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Commission submissions: Clarke

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IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY No. WAD 195/2010

GENERAL DIVISION

NATALIE CLARKE

Applicant



NATIONWIDE NEWS PTY LTD

T/A THE SUNDAY TIMES

Respondent

INTERVENER’S OUTLINE OF SUBMISSIONS

 

Application for leave to intervene

Basis for intervention

  1. On 27 July 2011 the Australian Human Rights Commission filed a motion seeking leave to intervene in this proceeding. The bases upon which leave is sought are set out in the affidavit of the President of the Commission, the Hon Catherine Branson QC, dated 18 July 2011.
  2. In summary, the bases of the proposed intervention are s 11(1)(o) of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act) and s 20(e) of the Racial Discrimination Act 1975 (Cth) (RDA). These sections provide that the Commission has the function of intervening in legal proceedings that involve human rights issues or racial discrimination issues, where the Commission considers it appropriate to do so and with the leave of the court hearing the proceedings, subject to any conditions imposed by the court.
  3. This proceeding involves both human rights issues and racial discrimination issues. These include issues concerning the right of people to be free of discrimination based on race, and the freedom to seek, receive and impart information and ideas.

Why leave to intervene should be granted

  1. The Commission has an interest and expertise in relation to the interpretation of the RDA, the application of the International Convention of the Elimination of all forms of Racial Discrimination (CERD),[1] and racial discrimination issues generally, as set out in paragraphs 14 and 15 of the affidavit of Ms Branson dated 18 July 2011.

  2. The Commission has reviewed the applicant’s outline of submissions filed on 2 August 2011. The Commission’s submissions, set out below, address issues not dealt with by the applicant in her submissions, namely:

    • 5.1. the interpretation of the concepts of “reasonably” and “good faith” as used in s 18D of the RDA;

    • 5.2. what is required in assessing the public interest in the context of s 18D;

    • 5.3. the role of international law in the interpretation of the RDA.
  3. The Commission’s submissions also develop in more detail some matters raised by the applicant, including:

     

    • 6.1. the interpretation and application of ss 18C and 18D of the RDA, in particular:

      • 6.1.1. the relevance of the context in which an act is done;

      • 6.1.2. the requisite causal relationship between the act and the race of a person or group of persons.

    • 6.2. the relevance of the implied freedom of political communication to Part IIA of the RDA, in particular:

       

      • 6.2.1. through an analysis of the High Court’s reasoning in Coleman v Power;

      • 6.2.2. by reference to previous decisions of this Court and of the Commission dealing with the same issue.
  4. The Commission thus offers the Court assistance in relation to the above issues that will likely not be offered by other parties.[2]

Issues on which the Commission makes submissions

  1. If the Commission is granted leave to intervene, it proposes to rely on the following written submissions. These submissions (including those dealing with constitutional law) are the submissions of the Commission and not of the Commonwealth Government. The Commission does not seek leave to make oral submissions.

  2. These submissions deal with:

    • 9.1. the interpretation and application of ss 18C and 18D of the RDA;

    • 9.2. the application of the International Covenant on Civil and Political Rights (ICCPR)[3] and CERD to the interpretation to be given to ss 18C and 18D of the RDA; and

    • 9.3. the relevance of the implied freedom of political communication to Part IIA of the RDA and Part IIB of the AHRC Act.
  3. The submissions that the Commission seeks to make can be summarised as follows.

Interpretation and application of the RDA

  • 10.1. The question of whether the respondent’s act was “reasonably likely in all the circumstances to offend, insult, humiliate or intimidate” involves the application of an objective test. It will be sufficient if a subset of the broader group of Aboriginal people may reasonably be offended by the act or acts complained of.

  • 10.2. The words “offend, insult, humiliate or intimidate” should be given their ordinary meanings, and regard should be had to historical and current socio-economic disadvantage and racism and the minority position of Aboriginal people in Australia in determining what is “reasonably likely” to offend, insult, humiliate or intimidate.

  • 10.3. The acts complained of should be found to be done “because of” race if one of the reasons for doing the act was the race of the applicant or her children (regardless of whether or not race was the dominant reason or even a substantial reason). A relevant inquiry is whether there is anything to suggest race as a factor in the actions of the respondent.

  • 10.4. The onus of proof with respect to an exemption under s 18D rests with the respondent. The respondent must show that the act or acts complained of were done: reasonably, in good faith, and within terms of one of the particular exemptions relied on by the respondent.

Application of ICCPR and CERD

  • 10.5. The exemptions in s 18D of the RDA should be construed narrowly:

    • 10.5.1. because anti-discrimination legislation, as beneficial and remedial legislation, should be given a liberal construction;

    • 10.5.2. in light of the existence of a norm of non-discrimination on the grounds of race at international law;

    • 10.5.3. in light of the obligations undertaken by Australia in ratifying the ICCPR and CERD; and

    • 10.5.4. because Part IIA of the RDA was drafted bearing in mind the balance between the right to freedom of expression and the protection of individuals and groups from harassment and fear because of their race.

Implied freedom of political communication

  • 10.6. Part IIA is constitutionally valid.

     
  • 10.7. In light of the exemptions in s 18D, Part IIA does not burden freedom of communication about government or political matters, and does not need to be read down to achieve this result. It is difficult to conceive of genuine comment about government or political matters that is insulting or offensive and done because of race. When the exemptions in s 18D are considered, the Commission submits that if such acts are also not objectively reasonable or are not done in good faith (or in one of the fields of activity in s 18D(a) to (c)), then there is no room for them to be the kind of communication contemplated by the implied freedom of political communication.

     
  • 10.8. Alternatively, to the extent that the implied freedom of political communication may be burdened, Part IIA is appropriate and adapted to serve one or more of the following legitimate ends in a manner that is compatible with the system of representative and responsible government prescribed by the Constitution:
    • 10.8.1. the fulfilment of Australia’s international obligations under Arts 19(3)(a) and 20(2) of the ICCPR;

       
    • 10.8.2. the fulfilment of Australia’s international obligations under CERD, in particular (but not limited to) Art 4;

       
    • 10.8.3. eliminating racial discrimination in all its forms.
  1. The Commission does not seek to make submissions about the ultimate issue of whether or not the particular comments alleged by the applicant in fact contravene Part IIA of the RDA.

Legislation

  1. Sections 18C and 18D of the RDA provide as follows:

18C Offensive behaviour because of race, colour or national or ethnic origin

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

(c) is done in the sight or hearing of people who are in a public place.

(3) In this section:

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

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

(c) in making or publishing:

(i) a fair and accurate report of any event or matter of public interest; or

(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.

Reasonably likely to offend, insult, humiliate or intimidate

  1. The factual background to this matter appears to be common ground between the parties.

  2. Ms Natalie Clarke, the applicant, is the mother of three boys killed in a motor vehicle accident on 27 June 2008. One of the boys’ cousins was also killed in the accident. Ms Clarke is an Aboriginal person.

  3. Nationwide News Pty Ltd, the respondent, is the publisher of the Sunday Times newspaper and the PerthNow website. On 28 June 2008, Nationwide News published an article about Ms Clarke’s deceased sons and their cousin. Further articles were published by the respondent in relation to the same incident on 29 June 2008, 3 July 2008, 5 July 2008, 6 July 2008, 11 July 2008, 17 July 2008 and 3 August 2008.

  4. The respondent published a number of comments submitted to the respondent by members of the public for publication along with the articles referred to above.

  5. The applicant claims that the publication by the respondent of a number of comments pleaded and particularised in paragraphs 7.5, 8 and 9 of the Re-amended Statement of Claim contravenes s 18C of the RDA.

  6. It is necessary for the Court to first determine whether the acts complained of are “reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people” under s 18C(1)(a) of the RDA.

