Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1697631728084.pdf (Australia)
Anti-Semitism, Racial Discrimination hate speech and Pt IIA of the Act Ronald Sackville AO QC* Act human rights and by the dangers Those laws and the interna­ nature of anti-Semitism hate speech laws such as Pt !IA of the Racial Discrimination controversy.

regime that underpin them have been strongly of the Holocaust influenced An of anti-Semitism.
Australian case law the speech sheds light on the debate as to whether The article In Australia, 1975 (Cth) have always generated tional by the experience understanding of the dealing curiously argues that there are powerful hate speech laws, but that the legislation objective defensible from serious drafted Pt !IA should be retained, reasons criteria.

between the legitimate hate speech and the values of free speech.
should be amended to substitute a more would achieve groups of vulnerable amended or discarded.
with anti-Semitic tests for subjective The amendments Pt !IA and other protection for retaining and of the balance policy INTRODUCTION Vilification The catastrophe democracies prejudices.2 of Jews is perhaps of the Holocaust the oldest continuous has led to the widespread of the dreadful consequences that can flow from rekindling (but not universal) recognition in Western age-old or encouraging form of hate speech in recorded human history.
1 The grim resurgence and prejudice of anti-Semitism in many parts of Europe is a reminder that condemnation of Anti-Semitism in English-speaking endemic instrnments in international can be eradicated.3 recently, to England bigotry attitudes relatively readmitted immune from an upsurge in recent example, anti-Semitic publications has never been as virnlent in Cromwell's times has recorded including time.-1 in manifestations is no guarantee flowing that behaviour countries, continent, although at least since Jews were are by no means from those until as on the European countries Even so.
English-speaking hate speech.

of anti-Semitism, including for and an upsurge in both the number of anti-Semitic media.5 In Ap1il 2016, following Australia, incidents some in the mainstream repeated Judge of Appeal, Supreme Court of New South Wales.

vilification'' and "hate speech" tend to be used more or less interchangeably, although understood "'hate literally to vilification on racial for another which articulates hatred to be shared by members of the target grounds.
individual group'': usually J Weinstein or group.

It has been suggested that in "its purest and I Hare, "General based on characteristics form.

hate speech is simply (such as race) which are in I Hare and Introduction·· as the generic Extreme Speech and Democracy (OUP, Oxford, 2009), 4.

It is convenient to use "hate speech" (eds), is not contined • Acting 1 ·'Racial speech'' expression perceived J Weinstein term.
2 Writing Hitler, chamber Report on the Banality 3 For a survey responses, perhaps see KL Marcus, - 1 Jews were expelled following 5 in I 963, just after the Eichmann not forever but certainly trial, Hannah Arendt thought for the time being ... be.cause that: "Anti-Semitism .

.

.

most people have realised that in our day the gas has been discredited, thanks to and the soap factory are what anti-Semitism may lead to·· (emphasis Books, New York, 2006).

IO.
IO.

Arendt of Evil (Penguin added): H Arendt, Eicluna,m in Jerusalem: A words.

was right to add the three qualifying that includes some of the more extreme The Definition recent manifestations of anti-Semitism especially, and the often confused ·'Introduction" and Ch 1. official of Anti-Semitism (OUP, Oxford, 2015), from England by the Edict of Expulsion 1290 issued by Edward I.
Some Sephardic their expulsion from Spain in 1492, but formal approval was not given for Jews to resettle Jews came to England in England until 1657.

The Executive Council of Australian Jewry publishes a detailed annual report on anti-Semitism in Australia: see Executive Council ECA.T), ful discussion Jewry.

of Australian http://www.ecaj.org.au ECA.J Report 011.

Antisemitism /wp-content/uploads/2015/l and of various of anti-Semitism in Australia: definitions of the concept I October (pp 9-17).
l /ECAJ-Antisemitism-Report-2015.pdf.

201./.-30 Seplemher 2015 (November a help­ The Report contains 2015, (2016) 90 ALJ 631 631 Sackville anti-Semitic Jeremy Corbyn, comments by individual an inquiry for national members of into "anti-Semitism laws penalising announced proposals or providing the Leader, 6 in the Party.

for hate speech the United Kingdom Labour Party, and other forms of racism" have always generated controversy.
legislation hate speech despite of All Forms of Racial Discrimination criminalising ( 1966) (Racial civil remedies The Commonwealth or has on the Convention the International 7 Convention) Discrimination Parliament to impose criminal penalties Part IIA of the Racial Discrimination 9 for the dissemination Act 1975 (Cth).
of ideas based on racial which provides persons engaging in hate speech, in 1995.10 The controversy erupted the Federal Court's into a full-scale 2011 decision following political has proved controversial ever since its of contest the remains about the merits in Eatock v Bolt.11 Despite modify Pt !IA, 12 the debate proposals to repeal or substantially rejected In Ausu·alia, the laws themselves repeatedly Elimination requiring superiority civil remedies introduction retaining withdrawal live.13 state parties 8 or racial hatred.
against the legislation, of Government Representative organisations of the relatively is demonstrated accorded Pt IIA and other laws directed supported This support anti-Semitism.

of the protection or broadening organisations in initiating egregious anti-Semitic Discrimination material.
Act has been heavily surprising caused by anti-Semitic conduct many countries, Australia, or standing This is hardly including For this reason, influenced Jewish small Australian at hate speech as bulwarks not only by communal laws, the harm caused by urging 15 but by the role played by representative organisations the retention community against 14 have strongly by existing behind proceedings seeking the interpretation remedies against purveyors of Pt IIA of the Racial of since there is a clear link between by cases involving speech.
anti-Semitic the harm that can be acknowledging legislation of of hate speech laws.

The domestic human rights international from the post-war and the enactment has directly resulted '·Jeremy 6 Labour Press, Press and other forms of racism·• Release·), http://press.labour.or!

!.uk/post/143593428989/ "Shami Chakrabarti Inquiry" delivered an anodyne report in June 2016: http://www.

k/page/-/party-docu ments/Chakraba anti-Semitism plan on tackling Corbyn launches rti Ing u i rv.

pdf.

labour.

action org.


u (Labour Party, jeremv-corbyn-launches-action-plan-on-tackling.

The so-called 7 llliernational Opened for signed the Convention signature Convention on 13 October 1966. on che Elimination 21 December 1965, of All Forms 660 UNTS 195 (entered (Racial of R{lcial Discri1nit1mio11 1969, except into force 4 January Discrimination for one article).

Convention): Australia state parties Bills were introduced Art 4(a), requires hatred.
but these provisions to impose criminal penalties for the dissemination of ideas into the Commonwealth Parliament in 1974, 1992 and 1994 to a reservation relating were rejected: to Racial see Toben v J011es (2003) 129 FCR 515, [ l 141-11271 Discrimination Convention, Art 4(a).

(Cth).

1111 41-46. about certain Convention, J).


In 1975 Australia messages s 18C, see A Stone, Discrimination superiority or racial for hate speech, deposited 8 Racial based on racial impose penalties (Allsop 9 See text below accompanying 10 By the R{ICi{ll Hatred Act 1995 11 Eatock v Bole (20 l l) 197 FCR 261.

Bromberg offensive conveying campaign to repeal 12 For an account K l\fagarey, Parliament 13 The Australian more thorough done in conjunction Traditional (ALRC Report).
14 According to the 201 l Census, B{lsic Co1111111111ity Profile, figure is widely thought 15 See, eg, NSW Legislative Paper No 50 (2013).

by the NSW Jewish Board of Deputies to submissions (referring Law Reform Commission whether to determine Rights c111d Freedoms 2014).

of Australia, [3.9]-[3.1 Council, review" J upheld complaints against a prominent journalist "fair skinned Aboriginal people"'.
For discussion and a newspaper of the case and its role in the for articles 'The Ironic Aftermath of Eatock v Bolt" (2015) 38(3) MULR 926. of the Government's Suggested '·The Attorney-General"s 2014 proposals to repeal or amend Pt IlA of the R{lcial Discrimination Act 1975"' to the Racial Discrimination Act, see Library, (Parliamentary Changes with consideration it unjustifiably freedom of anti-vilification limits laws more generally: of speech, Ausu·alian but recommended Act "would benefit from that this should be Law Reform Commission, suggested in 2015 that Pt !IA of the Racial Discri111i11ation -Encroachments by Co111111omvealih Laws (ALRC Report 129, December 2015), [4.2071 97,335 Australians http://www.censusdata.a identified by abollt to be an underestimate 20%.
themselves as Jewish: Australian Bureau of Statistics, Australia, bs.gov.au/census services/!!etproduct/ce.nsus/2011/communitvprofile/O.

This Racial \!ilificatio11 Law in New South Wales: Standing OJ, [3.25]-[3.26], [4.7], [4.33], Council Affairs [4.95], of Australian Council).

by the Australia/Israel and the Executive [4.158]-[4 and Jewish [4.64], Jewry); Committee .

l 59].

