Bropho v HREOC & Anor

[2005] HCATrans 9

[2005] HCATrans 009

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P18 of 2004

B e t w e e n -

ROBERT CHARLES BROPHO

Applicant

and

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

First Respondent

WEST AUSTRALIAN NEWSPAPERS LIMITED

Second Respondent

Application for special leave to appeal

GLEESON CJ
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 FEBRUARY 2005, AT 10.58 AM

Copyright in the High Court of Australia

__________________

MR G.M.G. McINTYRE, SC:   If it please the Court, I appear for the applicant.  (instructed by Dwyer Durack)

MR W.S. MARTIN, QC:   May it please the Court, I appear with my learned friend, MS C. GALATI, for the second respondent.  (instructed by Edwards Wallace)

GLEESON CJ:   There is a certificate from the Deputy Registrar saying that the first respondent has filed an appearance indicating that it will submit to any order of the Court save as to costs.  Yes, Mr McIntyre.

MR McINTYRE:   Yes, thank you, your Honour. This is an application which turns on the question of the proper test to be used in applying the words “reasonably and in good faith” in section 18D of the Racial Discrimination Act.  It is a matter of some significance beyond its own facts and circumstances and beyond the statute of Western Australia in the sense that those same terms are used not only in many other pieces of legislation but more particularly in racial vilification laws in New South Wales, South Australia, Australian Capital Territory, Queensland, Victoria and Tasmania and the various tribunals who apply those words in those statutes in those various States have generally been following the approach which is indicated in the Commissioner’s decision which founds this application today. 

KIRBY J:   You said the statute of Western Australia but we are concerned with the federal statute here, are we not?

MR McINTYRE:   There is no West Australian statute, it is the federal statute.

KIRBY J:   I thought you had said the statute of Western Australia.

MR McINTYRE:   No, I did not, your Honour.  Various other states have a similar statute.  Western Australia does not have one, hence perhaps while this is a Western Australia based matter, the proceedings were under the federal legislation.

KIRBY J:   Thinking of Coleman v Power and the recent decision of the Court and the need to construe legislation always conformably with the Constitution, can it be said that the approach below is sustained by the constitutional inhibition on laws of the Parliament that it would impede free speech about matters of political and current discourse in our representative democracy? It does not seem to have been expressly litigated but I wonder if one view is that the approach taken by the Full Court is conformable with the constitutional requirement and the approach that you are urging might run into constitutional problems.

MR McINTYRE:   There is at the heart of this matter a question of balance between the general issue of freedom of speech and, of course, the statutory provision which is the subject of these proceedings which places a limitation upon the freedom of speech in order to protect a particular group that are identified or particular classes of persons who are identified in this piece of legislation.  The importance of this case is that particularly Justice Lee and Justice French looked at the question of that matter of balance, the question of a proper analysis of how the racial vilification legislation fits with that broader notion of freedom of expression.

KIRBY J:   I am just raising the question that no one has put into the balance that potentially rather large weight of the constitutional rule inhibiting legislative interference in free expression on matters of political current concern relevant to a parliamentary democracy.

MR McINTYRE:   Yes.  I take your Honour to be suggesting that there may be some underlying issue as to the validity of the legislation in question?

KIRBY J:   Well, that question has not been litigated but short of validity, there is the point raised in Coleman v Power, at least in some of the reasons, that you look at the construction of the statute having regard to the constitutional framework in which the statute must operate and that framework contains, following Lange and other cases, the requirement that any inhibitions on free expression including in cartoons on matters of current political and public concern is limited by the necessity of the Constitution not interfering with the representative democracy.

MR McINTYRE:   Yes, your Honour, that is a live issue, we would say, in this proceeding and it perhaps ‑ ‑ ‑

HAYNE J:   That is a startling proposition, Mr McIntyre, when there has been no 78B at any stage of the process.  It is a new point, is it not, Mr McIntyre?

MR McINTYRE:   Yes, it must therefore be so, although in this sense ‑ ‑ ‑

KIRBY J:   You say it has been there but not articulated in the constitutional terms but the balance that has to be struck has been woven through all of the decisions of the Commissioner and of the Full Court and I am just raising that as a question that does not seem to have been addressed. People do not read the Constitution. They should always have it by their bedside, as Justice Murphy once told me he did. Anyway, I think it would be better if we just put that to one side for the moment and you press on in the time with the way in which you want to advance it.

