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Commission Submission - Country v Beers

Legal

IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

AT DARWIN

NO. DZ5 OF 2003

BETWEEN:

JOHN MORRIS KELLY COUNTRY

Applicant

AND:

LOUIS BEERS

Respondent

SUBMISSIONS OF THE ABORIGINAL AND TORRES STRAIT ISLANDER SOCIAL JUSTICE COMMISSIONER AND ACTING RACE DISCRIMINATION COMMISSIONER

Scope and summary of submissions

1. On 16 July 2003 the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner (the Commissioner) was granted leave to appear as amicus curiae in these proceedings, pursuant to s 46PV(2) of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (the HREOC Act).

2. The Commissioner makes the following written submissions and may seek to supplement them, with the leave of the Court, with brief oral submissions.

3. These submissions are limited to a consideration of the interpretation of sections18C and 18D of the Race Discrimination Act 1975 (Cth) (the RDA). The Commissioner does not seek to make submissions in relation to the factual issues in the present proceedings.

4. In summary, the Commissioner seeks to make the following submissions:

  • The question of whether the respondent's act was "reasonably likely in all the circumstances to offend, insult, humiliate or intimidate" involves the application of an objective test and it will be sufficient if a subset of the broader group of "Indigenous Australians" may reasonably be offended by the act or acts complained of (paragraphs 6 to 10);
  • The words "offend, insult, humiliate or intimidate" should be given their ordinary meanings and regard should be had to historical and current socio-economic disadvantage and racism and the minority position of Indigenous people in Australia in determining what is "reasonably likely" to offend, insult, humiliate or intimidate (paragraphs 11 to 19);
  • The acts complained of should be found to be done "because of" race if there is anything to suggest race as a factor in the actions of the respondent (paragraphs 19 to 22);
  • Section 18D of the RDA should be construed narrowly, and the onus of proof with respect to an exemption under section 18D rests with the respondent, who must show that the act or acts complained of were done, first, reasonably, secondly, in good faith, and thirdly, in the performance, exhibition or distribution of an artistic work (paragraphs 23 to 45).

Legislation

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

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

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

a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

(2) For the purposes of subsection (1), an act is taken not to be done in private if it:

(a) causes words, sounds, images or writing to be communicated to the public; or

(b) is done in a public place; or

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

(3) In this section:

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

18D Exemptions

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a) in the performance, exhibition or distribution of an artistic work; or

(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c) in making or publishing:

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

(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

Whether the respondent's act was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate

6. It is necessary for the Court to first determine whether the acts complained of are 'reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or a group of people' under section18C(1)(a) of the RDA.

Objective test

7. The test is an objective one: McGlade v Lightfoot [2002] FCA 1457 (at [42], citing with approval Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615, Creek v Cairns Post Pty Ltd [2001] FCA 1007, and Jones v Scully [2002] FCA 1080). It is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question: Jones v Scully (at [99]).

8. At the same time, the response to the acts complained of must be reasonable. That is, the "yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of relations among racial groups": Corunna v West Australian Newspapers (2001) EOC 93-146 (at [8.4]). The proper test is the "reasonable victim" test: McLeod v Power [2003] FMCA 2 (at [65]), which ensures cultural sensitivity when deciding the types of acts that are considered offensive.

9. Evidence of the subjective effect on the applicant of the act in question is nevertheless admissible and may be relevant, but is not determinative in answering the question: McGlade v Lightfoot (at [44]), agreeing with the approach in Jones v Scully, which followed Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615.

Person or group of people affected

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

  • in McGlade v Lightfoot (at [46]), the relevant group was defined as "an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture";
  • in Creek v Cairns Post Pty Ltd (at[13]), the group was defined by Kiefel J as "an Aboriginal mother, or carer of children, residing in the applicant's town"; and
  • in Jones v Toben [2002] FCA 1150 (at [95]-[96]), the subset of people was defined as "members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability."
Reasonably likely to offend, insult, humiliate or intimidate

11. The words "offend, insult, humiliate or intimidate" should be given their ordinary English meanings: McGlade v Lightfoot (at [51]); Jones v Scully (at [102]); Jones v Toben [2002] FCA 1150 (at [90]). In Jones v Scully (at [103]), Hely J set out the various dictionary definitions of those words, which may assist the Court in interpreting them:

"103. Dictionary definitions of the terms used in s 18C are as follows:

Offend

"1. To irritate in mind or feelings; cause resentful displeasure in.