  7. The applicant relies on the effect of the comments singly or together and in the context of the articles published by the respondent.

Objective test

  1. The test under s 18C(1)(a) is an objective one.[4] It is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question. Evidence that a member of a particular racial group was in fact offended by the conduct in question, is admissible on, but not determinative of, the issue of contravention.[5]

  2. In the present proceeding, the applicant has given evidence that she was hurt, upset and offended by the comments complained of.[6]

  3. The objective test to be applied is a “reasonable victim test”. The reasonable victim is a reasonable and ordinary person, not particularly susceptible to being roused or incited, with the racial, ethnic or other relevant attributes of the complainant.[7] This test ensures cultural sensitivity when deciding the types of acts that are considered offensive.

Person or group of people affected

  1. It is not necessary to establish that all Aboriginal people may be offended by the acts complained of. It will be sufficient to show that a subset of the broader group of “Aboriginal people” may reasonably be affected by the conduct. For example:

    • 23.1. in McGlade v Lightfoot (at [46]), the relevant group was defined as “an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture”;

    • 23.2. in Creek v Cairns Post (at [13]), the relevant group was defined as “an Aboriginal mother, or one who cares for children, and who resides in the township of Coen [the applicant’s town]”; and

    • 23.3. in Jones v Toben (at [95]-[96]),[8] the relevant group was defined as “members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability”.

Reasonably likely to offend, insult, humiliate or intimidate

  1. The words “offend, insult, humiliate or intimidate” should be given their ordinary English meanings.[9] Various dictionary definitions of these words were set out by Hely J in Jones v Scully (at [103]), by Branson J in Jones v Toben (at [90]), and by French J in Bropho v HREOC (at [67]) which may assist the Court in interpreting them.

  2. Kiefel J in Creek v Cairns Post at [16] stated that the words “offend, insult, humiliate or intimidate” imply “profound and serious effects, not to be likened to mere slights”.[10] This statement was considered by Branson J in Jones v Toben. Branson J stated that she did not understand Kiefel J to have intended that a “gloss” be placed on the ordinary meaning of the words in s 18C (at [92]):

    Rather, I understand Her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to ‘mere slights’ in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult (see also Jones v Scully per Hely J at [102]). It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.

  3. In assessing what is “reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people”, regard should be had to the relative historical and socio-economic positions of the parties. Such an approach is consistent with the “reasonable victim” test described above. The Commission submits that communications about an historically oppressed minority group are far more likely to cause relevant harm to that group than communications which relate to a dominant majority: see Akmeemana and Jones, “Fighting Racial Hatred” in Racial Discrimination Act 1975: A Review (Race Discrimination Commissioner, Commonwealth of Australia, 1995, at pages 151-152); see also the comments of Brown FM in McLeod v Power at [59] and [69]. This context is vital to properly understanding the impact of particular words or actions.

  4. The truth or falsity of a statement is not determinative of whether it can or does constitute racial vilification. A true statement can nevertheless be offensive in the relevant sense.[11]

  5. In these proceedings, the respondent has filed an affidavit given by the Managing Editor of the PerthNow website, Mr Newton. In that affidavit, Mr Newton has accepted that at least some of the comments complained of by the applicant “could be offensive or hurtful”.[12] In particular, Mr Newton identified the comments appearing at subparagraphs 7.5(c), 7.5(e) and 7.5(i) of the Re-amended Statement of Claim. Mr Newton goes on to say that in his view, “it is a balancing act between giving offence or hurt and allowing a valid discussion to take place around a particular issue”. This appears to be a reference to one of the exemptions in s 18D. The relevant exemptions are considered in more detail below.

  6. The Commission does not make any submission about whether the comments identified by Mr Newton or any of the other comments particularised by the applicant are or are not reasonably likely to offend, insult, humiliate or intimidate a person or group of people.

Context

  1. An argument raised in the Amended Defence is that the particular comments complained of by the applicant “formed part of” a series of 114 comments published on 11 July 2008 and 179 comments published on 17 July 2008, and that the particular comments complained of did not carry the alleged imputations “having regard to the totality of those comments”.[13]

  2. This raises for consideration a number of issues, some of which overlap with a consideration of the exemptions in s 18D which are considered in more detail below. These issues are:

    • 31.1. First, whether the approval of each comment was a relevant act by the respondent, or whether the relevant act was the approval of 114 comments over one period and/or 179 comments over another period.

    • 31.2. Secondly, whether the context in which the comments were published should be taken into account in determining whether the comments fell within one of the exceptions in s 18D.

    • 31.3. Thirdly, whether published comments that would otherwise be in breach of s 18C can lose that character if other anodyne or balancing comments are also published.
  3. In relation to the first issue, it appears that each of the comments was considered separately for publication and was separately approved. The comments were published at different times throughout the periods of 11-12 July 2008 (for the 114 comments) and 17 July 2008 – 8 September 2008 (for the 179 comments). There seems to be a reasonable basis to consider the publication of each comment as a separate act.

     
  4. However, even if they were part of the same act, it may still be appropriate to deal with each comment separately when considering whether the exemptions in s 18D(b) and (c) apply. In Bropho v HREOC, French J considered at [115] an argument in relation to a particular cartoon published in a newspaper that: “if there are parts of the work which are not for a public purpose those parts cannot be published with impunity just because they are attached to another part with a purpose which is genuine and in the public interest”. Ultimately, his Honour did not engage in an assessment of whether this had occurred as there was a risk of trespassing into merits review (see [119]). However, his Honour noted (at [116]) that:

    It may well be correct to say that, in considering the application of the exemptions in paras [(b) and (c) of s 18D] it is relevant and necessary to consider the inclusion of material which is calculated simply to insult, offend, humiliate or intimidate persons of a particular race and has no bearing upon any genuine academic, artistic or scientific purpose or other event or matter of public interest.

  5. In relation to the second issue, it will be necessary to consider any act said to breach s 18C in the context in which it is performed.[14] Context may be relevant, for example, in assessing whether the act forms part of a discussion or debate or whether it is fair comment on a matter of public interest. It is necessary, however, to distinguish this second issue from the third issue.

  6. In relation to the third issue, the Commission submits that while each act must be considered in context, particularly in considering the application of the exemptions, it is not appropriate to engage in a process of seeking to assess whether material which is offensive to people of a particular race is balanced by material that is neutral or supportive of such people. The Court should not be asked to engage in an exercise of seeking to take an average of the offence caused across a number of publications. This position finds support in the comments of Lee J in Bropho v HREOC at [142] (his Honour in that case was dissenting as to the result, but these comments do not appear to have been disapproved by the other judges):

    The Commission appears to have been of the view that the proven vice in the act of publication, namely, the reasonably likely consequence that Aboriginal persons would be offended, insulted, humiliated or intimidated was redressed in some manner by prior articles and editorial comment published by WA Newspapers. If that were so, the Commission misdirected itself in a serious respect. Contemporaneous, or prior, publication of anodyne material would not, in itself, make an act of publication done because of race and involving racially offensive material, an act done reasonably and in good faith.

Requisite causal relationship

  1. Section 18C(1)(b) requires that the act complained of is done “because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group”. This necessitates a consideration of the reason or reasons for which the act is done.[15]

  2. Section 18B of the RDA provides that if an act is done for two or more reasons, it is taken to be done because of the person’s race if race is one of the reasons for the act, regardless of whether or not race was the dominant reason or even a substantial reason.