[5.1 ]-[5.9] Par!

on Law a11d Justice, to submissions (referring ALRC Report.
[4.2 l l] 11 13, [4.185], 632 (2016) 90 ALJ 631 Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act influenced regime which was itself work on the Racial daubing adherence the Commonwealth to the Racial Discrimination and other forms of anti-Semitism by the experience Convention of the Holocaust commenced in and its aftermath.

For example, consequence of swastika 6 It is Australia's in the late 1950s and early l 960s.
i which underpins the constitutionality of an epidemic Convention of Pt IIA as Discrimination law specifically addressing hate speech.

17 ANTI-SEMITISM not directed solely or even principally Discrimination Act are thrown into relief 18 But conduct.

at anti-Semitic by the way in which to start with some observations on anti-Semitism, in cases involving publication albeit It is therefore of anti-Semitic material.
the vast at the risk of oversimplifying by Pt IIA of the Racial raised Hate speech laws are generally the issues the provisions useful literature have been applied on a complex subject.

The "Merchant of Venice" and anti-Semitic stereotypes can be selected, stereotypes That anti-Semitic illustrations Countless character of Shylock but is of profound of the Western people.
perpetuating The continuing anti-Semitic importance in The Merchant canon and its messages debate about whether stereotypes reveals have long been deeply entrenched not all of them from ancient Shakespeare's c;f Venice.

to an understanding form part of the cultural background the play should be regarded much about the nature of prejudice.

sources.

The best known is the 19 is hardly "world masterpiece" recent, of generations of literate as anti-Semitic or as in Western culture is undeniable.
of anti-Semitism, The play is an integral component perhaps Some commentators, for a character to evoke sympathy by Shakespeare's presented for ambiguity genius villain, as the quintessential influenced otherwise and his uncanny argue that ability the play is not anti-Semitic.

bleed?

", apparently overlooking for revenge thirst irrational 20 usually They point to Shylock's poignant plea: ''If you prick us do we not that Shylock poses the rhetorical Antonio.
against question as justification for his Others have no doubt that the play, despite its ambiguities, subtleties as representing 1 They see Shylock anti-Semitic.2 Jew, firmly established anti-Semitism.
actions echo the ancient albeit Shylock, the blood of an adult rather He is presented the stereotype (certainly of the greedy, by the long tradition as the epitome blood libel directed of the eternal Jew.22 A little against than an innocent the Jews, since his thirst transcends child, by the 16th century) like all Jews, segregates himself from the mainstream, is and profundities, and devious usurious of poisonous Shylock's blood, for Christian more subtly, even his yearning for ducats.
the self-bestowed 23 implying Discrimination·· ( 1966) 15 Int & Comp see Tohen v J011es (2003) 129 FCR 515. as Holocaust denial: see M Whine, J).

s 51 (xxix): prohibits (Carr J; Kiefel Convention is that of A Julius, of all Forms of Racial and Legislation to Constitution, pursuant (Allsop affairs" [l40J-ll48] to "external J agreeing), specifically Against on the Elimination J).
129 FCR 515, [92J (Allsop legislation Holocaust Denial 16 E Schwelb, ·'The International LQ 996, 997, cited in Tohen i• Jones (2003) 17 As a law with respect [13]-[21] 18 !n some jurisdictions, ·'Expanding 19 The phrase Julius 20 Act III, Sc l .

21 The critic, equivocal J11vention 22 The Eternal Jew was the name of a Nazi propaganda 23 Act I, Sc III: "I will buy with you, sell with you, talk with you, walk with you and so following; nor drink with you, nor pray with yon."

comedy The Merchant (!


{ the Human (Riverhead Books, of the Diaspora: A Hisfory Oliver Twist, also a candidate would have to be blind, of Venice is nevertheless conduct.

such n I, 543-547. of Anri-Semitism for promoting deaf, and dumb not to recognize anti-Semitic If' in Hare and Weinstein, Harold Bloom, says that "[o]ne uses the same expression New York, 1998), 171. a profoundly anti-Semitic for Dickens'\ Trials in 1937. film made in 1940.
It was based on a book published i11 England (OUP, Oxford, an anti-Semitic stereotype.

20 I 0), 666. work": H Bloom, Shakespeare: that Shakespeare's grand, The but I will not eat witi1 you (2016) 90 ALJ 631 633 Sackville of "our sacred nation" superiority alongside identity, daughter Christian love and charity.

25 and possessions.
25 and possessions.

.24 Shylock even if the latter is the embodiment itself manifests of cruel Jewish literalism, set by requiring the Jew's loss of One of the remarkable features Venice of the Merchant of is that it was written at a time ( 1597), when there were virtually of Jews indicates absence thinking in some societies.
attributed societies to Judaism virtually devoid of Jews.27 no Jews in England.2 that prejudices 6 The fact that anti-Semitic can exist in the about Jews and Judaism were deeply in ways of that obnoxious thinking and has even done so in stereotypes and Islamic embedded argues Indeed, David Nirenberg have shaped much ·western ideas and characteristics to defining Two approaches anti-Semitism Again at the risk of oversimplification, it is possible anti-Semitism.

Although conduct.
Although conduct.

accorded echoes of each approach to it by the courts.

can be discerned Pt IIA, like other hate speech laws, is not confined in the text of the legislation to anti-Semitic speech or and the construction to identify two broad approaches to defining focuses The first behaviour, Monitoring anti-Semitism.

The Working on the perceptions and conduct than on the effects of the behaviour rather Centre on Racism and Xenophobia of the person engaging on the target group.
(EUMC) formulated Definition defines anti-Semitism as in allegedly In 2005, the European anti-Semitic a "Working Definition" of a certain perception manifestations property, of Jews, which of anti-Semitism towards Jewish community institutions facilities.� 8 and religious may be expressed as hatred towards Jews.
Rhetorical individuals Jewish or non-Jewish and physical and/or their are directed towards While this definition has never been officially modified endorsed form by the United by the European States in slightly Union, it has proved State Department.

29 influential and has been adopted of perpetrators, it The as anti-Semitic.

that can be characterised and behaviour for, aiding.

Because or justifying of conduct view of religion.


Definition concentrates on the perceptions the following: or harming the Working to the use of examples given by the EUMC include the killing lends itself illustrations Calling an extremist Making mendacious, the power of Jews as Jewish conspiracy institutions.

Accusing single or intentionality Denying the fact, scope, mechanisms Jewish people at the hands of National Socialist Germany and its supporters during World War II (the Holocaust).
demonizing, -such as, especially dehumanizing, collective allegations exclusively, Jews as a people of being responsible or of Jews controlling or stereotypical Jewish person or group ... for real or imagined (eg gas chambers) wrongdoing the myth but not of Jews in the name of a radical the media, economy, government about Jews as such or committed by a ideology or about a world or other societal of the of the genocide and accomplices (Jonathan The Jew of Malta (15S9).
Became Shakespeare to only once by name.

Otherwise is referred of what he describes he is "the Jew''.

as "unself-conscious Jew-baiting" 2004), 24 Act l, Sc Ill. 25 !n the court scene Shylock there are numerous examples in the World: How Shakespeare 26 As was Marlowe's vicious treason in 1594, as a model for Shylock.

(1922), 9.749-751 Lopez, his jew·s heart being plucked 27 D Nirenberg, 2s European http://www.antise111.eu/projects/eurnc-working-definition-of-antisernitis1n/.
29 Special of State, See Marcus, http://www.state.gov/j/drl/rls/fs/2010/122352.htm.

of thought regards the converso Dedalus' Stephen n 25, 273-282.

Hence the hanging As Stephen in Shakespeare's 264.

258-260, Lopez, in J Joyce, assessment of the Queen's See Greenblatt, chimes with the jewbaiting out, points Greenblatt Will S Greenblatt, Anti-Semitism 166-169. for Ulysses leech Envoy to Combat Anti-Semitism, Centre on Racism and Xenophobia, forth while the sheeny was still A11ti-.
!11daism: Fnct Sheet: D�fi11i11g of a Wny of Thinki11g of Antisemirism (Head of Zeus, London, (US Department Fact-Sheet), and quartering EUMC �}orking that: "Shylock Monitoring Defi11itinn n 3, 161-164, that followed Cape, London, (EUl'v!C), The History executed One school alive.''

Rodrigo '.

!O 13).

plays: 634 (2016) 90 ALJ 631 Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act These illustrations can be assessed.

of Jewish groups or individuals.


conduct reactions provide conduct They do not characterise more or less objective standards against which allegedly anti-Semitic as anti-Semitic on the basis of the likely The second broad approach group at whom the conduct the target United Kingdom All-Party Jewish view was that: community itself is to define anti-Semitism or speech appears by reference primarily to be directed.

into Anti-Semitism 30 anti-Semitism.


what constitutes of the the view that the In 2006, for example, expressed Inquiry Parliamentary is best equipped to determine to the perceptions The Inquiry's or act the purpose humiliating hostile, degrading, or e.ffect of which is to violate or offensive a Jewish person's dignity or create environment for him [or her] is antisemitic insult any remark, an intimidatory, 3 1 [ emphasis added].
This approach consider necessarily that they experience) gives primacy anti-Semitic conduct to the subjective or speech.

