prosecuted under its forerunner highlight this danger and demonstrate its problematic scope, particularly

224 I note here that the Australian Law Reform Commission has recently recommended that s 80.5 be repealed and that the Commonwealth DPP ought to be the body to initiate s 80.2 prosecutions - Australian Law Reform Commission ‘Review of Sedition Laws’, above n 167, [8.149]-[8.156]. 225 See Saul ‘Speaking of Terror’, above n 165, 876-877; Australian Law Reform Commission ‘Review of Sedition Laws’, above n 167, [9.84]-[9.85].

255

when interpreted and applied during a time of ‘great national stress’. And if s 80.2(5) is given an overly broad construction – which its ‘linguistic over-inclusiveness’ certainly invites – then its function and scope as a racial vilification law will be expanded beyond its more limited purpose. Second, existing federal laws may well cover largely the same ground as s 80.2(5). And even if one accepts that the new offence adds something, however small, to the Commonwealth’s regulatory armoury no explanation has been given by the government as to why such a law was now required and as a matter of urgency. Third, due to the inherently political nature of sedition it was a mistake to vest the power to commence a s 80.2(5) prosecution exclusively with the Attorney-General. And finally, confusion as to its fault element(s) and a lack of textual clarity more generally make it difficult to assess what kind of conduct may fall within its scope.

The Senate Committee in its final report recommended that the new sedition provisions, including s 80.2(5), ‘be removed from the Bill in its entirety, pending a full and independent review.’226 It did so largely due to concerns regarding free

speech, duplication of existing laws and a view that removal ‘would not weaken

Australia’s anti-terrorist capacity’.227 The Commonwealth did not heed this advice

and enacted the Bill in its original form.

However, in March 2006 the Attorney-General Philip Ruddock announced that the

Australian Law Reform Commission (‘ALRC’) had been asked to examine the new

sedition provisions.228 So the full and independent review, belatedly, took place. In

226 Senate Legal and Constitutional Committee, above n 172, [5.171]. 227 Ibid [5.168]. 228 The Hon Philip Ruddock MP, Attorney-General, ‘Australian Law Reform Commission To Review Sedition Laws’ (Press Release 028/2006, 2 March 2006). In particular, the review will consider ‘whether the amendments, including the sedition offence and defences in sections 80.2 and 80.3 of the Criminal Code, effectively address the problem of urging the use of force or violence [and] whether ‘sedition’ is the appropriate term to identify this conduct.’

256

the result, the ALRC recommended the retention of a slightly modified version of s

80.2(5) in the Criminal Code 1995 (Cth) but to be characterised as an offence of public order not sedition.229 They concluded:

It is important to ensure that Australian law condemns the urging of such

violence and has the capacity to punish this conduct in appropriate cases. It

should not be necessary to wait for such anti-social activity to become more

common before the Australian Government prohibits such conduct and applies

a criminal sanction – both for reasons of deterrence as well as to provide a

clear cut statement about where the line is drawn between acceptable and

unacceptable conduct.230

However, my detailed analysis of s 80.2(5) demonstrates that the Australian

Government already has the capacity to punish this kind of conduct under existing law and confirms the wisdom of the Senate Committee’s position. It is hoped that s

80.2(5) and the other sedition provisions are promptly repealed.231

VI CONCLUSION

A THE CASE FOR REPEALING THE CURRENT AUSTRALIAN

CRIMINAL RACIAL VILIFICATION LAWS

229 See Australian Law Reform Commission Report ‘Review of Sedition Laws’, above n 167, [2.11]- [2.31] and [9.84] where it was recommended that the term ‘sedition’ no longer be used in relation to the 80.2 offences due to its archaic nature, chequered history and unpopularity with the public who instinctively consider it compatible with the premium Australians place ‘on free speech and public debate,’ It was also recommended to insert the word ‘intentionally’ before the word ‘urges’ to clarify the relevant mens rea requirement. 230 Ibid [9.85]. 231 I note that the anti-terror law received the Royal Assent on 14 December 2005.

257

In this Chapter I have critically evaluated the legislative models that make racial

vilification a crime in Australia against three criteria. They are the need for the offences to not unduly proscribe or chill valuable public discourse on race-related issues, to sit comfortably within their existing criminal law frameworks and to possess sufficient textual clarity and precision. In the result, my analysis demonstrates that, with the exception of the racially aggravated offences in the Western Australian

Criminal Code, all three models are fundamentally flawed.

It is my argument that a strong case exists for the repeal of s 20D of the Anti-

Discrimination Act 1977 (NSW) (and its State and Territory analogues), the

‘incitement’, ‘possession’ and ‘harassment’ offences in the Western Australian

Criminal Code and s 80.2(5) of the Commonwealth Criminal Code. Section 20D, though sensitive to free speech, is incompatible with key aspects of the existing criminal law framework and lacks textual clarity and precision. The Western

Australian offences have the capacity to seriously burden and chill free speech and are unworkable as a practical matter due to their complexity and poor drafting. Section

80.2(5) raises similar free speech concerns and its ‘linguistic over-inclusiveness’ - when combined with uncertainty as to its mental requirement(s) - invites an overly broad judicial construction. This would expand its function and scope as a racial vilification law far beyond its more limited purpose.

Moreover, if these laws continue to lie dormant on the statute book, there is the danger that the citizenry (including public officials) will accord them less respect that may, in time, undermine their efficacy and ultimately their legitimacy. For as Martin

258

Krygier has noted, an important condition of the rule of law is that ‘[t]he law must be

administered and enforced by institutions and in ways that take its terms seriously’.232

B CRIMINAL RACIAL VILIFICATION LAWS IN AUSTRALIA: A

REFORM PROPOSAL

The criminal law has an important part to play in the regulation of serious racial

vilification in Australia. But the time has come to seriously rethink the kind of

criminal laws best suited for this difficult regulatory task. The creation of speech

sensitive, sufficiently clear, and practically enforceable criminal laws in this area is a

significant challenge for any parliament. The racially aggravated offences in the

Western Australian Criminal Code at least provide a solid base-point to commence this necessary legislative reconstruction. However, it is my argument that a particular

kind of penalty enhancement statute, instead, may provide prosecutors with a more

useful tool to regulate serious racial vilification in Australia.

The penalty enhancement model I favour would involve increasing the maximum

penalties available to a sentencing judge when they are satisfied that the race or

ethnicity of the victim(s) was a reason or motivation for the commission of the crime.

The penalty enhancement statute of the American state of Wisconsin is an example. It

reads:

[T]he penalties for the underlying crime are increased…[i]f a

person…[c]ommits a crime [and] [i]ntentionally selects the person against

whom the crime…is committed or selects the property that is damaged or

otherwise affected by the crime…in whole or in part because of the actor's

belief or perception regarding the race, religion, color, disability, sexual

232 Civil Passions: Selected Writings (2005) 64.

259

orientation, national origin or ancestry of that person or the owner or occupant

of that property, whether or not the actor's belief or perception was correct.233

This kind of penalty enhancement statute - sometimes referred to as the ‘group

selection model’234 - does not require the prosecution to prove that the accused

actually hated the victim only that a reason or motive for the crime was the victim’s

race or ethnicity.235 For it seems to me that the essence of a crime of racial vilification

is that a reason for its commission is the victim’s race or ethnicity not that the accused

in fact hated their victim. It is not uncommon that the victim of a racist attack has

been selected because of their race but is otherwise unknown to the attacker.236 But

surely the crime is no less (racially) aggravated for this reason? An enhanced penalty ought to be available in this situation as well. Moreover, significant problems of proof arise if a penalty enhancement statute law required proof that the accused hated the victim.237

I also consider a Wisconsin-style statute to share the strengths of a racially aggravated

offence but with additional benefits in regards to principle and policy. First, it too

meets the three relevant criteria. This necessarily follows, as the only difference in

form between this kind of penalty enhancement statute and a racially aggravated

offence is that the prosecution must prove that a reason for the crime was the victim’s

race or ethnicity at the time of sentencing with the former not as an element of the

233 WIS STAT §939.645 (1991-1992) 234 Mark Walters, ‘Hate Crimes in Australia: Introducing Punishment Enhancers’ (2005) 29 Criminal Law Journal 203. 235 For a discussion on the different kinds of penalty enhancement statutes and hate crime legislation more generally see Ibid 202-205 and Barbara Perry (ed) Hate and Bias Crime: A Reader (2003) 479- 497. But see Heidi Hurd and Michael Moore, ‘Punishing Hatred and Prejudice’ (2004) 56 Stanford Law Review 1081 for a detailed argument as to why penalty enhancement statutes for hate crime lack normative and doctrinal justifiability. 236 See for example Wisconsin v Mitchell, 508 US 47 (1993) where a group of men attacked a stranger who happened to walk past them on the street on account of his race. 237 See Walters, above n 234, 203.

260

offence as is the case with the latter. In all other material respects the laws are the same. It follows, therefore, that this kind of statute has only an incidental impact upon freedom of speech238 and is otherwise compatible with established criminal law policy, principle and procedure. And as it operates upon existing and established crimes such as assault, criminal property damage, riot and affray, the problems of textual clarity that plague the specific race offences are avoided.

Second, the statute in providing for increased maximum penalties239 rather than a mandatory penalty enhancement is more compatible with existing sentencing principles and practice in Australia.240 They emphasise the centrality of proportionality in sentencing and, therefore, the need for judicial discretion in the sentencing process.241 For example, sentencing law states that a judge must have regard to a range of factors – including the maximum penalty prescribed, nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence - when sentencing an offender.242

Finally, and maybe most importantly, unlike a racially aggravated offence, a criminal conviction does not ride on having to prove a racist purpose or motive as an element of the crime with a penalty enhancement statute. This is significant for it will not

238 This Wisconsin penalty enhancement statute even survived a First Amendment challenge in the United States Supreme Court case of Wisconsin v Mitchell, 508 US 47 (1993). It means that penalty enhancement statutes of this kind are considered compatible with freedom of speech even when the latter takes the form of a constitutional right – see further Weinstein, above n 96, 64-65. 239 WIS STAT §939.645(2) (1991-1992) 240 But see Walters, above n 234, 215 where the author argues for mandatory penalty enhancement. It is also worth noting that in the United Kingdom where both racially aggravated offences and penalty enhancement statutes are in operation there is some evidence that judges prefer penalty enhancement statutes to racially aggravated offences – see Burney and Rose above n 142, Summary of findings xv. 241 See for example Professor Arie Frieberg, Pathways to Justice: Sentencing Review 2002 (2002) 33- 34 where the author said that ‘[o]n matters of principle, the Review re-affirms a commitment to the common law principle of proportionality which it believes provides the appropriate foundation upon which sentencing should be built. This means, in effect, that sentences should neither be excessively severe or excessively lenient. It does not mean, however, that each offence should carry with it a prescribed or pre-determined level of punishment. For that reason it rejects mandatory or minimum penalties.’ 242 See for example Sentencing Act 1991 (Vic) s 5(2).

261

always be possible for the prosecution to establish circumstances of racial aggravation where alleged and it would be incongruous if otherwise serious criminal conduct went unpunished as a consequence. In the United Kingdom, for example, there is evidence that this risk has provided a disincentive to prosecutors to pursue racially aggravated offences even when such charges are factually appropriate.243 Of course, a basic

offence (eg. assault, affray) can always be charged when prosecutors consider that a

racially aggravated offence may be difficult to prove. But there is an argument that

this ‘tends to weaken the case for the aggravated variant’244 and, at least in the United

Kingdom, the fact that ‘any evidence of racial aggravation which emerges during the

case cannot be referred to, or used in sentencing, if the charge is one of a basic

offence for which an aggravated variant is available’245 leaves prosecutors with the

following dilemma:

[W]hether to charge only the basic offence and avoid any mention of racist

language, or to charge the [racially aggravated offence] and risk losing the

case. In these cases the [UK] legislation has made it harder to obtain a

conviction as a well as a sentence reflecting the full picture of the incident.

This can be a source of great frustration to sentencers, who point out that prior

to the Act they would have been able to sentence in a manner appropriate to

the racist content.246

This dilemma does not arise if penalty enhancement statutes alone are used to

regulate criminal racial vilification in Australia. Moreover, laws that are doctrinally

243 Burney and Rose above n 142, 17-18. On racially aggravated offences in the United Kingdom see Maleiha Malik, ‘”Racist Crime”: Racially Aggravated Offences in the Crime and Disorder Act 1998 Part II’ (1999) 62 Modern Law Review 409. 244 Burney and Rose, above n 142, 17. 245 Ibid 18. 246 Ibid.

262

sound and textually clear are more likely to be used by prosecutors when criminal racist conduct is perpetrated. It enhances the capacity of such laws to deliver a strong

State-sanctioned message that such conduct is abhorrent, harmful and no longer tolerated at law. It is for these reasons that I consider that a Wisconsin-style penalty enhancement statute to be the form of criminal racial vilification law best suited to and compatible with Australian legal conditions.

I now turn to consider how Australian racial vilification laws – civil and criminal – may operate upon a controversial form of speech - history denial – in Chapter Five.

263

CHAPTER FIVE

REGULATING HISTORY: AUSTRALIAN RACIAL

VILIFICATION LAW AND HISTORY DENIAL

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

I INTRODUCTION

In this Chapter, my consideration of how Australian racial vilification laws may operate upon history denial has two aims.

First, to see whether in a jurisdiction like Australia - where racial vilification is subject to civil and criminal sanction - the writing of history may, at some point, become unlawful. It is a particularly interesting and relevant issue for this area of legal scholarship as it is often claimed that the ideological or political viewpoint underpinning an impugned historical account is one of racial hatred. If so, then history denial is in fact a form of racial vilification not bona fide historical scholarship, which is why it is one of the burning and contested free speech issues of our time.

And second, to use history denial as a case study to test the merits of the key free speech arguments made in Chapters Three and Four. In particular, whether the low harm threshold in s 18C of the RDA and the criminal racial vilification laws more generally pose a serious threat to valuable public discourse on race-related issues. In

1 William Faulkner, Requiem for a Nun (1951) Act I Scene III.

264

the context of history denial the question is, then, whether it is possible under

Australian law to regulate history denial as a form of racial vilification without proscribing and chilling controversial but bona fide historical scholarship.2 And as

will be made clear, the answer to this question has a wider significance for it signals

the likely legal treatment in Australia of any scholarship that makes a controversial

argument on a race issue.

To this end, my inquiry will raise two logically distinct though related questions. The

first is whether the law can ever make a reasonable assessment and determination on

matters of the historical record. If not, then my proposed analysis hits an

insurmountable, threshold objection. However, even if this threshold objection can be

overcome, the second question is whether current Australian law equips our judges

and other relevant decision-makers with the analytic and prescriptive tools capable of

regulating history denial as a form of racial vilification without imperilling

controversial but bona fide historical scholarship. I will address these two questions in

Parts III and IV of the Chapter respectively.

In Part III, it is argued that in most instances the law is ill-equipped to make definitive

pronouncements on the past but is institutionally capable of assessing the quality and

veracity of a historiography where the historical record relevant to the matter in issue

- whether comprising oral testimony, documents or other real evidence - is sufficiently detailed and available for scrutiny through the court processes of cross- examination and expert evidence.3 In Part IV, my analysis demonstrates that with one

2 It is to be contrasted with forms of history denial where vitriolic language is used and bizarre claims are clearly being made. These instances pose few regulatory problems for current Australian racial vilification law. On this point see below Part IV(A). 3 I am employing here the distinction between ‘history and ‘the past’ made by Keith Jenkins: [H]istory is one of a series of discourse about the world. These discourses do not create the world (that physical stuff on which we apparently live) but they do appropriate it and give it all the meanings it has. That bit of the world which is history’s object of inquiry is the past. History as discourse is thus in a different

265

exception civil racial vilification laws in Australia can regulate meaningfully history

denial as racial vilification and do so in a manner that is sensitive to and

accommodating of controversial but bona fide historical scholarship. It also makes

clear that, so far as the criminal racial vilification laws are concerned, only the

Western Australian offences are problematic in this regard. I, therefore, conclude that

no case currently exists in Australia for laws that specifically target history denial as

racial vilification for civil or criminal proscription.

II SOME PRELIMINARY POINTS

From the outset I want to make four points that underline the aims of this Chapter and

the ground my analysis will cover. First, I am primarily concerned with more

sophisticated instances of history denial. That is, historical accounts whose characteristics include the extensive use of scholarly trappings (such as footnotes and bibliographies) and publication through the traditional academic forms of journals, books and conferences.4 The content of the historical account outlined is also used as

the pretext to advance an extreme ideological or political viewpoint. Its defining

characteristic is, however, the deliberate falsification or gross distortion of the

historical record to advance that viewpoint. This is why it betrays and undercuts the

historical enterprise. For as the historian E H Carr famously observed:

category to that which it discourses about, that is, the past and history are different things’ – Keith Jenkins, Re-thinking History (1991) 6-7. 4 See for example the Journal of Historical Review. It is published by an extreme right wing organization operating in the United States called the Institute for Historical Review. David Irving says of the journal that it ‘has an astounding record of fearlessly shattering the icons of those vested interests who hate and fear the truth.’ The Institute for Historical Review also maintains a well resourced website, organises regular conferences and has published the work of David Irving and Fred Leuchter amongst others. It is most well known for its frequent publications and conferences on Holocaust denial. On the Institute for Historical Review see further Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and History (1993) 137-156.

266

It does not follow that, because a mountain appears to take on different shapes

from different angles of vision, it has objectively either no shape at all or an

infinity of shapes.5

The centrality of probity to historical scholarship is of course common ground

amongst historians. Richard Evans, for example, says of the past that historians

really can, if [they] are very scrupulous and careful and self-critical, find out

how it happened and reach some tenable though always less than final

conclusions about what it all meant.6

Even postmodernists acknowledge that historians clearly do not and cannot invent the

raw material of history, though they ‘construct the analytical and methodological

tools to make out of this raw material their ways of reading and talking about it’.7

So whilst the writing of history is a matter of interpretation, it cannot be fabrication or

wilful misrepresentation. In a discipline where contingency is a commonplace, it is

the absence of historical probity – not the controversy and contestability of an account

- that are the hallmarks of history denial. An example is the Holocaust denial found in

the publications and speeches of English historian David Irving.8 And as made clear

below, Irving’s historiography would in my view constitute unlawful racial vilification under current Australian law.9 For it ‘is reasonably likely in all the

circumstances to offend, insult humiliate or intimidate’10 a person or group on

5 E H Carr, What is History ? (1961) 26-27. 6 Richard Evans, In Defence of History (1999) 253. 7 Jenkins above n 3, 11. 8 For a detailed examination of the historiography of David Irving see Irving v Penguin Books Ltd & Deborah Lipstadt [2001] EWCA QB 115 [13.1]-[13.168] (‘Irving’) and Richard Evans, Telling Lies About Hitler (2002). 9 See below Part IV(A)(1)(b). 10 Racial Discrimination Act 1975 (Cth) s 18C (‘RDA’).

267

account of their race or ethnicity and is not done reasonably and in good faith for an academic, artistic, scientific, research or any other purpose in the public interest.11

Second, as the title of the Chapter suggests, it is not my intention to consider whether or not it is a good idea to legally proscribe racial vilification. This would simply rehearse the more fundamental debate regarding the compatibility of racial vilification laws in general with a strong commitment to freedom of speech for which there already exists an ample body of scholarly literature.12 Laws proscribing racial vilification exist in every Australian jurisdiction with the exception of the Northern

Territory.13 So, as noted in Chapter Three, the battle to regulate or not in Australia is over, at least for the foreseeable future.14 This is not to deny or diminish the importance a strong commitment to freedom of speech had upon the shape of existing racial vilification laws and its ongoing relevance to the content and trajectory of future developments in the area.15 Indeed of central concern to this Chapter is the significant free speech concern that controversial but bona fide historical scholarship is not proscribed or chilled by current Australian racial vilification law. But the

11 RDA s 18D. 12 In the Australian context, see for example Aleardo Zanghellini, ‘Jurisprudential Foundations for Anti-Vilification Laws: The Relevance of Speech Act and Foucauldian Theory’ (2003) 17 Melbourne University Law Review 458; Katherine Gelber, Speaking Back: The Free Speech Versus Hate Speech Debate (2002); Russell Blackford, ‘Free Speech and Hate Speech’ (2001) 45 Quadrant 10; Michael Chesterman, Freedom of Speech in Australian Law: A Delicate Plant (2000) 193-248; Anne Flahvin, ‘Can Legislation Prohibiting Hate Speech be Justified in Light of Free Speech Principles’ (1995) 18 University of New South Wales Law Journal 327; Ian Freckelton, ‘Censorship and Vilification Legislation’ (1994) 1 Australian Journal of Human Rights 327; Kathleen Mahoney, ‘Hate Vilification Legislation and Freedom of Expression: Where is the Balance?’ (1994) 1 Australian Journal of Human Rights 353; Wojciech Sadurski, ‘Offending With Impunity: Racial Vilification and Freedom of Speech (1992) 14 Sydney Law Review 163. 13 The following Australian jurisdictions have racial vilification laws: RDA 1975 (Cth) Part IIA; Anti- Discrimination Act 1977 (NSW) ss 20(C) & (D) See Criminal Code 1913 (WA) ss 76-80H; Racial Vilification Act 1996 (SA) ss 3 & 6; Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) ss 65-67; Anti-Discrimination Act 1991 (Qld) ss 124A & 131A; Racial and Religious Tolerance Act 2001 (Vic) ss 7-14 & 24-25; Anti-Discrimination Act 1998 (Tas) ss 17, 19 & 55. 14 But for a robust defence of freedom of speech and a well-reasoned argument that racial vilification legislation undermines it see Laurence Maher, ‘Free Speech and its Postmodern Adversaries’ (2001) 8 Murdoch University Electronic Journal of Law 1. 15 On the role freedom of speech concerns played in shaping the content of Australian racial vilification laws see Luke McNamara, Regulating Racism: Racial Vilification Laws in Australia (2002) 43-49, 127-130, 234-237, 272-279, 304-307.

268

upshot of this established regulatory regime is that as a matter of legal principle racial

vilification is not tolerated in Australia and may attract civil or criminal

consequences.16

So if history denial can amount to racial vilification – and I argue below that it can17 –

then if this principle is to be taken seriously in Australian law, then such conduct should attract legal sanction, even in a community with a strong commitment to freedom of speech. In any event, I will assume the legitimacy of regulating history denial as racial vilification if it is possible under Australian law for it to be done meaningfully and in manner sensitive to and accommodating of the significant free speech interest involved.

