Burns v Cunningham

[2011] NSWADT 240

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	Burns v Cunningham [2011] NSWADT 240
Hearing dates:	20 and 21 September 2011
Decision date:	17 October 2011
Jurisdiction:	Equal Opportunity Division
Before:	R J Wright SC - Judicial Member N Hiffernan - Non-Judicial Member J Schwager AO - Non-Judicial Member
Decision:	The Tribunal orders that the complaint be dismissed in whole.
Catchwords:	Discrimination - Vilification - Homosexual Vilification
Legislation Cited:	Anti Discrimination Act 1977 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) Racial and Religious Tolerance Act 2001 (Vic) Racial Discrimination Act 1975 (Cth)
Cases Cited:	Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Coleman v Power (2004) 220 CLR 1 Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 Barry v Futter [2011] NSWADT 205 McGlade v Lightfoot (2002) 124 FCR 106 Veloskey v Karagiannakis [2002] NSWADTAP 18 Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 Burns v Laws [2008] NSWADTAP 32 Toben v Jones [2003] FCAFC 137 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, (2006) 15 VR 207 Deen v Lamb [2001] QADT 20 Burns v Laws (No 2) [2007] NSWADT 47 Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 Burns v Radio 2UE Sydney Pty Ltd) [2004] NSWADT 267 Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349, (2006) 236 ALR 385
Category:	Principal judgment
Parties:	Gary Burns (Applicant) John Lawrence Cunningham (Respondent)
Representation:	Counsel : R Lancaster SC and D Petrushnko (Applicant) T K Tobin QC and B A Kelleher (Respondent) Surry Partners Lawyers (Applicant)
File Number(s):	101130

REasons for decision

1. EQUAL OPPORTUNITY DIVISION (R J Wright SC, Judicial Member, N Hiffernan, Non-Judicial Member, J Schwager AO, Non-Judicial Member): This matter concerns a complaint of homosexual vilification under s 49ZT of the Anti-Discrimination Act 1977 ("the ADA") brought by the Applicant, Mr Burns, against the Respondent, Mr Cunningham, arising out of the publication (in print and online) in early August 2010 in two newspapers, the City Voice and the Southern Courier , of comments allegedly made by the Respondent in relation to homosexuals.

Complaint to the Anti-Discrimination Board

1. On 5 August 2010, the Applicant lodged a complaint with the Anti-Discrimination Board about articles which appeared in the City Voice 's print edition of 4 August 2010 concerning the views of candidates standing for election in the Federal election which was to be held on 21 August 2010. The Respondent was a candidate for election for the Federal electorate of Kingsford-Smith and comments apparently made by him were reported in those articles. The Applicant found the Respondent's comments offensive and believed they amounted to vilification of homosexuals which was unlawful under s 49ZT(1) of the ADA.

1. The Applicant lodged a second complaint with the Anti-Discrimination Board on 11 August 2010 in respect of an article which appeared in the Southern Courier , 9 August 2010 online edition, and which contained, among other things, an additional comment by the Respondent addressed to homosexuals. On 18 August 2010, the Anti-Discrimination Board notified the Respondent of the complaints and sought his written response to the allegations. He replied at some length by letter which was received by the Board on 29 September 2010. In addition to responding to the allegations made by the Applicant, the Respondent sought to rely on the defence available under s 49ZT(2)(c) of the ADA and raised the implied constitutional right to freedom of political communication referred to in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The Applicant provided his reply by a letter received on 21 October 2010 (although it was dated 26 October 2010). In that letter, the Applicant specified the material complained of as being the Respondent's statements:

" reported on pages 1 and 11 of the City Voice, issue 6 dated 4 August 2010 "; and

" reported in the Southern Courier dated 10 August 2010 (and online) ".

1. The Respondent wrote another letter to the Board which was received on 11 November 2010. Conciliation was attempted unsuccessfully through arms length negotiation. On 16 November 2010, the Applicant requested the President of the Anti-Discrimination Board to refer the matters to the Tribunal. The President of the Anti-Discrimination Board referred both matters as one complaint to the Tribunal under s 93C of the ADA. The President's Report was filed in the Tribunal on 24 November 2010.

1. Referral under s 93C amounts to institution of the proceeding in the Tribunal under s 95(3) of the ADA. That section provides:

95Referral of complaints to Tribunal

(1)A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C.

...

(3)For the purposes of the Administrative Decisions Tribunal Act 1997, the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act.

1. The period of complaint was noted in the President's Report as being:

1.4 August 2010

2.10 August 2010.

These were the dates of the print editions of the newspapers relied upon by the Applicant but did not cover the online editions some of which were made available on 9 August 2010 and all of which continued to be available after the dates on which they first appeared online or in print. In the Applicant's points of claim filed on 27 April 2011, the publications relied upon were set out in more detail, in the particulars to paragraphs 4 and 7. In order to avoid any technical deficiency in the proceedings, the Applicant applied to amend the complaint so as to include all of the publications referred to in the points of claim. This was not opposed by the Respondent. Accordingly, during the hearing, the Tribunal ordered under s 103(1) of the ADA that the complaint be so amended.

The Evidence and the Facts

1. The Respondent was the candidate endorsed by the One Nation Party for the Federal seat of Kingsford-Smith in the Federal election which took place on 21 August 2010.

The Telephone Conversation on 3 August 2010

1. There was no dispute that between about 2pm and 4pm on 3 August 2010, a telephone conversation took place between the Respondent and Mr Brendan Bolger, the editor of City Voice . Nor was there significant dispute as to the contents of the comments made by the Respondent in that conversation. There was at least initially, however, some apparent dispute as to whether the Respondent was told by Mr Bolger that his comments could or would be published.

1. The Respondent relied upon the written account of his recollection of the conversation that he had provided to the Anti-Discrimination Board under cover of his letter of 29 September 2010. The Applicant put before the Tribunal, without objection, a type written file note concerning the conversation and some shorthand notes of part of the conversation (together with a typed transcription of those notes), all of which documents had been produced by the company responsible for publishing City Voice in response to a summons issued at the request of the Respondent. In addition, the Respondent was cross examined about the conversation. Mr Bolger was not called.

1. The Tribunal observed Mr Cunningham and heard him give his evidence. We formed the view that he was genuinely attempting to give his truthful recollection of what occurred. He was prepared to make appropriate concessions, even when they may not have appeared to be in his interest. We accept his evidence as it was elucidated in cross examination.

1. Mr Bolger not being a witness, he was not cross examined. Nor was it apparent when the file note of Mr Bolger's contact with the Respondent was prepared. Notwithstanding this, when the substance of what was contained in the file note was put to the Respondent in cross examination, he generally conceded either that what was recorded was correct or that although he had a different recollection it was possible that what was recorded in the file note was correct.

1. As to the shorthand notes, we infer and are prepared to accept that they were recorded while the conversation took place and reflect some of what was said during the conversation. The transcription not having been challenged, we also accept that the transcription accurately sets out what the shorthand notes record, subject to one matter. The transcription includes a number of words in square brackets. We infer that these words were not included in the shorthand notes of the conversation but were inserted by Mr Bolger when the transcript was prepared. We find that the words in square brackets were Mr Bolger's words not those of the Respondent but, given the nature of the words, were included by Mr Bolger to reflect what he believed to have been intended. We should also note from the transcription that the shorthand notes were obviously not a complete record of what was said by Mr Cunningham during this part of the conversation.

1. On the bases set out above, the Tribunal finds that in early August Mr Bolger telephoned the Respondent's telephone number and left a message on an answering machine. This message was brought to the Respondent's attention by his nephew. Between about 2 and 4pm on 3 August 2010, either the Respondent returned Mr Bolger's call or Mr Bolger telephoned the Respondent and a conversation took place between them. During that conversation, Mr Bolger explained that he was the editor of City Voice which was published primarily for the gay and lesbian community. Mr Bolger raised whether he could send the Respondent some questions by email and Mr Cunningham said that he did not use email. Mr Bolger told the Respondent that he was obtaining views from amongst a number of candidates in the Federal election so that he could report them and he asked the Respondent for his views on homosexual matters.

1. Mr Bolger's shorthand notes record some of what followed in the conversation (omitting the words in square brackets in the transcription) as follows:

I'm certainly not gay or lesbo. ... a practising Catholic with very strong views.

I worked at One Oxford Street.

Where I have a Christian ...

I saw many of the unfortunates and my approach is for their psychiatric rehabilitation.

You've lost quite a number through the spread of AIDS. It's totally opposed to the words of Christ.