2. To affect (the sense, taste, etc) disagreeably."

(Macquarie Dictionary 3rd Ed.)

In its chief sense "to hurt or wound the feelings or susceptibilities of; to be displeasing or disagreeable to; to vex, annoy, displease, anger; to excite a feeling of personal annoyance, resentment or disgust in (any one)."

(Oxford English Dictionary)

Insult

"To assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage."

(Oxford English Dictionary)

Humiliate

"To lower the pride or self respect of; cause a painful loss of dignity to; mortify."

(Macquarie Dictionary)

"To make low or humble in position, condition or feeling; to humble."

(Oxford English Dictionary)

Intimidate "

1. To make timid, or inspire with fear; overawe; cow.

2. To force into or deter from some action by inducing fear."

(Macquarie Dictionary)

"To render timid, inspire with fear; to overawe, cow; in modern use especially to force to or deter from some action by threats or violence."

(Oxford English Dictionary)".

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

"Rather, I understand Her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to 'mere slights' in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult (see also Jones v Scully per Hely J at [102]). It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA" [92].

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

14. As the New South Wales Administrative Decisions Tribunal recognised in Kazak v John Fairfax Publications Limited [2000] NSWADT 77 (22 June 2000)(at [64]), "[c]ommunications take their meaning, in part, from the historical and social context relevant to the issues being addressed."

15. The Tribunal also observed in Kazak:

66. the same words uttered about white Australians may not have the same effect as when they are said about indigenous Australians. Palestinians (and Arabs in general) as well as Israelis (and Jews in general) are both groups which have traditionally been the target of racism. While the legislation protects all racial groups from vilification, the identity of the racial group being targeted may mean that similar acts in respect of one group are less likely to incite hatred etc than the same acts in respect of another racial group. .

71 . the following factors are relevant when determining the historical and social context of the public act:

  • the identity and history of the group concerned and the degree to which they have been subjected to racism in the past; .

.the following factors are not relevant when determining the social context of the public act:

  • the existence of intense discussion or debate about a particular issue;
  • the fact that an ordinary person to whom the public act is communicated would be aware that people hold divergent and extreme views on a particular issue;
  • whether adequate or balanced coverage is given to the issue in a separate public act."

16. The Commissioner also submits that the identity and history of the person who commits an act may be relevant. To the extent that these matters are known to a person's audience, they will also influence the meaning and the effect on a "reasonable victim", of the particular act.

17. Furthermore, the immediate context in which an act takes place is significant: a joke in a bar between friends differs qualitatively from a joke told by a stranger to a paying audience.

18. The truth or falsity of a statement is not determinative of whether it can or does constitute racial vilification. A true statement can nevertheless be offensive in the relevant sense: Jones v Toben (at [89]), Jones v Scully (at [104]); Creek v Cairns Post Pty Ltd (at [6]).

Requisite causal relationship - section 18C(1)(b)

19. Section 18C(1)(b) requires that the act complained of is done "because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group."

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

21. Therefore the relevant inquiry is whether anything suggests race as a factor in the actions of the respondent: Jones v Toben (at [98]), Toben v Jones (at [24]-[31], Carr J), Creek v Cairns Post Pty Ltd (at [28]), Jones v Scully (at [114]). It is not necessary for an applicant to prove a motive or intention to vilify, although this may be relevant to the question of causation: Toben v Jones (at [31], Carr J).

22. In Jones v Toben (at [99]), Branson J found that the material before her included many references to Jews and was "plainly calculated to convey a message about Jewish people. Her Honour's approach was approved on appeal in Toben v Jones [2003] FCAFC 137. In McGlade v Lightfoot, the respondent had made comments to a newspaper journalist expressing his views about Aboriginal people; Carr J did not refer to any authority on the issue of causation, but found that:

"the evidence establishes that the respondent's act was done because of the fact that the persons about whom the respondent was talking were of the Australian Aboriginal race or ethnic origin. there could be no other reason for the respondent's statements than the race or ethnic origin of the relevant group of people."[66]