Third, I have made a detailed argument in Chapter Two regarding the constitutionality of existing Australian racial vilification laws.18 In this regard, I did suggest that doubt

exists as to whether the Western Australian strict or negligent liability crimes are

compatible with the implied freedom of political communication. However, my

analysis in this Chapter will proceed from the assumption that the Australian racial

vilification laws considered are valid.19

And fourth, racial vilification is already proscribed under Australian law as noted. It is

considered abhorrent and antithetical to the interests of a healthy, diverse and

inclusive democracy.20 Moreover, there is a cogent argument that history denial as

16 The racial vilification laws of New South Wales, the ACT, South Australia, Queensland and Victoria contain civil and criminal sanctions. The laws of the Commonwealth and Western Australia contain only civil and criminal sanctions respectively. 17 See below Part IV(A). 18 See Chapter Two: Part III(C). 19 Ibid Part III(C)(3). But see Zanghellini, above n 12 for an argument that Australian racial vilification laws offend the implied freedom and are unconstitutional for prohibiting Anglo-Australian vilification. 20 There were three landmark reports written during the 1990’s that documented the serious threat that racial hatred and violence poses for a harmonious and multicultural Australia. They were Human Rights and Equal Opportunity Commission, Bringing Them Home: National Inquiry into the

269

racial vilification is capable of inflicting equal if not greater damage to the immediate victim and wider public interest than a base racial epithet.21 Even those with a

particularly strong commitment to freedom of speech now acknowledge the very real

and serious harms occasioned by racial vilification.22 When it assumes a more sophisticated form like history denial, a number of factors can operate to magnify these deleterious consequences. Take the case of Holocaust denial, for example.

Michael Shermer and Alex Grobman note that

[w]hen historians talk about the “Holocaust”, what they mean the most general

level is that about six million Jews were killed in an intentional and systemic

fashion by the Nazis using a number of different means, including gas

chambers.’23

So Holocaust denial involves the refutation of the Holocaust’s ‘three key components

– the killing of six million, gas chambers and intentionality.’24 And this is done by

deniers to demonstrate that the Holocaust is a “myth” perpetuated by Jews to justify

the extraction of massive war reparations from Germany after World War II and to

garner international sympathy for the creation and maintenance of the State of

Israel.25

In any event, the consequences of Holocaust denial are many and serious. They include that old wounds are re-opened, horrific memories are revived and defiled and

Separation of Aboriginal and Torres Strait Islander Children from their Families (1997), Australian Law Reform Commission, Multiculturalism and the Law, Report No 57 (1992), Human Rights and Equal Opportunity Commission, Racist Violence: Report of National Inquiry into Racist Violence in Australia (1991). 21 For an argument along these lines see Margaret Thornton, The Liberal Promise (1990) 50. 22 See for example Blackford, above n 12, 13; Sadurski, above n 12, 180-187; Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 10-12. 23 Michael Shermer and Alex Grobman, Denying History: Who Says the Holocaust Never Happened and Why Do They Say It? (2000) xv. 24 Ibid. 25 Lipstadt, ‘Denying the Holocaust’, above n 4, 23.

270

simmering prejudices inflamed. For when this systematic destruction of humanity is

dismissed as the great Jewish swindle designed to extract massive reparations from

Germany and then hold a guilt-ridden world to financial and political ransom, the

clear message is that Jews are greedy, untrustworthy and deserving of persecution.

Further, this inversion and distortion of history may underpin and nourish the hatred

of those who oppose the continued existence of the State of Israel. It assists them in

erasing (in their own minds) or blurring (in the minds of others) the line between

legitimate criticism of Israeli government policy towards the Palestinians, for

example, and anti-Semitism. It is a classic example of the Faulkner notion that ‘[t]he

past is never dead. It’s not even past.’26

The pernicious nature of history denial as racial vilification is exacerbated by the fact that its expression in most instances will not be irrational, brusque or disingenuous.

Nor will it be dissuaded or quelled by reasoned debate or open discourse. It will usually reflect a considered and committed position.27 This not only suggests the

legitimacy of regulating, if possible, history denial as racial vilification, but there may

even be a case where specifically tailored legal regulation ought to be seriously

considered. It is, after all, a regulatory step already taken in a number of European

jurisdictions where history (specifically Holocaust) denial as racial vilification is

considered particularly heinous due to its direct experience of Nazism.28 But to make

26 See above n 1. 27 On this point regarding hate speech more generally see Stanley Fish, The Trouble With Principle (1999) 70-72. 28 For example, there is legislation in Austria, France, Germany and the Netherlands which makes it a criminal offence to deny the Holocaust – see Jonathan Cooper and Adrian Marshall Williams, ‘Hate Speech, Holocaust Denial and International Human Rights Law’ (1999) 6 European Human Rights Law Review 593; Lawrence Douglas, ‘Policing the Past: Holocaust Denial and the Law’ in Robert Post (ed), Censorship and Silencing: Practices of Cultural Regulation (1998) 67. See also Robert Faurisson v France, Communication No. 550/1993, U.N. Doc. CCPR/C/58/D/550/1993 (1996). In that case, the United Nations Human Rights Committee found the French law (‘Gayssot Act’) which made ‘it an offence to contest the existence of the category of crimes against humanity as defined in the London Charter of 8 August 1945’ to be compatible with the right to freedom of expression guaranteed by

271

the point that history denial as racial vilification may present a case for specific legal

regulation does not ipso facto mean that current Australian law can or should be

amended to meet this special regulatory need.29 That will depend on whether it is

even possible to regulate meaningfully matters concerning the historical record.30

And, if so, whether a specific law is appropriate in the context of Australian society or

necessary in light of its treatment under current law. It is to these matters that I now

turn.

III IS THERE A PROBLEM WITH THE LAW AND HISTORY?31

A IS HISTORY ‘JUSTICIABLE’? – THE CHALLENGE OF

POSTMODERNISM

The concern is with the elusive - some would argue unattainable - nature of objective

historical truth and the institutional (in)capacity of judicial tribunals to engage in such

an inquiry. But in posing this question, I should make clear that I am not using the

term ‘justiciable’ in its strict or technical sense. For if a complaint of history denial as

racial vilification is litigated in an Australian court then it is doubtful whether the

Court, otherwise properly seised of jurisdiction, can decline to determine an issue in

the exercise of discretion.32

Article 19 of the International Covenant on Civil and Political Rights. Consequently, Robert Faurisson’s conviction, for denying that there were homicidal gas chambers used for the extermination of Jews in Nazi concentration camps, was upheld. 29 See below Part IV(D)(3). 30 I add the qualification ‘meaningfully’ for history denial as a sophisticated form of racial vilification is already prima facie proscribed under Australian law if it offends the relevant harm threshold and no free speech/public interest defence is available. However, a central concern of this Chapter is whether it is possible, in practice terms, for the law to regulate matters of history. This important threshold question is considered in Part III(A). 31 For an excellent account of history in law from the judicial perspective see Justice Paul Finn, ‘Law and History in Four Parts’ (2005) Australia & New Zealand Law & History E-Journal 239. 32 On this point and the issue of justiciability more generally see Geoffrey Lindell, ‘Justiciability’ in Tony Blackshield, Michael Coper and George Williams (eds), The Oxford Companion to the High Court of Australia (2001) 391.

272

I am, however, suggesting that the application of a (racial vilification) law will sometimes throw up questions that a judicial tribunal lacks the expertise, resources and, therefore, legitimacy to satisfactorily resolve. So if legal institutions cannot competently evaluate and determine matters of the historical record then maybe judges and other relevant decision-makers in this area ought to acknowledge that - although history denial as racial vilification may exist and is prima facie proscribed - they lack the expertise or legal tools necessary to identify and regulate such conduct.33 It would not, as noted, be a matter of a court declining to entertain a question or exercise its jurisdiction. Rather, it would be an acknowledgment that, in the exercise of that jurisdiction, they are incapable of satisfactorily assessing (and therefore upholding) complaints of history denial as racial vilification.34

In any event, some judges have been comfortable making definitive pronouncements

on historical matters. The judgments of Crispin J in Re Thompson; Ex parte

Nulyarimma35 and Olney J in Yorta Yorta36 are notable examples. In the former and

in order to provide the context necessary to understand the claims of genocide made

by the Aboriginal applicants, Crispin J outlined in six pages of his judgment the

‘broad sweep of Australian history’.37 He then, extraordinarily, took judicial notice of

this historical account.38 In the latter, Olney J relied significantly upon the writings of

Edward Curr - a frontier pioneer and pastoralist - to reject a native title claim on

33 It should, however, be noted that some Courts, in Germany for example, have taken judicial notice of the events known as the Holocaust. On this point see Eric Stein, ‘History Against Free Speech: The New German Law Against “Auchwitz” – And Other – “Lies” (1986) 85 Michigan Law Review 277, 290-291. My thanks to Irene Nemes for this point. On the other hand, in the first trial of Ernst Zundel for the offence of wilfully publishing false news under s 177 of the Canadian Criminal Code, the trial judge refused to take judicial notice of the Holocaust for he considered that such a course would substantially relieve the Crown of its duty to prove the guilt of the accused. For further discussion of the Zundel trial see Douglas, above n 28; Leonidas E Hill, ‘The Trial of Ernst Zundel: Revisionism and the Law in Canada.’ (1989) 6 Simon Wiesenthal Center Annual 165-219. 34 For an example of this see below Part IIIA(2). 35 (1998) 136 ACT 9 (‘Nulyarimma’). 36 The Members of the Yorta Yorta Aboriginal Community v Victoria [1998] FCA 1606. 37 Nulyarimma (1998) 136 ACT 9, 13-19. 38 Ibid 13. My thanks to Alex Reilly for bringing this judgment to my attention.

273

account of the failure to establish amongst other things that ‘the ancestors through whom the claimants claim title [occupied] their traditional lands in accordance with their traditional laws and customs.’39

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

David Irving with the following disclaimer:

[I]t is important that I stress at the outset of this judgment that I do not regard

it as being any part of my function as the trial judge to make findings of fact as

to what did and what did not occur during the Nazi regime in Germany. It will

be necessary for me to rehearse, at some length, certain historical data. The

need for this arises because I must evaluate the criticisms of or (as Irving

would put it) the attack upon his conduct as an historian in the light of the

available historical evidence. But it is not for me to form, still less to express, a

judgement about what happened. That is a task for historians. It is important

that those reading this judgment should bear well in mind the distinction

between my judicial role in resolving the issues arising between these parties

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

274

and the role of the historian seeking to provide an accurate narrative of past

events.40

This is a slim but important distinction. For the relevant judicial duty in Irving was to

determine whether the defendants - Deborah Lipstadt and Penguin Books Ltd - could establish the defence of justification for Lipstadt’s defamatory claim that David Irving was ‘one of the most dangerous spokespersons for Holocaust denial’41 and that he

deliberately falsified and misrepresented historical evidence to conform with his

ideological agenda and virulent anti-Semitism. This required detailed examination of

the documentary evidence cited by Irving to see whether he had indeed engaged in its

systematic and widespread distortion. The determination of this legal issue did not

require a formal finding as to whether the Holocaust occurred or not; though the

nature of the defamatory allegations and the defence pleaded made it logically

impossible in my view for Gray J to deliver his judgment without at least first being

satisfied that massive numbers of Jews and other minority groups were put to death in

purpose-built gas chambers; for that is what Lipstadt claimed the historical record

demonstrated and why Irving chose to falsify it.42 Indeed, Gray J made this precise

‘judgment of what happened’:

[I]t is my conclusion that no objective, fair-minded historian would have

serious cause to doubt that there were gas chambers at Auschwitz and that

they were operated on a substantial scale to kill hundreds of thousands of

Jews.43

40 Irving [1.3] (emphasis added). 41 Lipstadt, ‘Denying the Holocaust’, above n 4, 181. 42 See Irving [13.91]. 43 Ibid.

275

A similar willingness to disavow the role of judge as historian was present in the

judgment of Hely J in the Federal Court matter of Jones v Scully.44 The case involved

the distribution of a leaflet containing particularly vicious anti-Semitic material also

with the claim that the Holocaust was a hoax.45

I am not in a position to determine, as a matter of fact, whether the claim made

by the author of the pamphlet that the Holocaust never occurred is true or not.

I do not have the evidence which would be needed to enable me to make that

determination, assuming that the matter is susceptible of proof in a court.46

These and other examples may evidence a judicial acceptance, in principle at least, that the threshold concern has merit. This formal judicial unease with pronouncing upon the historical record in the course of quelling a legal controversy appears to have become more acute in recent times. In the Communist Party case, for example, Dixon

J (as he then was) did not seem unduly anxious when outlining the common law rule for admissibility of historical evidence.

[The] courts may use the general facts of history as ascertained or

ascertainable from the accepted writings of serious historians…and employ

the common knowledge of educated men upon matters and for the verification

refer to standard works of literature and the like.47

But much has changed in the discipline and study of history since the time of Sir

Owen Dixon. The most significant development was the postmodernist attack on

44 (2002) 120 FCR 243 (‘Scully’) 45 Unlike the relevant Irving publications, however, the pamphlet in Scully was not what I consider sophisticated racial vilification. The language employed was so direct and viscerally offensive and the claims made so extreme and paranoid that the finding of unlawful racial vilification was a formality. They included, that Jews controlled global pornography and engaged in sexual practices against their children in addition to the standard Holocaust denial claims. 46 Scully (2002) 120 FCR 243, 291 (Hely J). 47 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 196.

276

history that emerged during the 1980’s that has shaken (some would say shattered) the

theoretical foundations of the notion of objective historical truth. The idea that writing

history was a largely subjective interpretive enterprise was not original.48 But the

postmodernist attack ran far deeper. In very simple terms, it accused historians of

having ‘a kind of wilful methodological naivete’49 and rejected the ‘status [of history]

as an autonomous and self-authenticating mode of thought.’50 Taken to its logical

extreme, objective historical truth becomes a chimera.51 English historian Richard

Evans has noted the destabilising and confidence-sapping effect the post-modernist

critique has had upon the discipline and its exponents.

Such has been the power and influence of the post-modernist critique of

history that growing numbers of historians themselves are abandoning the

search for truth, the belief in objectivity, and the quest for a scientific

approach to the past.52

In light of this challenge to the very theory and practice of history, one can understand

why judges no longer feel the solid historical ground upon which Sir Owen Dixon

apparently stood in 1951. It is hard to imagine the (post)modern judge confidently

asserting the existence of the ‘general facts of history’, ‘accepted writings’, ‘serious

historians’, and ‘standard works of literature’. It is no surprise, then, to read the reference to the ‘Court’s use of history’ in the recently published Oxford Companion to the High Court of Australia:

48 See for example Carr, above n 5, 1-24. 49 Hayden White, Tropics of Discourse: Essays in Cultural Criticism (1978) 28. 50 Ibid 29. See further Evans ‘In Defence of History’, above n 6, 4-9, 11-14; for a more detailed account see Pauline Marie Rosenau, Post-Modernism and the Social Sciences: Insights, Inroads and Intrusions (1992) 62-76. 51 On this point see Gabrielle Spiegel, ‘History and Post-Modernism’ (1992) 135 Past and Present 135. 52 ‘In Defence of History’ above n 6, 4.

277

The pressure on the High Court to make more and more use of historical

material is occurring against a backdrop in which historians themselves are

less prepared to consider the product of their researches as leading to some

version of ‘truth’. Historians are less prepared than ever to present the fruits of

their labour as the unqualified ‘truth’. Historical accounts are increasingly

seen as provisional and, at least to some degree, fictitious. Nevertheless, while

there is a growing realisation, among both historians and lawyers, that

historical truth is hardly ever more than a descriptive hypothesis, it also

recognised that once a particular version of history is given the imprimatur of

‘authenticity’ by a superior court it becomes the definitive account of the

particular event. Once a particular version of history is enshrined in precedent

it becomes legal truth, which has a performative nature.53

The point that the doctrine of precedent perpetuates and probably, given time,

authenticates in the minds of many a judicial determination on matters of the

historical record is well made. This is so notwithstanding ‘the different

methodological frameworks of legal and historical inquiries.’54

[T]he courts are required to form a view on what happened in the past. That

view will be taken from a selection of alternatives that are shaped by the

strictures of legal procedure and evidence; it will be limited by the answers

that must and can be given to the questions the law requires and permits to be

asked…The court’s view will be shaped by its ‘preoccupation…with the

53 Blackshield, Coper and Williams, above n 32, 326. The core of this reference comes from Alessandro Portelli, ‘The Law and the Making of History: the “April 7” Murder Trial’ (1985) 20 History Workshop 31 where the author wrote that ‘[h]istorical truth is hardly ever more than a descriptive hypothesis: legal truth has a performative nature. Whether things happened as the court says or not, to all practical purposes they now did: a courts [decision] creates truth…legal truth, in turn…has a tendency to become historical truth as well.’ 54 Lawrence McNamara, ‘History, Memory and Judgment: Holocaust Denial, The History Wars and Law’s Problems with the Past’ (2004) 26 Sydney Law Review 375 (footnote omitted).

278

finality of determination, as opposed to the historian’s acceptance of

ambiguity and conflicting interpretations’.55

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

On the other hand, one might reasonably argue that every judicial determination as to a fact (most which relate to past events) has a performative nature and will generate legal consequences, both immediate and future. For the interested parties it will inform how and what rule is to be applied which in turn determines the content and therefore status of that rule within the wider community of laws to govern the future conduct of the citizenry. Moreover, the related claim that legal truth tends to become historical truth overstates the matter.56 It assumes that historians uncritically accept a judicial determination as to the historical record and move on to other, still open, fields of inquiry. It also implies a notion that the authentic version of a historical event is snap frozen at the time the relevant judicial determination is made.

There is, however, clear evidence to the contrary in Australian law, particularly when that fact is controversial or requires re-evaluation in light of new historical evidence.

The most celebrated example is the High Court’s decision in Mabo v Queensland (No

2)57 to reject the common law assumption made by the Privy Council in ‘Cooper v

Stuart…that the colony of New South Wales was “without settled inhabitants or

55 Ibid 376. 56 See above text accompanying n 53. 57 (1992) 175 CLR 1. (‘Mabo’)

279

settled law”’.58 The correction of this fundamental historical (and therefore legal)

error was informed by the historical scholarship of Henry Reynolds and in particular

his strong attack on the doctrine of terra nullius.59 My point is further underlined by the publication in 2005 of The Invention of Terra Nullius, a book in which historian

Michael O’Connor attacks the historical scholarship of Henry Reynolds in the process of arguing that terra nullius is a myth. Another is the decision in Sue v Hill60 where the High Court held that the United Kingdom was a foreign power for the purposes of the Australian Constitution. It was a case of constitutional and legal theory following and accommodating Australia’s political history, most notably its gradual emergence as a sovereign nation.

Indeed, these decisions demonstrate how historical scholarship can inform the development of legal principle. So when the two disciplines inevitably intersect it may suppose too much of the law’s cultural power to suggest it creates and then enshrines an historical orthodoxy that becomes accepted currency amongst historians and the wider community.61

However judges ought to tread warily when the nature of the legal controversy may

require or invite a definitive pronouncement on the past. For in most instances legal

methodology is ill-suited to this task. It cannot identify and accommodate disparate

interpretations of past events which historians accept as a legitimate, inevitable and (I

assume) desirable part of their discipline.62 In short, the legal desire for certainty and finality is often at odds with the provisional and contingent nature of historical inquiry. Yet as noted, a legal judgment as to what happened in the past is itself an

58 Ibid 38 (Brennan J). 59 Ibid 107 (Deane and Gaudron JJ); 181 (Toohey J). 60 (1999) CLR 462. 61 See below Part III(A)(2) for further discussion on this point. 62 On this point see McNamara, ‘History, Memory and Judgment’, above n 54, 376-379.

280

important historical document and one that attains a degree of permanence and authority through the doctrine of precedent. So the unease in the judgments of Gray J in Irving and Hely J in Scully arises for good reason and shows an understanding of the difficulties, dangers and consequences that attend judicial determinations of this nature.

It is my argument however - and I think judicial practice demonstrates - that legal methodology can make cogent historical judgments. The extent to which this is possible will vary with the nature of the historical question raised in the litigation, the kinds of historical materials available for scrutiny63 and judges being cognisant of the

significant difficulties that attend judicial pronouncements on the past.

First, the determination of some legal disputes will involve ‘recourse to [historical]

materials with which lawyers are accustomed to deal.’64 In Brownlee v The Queen,

for example, the High Court examined the relevant legislative history both before and

after federation and traced the evolution of the institution of trial by jury at common

law and in the United States before determining that a jury of ten persons and their

separation during a criminal trial did not offend the trial by jury guarantee in s 80 of

the Constitution.65 The deployment of such materials in the resolution of a legal

controversy is not mechanical or without controversy.66 But experience with this part

63 Justice Gummow has made a roughly equivalent point regarding the use of history in constitutional interpretation – Change and Continuity: Statute, Equity and Federalism (1999) 82; see also 84 and 86. 64 Ibid 82. 65 (2001) 207 CLR 278, 287-290 (Gleeson CJ and McHugh J), 296-301 (Gaudron, Gummow and Hayne JJ), 320-333 (Kirby J), 338-343 (Callinan J). 66 For critiques of the High Court’s use of historical materials to interpret the Australian Constitution see Amelia Simpson and Mary Wood, ‘”A Puny Thing Indeed” – Cheng v The Queen and the Constitutional Right to Trial by Jury’ (2001) 29 Federal Law Review 95, 107-111 and Rob McQueen, ‘Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia’ (1990) 19 Federal Law Review 245. There is also the more specific issue as to the bindingness or otherwise of the original intention of the framers of the Australian Constitution in the elucidation of contemporary constitutional meaning. See for example the exchange on this issue between Justice Michael Kirby (‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ (2000) 24 Melbourne University Law Review 1)

281

of the historical record gives judges the competence and legitimacy to make assessments of it when the application of the law so requires.67

Second, in some judicial controversies the important distinction noted by Gray J in

Irving comes into play. That is, cases will arise where a judge ‘must evaluate the criticisms of or…the attack upon [the] conduct [of] an historian in the light of the available historical evidence.’68 But in doing so ‘it is not for [the judge] to form, still less express, a judgment about what happened.’69 In these instances a court is not required (or equipped) to make a definitive pronouncement on the past but is assessing the quality and veracity of a historiography. In my view, the processes and rules that govern our trial system including pleadings, discovery, cross-examination and expert evidence make courts institutionally capable of making reasonable (though not perfect or unimpeachable) assessments of this nature and usually able to detect a deliberate falsification of history.70 These processes can identify the matter in issue, provide for the different accounts to be placed before the court, allow for detailed interrogation of those accounts and authorial motivation which assists the court in

and Professor Jeffrey Goldsworthy (‘Interpreting the Constitution in its Second Century’ (2000) 24 Melbourne University Law Review 677). It is important to note, however, that even Justice Kirby (who rejects the bindingness of the framers original intentions even if they are discoverable) recognises that it is appropriate and helpful in some circumstances to examine the history of a constitutional word or phrase and its legal heritage in order to ascertain its contemporary constitutional meaning – see Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479, 523 (Kirby J); Re Refugee review Tribunal; Ex parte Aala (2000) 204 CLR 82, 133 (Kirby J). 67 See Gummow, above n 63, 80-88 and on the legitimate and necessary use of historical materials in both its constitutional and common law work see Justice Michael Kirby, ‘Living With Legal History in the Courts’ (2003) 7 Australian Journal of Legal History 17. 68 Irving [1.3]. 69 Ibid. 70 But see Reilly, above n 39, 467-468 where the author notes that courts place ‘great faith on the determinacy of historical records’ and traditionally accord less weight to oral testimonies. This can make it more difficult to establish native title at common law though ‘may be…the written word is no less reliant on memory than oral history’. See also 469-472 where Reilly notes the importance and legitimacy of courts permitting historians to give expert evidence (in native title claims).