  3. One expression of the relevant inquiry approved by several judges of the Federal Court is “whether anything suggests race as a factor” in the actions of the respondent.[16] This is a distinct question from that asked under s 18C(1)(a). The fact that s 18C(1)(a) is satisfied will not, without more, answer the inquiry in s 18C(1)(b).[17]

  4. In coming to a conclusion that the act was done “because of” race, it is not necessary to have direct evidence about the state of mind of the person engaging in the act. Inferences can be drawn from the act itself and the context in which it is done. In Jones v Toben, Branson J found (at [99]) that the material before her included many references to Jews and events and people characterised as Jewish. Her Honour considered that the material was “plainly calculated to convey a message about Jewish people”. This approach was approved on appeal in Toben v Jones.[18] In McGlade v Lightfoot, the respondent had made comments to a newspaper journalist expressing his views about Aboriginal people. Carr J found at [66] that:

    the evidence establishes that the respondent’s act was done because of the fact that the persons about whom the respondent was talking were of the Australian Aboriginal race or ethnic origin ... there could be no other reason for the respondent’s statements than the race or ethnic origin of the relevant group of people.

  5. The contents of Mr Newton’s affidavit filed on behalf of the respondent are relevant to this question. On the one hand, Mr Newton states that:[19]

    Western Australia, and probably Australia, has a significant problem with youngsters who steal cars, particularly underage and unlicensed youngsters, and kill or injure themselves and their passengers. This is a problem that is not confined to indigenous children.

  6. On the other hand, Mr Newton states in the following paragraph of his affidavit that:[20]

    The incident cannot be divorced, in my opinion, from the issue of well-known problems in aboriginal communities.

  7. Further, the respondent in its Amended Defence pleads that the matters complained of by the applicant related to issues including the following:[21]

     

    • (i) juvenile crime;

       
    • (ii) in particular, juvenile crime constituted by the theft of and unlawful use of motor vehicles by children and young people resulting in accidents and the deaths of those involved because of recklessness;

       
    • (iii) in particular, juvenile crime of the type referred to in (ii) committed by young indigenous people; ...

       
    • (v) parental responsibility for such crimes and the extent to which parents of delinquent juveniles are responsible for such crimes.

    (emphasis added)

  8. It would be open to the Court to find that at least one reason for the publication of the comments (and the approval of those comments by journalists employed by the respondent) was because of the race of the children involved in the accident and their mother.

  9. Part IIA of the RDA contains provisions dealing with vicarious liability. As a result of s 18E, a corporate respondent will be liable for the acts of its employees done in connection with their duties as employees. In the present circumstances, this means that the respondent will be responsible for the actions of employed journalists. Liability will not attach to an employer in circumstances where the employer took all reasonable steps to prevent the employee from doing the act.

  10. In circumstances where a publisher is reproducing comments made by another person, at least one relevant act to consider will be the act of publication. There may be other relevant acts. For example, if comments made by other parties are reviewed and approved prior to publication, then those may also be relevant acts.

  11. The act must be done “otherwise that in private”. Section 18C(2)(a) relevantly provides that an act is not taken to be done in private it causes words, sounds, images or writing to be communicated to the public.

  12. One example of a broadcaster being found liable for comments made by another person is the case of Wanjurri v Southern Cross Broadcasting (Aus) Ltd.[22] In that case, the broadcaster of a talkback radio program on Radio 6PR in Perth, and its host Mr Howard Sattler, broadcast a segment called “Taxi Talk” in which Mr Sattler sought the views of the taxi drivers of Perth on a variety of local issues. Mr Sattler had control over whether particular comments would be broadcast as he had access to a 7 second “dump button”. Comments made by two guests on the show were found to be in breach of s 18C(1)(a) of the RDA on the basis that a reasonable Nyungah or Aboriginal person would have found the comments offensive, insulting, humiliating or intimidating. Given the content of the segment, the Commissioner found that one of the reasons for the broadcast of the segment by the respondents was the race of the persons referred to, and of the complainants. The respondents were found to have contravened Part IIA of the RDA.

  13. The relevant acts alleged by the applicant in the present case involved approving content to be published on the PerthNow website and the publication of those comments. These acts need to be considered in the context of evidence of any guidance or training provided to moderators of the PerthNow website, and in the context of the articles published by the respondent in the Sunday Times and on the PerthNow website.

  14. Mr Newton’s affidavit records that all contributions to the PerthNow website are moderated.[23] In order for a comment by a member of the public to appear on the PerthNow website, it must be approved by a moderator.[24] Moderators are journalists with at least 5 years’ experience in journalism.[25]

  15. It appears that when a member of the public submits a comment to the PerthNow website, a message is displayed which provides, among other things:[26]

    Feedback will be rejected if it does not add to a debate, or is a purely personal attack, or is offensive, repetitious, illegal or meaningless, or contains clear errors of fact.

    (emphasis added)

This message appears to be described by Mr Newton as comprising “publication guidelines”.[27]

  1. It appears that PerthNow asks people submitting a comment to provide their full name.[28] The field in which this is to be entered is described as “Display Name”. The “Location” field is described as being optional. It appears from a review of the names accompanying the comments on the website that many people choose to provide a pseudonym rather than their full name, and that the respondent is prepared to publish comments on this basis.

  2. It is the decision of Mr Newton to allow a journalist to moderate readers’ comments.[29] Mr Newton suggests that from time to time he may test a journalist’s potential as a moderator.[30] He also encourages moderators not to allow comments that they believe were not made in good faith, or was not the opinion of the person making the comment.[31] It does not appear from Mr Newton’s affidavit that there is otherwise any training procedure established by the respondent for moderators.

  3. The question of the extent to which a publisher can be liable under s 18C for publishing a comment by another person (who is not an employee or agent of the publisher) that would otherwise offend s 18C, was also considered in Silberberg v Builders Collective of Australia Inc.[32] In that case, the respondent operated a website which included a Builders’ Collective Discussion Forum (the Forum) which had the purpose of enabling members of the public to discuss and debate issues relating to the building industry. Only a registered user could post messages on the Forum. Messages were posted automatically without intervention by the Collective. There was no monitoring of the content of messages by the Collective at the time of posting and no systematic monitoring thereafter, although postings were reviewed from time to time. Conduct by an individual user of the Forum in posting comments about the applicant was found to contravene s 18C. However, the conduct by the operator of the Forum itself in failing to remove those comments within a reasonable time was not found to breach s 18C.

  4. Gyles J held that:

    • 54.1. failure to remove known offensive material would be caught by s 18C(1)(a) bearing in mind s 3(3) of the RDA;

    • 54.2. constructive knowledge was sufficient, such that failure to remove offensive material within a reasonable time of it having been posted was an act caught by s 18C(1)(a);

    • 54.3. however, in the circumstances of that case, the failure to remove the offensive material was not shown to have any relevant connection with race or ethnic origin of the applicant.
  5. There are two ways in which the facts of that case differ from the present proceeding.

     
  6. First, the relevant act in Silberberg was the failure to remove particular postings. Here, it appears that the relevant act is either the approval by journalists employed by the respondent of comments drafted by members of the public, or the publication by the respondent of those comments.

     
  7. Secondly, it appears that a significant part of the rationale of the Court in Silberberg for finding that the failure to act did not have any relevant connection with race, was that the failure to remove the comments may have been as a result of “inattention or lack of diligence”. Relevant to this finding was the lack of involvement by the Collective in the posting of messages and monitoring the content of the messages. It appears that the way in which the relevant website is monitored in the present case is materially different.

