Federal Court of Australia The First Decision - Grounds 1, 2 and 3
The German Conviction
On the applicant's behalf it was said that this was simply a
conviction arising out of the expression of Mr. Irving's
views, that Australia, being a democratic country, espouses
freedom of speech and that a reasonable person would regard
such a conviction as being irrelevant to the question of good
character. The German conviction for "slander concomitant with
disparagement of the dead", so it was put, had no equivalent
in Australia.
In my view, that does not mean that the conviction in Germany
was irrelevant to the matter of Mr. Irving's character. The
fact that a person is prepared to break the law of a country,
which he happens to be visiting, is capable of demonstrating a
lack of respect for the law and that cannot be said to be
irrelevant to the question of good character. When the nature
of the conviction is taken into account, defaming the memory
of the dead, in a country where the Holocaust might well be a
matter of particular sensitivity, the proposition that the
conviction is irrelevant to character becomes even harder to
sustain.
This was no traffic infringement. This was an offence
for which the German legislature saw fit to provide for
punishment by up to two years imprisonment and for which an
appellate court imposed a fine equivalent to approximately
$30,000. It is enough that such a conviction may be relevant
to the question of Mr. Irving's character. The weight to be
given to that factor is a matter for the Minister and not for
this Court.
Then it was said, on behalf of the applicant, that it would be
inconsistent to regard the German conviction as being relevant
when there is an express provision in Regulation 4(1)(b)
dealing with convictions for offences in circumstances
indicating, in the reasonable belief of the Minister, habitual
contempt or disregard for the law or for human rights. That
submission suggests that Regulation 4(1) is a code that
defines good character for the purposes of the regulations.
The Full Court held to the opposite effect in the extract from
the Hell's Angels case which I have set out above.
Regulation 4 is a deeming provision and, in my opinion, cannot
render irrelevant a conviction, for example, which might
indicate other serious but not habitual contempt or disregard
for the law. For those reasons I reject that alternative
submission.
The
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Rules Against Irving
The Grounds Upon Which the Applicant Seeks an Order to Review