282

understanding the context, materials and persons relevant to that part of the historical record.71

Third, there is a need for judicial caution when asked or required to make a judgment on history. Indeed, my institutional faith in courts to make cogent historical judgments in these kinds of cases comes with a significant proviso; and it is one even more pertinent in matters like Yorta Yorta and Nulyarimma where a court is being asked or feels the need to make a determination as to what happened in the past in order to quell a legal controversy. There will be times where part of the historical record relevant to the legal controversy is deficient, lost, destroyed or unable to be reconstructed through documentary or oral evidence. In these instances it is inappropriate, indeed impossible, for a court to make a reasonable historical determination with the consequence that the cause of action or prosecution necessarily must be abandoned or fail. This is not to suggest that judgment can only be delivered upon judicial satisfaction that the historical record before the court is close to complete. But a judge must resist the temptation to fill in the gaps in the historical record in order to deliver a more comprehensive factual judgment.72 There are two

71 Lawrence McNamara has made a similar point as to how a defamation action might operate if employed by an historian to resist a claim of history denial. In such instances ‘[t]he court does not need to arrive at a conclusion about what happened in the past. Rather, it need only arrive at a conclusion about what might have happened. The ‘oceans of uncertainty’ can be acknowledged because the search is for plausibility and not the certainty of a historical narrative’ - ‘History, Memory and Judgment’ above n 54, 379. This is a very different inquiry to one where a judge seeks to make a definitive pronouncement on the past. As McNamara rightly points out at 376-379, it is then that disjunctures between law and history come into sharp relief. In particular, that court and historians have divergent methods for ascertaining the truth and do so for very different reasons. 72 See Reilly, above n 39, 460 where the author after detailing the successful establishment of native title in Ward v Western Australia (2000) 170 ALR 159 says that ‘[i]n other claims, in which the claimants do not have access to such a wealth of documentary evidence of a continuing connection to land, claimant groups are more vulnerable to the impact of the narrative of extinction in historical evidence.’ This may operate harshly on those other claimant groups but a court must be cognisant of its limited institutional capacity to reconstruct the past in the absence of written or oral testimony that can be tested through the usual court procedures such as cross examination. In my view, established rules of evidence should not be relaxed in order to facilitate what may be considered a morally sound judgment.

283

recent decisions that demonstrate and support both my argument and its proviso. It is

to those cases that I now turn.

1 Irving v Penguin Books Ltd & Lipstadt

The first is the libel trial of David Irving.73 There were serious and understandable

concerns as to the capacity and therefore legitimacy of the English High Court to

consider the events known as the Holocaust and determine whether or not they took

place.74 Indeed, as noted, even the presiding judge denied the necessity and propriety

of a judge making such a finding though his judgment, in effect, did precisely that.

What was interesting - in the view of English historian Richard Evans who gave

expert evidence for the defence - was the suitability of the trial process to provide a

decent forum for a thorough presentation and examination of the relevant historical

materials in that instance.

[I]n many respects the High Court turned out to be rather a good place to settle

the historical and methodological points at issue in the Irving case. There

were, for a start, none of the usual constraints of time and space which limit

what can be said or written in other arenas of debate. In a radio or television

programme, each side has at best only ten or fifteen minutes to make its

points, at worst little more than a couple of sound-bites; in court, however, we

could pursue every point, no matter how minor, for hours on end (often to the

frustration of the attending journalists), until we exhausted the subject or the

judge was satisfied that everything had been said that was necessary and asked

73 For detailed accounts of the Irving trail see Yehuda Bauer, ‘Holocaust Denial: After the David Irving Trial’ (2003) 15(1) Sydney Papers 154; Evans, ‘Telling Lies About Hitler’, above n 8; D D Guttenplan, The Holocaust on Trial (2001); Deborah Lipstadt, ‘Irving v Penguin UK and Deborah Lipstadt: Building a Defense Strategy’ (2002) 27 Nova Law Review 243; Robert Jan van Pelt, The Case for Auschwitz: Evidence from the Irving Trial (2002). 74 For a summary of these concerns see Evans, ‘Telling Lies About Hitler’, above n 8, 194-196.

284

us to move on. In an academic seminar or conference, the speaker is never

allowed to go on for more than an hour, and discussion seldom extends even

to that amount of time. In the High Court, proceedings went on for the best

part of three months. Academic controversies in journals, newspapers and

magazines are limited by the space available, and books are subject to severe

restrictions on their length which are imposed by the economics of publishing,

even in quite arcanely academic subject areas. There were no such limits on

the space the experts had to write their reports in the Irving trial: we simply

wrote as much as we needed to fulfil the commissions we had been given,

which in Robert Jan Van Pelt’s case was over 600 pages and in mine over

700.75

Of course the objectivity of these trial observations might be open to question.76 But before one too quickly dismisses them as simply another instance of the victors writing history (or at least praising the processes that endorsed their version of history) a careful reading of the accounts of those who witnessed the trial and the judgment of Gray J is apposite. Though the volume of historical material before the court was immense, the trial turned on the original German documents upon which

75 Ibid 196. 76 A few points are however worth noting that suggest the objectivity of Evans’s expert evidence and therefore ability to make a reasonable appraisal of the trial processes in regards to doing history. Before the trial Evans was not intimate with Irving’s work though aware of his reputation as a military historian and as ‘famously combative figure’ - see Ibid 14 and 36. Evans’s speciality was modern German history not the Holocaust or World War II. In this sense, he came to the oeuvre of David Irving with fresh eyes and the analytical tools (command of the German language and familiarity ‘with the documentary basis on which a lot of modern German history was written’ (Ibid14) necessary to critical evaluate its scholarly integrity. In addition, the primary duty of Evans as an expert witness was to the Court not the defence. His role was to help the judge understand a body of knowledge beyond the realm of judicial expertise to assist in the determination of a fact in issue. To be sure, his report would not have been utilised unless favourable to the defence and expert witnesses are not infallible or always free from bias. But the possibility of a well-respected academic historian deliberately writing a flawed or misleading report is significantly reduced when that person knows that he must testify to and be cross-examined upon its contents on oath.

285

Irving’s research and the expert reports were based.77 This gave the conduct of the

trial some shape and manageability.78

Moreover, the painstaking manner in which these materials were presented, explained

and dissected by Irving, the expert witnesses and the judge provided, in this instance,

a decent a forum to ventilate and assess the claim made against the probity of Irving’s

historiography.79 The judgment of Gray J, in particular his findings on the defence of

justification, were comprehensive and strikingly clear. Each of the central, disputed events was assessed against the original German documents and the interpretations given to them by Irving and the expert witnesses.80 That part of the judgment that dealt with the events at Auschwitz, for example, examined and pronounced upon matters as specific as the scale of the killing of Jews in the gas chambers, the likelihood of there being holes in the roof of one crematorium and whether the gas chambers were used for fumigation purposes or to serve as air raid shelters.81 This led to the definitive conclusion ‘that no objective, fair-minded historian would have serious cause to doubt that there were gas chambers at Auschwitz and that they were operated on a substantial scale to kill hundreds of thousands of Jews.’82 But when the

historical record was equivocal83 or inconclusive,84 Gray J quite properly resisted the

temptation to extrapolate or deduce from these materials.

77 Ibid 197. 78 This was also assisted by the absence of a jury which dispensed with the need for the defence witnesses having to give their (long and complex) evidence orally. 79 The trial process was not however perfect by any means. Most notable was the fact that Irving represented himself. This put him at a serious disadvantage, particularly during the discovery process. It resulted in the reception of much (otherwise excludable) material – see Guttenplan, above n 73, 90- 103. But one can brook no serious objection on that account for it is was Irving who brought the libel action. 80 On the conduct of the trial see Evans, ‘Telling Lies About Hitler’, above n 8, 198-201. 81 See Irving [13.71]-[13.91]. 82 Ibid [13.91]. 83 See for example Ibid [13.39] and [13.47]. 84 See for example Ibid [13.25].

286

The manner in which the Irving trial was conducted and the judgment delivered was a

salient reminder that a court is capable of making a reasonable judgment as to the

quality and veracity of a historiography when the historical record - whether

composed of oral testimony, documents or other real evidence - is available, detailed,

of sufficient quality and can be scrutinised meaningfully through the court processes

of cross-examination and expert opinion.85 It suggested, moreover, that even if

establishing objective and unimpeachable historical truths is elusive to historians and

beyond the processes of the law, under the right conditions it is possible for a court to

identify a deliberate falsification or gross misrepresentation of history.

The post-modernist critique on history may have precipitated a necessary and overdue

re-evaluation of the discipline’s practise and its theoretical underpinnings.86 But

however much one deconstructs and revises it, the Irving trial and judgment

demonstrates that history ‘may be a “story”, but it isn’t fiction.’87

2 Cubillo v Commonwealth

The second case is the Federal Court of Australia decision in Cubillo v

Commonwealth (No 2).88 It involved civil law claims made by two persons ‘said to be

members of “the Stolen Generation”. [A] term that has been widely used to refer to

the former practice of taking part-Aboriginal children from their families and placing

85 It is worth noting here the interesting point made by Lawrence Douglas regarding the adversarial trial and cases involving accusations of Holocaust denial. He notes that by permitting Holocaust deniers and revisionists to lead expert evidence ‘may have the ironic effect of contributing to the erosion of the very boundary between truth and fiction that the law attempts to police’ – above n 28, 80-81. The response to this is that a trial must be fair and a litigant must be allowed to present their case in full. And, in any event, it is within the discretion of the trial judge to permit or allow a person to give expert evidence. 86 On this point see Evans, ‘In Defence of History’, above n 6, 3-12. 87 Helen Irving, ‘Footnotes to a War’ (Historical Research), Spectrum, Sydney Morning Herald (Sydney), 13-14 December 2003, 6. 88 (2000) 103 FCR 1 (‘Cubillo’).

287

them in missions or institutions.’89 The case demonstrates three points of importance to this part of the Chapter.

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

Second and in any event, the capacity of a judge to make a reasonable historical judgment will turn on the availability, detail and quality of the historical materials that can be judicially scrutinised. So when sufficient gaps exist in the historical record available to the court, then its institutional capacity to make such a finding evaporates. There may indeed be a legal judgment that an event did not occur. But this stems from a failure to discharge the requisite civil or criminal standard of proof rather than a determination that the event did not in fact take place.90

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

I have come to the conclusion, in each case, that they have failed to reach the

required evidentiary onus. In each case, the applicant has failed in an essential

respect – they have failed to satisfy the court that, when (or if) the director

removed and detained them, he did not have the necessary opinion about their

interests. It is very disappointing to arrive at this conclusion. It would have

been far preferable to have had all relevant written and oral evidence before

89 Ibid 11. 90 My thanks to Irene Nemes for this point.

288

the court so that an informed decision could have been made on the merits of

the case. As it is, people are dead or their memories have faded; documents if

they ever existed, have been lost. There is now no way of knowing what went

on in the mind of Mr Moy, when he, as the Director of Native Affairs,

participated in the removal and detention of Mrs Cubillo. I cannot assume, out

of a feeling of sympathy for Mrs Cubillo, that Mr Moy failed to perform his

statutory functions.91

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

And third, the Cubillo decision is an example of legal truth not equating, necessarily, to historical truth. The inability to assess whether it was likely that the specific impugned events took place due to gaps in the relevant historical record did not mean that such events never occurred.92 Indeed, O’Loughlin J was careful to note that he

‘accept[ed] the main thrust of their evidence about the hurt they suffered as a result of their removal and detention’93 and was satisfied that there existed ‘a school of thought prevailing at the times that [were] relevant to the claims of Mrs Cubillo and Mr

Gunner’ that considered it ‘in the best interests of part-Aboriginal children to assimilate them into the European mainstream’94 through a policy of removing them from their mother or family for purposes of a white education. The definitive history

91 Cubillo (2000) 103 FCR 1, 387 (emphasis added), see also 26-29, 358, 360, 385 and 395-396 where O’Loughlin J made similar comments regarding critical gaps in the historical record that prejudiced the plaintiffs claims. 92 A finding adverse to the plaintiffs in Cubillo meant that the plaintiffs failed to discharge the requisite burden of proof. That is, they were unable on the balance of probabilities to establish their claims. 93 Cubillo (2000) 103 FCR 1, 483. 94 Ibid 482.

289

regarding the plaintiffs and the events of the Stolen Generation more generally was

not established by their failure to make good on their specific factual and ultimately

legal claims. There may be a point where, for the purposes of law, history simply runs

out. Cubillo was such a case.

But the legal determinations made in Cubillo and other cases relating to the Stolen

Generation95 have not created or enshrined an orthodox historical truth on these

matters. That kind of history, if ever attainable, is told through the narratives of

people like Lorna Cubillo and Peter Gunner, the examination of the available original

documents and even in works of art, music and film. Further, it is discussed and takes

it shape from government reports, academic tomes and commentary in the popular

media and amongst the citizenry.

B PROVISIONAL CONCLUSION I

The nature of a legal controversy may invite or require a judgment on history. But in

most instances, legal methodology is ill suited to the task of inquiring into and then

pronouncing upon what happened in the past. And whilst legal truth does not in my

view equate necessarily with historical truth, a legal judgment is itself an important

historical document and one whose authority may increase over time through the

doctrine of precedent. These factors point to the difficulties, dangers and

consequences of delivering legal judgments on the past and underline why a judge

ought to proceed with care and caution when doing so.

On the other hand, the processes and rules governing the conduct of a trial make a

court institutionally capable of assessing the quality and veracity of a historiography.

95 See for example Kruger v Commonwealth (1997) 190 CLR 1 where the High Court held that legislation which provided for the forced institutionalisation of part-Aboriginal children was constitutionally valid.

290

The capacity and, therefore legitimacy, of a court doing so in any particular case will,

however, turn on the availability and completeness of the relevant historical materials.

IV THE TREATMENT OF HISTORY DENIAL AS RACIAL VILIFICATION

UNDER CURRENT AUSTRALIAN LAW

A THE EXISTING CIVIL LAW FRAMEWORK

For three reasons the RDA 1975 (Cth) – the Commonwealth model - will be my focus in this part of the Chapter. First, as a Commonwealth law its scope and operation is

Australia-wide. Second, it contains the lowest harm threshold of the Australian civil racial vilification laws as noted in Chapter Three.96 It is, therefore likely that a person

claiming that an instance of history denial amounts to unlawful racial vilification will

choose to proceed under the RDA. And third, I have also argued in Chapter Three that

the harm threshold in s 18C of the RDA is too low and consequently poses an unreasonable risk of interfering with valuable public discourse on race-related issues.

I want to assess the merits of that argument by considering whether this harm threshold and s 18C more generally may operate to proscribe and chill controversial

but bona fide historical scholarship.

To recall, sections 18B & C, the relevant provisions of the RDA, read as follows:

S 18B:

If: (a) an act is done for 2 or more reasons; and

96 See, for example, the following racial vilification laws: Anti-Discrimination Act 1977 (NSW) s 20C(1); Racial Vilification Act 1996 (SA) s 4 and Wrongs Act 1936 (SA) s 37; Discrimination Act 1991 (ACT) s 66; Anti-Discrimination Act 1991 (Qld) s 124A ; Racial and Religious Tolerance Act 2001 (Vic) s 7(1); Anti-Discrimination Act 1998 (Tas) s 17(1). They incorporate the same, more elevated harm threshold in making it unlawful to do a public act that would ‘incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group’.

291

(b) one of the reasons is the race, colour or national or ethnic origin of a

person (whether or not it is the dominant reason or a substantial reason for

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

S 18C:

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

(a) the act is reasonably likely, in all the circumstances, to offend, insult,

humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin

of the other person or of some or all of the people in the group.

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

(a) causes words, sounds, images or writing to be communicated to the

public; or

(b) is done in a public place; or

There is no reason in my view why pernicious forms of history denial cannot offend

this objective and relatively low harm threshold.97 Indeed, the Federal Court has so

held in three cases involving particularly crude anti-Semitic conduct that included the

97 On the problematic nature of the low harm threshold in the RDA see Chapter Three: Part II(A).

292

publication of some of the more extreme Holocaust denial tracts.98 These cases,

however, did not involve the kind of sophisticated historical accounts of present

concern. For the language and method employed in these instances was so direct and

viscerally offensive and the claims made so extreme, that the finding of unlawful

racial vilification was a formality.

1 The unique challenge posed by history denial as racial vilification

(i) Is there a problem with the regulatory capacity of the objective harm threshold

and the free speech/public interest defences in civil racial vilification laws?

For two reasons the application of Australian civil racial vilification law to more sophisticated forms of history denial is not straightforward. First, if a historical

narrative is the product of detailed research, written capably and employs the

trappings of academic scholarship, it is difficult for most persons (including judges) to assess a claim that it offends the objective harm threshold outlined above. For example, the relevant test under the RDA is to ask whether the impugned conduct is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate a person or group on account of their race.99

It is, therefore, possible that instances of history denial may not in all the circumstances offend this objective harm threshold for its racist message will elude all

- including the ‘reasonable victim’100 - but the relevantly specialised historian. It may,

98 Scully (2002) 120 FCR 243; Jones v Toben [2002] FCA 1150 (‘Toben No 1’); Toben v Jones (2003) 199 ALR 1 (‘Toben No 2’). For a discussion of these decisions see Chapter Three: Part II(A). 99 RDA s 18C. 100 There now seems to be some consensus that the relevant standard is closer to the reasonable victim. This usually translates to an assessment of the impugned conduct against the likely effect in all the circumstances on a reasonable person of the same relevant race or ethnicity – see Bryant [1997] HREOCA 23 (President Wilson); Shron [1998] HREOCA 24 (Commissioner Innes); Cairns Post (2001) 112 FCR 362 (Kiefel J) [16]; Corunna v West Australian Newspapers Ltd (2001) EOC ¶93– 146, 75468 ('Corunna'); McLeod (2003) 173 FLR 31 [65] (Brown FM); Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 [16] (Drummond J) ('Hagan'). But see De La

293

then, appear that civil racial vilification law and the manner in which it must be

applied, has no analytical tool capable of identifying particularly sophisticated instances of history denial as racial vilification. On the other hand, the effect of the impugned conduct must, pursuant to s 18C, be assessed in all the circumstances, so a

judge or decision-maker can probably consider other relevant conduct to place the

historical account in its proper context.

Second, as detailed in Chapter Three, the Commonwealth and New South Wales

models provide a range of free speech/public interest defences that may operate to

protect history denial as racial vilification.101 The relevant section in the

Commonwealth model reads as follows:

S 18D – Exemptions:

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

faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for

any genuine academic, artistic or scientific purpose or any other genuine purpose in

the public interest; or

(i) a fair and accurate report of any event or matter of public interest; or

Mare [1998] HREOCA 26 [5.2.2] where Commissioner McEvoy stated that the relevant test was 'whether a reasonable person in all the circumstances would be likely to have been offended, insulted, humiliated or intimidated.' 101 RDA s 18D; Anti-Discrimination Act 1977 (NSW) s 20C(2); Wrongs Act 1936 (SA) s 37(1); Criminal Code 1913 (WA) s 80G; Discrimination Act 1991 (ACT) s 66(2); Anti-Discrimination Act 1991 (Qld) s 124A(2); Racial and Religious Tolerance Act 2001 (Vic) s 11; Anti-Discrimination Act 1998 (Tas) s 55.

294

(ii) a fair comment on any event or matter of public interest if the comment is

an expression of a genuine belief held by the person making the comment.

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

because the legislation requires no consideration of truth or falsity and

contains this ‘public interest’ ground of exoneration, what it chiefly proscribes

is incivility in the style and content of publication of racist material, not racist

content as such.102

Therefore, he considers that ‘publicly denying the Holocaust or articulating a theory

of racial inferiority’103 - possible instances of racial vilification - may be actionable

under Australian law depending ‘on whether it transgresses relevant standards of

“civility”.’104 This understanding of the law led Margaret Thornton to decry it as a

‘clear manifestation of the social reality that racist acts of social elites are privileged,

even though the harm occasioned by such acts may be more pervasive that that arising

from a crude tract.’105 If this is true, then sophisticated instances of history denial as

racial vilification cannot be regulated meaningfully under the civil laws. However, my

analysis in the next part of the chapter casts significant doubt on the Thornton claim that Australian law accords a privileged status to the ‘racist acts of social elites’.106

102 Chesterman, above n 12, 226 (emphasis added). 103 Ibid 229. 104 Ibid 230. 105 Ibid 227 quoting Thornton, above n 21, 49. 106 Chesterman, above n 12, 227 quoting Thornton, above n 21, 49.