     
  8. The context of the articles published by the respondent in the Sunday Times and on the PerthNow website is also a factor that the Court is entitled to take into account in assessing whether:

     

    • 58.1. at least one of the reasons that the comments complained of were approved by journalists employed by the respondent was because of the race of the applicant or her deceased children;

       
    • 58.2. any of the pleaded exemptions in s 18D apply.
  9. The applicant contends that her sons could be identified as Aboriginal people through the publication of their photographs and their names.[33]

     
  10. It appears from the articles in evidence that:

     

    • 60.1. a significant element in each of the articles published by the respondent was a reference to the comments that had been made by members of the public;

    • 60.2. the articles acknowledged that these comments were “polarising”, and sought to summarise these views including as follows:

      • 60.2.1. “many people claiming the four boys deserved little sympathy because they were in a stolen car” (Clarke pp 31 and 35);

      • 60.2.2. “many people believing such a loss could have been avoided with better parental care” (Clarke p 33);

      • 60.2.3. “PerthNow has received hundreds of comments (below) from readers voicing disbelief at how young boys could be so poorly unsupervised [sic] that were out at night in a stolen car” (Clarke p 33);

      • 60.2.4. “an outpouring of comments from Perthnow and Sunday Times readers, critical of the family for allowing their young children out unsupervised late at night to steal cars” (Clarke pp 52 and 79),

    • 60.3. the articles also acknowledged that “others took a more compassionate view” (Clarke pp 31 and 35) and “others sympathised that it was not possible to control children all the time” (Clarke p 33);

       
    • 60.4. one article identified the subject matter of the “massive community debate” as being about “parental control” (Clarke p 32);

       
    • 60.5. that article then encouraged readers to contribute further comments, including encouraging readers to identify “who’s to blame for out of control kids” (Clarke p 33).

       
  11. On 3 August 2007, Mr Newton wrote an editorial about an incident that he considers was similar.[34] That editorial gives the impression that a factor that PerthNow may take into account in approving and publishing comments is whether or not it will increase debate. The article at Annexure F to his affidavit ends with the line:

    The debate keeps raging. Take a look at the comments on our website, www.perthnow.com.au where you can tell us if we’ve allowed our readers to go too far.

Whether any of the statutory exemptions apply

  1. The respondent relies on two exemptions found in s 18D to conduct that would otherwise contravene s 18C.

  2. The first exemption relied on, in s 18D(b), is for anything said or done reasonably and in good faith in the course of a discussion or debate held for a genuine purpose in the public interest.[35]

  3. The second exemption relied on, in s 18D(c)(ii), is for anything said or done reasonably and in good faith in making or publishing a fair comment on a matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.[36]

  4. The onus of proof in relation to an exemption under s 18D rests with the respondent.[37]

The interpretation of ‘reasonably’ and ‘good faith’

  1. In the context of each of the exemptions in s 18D, there are two preliminary and independent requirements. First, the act must be done reasonably. Secondly, the act must be done in good faith. Reasonableness is assessed objectively, while good faith contains both subjective and objective elements.[38]

  2. An act is done reasonably in this context if it bears a rational relationship to one of the protected activities in paragraphs (a), (b) or (c) of s 18D, and is not disproportionate to what is necessary to carry out that activity.[39]

  3. It is necessary to consider the nature and seriousness of the harm caused by an act in determining whether it is disproportionate to a what is necessary to carry out an activity that would otherwise be exempt under s 18D.[40] In general, the more serious the harm caused by a particular act, the less likely it is to be proportionate and, hence, reasonable.[41] Where acts relate to minority groups who have historically been subject to racism, an objective approach requires consideration of the known experience of these groups. For example, in Toben v Jones, Carr J stated (at [44]):

    In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.

  4. A requirement to act in good faith is a requirement of honest action and fidelity to an identified norm, rule or obligation. That fidelity may extend beyond compliance with the black letter of the law absent the good faith requirement, and may require adherence to the spirit of the law.[42]

     
  5. In Toben v Jones, Allsop J considered what was necessary to satisfy the tests of “reasonably and in good faith” under s 18D(b) and (c)(ii). Without deciding on outer limits of the requirements of reasonableness and good faith in the context of these exemptions, Allsop J indicated certain minimum requirements at [161]:

    At a minimum under, relevantly, s 18D(b) or (c)(ii), whatever else is required, there should be an honest attempt to put forward a contribution embodying a genuine purpose, or genuine purpose in the public interest, or a fair comment by way of genuine belief.

  6. The requirement of honesty inherent in the concept of good faith is a subjective element.[43] Where insult or offence is found to be deliberate, this would suggest very strongly an absence of good faith.[44] However, good faith requires more than subjective honesty and legitimate purposes. As French J noted in Bropho v HREOC at [96]:[45]

    It also requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively.

Public interest exemptions

  1. The respondent relies on two exemptions, both of which incorporate a requirement that the act is in the public interest. The exemptions are:

    • 72.1. for anything said or done reasonably and in good faith in the course of a discussion or debate held for a genuine purpose in the public interest (s 18D(b));[46] and

    • 72.2. for anything said or done reasonably and in good faith in making or publishing a fair comment on a matter of public interest, if the comment is an expression of a genuine belief held by the person making the comment (s 18D(c)(ii)).[47]
  2. When considering the content of the public interest in the context of Part IIA of the RDA, account should be taken of public interest considerations both in doing the relevant act and refraining from doing the relevant act. In relation to the latter, the Court should take into account the public interest in ensuring that people of a particular racial group are not subject to acts that are reasonably likely to offend, insult, humiliate or intimidate.[48] This is consistent with comments made by the then Attorney-General in the second reading speech for the Racial Hatred Bill 1994 (Cth) that the amendments target “behaviour which affects not only the individual but the community as a whole”.[49]

     
  3. In Toben v Jones, Kiefel J at [71] adverted to the prospect that in some cases it may be difficult to apply the exemptions in s 18D in the face of a finding that there was a racially based motive for the publication.

     
  4. As noted above, the onus of proof in making out a relevant exemption under s 18D rests with the respondent. If no evidence is put forward that the act was done for one of the genuine purposes referred to in s 18D(1)(b) or that the circumstances in s 18D(1)(c)(ii) applied (including the circumstance that the act was an expression of genuine belief) then the exemption will not be made out.[50]

     
  5. In relation to the publication of comments by others, in order to rely on the exemption in s 18D(c)(ii) it appears that it is necessary to provide evidence that the comment was an expression of genuine belief held by the person making (rather than the person publishing) the comment.[51]

Breadth of statutory exemptions: relevance of international instruments

  1. Anti-discrimination legislation is beneficial and remedial legislation and should be given a liberal construction in accordance with its purposes and objects. Exemptions to anti-discrimination legislation should be narrowly construed.[52]

  2. Consistent with that presumption, the Commission submits that the exemptions in s 18D should be construed narrowly. A broad reading of the exemptions in s 18D should not be preferred as it would potentially undermine the protection afforded by the racial hatred provisions.[53] To the extent that there is ambiguity in the breadth to be accorded to the exemptions in s 18D the Commission submits that regard may be had to relevant international instruments.

  3. It is well settled that, as a general proposition, legislative provisions that are ambiguous are to be interpreted by reference to the presumption that Parliament did not intend to violate Australia’s international obligations.[54] The requirement of ambiguity has been interpreted broadly; as Mason CJ and Deane J observed in Teoh:[55]

    there are strong reasons for rejecting a narrow conception of ambiguity. If the language of the legislation is susceptible of a construction which is consistent with the terms of the international instrument and the obligations which it imposes on Australia, then that construction should prevail.

  4. The principle that legislation is to be construed so as to give effect to, and not to breach, Australia’s international obligations assists in minimising the risk of legislation inadvertently causing Australia to breach international law. Any breach of international law occasioned by an Act of Parliament ought to be the result of a deliberate decision by Parliament. To this end, where a construction that is consistent with international law is open, that construction is to be preferred over a construction that is inconsistent with international law.[56]

  5. Justice French in Bropho v HREOC has described the post-war recognition of fundamental human rights and freedoms, and associated with them “a powerful norm of non-discrimination on grounds of race”.[57] This norm finds expression in the Universal Declaration of Human Rights,[58] the ICCPR and CERD.