Whether any of the statutory exemptions apply

23. Section 18D(a) may arise for consideration in these proceedings. Section 18D(a) provides that section 18C does not render unlawful anything said or done reasonably and in good faith in the performance, exhibition or distribution of an artistic work. Therefore there are relevantly three elements to an exemption under section 18D(a) - the act must be done:

  • reasonably; and
  • in good faith; and
  • in the performance, exhibition or distribution of an artistic work.
Onus of proof for establishing an exemption

24. If section 18D(a) does arise, the onus of proof with respect to an exemption and proving the three elements of section 18D(a) would rest with the respondent: Jones v Scully [127] - [128], McGlade v Lightfoot [68]-[70], Jones v Toben [101] (this point was not challenged on appeal: Toben v Jones [41], Carr J).

Should section 18D be given an extended meaning or construed narrowly?

25. Anti-discrimination legislation is beneficial and remedial legislation and should be given a liberal construction in accordance with its purposes and objects. Exemptions to anti-discrimination legislation should be narrowly construed: Waters v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J; IW v City of Perth (1997) 191 CLR 1 at 14 per Brennan CJ and McHugh J at 22-23, per Gaudron J, at 27 per Toohey J, at 39 per Gummow J and 58 per Kirby J; X v Commonwealth (1999) 200 CLR 177 at 223 Kirby J; and Qantas Airways Limited v Christie (1998) 193 CLR 280 at 332 per Kirby J.

26. Consistent with that presumption, the Commissioner submits that section 18D should be construed narrowly. A broad reading of the exemptions in section 18D should not be preferred as it would potentially undermine the protection afforded by the vilification provisions.[1]

27. The fact that section 18D relates to freedom of expression does not require that it be given any wider application. Parliament has already carefully and precisely drawn the boundary between rights of freedom of expression and rights to be free of offensive behaviour based on racial hatred. As Brown FM noted in McLeod v Power, (at [45]) when the Racial Hatred Bill 1994 was introduced into Parliament, there was considerable debate as to whether or not section 18C would unduly restrict freedom of speech. The Explanatory Memorandum to the Racial Hatred Bill 1994 also noted that this balance between competing rights was carefully considered in the drafting of the legislation. Section 18D is specifically concerned to protect aspects of freedom of speech, as noted in the Explanatory Memorandum:

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

However, the operation of proposed section 18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.

First, there is the exemption which deals with an act that is done reasonably and in good faith in relation to artistic works. This exemption would cover both serious drama and comedy acts. Whilst some of these performances may cause offence to some people, they are presented as entertainment and are not within the scope of the prohibition.

28. While free speech considerations are plainly a basis for the existence of the exemption in section 18D, they do not justify any broadening of the interpretation or application of these provisions. Rather, the usual presumption regarding the construction of exemptions to anti-discrimination legislation applies to section 18D.

29. A narrow approach to the construction of section 18D is also consistent with principles of construction relating to Australia's international obligations. It is well recognised that Australian courts interpret and apply legislation, so far as the language admits, in a manner which accords with Australia's treaty obligations.[2] Moreover, where a statute incorporates or refers to a provision of an international instrument, the statute should be given the same meaning as the international instrument.[3]

30. Part IIA of the RDA, which contains sections 18C and 18D, implements in part article 4[4] and other provisions of the ICERD (see discussion in Toben v Jones [2003] FCAFC 137 at [136], Allsop J) and certain provisions of the International Covenant on Civil and Political Rights[5] (ICCPR) (see Toben v Jones at [19]-[20], Carr J), relating to the elimination of racial discrimination.

31. Articles 19(3)(a) and 20(2) of the ICCPR specifically provide for legal restrictions on freedom of speech necessary to respect the rights or reputations of others, and require that any advocacy of racial hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.[6] In addition, the International Convention on the Elimination of All Forms of Racial Discrimination[7] (ICERD) requires State Parties to undertake measures to eradicate all incitement to, or acts of, racial discrimination or hatred. Unlike the RDA, those obligations are not subject to any relevant exceptions. Hence, when construing section 18D, a narrow construction will accord more closely with Australia's international obligations and is, to the extent the language of the RDA permits, to be preferred.