I have a completely Christian approach ... feel very sorry for men and women who are inflicted with this ...

It's my hope that you can be rehabilitated.

Department of Industrial Relations.

No desire to put an axe or a sword through ...

1. The Respondent's written account of this part of the conversation does not differ in substance from that recorded by Mr Bolger although the order of what was said was a little different in the Respondent's account. In particular, on his version:

he did say that he was not " one of your kind " referring to gays and lesbians and that he was " A Christian, a Catholic " and " I do not agree with or approve of their lifestyle, as it was opposed to the teachings of the Christian faith ";

he referred to the fact that " Before retiring I had worked for some years at the No. 1 Oxford Street for the Department of Industrial Relations and had seen many of these people. ";

he did describe homosexuals, those he saw in Oxford Street or possibly homosexuals suffering from AIDS, as " unfortunate " people;

he did say that homosexuals should be given " some opportunity for psychiatric rehabilitation ";

he said " You have lost quite a few through the spread of AIDS " and also " I have never offered nor advocated any violence towards them whatsoever, actions which would be completely opposed to the teachings of Christ ";

he expressed that he " felt very sorry for men and women who are afflicted [or possibly "inflicted"] with this "; and,

he said that " I do not believe in taking an axe, or a word [this may be a typographical error for "sword"] or any physical violence toward them whatsoever ."

1. The Tribunal accepts that the shorthand notes and the Respondent's comments referred to in the preceding paragraph reflect the substance of what was said by Mr Cunningham to Mr Bolger on the subject of homosexuals during their telephone conversation on 3 August 2010. In summary, the Tribunal finds that the Respondent:

used the word " unfortunates " or " unfortunate " in respect of some or all homosexuals;

said he felt " very sorry for men and women who are inflicted [or possibly " afflicted "] with this [referring either to homosexuality or AIDS]";

adopted a position that for some or all homosexuals " psychiatric rehabilitation " was appropriate.

1. In addition, having regard to all the evidence and the Respondent's cross examination, the Tribunal finds that the Respondent's comments made to Mr Bolger expressed views genuinely held by the Respondent, were not said sarcastically or ironically and were not motivated by ill-will. The Respondent was seeking to distinguish between the homosexual lifestyle, of which he did not approve, and homosexual persons towards whom he felt sympathy and good will.

1. In his written response to the Anti-Discrimination Board, the Respondent stated that Mr Bolger did not say in this conversation that he would be publishing the Respondent's remarks. In cross examination, however, the Respondent fairly acknowledged that he knew that Mr Bolger was a journalist and was obtaining views from candidates in the Federal election on topics relevant to homosexuals. The Respondent also indicated that he had no problem with his views being published.

1. In all the circumstances, the Tribunal is satisfied that the Respondent was aware that Mr Bolger might communicate the Respondent's views on homosexuals to the public by publishing them in the City Voice and the Respondent was content for this to occur in the context of the forthcoming Federal election and of the Respondent's being a candidate in that election. Nonetheless, there was no certainty that the Respondent's views would be published in City Voice.

Article in the 4 August Edition of City Voice

1. In the 4 August 2010 print edition of City Voice an article appeared on the front page which was as follows:

Gays need 'rehab'

Brendan Bolger

Gays and lesbians are "unfortunates" and should undergo "psychiatric rehabilitation", the One Nation candidate for Kingsford-Smith, John Cunningham, has told City Voice.

"I have a completely Christian approach and feel very sorry for men and women who are inflicted with this," Cunningham said.

He did not answer three specific questions that were put to all lower house candidates for the seats of Grayndler and Kingsford-Smith this week but gave express permission for his view to be published in City Voice.

Electorate profiles Page 10-11

1. On page 11 of this edition of City Voice there was a heading "FEDERAL ELECTION 2010" and under this were the words " Kingsford-Smith The electorate is named after Sir Charles Kingsford-Smith (1897 - 1935), Australia's foremost aviation pioneer and it covers approximately 127 square kilometres from La Perouse in the south to Randwick and Coogee in the north." In the next line down was written: " 1- Marriage2 - Discrimination 3 - Health & Wellbeing ". Under that appeared a number of columns in which each party fielding a candidate in the Kingsford-Smith electorate was named followed by the candidate's name, and in some cases a photograph of the candidate. Under each candidate's name, except for the Liberal Party and One Nation Party candidates, were recorded their views in paragraphs numbered 1, 2 and 3 in relation to homosexuals and the 3 issues identified in the heading to the article. In relation to the Liberal candidate, there was a comment subscribed with Mr Bolger's name indicating that this candidate had not provided any response to an email request for his views and was not otherwise able to be contacted. In relation to the Respondent, the following appeared on page 11:

One Nation

John Cunningham

John Cunningham was contacted by phone and he informed City Voice that he does not have regular access to email to respond to questions. "I'm certainly not gay or lesbo," he said when told the readership base of City Voice.

He said he previously worked at 1 Oxford Street with the Department of Industrial Relations before he retired.

"I saw many of the unfortunates [on Oxford Street] and my approach is for their psychiatric rehabilitation.

"You've lost quite a number through the spread of AIDS. It's totally opposed to the words of Christ.

"I have a completely Christian approach and feel very sorry for men and women who are inflicted with this [sexuality].

"I have no desire to put an axe or sword through people's heads. My views are Christian," he said before politely saying goodbye and hanging up the phone.

Brendan Bolger

1. A similar collection of the view of candidates for the Grayndler electorate appeared on page 10.

1. The Applicant saw this edition of City Voice and lodged his first complaint dated 4 August 2010 (stamped as received on 5 August) with the Anti-Discrimination Board alleging homosexual vilification against the Respondent.

The Applicant Contacts Other Media and Ms Smith

1. The Applicant was keen to have what he perceived to be the Respondent's homosexual vilification exposed to a wider audience, in the public interest. To this end, in addition to lodging his complaint with the Anti-Discrimination Board, on 4 August 2010 the Applicant issued a media release drawing attention to the Respondent's views as reported in City Voice and to the fact that he, the Applicant, had lodged a complaint with the Board alleging homosexual vilification. On 5 August 2010 the Applicant forwarded the media release by email to Ms Leesa Smith, a journalist with the Southern Courier , a suburban newspaper apparently distributed in the south eastern suburbs of Sydney, including the electorates of Grayndler and Kingsford-Smith. At about this time, the Applicant also spoke by telephone to Ms Smith about the City Voice articles.

1. It also appears that the possible disendorsement of the Respondent as a One Nation candidate was also raised by the Applicant with Ms Smith.

1. It appears that Ms Smith decided to write an article following up on the Applicant's complaints and the Respondent's views. She contacted the Respondent by telephone in the period between about 5 August and 9 August 2010.

Telephone Conversations between Ms Smith and the Respondent

1. The Respondent accepted that he had spoken to Ms Smith concerning these issues on two occasions. He was cross examined on the contents of those conversations. In addition, the Respondent tendered, without objection, hand written notes produced by Ms Smith in response to a summons issued by the Tribunal. Ms Smith was not called as a witness. Judging from the form of the notes and their contents, it appears to us and we find that they were generally made during the conversations recorded in them.

1. In so far as it is possible to decipher her notes, they confirm that Ms Smith spoke to both the Applicant and the Respondent, among others, in relation to these issues. They are consistent with the Respondent's evidence in cross examination.

1. The Respondent accepted that when he spoke to Ms Smith in August 2010, he understood that she was a journalist with the Southern Courier which was distributed in an area that included the Grayndler and Kingsford-Smith electorates. He also agreed that he expected what he said to Ms Smith could be recorded and published in the Southern Courier .

1. The Respondent made comments to Ms Smith which had nothing to do with homosexuality but related to other issues that were relevant to the election campaign. When Ms Smith raised with the Respondent his views on homosexuality he denied that he had vilified anyone and said that he had expressed his Christian opinion. He also said that he could not understand the commotion concerning his comments. He expressed his sympathy for homosexuals as well as the view that homosexuals need to go to a Christian psychologist and get it straightened out. He confirmed that he felt sorry for people afflicted with homosexuality. He referred to having always treated them with courtesy and he had never advocated violence against them.

1. When asked what he had to say to the homosexual community of Kingsford-Smith, the Respondent said that he wished them well and he hoped that one day their matters would be sorted out in conjunction with medical professionals.

1. In what appears to be another conversation with Ms Smith, the Respondent said that he was disappointed at the reaction to his comments as he had given his Christian opinion without bitterness and filled with goodwill towards these people. He also raised whether he was living in Soviet Russia with thought police, Stalin and the KGB.