32 reactions of those that experience (or The "objective" and "subjective'' of anti-Semitism highlight definitions Discrimination one of the key policy Act.
If it is accepted questions is whether imposed limits, of Pt TIA of the Racial in the language to legislatively subject define hate speech by reference legislation should elements incorporates concepts of each approach that are not always easy to reconcile.

a tension that hate speech should that is inherent be to or whether the As will be seen, Pt IIA it is appropriate apply only to speech contravening objective criteria.
contains incorporating and, for that reason, different language to its impact on the target group or individuals, LEGISLATIVE RESPONSES TO HATE SPEECH as in many other liberal democracies, the law attempts is to criminalise ranging from bonds or fines to imprisonment.
the more serious forms of hate speech, to curtail hate speech in two main thereby The second approach exposing against the perpetrators is to allow of hate or their representatives, of hate speech, The borderline between result hate speech to be removed can ultimately requiring the two approaches is to seek civil remedies in the imposition of sanctions from a web site.

33 But the if a recalcitrant to penalties In Australia, ways.

One approach .

offenders victims speech.


proceedings, defendant refuses to obey orders is usually distinction Criminal penalties the Commonwealth, Unlike of hate speech.

In practice, for example, 35 clear enough.

34 five Australian States sanctions criminal make it a criminal offence to publish are rarely invoked, even against purveyors certain forms of virulent not always precisely delineated.
Civil Parliamentary Ollice Ltd, 2006), [3] http://www.antisemitis Antisemitism, Group against m.org.uk/ Report of the A/I-Party Parliamentary fnquiry into Antisemitis111 wp-content/uploads/All-Party-Parliamentary-Tnquirv-into­ Reports, Inquiry i11to Parliamentary fnquiry Parliamentary This Rep011, but were prepared 30 All-Party (Stationery Antisemitism-REPORT.pdf.

Parliamentary Antisemitism.


31 Report of the All-Parry 32 Report of the All-Party i1110 :n In Jones v Tobeu (2009) 255 ALR 238, contempt to comply with orders who had refused 3 • There are laws of general Criminal being, Monis r The Queen (2013) 249 CLR 92, a six-member concerned with hate speech.

35 A11ti-Discriminatio11 199 !

(Qld), s 13 lA; Racial ss 66, 67.


The Tasmanian on the ground that similar Tasmanian Act 1977 (NSW), s 20D; Racial Vilification Law Reform Institute legislation Racial Law Reform Institute, creates menacing in all the circumstances Code (Cth), s 471.12, application Vilification elsewhere as well as the 2013 Report and 2015 Report from the same group, at the request of the Chair of the All-Party Parliamentary were not official Group Against Antisemitism, n 30, [4].

n 30, [4].
n 30, [4].

proceedings Antisemitism, made in civil proceedings were successfully brought requiring a notorious material him to remove anti-Semitic from a website.

Holocaust denier against that can be used against an offence , harassin of using a postal g or offensive who engage in particular in a way that reasonable eg, forms of hate speech.

as people would regard in a constitutional challenge survived barely (this provision service persons High Court being evenly divided).
Buts 471.12 is not specifically and Religious Ac1 1996 (SA), s 4; Criminal against recommended Act 200/ (Vic), s 24; Anti-Discrimination Tolerance Act Act 1991 (ACT), Code (WA), ss 77 -SOD; Discrimination provision, introducing racist ].

vilification means of addressing Final Report No 14 (2011 ), [5.3.17 Mmimled O.ffences, criminal a racial largely behaviour: has not proved to be an effective and Racially (2016) 90 ALJ 631 635 Sackville hate speech.
successful Indeed, with the exception of Western that there have been no prosecutions in Australia for contraventions Australia.

of hate speech laws.

it appears The fundamental difficulty prosecutors facing is the evidentiary by the legislation burden imposed in order to prove the offence of ·'serious In New South Wales, for example, the prosecution must prove that the defendant: the offences.
36 vilification", creating racial • has committed • which incites persons; a public act; hatred towards, • on the ground of the race (as defined) serious contempt for, or severe 1idicule of a person or group of 37 of the person or members of the group; and harm or inciting threatening physical others to threaten has done so by means which include physical harm.

Experience has shOWIJ that it is particularly difficult 38 or ridicule.
for prosecutors to establish that a public act has incited hatred, contempt It is no coincidence specifically in Western speech, introduced organisation repealed defendant has incited threatened or incited anti-Semitic including and replaced statements hatred towards 39 physical harm.

have succeeded that Western Australia speech targeting Jews, have succeeded.

is the only jmisdiction Legislation of outrages in which prosecutions criminalising perpetrated posters.
hate speech by a neo-Nazi for hate was anti-Semitic The legislation was in 1990. largely Australia defacing synagogues in 2004 with even broader or contempt as a result and distributing provisions for a particular group or that the defendant that do not require In consequence and resulted convictions in imprisonment for publication of the offender.
proof that the has of provocative 40 Civil remedies State laws providing ·'incitement" limitations Discrimination its approach broad reach, found in the legislation civil remedies found in the criminal of hate speech usually for victims statutes.

criminalising hate speech.

Because to no such limitation.

to hate speech is of particular 41 Accordingly, these laws are subject By contrast, Pt UA is a national of the concept to many of the Pt IIA of the Racial law and has such a significance.
incorporate Act is subject PART IIA OF THE RACIAL DISCRIMINATION ACT The legislation The central provision in Pt IIA of the Racial Act is s l 8C(l ), which provides: Discrimination than in private, if: in all the circumstances, to offend, insult, humiliate or intimidate for a person It is unlawful (a)the act is reasonably person (b)the act is done because some or all of the people to do an act, otherwise likely, or a group of people; of the race.

colour in the group.


another and or national or ethnic origin of the other person or of broadly to include: "colour, descent nationality, and ethnic, (Bathurst CJ): Catch the Fire Ministries w,d Religious Tolemnce Act 2001 (Vic), On the NSW legislation, see NSW Legislative Inc v Islamic s 8(1), which prohibits conduct n 15.

This inquiry was Council, laws.


under the existing of Council concern that no prosecutions had been instituted of Criminal Racial Vilification 17 PLR (2006) Laws in Australia" origin".

or national {No 2 / (2012) Act 1977 (NSW), s 20D.

Act 1977 (NSW), 4(1 ).

defines '·race" 36 A111i-Discriminatio11 37 A111i-Discrimi11atio11 ethno-religious 38 Sunof ,, Collier 260 FLR 414, [28], [33]-[34] Racial Inc (2006) 15 YR 207 (construing Victoria on the ground of religious inciting belie!).
hatred of the then Premier's set up because 39 See D Meagher, 209, 218-219.

411 See O'Connell 41 The following Discrimination (Qld), s l24A(l); (ACT), s 66(1).

"So Far No Good: The Regulatory Act I 977 (NSW), s 20C() ): Rncial 228-230; Criminal v West em Australia Vilification civil remedies provisions [2012J WAS CA 96.
Code (WA), s 77. providing Failure Racial for hate speech incorporate and Religious Tolerance Act 2001 (Vic), the concept s 7( I 1: A11ti-Discrimi1101ion s 19; Discrimina1io11 of ·'incitement": Act 199 I Ac1 1991 Anti­ Act 1966 (SA), ss 4.

6: Anti-Discrimi11ation Act 1998 (Tas), 636 (2016) 90 ALJ 631 Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act 42 not a criminal offence.

laws to combat hate speech.
Pt IIA of the Racial Discrimination Act goes The Racial for a person or severe would have made it unlawful to stir up hatred, serious contempt against than earlier Bill 1992 (Cth), that is rendered to do a public or group on the unlawful of criminal attempts for example, by s l 8C is, however, sanctions, to enact national if passed, or recklessly a person Conduct Except for the absence considerably further Discrimination knowingly ridicule" the Racial Discrimination accused likely therefore serious contempt the race or ethnic showing dominant that race or ethnic reason or even a substantial of a contravention.
in alI the circumstances Act does not require Furthermore, insult, to "offend, for the complainant or severe ridicule.