  6. In Koowarta v Bjelke-Petersen,[59] the High Court found that RDA (prior to the introduction of Part IIA) was validly supported by the external affairs power in s 51(xxix) of the Constitution. Justice Stephen considered (at 220) that there was “much to be said” for the submission by the Commonwealth that:

    ... the norm of non-discrimination on the grounds of race, is now part of customary international law, as both created and evidenced by State practice and as expounded by jurists and eminent publicists.

  7. In a series of cases, the High Court has taken the view that where a statute implements a treaty, the treaty (and hence the statute) is to be interpreted in light of international norms of interpretation, and further that treaties ought to be interpreted uniformly by contracting states.[60]

  8. The following provisions of the ICCPR and CERD are relevant in the context of a consideration of Part IIA of the RDA.

  9. Article 19 of the ICCPR recognises the right to freedom of expression, including “freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media”. However, this right is not absolute. In particular, Art 19(3) notes that the freedom of expression “carries with it special duties and responsibilities”. In particular, the freedom is subject to any restrictions provided by law and necessary “for respect of the rights or reputations of others”.

  10. One such restriction is that provided for in Art 20(2) of the ICCPR. This requires States to prohibit by law “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”.

  11. Specific obligations to limit expressions of racial hatred were undertaken by States parties to CERD. In particular, Art 4 of CERD provides that:

    States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

    (a) Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

    (b) Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

    (c) Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.

  12. These obligations should be read in the context of the other obligations in Arts 2 to 7 of CERD, especially Arts 2, 6 and 7.

  13. The UN Human Rights Committee (HRC) considered the interaction between Arts 19 and 20(2) of the ICCPR in the case of JRT and the WG Party v Canada.[61] The WG Party was founded as a political party in Toronto, Canada. The party and its leader Mr T attempted to attract members through the use of tape recorded messages which could be accessed by telephone. The messages warned callers of “the dangers of international finance and international Jewry leading the world into wars, unemployment and inflation and the collapse of world values and principles”.

  14. Section 13(1) of the Canadian Human Rights Act 1978 provided that it was a discriminatory practice to repeatedly communicate by telephone “any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that the person or those persons are identifiable on the basis of a prohibited ground of discrimination” including race. As a result, the telephone service of the WG Party and Mr T was curtailed. Mr T claimed that s 13(1) was in violation of Art 19 of the ICCPR. The HRC concluded that the opinions that Mr T sought to disseminate “clearly constitute the advocacy of racial or religious hatred which Canada has an obligation under article 20(2) of the Covenant to prohibit”. This aspect of Mr T’s claim was therefore incompatible with the ICCPR.

  15. Part IIA of the RDA, which contains ss 18C and 18D, implements in part Art 4 of CERD (while also being directed at Arts 2 to 7 more generally) and Art 20(2) of the ICCPR.[62] Unlike the RDA, those obligations are not subject to any relevant exceptions and are undertaken “with due regard to the principles embodied in the Universal Declaration of Human Rights”. Hence, when construing the exemptions in s 18D, a narrow construction will accord more closely with Australia’s international obligations and is, to the extent the language of the RDA permits, to be preferred.

  16. Australia has a reservation to Art 20 of the ICCPR which relevantly provides that: “Australia interprets the rights provided for by articles 19, 21 and 22 as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters”.

  17. Australia has a reservation to Art 4(a) of CERD which relevantly provides that: “The Government of Australia ... declares that Australia is not at present in a position specifically to treat as offences all the matters covered by article 4(a) of the Convention”.

  18. The reservation in relation to Art 4(a) of CERD is explicitly limited to the creation of offences contemplated by that article, rather than the creation of civil prohibitions, such as those contained in Part IIA of the RDA.[63] It appears that the reservation in Art 20 anticipates the reservation in Art 4(a) of CERD and deals with the same issue. The Commission submits that these reservations do not act to limit the interpretation of the civil prohibitions in Part IIA of the RDA.

  19. The obligation of States to accord people the right to freedom of expression is the basis for the exemptions in s 18D. As noted above, this freedom is qualified, particularly by the obligation to prohibit certain forms of expression that s 18C deals with.

  20. The Explanatory Memorandum to the Racial Hatred Bill 1994 noted that a balance between competing rights was carefully considered in the drafting of the legislation:[64]

    The Bill is not intended to limit public debate about issues that are in the public interest. It is not intended to prohibit people from having and expressing ideas. The Bill does not apply to statements made during a private conversation or within the confines of a private home.

    The Bill maintains a balance between the right to free speech and the protection of individuals and groups from harassment and fear because of their race, colour or national or ethnic origin.

  21. This was particularly the case in drafting the exemptions in s 18D:[65]

    Proposed section 18D provides a number of very important exemptions to the civil prohibition created by proposed section 18C. The exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest.

    However, the operation of proposed section 18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith.

Implied freedom of political communication

Test for invalidity

  1. The freedom of political communication in Australia is an implication, derived in particular from ss 7 and 24 of the Constitution which provide, respectively, that the Senate and the House of Representatives shall be “directly chosen by the people”.[66] The content of the freedom has evolved through a series of High Court cases since 1992. It is now settled that what is protected is that freedom of communication between the people concerning political or governmental matters which enables the people to exercise a free and informed choice as electors,[67] concerning information that might be relevant to the vote they cast at a referendum, or concerning the conduct of the executive branch of government throughout the life of a federal Parliament.[68]

  2. Importantly, what has been recognised by the High Court is not a personal right conferred on individuals. Rather, the implication precludes the curtailment of the protected freedom by the exercise of legislative or executive power.[69]

  3. Further, the freedom is not absolute. It is limited to what is necessary for the effective operation of the system of representative and responsible government provided by the Constitution. In order to determine whether a particular law is invalid as a result of the implied freedom, two questions must be asked, as set out in Lange and as modified in Coleman v Power:[70]

    • 100.1. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

    • 100.2. Second, is the law reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the system of representative and responsible government prescribed by the Constitution?
  4. The modification in Coleman v Power involved the insertion of the words “in a manner” in the second limb of the test (instead of the words “the fulfilment of”). This clarified that both the manner of achieving the end and the end itself must be compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.

     
  5. If the answer is yes to the first question and no to the second, then the law is invalid.

Whether laws prohibiting insulting language invalid

  1. In Coleman v Power,[71] the High Court was required to consider the constitutional validity of s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld) which prohibited the use in a public place of “insulting words to any person”. No exceptions or exemptions were provided, such as those set out in s 18D of the RDA, including for comments that were reasonable and made in good faith in particular circumstances.

  2. The case was heard as an appeal from the Queensland Court of Appeal, which had held that the first limb of the test in Lange had been satisfied (that the law did burden the freedom of political communication). As a result, the High Court was not called upon to decide that issue. The case in the High Court was limited to whether the law was reasonably appropriate and adapted to a legitimate end.

  3. One of the legitimate ends contended for by the third respondent (the State of Queensland) was the prevention of breaches of the peace, given that the subject Act was aimed at the maintenance of public order.

  4. In light of this object, Gummow, Hayne and Kirby JJ construed s 7(1)(d) as applying where the words were either intended to, or reasonably likely to, provoke unlawful physical retaliation.[72] So interpreted, their Honours considered that the offence provision was reasonably appropriate and adapted to preserving the peace and public order.

  5. Gleeson CJ, Callinan and Heydon JJ considered that s 7(1)(d) applied to insulting words, even if they were not likely to result in a breach of the peace.[73] Their Honours also considered that the section as more broadly interpreted was nevertheless reasonably appropriate and adapted to a legitimate end. For example, Heydon J considered that:

    In short, [section 7(1)(d)] leaves citizens free to use insults in private, and to debate in public any subject they choose so long as they abstain from insults. Even if s 7(1)(d) does create an effective burden on communication on government and political matters, that is not its purpose. It is not directed at political speech as such. Its purpose is to control the various harms which flow from that kind of contemptuous speech which is ‘insulting’. Its impact on communications about government and political matters is therefore incidental only.