32. The Commissioner notes the decision of Nicholson J in Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510,[8] which suggests that a "broad approach" to section 18D is appropriate (at [27]-[32]). The Commissioner submits, with respect, that such an approach is inconsistent with the authority cited above at paragraph 25 and should not be followed.

The interpretation of 'reasonably and in good faith'

(i) Objective and Subjective Elements

33. The Commissioner submits that "reasonableness" and "good faith" are properly considered as separate elements of the exemption in section 18D. Whether an act is done "reasonably" will be answered by reference to the objective circumstances of the act. "Good faith" requires a consideration of the intention of the respondent, upon whom the onus rests to satisfy the exemption.

34. The Commissioner submits that this is the approach taken by the Full Court in Toben v Jones [2003] FCAFC 137, [44]-[46] (Carr J), [78] (Kiefel J, agreeing with Carr J), [161]-[164] (Allsop J) where both the actions of a "reasonable person" and the intention of the appellant (the respondent at first instance) were considered. The appellant was, in that matter, found to have been "deliberately provocative" and was "intending to offend" and was thus unable to satisfy the onus on him under section 18D. Carr J concluded in the context of that case: I think that the primary judge was correct in finding that there was no proof of good faith. I would go further and hold that there was no proof that the publication was done reasonably or in good faith.

35. This passage suggests strongly that the requirement of "reasonableness" is additional to and distinct from the requirement of "good faith" for the purposes of s 18D.

36. This approach was also taken by the Queensland Anti-Discrimination Tribunal in Deen v Lamb [2001] QADT 20, considering the meaning of "reasonably and in good faith" in the context of section 124A(2)(c) of the Anti-Discrimination Act 1991 (Qld) (see pages 7-13). Commissioner Sofronoff stated (at page 12): "In also making reasonableness a requirement the statute adds a further objective standard to the requirement that the act be done in good faith.".

37. The Commissioner notes that this approach is contrary to that taken by Nicholson J in Bropho v Human Rights & Equal Opportunity Commission (at [36]). His Honour held that:

"The characterisation of the use of the good faith requirement in conjunction with the reasonableness requirement as requiring the objective approach precludes the possibility of the application of the requirement for a respondent to a complaint to positively establish its state of mind in that respect as a necessary part of the evidence".

38. It is respectfully submitted that his Honour's approach is not consistent with the approach of the Full Court in Toben v Jones and should not be followed. The Commissioner notes that a view of "good faith" as requiring a subjective view is consistent with its meaning in other contexts. In Cannane v Cannane Pty Ltd (1998) 192 CLR 557 [596] (to which Nicholson J refers in Bropho), Kirby J commented as follows:

The words "good faith" and "acted in good faith" appear in many statutes in virtually all countries of the common law. It would be erroneous to suggest that a single meaning could be adopted, indifferent to the particular statutory context. It has been remarked that, putting it broadly, the words "good faith", or their Latin equivalents, have received "two divergent meanings": (Siano v Helvering (1996) 13 F Supp 776, cited in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993)44 FCR 290 at 298. See also South Australia v Clark (1996) 66 SASR 199 at 230; Municipality of Bhiwardi v Kailash Sizing Works (1974) 2 SCC 596 at 599). The first is a broad or subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produce it. The second involves the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence. The particular interpretation apt to the use of the words in a given legislative context will depend on the decision-maker's elucidation of the purpose of the legislature.

39. While Nicholson J found that "good faith" should, by reason of its coupling with "reasonably" be understood in the second meaning referred to by Kirby J, the Commissioner submits, with respect, that the effect of the word "reasonably" is, in fact, the opposite. It imposes a separate objective requirement upon a respondent seeking to make out the exemption in s 18D in addition to the subjective element of "good faith".

(ii) Limits and Content of "Reasonably and in Good Faith"

40. For an act to be done "reasonably", it must be one which the ordinary, reasonable person would consider to be reasonable in the circumstances of the case: see for example Western Aboriginal Legal Service v Jones (2000) NSW ADT 102 [121], considering section 20C(2)(c) of the Anti-Discrimination Act 1977 (NSW) (which includes the words "done reasonably and in good faith").[9]

41. It is necessary to consider the nature and seriousness of the harm caused by an act in determining whether it is done reasonably. In general, the more serious the harm caused by a particular act, the less likely it is to be reasonable. Where acts relate to minority groups who have experienced extensive disadvantage and racism, the reasonable person will be conscious of the likelihood or possibility that there may be particular sensitivity relating to those acts. For example, in Toben v Jones, Carr J stated (at [44]):

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

42. The nature of the artistic work and the context of the impugned act within it may also be relevant to an assessment of its reasonableness. For example, racist views expressed by a character in a play may be qualitatively different to those same views expressed by a comedian giving a performance.