The complainant persons for performing of the relevant not necessary origin origin act "likely ground of race or ethnic origin.
proof of intention By contrast, or recklessness s 18C(l)(a) of by the person that is reasonably conduct a contravention humiliate only requires or intimidate another to prove that the conduct is likely must prove that the conduct was done because or group, but this burden can be discharged It is or group".

person to stir up racial of by hatred, was one reason for the conduct.
The reason need not be the the relevant act.43 Part IIA is clearly designed expressions to protect of hatred among different and understanding are compatible vulnerable and bigotry social groups and individuals can inflict.

and ethnic from hurt, fear and The legislation also aims to groups that make up a diverse of political marketplace communication, of ideas".

underpinning of speech.


with Australia's which constitutional structure, to the but does not accord protection 45 Giving effect to the objectives, however, that public tolerance humiliation provide 44 These objectives community.

an implied recognises "laissez-faire necessarily intrudes Part IIA of through of an unregulated into the values freedom the Racial Discrimination s 18D.
This provision qualifies to achieve the scope of the prohibition a balance freedom Act attempts between the competing values the heading s lSC does not render publishing expression describes as "Exemptions".

Most significantly for present unlawful anything said or done reasonably and in good faith in making or a fair comment on any matter of public of a genuine interest, held by the person making the comment.
belief 46 provided that the comment is an what in s l 8C by creating that s 18D provides purposes, In Bropho v Human Rights & Equal Opportunity Commission, creating of s 18D as a provision characterisation Honour saw the proscription should enjoy freedom the limits defining characterised, in s 18C as itself of speech and expression.

·'exemptions" 48 He therefore and not merely as a free speech exception.
to the fundamental preferred from the prohibition principle to understand s 18D as way it is an exception of the proscription on the operation s 18D is an important limitation Act usually of Pt IIA.

focus on both the breadth Critics precision generality Discrimination in the statutory language, particularly is not necessarily of statutory s l SC.49 While these are matters of legitimate In the area of free speech, concern, where it to be deplored.
In whatever of Pt IIA of language that people the Racial and lack of 47 French J queried the in s l 8C.

His s I SB.

Discriminalion Discriminalion Jones (2013) Acr 1975 (Cth), s 26.

Ac1 1975 (Cth), 129 FCR 515, [I 36] 4 2 Racial 43 Racial 44 Toben v Memorandum .in the Racial vilification, see Meagher, n 39, 221, 225.

45 McCloy i· New South Wales (2015) communication.

[4.202]-[4.204]; 46 Racial good faith in the course the public interest: 47 Bropho v HREOC (2004) 135 FCR 105.
48 Broplw v HREOC (2004) 135 FCR 105, [72].

49See Meagher, but it is unlikely cf Cole111a11 Act 1975 (Cth), Discrimi11atio11 of a discussion ,, Power (2004) n 39, 227-23!

: s I SD(b).

ALRC Report, n 13, [4.179].

(Allsop Haired Bill 1994 (Cth).

P), referring For a concise Discrimination of why Parliaments Convention statement to the Racial enact laws to regulate racial and the Explanatory 89 ALJR 857, [122] (Gageler that the legislation would be declared wholly invalid: 220 CLR 1; Ti.
(jjour v New Soulh Wales (2014) coll/ra 254 CLR 508.

J).

Part IIA might be read down if it is applied ALRC Report, to a political n 13, s 18D(c)(ii).

The other exemptions academic, artistic anything purpose and in said or done reasonably in purpose or any other genuine or scientific include for any genuine (2016) 90 ALJ 631 637 Sackville that does not mean that decision-making aspiration.
will be required, And although 50 a high degree of precision broad language must descend required or to apply vague standards, in the a degree value to intuitive open-ended are regularly to interpret including may confer law.51 Courts in constitutional that a constant of values weighing may be an unrealistic to judges, or ''unprincipled value-laden 52 Part of the judicial fluidity" statutory in the language function language is inevitable statutory of latitude judgments and potentially adjudication.
value judgments curtails required and to justify the range of the constructional is to construe legislation in a manner that articulates the the choice choices in a transparent for the future.

available and principled manner.

This process The principal difficulty posed by the drafting as the mixture language, anti-Semitism be defined by either incorporates objective both kinds of standards.

by reference or subjective can be understood and subjective either of objective standards.
the linguistic tensions of the of Pt IIA is not so much the vagueness Just as in the legislation.

standards can hate speech criteria, to objective incorporated or subjective designed to curb hate speech Where legislation are not easily resolved.

The authorities Attorney-General the Bill:53 construing s l 8C( 1 )(a) have from time to time cited an observation by the Hatred Bill 1994 (Cth), that made dming the Second Reading Speech for the Racial requires that community into account [emphasis added].
an objective test to be applied standards to behaviour by the [Human Rights rather tlw11 the subjective and Equal Opportunity] so of the complaillant view.1· Commission are taken It is not entirely clear which part of the legislation the language the Attorney-General of s 18C(l)(a) to do an act only if it is objectively to reconcile but it is difficult does not say that it is unlawful made this remark, provision relevant word "reasonably" circumstances reasonable person or group to be offended qualifies it is reasonably by community standards likely (or insulted, humiliated or intimidated) the word "likely''.
The question that the person posed bys 18C(l)(a) or group will be offended, that the targets of the conduct are or claim to be offended.

to when he was referring The with his observation.

for the reasonable The by the conduct.

in all the is whether it is not whether a problem.


good chance, The statutory language creates If the test is simply whether it is reasonably in likely, that a targeted individual or group54 will be offended the subjective the sense that there is a reasonably by hate speech, may well be decisive quick to perceive the legislation sought to limit the intrusion provides will intrude 55 warrant.
little responses of the individual or members in determining whether conduct contravenes that if subjective responses too deeply into the freedom by introducing the outcome to express determine objective standards of the group to the hate speech s l 8C(l )(a).

Courts of complaints opinions.

Accordingly, for which the statutory language about hate speech, have been they have 50 J Stone.

Social Dimensions of law and Justice (Maitland Sydney, Publications, 1964).

230.

51 Conlra Meagher, n 39,227,231.


52 See especially AM Gleeson, ·'Individualised Justice -The Holy Grail" 23 PLR 85; McCloy v New South Wales (2015) 89 ALJR 857 (applying political donations by property developers did not infringe the implied ( 1995) 69 ALJ 421, 427-428 (NSW); S Kiefel.

to Trade (referring A Rule of to hold that ''proportionality'' freedom of political analysis communication).
s 52 and Pt IVA and the Con/ract.,· Review Act 1980 "Proportionality: Act 1974 (Cth), (2012) Praclices Reason" legislation banning 53 Parliamenlllry Del>ace.,·, 15 November 2014, 3341 (Michael Lavarach, eg, by French J in Bropho v HREOC (2004) I35 FCR 105, [66].

Commonwealth.

House of Representatives, Attorney-General).

This passage 5 • Hate speech, 55 it is fair to say, always has a target.

was cited, See text below accompanying nn 69-71.


638 (2016) 90 ALJ 631 ANTI-SEMITIC SPEECH AND THE CONSTRUCTION OF PT IIA Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act of s l 8C(l) of the Racial question a contravention A threshold In order to establish show not only that the relevant but that the act was done "because group of people.
characteristics application of s 18C( 1) is that the members possess ethnic national or likely of the race, colour, act was reasonably 57 The latter origin.

Act, it is necessary Discrimination humiliate origin" between relationship insult, to ''offend, or ethnic or national causal to 56 or intimidate", of a person or a the act and the precondition for the a common characteristic of race, colour or requirement predicates a of the person or group.
In the case of a group, the implicit Once again, there is a disparity between the expectations incorporated in the Explanatory and the language in other jurisdictions was designed the legislation of s l 8C.

The Explanatory 58 and stated that the broadest to "provide it was intended Memorandum specifically referred with those that, consistently basis for protection of people such as to Jews and Muslims".

The Explanatory cover people of Jewish origin.


Memorandum appears assumed, Why it also to have assumed in the absence that the term of religion being Memorandum decisions authorities, Sikhs, "race" would mentioned in s 18C, that Muslims would be protected is unclear.

Despite the racial theories doubtful of Nazi Germany, it is (to say the least) whether Australian Jews can be said to be distinguishable race.
Certainly The threshold members of the Jewish group said to be reasonably ethnic Jewish people question in a case involving origin.

are not distinguishable on the basis of their colour anti-Semitic speech is, therefore, by the conduct, offended likely have a common or national Jews, or whether origin.

from the rest of the community on the basis of their common The only reasoned analysis of this question involving anti-Semiti group united a complaint c literature.
by either 60 The respondent, race or ethnic origin.

that the respondent, is the judgment a retired who was not legally Tasmanian schoolteacher, that Jews are not a represented, argued had distributed of Hely J in Jones v Scully, 59 a case the argument, However, Hely J rejected in that document.

common ethnic 61 This conclusion point.


a case cited in the Explanatory had a common ethnic origins origin referring both to the Explanatory to consider that whether he appeared is a question is consistent of fact, although with the approach he did not refer in detail Jews constitute a group with on the to the evidence Court of Appeal in taken by the New Zealand Memorandum and the cases cited Memorandum.
on the basis of evidence The Court in that case found that Jews in that country given by an expert with qualifications in 561 generally context indicates otherwise.

use the term '·offended" in discussing s I SC( l )(a) to include '·insulted, humiliated or intimidated'', the unless v Scully (2002) 120 FCR 243, [95] (Hely J).
57 Jo1tes 58 King-Ansell as having a common "ethnic 2 AC 548, 562 (Lord Fraser) meaning of Race Relations 59 Jones v Scully (2002) v Police [I 9791 2 NZLR 531 (where the NZ Court of Appeal held that Jews in New Zealand Ma11cllc1 for the purposes origin" (holding Act 1976 (Vic), of Race Relations that Sikhs were a group of persons s 3(1 )).