295

(ii) The importance of the ‘good faith’ requirement

The notion that promoting ‘civility’ in public discourse is the primary concern of

Australian civil racial vilification laws is supported by the view that ‘reasonably’ in the context of the free speech/public interest defences refers to the method by which a message is conveyed not the content of the message itself.107 Indeed, the defences exist to protect inquiry and debate on matters of academic, scientific, research and public interest even when certain points of view will, by definition, be offensive, humiliating or intimidating to some on account of their race or ethnicity.108 But the relevant act of racial vilification must be done ‘reasonably’ and in ‘good faith’ before a defence is available. ‘Good faith’ in this context ‘appears to imply the absence of

“spite, ill-will or other improper motive”.’109

It is important, however, to note that having a ‘honest belief’ as to truth of the (racist) message conveyed by one’s conduct is not synonymous with acting in ‘good faith’ under Australian racial vilification law.110 That is, a belief in the truth of a racist message alone will not attract a defence if the conduct was undertaken due to spite, ill-will or for another improper purpose.111 For as noted in Chapter Three, the

107 Commonwealth: Scully (2002) 120 FCR 243, 286 [159]; Warner v Kucera [2001] EOC ¶93–137, 75374 ( Commissioner Johnston); Toben No 2 (2003) 199 ALR 1, 13 (Carr J), 19 (Kiefel J), 38 (Allsop J); New South Wales: Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC ¶92–701, 78268 (Judicial Member Bartley and Members Farmer and Luger); Hellenic Council of NSW v Apoleski [1997] NSWEOT 9–11 of 1995 (Judicial Member Biddulph and Members Alt and Mooney) 16 ('Hellenic Council No 1'); Hellenic Council of NSW v Apoleski [1997] NSWEOT 10 of 1995 (Judicial Member Biddulph and Members Alt and Mooney) 10. Queensland: Deen [2001] QADT 20 MIS01/109 (President Sofronoff) 2. For a detailed discussion on this point see Chapter Three: Part III(B)(3). 108 For a free speech/public interest defence only need be pleaded when the impugned conduct is held to offend the relevant objective harm threshold – see Bropho v Human Rights and Equal Opportunity Commission (2004) 204 ALR 761, 785 (French J) (‘Bropho’). 109 Jones [2000] NSWADT 102 [122] (Judicial Member Rees and Member Silva). This definition or close approximations thereof have been endorsed in Corunna [2001] EOC ¶93–146, 75447, 75470; Bryl [1999] HREOCA 11 [4.3] (Commissioner Johnston); Wanjurri [2001] EOC¶93–147, 75488–9 (Commissioner Innes); Deen [2001] QADT 20 MIS01/109 (President Sofronoff) 2; Toben No 2 (2003) 199 ALR 1, 38–9 (Allsop J). 110 Bropho (2004) 204 ALR 761, 785 (French J). 111 Ibid; see further Chapter Three: Part III(B)(3).

296

application of the ‘good faith’ requirement has served to evaluate the racist content of a message and limited in fact how extreme it can be.112 This is consistent with the

Chesterman view that ‘incivility’ in the context of Australian racial vilification law ‘is

not just a matter of style. It calls for both style and content to be taken into

account.’113 The consequence is that acts ‘which have such a powerful negative

impact on their victims and other hearers, by virtue of both derogatory content and

abusive style’,114 will amount to unlawful racial vilification under civil law.

However, the nature of history denial is that the derogatory content is often couched

in the language of dispassionate academic or scientific inquiry and the style is

anything but abusive. And as noted, if a defence is available then a person may

communicate lawfully a message (derogatory content) that racially offends,

humiliates or intimidates another person or group. But civil racial vilification law is

not so ill-equipped to deal with this species of racial vilification as what might first appear. For even if an act that offends the objective harm threshold is done reasonably

and for an academic, scientific, research or other public interest purpose, it will still be unlawful if not undertaken in good faith. In other words, if a historical work is motivated by spite, ill will or another improper purpose then the free speech/public interest protection otherwise available under Australian civil racial vilification law is lost.

For this reason a deliberate falsification or distortion of the historical record of the kind undertaken by David Irving and considered in his libel trial would fall foul of

112 On this point see Chapter Three: Part III(B)(3). 113 Chesterman, above n 12, 230. 114 Ibid (emphasis added).

297

current Australian law.115 Gray J considered that Irving’s motivation for doing so was

to present historical events in a manner consonant with his ideological beliefs.116

They included being ‘an apologist for and a partisan of Hitler’117 and a ‘right-wing pro-Nazi polemicist’118 who was profoundly anti-Semitic and racist.119 The important

point is that such a finding demonstrates that Irving’s historical research was

undertaken for an improper purpose and would, on that account, constitute an absence

of ‘good faith’ under current Australian law.

So in the ‘good faith’ requirement Australian judges and decision-makers do have a

legal standard that when applied is capable of identifying and regulating instances of

history denial as racial vilification. As in other areas of law where this legal standard

is employed, the application of the ‘good faith’ requirement is neither obvious and without controversy.120 And regarding a claim of unlawful history denial, it will be a

more onerous task for a complainant to demonstrate an absence of ‘good faith’ and

therefore establish a case of racial vilification (as will be outlined below) and

properly so. For the legal proscription of speech is no small matter, particularly when

it is otherwise done ‘reasonably’ and for an academic, scientific, research or other

public interest purpose. However, what constitutes an absence of ‘good faith’ in the

115 Jeremy Jones has argued that the contents of a David Irving video The Search for Truth in History would offend s 20C of the Anti-Discrimination Act 1977 (NSW) if delivered in Australia – ‘Holocaust Denial – “Clear and Present” Racial Vilification’ (1994) 1 Australian Journal of Human Rights 169, 178. Without disagreeing with this argument, I would note that it was reached without any discussion or analysis of the potential relevance of the free speech/public interest defences which is required for a fully reasoned conclusion on the matter. 116 Irving [13.163]. 117 Ibid [13.136]. 118 Ibid [13.162]. 119 Ibid. 120 See Deen [2001] QADT 20 MIS01/109 2 where President Sofronoff surveys the meaning of 'good faith' in a range of different areas of law (including administrative law, defamation law, insurance law and the law of equity) and concludes that although 'it is difficult to find a definite exposition of the term' the common thread in every field is 'the use of a power for an improper purpose'. The Butterworths Concise Australian Legal Dictionary defines 'good faith' to mean 'propriety or honesty', see Peter Nygh and Peter Butt (eds) Butterworths Concise Australian Legal Dictionary (2nd ed, 1998) 194.

298

context of Australian civil racial vilification law has been uncontroversial121 and

judges can at least draw upon the ‘good faith’ jurisprudence in other areas of law and

their own experience in its application. In any event, my analysis demonstrates that

sophisticated instances of history denial are not beyond the reach of civil racial

vilification laws in Australia.

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

Helen Irving has noted:

Accuracy is important, of course, especially in terms of credibility. But

historians live in glasshouses. All works of history, even the classics, contain

errors. None would stand the test, if that were all that mattered.122

However, the discovery of mistakes in an historical account may evidence a lack of intellectual merit and research expertise, but not, without more, an absence of ‘good faith’. Even if there existed a catalogue of mistakes in the one direction - that is in

each instance the mistake buttressed or undercut a particular viewpoint or theory - that

too would (or ought to) be insufficient to establish an absence of ‘good faith’ under

current Australian racial vilification law. For as Helen Irving again notes, ‘there is no

way of proving that inaccuracies in anyone’s work are deliberate’.123 But it is well to

remember that in Irving it was numerous and deliberate falsifications and distortions

121 The case law reveals reasonably widespread agreement that 'good faith' in the context of these defences 'appears to imply the absence of "spite, ill-will or other improper motive"’ - Jones [2000] NSWADT 102 [122] (Judicial Member Rees and Member Silva). This definition or close approximations thereof have been endorsed in Corunna [2001] EOC ¶93–146, 75447, 75470; Bryl [1999] HREOCA 11 [4.3] (Commissioner Johnston); Wanjurri [2001] EOC¶93–147, 75488–9 (Commissioner Innes); Deen [2001] QADT 20 MIS01/109 (President Sofronoff) 2; Toben No 2 (2003) 199 ALR 1, 38–9 (Allsop J). 122 Irving, above n 87, 6. 123 Ibid.

299

of the historical record in the one direction, not mistakes,124 that were of significance

to the law and the final judgment of Gray J:

I find myself unable to accept Irving’s contention that his falsification of the

historical record is the product of innocent error or misrepresentation or

incompetence on his part…[I]t appears to me that the correct and inevitable

inference must be that for the most part the falsification of the historical record

was deliberate and that Irving was motivated by a desire to present events in a

manner consistent with his own ideological beliefs even if that involved

distortion and manipulation of historical evidence.125

Similarly, this catalogue of historical falsifications in the one (racist) direction would

in my view constitute an absence of ‘good faith’ under Australian civil racial

vilification law as noted above. But the important point is that even if mistakes in a

historical work are numerous, serious and ideologically consistent they will not (or

should not) disclose an improper purpose or motive for the publication unless they stem from deliberate, widespread and identifiable falsifications of the historical record. So in this regard, it is my argument that, through the proper application of the

‘good faith’ requirement, current Australian racial vilification law is capable of

making the crucial distinction between a mistakenly flawed and deliberately false

historiography.

In the next part of the Chapter I want to explore in more detail the free speech concern outlined above and test my argument that Australian civil law – through the ‘good faith’ requirement - can distinguish between history denial as racial vilification and

124 Irving however claimed that at worst he was guilty ‘of making errors in his handling of the historical record.’ Irving [13.4]. 125 Ibid [13.163].

300

controversial but bona fide historical scholarship. As part of this analysis I will use

the controversy generated by the publication of a polemical historical narrative

written by Keith Windschuttle as a case study. It is an appropriate vehicle to assess

both claims, as the author and his supporters consider his tome to be controversial but

bona fide historical scholarship whilst others view it as deeply flawed and maybe an instance of (unlawful) racial vilification.

B WHY, THROUGH THE ‘GOOD FAITH’ REQUIREMENT, CIVIL

RACIAL VILIFICATION LAW IS EQUIPPED THEORETICALLY TO

DISTINGUISH BETWEEN CONTROVERSIAL BUT BONA FIDE

HISTORICAL SCHOLARSHIP AND HISTORY DENIAL AS RACIAL

VILIFICATION

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

The Australian ‘History Wars’ refers to the controversy that erupted upon the

publication in November 2002 of Keith Windschuttle’s The Fabrication of Aboriginal

History, Volume 1 (‘Fabrication’).126 The author’s central claim is that historians

such as Henry Reynolds and Lyndall Ryan form part of a ‘prevailing consensus’127

and academic orthodoxy that, for political reasons, have constructed a myth that

Tasmanian aborigines were killed by British colonisers systematically and en

masse.128 According to Windschuttle, the central political reason is the construction

of a historical narrative that furthers aboriginal interests, in particular its legal claim

126 There is indeed a book by Stuart McIntyre and Anna Clark titled The History Wars (2003). It was written largely in response to the claims made by Windschuttle in Fabrication. The term ‘the History Wars’, as the authors explain at 9, originated in the United States regarding a controversial exhibition at the Smithsonian Museum ‘to mark the fiftieth anniversary of the end of the Pacific Wars [and] [i]ts invitation that visitors ponder the moral legitimacy of using the atomic bomb against Japan’. 127 Keith Windschuttle, The Fabrication of Aboriginal History (2002) 3. 128 See Ibid 2-5.

301

for indigenous land rights.129 This came to fruition in the High Court’s landmark judgments in Mabo130 and Wik131 where the judges ‘were strongly influenced by their arguments.’132 Windschuttle ‘argue[s] that the story the historians have constructed does not have the empirical foundations they claim’:133

Conflict was sporadic rather than systematic. Some mass killings were

committed by both sides but they were rare and isolated events where the

numbers of dead were in the tens rather than the hundreds. The notion of

sustained ‘frontier warfare’ is fictional.134

The response to Windschuttle’s thesis has been rapid, voluminous and sustained.135

His critics have characterised Fabrication as both a ‘very bad academic history [and] a poisonous political tract’.136 Moreover, importantly for this Chapter, it has been suggested that ‘vilification is not too strong a word’137 for its attack on Tasmanian

Aborigines. But, as one commentator has noted,

[t]he contributions from Reynolds and Ryan were very much concerned with

his attacks on them and in parts were arguably as vitriolic as the attack they

were responding to, alleging to various degrees that Windschuttle himself had

engaged in distortion, manipulation and fabrication in his writing.138

129 Ibid 6. 130 Mabo (No 2) (1992) 175 CLR 1. 131 Wik Peoples v Queensland (1996) 187 CLR 1. 132 Windschuttle, above n 127, 6. 133 Ibid 3. 134 Ibid. 135 See for example McIntyre and Clark, above n 126; Robert Manne (ed) Whitewash: On Keith Windschuttle's Fabrication of Aboriginal History (2003). 136 James Boyce, ‘Fantasy Island’ in Manne (ed), above n 135, 69. 137 Henry Reynolds, ‘Terra Nullius Reborn’ in Manne (ed), Ibid 133 (emphasis added). 138 McNamara, ‘History, Memory and Judgment’ above n 54, 361.

302

(i) The treatment of the ‘History Wars’ under defamation law: Lessons and

insights for racial vilification law

Lawrence McNamara has recently considered the possibility of defamation law being used to settle the disputes of the ‘History Wars’.139 His article contains some valuable insights and arguments regarding the Windschuttle controversy and the problematic intersection between history and law more generally.

(a) The distorting impact of legal judgments on history

Notwithstanding misgivings that he has with the notion of courts delivering judgments on history,140 McNamara considers that the nature of this kind of defamation action is superior to other legal actions in the following respect:

Given the ‘objective, fair-minded historian’ test, the court has to effectively

determine whether the version of history at issue constitutes a plausible

version of events. This will require an examination of the past, but it is a

fundamentally different consideration of history than that which takes place in

native title cases or criminal prosecutions. It is different because to a

significant extent the debate about history takes place on the historians’

terms.141

139 Ibid. The author notes at 354 that it was Colin Tatz who first argued ‘that, in the absence of a prosection for genocide, the best way to settle the disputes of the History Wars and to find out about the past was to use the laws of defamation.’ (footnote omitted). 140 See Ibid 376-379. 141 Ibid 378-379 (emphasis added).

303

This view is supported by the observations of Richard Evans earlier detailed, that the court room ‘turned out to be rather a good place to settle the historical and methodological points at issue in the Irving case.’142 McNamara further notes that

[i]t is clear from the Irving case that a defamation framework provides an

opportunity to address denialism by looking at motivation. That is, although

denialism is on the one hand concerned with challenging a historical narrative,

it is the unmasking of motivation that distinguishes between denialism and

genuine revisionist projects of interpretation.143

Whilst recognising ‘[t]he ability of defamation law to accommodate the interpretive dimensions of historical scholarship’,144 McNamara ultimately rejects it as an appropriate mechanism to settle the disputes of the ‘History Wars’. For, in contrast to

Irving,

[w]here the History Wars are concerned there is far less documentary material

that would empirically support a degree of factual certainty about the

occurrence of particular events given the period under dispute is the early 19th

century. This makes a finding of implausibility on either side far less likely

and, consequently, the distortive impact of a judgment far more likely.145

That italicised part of the quotation appears to be his central concern. But might that observation as criticism be made about any legal judgment that has an impact beyond the immediate interests of the litigating parties? There is little doubt, for example, that a defamation outcome regarding the ‘History Wars’ (however decided) would have a

142 Evans, ‘Telling Lies About Hitler’ above n 8, 196. 143 McNamara, ‘Truth, Memory and Judgment’ above n 54, 383 (emphasis added). 144 Ibid 392. 145 Ibid (emphasis added).

304

wider and significant social, economic, political and cultural impact.146 And,

moreover, that impact may well be distorted by the litigating parties, the media,

relevant interest groups and governments amongst others. But the same may

reasonably be said of judicial decisions that, for example, awarded damages to a

mother for a wrongful birth,147 struck down a law that denied single woman and

lesbians access to invitro fertilisation programs,148 overturned an award of damages

against a tobacco company to a woman dying of smoking-related cancer149 and held

valid a law that protected a Tasmanian wilderness area from the building of a dam.150

The critical distinction, however, between these cases and one concerned with history

denial is that with the latter, once a particular account of history is given the

imprimatur of law, even in the more limited sense described by McNamara, it is

accorded a legitimacy that may be at odds with ‘the historian’s acceptance of

ambiguity and conflicting interpretations’.151 And once enshrined in precedent, it may have a more profound and lasting (distorting) impact on the values and ‘self- understanding of the nation and its past’152 and how a particular (racial or ethnic) group history is understood and therefore situated under Australian law.

So whilst a defamation judgment on the disputes at the heart of the ‘History Wars’

would be significant culturally and for the legitimacy of the plaintiff’s thesis, its long-

146 As Martin Krygier and Robert van Kriekan note in ‘The Character of the Nation’ in Manne (ed), above n 135, 82 ‘[m]ost of us case deeply about both the character of the nation to which we belong and the calibre of the civilisation we embody. It is because we care that discussions of Aboriginal history under settler-colonialism have evoked the attention, not to mention the passions, sometimes hatreds, often pain, which they have in this country.’ 147 Cattanach v Melchior (2003) 215 CLR 1. 148 Re McBain; Ex parte Australian Catholics Bishops Conference (2002) 209 CLR 372. 149 British American Tobacco Services Ltd v Cowell (Representing the Estate of McCabe (deceased) 7 VR 524. 150 Commonwealth v Tasmania (1983) 158 CLR 1. 151 McNamara, ‘Truth, Memory and Judgment’ above n 54, 376 citing John G Reid, William C Wicken, Stephen E Patterson and D G Bell, ‘History, Native Title Issues and the Courts: A Forum’ (1998) 28 Acadiensis 3. 152 McNamara, ‘Truth, Memory and Judgment’ above n 54, 376.

305

term legacy must not be overstated. If, for example, Keith Windschuttle were to

successfully sue Lyndall Ryan for defamation, the wider cultural impact of that legal

judgment on history would in my view be diluted or qualified to some extent if a new

Commonwealth government won power, formally apologised to Australian

Aborigines for past injustices, rolled back the coalition amendments to the Native

Title Amendment Act 1998 (Cth) and established a fund to compensate families of the

‘Stolen Generation’. The judgment would still stand as an important historical document and provide a legitimacy fillip to Windschuttle and his supporters. But as my earlier analysis demonstrates, it presumes too much of the law’s cultural power to suggest that a legal finding that an account of the past is plausible (or vice versa) creates then enshrines an historical orthodoxy that becomes the final and definitive word on the matter amongst historians, the wider community and even the law.153

(b) The problems of evidence and fortuity

McNamara, however, identifies two further - and in my view more fundamental -

problems with the use of defamation law to settle the disputes of the ‘History Wars’. I

want to consider whether racial vilification law is similarly flawed and, if so, whether

this undermines its capacity to regulate history denial as racial vilification.

The first, as noted, is that

[w]here the History Wars are concerned there is far less documentary material

that would empirically support a degree of factual certainty about the

153 For an interesting thesis that the landmark US Supreme Court decisions on civil rights, abortion, the environment, reapportionment and criminal law have effected minimal consequential change to American society see Gerald Rosenberg, The Hollow Hope (1991). But for a range of critical evaluations of the Rosenberg thesis see David A Shultz (ed), Leveraging the Law: Using the Courts to Achieve Social Change (1998).

306

occurrence of particular events given the period under dispute is the early 19th

century.154

This evidential problem is not limited to defamation law. It is faced whenever a court must undertake a historical inquiry in order to determine a legal dispute. It is the

‘significant proviso’ earlier noted: when the part of the historical record relevant to

the legal controversy is deficient, lost, destroyed or unable to be reconstructed

through documentary or oral evidence then, for the purposes of law, history simply

runs out.

The second is that the ‘Irving trial was…remarkable as it was only because Irving commenced the action that his work was subjected to scrutiny.’155 So the capacity of

defamation law to examine the relevant and disputed historical record was, in that

instance, fortuitous. Indeed, as McNamara notes, ‘it will always be the plaintiff’s

work which is under the microscope; one cannot put an opponent’s thesis to the test

by commencing legal action against them.’156

Whilst the capacity of Australian racial vilification law to regulate history denial is

subject to the ‘significant proviso’, it is not so procedurally shackled in terms of its

operation as defamation law. At Commonwealth level, for example, a person or group

alleging that a denial of history amounts to an act of unlawful racial vilification can

initiate a complaint with the Human Rights and Equal Opportunity Commission

(‘HREOC’) for investigation or conciliation157 or lodge an application with the

Federal Court in the event the conciliation process fails or is terminated.158 This

154 McNamara, ‘Truth, Memory and Judgment’ above n 54, 392. 155 Ibid 373. 156 Ibid. 157 Human Rights and Equal Opportunity Act 1986 (Cth) s 46P. 158 Human Rights and Equal Opportunity Act 1986 (Cth) s 46PO.

307

empowers a purported victim to take legal action knowing that the impugned

historical account will be the subject of administrative and possibly judicial scrutiny.

In this sense, the capacity of racial vilification law to regulate history denial is not

fortuitous, which is a significant benefit.

McNamara considers that the law is better equipped to assess the motivation of a

historian rather than determining the accuracy or otherwise of their account. This, he

argues, is the case if a historian sues in defamation for an attack made on their work.

This view has merit for at least two reasons.

First, unlike, for example, a native title case, the historian and their impugned

historical account or narrative is front and centre in a defamation trial. In other words,

consideration must be given to the complete historical work and the context in which

it appears for a court to determine whether a defence of justification can be

established. On the other hand, in a native title case a historian gives evidence upon a

specific and discrete (at least in legal terms) historical question. The court is not

concerned with how that specific question might sit within that historian’s wider

narrative and the relevant literature more generally.159 So an answer provided for this

limited judicial purpose can appear unequivocal when the opposite may well be closer to the truth. But the potential for a historical account to be misconstrued or even

distorted is diminished if the law ‘permits history to enter the court as history’160 not

simply a rhetorical tool to further a legal argument.

159 It is true, however, that in order to assess the credibility or otherwise of a historian as a witness and their testimony, a court may consider the wider context of their work and whether, for example, they have testified to the same effect in other cases. My thanks to Alex Reilly for this point. 160 McNamara, ‘Truth, Memory and Judgment’ above n 54, 379.

308

Second, unlike the ‘criminal law doctrine [which] purports to draw a sharp distinction

between intention and motive’,161 undertaking an inquiry as to the reason or

motivation for an act is something that courts routinely do in the civil context. The

application of the law of contract and equity, for example, will often require a judicial

assessment of this nature.162 The ability of a litigating party to provide written and

oral evidence to this end and for the veracity of those assertions to be tested in cross-

examination means a court is institutionally capable of (and experienced at) making

reasonable assessments of this kind. However, the extent to which this assessment can

be made by a court - particularly in the context of a historical narrative - turns on the availability, quality and completeness of the (historical) evidence, another manifestation of the ‘significant proviso’ earlier noted.

