Toben v Jones [2003] FCAFC 137

Toben v Jones [2003] FCAFC 137

The Full Court found that publishing the material was done because of the ethnic origin (Jewishness) of persons likely to be offended, as required by s 18C(1)(b) RDA. Section 18C is within constitutional power as a valid exercise under the external affairs power to implement Australia's treaty obligations and is not limited to cases of racial hatred. The appellant did not discharge the onus of showing publication was done reasonably and in good faith for a genuine public or academic purpose under s 18D. The appeal was therefore dismissed.

Parties
Appellant: Fredrick Toben; Respondent: Jeremy Jones
Jurisdiction
Australia
Judgment Date
27 June 2003
Procedural Posture
Appeal / Judgment on Appeal From a Single Judge of the Federal Court of Australia
Outcome
appeal dismissed
Legal Topics
Racial Discrimination, Freedom of Expression, External Affairs Power, Interpretation of 'because Of' in Anti Discrimination Statutes, Good Faith Exemption Under S 18 D RDA
Human Rights Law Discrimination Law Constitutional Law Racial Discrimination Freedom of Expression External Affairs Power Interpretation of 'because Of' in Anti Discrimination Statutes Good Faith Exemption Under S 18 D RDA

Case Brief

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Parties

Fredrick Toben

Appellant

Jeremy Jones

Respondent

Procedural Posture

Appeal / Judgment on Appeal From a Single Judge of the Federal Court of Australia

Legal Issues

  1. 1 Whether Part IIA of the Racial Discrimination Act 1975 (Cth) is constitutionally valid
  2. 2 The requisite causal connection for the phrase 'because of' in s 18C RDA
  3. 3 Whether the publication by the appellant was exempted under s 18D as a genuine academic or public interest act

Ratio Decidendi

The Full Court found that publishing the material was done because of the ethnic origin (Jewishness) of persons likely to be offended, as required by s 18C(1)(b) RDA. Section 18C is within constitutional power as a valid exercise under the external affairs power to implement Australia's treaty obligations and is not limited to cases of racial hatred. The appellant did not discharge the onus of showing publication was done reasonably and in good faith for a genuine public or academic purpose under s 18D. The appeal was therefore dismissed.

Court Disposition

appeal dismissed

Orders

  • The appeal be dismissed.
  • The appellant pay the respondent's costs of the appeal.