See Explanatory Act 1971 (NZ).


s 25(1)); defined by reference could be regarded [1983] v Dowell-Lee the within ... origins'· 3. to '·ethnic Racial Hatred Bill 1994 (Cth), in Miller v Wertheim [2002] FC AFC Memorandum, 156, a curious case involvirig 120 FCR 243.

The issue had briefly within a dispute the Jewish community.

been adve1ted to previously <ill Hely J made declaratiorn; [247].

and restraining orders.


The orders are set out in the judgme.nt: Jones v Scully (2002) 120 FCR 243, 61 Jones,, Srnlly (2002) 120 FCR 243.

[ l 13].

(2016) 90 ALJ 631 639 Sackville anthropology Jones v Scully 64 origin".

and sociology.

and without 62 By contrast, reference in Jones 11 Toben63 Branson to evidence, that Jews in Australia J held, on the auth01ity have a "common ethnic of unless the better In principle, the issue is not in dispute.
view is that the question origin of whether (or a common race, colour group said to be offended must be origin) by hate speech has a common ethnic determined by evidence, complainants have not that Jews can be evidence found it difficult regarded as having in the Explanatory to the Racial Hatred Bill 1994 (Cth) that Jewish people would have the protection in Pt IIA on hate speech directed therefore groups, is not easy to justify � burden by relying 6 The expectation stated that Muslims the disparity Memorandum of Pt IIA has the evidentia origin.
been met.

But in the absence the same protection of a prohibition the expectation in treatment.
is very unlikely would enjoy a particular a common ethnic to discharge In practice, or national to be met.67 It on expert Jewish 65 at religious conduct l 8C(l)(a) of the Racial Discrimination Prohibited Section in all the circumstances, responses, with the legislation's apparent emphasis responses of individuals to the conduct s l 8C( 1 )(a).68 In the case of complaints on them and, Jewish people as to the impact of the material published or intimidated.
material in giving Act directs group or individuals reactions, of the relevant on likely complained speech, about anti-Semitic humiliated of s 18C(l)(a) justifies of the targeted of this kind.

After all, if members of is admissible It might be thought that the language caused them to feel offended, subjective therefore, insulted, attention the courts likely" to the ''reasonably to hate speech.
Consistently evidence on the question of the personal posed by can be given by evidence the in particular, whether very great weight likely'' that to allow subjective group are genuinely or insulted that the speech will have the prohibited effect.

(or nearly to be determinative evidence offended to evidence by the hate speech, However, so) would give the statutory courts have been conscious prohibition This concern has led the authorities it would seem "reasonably a very wide reach.
to construe of Toowoomba it was "apparent" "reasonably likely" Ground Trust, Sports that the impugned Hely J took the same view in Jones 1' Scully, by the anti-Semitic an objective that are not act is not to be assessed by its 70 holding that although publications, 69 for reasons as importing offended test clear, into s 18C(l )(a).

In Hagan v Trustees entirely Drummond subjective evidence admissible, impact upon a complainant.
that Jewish people were actually was not determinative J thought of the question posed by s l 8C(l)(a).

62 Ki11g-Ansell 6 ' Jones v Tohen [2002J FCA 1150. "

Police [ 1979] 2 NZLR 531, 535 (Richmond .1); 543 (Richardson J); 538-539 (Woodhouse J).

FCA 1150, [69].

There was an appeal but senior counsel representing the appellant did not challenge Toben v Jones (2003) 129 FCR 515. v Boll (2011) 197 FCR 261.
Bromberg are a race and have a common ethnic themselves by others [ 19831 2 AC 548, 562. as essential and are regarded J relied origin.

on extensive documentary evidence His Honour said at [3 12] that it was irnponant by Lord Fraser lo find that Australian that Aboriginal identified as having the two characteristics to a group with common ethnic 01igins, namely a long shared in Mandia v history and a people of their own.
J's holding on this issue: defined by reference 64 Jones v Tobe11 [2002] Branson 651n £(1(ock Aboriginal people regard Dowell-Lee culture 66 Jn a criminal persons University, Jewish: 67 See Khan v Co111111issio11, Department establish tNSW), s 20C).

If, however, or ethnic 68 Jones v Sclllly 69 Haga11 v 70 Jones v Sclllly characteristics, such as Muslims see O'Connell a complaint of Toowoomba Trustees (2002) prosecution in Western Australia, origins.

to race or ethnic gave evidence based.


v Westem Australia expert Professor on a 2008 national survey WASCA 96, (33]-[35].
among other things, extensive evidence [2012] was given as to whether Jews were a group of Andrew Markus, Professor of Jewish Civilisations at Monash of 5100 people who regarded themselves as of discrimination Sen•ices NSWADT 131 (holding of Corrective contrary on the ground of '·ethno-religious at a religious origin" that hate speech has been directed [2002] that a Muslim prisoner to Anti-Discrimi11ation could not Act 1977 sub-group with common racial there is evidence of Arab background.
Pt !IA of the Racial Discrimination Act may well apply.

120 FCR 243.

(99] (Hely J).

Sports Ground Trust [2000] FCA 1615, [ 15].

(2002) 120 FCR 243.

[98]-[101].

640 (2016) 90 ALJ 631 The insistence on an objective test has produced an important consequence.

as to The inquiry Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act whether members by reference hypothetical atypical.

responses an easy task.


against of a group are reasonably likely to a "reasonable" person is designed or "ordinary" to exclude 71 Courts therefore somehow have to assess to be offended from consideration by hate speech is to be undertaken member of the group.

The invocation of such a or of subjective which are extreme reactions genuine evidence member of the group.
presumably to a reasonable This is not the responses the court attributes The courts have introduced objective standards into the rather unpromising language of way.

In Creek v Cairns Post Ltd,72 Kiefel effects, "profound is to inflict thats 18C(l ) has to be understood as implicitly that complainants must satisfy and serious in Bropho, quite capable in order to establish insult, 73 the words "offend, of being given a broad construction.

humiliate He pointed out that not to be likened to mere slights".
incorporating an objectively of are a contravention or intimidate" J said that to "offend, insult, or intimidate" suggests threshold s l 8C(l)(a) in another humiliate This language ascertainable s l 8C( 1 ).

Yet, as French J observed "open textured" the "lower register" which Art 4 of the [Racial particular, and therefore that speech is not always "polite of the dictionary definition Discrimination 75 of these terms "seem a long way from the mischief to 74 His Honour had in mind, in is directed".
Convention] and inoffensive".

subjective in applying a test combining or reaches a group or sub-group in s 18C(l)(a).

the impact of anti-Semitic In Jones v Toben, material identified The difficulty when hate speech targets responses determined impressionable" identifying deciding the conclusion a "reasonable" should 76 members of the Jewish community.
or ·'ordinary" be imputed reactions what characte1istics elements is compounded and objective to the vulnerable said to be particularly J Branson denial, on a readily a case involving Holocaust website Her Honour did not analyse on "young and the difficulty of 77 In sub-group.

member of a "young and impressionable" to avoid it is difficult to such a hypothetical accessible construct, will carry great weight.

the statutory by the respondent language.


conveyed In that case, a series of of the sub-group in applying difficulty Branson imputations, that the subjective Jones v Tohen illustrates another that material J was satisfied published 7 the following: including 8 doubt that the Holocaust that there were homicidal (a)there is serious (bJ it is unlikely Branson gas chambers in J said that it was not for the Court to determine were reasonably Auschwitz.
whether to offend and insult likely 80 as follows: found that the imputations Australian Jewry.

on the internet occurred; Her Honour reasoned gave evidence the Holocaust a group of people, 79 but occurred, namely The applicant survivors of the imputations of the Holocaust of any Jewish ... thus challenges community community in the world outside aspect and denigrates a central Jewish that the Australian of Israel.

of the shared of Each of the first two has the highest percentage perception of .I).
197 FCR 261, [251] (Bromberg 112 FCR 352, [ 16].

FCR 105, [67].

135 FCR 105, [68].

71 Eatock v Boil (2011) 72 Creek v Cai ms Post Ltd (2001) 73 Bropho v HREOC (2004) 135 74 Bropho v HREOC (2004) 75 See also Colenl(lll 76 Jones v Tohen [2002] 77 Compare, (2006) 260 FLR 414, [34], Bathurst s 492T, which prohibits of the conduct the remarks 15 YR 207, [158] (considering CJ (with Allsop of hatred incitement on an ·'ordinary" in a different v Power (2004) FCA 1150, [96].

context.
context.