  6. Gleeson CJ noted that “almost any conduct of the kind prohibited by s 7, including indecency, obscenity, profanity, threats, abuse, insults and offensiveness is capable of occurring in a ‘political’ context, especially if that term is given its most expansive application”.[74] However, if a law only incidentally burdens political expression (particularly at the margins of such expression as expansively construed) and is appropriate and adapted to a legitimate end, then it will not be invalid. His Honour gave the following example:[75]

    Earlier I gave an example of a mother who takes her children to play in a public park. Suppose that she and her children are exposed to threats, abuse and insults. Suppose, further, that the mother is an immigrant, that the basis of such threats, abuse and insults includes, either centrally or at the margin, an objection to the Federal Government’s immigration policy, and that the language used is an expression, albeit an ugly expression, of an opinion on that matter. Why should the family’s right to the quiet enjoyment of a public place necessarily be regarded as subordinate to the abusers’ right to free expression of what might generously be described as a political opinion?

  7. Callinan J doubted even that a prohibition on insulting words to a person in a public place could burden the freedom of political communication as required by the first stage of the Lange test. His Honour described such a proposition as “far fetched” saying:[76]

    Insulting or abusive words will no doubt generate heat, but it is equally unlikely that they will, to adapt the language of the judgment in Lange ‘throw light on [anything, let alone] government or political matters’.

  8. As to the second stage of the Lange test, Callinan J said:[77]

    What the section seeks to further therefore is peaceable, civilized passage through, and assembly and discourse in public places free from threat, abuse or insult to persons there. In that sense, the section seeks itself to advance a valuable freedom. Free speech as this Court said in Lange has never been an absolute right. Various constraints upon it have always been essential for the existence of a peaceable, civilized, democratic community.

  9. McHugh J considered that an unqualified prohibition on the use of insulting words went beyond what was required for preventing a breach of the peace.[78] His Honour considered that further qualifications would be required to the prohibition in order for it to be appropriate and adapted to that purpose. As noted above, no exceptions or exemptions were provided in s 7(1)(d), such as those set out in s 18D of the RDA.

     
  10. In the end, six of the seven Justices considered that s 7(1)(d) was constitutionally valid.

Application of implied freedom to Part IIA of the RDA

  1. The exemptions in s 18D of the RDA were drafted with the implied freedom of political communication in mind. In the second reading speech, Michael Lavarch, the then Attorney-General, stated:[79]

    Recently, the Australian High Court has established the existence within the constitution of an implied guarantee of free expression. The High Court decisions have been closely examined and the government is fully convinced that the bill does not infringe on the principles developed by the court.

  2. Similar comments were made in the Explanatory Memorandum to the Bill:[80]

    The High Court has recently established an implied guarantee of free speech inherent in the democratic process enshrined in our Constitution. But the High Court has also made clear that there are limits to this guarantee. There is no unrestricted right to say or publish anything regardless of the harm that can be caused. A whole range of laws protect people’s rights by prohibiting some forms of publication or comment, such as child pornography and censorship laws, criminal laws about counselling others to commit a crime, and Trade Practices prohibitions on misleading and false advertising or representations.

    While it is highly valued, the right to free speech must therefore be balanced against other rights and interests.

  3. There are two cases which have directly considered the interaction between Part IIA of the RDA and the implied freedom of political communication. Both concluded that Part IIA was constitutionally valid.

  4. The first case was a decision of the HREOC Commissioner in Hobart Hebrew Congregation v Scully.[81] The case involved the publication and distribution of a pamphlet containing anti-Semitic material. Commissioner Cavanough referred to Lange and found that while it was conceivable that the restrictions imposed by s 18C(1) of the RDA might, in certain circumstances, burden the freedom of communication about government and political matters, the exemptions available in s 18D meant that Part IIA of the RDA was reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of government prescribed under the Constitution. The legitimate end included the fulfilment of Australia’s international obligations under CERD, in particular Art 4.[82]

  5. The second case was a decision of Hely J in Jones v Scully.[83] Mr Jeremy Jones sought to have the determination of Commissioner Cavanough in Hobart Hebrew Congregation v Scully enforced. The respondent argued that the racial hatred provisions in Part IIA of the RDA were constitutionally invalid because they infringed the implied freedom of political communication. Justice Hely held that the racial hatred provisions in Part IIA of the RDA were constitutionally valid:[84]

    The next question is therefore whether the RDA is reasonably appropriate and adapted to achieve the elimination of racial discrimination having regard to the requirement of freedom of communication about government and political matters required by the Constitution. I agree with the Commissioner that, bearing in mind the exemptions available under s 18D, Pt IIA of the RDA is reasonably appropriate and adapted to serve the legitimate end of eliminating racial discrimination. Section 18D, by its terms, does not render unlawful anything that is said or done “reasonably and in good faith” providing that it falls within the criteria set out in pars (a)(c). I consider that those exemptions provide an appropriate balance between the legitimate end of eliminating racial discrimination and the requirement of freedom of communication about government and political matters required by the Constitution. I accordingly reject the respondent’s argument that the RDA should be declared unconstitutional “for the sake of freedom to communicate political matters”.

  6. In Toben v Jones,[85] the following comments were made in obiter by Allsop J (one of the members of the Full Court) at [147]-[148]:

    It should be noted that no argument was propounded raising any question of any inconsistency between Pt IIA, s 18C or para 18C(1)(b) in its statutory context, with the implied freedom of communication dealt with in Lange v Australian Broadcasting Corp (1997) 189 CLR 520.

    The appropriateness of recognising a balance between freedom of speech and expressions of intimidation and hate is evident even in circumstances of the clearest constitutional guarantee of freedom of speech: see Virginia v Black, US Supreme Court, 7 April 2003. No such high constitutional hurdle was the subject of argument before us, and not too much can be taken from the American jurisprudence in the context of the First Amendment. Nevertheless, the opinion expressed by Justice O’Connor on behalf of the Court with respect to Pt I, Pt II and Pt III recognises the powerful effect of deeply entrenched symbols and habits of intimidation (the Virginia statute there outlawing cross-burning). Here, the balance, save for any question raised by Lange, is to be struck by Parliament, as long as the result of its legislative activity conforms with the principles set out in Victoria v The Commonwealth and can be seen as a legitimate exercise of legislative power granted by s 51(xxix) of the Constitution.

  7. These comments were made in the context of a finding by his Honour that Part IIA of the RDA was reasonably capable of being considered as appropriate and adapted to implement the obligations undertaken by Australia in parts of Arts 2 and 4, and Arts 6 and 7 of CERD (Toben v Jones at [144]). In the same case, Carr J held that Part IIA was validly enacted under the external affairs power (s 51(xxix) of the Constitution) by reference to Arts 2-7 of CERD and Art 20(2) of the ICCPR (Toben v Jones at [19]). Justice Kiefel agreed with these findings of Carr J (Toben v Jones at [50]).

  8. The respondent in the present case challenges the validity of Part IIA of the RDA and Part IIB of the AHRC Act.[86] Part IIB of the AHRC Act deals with redress for unlawful discrimination (including a breach of Part IIA of the RDA).[87] This redress may take the form of the conciliation of a complaint lodged with the Commission under Div 1, and the bringing of proceedings in the Federal Court or Federal Magistrates Court under Div 2 if a complaint cannot be conciliated. The Commission submits that if Part IIA of the RDA is valid, then the methods adopted by Parliament of providing redress for breaches of Part IIA are also valid.

