MORE ON "THOUGHT CRIMES"

by Ian Wilson LL.B.
I was interested to read in June 2005 New Times Survey the article by the contributor Brian Simpson "Thought Crimes: The Race Hate Regime". Simpson took the recent Catch the Fire Ministries case, involving vilification of Islam and showed how race hate legislation, such as Victoria's Racial and Religious Tolerance Act 2001, suppressed free speech on matters of public interest.
My one disagreement with Simpson - and a fundamental one at that - is that he accepts that the judge's reasoning is correct in the case, but that the absurd result is reached because the underlying legislation is absurd. My view is that the legislation is absurd and independent of that, so is the judicial reasoning in the case faulty. Indeed if one considers the history of cases involving racial vilification in Australia (see L. McNamara, Regulating Racism, (2002) and more recent cases such as Jones v Scully, (2002) 120 FCR 243 and Toben v Jones, (2003) 129 FCR 515, the question naturally arises to an inquiring mind about how it is possible to ever satisfy exemption clauses such as section 18D of the Racial Discrimination Act 1975 (Cth).
According to section 18D section 18C, which prescribes certain offensive behaviour because of race, colour or national or ethnic origin, 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 hold 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.

One would have thought that in the face of the plain English reading of these words that Dr. Toben's Adelaide Institute website, which attempted to give Toben's beliefs about the Holocaust, would at least satisfy exemption condition (ii).
Likewise for Mrs. Scully who distributed literature with a similar theme. In Jones v Scully, Justice Hely assumed that the onus of proof with respect to the section 18D exemption rested on the respondent.
In Toben v Jones, this point is again assumed and Toben did not challenge this issue. It should have been and should be challenged in any future cases, especially one taken before the High Court.
Common sense in reading the Act strongly suggests that those making a complaint of race vilification should show that the alleged offender is not exempt. Otherwise it becomes too easy for the State to secure convictions as it has done and the point is pointless.

In the case Toben v Jones, Carr J. reasoned that Toben did not act in "good faith" because a reasonable person would have written "with as much restraint as was consistent with the communication of those views". (Cp.528). Nothing more is said by way of clarification of this remark. On the face of it, most past political writing by Voltaire and even Marx would be captured because of its political passion. The judge then concluded that there was no proof of "good faith".

We are not told what "good faith" requires, but from other cases it usually means ill-will, improper motive or malice. Malice is a desire to injury: Mraz v R 91995) 93 CLR493. I have no idea what Toben's motive was in publishing the allegedly offensive material but if it was "malice" then surely a more detailed argument must be given for this conclusion rather than the bare assertions made on page 528 of the case. On the same page I cannot find the learned judge's justification for the conclusion that Toben has not acted reasonably for any genuine academic or other genuine purpose or in the public interest, but I grant that the problem may be with my reading and comprehension.
It is not my brief to defend the content of Toben's site but rather to comment upon the weaknesses of the arguments, in my opinion of course, in the judgement. As a legally trained person I would find myself doing the same even if the case involved say evidence relating to murder or some other horrible offence. For the record I am not convinced by revisionist arguments but as a civil libertarian I am compelled to defend the basic right of freedom of speech even if it does involve a person saying unpleasant things.

In Burns v Radio 2UE Sydney, [2004] NSW ADT 267 (22 November 2004) was a case before the New South Wales Administrative Decisions Tribunal Equal Opportunity Division. The applicant was Gary Burns and the respondent Radio 2UE Sydney, John Laws and Steve Price. The case concerned a matter of a complaint of homosexual vilification against the respondents. Steve Price and John Laws had made various statements about two homosexual men in a relationship in a television series called The Block. Gary Burns was not one of these two men, but did hear the radio comments and was offended. Burns was found to have standing to lodge the complaint because he was a homosexual man (section 88 (1D), Anti-Discrimination Act 1977 (NSW).

Again, I am not concerned about the content of Laws and Price's programme but only the judicial reasoning in the case. To begin, at paragraph [12] of the case the Tribunal says that it is not necessary to find that there was an intention to incite. This is said even though the Tribunal then says: "Decisions in this Tribunal have been inconsistent on this issue, and the NSW Law Reform Commission has said that it is desirable to clarify the position". One would have thought that the onus was on the Tribunal to clarify the position.

Then in paragraph [13] the Tribunal says that it is not necessary to show that anyone was actually incited. They then immediately note that the wording of the Act seems to require:
"proof that there was in fact incitement of hatred, serious contempt, or severe ridicule. This point - and the point that establishing vilification would be considerably more difficult if proof of actual incitement was necessary - was made in the second reading debates in relation to the identically worded racial vilification provisions… Nevertheless this Tribunal has always proceeded on the basis that it [is not] necessary to prove that anyone was in fact incited by the publication question." [13]

And so it goes on. I will not further bore the reader by systematically criticising this judgement. I hope that I have illustrated the sort of reasoning employed in these type of vilification cases. It is not beyond criticism. I find myself questioning every paragraph.
In conclusion I am in agreement with most of Simpson's paper but I go further in suggesting that many of the standard vilification cases are not satisfactorily decided.