MR McINTYRE:   Yes, I think your Honour has characterised it correctly. It is an underlying issue and the real matter which was raised for debate in this proceeding was the question of the proper test to create the balance that one must find between the two provisions of the legislation. Section 18C, of course, creates the offence of racial vilification and section 18D creates the exemptions or the exceptions, depending upon which view one takes of it. Your Honours may have noted that Justice French entered into a detailed analysis of the case overall, its facts and expressed the view that we may be considering not an exception but an exemption and that matters of burden of proof may not in truth be in issue in these proceedings, but the ultimate ‑ ‑ ‑

KIRBY J:   That is a nice point but it is a bit esoteric for the issue that is here. You say you have to read down the exemption or exception because of the important content of the primary rule in the statute.  Now, Justice Lee was persuaded by your argument.  How would you describe the essential difference between the dissenting view in the Full Court and the view of the majority?

MR McINTYRE:   In our view, there is really no difference in the analytical approach which Justice Lee and Justice French took and that Justice French, we would contend, analysed the issues correctly but then when coming to applying them to the facts in the particular case seemed to move away from applying what he initially indicated in his judgement was the proper test. If one goes, for example, to page 147 of the application book about in the middle of Justice French’s decision, he looks at the construction of section 18D “reasonableness” and he says at paragraph 79:

There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done ‘reasonably’ in one of the protected activities in par (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out.

And then he says further down at paragraph 80:

An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question.  An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes.

GLEESON CJ:   The particular form of art with which we are concerned is a cartoon.

MR McINTYRE:   Yes.

GLEESON CJ:   How do you apply the concept of “reasonableness” to a cartoon which of its nature is intended to lampoon or ridicule?

MR McINTYRE:   Well, we say that it can only be reasonable if its primary and its only purpose is to pursue the matter of public interest which was in debate and, of course, the ‑ ‑ ‑

HAYNE J:   How do you relate that to the words?  What words of the section are you picking up by that proposition?

MR McINTYRE:   I think the word “reasonable” is the one.  There must be a reasonable relationship between the purpose of the publication and what is in fact published.

GLEESON CJ:   But ridicule is an appropriate and very common form of political commentary.

MR McINTYRE:   Yes.

GLEESON CJ:   How do you in practice decide whether some ridicule is reasonable and some ridicule is unreasonable?

MR McINTYRE:   It is the subject matter of the ridicule.  If the ridicule had been restrained to the matters which Mr Murray, the editor, identified, that is the use of public funds, the scramble to attend the delegation, the rivalry between the individuals, all of those matters were appropriate subjects of ridicule.  What we say misfired in this was for the cartoonist to create several other targets in the course of the cartoon and Mr Murray concedes that Alston typically has a number of targets and he went beyond the target with a political issue at hand which was properly the subject of discussion and ridicule and went on to ridicule matters of religion, matters of ancestry, of Aboriginal people generally, and it is that misfiring of the target beyond the public purpose which could be identified which takes the matter beyond “reasonable”.

GLEESON CJ:   Can religion not sometimes reasonably be the subject of ridicule?

MR McINTYRE:   It can be, but in this instance it was entirely peripheral or entirely irrelevant, we would suggest, to the issue at hand.  The issue was the behaviour of those individuals, the way in which they went about their activity of retrieving the head of Yagan and the way in which they used public funds.  Those are all legitimate matters of ridicule.  They did not give any cause to ridicule the religion or the ancestral beings of that broader group of people.

GLEESON CJ:   We all have to deal with this issue because it is in the legislation, but I have some sympathy with people on both sides of this argument who are endeavouring to deal with the practical problem of applying a concept of “reasonableness” to conduct which sets out to ridicule somebody or something.

KIRBY J:   I suppose you say that that is the very sort of thing that the High Court should therefore grapple with and seek to give guidance.

MR McINTYRE:   Exactly, your Honour, and Justice Lee has approached it in a particular way and we say Justice French really also set out the same test.  For example, at page 148, paragraph 81, while not referring to the cartoon - he casts it more generally - he says in the second sentence:

A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done ‘reasonably’.