1. The Tribunal finds that the Respondent's comments to Ms Smith concerning homosexuals were, as in the case of his comments to Mr Bolger, genuine and not attended by any sarcasm or ill will. We note Ms Smith's own observations in her online comment of 10 August 2010 where she said: " I do believe that Mr Cunningham's view of people "inflicted" with homosexuality is not based on hatred, he genuinely pitied them and wanted to help. "

1. It also appears from Ms Smith's notes that at about this time she was in contact with an officer of the One Nation Party concerning whether the Respondent was to be disendorsed as a candidate by his party.

9 August 2010 Online Article in Southern Courier

1. An article was posted on the Online edition of Southern Courier at 4.30 pm on 9 August 2010 stated to be by Leesa Smith under the headline "One Nation backflip" with the subheading "Elections" and a photograph of the Respondent. The body of the article was as follows:

One Nation has backflipped on its decision not to endorse Kingsford Smith candidate John Cunningham only two days after pulling his name from the its website.

Mr Cunningham, 81, was dissociated from the party on Friday afternoon for comments he made in the gay and lesbian publication, City Voice, last week.

Mr Cunningham called for their "psychiatric rehabilitation" and he said he felt "very sorry for men and women who are afflicted with this."

One Nation NSW president Bob Vinnicombe told the Courier on Friday that the party did not support Mr Cunningham's comments because they were not in accordance with One Nation policy. But the party decided to reinstate him yesterday because Mr Vinnicombe said the comments had "absolutely nothing to do with One Nation - it's a privately expressed opinion."

Mr Cunningham also defended his right to free speech: "Are we in Soviet Russia or communist China? It's another nail in the coffin for democracy".

But gay rights activist Gary Burns has lodged a complaint with the Anti-Discrimination Board stating Mr Cunningham's comments were "not acceptable because these kind of comments incite ridicule, contempt and hatred".

Kingsford Smith MP Peter Garrett said Mr Cunningham's comments were "highly regrettable and offensive and do not add at all to a mature discussion about policies in an election campaign."

Article in the 10 August 2010 print edition of Southern Courier

1. In the 10 August 2010 print edition of Southern Courier an article by Ms Smith appeared on page 11 which was headed "Decision 2010" accompanied by pictures of Ms Julia Gillard and Mr Tony Abbott and their respective parties' names. The article was also headlined "One Nation backflip". The article was similar to but not the same as the earlier online article. The print article (with the differences from the online article marked up) was as follows:

One Nation has backflipped on its decision not to endorse Kingsford Smith candidate John Cunningham only two days after pulling his name from the its website.

Mr Cunningham, 81, was dissociated from the party on Friday afternoon for comments he made in the gay and lesbian publication, City Voice , last week.

Mr Cunningham called for their "psychiatric rehabilitation" and he said he felt "very sorry for men and women who are afflicted with this."

"I saw many of the unfortunates (homosexuals in Oxford Street) and my approach is for their psychiatric rehabilitation," he said.

"They've lost quite a number from AIDS. It's totally opposed to the words of Christ. I have a completely Christian approach and feel very sorry for men and women who are afflicted with this."

One Nation NSW president Bob Vinnicombe told the Courier on Friday that the party did not support Mr Cunningham's comments because they were not in accordance with One Nation policy. But the party decided to reinstate him yesterday because Mr Vinnicombe said the comments had "absolutely nothing to do with One Nation - it's a privately expressed opinion."

Mr Cunningham also defended his right to free speech:

Mr Cunningham told the Courier he did understand the controversy surrounding his comments.

"Are we in Soviet Russia or communist China?" he said. It's another nail in the coffin for democracy".

Mr Cunningham said he had always been courteous to homosexuals and had the deepest sympathy for them.

When asked what he had to say to the homosexual community in Kingsford Smith, he replied: "I wish you well and hope one day your matters are sorted in conjunction with medical professionals."

But g Gay rights activist Gary Burns has lodged a complaint with the Anti - Discrimination Board stating about Mr Cunningham's comments.

"It is important that the people of Kingsford Smith know what kind of man he is," he said. were "It is not acceptable because these kind of comments incite ridicule, contempt and hatred".

Kingsford Smith MP Peter Garrett said Mr Cunningham's comments were "highly regrettable and offensive and do not add at all to a mature discussion about policies in an election campaign."

1. In addition to the print article, Ms Smith included a comment piece on the same page but under the subheading "Vilification dressed as free speech". In that piece Ms Smith made the following comments:

Listening to radical points of view is part of being a journalist, but nothing has stopped me in my tracks more than a conversation with One Nation candidate John Cunningham this week. Mr Cunningham was incredulous that his comments about the gay and lesbian community needing psychiatric help had created a stir. He said it was just his opinion and that there were bigger issues to focus on in the coming election. This would be true if he weren't asking the people of Kingsford Smith to elect him as their Federal member. Discrimination is still alive and well in some parts of our community, but it is unfortunate that One Nation is willing to put its name to these views.

See more of Leesa Smith's comment at southerncourier.cam.au

1. More of Ms Smith's comment was found online in an article published at 1.40 pm on 10 August 2010 under the headline "One Nation or a divided nation" with the subheading "Election 2010". This comment was similar to but not the same as the comment that appeared in the print version. The online comment (with the differences from the print version marked up) was as follows:

Listening to radical points of view is part of being a journalist, but nothing has stopped me in my tracks more than a conversation with One Nation candidate John Cunningham this week.

I called Mr Cunningham to ask him if his comments published in City Voice last week about the gay and lesbian community were true.

Find and rate your MP on MyPolitician

He was quoted as saying homosexuals were "unfortunates" and the answer was "psychiatric rehabilitation."

He had no qualms about defending what he said: "They need to go to a Christian psychologist and have it straightened out".

Mr Cunningham was incredulous that his comments about the gay and lesbian community needing psychiatric help had created a stir. He said it was just his opinion and And Mr Cunningham believes that there were bigger issues to focus on in the coming election. This would be true if he weren't asking the people of Kingsford Smith to elect him as their Federal member.

Discrimination is still alive and well in some parts of our community, but it is unfortunate that One Nation is willing to put its name to these views.

It is not entirely surprising that Mr Cunningham has these views but what is alarming is that One Nation chose to reinstate him as a candidate after telling the Courier on Friday that the party did not support Mr Cunningham's views and had pulled his name from the One Nation website.

See how your MP ranks on MyPolitician

I do believe that Mr Cunningham's view of people "inflicted" with homosexuality is not based on hatred, he genuinely pitied them and wanted to help. Mr Cunningham feels sorry for the gay and lesbian community, but I feel sorry for him.

Learn more about the electorate you live in

1. Notwithstanding that the Applicant might be seen as having encouraged Ms Smith to investigate these issues and publish her stories, the Applicant lodged his second complaint dated 10 August 2010 (stamped as received on 11 August) with the Anti-Discrimination Board. In that complaint, the Applicant wrote:

I refer to the above matter and wish to lodge a further complaint against One Nation Party and it's candidate for Kingsford Smith, John Cunningham over his comments in today's Southern Courier. (see attachment [ A print out of an online article published on 9 August 2010 at 4.30 pm in the Southern Courier was attached to the letter. This print out was not in the form of the online 9 August 2010 article referred to above but rather was in substantially the same form as the article in the 10 August 2010 print edition quoted above ])

Where he said after being asked a question by a journalist:

"I wish you well (referring to homosexuals) and hope one day your matters are sorted out in conjunction with medical professionals".

This statement further reinforces his disdain for me because I am a male homosexual.

This statement further endorses his view my sexuality is a mental illness in needing of rehab,

1. Thus, it appears that the focus of the second complaint was not the republication of what had been already published in the City Voice articles but only the additional comment commencing "I wish you well ...".

The Respondent's Words and What was Reported

1. It was not part of the Respondent's case that he did not say words to the effect of those reported or quoted in the various articles referred to above, even if there may have been some minor differences in expression and in the sequence of what was said. This is consistent with the Tribunal's findings set out above. In some cases, however, it is not clear that the interpretation given by the journalists corresponded exactly with the Respondent's intended meaning. For example, the Respondent used the word " unfortunate " or " unfortunates ", but it was not clear whether he was referring to all homosexuals, those homosexuals he had observed while working at 1 Oxford Street or to homosexuals suffering from AIDS. From Mr Bolger's shorthand notes, the second of those readings appears to be the most likely but it is not necessary for the Tribunal to resolve this issue, as the matter does not turn upon such fine distinctions.

