Consideration
44 This is not a final judgment. It is necessary to decide this application urgently on evidence that is, or may be, incomplete, or after a full trial when the parties have had more time to prepare, will be found to be wrong or to require substantial qualification. Nothing I say in these reasons will decide the facts or the rights of the parties on a final basis although, of course, it will have an immediate consequence on what may or may not occur tomorrow in respect of Mr Burgess' conduct. That is the nature of an interlocutory decision. The Court must make a decision in circumstances of urgency where the parties have not had a full opportunity to put forward their whole cases. Thus, the Court makes its decision, that will reflect its assessment of how best to balance the parties' conflicting positions. In doing so, the Court must apply the following principles of law.
45 There are two threshold questions that must be decided on the limited evidence and argument now before me in order to determine whether an interlocutory injunction should be granted, as explained in Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57 at 81-84 [65]-[72] by Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed on this point (at 68 [19]).
46 Those questions are, first, whether the Council and Dr Rifi have made out a prima facie case, in the sense that if the evidence remains as it is, there is a probability that subsequently, at the trial of the proceedings, they will be found to be entitled to relief and, secondly, whether the inconvenience or injury that the Council and Dr Rifi would be likely to suffer, if an interlocutory injunction were refused, outweighs or is outweighed by the injury that Mr Burgess would suffer if an injunction were granted.
47 The nature of the rights that each of the parties asserts and the practical consequences likely to flow from the grant of any injunction are matters that the Court assesses in considering how strong a prima facie case for that relief the person seeking it must prove.
48 It is not necessary that the Court find that it is more probable than not that the party seeking interlocutory relief will succeed at the trial. Depending on the circumstances, all that need be shown to justify maintaining the status quo until the trial occurs is that there is a sufficient likelihood that the person seeking the relief will later succeed at the trial.
49 The freedom of speech and the freedom of assembly are essential human rights in a democracy governed by the rule of law. However, no freedom can be absolute because, if it were, its exercise would necessarily impede some other essential human right or aspect of our daily lives. Both statute and common law strike balances between rights and freedoms as they impact upon each other. Over centuries, the common law of defamation evolved to maintain a fragile and often controversial balance between the freedoms of speech and opinion and the individual's right to his or her reputation: O'Neill 227 CLR at 73 [32] per Gleeson CJ and Crennan J (with the agreement of Gummow and Hayne JJ at 89 [93]).
50 A similar balance is reflected in the Constitutional implied freedom of communication on government and political matters. That freedom is a qualified limitation on the legislative power of the Commonwealth Parliament. It ensures that the Australian people may exercise a free and informed choice as electors: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 560 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. As French CJ, Kiefel, Bell and Keane JJ explained in McCloy v New South Wales (2015) 325 ALR 15 at 18-19 [2]-[3], the implied freedom may be subject to legislative restrictions that serve a legitimate purpose compatible with the system of representative government for which the Constitution provides. Their Honours said that this will depend on whether the extent of any legislative burden on the implied freedom "can be justified as suitable, necessary and adequate, having regard to the purpose of those restrictions".
51 Part IIA of the RD Act is framed in a way that seeks to strike such a balance. First, s 18C(1) imposes a limitation on the freedom of speech and expression by making it unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people and the act is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group. Secondly, however, s 18D qualifies that limitation. It provides, relevantly, that anything said or done reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for any genuine purpose in the public interest is not rendered unlawful by s 18C.
52 Thus, s 18D recognises that, in some situations, it will be lawful for a person to make a statement in public that does, for example, offend a person or group because of the person's or group's race or national or ethnic origin. Critically, for such a statement to be lawful, s 18D requires that it be said or done both reasonably and in good faith.
53 What is, or people think should be, government policy on matters such as immigration or the racial, national or ethnic origin of those in our society are matters of genuine public interest. People can lawfully speak about those matters reasonably and in good faith without contravening s 18C of the RD Act, even where their speech offends, insults, humiliates or intimidates others. But, that does not mean that anyone can say anything that he or she likes, however unreasonable the statement may be under the guise that s 18D will render such acts lawful.
54 The purpose of the RD Act, as explained in its preamble, is to make provisions to prohibit racial discrimination and to give effect to the Convention. And, as the States Parties, including Australia, to the Convention recognized in Art 4, propaganda that attempts to justify or promote racial hatred and discrimination in any form are to be condemned and made unlawful. The Macquarie Dictionary online gives one meaning of "propaganda" as being "dissemination of ideas, information or rumour for the purpose of injuring or helping an institution, a cause or a person" (sense 3). I am of opinion that this definition encapsulates the sense in which Art 4 of the Convention uses the word.
55 At common law in defamation actions, the courts have been particularly cautious before granting interlocutory injunctions that may impede a defendant's freedom of speech as Gleeson CJ and Crennan J discussed in O'Neill 227 CLR at 73 [32]. However, s 46PP of the AHRC Act created a statutory remedy of an interim injunction to deal with the class of cases that may arise before a court can resolve a controversy about whether unlawful discrimination has occurred. This remedy extends to cases of alleged racial discrimination.
56 The Parliament created the remedy in s 46PP to deal with situations that, ordinarily, can be expected to involve at least one less substantive consideration than may apply in defamation actions at common law when a court considers whether to grant an interim injunction prohibiting a publication. In a defamation action, a defendant may be able to prove that the matter complained of was true. Both at common law and under the uniform Defamation Acts passed in 2005 and 2006 by each Australian State and Territory, truth is a complete defence in a defamation action.