And that is really the point that I have just been making.  So that Justice French and Justice Lee both understood ‑ ‑ ‑

KIRBY J:   But the statute seems to contemplate that they may be done reasonably because it provides first that you may not make a gratuitously offensive, say racist, comments but then it provides for an exception if it is done reasonably and in good faith, so the fundamental assumption of the statute is that you can have both requirements fulfilled.  The difficulty is working out how in a particular case that balance is achieved.  Now, why is the decision in this case such that it provides a useful vehicle for this Court to endeavour to clarify?  Why cannot one say minds might differ about reasonableness but in this case you have the majority view below, the Commission itself and then the majority in the Full Court and the very experienced trial judge, so why is this a good vehicle for looking at this question in this case?

MR McINTYRE:   Because it places the matter in sharp relief.  In the factual circumstances of this case, Mr Murray, the editor, made a judgment call, as it was said by him, and reiterated in the judgments.  He understood that there would be some flak, that people would be offended but nevertheless chose to publish the matter.  He understood that he was publishing a matter which involved matters of ridicule but, as Justice Lee points out, he does not appear to have applied his mind to the proper balancing test to create that degree of proportion which must be ‑ ‑ ‑

GLEESON CJ:   We are not sitting on an appeal from Mr Murray.  The question before the Federal Court was whether the reasoning of the Human Rights and Equal Opportunity Commission, and particularly that part of it that appears between pages 71 and 73, involved legal error.  Where do you say is the legal error in that part of the reasoning of the Commission?

MR McINTYRE:   What the Commission has done is to accept that such a judgment call on those facts can be regarded as reasonable or indeed for the Commission to conclude that Mr Murray was acting in good faith when what he said was not, “I considered this matter; I considered the degree of offence and I considered that the degree of offence would not be sufficient to prohibit publication”, when what he actually ‑ ‑ ‑

HAYNE J:   Do you challenge the test applied by the Commissioner at page 73, lines 8 to 13 where it is described as being:

Testing the cartoon against “moral and ethical considerations, expressive of community standards” -

Was that a wrong test?

MR McINTYRE:   It is not wrong to apply that test.  It is the way in which he applied it.  We say that ‑ ‑ ‑

HAYNE J:   That is to say, is the complaint about the result obtained by applying the correct test?  If that is so, where is the error of law?

MR McINTYRE:   We say that he did not apply that test.  He may have expressed it but we say that he did not apply it.  He did not, as Justice Lee points out, consider the question of gratuitous insult in applying that test and he misapplied it by lumping together what was in the cartoon with a whole range of articles of which complaint could not be made and he applied those articles to the cartoon to arrive at the conclusion.  We say that

in that sense he did not properly apply the test which he has articulated there.

KIRBY J:   One view of this Act is that it is designed to change community perceptions and perceptions of community morality.  The Act is designed to put inhibitions, real inhibitions on racist vilification and gratuitously offensive conduct and that you cannot just in defining “reasonableness” pick up what is reasonable in the ordinary sense because it has to work in the context of an Act which is endeavouring to make a real change in community conduct.

MR McINTYRE:   Yes, and we have referred to your Honours the English cases in relation to how one applies ‑ ‑ ‑

KIRBY J:   Yes, I saw them.

HAYNE J:   Do you then withdraw the answer you gave to me?  The answer you gave to me was that this test was right.  Do you withdraw that?

MR McINTYRE:   The articulation of the test is not exceptional.  What is exceptional is the way in which the Commissioner then understood and applied that test.  He did not do what the English authorities suggest when dealing with a human rights matter, that is to properly balance those matters in a proportionate way; the degree of offensiveness with the degree of public interest in the publication of matters of public concern.  Our view is that if he had properly applied the test he could not have decided that a gratuitously insulting cartoon of this kind could be published.  All of the other articles we have no problem with.

GLEESON CJ:   Thank you, Mr McIntyre.  Yes, Mr Martin.