1. Similarly, Mr Bolger reported that the Respondent referred to " men and women who are inflicted with this " but added in square brackets " sexuality " in one case to indicate what he believed the Respondent's meaning to be. From his shorthand notes, however, it is appears that the " this " referred to may be AIDS and not homosexuality generally. The more restricted meaning would be a natural reading of the following portion of Mr Bolger's notes:

You've lost quite a number through the spread of AIDS. It's totally opposed to the words of Christ.

I have a completely Christian approach ... feel very sorry for men and women who are inflicted with this ...

1. Once again, however, in the Tribunal's view, nothing turns upon this distinction or upon whether the Respondent said " inflicted " or " afflicted " in this context.

Homosexual Vilification Statutory Provisions

1. This matter turns upon whether the Respondent's comments as reported in City Voice and the Southern Courier constituted unlawful homosexual vilification under s 49ZT of the ADA. Section 49ZT provides:

49ZT Homosexual vilification unlawful

(1)It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or a group of persons on the ground of the homosexuality of the person or members of the group.

(2)Nothing in this section renders unlawful:

(a)a fair report of a public act referred to in subsection (1), or

(b)a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c)a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

1. In order for s 49ZT to become operative there must be a " public act " which term is given an inclusive definition in s 49ZS as follows:

49ZS Definition

In this Division:

public act includes:

(a)any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, or

(b)any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, or

(c)the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of a person or a group of persons on the ground of the homosexuality of the person or members of the group.

1. An extension of the concept of homosexuality is found in s 49ZF of the ADA which provides:

49ZF Interpretation

A reference in this Part to a person's homosexuality includes a reference to the person's being thought of as a homosexual person, whether he or she is in fact a homosexual person or not.

Elements Constituting Unlawful Homosexual Vilification

1. From the terms of s 49ZT it emerges that unlawful homosexual vilification relevantly involves the following elements:

(1)   a public act;

(2)   which incites;

(3)   hatred towards, serious contempt for, or severe ridicule of a person or group of persons;

(4)   on the ground of homosexuality of the person or members of the group.

1. It is appropriate for the Tribunal to consider these elements in turn.

A Public Act

1. Section 49ZT(1) renders it unlawful " for a person by a public act " to do certain things. Thus, the first step in determining liability under the section is to identify whether there was, upon the proper construction of the ADA, a " public act " of the Respondent or one for which the Respondent was responsible on the proper construction of the section.

1. In the present case, it is not in dispute that the Respondent spoke to Mr Bolger and Ms Smith on the telephone and gave them his views on, among other things, homosexuals. There does not appear, however, to be any other action on the Respondent's part that could properly be held to constitute a relevant " public act ".

1. The inclusive definition of " public act " found in s 49ZS deals with various forms of communication to the public, including speaking, in subs (a). The other forms of communication to the public in subs (a), namely writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material do not apply to what the Respondent did in this case. Nor do the types of conduct referred to in s 49ZS(b) or (c).

1. As to the proper construction of the words " public act " in s 49ZT(1), Mr Tobin QC who appeared with Mr Kelleher for the Respondent submitted that because the section has the potential adversely to impact upon the common law right to freedom of speech, it was appropriate to give the expression " public act " a narrow construction, restricting it to actions that effect direct communication between a respondent and the public. The Respondent drew attention to the comment of Kirby J in Coleman v Power (2004) 220 CLR 1 at [253] concerning freedom of speech and the need for it not be unduly restricted by a broad reading of a statute criminalising public use of insulting words. If this restrictive approach to the construction of s 45ZT(1) were adopted, it was said that the section would be interpreted as excluding circumstances such as arose in the present case where there was a private communication of views by the Respondent to a journalist who controlled whether, and what account of, those views were published. In short, the submission was that the interposition of an intermediary such as the journalist meant that any communication to the public of the Respondent's views was by the journalist and not by the Respondent.

1. Naturally, the Tribunal accepts what Kirby J said in the context of that case. It should be noted, however, that one of the bases for his Honour's approach as stated in Coleman v Power (2004) 220 CLR 1 at [253] was that to adopt a broad construction:

would potentially impose criminal sanctions upon an extremely large number of communications in or near public places. It would do so without defences or qualifications appropriate to allow the legitimate and quite common use of insult and strong language in many forms of communication. Significantly, for the present purpose, these could include communications about governmental and political matters.

1. The same cannot be said in the present case. Not only are there defences in s 45ZT(2) of a type that have been held should be construed broadly (see French J in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [73]). There are also qualifications on the imposition of liability in s 49ZT(1) itself including the requirement that any incitement be of " severe" ridicule or " serious " contempt. These features of s 49ZT provide sufficient grounds for distinguishing this case from Coleman v Power . Notwithstanding this, the Tribunal does accept the importance of the common law right of freedom of speech and the need to construe statues, including the ADA, as not unduly impinging upon that right. A useful discussion of these principles is also found in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [72] - [73] in a context similar to the present.

1. In the light of the qualified terms in which s 45ZT(1) is expressed and the freedom of speech defences available under s 45ZT(2), it does not follow, however, that the expression " public act " should be given a confined or narrow interpretation. What is required is a construction of those words which is consistent with the text of all the subsections of s 45ZT and related sections and with the scope and purpose of the ADA.

1. From s 49ZS, the inclusive definition of " public act ", it can be discerned that that expression is intended to refer to various means by which ideas, opinions or views can be brought to the attention of the public. It includes a broad range of acts that can effect such communications. The Second Reading Speech in relation to the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) by which the definition of " public act " was first introduced into the ADA sheds some light on what was intended by the use of the expression. By that Act, a new s 20B was inserted into the ADA and it provided a definition of " public act " which is the same as the definition in s 45ZS, except that in subs (c) the ground referred to relates to race and not to the homosexuality of the person or groups of persons. The Attorney-General in his Second Reading Speech (NSW Parliament, Legislative Assembly 4 May 1989 Hansard p 7489) said:

Proposed section 20B of the bill defines the term "public act" for the purposes of the new division. "Public acts" includes spoken and written communications to the public, actions and gestures observable by the public, the wearing and displaying in public of signs and emblems and the distribution of matter to the public with knowledge that the matter vilifies a person or group on the ground of race. The conduct encompassed by the bill is intended to be limited to "public acts" and does not include private communications or other conduct in private.

1. Vilification by " public act " whether it be based on race, homosexuality, transgender status or HIV/AIDS status is a serious matter. Any means by which a person effectively communicates his or her vilifying ideas, views or opinions to the public should, in general, be caught by the various vilification provisions of the ADA, whether that communication by the person is direct or indirect. Whether the public acts in question are unlawfully vilifying, however, will depend upon whether they have the requisite inciting effect and upon the application of the freedom of speech defences under s 49ZT(2).

1. Nonetheless, it will be a question of fact in each case, whether a person has communicated to the public by way of a " public act " or whether there has been in reality only a private communication or other conduct in private, to use the dichotomy proposed in the Second Reading Speech quoted above. For example, a speaker speaking at a public gathering communicates directly to the public and should be found to have engaged in a " public act " within the meaning of the section. An author who publishes a book or article would also generally be found to have engaged in a " public act " even though he or she employed a publisher to print and distribute the book or article. Similarly, a person who broadcasts their views on radio or television or published their views online will also have engaged in a " public act " notwithstanding the interposition of an intermediary in the form of the broadcaster or the internet host - see Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 at [20] - [22]. At the other end of the spectrum, a person who communicates a private view to another on the basis, express or implied, that it is not for publication or dissemination by that other person, is most unlikely to be found to have engaged in a " public act " within the meaning of the vilification provisions of the ADA, even if that view is subsequently published by that other, without the person's knowledge or consent.

1. In the present case, the Respondent's acts were conversations, communication by speaking. It can be accepted that a conversation between two individuals in their private capacities, whether on the telephone or in the presence of one another, would ordinarily be a private communication and not a " public act " - see the reasoning of the Tribunal in Barry v Futter [2011] NSWADT 205 at [64] to [79] in relation to " public act " in the context of transgender vilification under s 38S of the ADA. In the present case, however, although the relevant acts were conversations, those conversations were not between two persons in their private capacities. Furthermore, the conversations were accompanied by circumstances that can be seen as adding a public character to the communications.