57 Section 18D of the RD Act, while reflecting the values of the freedoms to make fair comment on, or fair reports of, an event or matter of public interest, and to make publications of a potentially wide nature, does so in a qualified manner. The critical qualification to the exceptions created by s 18D is that any act that s 18C would otherwise render as unlawful discrimination must first be said or done reasonably and in good faith. Thus, when a court is considering the grant of interlocutory relief under s 46PP of the AHRC Act, in respect of an alleged act of unlawful discrimination based on a contravention of Pt IIA of the RD Act, a threshold question may, and in these proceedings does, arise as to whether there is a prima facie case that the act sought to be restrained is, or if allowed to occur, will be, said or done reasonably and in good faith. It is not necessary in deciding the present issues for me to consider any question in relation to Mr Burgess' good faith and I make no findings concerning that question.
58 The respondents' publications in evidence are replete with denigratory assertions that persons answering the description of Middle Eastern or Lebanese race or national or ethnic origin in Mr Burgess' utterances should not be allowed to enter or remain in Australia, and whom he characterises in song as strangers here who are all extremists and dangerous. Mr Folkes and his Party advertised Mr Burgess' presence as a speaker at the Reserve tomorrow, in material that asserted that persons of Middle Eastern race or national or ethnic origin have operated for years in lawless gangs and, to use Mr Folkes' words publicising the event, put "Australians, especially Anglo-Australians" at risk of "social behavior [that] was repugnant, brutish and racially motivated". Mr Folkes also asserted that the purpose of the event was to commemorate a riot by the alleged "Australian" victims that he said "was a reaction to years of intimidation, harassment and sexual and physical assaults perpetrated by the ethnic gangs of south west Sydney". Mr Burgess' webpages rehearse a similar theme.
59 I reject the written submission that the Council's and Dr Rifi's complaints are not capable of engaging s 46P of the AHRC Act. The power given to the Court by s 46PP includes the power to act quia timet - that is in anticipation of an act that will change the status quo - by granting an interim injunction to preserve the status quo ante. The Parliament made racial discrimination unlawful in the circumstances prescribed in Pt II and Pt IIA of the RD Act. A person can, as the Council and Dr Rifi did, request that, based on past acts of unlawful discrimination, the Commission deal with a feared future repetition.
60 I also reject the written submission that there is no need to make findings about the content of the material complained of on the webpages.
61 The written submission failed to identify how the grant of an interlocutory injunction might expose a person, such as Mr Burgess, to the risk of the double jeopardy if it were breached, of committing an offence under the RD Act and contempt. Under s 26 of the RD Act, unlawful discrimination is only an offence if Pt III expressly makes it so, and the subject matter for which the Council and Dr Rifi seek interlocutory relief against Mr Burgess does not appear to be proscribed as an offence in Pt III.
62 I am of opinion that the Council and Dr Rifi have established a sufficiently strong prima facie case. That is because I am satisfied it is sufficiently probable that they will succeed at a trial in demonstrating that if Mr Burgess were permitted to address persons at the Reserve tomorrow, he would cause words to be communicated in a public place, namely the Reserve, or any other place open to the public, that would offend, insult, humiliate or intimidate persons who are of Middle Eastern or Lebanese race or national or ethnic origin, and that what would be said or done would not be reasonable. That is because the tenor of the material complained of on the respondents' websites demonstrates that the likelihood is that Mr Burgess and others who would speak at the event, would stereotype all persons of Lebanese and Middle Eastern race, or national or ethnic origin, as being thugs, gang members, rapists and generally detestable.
63 The material complained of on the respondents' websites appears, on the evidence presently before me, to consist of generalisations that ascribe denigratory characteristics to all persons whom the authors identify as being of Middle Eastern or Lebanese race or national or ethnic origin and to promote hatred, insult and intimidation of those persons because of their race or national or ethnic origin. The generalisations in the material complained of appear to be made because of the race or national or ethnic origin of the persons whom the authors, including Mr Burgess, call Middle Eastern or Lebanese.
64 It is fallacious to reason that because all birds have wings, and the birds on my windowsill have red and green feathers on their wings, therefore all birds have red and green feathers on their wings. The same non-sequitur appears in the respondents' and their correspondents' generalisations in the material complained of about persons of Middle Eastern or Lebanese race or national or ethnic origin.
65 The argument that because one or more persons of a particular race or national or ethnic origin engaged, or were suspected of engaging, in a criminal act or series or acts, therefore all persons of the same race or national or ethnic origin have the same propensity only needs to be stated to demonstrate its unsoundness. No reasonable argument could be put that because some persons of a particular race engaged in a class of conduct, all persons of that particular race will always do so.
66 A purpose of the RD Act is to prohibit the publication of such generalized propaganda from asserting racially stereotypical and offensive features. It may be that some persons committed, or were accused of committing, particular crimes or acts that the respondents' material complained of discusses, and that those people were of a particular race or national or ethnic origin. That circumstance could not reasonably enable anyone to think, for the purposes of s 18D, that all people of that race or national or ethnic origin have the same propensity to commit crimes.
67 I am satisfied after considering the whole of the evidence that it is likely that Mr Burgess and others who are likely to attend and speak at the event, if it or a similar function were held, will engage in unlawful racial discrimination of the nature I have described.
68 It is likely that Mr Burgess and others who would speak at the event or the Reserve, or a similar occasion, will make statements or do acts that are reasonably likely, in all the circumstances, to offend, insult, humiliate and intimidate Dr Rifi and other persons of Lebanese or Middle Eastern race or national or ethnic origin, that those statements or acts will be done because of those persons' race, national or ethnic origin within the meaning of s 18C of the RD Act, and will not be said or done reasonably.
69 Accordingly, I am satisfied that the Council and Dir Rifi have established a prima facie case for relief against Mr Burgess, being the first condition for a grant of the interlocutory injunction that they seek.