Importantly for my purposes, what will usually distinguish a controversial but bona fide historical account from an instance of history denial as racial vilification is the absence of ‘good faith’ in the case of the latter. If, for example, a complaint were made under the RDA that Fabrication constituted unlawful racial vilification, the likely battleground would be whether Windschuttle could establish that his historical narrative was written in ‘good faith.’163 This assumes that the work would offend the

relevant harm threshold of being ‘reasonably likely in all the circumstances to offend,

insult, humiliate or intimidate’ Australian Aboriginals and it was done because of

their race.164 This assumption may well be disputed. But it is at least arguable that

161 Nicola Lacey, Celia Wells and Oliver Quick, Reconstructing Criminal Law (3rd ed, 2003) 52. 162 For example, the reason or motivation for an act is relevant to the intention to create legal relations in contract law and the law of unconscionability in equity. 163 The burden falls on the defendant to establish a free speech/public interest defence in the event the relevant harm threshold in the RDA or State and Territory racial vilification law is offended. For a discussion on this point see McNamara, ‘Regulating Racism’ above n 15, 96-99. 164 It is worth recalling that the race or ethnicity of a person or group need only be one of the reasons for the impugned conduct to establish the requisite causal connection in s 18 of the RDA.

309

Fabrication may do so considering the low harm threshold and the nature of some of

the general, more serious propositions that underpin Windschuttle’s thesis.165

It is important to note here that the truth or otherwise of his narrative is not determinative of, indeed only marginally relevant to, the question of whether the harm threshold has been offended. The focus of the judicial inquiry would then turn to the availability or otherwise of a free speech/public interest defence under s 18D of the

RDA. A critical examination of the existing historical literature on Tasmanian

Aboriginals and consideration of whether that history has been fabricated by the relevant historians and others for political and economic gain is conduct that at the very least is done for a purpose that is in the public interest. It is, moreover, done

‘reasonably’ for the purposes of the public interest defence when the results of that research inquiry are published as articles in a widely circulating journal166 and in

book form in prose that is impassioned and often indignant but in my view well

within the bounds of acceptable civil and intellectual discourse.167

The remaining and critical issue which then arises for determination is whether the

historical account was written and published in ‘good faith’. The primary focus of this

inquiry – and therefore the application of Australian civil racial vilification laws in

these kinds of matters - is also the motivation or reason for Windschuttle’s historical

165 See for example Windschuttle, above n 127, 26 where the author writes: ‘To fabricate a death toll of “close to a hundred’, as descendents of the Tasmanian Aborigines have done, is to abandon any semblance of veracity in order to milk the event for maximum political gain.’ 403: where he states that ‘the most obvious falsehoods of historians’ regarding Aboriginal history ‘lead[s] many Aborigines to seek comfort in myth, legend and victimhood. They blame all their social problems on the distant past and thus avoid taking responsibility for their own lives now and that of their children in the future.’ 433-434: And on the increased number of persons in Tasmania who identify themselves as of Aboriginal descent, ‘[p]art of the reason would no doubt be that Aboriginality is no longer a badge of inferiority…But it is equally clear that a great incentive is access to the more generous welfare payments available to Aborigines than to whites.’ 166 Windschuttle first presented his Fabrication thesis in three articles published in the journal Quadrant. They were ‘The Myths of Frontier Massacres in Australian History, Parts I-III’ published in the October, November and December (2000) issues of Quadrant respectively. 167 See above text accompanying n 107 for the point that ‘reasonably’ in this context refers to the method by which a message is conveyed not the content of the message itself.

310

narrative. It is a complex inquiry, as my above analysis demonstrates.168 But it is,

nevertheless, one that courts have the experience and institutional capacity to

undertake and ‘permits history to enter the court’ on its own terms.169

2 A practical concern with making a claim of history denial as racial vilification

under current Australian law

(i) Is the cost of proving an absence of ‘good faith’ prohibitive?

My analysis in this part of the Chapter has so far suggested that civil racial vilification laws are reasonably well equipped to identify and regulate history denial as racial vilification. But if I am correct in my view that much will turn on whether the impugned historical narrative is published in ‘good faith’, then one problem may arise regarding the accessibility and therefore practical operation of these laws. It is the

prohibitive cost that a party may have to incur in order to negative a defendant’s claim

that their historical account was written in ‘good faith’.

In Irving, for example, Gray J found that the plaintiff deliberately falsified and

distorted the historical record to present a narrative consistent with his virulent anti-

semitism and pro-Nazi ideological agenda.170 This, as noted, is equivalent to and

would constitute an absence of ‘good faith’ under current Australian law. But in order

to demonstrate to the court the underlying motivation for Irving’s historical account, the defendants (Deborah Lipstadt and Penguin Books Ltd) had to expend vast sums of time and money to undertake the task of scrutinising his significant body of work. It involved the painstaking process of checking each asserted fact and supporting footnote by tracing back these references to the original source documents (often

168 See further below text accompanying n 171. 169 See McNamara, ‘Truth, Memory and Judgment’ above n 54, 378-379. 170 Irving [13.163].

311

written in German) to evaluate their authenticity and accuracy.171 This task was

undertaken by a history Professor at Cambridge University and two of his doctoral

students. There were, in addition, a series of expert reports compiled on, amongst

other things, the facilities at Auschwitz, Irving’s political ideology and ‘his connections with the far-right, neo-fascist and extremist political organizations.’172 In

any event, Penguin Books estimated that the trial cost in the order of £2 million173 and

‘Steven Speilberg and a number of other American Jews [contributed] to the cost of

bringing Lipstadt to London for the three month trial’.174 It is reasonable to assume that Deborah Lipstadt could not have resisted the defamation action without this significant financial and logistical support.

The problem with sophisticated instances of history denial for civil racial vilification law is that an inquiry of similar complexity, depth and therefore cost could be required in most cases in order to negative an authorial claim of ‘good faith’. For it possesses a close stylistic and methodological proximity to bona fide historical

scholarship. And whilst it is the defendant (the author of the impugned history) that

must establish ‘good faith’ under racial vilification law, without rebuttal evidence

from the plaintiff then a positive finding is likely.175

However, as noted, the legal proscription of speech is no small matter and the free

speech concern that civil racial vilification laws may operate to sanction inaccurate or

mistaken (not just deliberately false) history is a serious one. So it is only proper that

171 See Evans, Telling Lies About Hitler, above n 8, 37-43. 172 Ibid 35. 173 Guttenplan, above n 73, 284. 174 Ibid 2. 175 If a defendant seeks to rely on any of the exemptions in s 18D of the RDA it would be normal, permitted and necessary for the complainant to lead evidence or to cross-examine the defendant to demonstrate that conduct that may otherwise attract a defence was not done reasonably and/or in good faith. My thanks to Chris Maxwell QC (now Justice Maxwell, President of the Court of Appeal of the Supreme Court of Victoria) for this point.

312

the complex and (potentially) costly task of negativing ‘good faith’ is borne by the complainant. A law that lessened this burden would make it easier to make complaints of unlawful history denial. And as I argue below, the low harm threshold in the RDA already makes it too easy for frivolous or vexatious complaints to be made against historians.176 This would carry the serious risk that historians are then forced to incur significant costs to resist a claim of unlawful racial vilification. The chilling potential on historical scholarship is manifest. So the cost of proving the absence of

‘good faith’ may be significant for the complainant. But it cannot and should not be otherwise if Australian civil racial vilification laws are to avoid proscribing and

chilling controversial but bona fide freedom of historical expression.

(ii) The cost benefits of the complaint procedure under the Human Rights and

Equal Opportunity Commission Act 1986 (Cth)

The procedure to make a complaint under the Human Rights and Equal Opportunity

Commission Act 1986 (Cth) (‘HREOCA’) and its State and Territory equivalents is

more inquisitorial than adversarial.177 An aggrieved person, for example, can make a

complaint in writing to the Human Rights and Equal Opportunity Commission (‘the

Commission’) alleging an act of unlawful racial vilification. The Commission may

then inquire into the complaint and attempt conciliation.178 In addition, HREOCA

provides the Commission with the power to compel the production of information, documents and witnesses considered relevant to the inquiry.179

176 See below Part IV(B)(3). 177 See HREOCA 46P; Anti-Discrimination Act 1977 (NSW) s 88; Discrimination Act 1991 (ACT) s 72; Anti-Discrimination Act 1991 (Qld) s 134; Anti-Discrimination 1998 (Tas) s 60; Racial and Religious Tolerance Act 2001 (Vic) s 19. 178 HREOCA s 11. 179 HREOCA s 21.

313

In this way, some of the discovery-style costs that must be incurred to establish an instance of history denial as racial vilification are absorbed, incidentally, by the

Commission in order to facilitate its inquiry. In the event that the President of the

Commission terminates the complaint,180 the complainant may then institute proceedings in the Federal Court or the Federal Magistrates’ Court.181 It is at this stage of the procedure that the costs of rebutting a claim of ‘good faith’ may start to bite.182

3 Why the harm threshold under s 18C of the Racial Discrimination Act 1975

(Cth) is a threat to controversial but bona fide historical scholarship and how it

might be lessened

As noted, the s 18C harm threshold is low. It makes it relatively easy for a complainant to force the author of an impugned historical account to defend a claim of unlawful racial vilification. For example the Windschuttle thesis in Fabrication - though offensive to some - concerns a matter of significant public interest, is written

‘reasonably’ (for purposes of the RDA) and its key arguments had previously been

180 The grounds for terminating a complaint include that the President is satisfied that the alleged unlawful discrimination is not unlawful discrimination, the complaint was trivial, vexatious, misconceived or lacking in substance, the subject matter of the complaint involves an issue of public importance that should be considered by the Federal Court or the Federal Magistrates Court and the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation – see HREOCA s 46PH. 181 HREOCA s 46PO 182 But note that HREOCA s 46PU provides that a person who has commenced or proposes to commence proceedings in the Federal Court or the Federal Magistrates Court under this Division; or is a respondent in proceedings in the Federal Court or the Federal Magistrates Court under this Division; may apply to the Attorney-General for the provision of assistance under this section in respect of the proceedings. If a person makes an application for assistance and the Attorney-General is satisfied that it will involve hardship to that person to refuse the application and in all the circumstances, it is reasonable to grant the application; the Attorney-General may authorise the provision by the Commonwealth to that person, on such conditions (if any) as the Attorney-General determines, of such legal or financial assistance in respect of the proceedings as the Attorney-General determines. This provision could possibly provide a source of financial assistance to a plaintiff wishing to pursue a claim of history denial as unlawful racial vilification. However, Ms Lucy Holt of the Commonwealth Attorney General’s Office noted that limited funds were available under this provision, few applications are made and none, thus far, have been for the purpose of funding a claim of history denial as unlawful racial vilification – personal communication (telephone), 6 September 2004.

314

published in an established conservative journal of literature and ideas. And whilst these factors alone do not of course make the historical account authoritative, accurate or even bona fide, there is a serious free speech concern with a law that may operate to require the author of such an account to establish in a court or tribunal that it does not fall foul of the law. For if I am right to suggest that Fabrication may offend the harm threshold in s 18C, it would then fall on Windschuttle to marshal the significant

(maybe prohibitive) resources necessary to establish a free speech/public interest defence. In my view, the capacity of such a law to chill controversial but bona fide historical scholarship would be significant.

To this, one may reasonably respond that s 18C was on the statute books at the time when Fabrication and its many responses were written. In other words, actual experience demonstrates that the law did not chill controversial but bona fide historical scholarship in this instance. This is true. But the free speech concerns with s

18C are not mollified by this fact. For the important point – and what my analysis shows - is that s 18C has this chilling capacity. Its non-deployment in the ‘History

Wars’ is no guarantee that it wont be used in the future to challenge the legality of historical polemics that deal with matters of race. One must also keep firmly in mind that provocative race arguments are made in a range of fields, including the physical and social sciences, economics and the law. So the chilling capacity of this law extends to any scholarship that makes an argument or observation on a race issue.183

The danger is not that this kind of historical and race scholarship will routinely be

found in the result to constitute unlawful racial vilification. But that it will - almost by

definition – breach the harm threshold by at least offending or insulting a person or

183 For the remainder of the chapter I will call this ‘race scholarship’. A good example is the increasing prominence of scholarly arguments and analysis regarding religious and racial demographics – see for example Niall Ferguson, ‘The March of Islam’, Telegraph (United Kingdom), 21 May 2006

315

group on account of their race. It would leave the person against whom such a claim

was made with a cruel dilemma. They must either establish the legality of their

scholarship in costly and time-consuming (quasi) judicial proceedings or choose to

settle with the complainant which would, at the very least, require them to cease this

line of inquiry and research.

The significant free speech concern with the s 18C harm threshold was, for example,

at the heart of the suggestion made by French J in Bropho v Human Rights and Equal

Opportunity Commission that maybe the defences in the RDA ought to ‘be seen as

defining the limits of the proscription in s 18C and not as a free speech exception to

it.’184 It would then require the complainant to discharge the burden of proof

regarding the exemptions not the respondent, as is currently the case. The chilling

potential of current Australian civil racial vilification law on historical scholarship would be reduced as a consequence.

In my view, however, a natural reading of sections 18C & D discloses a parliamentary intent to ‘lay down [a] principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation

depending upon new or additional facts.’185 This is evidenced by the general principle

of liability outlined in s 18C and the special grounds for excuse contained in the

following section which is headed ‘Exemptions’. In this instance, the burden of

establishing an exemption properly falls on the respondent as a matter of form and

substance.186 So even if that burden lies with the respondent and in the absence of a

184 Bropho 204 ALR 761, 780. 185 Vines v Djordjevitch (1955) 91 CLR 512, 519 (per curium). 186 In this regard French J is correct to note that ‘[w]hether an exemption from a statutory liability is to be demonstrated by the person upon whom it is sought to impose the liability is a matter of substantive statutory construction not a mere matter of form’ – Bropho 204 ALR 761, 780.

316

desirable statutory modification to elevate the s 18C harm threshold,187 the application of the principle of legality noted by French J may alleviate some of the free speech concerns with the RDA racial vilification provisions. This principle states that ‘[f]undamental common law rights are not to be eroded or curtailed save by clear words.’188 So the words ‘offend, insult, humiliate or intimidate’ are therefore construed narrowly to minimise the restriction on freedom of speech.189 It would then more closely resemble the harm threshold contained in the New South Wales model where conduct will constitute unlawful racial vilification if it is likely ‘to incite hatred towards, serious contempt for, or severe ridicule of, a person or group’ on account of their race.190 The harm threshold is, in effect, elevated and the chilling potential on controversial but bona fide historical scholarship is diminished.

Such a construction would also preclude from legal sanction a historian whose narrative is unlikely to breach a more elevated harm threshold but contains deliberate falsifications that suggest an improper purpose is at least one motivation for it. This may be significant in the context of the possible application of civil racial vilification law to the current ‘History Wars’ as Windschuttle’s critics consider Fabrication to be history denial for which ‘vilification is not too strong a word.’191 For this sort of accusation of racial vilification, it is best in my view for the law to err on the side of freedom of speech and allow the competing historical accounts to battle it out in the

187 On this point see Chapter Three: Part IV(A)(1). 188 Coleman v Power (2004) 209 ALR 182, 227 (Gummow & Hayne JJ) (‘Coleman’) citing Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523; Bropho v Western Australia (1990) 171 CLR 1, 18; Plenty v Dillon (1991) 171 CLR 635, 654; Coco v The Queen (1994) 179 CLR 427, 435-438; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543. 189 See Bropho 204 ALR 761, 779-780. A similar approach was employed in Coleman (2004) 209 ALR 182 where three members of the Court used the principle of legality to narrowly construe a Queensland law which made it an offence to use insulting words to any person in a public place to minimise its restriction on freedom of speech - see 227 (Gummow and Hayne JJ) and 237 (Kirby J). 190 Anti-Discrimination Act 1977 (NSW) s 20C; Discrimination Act 1991 (ACT) s 66; Racial Vilification Act 1996 (SA) s 4; Wrongs Act 1936 (SA) s 37; Anti-Discrimination Act 1991 (Qld) s 124A; Anti-Discrimination 1998 (Tas) s 19; Racial and Religious Tolerance Act 2001 (Vic) s 7. 191 See above n 137.

317

marketplace of ideas.192 Indeed the very presence in the marketplace of controversial, offensive or even bad faith historical narratives may spark academic debate and further scholarship and a wider public dialogue on matters of significant historical interest. This is precisely how a noxious idea or viewpoint may further rather than undercut the advancement of historical knowledge. The swift generation of a significant body of ‘History Wars’ literature buttresses my argument that the robust exchange of historical arguments and accounts in the free speech marketplace may offer in this instance the best forum for these sorts of controversial historical issues to be played out.193 But it is not a case of historical inquiry as free speech anarchy. On the contrary, there are the strong ethical and scholarly traditions of the discipline itself194 and the possibility of legal sanction when the doing of history becomes a vehicle for the expression and promotion of racial hatred.

My analysis of the Windschuttle controversy suggests that the argument made in

Chapter Three regarding the low harm threshold in s 18C and the threat it poses to valuable public discourse on race-related issues has merit. A civil racial vilification

192 The marketplace of ideas metaphor was first articulated by Holmes J in his dissenting judgment in Abrams v United States, 250 US 616, 630 (1919) where he said that ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market’. It is, however, a fiercely contested notion and a number of commentators have queried its coherence, neutrality, openness and capacity to deliver the truth – see, for example, Eric Barendt, Freedom of Speech (2nd ed, 2005) 6-13; Tom Campbell, ‘Rationales for Freedom of Communication’ in Tom Campbell and Wojciech Sadurski (eds), Freedom of Communication (1994) 24-26; Stanley Fish, There’s No Such Things as Free Speech and It’s a Good Thing Too (1994) 16-17; Cass Sunstein, Democracy and the Problem of Free Speech (1993) 24-26, 178-179. I would, however, note that in the context of the ‘History Wars’ in Australia the marketplace metaphor is reasonably appropriate. The protagonists have been free (indeed encouraged) to speak to the controversies in public forums and their arguments are published in books, journals and the popular media. In this instance there has been reasonably equitable access to the marketplace, the publication of one view has not silenced another (to the contrary) and, whilst the discovery of the truth is not guaranteed, at least the key controversies have been exposed to rigorous and sustained critical evaluation. 193 See, for example, Bain Attwood and S G Foster (eds), Frontier Conflict: The Australian Experience (2003); Manne (ed), ‘Whitewash’, above n 135; McIntyre and Clark, ‘The History Wars’, above n 126. 194 See for example Stanley Fish, ‘Holocaust Denial and Academic Freedom’ (2001) 35 Valparaiso University Law Review 499, 518-524; William Kelleher Story, Writing History (1999) 25-43 and Evans, ‘In Defence of History’, above n 6, 100-110 for a description of the events surrounding the publication of The Collapse of the Weimar Republic (1981) by David Abraham. There were serious claims made by a number of historians regarding the scholarly integrity of the book which ultimately resulted in the book being largely discredited and the author leaving the history academy.

318

law that operates in the manner outlined above carries a significant risk of chilling, not only controversial bona fide historical research, but race scholarship more

generally. And the law’s propensity to chill this scholarship comes with an additional

and significant cost. For without these challenging and sometimes offensive voices in

the marketplace of ideas the community loses the knock-on benefits of further debate,

scholarship and deliberation on important public issues which they inevitably

generate.

C THE EXISTING CRIMINAL LAW FRAMEWORK

In Chapter Four I made a number of free speech arguments regarding the operation of

criminal racial vilification laws in Australia. To recall, I suggested that the New South

Wales model is sufficiently sensitive to and protective of freedom of speech but that

there are serious concerns with the Western Australian and Commonwealth models. I

now want to test those arguments by considering, again, whether controversial but

bona fide historical scholarship (and race scholarship more generally) is threatened by

these criminal laws.

1 The New South Wales Model

To attract criminal sanction under the New South Wales model it is not enough to do

a public act with the intention of inciting hatred towards, serious contempt for, or

severe ridicule of a person or group on account of their race. In addition, there must

be an aggravating factor, namely a threat to do violence to a person or their property

or inciting another to do so. As I pointed out in Chapter Four, it means that an idea or

viewpoint contained in speech – however racially offensive – is of no concern to this

criminal law. This is significant for freedom of historical and race scholarship. For

this kind of speech will rarely contain the aggravating factor necessary to attract

319

criminal liability. Even the hurtful and repulsive Holocaust denial of David Irving, for

example, would not constitute a crime under the New South Wales model. I mention

this not as an argument that Irving’s Holocaust denial ought to escape criminal sanction but simply to make the point that the criminal offence in the New South

Wales model can pose no meaningful threat to controversial but bona fide historical and racial scholarship if even Irving’s writings fall comfortably outside its sphere of possible coverage.195

2 The Commonwealth Model

Curiously, the same can be said of the Commonwealth model. It will be recalled that

section 80.2(5) of the Criminal Code Act 1995 (Cth) makes it a crime under

Commonwealth law to urge a racial group to use force or violence against another racial group where the use of the force or violence would threaten the peace, order and good government of the Commonwealth. I argued in Chapter Four that there are serious free speech concerns with this law due to its ‘linguistic over-inclusiveness’ and uncertainty as to its fault requirements, both which extend its possible coverage beyond that of proscribing a very serious but limited species of seditious group racial incitement. History has also demonstrated that sedition prosecutions are undertaken at times of great national stress and usually at the expense of valuable public discourse.

However, the very nature of historical and race scholarship makes it unlikely to contain material that would ever meet the legal standard of urging or inciting group racial violence. The Irving example is again apposite in this regard. His historical writings certainly may confirm or inflame existing racial prejudices against Jews. And they may even contribute to the poisoning of the public atmosphere where group

195 I note here that in February 2006 David Irving was convicted and jailed for three years in Austria when he pleaded guilty to the crime of denying the Holocaust of European Jewry.

320

racial violence becomes more acceptable and therefore likely. But the accounts

themselves will not (indeed do not) contain the unambiguous words or imputations that disclose an intention to incite group racial violence. And even if did, it is difficult

to conceive of historical or race scholarship that could satisfy the seditious component

of the law; that is, that Irving (or another impugned historian/scholar) was reckless to

the fact that the racial group violence urged in the writings would threaten

constitutional government, at least in the Australian context.

I suppose it may be possible that an extreme form of race scholarship could offend s

80.2(5). An example might be the resuscitation of Nazi-style theories of racial

hygiene and genetics to challenge the right of a racial or ethnic group to live

peaceably in the Australian community. It is difficult though to argue that the possible

legal vulnerability of such extreme cases poses any kind of threat to controversial but

bona fide historical or race scholarship. So the free speech arguments made in

Chapter Four regarding the Commonwealth model are in need of slight refinement.