(rather 220 CLR 1, [239] (Kirby .l).

the absurdity of Neave JA in Catch the Fire Ministries ··reasonable" of postulating a P and Basten JA agreeing), construed neo-Nazi).

of a person than '·reasonable'") member on the ground of homosexuality, of the audience hearing Inc v fsla.mic Council In Sunol v Collier of Victoria [No 2] (2012) Act 1977 (NSW), consideration of the effect incitement.
Anti-Discri111i11atio11 as requiring the alleged foe 78 Jones v Tobe11 [2002] 79 Jones v Tobe11 [2002] 80 Jones v Tobe11 [2002] FCA 1150, [88].

FCA 1150, [89].

FCA 1150, [93].

(2016) 90 ALJ 631 641 Sackville and the circumstances rather Jewry of its own modem history Australian to make their lives in Australia imputations it is, in my view, more probable the living by reason deaths, is more probable treated or the displacement, disrespect contemptuously.
of its challenge than not that the material than not that it would engender to deep seated belief in as to the circumstances d1e surrounding that it For the same reason.

Australians I am satisfied a sense of being of their parents or grandparents.

in Jewish would engender fully and offensively.

in which many of its members that the material feelings conveys these of hurt and pain came than in Europe.
To the extent This reasoning concentrates on the likely material, language, having regard to its particular if not necessarily On one view, the decision in with the authorities Jones v Toben holds Holocaust denial responses of members sensitivities.

The analysis discerning objective offence refusals interpretation community justified.
to members of the Jewish community a catastrophic to acknowledge event of profound importance because they are very sensitive is that a reasonable not necessarily person, by the material, Jewish, but would consider to be deeply offended of the Jewish community to the is consistent elements with the statutory test.81 in the statutory to cause likely" is ''reasonably to manifestly false Another the Jewish to be perfectly to the community.
that response would not only expect 'Whichever act of genocide is conect, interpretation or mass slaughter people of the same ethnic J held that the complainant the decision suggests that anyone who denies is at risk of the denial being regarded the occurrence as reasonably of the atrocities.
or racial group as the victims did not have to prove the historical the "judicial to this holding, reluctance a commentator ... to deal with the central sympathetic to a bizarre and unsatisfactory conclusion truth of the to hate speech laws has issue of the historical fact of the of the merits on the substantive to offend or insult Branson Responding of an historic likely Moreover, Holocaust.

characterised Holocaust 82 claim".


[as leading] of a court ruling event may infringe The virtues But if the approach historical offence to members the exemption in s l of the generally and 1923 was the result own "history Indeed Australia's Indigenous people.

accepted on the historical person taken in Jones v Tohen is correct, a authenticity of the Holocaust denying may be debatable.
disputed the truth of a bitterly great causes the denial can invoke the denier 83 Pt IIA of the Racial Discrimination Act because that the event did take place (unless of the group asserting 8D).

That this is not a fanciful prospect is shown by Turkey's of thousands 84 by the Ottomans fact that the deaths policy of a deliberate of hundreds of genocide vehement rejection of Armenians between 1915 and their successors.
perpetrated on wars" have seen denials of the mass slaughter of causation in s l 8C(l )(b) of the Racial otigin" The requirement The requirement ''because concept humiliated because of causation of the ... ethnic those persons are Jewish?

or intimidated by an act are Jewish.

Discrimination Act that the act complained of be done into the legislation.
When the persons reasonably of the relevant person or group introduces how does one assess the act has been done the notoriously to be offended, difficult insulted, likely whether 81 On appeal, to offend likely of Carr J. judgment the publisher was legally Jewish people: represented Toben v Jones (2003) was made to the findings that the material 129 FCR 515, [22].
The full text of the material was reasonably is set out in the but no challenge or insult 8 � D Fraser, '"On the Internet, Nobody Knows You're a Nazi': Some Comparative Legal Aspects of Holocaust Denial on the and Weinstock, n I, 535.

WWW" in Hare 83 This effectively Books Ltd ('.


'-001] Books, NY, 2001): 84 in the defamation occurred EWCA Civ 1197; see RJ Evans, Lyi11g D Lipstadt, on Trial: History proceedings brought by the Holocaust Hil·tory, About Hitler: denier, David Irving: Irving Holocmm u11d the David ll1'ing Perennial.

De11ier (Harper v Penguin Trial (Basic NY.

2006).


My Day in Court with a Holocaust The word '·genocide" Endowmem for International deliberate mass killing helped draft the Cm11•ention of Armenians was coined Peace.

by a Polish Division in what is now Turkey.

kw, Raphael Lemkin, Law.

Washington of International (Carnegie in his book.

Axis Rule in Occupied Europe the He used the term to describe DC, 1944).
Lemkin, who lost many members of his family in the Holocaust, on t/1e Pre,·ention and Punish111e11/ <>/' the Crime of Genocide ( 1948).
642 (2016) 90 ALJ 631 Anti-Semitism, hate speech and Pt IIA of the Racial Act Discrimination The authorities have generally construed incorporating and subjective both objective taken to s I8C(l)(a), but the consequences into s 18C(l)(a) limits objective speech race, colour considerations to defend his or her conduct (or at least potentially usually into s 18C(l)(b) or ethnic origins" or national elements.

are different.

limits) The introduction of objective the scope of the prohibition.
considerations The introduction of for the publisher of hate of the "because makes it more difficult on the ground that the material was not published the causation requirements In a sense this is consistent in s l 8C( 1 )(b) as with the approach of the complainants.

to cases decided J referred In Creek v Cairns Post Pty Lrd,85 Kiefel on other sections of the Racial Act which indicated Her Honour took the authorities Discrimination decision.

the sense of considering the action.

regard 86 used''.
and expressions The inquiry only what the person "considers to mean thats 18C(1)(b) that the inquiry under s 18C( I )(b) is as to the "true ground" in subjectively, as the basis for when is in question provides what was in truth likely is not to be applied whose conduct of the to have given rise to [the conduct], and the words of the conduct the nature is had to all the circumstances, and this would include having regard to s l 8B is "whether anything Kiefel J said that the relevant Later, suggests involve race as a factor an inquiry This approach question in the [newspaper's] the publication by Carr J (with whom Kiefel did not give evidence as to whether was followed in that case (the appellant) material denying the truth decision to publish was "motivated of the Holocaust which, as his counsel 87 That was said to the photograph''.
of race".88 by considerations 89 The in Toben v Jones.

J agreed) in was reasonably a "sick inversion of six million had attempted instead or motivation conceded, as to his intention people Jews.

Carr J considered that the deaths that the appellant of only 800,000 in arguing was "good news and a cause for celebration".
9° Carr J concluded that "shows that its whole tenor is to offend and insult those who maintain occurred and, in particular, one reason whether in determining 1 In effect, the respondent Jewish people''.9 published the material was the Carr J let the publications to offend Australian publisher publishing likely and an exercise (as he contended a fair reading that the Hol;caust speak for themselves origin" '·ethnic in sophistry" was the truth) of the material of Jewish people.
He was sceptical about departing too far from the Allsop J's approach or intention in determining of the person why the material was a little engaging different.

in the conduct, was published.
finding of the material nature purpose assist offensive" origin ethnic stringent regarded thereby Parliament's casting than he identified, as appropriate or adopted doubt on whether power to legislate warranted Thus he agreed that the appellant with Carr J that the "obviously acted as he had because of the 93 Allsop J added a warning that if the test of causation is less be Convention, of the Commonwealth an issue might arise as to whether to implementation it is constitutionally of the Racial Discrimination valid as an exercise affairs.
s J 8C( I )(b) could reasonably 94 to external with respect of Jewish Australians.

92 but accepted that objective evidence can 85 Creek v Cairns '<·creek 11 Cairns 87 Creek v Cairns 112 FCR 352, [22].

Post Ltd ((2001) Post Pty Ltd (2001) Post Pry Ltd (200 l) l 12 FCR 352.

[28].

Post Pty Lid (2001) 112 FCR 352, [22].


Creek v Cairns 88 l 12 FCR 352 concerned the publication by a newspaper of a photograph of an indigenous which was said to convey a false impression of the environment in which relatives could raise her.

Kiefel had been chosen from a library as the only one available.
race was not a factor J in its 129 FCR 515, [31 l. The Full Federal Court dismissed an appeal from the decision of Branson J in Jones FCA 1150: see text above accompanying nn 76-81. girl in a bush setting found (at [29]) that since the photograph publication.

89 Tobe,, v v Tohen [2002] 90 Jones (2003) 129 FCR 515, [33].

Tohen v Jones (2003) 91 Tohen v Jones (2003) 92 Tohen v Jones (2003) 93 (2003) 9"Toben vJone.1 Toben vJone.1· · (2003) 129 FCR 515, [37].