MR MARTIN:   If it please your Honours, these are of course judicial review proceedings, not appeals on the merits.  The grounds of review are to be found at page 88 of the application book, and the only one pertinent to the issue of “reasonable and in good faith” is ground 1.  If your Honours compare that ground at page 88 of the application book to the asserted special leave questions at page 188, your Honours will see that none of the first three asserted special leave questions come at all within the ground of review enunciated below, nor indeed whether they are subject ‑ ‑ ‑

KIRBY J:   Yes, but there was a division in the Full Court, and Justice Lee appears to have thought that the test that was applied was incorrect.

MR MARTIN:   Well, with the greatest respect to his Honour Justice Lee, his reasoning does not come within the scope of the application for review, nor indeed ‑ ‑ ‑

KIRBY J:   I have read what you say about this, but it really is a question of law in the interpretation of the Act, and it is a matter of giving meaning to this exception or qualification of “reasonably in good faith” in the context not of an act on land boundaries, but an act dealing with a novel attempt to stamp out gratuitously offensive behaviour in racial vilification.  That is a large objective.

MR MARTIN:   Could I take up your Honour’s reference to the expression “gratuitously offensive behaviour” because it is of course bound in point 1 of the so‑called special leave questions. That is of course not the language of the statute. Section 18C does not refer to the phrase at all. It is apparent therefore from the way in which special leave question one is enunciated that the expression “gratuitously offensive behaviour” is intended to connote some subset of the conduct which is prescribed by section 18C ‑ ‑ ‑

KIRBY J:   Well, it is ‑ ‑ ‑

MR MARTIN:   ‑ ‑ ‑and that is some special quality or act within section 18C.

KIRBY J:   But it has been introduced in order to give content in this context to the word “reasonable”.

MR MARTIN:   Well, it is a pejorative classification of a particular form of behaviour otherwise prescribed by section 18C, but the problem for this application and any appeal if it were to go ahead is that no submission was ever put to the Commission to the effect that the conduct qualified for this particular description, that is “gratuitously offensive”, nor indeed was there any finding of the Commission to that effect - on the contrary.

KIRBY J:   I understand that complaint and it is a matter to be considered in special leave applications, but essentially it is not something that would have affected the running of the case or the presentation of evidence.  You got in evidence relating to the contemporaneous discussion of these issues and so on, so that ‑ ‑ ‑

MR MARTIN:   But with ‑ ‑ ‑

KIRBY J:   It is not an evidentiary matter, it is not a Holcombe v Coulton type point.

MR MARTIN:   No, but I must remind your Honour that these are judicial review proceedings, so that they must proceed on the basis of the identification of an error of law on the basis of facts found by the decision‑maker.  There was no submission to the decision‑maker to the effect that he should find this behaviour was gratuitously offensive, nor was there any finding to that effect.

KIRBY J:   Yes, but courts higher in the hierarchy in judicial review proceedings can then perform their own function.  I do not know that it is a submission.  Whether a submission is made or not is certainly a matter relevant to whether it is ripe for consideration by us, but it is not a matter of procedural unfairness.

MR MARTIN:   I am obviously putting myself poorly, your Honour, because it is not the fact that the submission was made that is central to my submission; it is the fact that no finding was made.  So in order to develop this submission, the applicant would first require the Court to make a finding that the Commission below did not make.  If the Commission below did not make the finding of fact upon which the proposition is posited, how can it be said that the Commission erred in law?  That is the problem with it, in our respectful submission.

KIRBY J:   Yes, but if it ought to have made a finding having regard to the terms of the statute, then that is a failure to address itself to the statute, which is an error of law and a conventional error for judicial review.

MR MARTIN:   Well, if that were the way the argument is put, we say that there is nothing in the statute that requires the decision‑maker to embark upon the identification of a subset of section 18C to identify whatever is meant by “gratuitously offensive”. It is not a notion embodied within the statute at all, so for those reasons ‑ ‑ ‑

KIRBY J:   Even if it is rhetoric and we address ourselves to the terms of the statute, it still is a question of whether “reasonably and in good faith” in this context of this legislation designed to achieve its objectives takes on colour from the context in which that exception has to operate.  The editor seems to have looked at ‑ ‑ ‑

MR MARTIN:   Indeed, and we would not quarrel with any of that, nor indeed did the Commission.  The Commission evaluated the context at some length and then arrived at the evaluation of the competing interests in the critical passage at page 73 to which the Court has already been referred.