The Commonwealth law remains problematic from a free speech perspective for those wishing to engage in dissident political speech as its potential coverage - the defences

notwithstanding - may chill this important form of expression, particularly in times of

national crisis and stress. However, my analysis makes clear that section 80.2(5)

poses little (if any) threat to controversial but bona fide historical and race

scholarship.196

3 The Western Australian Model

196 This is not to say that this kind of scholarship is not ‘political’ in the broader sense of making a contribution to public affairs and seeking to influence popular opinion and even government policy. But its purpose or form will rarely if ever be an incitement to seditious group racial violence.

321

The most serious free speech concerns outlined in Chapter Four concerned the

criminal racial vilification laws in the Western Australian model. The four strict or

negligent liability crimes were my major focus in this regard. The problem, again, lies with the breadth of their possible coverage. A product, as noted, of the ‘linguistic over-inclusiveness’ of their core terms (‘animosity towards’ and ‘harass’) and that an aggravating factor (of the kind required in the New South Wales model) need not be proven. But it is a problem made significantly worse by the fact that these offences have no subjective mens rea requirement. So even non-intentional conduct can attract serious criminal sanction. Indeed, as was noted in Chapter Four, this was the Western

Australian government’s express purpose when it created these crimes in 2004.197

It will be recalled, for example, that s 78 of the Western Australian Criminal Code

makes it a crime, punishable by five years imprisonment, to engage in public conduct

that is likely to create, promote or increase animosity towards, of harassment of a

person or group on account of their race, where ‘animosity towards’ is defined as

‘hatred of or serious contempt for’. In regards to some of the more serious

propositions that underpin the Fabrication thesis earlier noted, they may well create,

promote or increase hatred or serious contempt for Aboriginals in some parts of the

Australian community.198 No doubt the government would respond that authors of

polemical historical accounts - and race scholarship more generally - have nothing to

fear as a range of free speech/public interest defences are available that will always

accord legal protection to controversial but bona fide legal and racial scholarship.

197 See Chapter Four: Part IV(A). 198 For example, one proposition was that on the increased number of persons in Tasmania who identify themselves as of Aboriginal descent, the author wrote that ‘[p]art of the reason would no doubt be that Aboriginality is no loner a badge of inferiority…But it is equally clear that a great incentive is access to the more generous welfare payments available to Aborigines than to whites.’ Windschuttle, above n 127, 433-434.

322

But this is hardly re-assuring from a free speech perspective for at least three reasons.

First, the strict or negligent liability nature of the crime means that the intention of an

author when undertaking their scholarship is irrelevant to whether or not it offends the

criminal harm threshold. For example, Windschuttle wrote that Fabrication was,

amongst other things, a book ‘that examines the credibility of the received

interpretation’199 of Aboriginal history – that there was sustained frontier warfare

between colonists and Aborigines – and provides ‘a counter-history of race relations

in [Australia].’200 But these intentions count for nothing if his scholarship is likely to create, promote or increase animosity towards, of harassment of a person or group on account of their race. So the publication of Fabrication may constitute a crime under

Western Australian law not only in the absence of a subjective mens rea requirement but irrespective of what its author actually intended when the book was written.

Second, even though a free speech/public interest defence would in the result likely protect Fabrication and much historical and race scholarship, at trial the author bears the onus of placing before the court sufficient evidence to support their defence claim and the significant costs of doing so. And third, even if a defence is successfully pleaded, the author must endure the cost and stigma of what is likely to be a very public criminal trial considering the nature of the crime alleged.

I argued in Chapter Four that the inevitable consequence of strict or negligent liability race crimes was widespread and damaging chilling of speech that can make a valuable contribution to public discourse on race-related issues. My consideration of

Fabrication and its treatment under Western Australian criminal law suggests that this

may well be the case for controversial but bona fide historical and race scholarship.

The only practical safeguard is that the consent of the DPP must be obtained before a

199 Ibid 3. 200 Ibid.

323

person can be prosecuted under s 78. As noted, this guards against overzealous or

inappropriate criminal prosecutions. But it does not quell the chilling capacity of the

law for a person contemplating whether to write controversial historical or race

scholarship may, wisely, choose not to if they must rely upon the good sense of

prosecuting authorities not enforcing a criminal law whose coverage may well extend

to their work.

D PROVISIONAL CONCLUSION II

1 Australian civil racial vilification laws can regulate meaningfully history denial

as racial vilification

My analysis demonstrates that with one significant exception Australian civil laws

have the capacity to regulate meaningfully history denial as racial vilification. That

exception is the low and ambiguous harm threshold in s 18C of the RDA. The free

speech concern that it engenders is not answered or assuaged by the broad scope of the defences provided for in s 18D. For the low RDA harm threshold makes it too easy

for a complainant to bring a racial vilification claim against a (controversial) historian

who must then either conciliate or marshal the necessary resources to defend the

accusation. This conclusion underlines that argument made in Chapter Three

regarding the threat that s 18C poses to valuable public discourse on race-related issues more generally. In any event, the law’s chilling potential is very real. As noted, the application of the principle of legality discussed by French J in Bropho may operate, in effect, to elevate the harm threshold. But the formal statutory amendment to s 18C of the RDA proposed in Chapter Three is, in my view, required. It ought to read as follows:

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

324

(a) the act is reasonably likely, in all the circumstances, to incite hatred

towards, serious contempt for, or severe ridicule of another person or a

group of people; and

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.

As noted in Chapter Three, this would achieve greater consistency in the operation of

civil racial vilification law throughout Australia and cure some of s 18C’s current

ambiguity.201 It would also help to shore up doubts as to the constitutionality of s 18C

which is by no means certain as my analysis in Chapter Two demonstrated. But most

importantly for the purposes of my inquiry in this Chapter, it would diminish the

likelihood of controversial but bona fide historical scholarship being chilled or

proscribed by Australian civil racial vilification laws.

2 Most Australian criminal racial vilification laws pose no threat to controversial

but bona fide historical and race scholarship

I also considered the likely treatment of controversial but bona fide historical and race

scholarship under the three criminal racial vilification law models operating in

Australia. It emerged that only the Western Australian strict or negligent liability

crimes were problematic in this regard. Again, I used Fabrication as a case study to

show that s 78 of the Criminal Code in particular poses a serious free speech threat.

The capacity of the law to chill controversial but bona fide historical and race

scholarship is the root of the problem.

201 See Chapter Three: Part IV(A)(1).

325

3 No case exists for major legislative surgery or a specifically tailored law to

proscribe history denial as racial vilification

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

First, there are public and private avenues currently available for a complainant to secure the required financial and legal support. There is provision in the RDA to apply for assistance in this regard and it may be granted by the Attorney-General if ‘it will involve hardship to that person to refuse the application’ and ‘in all circumstances, it is reasonable to grant the application’.202 Moreover, as noted, the most likely candidates in Australia of history denial as racial vilification are Holocaust and white settlement revisionists. Irving demonstrated that, at least in the former case, there is a decent chance that the litigant affirming the Holocaust will secure some amount of private benefaction. Second, the comprehensive nature of the judgment of Gray J in

Irving and the substantial body of historical scholarship generated by the ‘History

Wars’ in Australia provides a strong and accessible evidential foundation in the event of a future claim of Holocaust or white settlement denial as racial vilification. The potential financial and legal burden on a complainant for discovery and research costs is lessened as a consequence. And third and most importantly, any change to the current law along these lines would, as noted, seriously chill the freedom of historians to write controversial but bona fide historical scholarship.

202 HREOCA s 46PU.

326

A corollary of my conclusion that racial vilification law can regulate meaningfully

history denial as racial vilification is that no case can be made in Australia for

specifically tailored laws to this end. There are two further reasons for eschewing the

path taken, for example, by a number of European countries including Austria, France

and Germany where Holocaust denial is a crime.203 First, as Jonathan Cooper and

Adrian Marshall Williams point out:

From a French and continental European perspective, their more direct

experience of Nazism has often resulted in a nexus of laws to prevent its

resurgence, so that Holocaust denial laws may be a piece of legislation that

completes the jigsaw. Additionally, those States with a direct experience of the

Holocaust may also have a further, possibly cathartic, motive for introducing

such legislation. As silent witnesses to the Holocaust, governments may wish

to make a public statement acknowledging that the Holocaust happened and

that the Government was part of it and responsible for it.204

Notwithstanding the presence of Holocaust survivors and their families within

Australia, in my view our specific historical context does not have the same resonance or carry with it a comparable moral and political imperative. Second, there are rule of law concerns both in the targeting of specific individual persons or groups who propound offensive historical narratives and then the difficulty of drafting reasonably clear laws to proscribe these activities. These concerns do not imperil the constitutionality of such laws but may operate to undermine their long-term efficacy.205

203 See above n 28. 204 Cooper and Williams, above n 28, 12. 205 See further Chapter Three: Part III.

327

V CONCLUSION

In this Chapter, three arguments have been made. First, that a court is not equipped to deliver definitive judgments on the past but, through its established rules and procedures, is institutionally capable of assessing the quality and veracity of a historiography. Its capacity to do so in any given case will, however, turn on the availability, quality and detail of the relevant historical materials and judicial cognisance of the significant difficulties that attend judicial pronouncements on the past.

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

Finally, that Australian racial vilification law can regulate meaningfully history denial as racial vilification and do so in a manner that for the most part is sensitive to and accommodating of controversial but bona fide historical inquiry. I have, however, suggested that the low harm threshold in s 18C of the RDA and the Western

Australian strict or negligent liability crimes are problematic in this regard. In order to diminish the capacity of these laws to chill legitimate historical and race scholarship – and promote freedom of speech more generally – the former requires amendment to

328

elevate the harm threshold and the latter ought to be repealed as was first suggested in

Chapters Three and Four respectively.

329

CONCLUSION

This thesis has examined the constitutional and legal frameworks for the regulation of

racial vilification in Australia. My aim in doing so was twofold. First, to ascertain the

constitutional parameters for Australian laws where political communication forms

part of the conduct sought to be regulated. The answer to this inquiry provided the

methodology to determine whether racial vilification may count as political

communication and, if so, then ascertaining whether existing Australian racial

vilification laws rest on sound constitutional foundations. And second, I sought to

critically evaluate the normative legitimacy and regulatory value of existing

Australian racial vilification laws. In the event that these laws were found to be

defective or problematic, the methodology outlined in the first part of the thesis

provided the relevant constitutional parameters within which any proposed legislative

reform must fall.

The constitutional analysis was undertaken – and my first aim addressed - in Chapters

One and Two. Chapter One considered the theoretical foundations and scope of the

implied constitutional right to freedom of political communication (‘implied

freedom’) which the High Court recognised in 1992. In Lange v Australian

Broadcasting Corporation the High Court made clear that ‘the freedom of

communication which the Constitution protects is not absolute. It is limited to what is

necessary for the effective operation of that system of representative and responsible government provided for by the Constitution.’1 Moreover, the implied freedom

operates as a limitation on the legislative power and executive action of Australian

parliaments and governments respectively. To this end, the Court has set down a test

1 (1997) 189 CLR 520, 561 (‘Lange’).

330

to determine when a law or executive action is invalid for offending the implied

freedom but has not settled on a definition of ‘political communication’.2 It is,

however, crucial to have a reasonable approximation of what counts as political

communication to understand the proper scope of the implied freedom and when laws

may be constitutionally vulnerable as a consequence. Of particular concern to my

thesis was whether racial vilification can be considered political communication.

To answer this question I considered it necessary (and desirable) to first establish a sound theoretical basis for the implied freedom. I argued that the rationale of the implied freedom is a minimalist model of judicially-protected popular sovereignty. It translates to a more limited, supervisory role in the interpretation and application of the implied freedom and, importantly, requires that a generous zone of political communication attract constitutional protection. My analysis suggested that this rationale fits best with the text, structure and history of the Australian Constitution, our tradition of freedom of communication protection and the limited judicial capacity to determine what is required to secure the effective operation of our constitutional system of government.

Once this theoretical foundation was established, it provided the platform to answer the question of whether racial vilification may count as political communication.

Whilst it was acknowledged that no bright line exists between political and non-

2 A two part test was outlined by the Court in Lange at 567-568 (footnotes omitted): ‘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 second limb of the test was slightly modified in Coleman v Power (2004) 220 CLR 1, 50 (McHugh J) to now read: ‘is the law reasonably appropriate and adapted to serve a legitimate end [in a manner] which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government?’ This rewording was endorsed by Gummow and Hayne JJ (78) and Kirby J (82).

331

political communication, Lange made clear that a nexus must exist between a

communication and federal voting choices before it can attract constitutional

protection. In order to identify those communications that ought to attract

constitutional protection I developed the ‘likely audience test’. It stated that a

communication is ‘political’ if its subject matter may reasonably be relevant to the

federal voting choices of its likely audience. The test honours the centrality of voter

behaviour inherent in Lange nexus requirement. In doing so it provides a mechanism

to identify for constitutional protection the reality of political communication not just

what counts as such amongst the political enlightened. In the conclusion to Chapter

One I applied the ‘likely audience test’ to a range of cases with my analysis

demonstrating that racial vilification can amount to constitutionally protected political communication.

Importantly, when an instance of racial vilification falls within the scope of political communication, its proscription by a racial vilification law will necessarily infringe the implied freedom. But the implied freedom is not absolute, as noted. Lange made clear that a (racial vilification) law is still valid if it is reasonably appropriate and

adapted to serve a purpose compatible with the system of representative and

responsible government established by the Australian Constitution. This

constitutional analysis was undertaken in Chapter Two regarding Australian racial

vilification laws. A review model was proposed to facilitate it that took the form of the test for proportionality informed by what I consider to be the rationale of the implied freedom.

In sum, it was argued that if a law is an effective, appropriate or rational means to secure a legitimate constitutional end and its benefits outweigh its detriment to

332

political communication then it ought to be valid even when those means are not the least restrictive of the implied freedom. This proposition honours both the essence of

Lange and the rationale of the implied freedom. It recognises that the constitutional duty of the court is to guarantee the necessary rather than optimal level of political communication for our constitutional system of representative and responsible government to effectively function and the limited institutional capacity of a court to undertake this inquiry. In any event, its application to Australian racial vilification laws demonstrated that only the Western Australian strict or negligent liability crimes were seriously problematic in this regard. The four other crimes in the Western

Australian model and the civil and criminal laws in the New South Wales and

Commonwealth models were found to be compatible with the implied freedom and valid as a consequence.

Then, having ascertained the constitutional parameters for Australian laws that seek to regulate speech and determined that most Australian racial vilification laws rest on sound constitutional foundations, my second aim was addressed in Chapters Three,

Four, and Five. I critically evaluated the normative legitimacy and regulatory value of the civil laws in Chapter Three, criminal laws in Chapter Four and sought to test the key arguments that emerged from these two Chapters through a case study in Chapter

Five. It was first argued that racial vilification laws do have an important and legitimate place on the Australian legal landscape. They recognise the serious harms caused by racial vilification, provide a remedy to its victims and, in the process, deliver a strong message that the State takes seriously the personal liberty and freedom of speech of all its citizens.

333

However, I argued that the normative legitimacy and regulatory value of Australian racial vilification laws largely turns on three criteria:

- First (and foremost) whether they are drafted in a manner that does not

proscribe and chill valuable freedom of speech (including constitutionally

protected political communication). The very nature of racial vilification laws

is that some speech is no longer permissible, indeed may even attract criminal

sanction. This free speech threat is compounded by the difficulty of drafting

laws when speech forms a significant part of the proscribed conduct. It is what

Frederick Schauer terms the problem of ‘linguistic over-inclusiveness’.3 In

essence, the inherently fluid and equivocal nature of speech means there is

always a greater danger that a racial vilification law will operate to civilly or

criminally proscribe a much broader range of speech than is intended by the

parliament.

- Second, racial vilification laws require sufficient clarity and precision to be of

regulatory value. This is crucial if the free speech threat noted above is to be

minimised, the citizenry are to understand the legal boundaries of speech and

those public officials entrusted with the administration and enforcement of the

laws are to have a practically workable (and therefore useful) regulatory tool.

And importantly, with sufficiently clear and precise laws, more consistent and

predictable judicial and administrative decision-making will likely emerge.

The rule of law and the democratic credentials of the laws are strengthened as

a consequence.

3 Frederick Schauer, Free Speech: A Philosophical Enquiry (1982) 84.

334

- And third, in the case of criminal racial vilification laws, it is important that

they sit comfortably within the existing criminal law frameworks. For it is

well to remember that these criminal laws were enacted against a backdrop of

established, general criminal laws such as affray, assault and incitement to

violence that already covered most of the conduct likely to fall within the

purview of a racial vilification law. Consequently, prosecution authorities –

operating under significant time and resource pressures – will only prefer a

criminal racial vilification offence to a general crime if there is comparability

in the penalties available and an equivalent or better prospect of securing a

conviction.

In any event, my Chapter Three analysis demonstrated that Australian civil racial vilification laws are problematic. First, the relatively low harm threshold in section

18C of the Racial Discrimination Act 1975 (Cth) (‘RDA’) - ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate’ another on account of their race - poses a significant threat to freedom of speech. The task of objectively identifying low-end racial vilification is more difficult and contested. A law of this kind is, therefore, more likely to proscribe and chill valuable public discourse on race- related issues. This problem is compounded by the indeterminacy of its key definitional terms (‘offend’, ‘insult’) and the inability of over 10 years of case law to yield an interpretive resolution. It remains an open-ended legal standard that can be rightly criticised as undemocratic for - absent reasonably precise legal standards – it requires judges and administrators to effectively determine the substantive content of the laws they are to apply on a case by case basis.

335

The free speech/public interest defences available under the RDA and the New South

Wales model also lack sufficient clarity and precision. These laws provide for a range of defences for acts undertaken for academic, artistic, scientific and research purposes. However, to qualify for a defence a respondent must act ‘reasonably and in good faith’. What ‘reasonably’ means in this context is not clear - which is not surprising considering the inherent indeterminacy of the word – and the case law is ambivalent. Some cases state that the message conveyed in the (racist) communication must be reasonable others say it refers only to the method by which the communication is made. In any event, if the citizenry is to understand the legal boundaries of speech then the scope of the available defences must be made clearer.

I concluded my Chapter Three analysis with three reform proposals aimed at making

Australian civil racial vilification laws more precise, clear and sensitive to and protective of free speech.

- First, to amend – by elevating – the harm threshold in s 18C of the RDA to

incorporate the ‘hatred, serious contempt or severe ridicule’ standard already

present in the New South Wales model and most Australian defamation laws.

This would not completely resolve the harm threshold indeterminacy – the

meaning of words like ‘hatred’ and contempt’ can be similarly elusive - but it

at least gives Commonwealth decision-makers access to the harm threshold

determinations in other Australian jurisdictions and the extensive defamation

jurisprudence on point. And with a more elevated harm threshold, it becomes

easier for the citizenry and relevant public officials to objectively identify acts

of racial vilification as opposed that those that cause mere insult or offence.

336

This should also facilitate more consistent and predictable judicial and

administrative decision-making, strengthening the rule of law in the process.

- Second, the meaning of ‘reasonably’ in the free speech/public interest

defences requires legislative clarification; preferably to make clear that it is

the method of the communication that must be reasonable not the message it

conveys. These two reforms would add further precision and clarity to the

Australian civil racial vilification laws and also reduce the chances of valuable

public discourse on race-related issues being proscribed or chilled.

- And third, and as a corollary of my first reform proposal, low-end racial

vilification – that is, something less than the ‘hatred, serious contempt or

severe ridicule’ standard – should remain unregulated in Australia.

In Chapter Four I critically evaluated the legislative models that make racial vilification a crime in Australia against my three criteria. The New South Wales model makes it a crime to engage in an aggravated form of civil racial vilification.

That is, when the public act - that incites hatred towards, serious contempt for, or severe ridicule of a person or group on account of their race – involves the threat to do violence to person or property or incites another to do so. The Western Australian model is sui generis in that racial vilification is regulated by criminal offences only.

There are eight offences including - for the first time in Australian racial vilification law - four that can be committed without a subjective mens rea. The conduct proscribed includes that which is intended to cause racial harassment or animosity (or is likely to do so) and the possession of material for dissemination intending that it will incite racial harassment or animosity (or is likely to do so). The Western

Australian model also amended the Criminal Code crimes of common assault,

337

assaults occasioning bodily harm, assaults with intent, threats and criminal damage to provide for increased penalties when undertaken in circumstances of racial aggravation. The Commonwealth model makes it a criminal offence to incite violence amongst racial groups that would threaten the peace, order and good government of the Commonwealth. It is, however, different in kind to those in the New South Wales and Western Australian models for it is primarily a sedition offence not one of racial vilification. Its aim is to criminally proscribe a very serious but limited form of racial incitement that would threaten constitutional government.

My analysis in Chapter Four demonstrated that - with the exception of the racially aggravated offences in Western Australia - the criminal laws in all three models are fundamentally flawed. The offence in the New South Wales model, though sensitive to free speech, lacks sufficient clarity and precision and is incompatible with key features of the existing criminal law framework. The Commonwealth and Western

Australian offences pose a serious threat to freedom of speech and are close to unworkable as a practical matter due to their complexity and poor drafting. It comes as no surprise, then, that Australian criminal racial vilification laws continue to lie dormant on the statute book with prosecutors even reluctant to prosecute a criminal racial vilification law when the alleged conduct falls squarely within its purview.

Even though racial vilification prosecutions are likely to be infrequent considering the exceptional nature of such conduct, it is important the laws are mobilised when factually appropriate. The danger is that if the laws become exclusively symbolic the important State-sanctioned message they communicate to the citizenry - that serious racial vilification is intolerable and a crime - risks being undercut if the public officials entrusted with their administration and enforcement doubt their legitimacy and value.

338

It was, therefore, my argument that a strong case exists for the repeal of all Australian criminal racial vilification laws to be replaced by a particular species of penalty enhancement statute – the ‘group selection model’. This law would increase the maximum penalties available to a sentencing judge when they are satisfied that the race or ethnicity of the victim was a reason for the commission of the crime. It sufficiently meets the three evaluative criteria, falls comfortably within the constitutional parameters outlined in Chapters One and Two, is compatible with existing sentencing principles and, significantly, a conviction does ride on having to prove a racist motive or purpose as an element of the crime as is the case with racially aggravated offences. For even though the racially aggravated offences in the Western

Australian model also satisfied the three criteria, the circumstance of racial aggravation - being an element of these offences – makes it incumbent on the prosecution to, in effect, prove beyond a reasonable doubt that there was a racist purpose or motive for the criminal conduct, a considerable evidential obstacle in the absence of a confession. For these reasons I consider that a ‘group selection’ penalty enhancement statute may, instead, provide a more useful regulatory option.