129 FCR 515, [151].

129 FCR 515, [154].


129 FCR 515, [155].

(2016) 90 ALJ 631 643 Sackville The outcome of Toben v Jones is that although an examination consideration of why the particular actor engaged may be virtually conclusive as to whether must involve of the hate speech the conduct.
it was published the objective by the fact that the group likely If the material was because evidence may render published is blatantly origin anti-Semitic, of the Jewish people of the ethnic implausible denials was Jewish.

to be offended of the reason in the conduct, (relevantly) ethnic a court is likely for an act or reasons the objective character for origin was a reason to infer that one reason to be offended.
likely by the publisher In effect, that he or she was motivated l8D, like other provisions The free speech exemption Section subjective establish exemption.

publisher and objective tests.


95 If the publication is said to constitute must also show that the comment expresses that he or she has acted both reasonably A person publishing material in Pt IIA of the Racial Discrimination Act, incorporates both s l 8C must and in good faith in order to claim the benefit of the the fair comment on a matter contravenes that otherwise of public interest, his or her genuine belief.
It has not proved easy for a publisher of offensive material to satisfy has acted reasonably imparts an objective judgment.

Importantly, the requirements of s l 8D.

is the assessment a person by the normative Whether informed which includes under discussion is likely gratuitously elements offensive incorporated in s l 8C.

Thus a person who publishes interest or insulting material irrelevant of public to the matter a comment to be found not to have acted reasonably.
96 Even the requirement of good faith, which might be thought to be satisfied if the publisher has acted honestly, has been interpreted to set a higher standard.

The publisher is expected: under the aegis of fidelity approach or loyalty to the task of honouring to the relevant asserted principles by the Act.

This may be assessed in the Act, [to adopt] a conscientious 97 objectively.
the values Thus a person who exercises freedom the offence experienced by people of speech in a way that makes little affected or no attempt may be found not to have acted by the comments to minimise in good faith.
asides, 98 Publications to come within are unlikely judged to be provocative, by derision or gratuitous the protection afforded as demonstrated bys 18D.99 In view of the construction Discrimination of the Racial Tohen v Jones, for example, offensive material respondent Holocaust: was published knew that Jewish people accorded Act as a defence the respondent for a genuine in cases involving invoked purpose would be offended by the protection in the public the challenge to s 18D, it is not surprising that attempts anti-Semitic to rely on s 18D In speech have failed.
of s l 8D(b), arguing that the interest.

Carr J held that since the to the historical of the reality [A]reasonable his views with as much restraint in good faith person acting would have made every effort to express ent with the communication as was consist of those views.

the challenge and [T]he Document Document shows that [the respondent] 100 and inflammatory.

provocative are ... deliberately made no such effort.

On the contrary.

the terms of the Allsop J considered appeared to have been deliberate.
that the tenor of the material 101 In the absence was to insult and offend Jews and that this Allsop J from the respondent, of an explanation 95 The publisher 96 Brop/10 v HREOC (2004) 135 FCR 105, [81).

bears the onus of proof: Eatock v Boll (2011) 197 FCR 261, [339 j (Bromberg J).

97 Broplw v HREOC (2004) 135 FCR 105, [96); see �lso Ealock v Bolt (2011) 98 Broplw v HREOC (2004) 135 FCR 105, [102].

99 E<11ock ,ooToben v Jo11es (2003) 101 Toben v Jo11es (2003) 129 FCR 515, [44]-[45) 129 FCR 515.

[161].
[161].

197 FCR 261, [413).

J agreeing).

v Bolt (2011) (Kiefel [414], [425).

197 FCR 261, [353].

644 (2016) 90 ALJ 631 Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act found that the material "no conception was designed to smear, hurt, offend, insult and humiliate Jews.

In his view, on of the phrase 'good faith' could the material be so characterised".

102 have interpreted of blatantly AN IDEAL BALANCE?
If the worth of Pt IIA of the Racial accords authorities against • Australian therefore whether the Jewish community community withins ISC(l)(b); an act is assessed or, in some cases, publishers • as a consequence, slurs, anti-Semitic to members of the Jewish community against hate speech, Discrimination Act is to be measured by the level of protection it must be judged a success.
to complainants seeking it The remedies Pt IIA in a manner that is favourable material, recognised as indicated as a group with a common ethnic anti-Semitic by the following: Jews have been readily origin and is to be determined reasonably likely to offend, insult, of a particularly denial, by the reactions vulnerable at least if published conduct to constitute withins 18C(l)(a); humiliate or intimidate member of the of an ordinary the community; sub-group within and in combination repeatedly members with Holocaust is very likely of • courts have been ready to conclude complained of, one reason publications people reasonably and requirement; that by reason of the very nature of the anti-Semitic for the publication was the "ethnic of the Jewish origin" likely to be offended by the material thereby satisfying the "causation" • courts have also been prepared to draw inferences from the anti-Semitic character of publications making it unlikely and in good The broader between faith" question the competing that the publisher or that the publication posed by Pt IIA, however, will be able to establish is for a "genuine is whether it seeks to accommodate.
its worthy objectives, purpose in the public the legislation interest".

an appropriate this question, it is of levels a law which gives substantial In addressing achieves values that, despite that he or she has acted "reasonably the optimum outcome for a society and other minority groups vulnerable that, for good reasons, to hate speech does not necessarily high value on freedom places of balance important protection achieve speech.
to acknowledge to Jewish people As I have noted, one common criticism value judgments.

103 A more cogent of Pt IIA is that the language precise is insufficiently is that the prohibition criticism to avoid the need for judicial is framed too widely and intrudes contend goes too far in protecting support vilify too far into freedom on speech that is likely of people the feelings s 18C, for example by limiting 104 that a prohibition amending or group.

another person of speech.


Proponents to offend or insult particular ins 18C of this view generally groups or individuals who might be sensitive the prohibition to slurs or abuse.

These critics to speech that is reasonably likely to or intimidate Those who contend least in principle, values freedom speech, but two are particularly powerful.
that Pt IIA is too broad but should in a modified be retained on hate speech are justified, form accept, at even in a society that that some legislative restraints of expression.

Many arguments have been advanced in favour of laws curtailing hate The first argument of inclusiveness".
10 dignity speech attributes is based on what the legal philosopher 5 He argues that hate speech undermines Jeremy Waldron inclusiveness both in their own eyes and in the eyes of their fellow race or religion, of common ethnicity, calls "the public good the by compromising Hate citizens.
of those who are targeted, characteristics to persons thereby suggesting In Jones v SC11ll y (2002) 120 FCR 243, Hely J rejected a defence what her genuine because never identified Ms Scully based on purpose of the leaflets [147], [159], and partly [170], [186].

[198], [227].

because the leaflets: of the contents see [137].

102Toben v Jones (2003) 129 FCR 515, [164].


s l 8D(b), partly was in distributing 103 See text above accompanying I().j Amendments to this effect '"incite hatred against exemption drafted 105 J \,Valdron, The Hann ;,, Hate Speech (Harvard were proposed nn 49-52. a person or a group of persons'".

far more broadly than s I SD: see Magarey, n 12. by the Attorne y-General to mean in March 2014.
The proposal defined The proposal, which was withdrawn in August 2014, included "vilify" an Universit y Press, Cambridge Massachusetts, 2002).

5.

(2016) 90 ALJ 631 645 Sackville from being treated that they should be disqualified laws confirm that all people speech in the broader and standing respect constraints, distinguishes, Waldron particular 106 beliefs.

impute to all Jews, Muslims groups and attacks It is one thing to mock the tenets are members community.
for example, on the basic social or Christians In determining between standing of Judaism, conduct that should on a body of beliefs of people attacks and reputation Islam or Christianity; such as dishonesty, characteristics in good standing.

and are worthy of equal be subject to legal adhered to by to the who adhere as members of society in good standing crnelty or greed.

of society Hate it is quite another to for laws prohibiting at large.
The second major justification hate speech is that such speech causes harm the dignity to diminish or emotional group but to society not only to the target speech calculated hurt feelings Hate speech may also influence and denied the respect denigrated of anti-Semitism The history relationship between hate speech directed physical, inflict but serious some people susceptible due in a society comfort at identifiable The Supreme and self-respect psychological or other hann on members psychological harm on the members to the message which "venerates for those who would argue that there is little to harm people who are or no to intended groups and more serious conduct Court of Canada has argued that of those groups.
not merely 107 of those groups.

of vulnerable groups can inflict of all persons" the equality distress, provides little 108 .

These two arguments provide for retaining hate speech laws in some form.