1. In Barry v Futter at [74] to [76], it was held:

74.Whilst it is not possible to identify in advance all the types of circumstances that may be relevant in determining whether a communication by speaking is public or private, there are a number of factors that may indicate that the communication is to the public rather than a private communication and that might be relevant in the present case. First, where a speaker addresses an audience irrespective of whether there is any pre-existing relationship between the members of the audience and the speaker, the communication is more likely to be to the public. In that case, it is often appropriate to conclude that the speaker is addressing them in their capacities as members of the public and not because of their relationship. By way of contrast, speaking only to a family member, friend or acquaintance, fellow employee or co-participant in a joint activity, in that capacity, may be more likely to involve a private communication rather than a " public act ".

75.Secondly, the size of the audience may also indicate whether the communication is public or private. A speaker addressing a group of people is more likely to be communicating to the public than a speaker who is having a one on one conversation with another person. Nonetheless, a person who speaks to a series of people individually and seeks to communicate essentially the same message may be seen as speaking to a wider audience and not just engaging in private conversations.

76.Thirdly, the nature of the communication, the intentions of the parties to the communication and the circumstances giving rise to it may also give some indication of whether the communication is properly characterised as a public communication or a private conversation.

1. The Respondent was a candidate for election in a Federal election and to that extent he was a public figure in the community. In his capacity as a candidate, he spoke to two journalists and he appreciated that they were seeking his views on matters related to homosexuals because he was a candidate standing for election in the Kingsford-Smith electorate. He was also aware that they might publish any views he disclosed to them and he was, at least, content for that to occur.

1. Although he was not speaking directly to the public, the Tribunal is of the view that the Respondent was communicating his views to the journalists, not for their private use or consideration, but on the understanding that the journalists could communicate those views to members of the public, if the journalists decided to do so. When the journalists published their articles in the City Voice and in the Southern Courier the Respondent's views were communicated to the public. In short, in this case, the nature of the communication, the intentions of the participants in the conversations and the circumstances in which they occurred all indicate that the Respondent indirectly communicated to the public his views by: (a) speaking to the journalists not privately but for potential publication; and (b) his views then being published.

1. This conclusion is consistent with the decision of the Federal Court in McGlade v Lightfoot (2002) 124 FCR 106 at [38] to [41] in which it was held that a politician who spoke to a journalist on an " on the record " basis " caused his words to be communicated to the public " (within the meaning of relevant Commonwealth anti-vilification provision) when the journalist published the politician's comments. Although the wording of the section is not the same as s 45ZT and McGlade does not amount to a directly applicable authority, the decision provides an indication of what might amount to a " any form of communication to the public " in the definition in s 45ZS.

1. It should be noted that in order for there to be a communication to the public in a situation where an election candidate speaks to a journalist about election issues, it would generally be required that the candidate's views expressed to the journalist actually be published. The definition in s 49ZS(a) refers to " any form of communication to the public ". If there were no publication, it would be unlikely that there was any communication to the public. Put another way, absent communication to the public, there would most probably be no completed " public act ". At most, if the journalist did not publish the candidate's views, there might be an attempt by the candidate to communicate to the public but this alone would not generally amount to a completed " public act ".

1. A further consideration is also relevant, especially in the light of submissions made on behalf of the Respondent that, because he did not control whether or what the journalists published, there was no " public act " for which he was responsible under the ADA. The effect of the submission was that any communication to the public in a case such as the present was by the journalist and/or his or her publisher and not by the Respondent. The Tribunal would only be disposed to accept this submission if what occurred was that the journalist did not publish a fair statement or summary of the candidate's views as communicated to the journalist but rather communicated to the public an inaccurate or misleading account of those views. The candidate should not be held responsible for published views that were not a fair representation of what the candidate had said. Where, however, the candidate's views were fairly reported and the candidate communicated those views to the journalist with knowledge that they might be reported and was content for that to occur, it appears to the Tribunal that, when published, the candidate has communicated his or her views to the public. This public communication was achieved by the candidate's speaking to the journalist. The journalist was merely the medium of communication to the public.

1. In the present case, notwithstanding some minor discrepancies in what were reported to be the Respondent's views compared to the notes of the conversations and the Respondent's recollections, the Tribunal does not believe that the reports in the City Voice and the Southern Courier relevantly went beyond reporting what the Respondent had said.

1. Accordingly, we find that the Respondent's communicating to journalists his views, in his capacity as a candidate in a Federal election, on an issue of public interest when he knew, and was content, that those views might be published amounted, when those views were published, to " public acts " within the meaning of s 49ZT(1).

Incitement of Hatred, Contempt or Ridicule of a Person or Group

1. Having concluded that the Respondent's communication of his views to the journalists, once those views were published, became public acts for the purposes of s 49ZT(1), the Tribunal must consider whether those acts did " incite hatred towards, serious contempt for or severe ridicule of " a person or group of persons.

1. A useful statement of the legal principles concerning incitement in the context of the ADA can be found in Veloskey v Karagiannakis [2002] NSWADTAP 18 and can relevantly be summarised as follows :

The word " incite " in this context has its ordinary English meaning, namely, to urge, spur on, stir up, animate, stimulate or prompt to action - Veloskey at [21] ;

It is not sufficient if words used in the public act merely convey hatred or express serious contempt or severe ridicule - Veloskey at [21] ;

Section 49ZT does not require any intention to incite on the part of the Respondent, nor is it necessary that the Applicant prove that anyone was actually incited by the public act to respond in the requisite manner - Veloskey at [24] and [25];

What is required is that the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or group - Veloskey at [26] ;

The question therefore to be addressed is could the ordinary, reasonable reader understand from the public acts that he or she is being incited to hatred towards or serious contempt for, or severe ridicule of the person or group in question? The question is not, could the ordinary reasonable reader reach such a conclusion after his or her own beliefs have been brought into play by the public act? - Veloskey at [28] .

1. This last point was usefully elaborated upon by the Appeal Panel in Veloskey at [34] in the following terms:

The fact that historically oppressed minority groups may be more sensitive to public acts concerning them, is an irrelevant consideration on the question of the objective meaning of the public act. We do not understand the Tribunal to be asserting otherwise. However, if the Tribunal meant to convey that the reasonable reader of the publication may be more disposed to feelings of hatred, or serious contempt or severe ridicule, in respect of historically oppressed minority groups, it raises the question, does such a disposition arise from the reader's beliefs or from the reader's knowledge and experience of human affairs? If it were the latter, it is arguably equally likely that the ordinary reasonable reader is less disposed to incitement, rather than more; the public acts in question may be seen simply as an unjustifiable continuation of that historical oppression. If it were the former, it suffers from the confusion identified by Hunt CJ at CL (as he then was) in Amalgamated Television Services Pty Ltd v Marsden referred to above [[2002] NSWCA 87]. If one has regard to the beliefs of the reasonable reader, and how those beliefs may be excited by the public act, one is deflected from the primary focus, that is, what the public act is reasonably capable of conveying.

1. When it comes to the reactions which must be incited before s 49ZT(1) will render conduct unlawful, the Appeal Panel held in Veloskey at [29] that the words " hatred ", " contempt " and " ridicule " are to be given their ordinary English meanings. The Oxford English Dictionary relevantly defines " hatred " as " active dislike, detestation; enmity, ill-will, malevolence ", and the Macquarie Dictionary gives the following: " intense dislike; detestation ". Mr Lancaster of Senior Counsel, who appeared with Mr Petrushnko for the Applicant, disclaimed any reliance upon " hatred " as the reaction allegedly incited by the Respondent's comments and, accordingly, the Tribunal will not consider that aspect of s 49ZT any further. The Applicant did rely, however, upon a characterisation of the Respondent's conduct as inciting " contempt " and/or " ridicule " in the requisite degree.

1. " Contempt " is said by the Macquarie Dictionary to have the following meanings:

1.the act of scorning or despising.

2.the feeling with which one regards anything considered mean, vile, or worthless,

and the Oxford English Dictionary definitions are essentially the same.

1. The word "ridicule" is relevantly defined in the Oxford English Dictionary as meaning "The action or practice of laughing contemptuously at a person or thing; derisive language or behaviour; mockery, derision." The Macquarie Dictionary definition is "words or actions intended to excite contemptuous laughter at a person or thing; derision".

1. From these definitions, it can be seen that there is a degree of similarity, or perhaps even overlap, between " contempt " and " ridicule ". A common element appears to be that the objects of the contempt or ridicule are worthless or can be despised, laughed at or derided because they are not worthy of being treated with dignity or respect. This element is particularly relevant in the context of an anti-discrimination statute one of whose underlying principles is the right of every person to be treated with the respect and dignity that is inherent in being a human being.

1. It should also be noted that these latter two words " contempt " and " ridicule " are qualified in s 49ZT (and in the other vilification provisions of the ADA) by the adjectives " serious " and " severe " respectively. These are both intensifiers. In the case of " serious ", it emphasises that the contempt must be grave, weighty or important. Likewise, ridicule will only be " severe" when it is harsh or harshly extreme.

