what led to those amendments, from "an 'epidemic' of swastika-painting and other manifestations of anti-Semitic hatred and prejudice in the northern hemisphere winter of 1959-60" to the adoption of the Racial Hatred Act in 1995.
19 The Explanatory Memorandum to the Racial Hatred Bill 1994 (Cth) (EM) which preceded the Act explains that the Bill was intended to address concerns highlighted by the findings of the National Inquiry into Racist Violence and the Royal Commission into Aboriginal Deaths in Custody. The Bill was intended to strengthen and support the significant degree of social cohesion demonstrated by the Australian community at large. It was based on the principle that no person in Australia needs to live in fear because of their race, colour, or national or ethnic origin. The EM also addressed the intended relationship between the Bill and the implied freedom of political communication inherent in the democratic process enshrined in the Constitution and the meanings to be given to the terms "ethnic origin" and "race." I will return to those matters in due course.
20 As identified in Toben v Jones (at [131]), and with Allsop J's emphasis, the Attorney-General said the following about the Bill in the House on 15 November 1994:
The Racial Discrimination Act does not eliminate racist attitudes. It does not try to, for a law cannot change what people think. But it does target behaviour — behaviour that causes an individual to suffer discrimination. The parliament is now being asked to pass a new law dealing with racism in Australia. It too targets behaviour — behaviour which affects not only the individual but the community as a whole.
21 Section 18C(1) contains the proscription of certain conduct that is at the heart of this case. Subsections (2) and (3), dealing with the meaning of the requirement that the relevant act was done in public, are not relevant to the resolution of this case. Section 18C(1) is in the following terms:
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.
- Note: [omitted]
22 Section 18B provides that if an act is done for two or more reasons and one of those reasons is the race, colour or national or ethnic origin of a person, whether or not it is the dominant reason or a substantial reason for doing the act, then the act is taken to be done because of the person's