In Chapter Five I considered how Australian racial vilification laws may operate upon a controversial form of speech: history denial. This was done for two reasons. First, I was interested to see whether in a jurisdiction like Australia - where racial vilification is subject to civil and criminal proscription - the writing of history may at some point become unlawful. And second, I sought to use history denial as a case study to test the key free speech arguments regarding Australian racial vilification laws made in

Chapters Three and Four. In particular, whether the low harm threshold in section

18C of the RDA and the criminal racial vilification laws more generally do, in fact, pose a significant threat to valuable public discourse on race-related issues. The

339

relevant question in this context was, then, whether Australian racial vilification law

could regulate unlawful history denial without proscribing or chilling controversial

but bona fide historical scholarship. It was shown to be a free speech question of

wider import for its answer would signal the likely legal treatment of scholarship more generally that makes a controversial argument on the issue of race.

I concluded that history denial can, indeed, amount to unlawful racial vilification in

Australia. But in order to do so it was first necessary to consider the logically prior and interesting question of whether law can ever make a reasonable assessment and determination on matters of the historical record. My analysis demonstrated that law is mostly ill equipped to make definitive judgments on the past but is institutionally capable of assessing the quality and veracity of a historiography so long as the historical record relevant to the justiciable issue is sufficiently detailed and available for scrutiny through the court processes of cross-examination and expert evidence.

However, it was found that Australian racial vilification laws – with two notable exceptions – can regulate unlawful history denial without proscribing or chilling controversial but bona fide historical scholarship. Only section 18C of the RDA and the Western Australian strict or negligent liability offences were problematic in this regard. The former as its low harm threshold makes it too easy for a person to make a claim of racial vilification against a (controversial) historian and the latter for an account may attract a serious criminal penalty in the absence of a subjective fault requirement. And in both instances the possibility of a free speech/public interest defence will not quell the serious chilling capacity of these laws for the historian must either settle the (civil) complaint or endure the cost and stigma of defending the complaint in a civil or criminal trial. My analysis confirmed that these laws do pose a

340

real threat to controversial but bona fide historical and race scholarship. In doing so, it lent support to the key free speech arguments made in Chapters Three and Four and the proposal for legislative reform that was outlined.

In conclusion, the following propositions have emerged from this thesis:

• First, the implied freedom sets down important constitutional parameters for

laws where political communication may form part of the conduct to be

regulated. However, before the proper scope of the implied freedom can be

ascertained and what kind of laws may be constitutionally vulnerable as a

consequence, what counts as political communication must first be

determined. This requires reference to a rationale for or theory of the implied

freedom for the text and structure of the Australian Constitution – the source

of the implied freedom– do not reveal those communications that are

necessary for the effective operation of the system of representative and

responsible government for which the Constitution provides.

• Second, my analysis demonstrated that the primary rationale of the implied

freedom is a minimalist model of judicially-protected popular sovereignty.

This rationale requires that a generous zone of communication attract

constitutional protection to account for the limited institutional capacity of the

judiciary to delineate political from non-political communication and to

provide the robust and broad-ranging public discourse needed for the

sovereignty of the people to be meaningfully exercised. It also revealed –

through the application of the ‘likely audience test’ – that some instances of

racial vilification will amount to constitutionally protected political

communication.

341

• Third, as Australian racial vilification laws civilly and criminally proscribe

racial vilification - including those instances that amount to constitutionally

protected political communication – they necessarily infringe the implied

freedom to this extent. However, the constitutional parameters set down by the

implied freedom as outlined in Chapters One and Two still provide Australian

parliaments with significant scope to regulate racial vilification without,

ultimately, risking legislative invalidity. And my analysis demonstrated that –

with the exception of the Western Australian strict or negligent liability

offences – Australian racial vilification laws do fall within these constitutional

parameters. That is, even though the terms of the laws are not always the least

restrictive of the implied freedom, they are still effective, appropriate or

rational means to secure the legitimate, indeed compelling constitutional end

of addressing the problem of racism and the serious harms and inequalities

that it engenders and do so in a manner that bestow benefits (eg. provision of a

remedy to victims which protects their personal liberty and freedom of speech

and promotes substantive legal equality as a consequence) which clearly

outweigh their detriment to political communication.

• Fourth, my critical evaluation of existing laws demonstrated the need for

fundamental reform if the law is to play a meaningful role in the regulation of

racial vilification in Australia. To this end, racial vilification laws must be

sensitive to valuable, legitimate and constitutional freedom of speech, possess

sufficient clarity and precision and – in the case of criminal laws - be

compatible with the existing criminal law frameworks. A racial vilification

law that meets these criteria – such as the penalty enhancement statute

342

outlined in Chapter Four – strengthens the rule of law and provides the State

with a useful regulatory tool to tackle this insidious and complex problem.

• Finally, the history denial case study undertaken in Chapter Five made clear

that racial vilification laws do have and can play an important (though limited)

role in the regulation of this harmful and dangerous form of conduct. But the

limited nature of this role must be kept firmly in mind, for the law is not and

will never be a panacea for the root causes of racial vilification. These are

complex, polycentric and deep lying.4 Acts of unlawful racial vilification are

often simply the tangible manifestation of attitudes and prejudices formed in a

person over time through a mix of social, economic, cultural, political,

religious and familial events and influences. It is certainly reasonable and

prudent in my view to have precise and well-targeted laws to proscribe and

punish this conduct but policy and law-makers should not overestimate the

ability of (racial vilification) law to effect grass roots attitudinal and

behavioural changes on matters of race.

4 See for example William Brustein, Roots of Hate: Anti-Semitism in Europe before the Holocaust (2003).

343

LIST OF REFERENCES

Adler, A, ‘What’s Left?: Hate Speech, Pornography and the Problem for

Artistic Expression’ (1996) 84 California Law Review 1499.

Akmeemana, S, and Jones, M, ‘Fighting Racial Hatred’ in

Commonwealth of Australia, Race Discrimination Commissioner, The Racial

Discrimination Act: A Review, Australian Government Publishing Service:

Canberra, 1995.

Arcioni, E, ‘Developments in Free Speech Law: Coleman and

Mulholland’ (2005) 33 Federal Law Review 333.

Aroney, N, Freedom of Speech in the Constitution, The Centre for

Independent Studies: Sydney, 1998.

Ashworth, A, Principles of Criminal Law, Oxford University Press:

Oxford, 5th ed, 2006.

Attwood, B and Foster, SG, (eds), Frontier Conflict: The Australian

Experience, National Museum of Australia: Canberra, 2003.

Auster, L, The Path to National Suicide: An Essay on Immigration and

Multiculturalism, American Immigration Control Foundation: Monterey, Va,

1990.

Australian Law Reform Commission, Multiculturalism and the Law, The

Commission: Sydney, 1992.

Australian Law Reform Commission, Review of Sedition Laws:

Discussion Paper No. 71, Australian Law Reform Commission: Canberra,

May 2006.

Baker, E, Human Liberty and Freedom of Speech, Oxford University

Press: New York, 1989.

344

Barak, A, Judicial Discretion, Yale University Press: New Haven, 1987.

Barendt, E, Freedom of Speech, Clarendon Press: New York, 2nd ed, 2005.

Barendt, E, ‘Free Speech in Australia: A Comparative Perspective’

(1994) 16 Sydney Law Review 149.

Barendt, E, ‘Importing United States Free Speech Jurisprudence?’ in

Campbell, T, and Sadurski, W, (eds), Freedom of Communication, Aldershot:

Brookfield, Vt, 1994.

Bates, G, Environmental Law in Australia, LexisNexis Butterworths:

Sydney, 5th ed, 2002.

Bauer, Y, ‘Holocaust Denial: After the David Irving Trial’ (2003) 15(1)

Sydney Papers 154.

Bindman, G, ‘Incitement to Racial Hatred in the United Kingdom: Have

We Got The Law We Need?’ in Sandra Coliver (ed), Striking a Balance: Hate

Speech, Freedom of Expression and Non-Discrimination, Article 19

International Centre Against Censorship: London, 1992, 260.

Blackford, R, ‘Free Speech and Hate Speech’ (2001) 45 Quadrant 10.

Blackshield, A, and Williams, G, Australian Constitutional Law and

Theory: Commentary and Materials, Federation Press: Sydney, 4th ed, 2006.

Blackshield, A, ‘The Implied Freedom of Communication’ in Lindell, G,

(ed), Future Directions in Australian Constitutional Law: Essays in Honour of

Professor Leslie Zines, Federation Press: Sydney, 1994, 253.

Bollinger, L, The Tolerant Society: Freedom of Speech and Extremist

Speech in America, Oxford University Press: New York, 1986.

Bork, R, The Tempting of America: The Political Seduction of the Law,

Touchstone: New York, 1990.

345

Borovoy, AA, When Freedoms Collide: The Case for our Civil Liberties,

Lester & Orpen Dennys: Toronto, 1988.

Bower, GS, The Code of the Law of Actionable Defamation, Butterworth:

London, 2nd ed, 1923.

Boyce, J, ‘Fantasy Island’ in Manne, R, (ed) Whitewash: On Keith

Windschuttle's Fabrication of Aboriginal History, Black Inc.: Melbourne,

2003, 69.

Brigham, CC, A Study of American Intelligence, Princeton University

Press: New Jersey, 1923.

Brison, S, ‘The Autonomy Defense of Free Speech’ (1998) 108 Ethics

312.

Bronitt, S, and McSherry, B, Principles of Criminal Law, Thomson

Lawbook: Sydney, 2nd ed, 2005.

Bronitt, S, and Williams, G, ‘Political Freedom as an Outlaw: Rupublican

Theory and Political Protest’ (1996) 18 Adelaide Law Review 289.

Brown, D, et al, Brown Farrier Neal and Weisbrot’s Criminal Laws,

Federation Press: Sydney, 4th ed, 2006.

Brustein, W, Roots of Hate: Anti-Semitism in Europe before the

Holocaust, Cambridge University Press: New York, 2003.

Burney, E, and Rose, G, Racist Offences – How is the Law Working?:

The Implementation of the Legislation on Racially Aggravated Offences in the

Crime and Disorder Act 1998, Home Office Research Study 244, Home

Office Research: London, July 2002.

346

Buss, W, ‘Constitutional Words About Words: Protected Speech and

“Fighting Words” Under the Australian and American Constitutions’ (2006)

15 Transnational Law and Contemporary Problems 489.

Butler, J, Excitable Speech: A Politics of the Perfomative, Routledge:

New York, 1997.

Calleros, C, ‘Paternalism, Counterspeech and Campus Hate-Speech

Codes: A Reply to Delgado and Yun’ (1995) 27 Arizona State Law Journal

1249.

Cameron, J, ‘The Past, Present, and Future of Expressive Freedom under

the Charter’ (1997) 35 Osgoode Hall Law Journal 1.

Campbell, T, ‘Democratic Aspects of Ethical Positivism’ in Campbell, T,

and Goldsworthy, J, (eds), Judicial Power, Democracy and Legal Positivism,

Aldershot: Brookfield, Vt, 2000.

Campbell, T, ‘Democracy, Human Rights and Positive Law’ (1994) 16

Sydney Law Review 195.

Campbell, T, ‘Rationales for Freedom of Communication’ in Campbell,

T, and Sadurski, W, Freedom of Communication, Aldershot: Brookfield, Vt,

1994.

Cane, P, ‘Taking Disagreement Seriously: Courts, Legislatures and the

Reform of Tort Law’ (2005) 25 Oxford Journal of Legal Studies 416.

Card, R, Card, Cross & Jones Criminal Law, Butterworths: London, 15th ed, 2001.

Carr, EH, What is History?, Penguin Books: Harmondsworth, 1964.

Cass, D, ‘Through the Looking Glass: The High Court and the Right to

Political Speech’ in Campbell, T, and Sadurski, W, Freedom of

Communication, Aldershot: Brookfield, Vt, 1994.

347

Catlin, S, ‘A Proposal for Regulating Hate Speech in the United States:

Balancing Rights Under the International Covenant on Civil and Political

Rights’ (1994) 69 Notre Dame Law Review 771.

Ch’ang, S, Legislating Against Racism: Racial Vilification Laws in New

South Wales’ in Coliver, S, (ed), Striking a Balance: Hate Speech, Freedom of

Expression and Non-Discrimination, Article 19 International Centre Against

Censorship: London, 1992.

Chemerinsky, E, Constitutional Law, Aspen Publishers: New York, 2nd

ed, 2005.

Chesterman, M, Freedom of Speech in Australian Law: A Delicate Plant,

Aldershot: Ashgate, 2000.

Chesterman, M, ‘When Is a Communication “Political”?’ (2000) 14(2)

Legislative Studies 5.

Cleaver, E, Soul on Ice, Panther Books Ltd: London, 1970.

Collins, K, and Sampford, K, Laws Against Inciting Racial or Religious

Vilification in Queensland and Australia: The Anti-Discrimination Bill 2001,

Research Bulletin No 1/01, Queensland Parliamentary Library: Brisbane,

2001.

Constitutional Convention (1897), Official Report of the National

Australasian Convention Debates (Adelaide), C E Bristow: Adelaide, 1897.

Cooper, J, and Williams, AM, ‘Hate Speech, Holocaust Denial and

International Human Rights Law’ (1999) 6 European Human Rights Law

Review 593.

348

Criminal Law Officers Committee of the Standing Committee of

Attorneys-General, ‘Model Criminal Code: Chapter 2 - General Principles of

Criminal Responsibility - Final Report’, Australian Government Publishing

Service: Canberra, 1992.

Defeis, E, ‘Freedom of Speech and International Norms: A Response to

Hate Speech’ (1992) 29 Stanford Journal of International Law 29.

Delgado, R, and Stefancic, J, ‘Hateful Speech, Loving Communities:

Why our Notion of “A Just Balance” Changes so Slowly’ (1994) 82

California Law Review 851.

Delgado, R, and Yun, D, ‘”The Speech we Hate: First Amendment

Totalism, the ACLU and the Principle of Dialogic Politics’ (1995) 27 Arizona

State Law Journal 1281.

Dixon, O, Woinarski, J, (ed), Jesting Pilate: and Other Papers and

Addresses, Law Book Co.: Melbourne, 1965.

Douglas, L, ‘Policing the Past: Holocaust Denial and the Law’ in Post, R,

(ed), Censorship and Silencing: Practices of Cultural Regulation, Getty

Research Institute for the History of Art and the Humanities: Los Angeles,

1998, 67.

Doyle, J, ‘Implications of Judicial Law-Making’ in Saunders, C, (ed),

Courts of Final Jurisdiction – The Mason Court in Australia, Federation

Press; Sydney, 1996.

Dworkin, R, Law’s Empire, Harvard University Press: Cambridge, 1986.

Dworkin, R, Political Judges and the Rule of Law. British Academy:

London, 1980.

Dworkin, R, Taking Rights Seriously, Duckworth: London, 1977.

349

Endicott, T, The Impossibility of the Rule of Law (1999) 19 Oxford

Journal of Legal Studies 1.

Ely, JH, Democracy and Distrust: A Theory of Judicial Review, Harvard

University Press: Cambridge, 1980.

Evans, R, In Defence of History, Granta: London, 1997.

Evans, R, Telling Lies About Hitler: The Holocaust, History and the

David Irving Trial, Verso: London, 2002.

Evans, S, and Stone, A, ‘Developments: Freedom of Speech and Insult in

the High Court of Australia’ (2006) International Journal of Constitutional

Law (forthcoming).

Evans, S, ‘The Rule of Law, Constitutionalism and the MV Tampa’

(2002) 13 Public Law Review 94.

Evans, S, ‘Why Is the Constitution Binding? Authority, Obligation and

the Role of the People’ (2004) 25 Adelaide Law Review 103.

Faulkner, W, Requiem for a Nun, Random House: New York, 1951.

Finn, P, ‘Law and History in Four Parts’ (2005) Australia & New

Zealand Law & History E-Journal 239.

Fish, S, ‘Holocaust Denial and Academic Freedom’ (2001) 35 Valparaiso

University Law Review 499.

Fish, S, There’s No Such Thing as Free Speech and It’s a Good Thing

Too, Oxford University Press: New York, 1994.

Fish, S, The Trouble With Principle, Harvard University Press:

Cambridge, 1999.

Fiss, O, ‘Free Speech and Social Structure’ (1986) 71 Iowa Law Review

1405.

350

Fiss, O, The Irony of Free Speech, Harvard University Press: Cambridge,

1996.

Fleming, J, The Law of Torts, LBC Information Services: Sydney, 9th ed,

1998.

Fraser, A, ‘False Hopes: Implied Rights and Popular Sovereignty in the

Australian Constitution’ (1994) 16 Sydney Law Review 213.

Fraser, A, ‘It’s Alright Ma, I’m Only Bleeding’ (1989) 14 Legal Service

Bulletin 69.

Freckelton, I, ‘Censorship and Vilification Legislation’ (1994) 1

Australian Journal of Human Rights 327.

Frieberg, A, Pathways to Justice: Sentencing Review 2002, Sentencing

Advisory Council: Melbourne, 2002.

Fuller, L, The Morality of Law, Yale University Press: New Haven, 1964.

Galligan, B, ‘Parliamentary Responsible Government and the Protection

of Rights’ (1993) 4 Public Law Review 100.

Gelber, K, ‘Implementing Racial Anti-Vilification Laws in New South

Wales 1989-1998: A Study’ (2000) 59 Australian Journal of Public

Administration 13.

Gelber, K, Speaking Back: The Free Speech versus Hate Speech Debate,

J. Benjamins Publishing Co.: Amsterdam, 2002.

Gentles, J, ‘A Legal Remedy for Sexual Injustice’ (1995) 5 Australasian

Gay and Lesbian Law Journal 65.

Gilles, P, Criminal Law, Law Book Co: Sydney, 3rd ed, 1993.

Glass, A, ‘Australian Capital Television and the Application of

Constitutional Rights’ (1995) 17 Sydney Law Review 29.

351

Gleeson, M, The Rule of Law and the Constitution, ABC Books: Sydney,

2000.

Glendon, MA, Rights Talk: The Impoverishment of Political Discourse,

The Free Press: New York, 1991.

Goldberg, A, ‘Criminal or Civil Sanctions? – Legislating to Proscribe

Incitement to Racial Hatred’ (1990) 1 Without Prejudice 27.

Goldsworthy, J, ‘Constitutional Implications and Freedom of Political

Speech: A Reply to Stephen Donaghue’ (1997) 23 Monash University Law

Review 362.

Goldsworthy, J, ‘Implications in Language, Law and the Constitution’ in

Lindell, G, (ed), Future Directions in Australian Constitutional Law: Essays

in Honour of Professor Leslie Zines, Federation Press: Sydney, 1994.

Goldsworthy, J, ‘Interpreting the Constitution in its Second Century’

(2000) 24 Melbourne University Law Review 677.

Goldsworthy, J, ‘Originalism in Constitutional Interpretation’ (1997) 25

Federal Law Review 1.

Goode, M, ‘Stalking: Crime of the Nineties?’ (1995) 19 Criminal Law

Journal 21.

Grant, M, The Passing of the Great Race, Charles Scribner’s Sons: New

York, 1919.

Greenawalt, K, ‘Insults and Epithets: Are They Protected Speech?’

(1990) 42 Rutgers Law Review 287.

Gummow, W, Change and Continuity: Statute, Equity and Federalism,

Oxford University Press: Oxford, 1999.

Guttenplan, DD, The Holocaust on Trial, Granta: London, 2001.

352

Hart, HLA, Law, Liberty and Morality, Oxford University Press: Oxford,

1963.

Hill, G, “Originalist’ vs ‘Progressive’ Interpretations of the Constitution:

Does it Matter?’ (2000) 11 Public Law Review 159.

Hill, LE, ‘The Trial of Ernst Zundel: Revisionism and the Law in

Canada.’ (1989) 6 Simon Wiesenthal Center Annual 165.

Hennessy, N and Smith, P, ‘Have We Got it Right? NSW Racial

Vilification Laws Five Years’ (1994) 1 Australian Journal of Human Rights

249.

Himma, KE, Judicial Discretion and the Concept of Law (1999) 19

Oxford Journal of Legal Studies 71.

Hocking, J Terror Laws: ASIO, Counter-Terrorism and the Threat to

Democracy, University of NSW Press: Sydney, 2004.

Hogg, P, Constitutional Law of Canada, Thomson: Carswell, 2004.

Human Rights and Equal Opportunity Commission, Bringing Them

Home: National Inquiry into the Separation of Aboriginal and Torres Strait

Islander Children from their Families, Australian Government Publishing:

Canberra, 1997.

Human Rights and Equal Opportunity Commission, Racist Violence:

Report of National Inquiry into Racist Violence in Australia, Australian

Government Publishing Service: Canberra, 1991.

Hunter, J, Cameron, C, and Henning, T, Litigation II: Evidence and

Criminal Process, LexisNexis Butterworths, 7th ed, 2005.

Hurd, HM and Moore, MS, ‘Punishing Hatred and Prejudice’ (2004) 56

Stanford Law Review 1081.

353

Hurd, HM, ‘Why Liberals Should Hate “Hate Crime Legislation”’ (2001)

20 Law and Philosophy 215.

Irving, H, To Constitute a Nation: A Cultural History of Australia’s

Constitution, Cambridge University Press: Cambridge, 1997.

Jamar, S, ‘Destructive Messages: How Hate Speech Paves the Way for

Harmful Social Movements’ (2003) 46 Howard Law Journal 499.

Jefferey, A, The Truth About the Truth Commission, South African

Institute for Race Relations: Johannesberg, 2001.

Jenkins, K, Re-thinking History, Routledge: New York, 1991.

Johnson Jr, FM, ‘The Role of the Federal Courts in Institutional

Litigation’ (1981) 32 Alabama Law Review 271.

Jones, A, ‘Racial Vilification Laws: A Solution for Australian Racism’

(1994) 1 Australian Journal of Human Rights 140.

Jones, J, ‘Holocaust Denial – “Clear and Present” Racial Vilification’

(1994) 1 Australian Journal of Human Rights 169.

Jones, M, ‘Empowering Victims of Racial Hatred by Outlawing Spirit

Murder’ (1994) 1 (1) Australian Journal of Human Rights 299.

Jones, M, ‘The Legal Response: Dealing with Hatred – A User’s Guide’

in Chris Cunneen, David Fraser, Stephen Tomsen (eds), Faces of Hate: Hate

Crimes in Australia, Federation Press: Sydney, 1997.