43. In order to determine the existence or otherwise of "good faith", the Commissioner submits that an assessment must be made of whether the act was done honestly and genuinely in the context of a legitimate purpose under section 18D. As noted in Western Aboriginal Legal Service v Jones (at [122]):

If a statement is made in good faith, that would appear to be the converse of acting with malice. 'Good faith' appears to imply the absence of spite, ill-will or other improper motive. As with malice, 'good faith' appears to be a state of mind...

44. Where insult or offence is found to be deliberate, this would suggest very strongly an absence of good faith: Toben v Jones at [161]-[163], Allsop J.

In the performance of an artistic work

45. The term "artistic work" is not defined in the RDA, although the reference to the "performance" of an "artistic work" in the RDA suggests that the exemption will attach to dramatic works such as plays and films as well as comedy performances.

7 October 2003

Susan Roberts

Solicitor for the Aboriginal and Torres Strait Islander Social Justice Commissioner and Acting Race Discrimination Commissioner

Human Rights and Equal Opportunity Commission

1. See for example Akmeemana and Jones, "Fighting Racial Hatred", op. cit., pp.129-179; Eastman, 'Drafting Racial Vilification Laws: Legal and Policy Issues" (1995) Australian Journal of Human Rights 285; Solomon, "Problems in Drafting Legislation Against Racist Activities" (1995) Australian Journal of Human Rights 265.

2. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ. See also Maxwell on the Interpretation of Statutes (7th Ed, 1929) at 127; Pearce, Statutory Interpretation In Australia (5th Ed, 2001) at [5.14].

3. See for example Minister for Foreign Affairs and Trade and Ors v Magno and another 37 FCR 298, Gummow J; De L v Director General, NSW Department of Community Services (1996) 187 CLR 640.

4. Australia has a reservation to Article 4(a) of the ICERD, and does not treat as offences all the matters covered by Article 4(a); such matters are punishable only to the extent provided by the existing criminal law.

5. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976, except Article 41 which came into force 28 March 1979; ratified by Australia 13 August 1980, except Article 41, which was ratified on 28 January 1993).

6. Article 19 of the ICCPR relevantly provides as follows:

"2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others; ."

See, as an example of the application of this permissible restriction on speech to holocaust denial, the decision of the United Nations Human Rights Committee in Faurisson v France (550/93). Article 20(2) of the ICCPR further provides that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." The Commissioner's legal representatives note that Australia has a reservation to Article 20, as follows: "Australia interprets the rights provided for by articles 19, 21 and 22 as consistent with article 20; accordingly, the Commonwealth and the constituent States, having legislated with respect to the subject matter of the article in matters of practical concern in the interest of public order (ordre public), the right is reserved not to introduce any further legislative provision on these matters." As far as the Commissioner's legal representatives are aware, the United Nations Human Rights Committee is yet to deal with a potential breach of this obligation. However, it made a reference to that article in a decision on the admissibility of a complaint under article 19 in JRT and the WG Party v Canada (104/81). In that matter, the author of the complaint was prevented from using his telephone service to play pre-recorded anti-Semitic messages. The Committee ruled the complaint "inadmissible" for being incompatible with the provisions of the ICCPR, noting that Canada had an obligation under article 20(2) to prohibit such speech.

7. International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969 except Article 14 which came into force 4 December 1982; ratified by Australia 30 September1975, except Article 14, which was ratified 4 December 1982.

8. An appeal to the Federal Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) of the decision in Corunna & Ors v. West Australian Newspapers Ltd (2001) EOC 93-146.

9. This decision was set aside by appeal on procedural issues relating to the identity of the complainant: Jones & anor v Western Aboriginal Legal Service Limited (EOD) [2000] NSW ADTAP 28.

Last updated 15 April 2004.