1. The Appeal Panel in Veloskey v Karagiannakis [2002] NSWADTAP 18 at [29] held that the use of the adjectives " serious " and " severe " calls for an evaluative judgment on the part of the tribunal of fact, within a broad discretion. In doing so, they relied upon French J's decision concerning " serious " in the expression "a serious non-political crime " in Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs at 563F-G. In addition, it should be noted these words also play a functional role in marking out cases of incitement of contempt or ridicule which should attract the intervention of the Tribunal under the ADA from less important cases which do not warrant intervention.

1. In this regard, it is appropriate to be reminded of the very serious and important object at which vilification laws are aimed. They are not designed to protect persons or groups from upset or hurt feelings because other persons in society express a view that certain actions are wrong, sinful or disordered. As was held by the Appeal Panel in Burns v Laws [2008] NSWADTAP 32 at [67]:

67.Anti-vilification laws seek to furnish a degree of protection to groups of people historically the subject of unlawful discrimination and deep-seated prejudice resulting in them being treated unequally as compared to other members of the community not having those characteristics. A number of Members of Parliament who spoke in support of the law under notice in this case saw a direct link between the making of vilifying statements about homosexual persons and the occurrence of unprovoked assaults on homosexual persons ('gay bashing') and, sometimes, outright murder. See for example Second Reading of the Bill (a Private Member's Bill), Ms Moore (Member for Bligh), Hansard (Legislative Assembly), 11 March 1993, 657; and the subsequent debate reported 13 April, 29 April, 16 September, 17 November 1993.

1. It will be necessary for the Tribunal to examine whether and to what extent the Respondent's views as set out in the relevant articles published in the City Voice and the Southern Courier were capable, in an objective sense, of inciting reasonable readers to feel serious contempt for, or severe ridicule of, a person or group.

City Voice Articles

1. The particular matters identified, in his complaint lodged with Anti-Discrimination Board and in submissions to the Tribunal, by the Applicant as inciting serious contempt and/or severe ridicule in the City Voice articles are:

The use of the word " unfortunates " or " unfortunate " in respect of some or all homosexuals;

The statement that the Respondent felt " very sorry for men and women who are inflicted [or possibly " afflicted "] with this [referring either to homosexuality or AIDS]";

The suggestion that for some or all homosexuals " psychiatric rehabilitation " was appropriate.

1. It was accepted by both parties that the readership or audience to which City Voice was primarily directed was the gay and lesbian community in Sydney, including in particular those who lived in the Grayndler and Kingsford Smith electorates.

1. The Applicant expressed his reaction to the words and opinions complained of in his first complaint to the Anti-Discrimination Board in the following terms:

I felt violated and highly offended when I read his comment that I needed rehab because I was a male homosexual.

I felt worthless when he referred to homosexuals in general as being inflicted with some that is as sinister and dirty as their homosexuality.

I feel this reference's homosexuals as people to be viewed by the general public as perverted.

His comments suggest that homosexuals are sick.

I felt very upset and hurt by his comments.

1. While the Tribunal accepts that the Applicant genuinely felt that way, that does not determine whether the Respondent has contravened s 49ZT(1) by making the comments reported.

1. To describe people as " unfortunates " is usually an expression of a view that those persons deserve sympathy and perhaps help rather than an expression of disparagement or contempt. There was nothing in what the Respondent said or in the way in which it was said or reported which would provide a foundation for concluding that his description of the homosexual persons whom he had observed in Oxford Street while he was working there or even all homosexual persons as " unfortunate " or " unfortunates " was likely to stir up feelings of contempt or ridicule. This is especially so for those among the readership of City Voice who were homosexual. It might be thought more likely for those readers that they would have felt contempt or ridicule for the Respondent not homosexuals.

1. The Tribunal accepts that it might well be the case that some homosexual persons do not seek or want the Respondent's sympathy or help and that homosexuals and others may be offended by the suggestion that homosexuals deserve sympathy or need help. As was noted above, however, the question of the ordinary, reasonable reader's reaction to the public act is to be addressed before his or her own beliefs have been brought into play. To describe people as " unfortunate " in the way that the Respondent did is not, in the Tribunal's view, something that would stir up or prompt an ordinary, reasonable reader to feelings of contempt for or ridicule of that group.

1. Accordingly, the Tribunal concludes that the Respondent's use of the description " unfortunates " or " unfortunate " would not cause the ordinary, reasonable reader to understand that he or she was being incited by what the Respondent was reported as having said to feel any, let alone serious, contempt for homosexuals. Nor would such a reader understand that he or she was being incited by those comments to ridicule homosexuals. A genuine, not sarcastic expression of sympathy such as the Respondent's, even if unwelcome, is inconsistent with ridicule and contempt.

1. The Applicant also relies upon the fact that the Respondent used the word " inflicted " or " afflicted " in connection with homosexual persons generally or with AIDS sufferers. When the word " afflicted " is used in its ordinary English meaning, describing a person as " afflicted " with a physical or mental condition usually evokes sympathy or pity not contempt or ridicule. Similarly, to speak of something being " inflicted " upon a person does not imply that the person is contemptible, worthless or ridiculous. Absent sarcasm or irony or some similar circumstance that changes the usual meaning of those words, they are expressive of feelings of sympathy and pity for a person, whether or not that is welcome.

1. Once again, the Tribunal accepts that some persons may be offended by, or resent, themselves or others being described as " afflicted " or " inflicted " with a condition that they do not regard as an affliction but rather as something to be celebrated and affirmed. Indeed, the Applicant in his submissions referred to " the repulsive idea that homosexuality is an ' affliction ' that needs to be treated and removed. " It does not follow, however, that a person who does not share that view cannot describe the condition or state in question as an affliction without contravening a provision such as s 49ZT. Under that section, there is a distinction between " a person or group or persons " and the homosexual state or lifestyle referred to as " homosexuality ". What must be incited is hatred, contempt or ridicule in respect of the person or group. If a view were communicated to the public that homosexuality is wrong or even repulsive but that homosexuals as persons should be treated with respect and dignity and not be subjected to hatred, contempt or ridicule, there should be no infringement of s 49ZT(1).

1. The Tribunal is of the view that an ordinary, reasonable reader would appreciate that use of the words " afflicted " or " inflicted " to describe homosexuals or AIDS sufferers would not cause him or her to feel contempt for or to ridicule those persons or a group of such persons. The reader may or may not agree with the view that homosexuality was an affliction but " afflicted " or " inflicted " are not words calculated to incite contempt or ridicule for the persons said to be afflicted.

1. Thus, the Tribunal finds that the Respondent's description of homosexuals generally or AIDS sufferers as " afflicted " or " inflicted " would not cause the ordinary, reasonable reader to understand that he or she was being incited to feel contempt or ridicule for the persons so described, whether that reader agreed or disagreed with the Respondent concerning homosexuality.

1. The Applicant also draws attention to the comment by the Respondent concerning the " psychiatric rehabilitation " of homosexuals. This comment implies that it is the Respondent's view that homosexuals suffer from a condition that could be assisted by psychiatric rehabilitation; a condition that could amount to a psychiatric disability or illness. The Tribunal does not accept that a person said to be suffering from a psychiatric disability or illness would legitimately be considered by an ordinary, reasonable reader to be contemptible or ridiculous.

1. Nor should it be concluded that describing a person as, or implying that a person is, suffering from a psychiatric disability or illness amounts to urging or prompting an ordinary, reasonable reader to feel contempt for or to ridicule such a person. To conclude otherwise could be seen as endorsing the view that persons suffering from a psychiatric disability or illness are worthless or not entitled to the respect and dignity to which every human being is entitled.

1. The Applicant submitted that it was seriously contemptuous to suggest that homosexuality is a psychiatric illness. This submission focuses upon beliefs about homosexuality rather than on whether a public act incites hatred, contempt or ridicule of a person or group. The Tribunal is of the view that it is permitted under the ADA publicly to express views disapproving of or criticising homosexuality without thereby necessarily contravening s 49ZT(1). What must be focused upon by the Tribunal is whether the public act in question incites hatred, contempt or ridicule in respect of a person or group of persons. Suggesting that someone receive treatment or rehabilitation for a psychiatric condition is consistent with concern and respect for that person. It does not necessarily or even ordinarily bespeak contempt for or ridicule of the person.