Kalven Jr, H, ‘The Metaphysics of the Law of Obscenity’ (1960) Supreme Court

Review 1.

Kennedy, R, Nigger: The Strange Career of a Troublesome Word,

Vintage Books: New York, 2003.

Kennett, G, ‘Individual Rights, the High Court and the Constitution’

354

(1994) 19 Melbourne University Law Review 581.

Kennett, G, ‘The Freedom Ride: Where to Now?’ (1998) 9 Public Law

Review 111.

Kirby, M, ‘Constitutional Interpretation and Original Intent: A Form of

Ancestor Worship?’ (2000) 24 Melbourne University Law Review 1.

Kirby, M, ‘Living With Legal History in the Courts’ (2003) 7 Australian

Journal of Legal History 17.

Kirby, M, Through the World’s Eye, Federation Press: Sydney, 2000.

Kirk, J, ‘Constitutional Guarantees, Characterisation and the Concept of

Proportionality’ (1997) 21 Melbourne University Law Review 1.

Kirk, J, ‘Constitutional Implications (1): Nature, Legitimacy,

Classification, Examples’ (2000) 24 Melbourne University Law Review 645.

Kirk, J, ‘Rights, Review and Reasons for Restraint’ (2001) 23 Sydney

Law Review 19.

Korengold, M, ‘Lessons in Confronting Racist Speech: Good Intentions,

Bad Results and Article 4(a) of the Convention on the Elimination of All

Forms of Racial Discrimination’ (1993) 77 Minnesota Law Review 719.

Krygier, M Civil Passions: Selected Writings, Black Inc: Melbourne,

2005.

Krygier, M, and van Kriekan, R, ‘The Character of the Nation’ in Robert

Manne (ed) Whitewash: On Keith Windschuttle's Fabrication of Aboriginal

History, Black Inc: Melbourne, 2003, 82.

Lacey, N, Well, C and Quick, O, Reconstructing Criminal Law: Text and Materials,

LexisNexis: London, 3rd ed, 2003.

355

La Nauze, J, The Making of the Australian Constitution, Melbourne

University Press: Carlton, 1972.

Laster, K, ‘A Justified Omission’ (1989) 14 Legal Service Bulletin 258.

Levinson, S, ‘Trials, Commissions and Investigating Committees: The

Elusive Search for Norms of Due Process’ in Rothberg, R and Thompson, D,

Truth v Justice: The Morality of Truth Commissions, Princeton University

Press: New Jersey, 2000.

Lindell, G, ‘Justiciability’ in Blackshield, A, Coper, M, and Williams, G,

(eds), The Oxford Companion to the High Court of Australia, Oxford

University Press: South Melbourne, 2001, 391.

Lindell, G, ‘Responsible Government’ in Finn, P, (ed), Essays on Law

and Government: Volume 1 Principles and Values, Law Book Co: Sydney,

1995.

Lindell, G, ‘The Constitutional and Other Significance of Roberts v Bass

— Stephens v West Australian Newspapers Ltd Reinstated?’ (2003) 14 Public

Law Review 201.

Lipstadt, D, Denying the Holocaust: The Growing Assault on Truth and

History, Free Press: New York, 1993.

Lipstadt, D, ‘Irving v Penguin UK and Deborah Lipstadt: Building a

Defense Strategy’ (2002) 27 Nova Law Review 243.

Lynch, A, ‘Is Judicial Dissent Constitutionally Protected?’ (2004) 4

Macquarie Law Journal 81.

Lynch, A, ‘The High Court – Legitimacy and Change’ (2001) 29 Federal

Law Review 295.

356

Maher, L, ‘Free Speech and its Postmodern Adversaries’ (2001) 8

Murdoch University Electronic Journal of Law 1.

Maher, L, ‘Migration Act Visitor Entry Controls and Free Speech: The

Case of David Irving’ (1994) 16 Sydney Law Review 358.

Mahoney, K, ‘Hate Vilification Legislation and Freedom of Expression’

(1994) 1 (1) Australian Journal of Human Rights 353.

Malik, M, ‘”Racist Crime”: Racially Aggravated Offences in the Crime

and Disorder Act 1998 Part II’ (1999) 62 Modern Law Review 409.

Manne, R, (ed) Whitewash: On Keith Windschuttle's Fabrication of

Aboriginal History, Black Inc: Melbourne, 2003.

Mason, A, ‘The High Court as Gatekeeper’ (2000) 24 Melbourne

University Law Review 784.

Mason, K, ‘The Rule of Law’ in in Finn, P, (ed), Essays on Law and

Government: Volume 1 Principles and Values, Law Book Co: Sydney, 1995.

Matsuda, M, et al, Words That Wound: Critical Race Theory, Assaultive

Speech, and the First Amendment, Westview Press: Boulder, Colo, 1993.

McCamish, C, ‘The Use of Historical Materials in Interpreting the

Commonwealth Constitution’ (1996) 70 Australian Law Journal 638.

McHugh, M, The Growth of Legislation and Litigation (1995) 69

Australian Law Journal 37.

McHugh, M, ‘The Judicial Method’ (1999) 73 Australian Law Journal

37.

McIntyre, S, and Clark, A, The History Wars, Melbourne University

Publishing: Carlton, 2003.

McKinnon, C, Only Words, Harvard University Press: Cambridge, 1993.

357

McNamara, Lawrence, ‘History, Memory and Judgment: Holocaust Denial, The

History Wars and Law’s Problems with the Past’ (2004) 26 Sydney Law

Review 375.

McNamara, Lawrence, ‘Long Stories, Big Pictures: Racial Slurs, Legal Solutions

and Playing the Game’ (1998) 10 Australian Feminist Law Journal 85.

McNamara, Lawrence, ‘Sport, Spectators and Traditions of Hatred: Responding

to Racist Abuse’ (2001) 10 Griffith Law Review 99.

McNamara, Lawrence, ‘Tackling Racial Hatred: Conciliation, Reconciliation and

Football’ (2000) 6 Australian Journal of Human Rights 5.

McNamara, Lawrence, ‘The Things You Need: Racial Hatred, Pauline Hanson

and the Limits of Law’ (1998) 2 Southern Cross University Law Review 92.

McNamara, Luke, ‘Confronting the Reality of Hate Speech’ (1995) 20

Alternative Law Journal 231.

McNamara, Luke, ‘Negotiating the Contours of Unlawful Hate Speech:

Regulation Under Provincial Human Rights Law in Canada’ (2005) 38

University of British Columbia Law Review 1.

McNamara, Luke, Regulating Racism: Racial Vilification Laws in Australia,

Institute of Criminology, University of Sydney Law School: Sydney, 2002.

McNamara, Luke and Solomon, T, ‘The Commonwealth Racial Hatred Act

1995: Achievement or Disappointment’ (1996) 18 Adelaide Law Review 259.

McNamara, Luke, ‘The Merits of Racial Hatred Laws: Beyond Free Speech’

(1995) 4 Griffith Law Review 29.

McQueen, R, ‘Why High Court Judges Make Poor Historians: The

358

Corporations Act Case and Early Attempts to Establish a National System of

Company Regulation in Australia’ (1990) 19 Federal Law Review 245.

Meagher, D, ‘The “Fighting Words” Doctrine: Off the First Amendment

Canvas and Into the Implied Freedom Ring?’ (2005) 28 University of New

South Wales Law Journal 856.

Meagher, D, ‘The “tragic” High Court decisions in Al-Kateb and Al Khafaji: The

triumph of the “plain fact” interpretive approach and constitutional form over

substance’ (2005) 7 Constitutional Law and Policy Review 69.

Meiklejohn, A, Political Freedom: The Constitutional Powers of the

People, Harper: New York, 1965.

Meiklejohn, A, ‘The First Amendment Is an Absolute’ [1961] Supreme

Court Review 245.

Meiklejohn, A, ‘What does the First Amendment mean?’ (1953) 20 University of

Chicago Law Review 461.

Menzies, R, Central Power in the Australian Commonwealth, University

Press of Virginia: Charlottesville, 1967.

Merritt, G, (ed), Pauline Hanson – The Truth, St George Publications:

Parkholme, 1997.

Mill, JS, On Liberty, Longmans: London, 1865.

Milmo, P, and Rogers, WVH, Gatley on Libel and Slander, Sweet &

Maxwell: London, 2004.

Modeste, PN, ‘Race Hate Speech: The Pervasive Badge of Slavery That

Mocks the Thirteenth Amendment’ (2001) 44 Howard Law Journal 311.

Monahan, P, ‘Judicial Review and Democracy: A Theory of Judicial

Review’ (1987) University of British Columbia Law Review 87.

359

Moore, H, The Constitution of the Commonwealth of Australia, Maxwell:

Melbourne, 2nd ed, 1910.

Moses, J, ‘Hate Speech: Competing Rights to Freedom of Expression’

(1996) 8 Auckland University Law Review 185.

Nash, G, and Bagaric, M, Criminal Legislation Victoria 2004,

LexisNexis Butterworths: Sydney, 2004.

Nemes, I, ‘Regulating Hate Speech in Cyberspace: Issues of Desirability

and Efficacy’ (2002) 11 Information and Communication Technology Law

193.

Nygh, P, and Butt, P, (eds) Butterworths Concise Australian Legal

Dictionary, LexisNexis: Sydney, 3rd ed, 2004.

Ogilvie, E, Stalking: Legislative, Policing and Prosecution Patterns in

Australia, Australian Institute of Criminology: Canberra, 2000.

Patapan, H, Judging Democracy, Cambridge University Press:

Cambridge, 2000.

Pearce, D, and Geddes, R, Statutory Interpretation, Butterworths:

Sydney, 4th ed, 1996.

Post, R, ‘Meiklejohn’s Mistake: Individual Autonomy and the Reform of

Public Discourse’ (1993) 64 University of Colorado Law Review 1118.

Raz, J, Ethics and the Public Domain: Essays in the Morality of Law and

Politics, Oxford University Press: Oxford, 1994.

Raz, J, The Authority of Law, Oxford University Press: New York, 1979.

Reid, S, and Smith, R, ‘Regulating Racial Hatred’ (Paper no.79,

Australian Institute of Criminology Trends and Issues in Crime and Criminal

Justice Series, Australian Institute of Criminology: Canberra, 1998.

360

Reilly, A, ‘The Ghost of Truganini: Use of Historical Evidence as Proof

of Native Title’ (2000) 28 Federal Law Review 453.

Reynolds, H, ‘Terra Nullius Reborn’ in Robert Manne (ed) Whitewash:

On Keith Windschuttle's Fabrication of Aboriginal History, Black Inc:

Melbourne, 2003, 133.

Rishworth, P, et al (eds) The New Zealand Bill of Rights, Oxford

University Press: Auckland, 2003.

Ritter, D, ‘The Judgement of the World: The Yorta Yorta Case and the

“Tide of History”’ (2004) 35 Australian Historical Studies 106.

Ritter, D, ‘Whither the Historians’ (1999) 4 Indigenous Law Bulletin 4.

Robbins, I, ‘Double Inchoate Crimes’ (1989) 26 Harvard Journal on

Legislation 31.

Robertson, G, and Nicol, A, Media Law, Penguin: London, 3rd ed, 1992.

Rosenau, PM, Post-Modernism and the Social Sciences: Insights, Inroads

and Intrusions, 1992.

Rosenberg, G, The Hollow Hope: Can Courts Bring About Social

Change, University of Chicago: Chicago, 1991.

Rosenberg, G, and Williams, J, ‘Do Not Go Gently into That Good Right:

The First Amendment in the High Court of Australia’ [1997] Supreme Court

Review 439.

Sackville, R, ‘How Fragile are the Courts? Freedom of Speech and

Criticism of the Judiciary’ (2005) 31 Monash University Law Review 191.

Sadurski, W, Freedom of Speech and Its Limits, Dordrecht: London,

1999.

Sadurski, W, ‘Offending with Impunity: Racial Vilification and Freedom

361

of Speech’ (1992) 14 Sydney Law Review 163.

Sadurski, W, ‘On “Seeing Speech Through an Equality Lens”: A Critique

of Egalitarian Arguments for Suppression of Hate Speech and Pornography’

(1996) 16 Oxford Journal of Legal Studies 713.

Saul, B, ‘Preventing Communal Violence? Blurring Sedition, Vilification

and Terrorism’ (2005) Human Rights Defender (November/December 2005)

16.

Saul, B, ‘Speaking of Terror: Criminalising Incitement to Violence’

(2005) 28 University of New South Wales Law Journal 875.

Scahill, A, ‘Can Hate Speech Be Free Speech?’ (1994) 4 Australasian

Gay and Lesbian Law Journal 1.

Scalia, A, A Matter of Interpretation: Federal Courts and the Law,

Princeton University Press: New Jersey, 1997.

Scalia, A, ‘The Rule of Law as a Law of Rules’ (1989) 56 University of

Chicago Law Review 1175.

Scanlon, T, ‘A Theory of Freedom of Expression’ (1972) 1 Philosophy

and Public Affairs 204.

Schauer, F, Free Speech: A Philosophical Enquiry, Cambridge University

Press: Cambridge, 1982.

Schauer, F, ‘Free Speech in a World of Private Power’ in Campbell, T,

and Sadurski, W, Freedom of Communication, Aldershot: Brookfield, Vt,

1994.

Schauer, F, ‘Uncoupling Free Speech’ (1992) 92 Columbia Law Review

1321.

Selway, B, ‘Methodologies of Constitutional Interpretation in the High

362

Court of Australia’ (2003) 14 Public Law Review 234.

Senate Legal and Constitutional Committee, Parliament of Australia,

Provisions of the Anti-Terrorism Bill (No.2) 2005, Senate Printing Unit,

Department of the Senate, Parliament House: Canberra, 2005.

Shea, D, The South African Truth Commission: The Politics of

Reconciliation, United States Institute of Peace Press: Washington DC, 2000.

Shermer, M, and Grobman, A, Denying History: Who Says the Holocaust

Never Happened and Why Do They Say It?, University of California Press:

Berkeley, 2000.

Shultz, DA, (ed), Leveraging the Law: Using the Courts to Achieve

Social Change, Peter Lang: New York, 1998.

Simpson, A, and Wood, M, ‘”A Puny Thing Indeed” – Cheng v The

Queen and the Constitutional Right to Trial by Jury’ (2001) 29 Federal Law

Review 95.

Smith, ATH, Offences Against Public Order: Including the Public Order Act 1986,

Sweet & Maxwell: London, 1987.

Smith, JC, and Hogan, B, Criminal Law, Butterworths: London, 8th ed,

1996.

Smolla, R, Free Speech in an Open Society, Vintage Books: New York,

1992.

Solomon, T, ‘Problems in Drafting Legislation Against Racist Activities’

(1994) 1 (1) Australian Journal of Human Rights 265.

Sopinka, J, ‘Should Speech that Causes Harm be Free’ in Jane Duncan

(ed), Between Speech and Silence: Hate Speech, Pornography and the new

South Africa, Freedom of Expression Institute: Braamfontein, 1996, 134.

363

Spencer, JR, ‘Criminal Libel – A Skeleton in the Cupboard (1)’ (1977)

Criminal Law Review 383.

Spencer, JR, ‘Criminal Libel – A Skeleton in the Cupboard (2)’ (1977)

Criminal Law Review 465.

Spiegel, G, ‘History and Post-Modernism’ (1992) 135 Past and Present

135.

Stein, E, ‘History Against Free Speech: The New German Law Against

“Auchwitz” – And Other – “Lies” (1986) 85 Michigan Law Review 277.

Stolleis, M, The Law under the Swastika: Studies on Legal History in

Nazi Germany, University of Chicago Press: Chicago, 1998.

Stone, A, ‘Case Note: Lange, Levy and the Direction of the Freedom of

Political Communication under the Australian Constitution’ (1998) 21

University of New South Wales Law Journal 117.

Stone, A, ‘Freedom of Political Communication, the Constitution and the

Common Law’ (1998) 26 Federal Law Review 219, 235.

Stone, A, ‘Rights, Personal Rights and Freedoms: The Nature of the

Freedom of Political Communication’ (2001) 25 Melbourne University Law

Review 374.

Stone, A, ‘The Australian Free Speech Experiment and Scepticism about

the UK Human Rights Act’ in Campbell, T, Ewing, KD, and Tomkins, A,

(eds), Sceptical Essays on Human Rights, Oxford University Press: Oxford,

2001, 391.

Stone, A, ‘The Common Law and the Constitution: A Reply’ (2002) 26

Melbourne University Law Review 646.

364

Stone, A, ‘The Limits of Constitutional Text and Structure: Standards of

Review and the Freedom of Political Communication’ (1999) 23 Melbourne

University Law Review 668.

Stone, A, ‘The Limits of Text and Structure Revisited’ (2005) 28

University of New South Wales Law Journal 842.

Story, WK, Writing History: A Guide for Students, Oxford University

Press: New York, 1999.

Sumner, L, The Hateful and the Obscene: Studies in the Limits of Free

Expression, University of Toronto Press: Toronto, 2004.

Sunstein, C, ‘Conduct, Caste’ (1993) 60 University of Chicago Law

Review 795.

Sunstein, C, Democracy and the Problem of Free Speech, The Free Press:

New York, 1993.

Taylor, G, ‘Casting the Net Too Widely: Racial Hatred on the Internet’

25 Criminal Law Journal 260.

Taylor, G, ‘Why the Common Law Should Be Only Indirectly Affected

by Constitutional Guarantees: A Comment on Stone’ (2002) 26 Melbourne

University Law Review 623.

Thornton, M, The Liberal Promise, Oxford University Press: Melbourne,

1990.

Tishler, G, ‘When Academic Freedom and Freedom of Speech Confront

Holocaust Denial and Group Libel: Comparative Perspectives’ (1988) 8

Boston College Third World Law Journal 65.

Tribe, L, American Constitutional Law, Foundation Press: New York, 2nd

ed, 1988.

365

Twomey, A, ‘Laws Against Incitement to Racial Hatred in the United

Kingdom’ (1994) 1 (1) Australian Journal of Human Rights 235.

Van Pelt, RJ, The Case for Auschwitz: Evidence from the Irving Trial,

2002.

Villa-Vicencio, C, and Verwoerd, W (eds), Looking Back, Reaching

Forward, Reflections on the Truth and Reconciliation Commission of South

Africa, University of Cape Town Press: Cape Town, 2000.

Waldron, J, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13

Oxford Journal of Legal Studies 18.

Waldron, J, Law and Disagreement, Oxford University Press: Oxford,

2001.

Waldron, J, The Dignity of Legislation, Cambridge University Press:

Cambridge, 1999.

Walker, B, ‘Memorandum of Advice Re: The Anti-Terrorism Bill 2005

and Proposed Amendments to the Laws of Sedition’ 24 October 2005

prepared for the ABC Media Watch program.

http://abc.net.au/mediawatch/img/2005/ep36/counsel.pdf

Walker, G de Q, The Rule of Law: Foundation of Constitutional

Democracy, Melbourne University Press: Carlton, 1988.

Walker, S, ‘Lange v ABC: The High Court Rethinks the

“Constitutionalisation” of Defamation Law’ (1998) 6 Torts Law Journal 9.

Waller, L, and Williams, CR, Criminal Law: Text and Cases, LexisNexis

Butterworths: Sydney, 10th ed, 2005.

Walters, M, ‘Hate Crimes in Australia: Introducing Punishment

Enhancers’ (2005) 29 Criminal Law Journal 203.

366

Waluchow, WJ, Free Expression: Essays in Law and Philosophy, Clarendon Press:

Oxford, 1994.

Ward, C, ‘The Margin of Appreciation in Australian Jurisprudence’

(2003) 23 Australian Bar Review 189.

Washington, JM (ed), A Testament of Hope: The Essential Writings of

Martin Luther King Jr, Harper & Row: San Francisco, 1986.

Weinstein, J, Hate Speech, Pornography, and the Radical Attack on Free

Speech Doctrine, Westview Press: Boulder, Colo, 1999.

West, C, Race Matters, Vintage Books: New York, 1994.

White, H, Tropics of Discourse: Essays in Cultural Criticism, John

Hopkins University Press: Baltimore, 1978.

Willheim, E, ‘Australia’s Racial Vilification Laws Found Wanting? The

‘Nigger Brown’ Saga: HREOC, the Federal Court, the High Court and the

Committee on the Elimination of Racial Discrimination’ (2003) 4 Asia Pacific

Journal on Human Rights and the Law 86.

Williams, G, Human Rights under the Australian Constitution, Oxford

University Press: South Melbourne, 2002.

Williams, G, ‘Implied Rights Under the Gleeson Court’ (1999) 2

Constitutional Law and Policy Review 44.

Williams, G, ‘Sounding the Core of Representative Democracy: Implied

Freedoms and Electoral Reform’ (1996) 20 Melbourne University of Law

Review 848.

Williams, G, ‘Convictions and Fair Labelling’ (1983) 42 Cambridge Law

Journal 85.

Williams, G, Criminal Law: The General Part, Steven & Sons: London,

367

2nd ed, 1961.

Williams, J, and Bradsen, J, ‘The Perils of Inclusion: The Constitution

and the Race Power’ (1997) 19 Adelaide Law Review 95.

Williams, P, ‘Excluded Voices: Realities in Law and Law Reform’

(1987) 42 University of Miami Law Review 127.

Wilmot, J, and Van de Vijver, L, After the TRC, Reflections on Truth and

Reconciliation in South Africa, David Philips Publishers: Cape Town, 2000.

Windeyer, WSV, ‘The Truth of a Libel’ (1935) 8 Australian Law Journal

319.

Windschuttle, K, The Fabrication of Aboriginal History: Vol 1, Van

Dieman’s Land 1803-1847, Macleay Press: Sydney, 2002.

Winterton, G, ‘Constitutionally Entrenched Common Law Rights:

Sacrificing Means to Ends?’ in Sampford, C, and Preston, K, (eds),

Interpreting Constitutions: Theories, Principles and Institutions, Federation

Press: Sydney, 1996, 121.

Winterton, G, Parliament, the Executive and the Governor-General,

Melbourne University Press: Carlton, 1983.

Winterton, G, 'Popular Sovereignty and Constitutional Continuity' (1998)

26 Federal Law Review 1.

Wolfson, N, Hate Speech, Sex Speech, Free Speech, Praeger: Westport,

Conn, 1997.

Zanghellini, A, ‘Jurisprudential Foundations for Anti-Vilification Laws:

The Relevance of Speech Act and Foucauldian Theory’ (2003) 17 Melbourne

University Law Review 458.

368

Zines, L, The High Court and the Constitution, Butterworths: Sydney, 4th

ed, 1997.

369