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;
(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
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:
"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
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."
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.