1. In the circumstances of this case, the Tribunal finds that giving public expression to the view that homosexual people have a problem that could be addressed by psychiatric rehabilitation would not cause the ordinary, reasonable reader to understand that he or she was being incited to feel contempt for or to ridicule such people. It might cause someone who strongly disagreed with the view that homosexuality was a psychiatric illness or disability to regard the Respondent with contempt or ridicule for holding that view but that unfortunate reaction is not relevant for present purposes.

1. It was also submitted by the Applicant that:

The Respondent's statements include that he says he feels sorry for homosexual people. Whether or not he feels more sorrow than hatred is not really the point. Even if his words do not encourage hatred, his statements certainly do urge and encourage serious contempt for, and severe ridicule of, homosexual people.

1. It may be accepted that the Respondent disapproved of homosexuality and expressed views consistent with that. When, however, his actual comments are examined it becomes clear that his disapproval of homosexuality did not also involve him in expressing views which included animosity toward, or incited contempt for or ridicule of, any person or group.

1. On all of these bases, the Tribunal finds that the Respondent's comments communicated to Mr Bolger and published in the City Voice, on or after 4 August 2010 in print and online, did not incite contempt for or ridicule of a relevant person or group.

The Southern Courier Articles

1. The material complained of in the Southern Courier articles was the quote from the Respondent identified in the Applicant's second letter of complaint sent to the Anti-Discrimination Board, namely:

I wish you well (referring to homosexuals) and hope that one day your matters are sorted in conjunction with medical professionals.

1. Although the comment was addressed to the homosexual community in the Kingsford Smith electorate, the readership of the Southern Courier was on the Tribunal's understanding wider than that. As a suburban newspaper the Southern Courier had a wide ranging potential readership including all elements of the society living in the area in which it was distributed.

1. The Tribunal has found that by making the statement complained of to Ms Smith, a journalist, in response to the question what the Respondent had to say to the homosexual community in Kingsford Smith and knowing that Ms Smith might publish his response, the Respondent engaged in a " public act " within the meaning of s 49ZT(1), when his comment was published.

1. We have also found that this comment was made by the Respondent genuinely and without sarcasm or ill will so as to alter the ordinary English meaning of the words used.

1. The statement that the Respondent wished homosexuals well could not, in the circumstances, legitimately be found to incite any contempt or ridicule in respect of homosexual persons.

1. The second element of the statement that he hoped their " matters " would be " sorted out in conjunction with medical professionals " is somewhat similar to the comment about " psychiatric rehabilitation " made to Mr Bolger. The Respondent's words imply that homosexuality involves matters that might be resolved with the assistance of medical professionals. In other words, homosexuality is a condition amenable to medical treatment. The Tribunal understands that some persons, whether homosexual or otherwise, might find this opinion wrong headed, offensive and even old fashioned. The question for the Tribunal, however, is whether making such a public comment incites hatred, contempt or ridicule in respect of a person or group so as to fall within the conduct rendered unlawful by s 49ZT(1).

1. Expressing a view that a person or group has a condition that is amenable to medical treatment would not in our opinion legitimately be thought to cause an ordinary, reasonable reader to feel contempt or ridicule in respect of that person or group. For that reason and for similar reasons given above in relation to the views expressed in the City Voice articles concerning the " psychiatric rehabilitation " of homosexuals, the Tribunal is of the view that an ordinary, reasonable reader would not understand that they were being caused by those words of the Respondent to feel contempt for or to ridicule any homosexual person or homosexuals generally. A hope expressed for matters to be sorted out by medical treatment does not entail hatred or contempt for, or ridicule of, those to whom the hope is extended. Some may find it offensive that the Respondent expressed such a hope for homosexual persons. Nonetheless, by expressing such a hope the Respondent cannot in the circumstances of the present case be seen as inciting hatred, contempt or ridicule of any person or group.

1. Thus, the Tribunal finds that the Respondent's comments communicated to Ms Smith and published in the Southern Courier, on or after 9 August 2010 in print and online, did not incite contempt for or ridicule of a relevant person or group.

"Serious" or "Severe"

1. Furthermore, if we are wrong in the foregoing conclusions, we find that any contempt or ridicule of persons that was incited was not sufficient to attract the operation of s 49ZT(1). The views expressed by the Respondent in relation to how homosexual persons should be thought of or treated, which are the substance of the matters complained of, in every case involved expressions which encouraged sympathy with, pity for or the giving of assistance to, those persons. If, in addition, it were held that those views also encouraged ordinary, reasonable readers to feel contempt for and/or to ridicule those persons, that effect would be mitigated by the feelings of sympathy, pity or the need to render assistance that were also encouraged.

1. The words used by the Respondent and the thoughts expressed were not, in themselves, contemptuous, violent or lacking in concern for homosexuals as fellow human beings. This must be taken into account when assessing the objective effect of the Respondent's public acts in this case.

1. As a result, if any contempt or ridicule were incited (and the Tribunal does not find that any was in fact incited), the Tribunal finds that it was not " serious " or " severe ", within the meaning of those words in s 49ZT(1) of the ADA, having regard to the words used and all the circumstances of the case.

On the ground of Homosexuality

1. The last element of a contravention of s 49ZT(1) is that there must be a causal connection between the incitement and the homosexuality of the person or group alleged to have been vilified. This follows from the use of the words " on the grounds of the homosexuality of the person or members of the group " in the section.

1. If there were incitement to the relevant degree in the present case (and the Tribunal finds that there was not), it follows from the nature and content of the comments complained of that homosexuality was a substantially contributing factor to that incitement.

1. Accordingly, if the Tribunal is wrong in relation to the findings set out above and it was held that the Respondent did by his public acts incite serious contempt for or serious ridicule of a person or group of persons, the Tribunal would find that there was the requisite causal connection between the reactions aroused by the communication of the Respondent's views to the public and the homosexuality of the person or group of persons.

Conclusion on the Applicant's Case

1. As the Respondent's public acts did not incite serious contempt for or severe ridicule of homosexuals (incitement of hatred not having been relied upon by the Applicant), the Tribunal concludes that the Respondent has not contravened s 49ZT(1) of the ADA.

1. In case we are wrong, however, in this conclusion, The Tribunal proposes also to consider the defence under s 49ZT(2)(c) raised by the Respondent.

Defence Under section 49ZT(2)(c)

1. As noted above, s 49ZT(2)(c) provides:

(2)Nothing in this section renders unlawful:

...

(c)a public act, done reasonably and in good faith ... for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

1. In order to fall within the description of conduct which is not unlawful under s 49ZT(1), the Respondent's public acts would have to be shown to have been done:

reasonably;

in good faith;

for a purpose in the public interest.

1. By operation of s 104 of the ADA, the Respondent bears the onus of establishing these matters.

1. This exception to liability for vilification on the grounds of homosexuality found in s 49ZT(2) is also found as an exception to vilification on the grounds of race, transgender status and HIV/AIDS status in the ADA. Moreover, similar exceptions appear in the Federal anti-discrimination statues and in other State and Territory statutory provisions dealing with vilification. The general principles relevant to the application of this type of exception can be summarised as follows:

Anti-vilification provisions, such as s 49ZT(1) of the ADA, create an exception to the common law right of freedom of speech and expression. The exemptions in provisions such as s 49ZT(2) should be seen as defining the limits of the proscriptions in ss 49ZT(1) and not as a free speech exception to them. Accordingly, provisions such as s 49ZT(2) should be construed broadly, not in a narrow way, thereby minimising any undue abridgement of free speech effected by the primary liability provision - Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [72] and [73], Burns v Laws [2008] NSWADTAP 32 at [28(ii)].

Proceedings dealing with a vilification complaint are not a forum for the determination of the truth or falsity of the statements put in issue - Burns v Laws [2008] NSWADTAP 32 at [28(iii)], Toben v Jones [2003] FCAFC 137 at [74].

Freedom of speech and expression is not limited to what might be called polite, decent or tasteful expression but is a freedom which embraces offensive, rude, hostile, derogatory and angry speech or expression, and speech or expression that is tasteless, insensitive and undignified - Burns v Laws [2008] NSWADTAP 32 at [28(i)].

1. Although the text of s 49ZT(2) might suggest that the words " done reasonably and in good faith " is a composite expression, the authorities establish that the two elements of reasonableness and good faith should generally be examined separately - see Burns v Laws [2008] NSWADTAP 32 at [29(iv)] but note also [73] to [76]. That is not to say, however, that some facts and considerations relevant to reasonableness are not also likely to be relevant to establishing good faith and vice versa - see Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [103].