KIRBY J:   The problem though with the outcome - and this is where I feel some sympathy for Justice Lee - is that if his approach to the Act is adopted and endorsed and not looked at by this Court, you just may as well walk away from the Act in any cartoon because it will be said, “Oh well, we’re pretty robust on these things in Australia and we’ll just let it pass muster”.

MR MARTIN:   With respect, we would submit that on the contrary, the decisions of the Commission reveal a careful evaluation of the competing considerations relevantly identified by a decision‑maker by reference to the statute.  A careful balancing of those competing considerations is specifically ‑ ‑ ‑

KIRBY J:   But can you really deny this matter has gone up to the Full Court of the Federal Court, there is a dissenting opinion of Justice Lee, very thoughtful opinions of Justice French and the other judges and of the Commissioner, and it cannot really be denied that this is one of the very large questions that is before many final courts in the world today.  How do you balance on the one hand attempts to prevent racial discrimination, which the events of last week remind us are fresh in memory, against freedom of expression?  It is an important issue.

MR MARTIN:   It is our respectful submission that this application would simply not give rise to the ventilation of those broader questions because they are judicial review proceedings which require the identification of error and, in our respectful submission, no relevant error has been identified at any stage in the process.

HAYNE J:   What do you say about proposed grounds of appeal as they are particularised especially at page 186.  A single ground is proposed, error in law, wrong question. What do you say about those points?

MR MARTIN:   The grounds of course are to be found in the particulars which start at the top of page 186, and those four particulars match the special leave questions at 188, but running through them, the first:

(i) Whether the act in question involved gratuitously offensive behaviour.

I have already dealt with that.  The second –

(ii) The proportionality of the justificatory purpose –

Proportionality is a label that has been applied for the first time at this level and it has not been argued below.  Assuming it has some particular relevance, we respectfully submit that an evaluation of the reasons of the Commission reveals a balancing of the competing considerations.  It cannot be said that the Commission excluded from consideration the offence which the Commissioner expressly found to have been caused by the conduct at page 68 of the application book.

KIRBY J:   Yes, but in the international discourse in judicial review, the question of proportionality is now a very lively question, and ‑ ‑ ‑

MR MARTIN:   And there may be a case that might give rise to that question but it is not this one, your Honour, with respect, because the Commissioner ‑ ‑ ‑

KIRBY J:   In the handling of questions of racial vilification and freedom of expression in the context of the European Convention and so on, proportionality is constantly being raised.  Why is it not raised?  Just because the courts below did not deal with it does not mean that it may not be a relevant approach.

MR MARTIN:   We do not submit that it is not a relevant approach but what we do put is that there is nothing in the reasons of the Commission that would suggest that there was a failure to weigh the offensiveness of the conduct when considering the question of whether the act was reasonable or in good faith. 

Can I draw your Honours’ attention in particular to page 73 at line 10, where the Commission expressly addressed the question of whether the cartoon was sufficiently exaggerated or prejudiced to breach the standard of reasonableness.  So in other words, having found that the conduct was offensive contrary to 18C, he then asked himself whether or not it was so offensive as to exceed the bounds of reasonableness.  Now, that is just proportionality by another name without actually pinning the label on it.  So that the problem for the argument is that this is not the vehicle that would ventilate it.

If I could move to the third particular, the proposition that “Prior non‑offensive publications by the Second Respondent about the same subject matter” should be excluded, that is the proposition that the Commission should have excluded from consideration - the entire sequence of public debate that preceded the publication of this cartoon.  And that, with respect, is a patently untenable proposition when one is to evaluate the reasonableness of the publication of the cartoon.  Of course it must be evaluated in the context of the publications that preceded it.

The fourth ground is the proposition that the reference to “The absence of evidence of dishonesty, fraud or malice” is to be taken as connoting a decision of the Commission to the effect that that was sufficient to establish reasonableness or good faith.  The problem with that is, as all courts below have found, that is not a proper construction of the reasons of the Commission.  If one goes to page 73, one can see that the reference to the lack of evidence of dishonesty, fraud or malice follows a detailed evaluation of the conduct in question by reference to the notion of reasonableness or good faith.  So all the Commissioner was doing in the second paragraph on page 73 commencing at line 20 was saying, “Against the findings that I have made with respect to reasonableness and good faith, I take account of the fact that there is no evidence of fraud or malice”. 