  9. In answer to the first question required to be asked under the two part test in Lange, the Commission submits that Part IIA of the RDA does not effectively burden freedom of communication about government or political matters either in its terms, operation or effect. This is first because offensive or insulting conduct based on race is inconsistent with genuine comment on political or governmental matters. Secondly, communications that are either not objectively reasonable, or not done in good faith, are not communications that the implied freedom protects.

  10. As noted by Callinan J in Coleman v Power, it is highly unlikely that insulting language or acts will contribute in any meaningful way to debate on government or political matters. This proposition is strengthened when one of the reasons for such an act is the race of a person or group of people.

  11. The prohibition in Part IIA of the RDA is more narrowly circumscribed than the public order provision that was under consideration in Coleman v Power. Part IIA of the RDA does not provide a general prohibition on public acts that are likely to offend, insult, humiliate or intimidate a person or group of people. Such acts must also be done for reasons that include race in order to attract the prohibition in Part IIA.

  12. Further, the Commission submits that if the offensive or insulting acts done because of race are also either not objectively reasonable, or not done in good faith (or in one of the fields of activity in s 18D(a) to (c)), then they cannot be the kind of communication that is protected by the implied freedom of political communication.

  13. The proposition that communication on political or governmental matters be reasonable in order to be protected finds support in Coleman v Power and Lange. Callinan J in Colman v Power at [300] held that “it is only reasonable conduct that the implication protects” citing the Full Court in Lange at 573-574. Heydon J in Coleman v Power at [331] reviewed the purposes for which the constitutional freedom exists and noted at [332] that: “insulting words, considered as a class, are generally so unreasonable, so irrational, so much an abuse of the occasion on which they are employed, and so reckless that they do not assist the electors to an ‘informed’ or ‘true’ choice”.

  14. Similarly, there is no basis for the protection of comments that are done with an absence of good faith. Adopting the words of Allsop J from Toben v Jones referred to above, if the relevant communications involve no “honest attempt to put forward a contribution embodying a genuine purpose, or genuine purpose in the public interest, or a fair comment by way of genuine belief” then it is difficult to conceive of how they would enable people to exercise a free and informed choice as electors.

  15. The exemptions in s 18D of the RDA already adequately provide for communications on government and political matters that would otherwise be covered by the implied freedom of political communication. As a result, the Commission submits that the freedom is not relevantly burdened. As noted in paragraph 113 above, the provisions in Part IIA were drafted with the implied freedom explicitly in mind.

  16. There is therefore no need to either read down s 18C or give s 18D a more expansive interpretation than is called for by its terms. The Commission’s submission on the appropriate interpretation of the breadth of s 18D is dealt with above in paragraphs 62 to 97.

  17. On the basis of its submission that the answer to the first question under the two part test in Lange is no, the Commission submits that it is not necessary to consider the second question.

  18. However, the Commission submits that if an act that would otherwise contravene Part IIA of the RDA could also be characterised as political communication to which the implied freedom applies, then the prohibition in Part IIA is reasonably appropriate and adapted to the pursuance of a legitimate end in a manner which is compatible with representative and responsible government. That is, if the first question under the Lange test is answered yes, then the answer to the second question should also be yes, with the result that Part IIA is constitutionally valid.

  19. The legitimate end includes one or more of the following:

    • 131.1. the fulfilment of Australia’s international obligations under Arts 19(3)(a) and 20(2) of the ICCPR;

    • 131.2. the fulfilment of Australia’s international obligations under CERD, in particular (but not limited to) Art 4;[88]

    • 131.3. eliminating racial discrimination in all its forms.[89]
  20. In assessing whether these ends and the manner in which they are sought to be achieved through the enactment of Part IIA, are appropriate and adapted, it is again useful to consider that, as noted in paragraph 113 above, these provisions were drafted with the implied freedom of political communication explicitly in mind.

     
  21. These legitimate ends to which Part IIA is directed differ from the ends under consideration in Coleman v Power. In that case, three of the Justices considered that the prohibition on the use of insults should be read as applying only to insults were either intended to, or reasonably likely to, provoke unlawful physical retaliation. This limitation was applied having regard to the legislative object of protecting public order and preventing a breach of the peace. The ends to which Part IIA is directed are not limited to the prevention of physical violence. As a result, no limited reading of the prohibition in s 18C is required along the lines of that proposed by Gummow, Hayne and Kirby JJ in Coleman v Power. On the basis of the reasons given by Gleeson CJ, Callinan and Heydon JJ in Coleman v Power, no limitation would be required, even if Part IIA were directed to preventing physical violence.

     
  22. Further, the inclusion of an additional element in the offence (that at least one of the reasons for doing the act is the race of a person or group of people) and the exemptions in s 18D means that Part IIA is appropriately tailored to the achievement of the ends to which it is directed. It does no more than what is necessary, having regard to those ends. Any infringement on the ability of people to communicate about government or political matters would, at best, be incidental only. Part IIA does not prevent any genuine public discussion of government or political matters, provided such discussion is not carried out by way of offensive or insulting acts done because of race.

 

10 August 2011

Australian Human Rights Commission

[1] Done at New York on 7 March 1966, [1975] ATS 40.

[2] See discussion in Levy v Victoria (1997) 189 CLR 579 at 603-4 (Brennan J).

[3] Done at New York on 16 December 1966, [1980] ATS 23.

[4] McGlade v Lightfoot (2002) 124 FCR 106 at 116 [42] (McGlade v Lightfoot) (citing with approval Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at 355 [12] (Creek v Cairns Post), and Jones v Scully (2002) 120 FCR 243, 268-269 [98]-[100] (Jones v Scully). See also the Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) p 10, dealing with the analogous position under the Sex Discrimination Act 1984 (Cth).

[5] Jones v Scully at [99]; McGlade v Lightfoot at [44]-[45].

[6] See, for example, affidavit of N Clarke sworn 20 September 2010 at [28], [31]-[34], [39]-[41], [51]-[53], [61], [65] and [68]-[69].

[7] McLeod v Power (2003) 173 FLR 31 at 45 [65], citing Corunna v West Australian Newspapers (2001) EOC 93-146 (at [8.4]).

[8] Jones v Toben [2002] FCA 1150 (Jones v Toben).

[9] McGlade v Lightfoot at [51]; Jones v Scully at [102]; Jones v Toben at [90].

[10] See also French J in Bropho v Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 (Bropho v HREOC) at 124 [70].

[11] Jones v Scully at [104], Jones v Toben at [89], Creek v Cairns Post at [6].

[12] Affidavit of A Newton sworn 14 December 2010 at [35].

[13] Amended Defence at [6(b)] and [7(b)].

[14] See for example Bropho v HREOC per French J at [108] and per Carr J at [176].

[15] Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 at [21] and [23] (Full Court).

[16] Creek v Cairns Post at [28], Jones v Scully at [114], Jones v Toben at [98], Toben v Jones (2003) 129 FCR 515 (Toben v Jones) at [24]-[31] per Carr J. Cf Toben v Jones at [61]-[64] per Kiefel J and at [149]-[155] per Allsop J.

[17] Toben v Jones at [64] and [67] per Kiefel J.

[18] Toben v Jones at [36]-[38] per Carr J, at [77] per Kiefel J, and at [153] per Allsop J.

[19] Affidavit of A Newton sworn 14 December 2010 at [31].

[20] Affidavit of A Newton sworn 14 December 2010 at [32].

[21] Amended Defence, particulars to [13].

[22] Human Rights and Equal Opportunity Commission, Commissioner Innes, 7 May 2001 (2001) EOC 93-147.

[23] Affidavit of A Newton sworn 14 December 2010 at [17].

[24] Affidavit of A Newton sworn 14 December 2010 at [17].

[25] Affidavit of A Newton sworn 14 December 2010 at [22].

