FEDERAL COURT OF AUSTRALIA

[2002] FCA 1150

JONES v TOBEN

EXPLANATORY MEMORANDUM

1                     By this proceeding the applicant sought orders of the Court for the enforcement of determinations made by the Human Rights and Equal Opportunity Commission (“HREOC”) on 5 October 2000.  HREOC found that the respondent had engaged in conduct rendered unlawful by section 18C of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”) by publishing on a website material that vilified Jews.

2                     The proceeding before the Court was finally determined on an application made by the applicant for summary judgment.  The application for summary judgment was made approximately fourteen months after the proceeding was instituted in the Court. 

3                     The Court has exercised its discretion to give judgment on the application for summary judgement because it was satisfied that the respondent was unwilling to co‑operate with the Court and the applicant in bringing the proceeding to trial within an acceptable timeframe or at all.  Although the respondent did not defend the application for summary judgment, the applicant was required to place evidence before the Court to justify the orders sought by him.

4                     The Court was satisfied on the evidence adduced by the applicant that the respondent, as director of the Adelaide Institute, has published material on the World Wide Web which is reasonably likely, in all of the circumstances, to offend, insult, humiliate and intimidate Jewish Australians or a group of Jewish Australians (“the offending material”).  The Court was further satisfied that the respondent published the offending material because of the ethnic origin of Jewish Australians.  As the respondent filed no defence in the proceeding there was no occasion for the Court to consider whether the respondent’s conduct fell within any exemption to the operation of s 18C of the Racial Discrimination Act.

5                     The Court has made an order declaring that the respondent has engaged in conduct rendered unlawful by Part IIA of the Racial Discrimination Act.  It has also made orders requiring the respondent to remove the offending material, and any other material the content of which is substantially similar to the offending material, from all World Wide Web sites controlled by him or the Adelaide Institute and not to publish or republish such material.

6                     The respondent sought to characterise this proceeding as one raising important issues concerning freedom of speech in this country.  The debate as to whether the Racial Discrimination Act should proscribe offensive behaviour motivated by race, colour or national or ethnic origin, and the extent to which it should do so, was conducted in the Australian Parliament by the democratically elected representatives of the Australian people.  The Parliament resolved to enact Part IIA of the Racial Discrimination Act which includes s 18C.  Australian judges are under a duty, in proceedings in which reliance is placed on Part IIA of the Racial Discrimination Act, to interpret and apply the law as enacted by the Parliament.

7                     This memorandum and the reasons for judgment will be available on the internet at www.fedcourt.gov.au after the delivery of judgment.

Federal Court of Australia

Sydney

17 September 2002