So in other words, there is nothing, as Justice Carr put it, on the other side of the scale.  It is not and it cannot be asserted that the Commissioner was simply saying that reasonableness of good faith can be taken to be made out by nothing more than the absence of evidence of fraud or malice.  So in answer to your Honour Justice Hayne’s question, in our respectful submission, none of the four questions have any reasonable prospect of success.  Therefore, with the greatest respect to Justice Kirby, this application if leave were granted would simply not give rise to the ventilation of the broader questions to which your Honour refers.

In our respectful submission, the grounds which would be sought to be ventilated first are not within the grounds of review; secondly, have no reasonable prospect of success; and thirdly, when the reasons of the Commission are considered, simply do not give rise to any point of general importance.  It is for those reasons ‑ ‑ ‑

KIRBY J:  Can you enlighten me on the point that I raised with Mr McIntyre at the beginning about why the Constitution appears to have been completely ignored in this, because it may be that it is relevant to understanding why the Parliament inserted this qualification of “reasonably and in good faith”.

MR MARTIN:   Again, your Honour, the reason we say it has not arisen below and the reason it would not arise even if leave were granted is because of the way in which the reasons of the Commission have been enunciated.  The Commission has undertaken the process of balancing “reasonably and in good faith” in the light of the legislative objectives that appear from the words of the statute.  If an extreme view were taken, an extreme outcome were arrived at, then the Coleman v Power point might arise.

KIRBY J:   But the view that is propounded by the applicant is not an extreme view.  It is just that in this country, given the background and history not only of the world but of this country, we have to be a little sensitive and careful in the way we do cartoons that we do not include in cartoons gratuitously offensive material to the Aboriginal people or any other particular racial group.  The world has seen too much of the misfortune that can come from that, and if it means some limitation on cartoons that may be necessary.  That is the issue.

MR MARTIN:   All I can show, I think, your Honour, is that if this case did give rise to the identification of just what conduct was prescribed and just what was not by these provisions, then the Coleman v Power point

would arise, but for the reasons I have endeavoured to develop, it is our submission that this case would not give rise to that question, and it is for those reasons that, in our respectful submission, they should be refused.  If it please the Court.

GLEESON CJ:   Thank you, Mr Martin, Yes, Mr McIntyre.

MR McINTYRE:   Yes, thank you, your Honours.  If this was a cartoon which criticised a politician in relation to views he took in the public arena, and in the course of doing that attacked the religious beliefs that he had and attacked some of his religious figures as a side issue, one would have no doubt that that would not be a matter which would be justified or excused by applying tests of reasonableness or proportionality.

GLEESON CJ:   Mr McIntyre, in the context of a cartoon, what precisely does the expression “gratuitously offensive” mean?

MR McINTYRE:   In this particular cartoon, it means that when you are – if you go to page 181, you first of all start off by – and the subject is the group returning Yagan’s head and their misbehaviour, if you like, the question of expending the money.  But in box 2 they make a shot at Mr Colbung’s Danish mixed origin.  In box 2 they have a shot at Mr Bodney’s Jamaican mixed background.  In box 4 in the bottom they say:

Shut up, or the Wagyl will get you, boy!

And the Wagyl of course ‑ ‑ ‑

GLEESON CJ:   I understand that you say there are parts of this cartoon that are gratuitously offensive. I am trying to understand what you mean by the expression “gratuitously offensive”.  What do the words mean?

MR McINTYRE:   They are offensive because they ridicule the Wagyl, they ridicule the mixed ancestry of those Aboriginal people, they ridicule ‑ ‑ ‑

KIRBY J:   Some people think religious freedom only includes big cathedrals with spires.

GLEESON CJ:   But what is gratuitous?  The word “gratuitous” means what in this context?

MR McINTYRE:   It was unnecessary to the purpose which Mr Murray says that he made the decision to publish it for. 

GLEESON CJ:   Irrelevant.