But by hate speech.

by Waldron or insulting from being offended vulnerable and the Supreme and speech that detracts they also lend force to the criticism advanced offensive group targeted people protect exclusion eliminating group.
that is likely Amendments the mix of objective and, ultimately references to conduct This could be achieved, for example, to intimidate, degrade of this kind, however, or insulted groups from more serious violence.

and subjective or incite a solid foundation that the current reach of Pt IIA is too wide.
The arguments Court of Canada distinguish between speech that is merely from the equal standing in society Laws curtailing hate speech are justifiable by prejudiced and ill-informed views, harm such as intimidation, of members of the they protect not because but because they help to social discrimination, These principles that Pt IIA should be amended by that is merely likely suggest to offend or insult was confined if the legislation members of a particular to hate speech or conduct for members of the group.
associated the difficulties with will not of themselves standards hatred or contempt overcome in the legislation.

incorporated The difficulties created significant amendments.

a more demanding intimidate" The other would be to replace speech with an objective An objective effect.

community at large.
community at large.

judgment evidence by the drafting of the current legislation would be reduced One would substitute for the current "to offend, insult, such as to "degrade, standard the references test for determining to the subjective whether intimidate responses the hate speech is likely or incite hatred of groups targeted to have the prohibited by two humiliate or or contempt".
by hate test would involve reference In practice, in the light of their assessment adduced as in so many areas of the law, this of prevailing in the individual case.

of a reasonable would involve courts taking standards, to the standards community member of the account of the exercising As applied to anti-Semitic that focuses upon the perceptions standards a definition expression behaviour would reflect of hatred towards that can readily speech, the current reflects legislation of Jewish people themselves.
that rests on the attribution As has been seen, A law which incorporates of false characteristics 109 the latter lends itself without as anti-Semitic Jewish people.
be characterised the definition to Jews or the to identifying to the subjective of anti-Semitism objective reference l. 119901 3 n l 05, 120-12 promoting 106 Waldron, 107 R v Keegslra wilfully reasonable limits Court upheld the conviction ·'sadistic", 108 R v Keegslra hatred against on freedom of speech [1990] "money-loving'", 3 SCR 697, 756 (Dickson CJ).

and thus did not violate who informed "power hungry" and '"child of a teacher killers".

SCR 697, 746 (Dickson an identifiable CJ).


A majority group distinguished of the Court held that a provision creating the Canadian by colour, Charter race, religion of Rights or ethnic and Freedoms.

the offence of imposed the origin Accordingly, his students that Jews, among other attributes, were ''treacherous··, ID'J See text above accompanying n 29.
646 (2016) 90 ALJ 631 Anti-Semitism, hate speech and Pt IIA of the Racial Discrimination Act of members responses by reference anti-Semitic conduct people.

to broader of the Jewish community.

standards to intimidate, community or speech is likely also allows (as interpreted for a judgment by the judiciary) or contempt The approach to be made as to whether for Jewish or incite degrade hatred that incorporates references an objective approach consistency to determining in adjudication.
of feelings by the application about an issue within of standards capable the to community the likely The outcome group.

a particular requires of hate speech standards effects would of a complaint Rather, the result to all groups and could be informed but that would not and individuals, of application by of the legislation.

the protection the impact of the hate speech consideration.
on those groups In particular, process The adjudicative of free speech to play a direct the application of community role in an early stage of the adjudicative standards than be introduced into the equation only after the hate speech has been found to seeking While a legislative standard of value judgments, over time to produce application is more likely not depend on the intensity would be determined individuals evidence explaining necessarily be the predominant would allow for the values process, infringe rather the statutory One way of testing speech is to apply the approach For reasons denial.
Holocaust compatible Freedoms penalised Statute 112 which guarantees anyone denying 110 In Garaudy of history, expiation whether prohibition.

this approach to the vexed question provides and a fear of resurgent 111 the European v France, of whether adequate Holocaust protection denial Nazism many European Court of Justice against should countries decided that such laws are anti-Semitic be unlawful.

criminalise with Art 10. l of the European Convention on Human Rights and Fundamental freedom of expression.
The Court therefore the existence Tribunal Military of the International that the French law fell within of one or more crimes against of 8 August 1945 creating the exception society of speech that "are necessary The Court considered freedom crime [or] for the protection of the reputation in a democratic or rights of others".n 4 In its view: upheld a French law which humanity, the Nuremberg as defined in the 113 Tribunals.
in Art 10.2 for laws restricting ... for the protection of disorder or as the applicant The aim and the result There can be no doubt that denying Holocaust, the truth.

rehabilitate falsifying defamation fact undermines constitutes rights because This reasoning of the Jewish community parts of Europe, violence.

commentators that should is likely The analysis between not be prohibited.
they infringe a serious threat the reality of clearly established historical does in his book, does not constitute are completely of that approach regime and, as a consequence, the National-Socialist history.

Denying crimes against of Jews and of incitement of them.
The denial humanity to hatred research historical different, accuse the victims is ... one of the most serious facts, such as the akin to a quest for being to themselves of forms of racial of this type of historical the real purpose or rewriting the values on which the fight against racism and anti-Semitism are based and Such acts are incompatible with democracy and human to public order.

the rights of does not rely simply on the extreme 11 5 others.

(and to others).
(and to others).

to incite therefore hatred reflects hate speech that is justifiably It invokes towards the distinction subject maintained to legislative civil disorder, by Waldron and other and hate speech controls the likelihood Jews and may provoke that Holocaust denial, to members at least in including offence Holocaust denial causes It is perhaps doubtful whether particular this way.
Some forms of Holocaust denial, cases of Holocaust for example, denial may be coupled can be addressed in of other with expressions invariably 110 See n 18 above.

111 Guraud_v 112 European 221 (entered 113 Loi sur la liherte (France) 11 JO, July 1890, s 24.

Com·entio11 into force 3 September m1 Human Rights 1953).

v France (European Court of Human Rights, Application No 6583 l/Ol, 24 June 2003).
and Fundamental Freedmm: Opened for signature 4 November 1950, 213 UNTS de la presse du 29 juil/et 1881, ,w 90-615 [Freedom of the Press Act 29 of 29 July 1881, No 90-6151, 4 European Convention on Humw1 Rights and Fw1damental Freedoms.

Art I 0.2.

115 Garaudy v France (European No 65831/01, Court of Human Rights, Application 24 June 2003), 23.

(2016) 90 ALJ 631 647 Sackville hatred obviously incite a limited 116 Justice.
deluded beliefs that no reasonable person could take them seriously or think that they could of Jews or any other group.
audience as to be incapable Other forms of Holocaust of causing the harm identified may be disseminated by the European denial to such Court of lobbies" Zionist In practice, false and demeaning which involved publications "Israel violence distributed, is likely community follows other minority to degrade, and endanger standards however, Holocaust denial is nearly always accompanied by hate speech imputing characteristics to Jews as a group.
hate speech going beyond Holocaust This is shown by the Australian denial.

were described cases, all of the France, in Garaudy v Similarly, by a French court as asserting that for which the author was convicted distorted history deliberately world unity and peace.
is very likely to be covered by a prohibition which directs Anti-Semitic for political ends in order to legalise speech of this kind, at least if widely the speech attention to whether acts of hatred intimidate rather or incite than relying is drafted or contempt on the subjective in this manner, members against protection to enjoy substantial Discrimination for Jewish people and incorporates impact of hate speech on target of the Jewish community groups.

It and of hate speech.


difficult to justify Act is not the only amendment an interpretation that is worthy of the "exemption" in s 18D in the should That prohibition to the values embodied on free speech.

the laudable aims of the current is the legislative a more defensible prohibition between balance that if the prohibition groups would continue of s 18C of the Racial It is, for example, A redrafting of consideration.

which places legislation.


be drafted legislation But the key provision in terms that achieve and the values of free speech.

a premium on a publisher adhering conscientiously CONCLUSION Once an issue is politicised, Racial Discrimination Act, careful contrasting views.
and tolerance but freedom The proper analysis role of hate speech as occurred in Australia with the debate tends to give way to vehement about retaining advocacy Pt TIA of the of starkly laws in a democracy that values not only diversity of speech and expression, close consideration.

about anti-Semitic speech have played of Pt IIA.

The decided suggest Complaints curious of the rather anti-Semitic conduct, against hate speech.
more appropriate constraints fundamental values underpinning Australian democracy.

the interests as well as on other forms of hate speech, language strongly But they also suggest to the current seeks to accommodate.
an understanding protections drafted Properly with the are compatible between speech, on anti-Semitic against for retaining the interpretation that there are sound reasons the legislation that amendments a legislation legislative part in shaping can achieve balance cases, of is a topic that deserves an important when assessed 116 Section Builder.I' l8C(l) Collectil'e is concerned ii Au.l'tralia only with conduct Inc (2007) 164 FCR that takes place "otherwise 50, [74].
475, [ l 9]; Jones v Tohen than in private": [2002] FCA 1 l sees I8C(2), (3): Silherbe1g v 648 (2016) 90 ALJ 631