[26] Affidavit of A Newton sworn 14 December 2010, Annexure A.

[27] Affidavit of A Newton sworn 14 December 2010 in index on page 1.

[28] See for example Affidavit of N Clarke sworn 20 September 2011 at pp 73 and 114-115.

[29] Affidavit of A Newton sworn 14 December 2010 at [20].

[30] Affidavit of A Newton sworn 14 December 2010 at [21].

[31] Affidavit of A Newton sworn 14 December 2010 at [26]-[27].

[32] (2007) 164 FCR 475.

[33] Affidavit of N Clarke sworn 20 September 2011 at [13] and [36].

[34] Affidavit of A Newton sworn 14 December 2010 at [41]-[43].

[35] Amended Defence [10].

[36] Amended Defence [11].

[37] Jones v Scully at [127] extracting the Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) pp 10-11, McGlade v Lightfoot at [68]-[70], Jones v Toben at [101] (this point was not challenged on appeal: Toben v Jones at [41] per Carr J), Bropho v HREOC at [144] per Lee J and at [170]-[172] per Carr J. Cf Bropho v HREOC at [75] per French J.

[38] Bropho v HREOC at [96]-[102] per French J, at [141] per Lee J (dissenting as to the result, but agreeing with French J as to the legal test). Cf Carr J at [178] who considered that the test was objective, but that evidence of a person’s state of mind may be relevant. The approach of French and Lee JJ finds support in the approach taken by the Queensland Anti-Discrimination Tribunal in Deen v Lamb [2001] QADT 20, in considering the meaning of “reasonably and in good faith” in the context of s 124A(2)(c) of the Anti-Discrimination Act 1991 (Qld). Commissioner Sofronoff stated (at page 12): “In also making reasonableness a requirement the statute adds a further objective standard to the requirement that the act be done in good faith ...”.

[39] Bropho v HREOC at [79] per French J.

[40] Bropho v HREOC at [139] per Lee J, referring to Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 at [153].

[41] Bropho v HREOC at [141] per Lee J.

[42] Bropho v HREOC at [93] per French J.

[43] Bropho v HREOC at [96] per French J.

[44] Toben v Jones at [161]-[163] per Allsop J, Bropho v HREOC at [101] per French J.

[45] See also Bropho v HREOC at [141] per Lee J.

[46] Amended Defence at [10].

[47] Amended Defence at [11].

[48] Corunna v West Australian Newspapers Ltd (2001) EOC 93-146 at 49.

[49] Commonwealth, Parliamentary Debates, House of Representatives, Tuesday 15 November 1994, p 3336, Michael Lavarch MP, Attorney-General.

[50] McGlade v Lightfoot at [74], Corunna v West Australian Newspapers Ltd (2001) EOC 93-146 pp 52-53 [8.7.3.4].

[51] Corunna v West Australian Newspapers Ltd (2001) EOC 93-146 at 52-53 [8.7.3.4].

[52] Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23, per Gaudron J, at 27 per Toohey J, at 39 per Gummow J and 58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J.

[53] Cf comments by French J in Bropho v HREOC at [73] (referring to the first instance comments of RD Nicholson J) where his Honour considered that a broad interpretation of the exemptions was to be preferred. For the reasons set out in these submissions, the Commission submits that these comments of French J should not be followed.

[54] This principle was first stated in the Commonwealth context in Jumbunna Coal Mine No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309 at 363. It has since been reaffirmed by the High Court on many occasions: see, eg, Zachariassen v Commonwealth (1917) 24 CLR 166 at 181 (Barton, Isaacs and Rich JJ); Polites v Commonwealth (1945) 70 CLR 60 at 68-69, 77, 80-81; Dietrich v R (1992) 177 CLR 292 at 306 (Mason & McHugh J); Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 38 (Chu Kheng Lim) (Brennan, Deane and Dawson JJ); Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 (Teoh); Re Minister for Immigration and Multicultural and Indigenous Affairs (2003) 214 CLR 1 at 33 (McHugh and Gummow JJ); Al-Kateb v Godwin (2004) 219 CLR 562 (Al-Kateb); Coleman v Power (2004) 220 CLR 1. Despite his stringent criticism of the rule, in Al-Kateb at [63]-[65] McHugh J acknowledged that “it is too well established to be repealed now by judicial decision”.

[55] (1995) 183 CLR 273 at 287-8.

[56] Teoh (1995) 183 CLR 273 at 362 (Mason CJ and Deane J); Chu Kheng Lim (1992) 176 CLR 1 at 38 (Brennan, Deane and Dawson JJ).

[57] Bropho v HREOC at [58] per French J.

[58] Universal Declaration of Human Rights, GA Resolution 217A(III), UN Doc A/810 at 71 (1948).

[59] (1982) 153 CLR 168.

[60] See, eg, Povey v Qantas Airways Ltd (2005) 223 CLR 189 at 202 [24]-[25] (Gleeson CJ, Gummow, Hayne and Heydon JJ); Shipping Corporation of India Ltd v Gamlen Chemical Co A/Asia Pty Ltd (1980) 147 CLR 142 at 158-60; A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 at 239-240 (Dawson J); Commonwealth v Tasmania (the Tasmanian Dam Case) (1983) 158 CLR 1 at 104; Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349-350 (Dawson J).

[61] Communication No. 104/1981 (names deleted).

[62] See Toben v Jones at [19]-[20] per Carr J, at [50] per Kiefel J and at [136] per Allsop J. See also the second reading speech for the Racial Hatred Bill 1994 (Cth) which provided that the bill was “consistent with the Commonwealth’s own human rights regime” and made reference to the travaux preparatoires to CERD.

[63] See the reports submitted by Australia to the United Nations Committee on the Elimination of Racial Discrimination pursuant to Art 9 of CERD on 20 July 1999 (CERD/C/335/Add.2) at [416]; and on 7 January 2010 (CERD/C/AUS/15-17) at [26].

[64] Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) p 1.

[65] Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) pp 10-11.

[66] Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Lange) at 559.

[67] Lange at 560.

[68] Lange at 561.

[69] Lange at 560.

[70] Lange at 567 as modified in Coleman v Power at 32 per Gleeson CJ, at 50-51 per McHugh J, at 78 per Gummow and Hayne JJ, and at 82 per Kirby J.

[71] (2004) 220 CLR 1.

[72] Coleman v Power at 74 per Gummow and Hayne JJ, and at 87 and 98-99 per Kirby J.

[73] Coleman v Power at 24 per Gleeson CJ, at 108 per Callinan J, and at 117 per Heydon J.

[74] Coleman v Power at 31 per Gleeson CJ.

[75] Coleman v Power at 32 per Gleeson CJ.

[76] Coleman v Power at 114 per Callinan J.

[77] Coleman v Power at 112 per Callinan J.

[78] Coleman v Power at 53 per McHugh J.

[79] Commonwealth, Parliamentary Debates, House of Representatives, Tuesday 15 November 1994, p 3338, Michael Lavarch MP, Attorney-General.

[80] Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) p 1.

[81] Human Rights and Equal Opportunity Commission, Commissioner Cavanough QC, 21 September 2000 (2000) EOC 93-109.

[82] Human Rights and Equal Opportunity Commission, Commissioner Cavanough QC, 21 September 2000, at 12-14 (2000) EOC 93-109.

[83] (2002) 120 FCR 243.

[84] Jones v Scully at [240].

[85] (2003) 129 FCR 515.

[86] Amended Defence at [14].

[87] See the definition of “unlawful discrimination” in s 3 of the AHRC Act.

[88] Hobart Hebrew Congregation v Scully p 13, and the preamble to the RDA.

[89] Jones v Scully at [240]; Toben v Jones at [28] per Carr J, at [50] per Kiefel J and at [136] and [144] per Allsop J.