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MORE ON "THOUGHT CRIMES"
by Ian Wilson LL.B.
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).
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.
In Burns v Radio 2UE Sydney,  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  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  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:
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.
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