MR McINTYRE:   He said that he published it ‑ ‑ ‑

GLEESON CJ:   Does it mean the same thing as “irrelevant”?

MR McINTYRE:   Yes, it does in this circumstance.

GLEESON CJ:   That is what I wanted to understand.

MR McINTYRE:   Yes, it is irrelevant.

KIRBY J:   Or if relevant, totally disproportional to any legitimate point that is being made in the cartoon.  Is that the other way that you put it?

MR McINTYRE:   That is right.  That is another way of putting it, your Honour ‑ ‑ ‑

GLEESON CJ:   Does that mean unduly offensive, too offensive?

MR McINTYRE:   Yes, unreasonably offensive.

KIRBY J:   All of these cases involve line drawing, it cannot be avoided ‑ ‑ ‑

MR McINTYRE:   Yes.

KIRBY J:   That raises the question of whether, as Mr Martin says, this is not a good vehicle because you did not really run these points, and therefore we have not had the advantage of the Commissioner’s approach to this and Justice Nicholson’s approach to it.  What is your answer to that?

MR McINTYRE:   But we have all of the facts which we need to consider this issue ‑ ‑ ‑

HAYNE J:   Yes, and we have a statute.  Now, how do you relate “unreasonably offensive” to any of the words of 18D? 

MR McINTYRE:   18D of course says that the thing said or done must be “done reasonably and in good faith”.  The concept of “offensiveness” comes from 18C, that is the subject matter which must be reasonable.

KIRBY J:   Is the good faith the subjective element and the reasonableness is the objective element in the context of a statute which is endeavouring to change behaviour on these matters?

MR McINTYRE:   Yes, that is so, although ‑ ‑ ‑

KIRBY J:   Was good faith in issue or not?

MR McINTYRE:   Yes, it was, and in a variety of ways.  Justice Lee, for instance, suggested and his judgment said that it was a compendious concept.  You will see that Justice French and others refer to some of your Honour Justice Kirby’s statement about this notion of “good faith” that it has both a subjective and an objective element to it.  Ultimately below the view was taken that the objective notion of “good faith” must ultimately apply in relation to this matter, so that one might satisfy the Court as to good faith if there is subjective evidence of it, but ultimately it must be objectively determined to be good faith in order for the publication to ‑ ‑ ‑

KIRBY J:   I think those views were expressed in Cannane.  I think Cannane was the case and, as their Honours point out, that was a dissenting opinion.  I am not sure that that is established doctrine yet.

MR McINTYRE:   Well, it may well be but it certainly canvassed a great deal of the law on the topic, and I do not think there is much general dissent from the views expressed by your Honour, although you were personally in dissent.

GLEESON CJ:   Thank you, Mr McIntyre.  We will adjourn for a short time to consider the course we will take in this matter.

AT 11.39 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.47 AM:

GLEESON CJ:   The issue of whether the conduct in question in this case was reasonable and in good faith involved a matter of judgment on which minds might differ.

The applicant does not challenge the test applied by the Human Rights and Equal Opportunity Commission, but contends that the application of that test to the facts involved error.  The suggested errors are set out as particulars of the sole proposed ground of appeal.

In the Federal Court Justice R.D. Nicholson at first instance and a majority of the Full Court of the Federal Court on appeal held that there was no error of law on the part of the Commission.

Having regard to the reasoning of the Commission and to the particulars of the proposed ground of appeal, a majority of this Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave and further that the case is not a suitable vehicle for the agitation of the questions sought to be raised by the applicant.  The application is dismissed with costs.

KIRBY J:   I would grant special leave to allow this Court to consider the matters raised by the applicant. I would do so principally having regard to: first, the possible significance of the Constitution to the issues in the case, which appears not to have been given weight in the courts below; secondly, the dissenting views expressed by Justice Lee in the Full Court of the Federal Court; thirdly, the importance of the issue and the interpretation and application of the Racial Discrimination Act 1975 (Cth) ss 18C and 18D; and, fourthly, the significance of the issues for racial, ethnic and religious minorities in Australia, including for the indigenous people.

GLEESON CJ:   The application is dismissed with costs. 

We are going to adjourn for a minute or so to reconstitute.

AT 11.49 AM THE MATTER WAS CONCLUDED