Federal Court of Australia The First Decision - Ground 7 (Error of Law)
The applicant claims that the respondent made an error of law
within the meaning of s.5(1)(j) of the ADJR Act or, in the
alternative, that there had been an improper exercise of power
because the German expulsion order was not an expulsion from
another country in prescribed circumstances. It was submitted
that the applicant's conduct did not constitute a "threat to
national security" within the meaning of Regulation 177(d).
It is importand to have regard in the precise manner in which
Regulation 177(d) prescribes the relevant circumstances.
Regulation 177(d) reads as follows:
"(d) That the authorities of that country considered
the person to be a threat to the national security
of the country."
Mr. Bates submitted that the expression "national security" in
the phrase "the national security of the country" should be
construed in the same way as what would be regarded as
national security in Australia. He submitted that the terms of
the German expulsion order itself showed that the Federal
Republic of Germany was concerned more with public security
and public order than national security.
In essence, so it was
put, the German authorities' complaint was that Mr. Irving
would express controversial views and would attend public
gatherings which they alleged would require considerable
police resources. As an example of why the regulation should
be so construed, Mr. Bates suggested that the Chinese
authorities might regard criticism of their regime as a breach
of their national security but the Australian authorities
would be unlikely to regard such circumstances as falling
within Regulation 177.
The problem with that submission is that it ignores the clear
words of the regulation which defines the relevant
circumstances in terms of the authorities of the deporting
country considering the person to be a threat to the national
security of the country. Whether the person would be
considered to be a threat to the national security of
Australia is not to the point. The regulation expressly defers
to the views of the authorities of the deporting country.
I have examined the terms of the German expulsion order which
include the following:
"Your presence in the Federal Republic of Germany
infringes public security, public order and also
considerably the interests of the Federal Republic
of Germany.
For years you have been entering the Federal Republic
of Germany, to publicise your ideas at functions ...
These ideas constitute the criminal act of insulting
and reviling the memory of the dead. The execution of
such criminal acts continues regularly the
infringement of public security and order. In this
case this is of great importance as the insults and
reviling concern a whole group of the population and
since they are perpetrated in a very public manner.
... Despite the decisions of the Municipal Court in
Munich of 06.05.1992 and the Munich State Court of
13.01.1993 you persistantly keep on publicising your
ideas.
Your behavior apart from the illegality of your
statements infringes public security and order...
Your appearances are being increasingly noticed,
which is due to heightened sensitivity of the
population concerning right-extremist ideas but
mainly due to the resurgence of right-extremist and
Neo-Nazi parties... That you don't regard yourself
as an active member of right-extremist groups is
insignificant. Determining is the fact that three
groups use your ideas for their own purposes,
become encouraged by your ideas and gain increased
importance...
Your behavior consitutes a danger to the inner
security of the Federal Republic of Germany in the
greater[??] sense[??] and at the same time does
great damage to the reputation of the German State:
Your statements and comments[??] as given under
number 1.1 [a reference to an earlier paragraph in
the Expulsion Order] are able to endanger the
peaceful co-existence between Germans and foreigners:
they are being regarded as the truth by a small but
radical part of the population and they are motivating
in the long run to violence and racial hatred."
The Expulsion Order then refers to strengthened National
Socialism and right-extremism, the escalation of violence and
continues:
"Although the majority of the German population
distances itself from such activities, most
recent developments show that there is a base of
right-extremist prepared for violence. This group of
people is especially susceptable to revisionist ideas,
feels supported in its political attitude while
expressing its opinion with violence ... Your
activities as speaker have harmed public security
and order ... The interest of revisionists, right-
extremists and Neo-Nazi groups at your participation
is unabated.
It cannot reasonably be expected of the authorities
to supervise your statements at numberous political
appearances and to be able to criminally prosecute
only after the event. Besides in view of your
reputation in right-extremist circles your mere
presence at political events is able to harm the
interests of the public in the means illustrated
above.
...
An expulsion is therefore imperative as defense
against the danger of recurrence ... Therefor your
immediate departure is necessary as defense against
the danger to public law and order as well as defense
against lasting damage to the Federal Republic of
Germany."
The New Shorter Oxford English Dictionary (at p.2754) defines
'security' relevantly as being "The condition of being
protected from or not exposed to danger; safety spec. the
condition of being protected from espionage, attack or theft".
The same dictionary defines 'national' as "Of or pertaining to
a nation or country, esp. as a whole; affecting or shared by
the whole nation". I reject the distinction which the
applicant seeks to make between "public security and public
order" and "national security". At p.10 of the German
expulsion order there appears the following:
"The term public security is understood as a state
in which the community and individuals can enjoy
undisturbed the rights granted by the Constitution
and other rules, Protective legal norms are
particularly the criminal law and the penal law, which
have the purpose of protecting public security.
Public order comprises all norms concerning actions,
omissions and conditions, [??] observance - beyond the
limits of current positive public and civil law - in
accordance with the prevailing understanding, which
may change in sometimes short periods of time, is the
imperative condition for a productive human and civic
co-existance."
The relevant German authority, at the same page, came to the
conclusion that Mr. Irving's continued presence in the Federal
Republic of Germany impaired public order and security or
interfered with other important interests of that country
contrary to s.45(1) of the Law Concerning Foreigners.
In my view, sufficient appears from the German expulsion order
to indicate that the authorities of that country considered
Mr. Irving to be a threat to the national security of the
country not just to local public security. It is also of some
relevance that his expulsion was not from a particular area or
State of Germany but from the whole of the Federal Republic of
Germany. Accordingly, in my opinion, the circumstances of Mr.
Irving's expulsion from that country fell within Regulation
177(d).
The
original plaintext version
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Rules Against Irving
The Grounds Upon Which the Applicant Seeks an Order to Review