1. In accordance with the Appeal Panel's approach referred to in Burns v Laws at [76], the Tribunal will address each of the elements of s 45ZT(2), identified above, separately.

1. Although the issue of the purpose, in the public interest, for which the public acts were engaged in is the last issue mentioned in s 49ZT(2)(c) it is more helpful to deal with it first, as the purpose of the acts informs the assessment of both reasonableness and good faith of those acts. This was also the approach suggested by Nettle JA in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, (2006) 15 VR 207 at [89] in respect of s 11 of the Racial and Religious Tolerance Act 2001 (Vic) (the "RRTA"), which establishes an exception similar to that found in s 49ZT of the ADA.

A Purpose in the Public Interest

1. The question is whether the Respondent's public acts were done for " purposes in the public interest " within the meaning of s 49ZT(2)(c). The expression " for other purposes in the public interest, including discussion or debate about and expositions of any act or matter " has been recently the subject of comment by the Appeal Panel in Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 at [35] in the following terms:

35.That defence [ under s 20C(2)(c) which is relevantly the same as s 49ZT(2)(c) ] is a broad and generous one in the interests of the virtues of free speech. Had the words 'including discussion or debate about and expositions of any act or matter' not been included, it may well have been right, by application of the ejusdem generis principle, to construe 'other purposes in the public interest' as limited to purposes of the same kinds as 'academic, artistic, scientific or research purposes', that is to say, purposes of serious, intellectual kinds. However the concluding words indicate that 'other purposes in the public interest' are to be taken to include the purposes of discussion or debate about any act or matter, as well as expositions (that is, setting forth or explaining) of some subject. Thus words said for the purpose of discussion or debate about virtually any subject are deemed to be said for a purpose that is in the public interest.

1. In the present case, the public acts of the Respondent were speaking to two journalists and giving them his views on homosexuals, among other things, which views were published in City Voice and the Southern Courier . He gave his views for possible publication in circumstances where he was a candidate for election for the Federal electorate of Kingsford Smith and the journalists were obtaining the views of candidates on issues of interest to their readers, who included electors from that electorate.

1. A question arises from the wording of s 49ZT(2)(c) in relation to the purpose for which the public acts were done, namely: Whose purpose is relevant? Given that the subsection addresses the purpose of the public act and the public act must be that of the Respondent for liability to arise under s 49ZT(1), the natural meaning of " purposes " would be that it refers to the subjective purpose of the Respondent.

1. Such a construction was adopted by Nettle JA in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 in respect of the purposes referred to in s 11 of the RRTA. Section 11 provided:

A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith-

(a)

...

(b)in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for -

(i)any genuine academic, artistic, religious or scientific purpose; or

(ii)any purpose that is in the public interest; or

(c)in making or publishing a fair and accurate report of any event or matter of public interest.

1. In that case, the issue was whether the defendant had engaged in conduct for " any genuine ... religious purpose ". At [89], Nettle JA held:

Under s 11, the question is whether the conduct in which a person (the defendant) has engaged should be seen as having been engaged in reasonably and in good faith for a genuine academic artistic religious or scientific purpose. In my view it follows that, assuming no lack of honesty, one should ordinarily start with the identification of the purpose for which the defendant is said to have engaged in the conduct and determine whether it answers the description of an academic artistic religious or scientific purpose.

1. Similarly, Mr Sofronoff QC, President of the Anti-Discrimination Tribunal of Queensland, held in Deen v Lamb [2001] QADT 20 that because the respondent in that case had " been disseminating his pamphlet as part of his campaign to be elected [in the 2001 Federal election]", his publication was " made, as I have said, for the purpose of and in connection with a Federal election campaign " and it was thus for a purpose in the public interest. He went on to hold:

By requiring that the act be done in good faith and for the specified purpose, in my view the Act requires that the specified purpose be the actor's actual purpose rather than merely his or her colourable purpose. It will not avail a respondent that the act might have been done for an existing legitimate purpose if in truth it was done by the particular respondent for some other illegitimate purpose.

1. Thus, the Tribunal is required to determine the Respondent's actual, subjective purpose in making his comments on homosexuality to the journalists. As we have already found, there was no lack of genuineness or honesty in the Respondent's giving his views on homosexuals. In the light of the terms of the conversations between the Respondent and the two journalists and the circumstances in which they took place, the Tribunal finds that the Respondent's actual purpose in expressing his views on homosexuality and saying what he did to homosexuals in the Kingsford Smith electorate was so that voters in that electorate could be informed of his views. It was his contribution to the public discussion or debate concerning homosexuality and the treatment of homosexuals. We think that there can be no real dispute that it is in the public interest that voters be informed of the views of candidates on issues that might be of interest to those voters - see comments to a similar effect by Mr Sofronoff in Deen v Lamb .

1. Accordingly, the Tribunal concludes that the Respondent's public acts in the present case were done " for other purposes in the public interest, including discussion or debate about and expositions of any act or matter " within the meaning of s 49ZT(2)(c).

Reasonableness

1. We turn now to consider whether the public acts in question were done " reasonably ". In the present case, the relevant acts were the Respondent's giving his views to the journalists knowing that those views might be published and being content that they should be. These acts became completed " public acts " when his views were communicated to the public by being published.

1. The Macquarie Dictionary includes the following relevant definitions for " reasonable " and the adverbial form " reasonably ":

2.agreeable to reason or sound judgement: ...

3.not exceeding the limit prescribed by reason; not excessive: .. .

4.moderate,...

1. Similarly, the Oxford English Dictionary includes the following definitions:

3.a.Of something abstract: in accordance with reason; not irrational, absurd, or ridiculous; just, legitimate; due, fitting.

...

5.Within the limits of what it would be rational or sensible to expect; not extravagant or excessive; moderate.

...

7.a.Sufficient, adequate, or appropriate for the circumstances or purpose; ...

1. In addition, it should be borne in mind that in statutory and other legal language, " reasonable " often imports an objective quality to the standard or norm referred to and it has been held, specifically in the context of s 45ZT(2)(c), that whether an act is done reasonably is to be assessed in an objective manner - Burns v Laws [2008] NSWADTAP 32 at [29(v)].

1. From these matters it follows that, when considering whether the public acts in question were done " reasonably ", the Tribunal must ask whether:

the acts were rational, in accordance with reason or fitting in that they had a reasoned connection with the relevant type of activity identified in s 49ZT(2)(c); and

the acts were within the limits prescribed by reasons, in the sense of being appropriate for the circumstances and not excessive or immoderate.

1. In addition, the judgment required should be based upon what the ordinary, reasonable person would do or think rather than the subjective opinion of the person who engaged in the acts.

1. A similar approach to " reasonably " has been endorsed by the Full Court of the Federal Court in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 per French J in the context of Federal vilification legislation. The question in that case was whether publication of a cartoon which concerned the return to Western Australia of the skull of a 19 th century Aboriginal leader from a British museum and which was held to be insulting and offensive to Aboriginal people within s 18C of the Racial Discrimination Act 1975 (Cth) (the "RDA") was not unlawful because of the exception in s 18D of that Act. Section 18D is similar to s 49ZT(2).

1. Sections 18C and 18D of the RDA provide:

Offensive behaviour because of race, colour or national or ethnic origin

18C.

(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.

Exemptions

18D.

Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)in the performance, exhibition or distribution of an artistic work; or

(b)in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)in making or publishing:

(i)a fair and accurate report of any event or matter of public interest; or

(ii)a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.

1. While there are differences in wording, given the very similar purposes of the RDA and the ADA and the use of the same words, " done reasonably and in good faith " in the introduction to s 18D as are found in s 49ZT(2)(c), decisions relating to s 18D can provide some useful guidance in relation to the construction of s 49ZT(2).

1. In Bropho , French J held at [79], [81] and [82]:

79There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done "reasonably" in one of the protected activities in paras (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. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things "reasonably". The judgment required in applying the section, is whether the thing done was done "reasonably" not whether it could have been done more reasonably or in a different way more acceptable to the Court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D and a recognition of the two competing values that are protected by those sections.

...

81The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. 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". A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of para (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered "reasonably".

82The ways in which the concept of reasonableness is brought to bear in the context of s 18D are no doubt as numerous in their variety as are the circumstances in which alleged racial vilification may arise. The preceding comments do not purport to offer an exhaustive account of the concept of reasonableness nor a definitive view about the examples offered. Rather, they are intended to illustrate the kind of task that faces a court applying s 18D.

1. In summary, French J's decision draws attention to the following aspects of " reasonably " as used in the context of s 18D of the RDA and s 49ZT(2) of the ADA:

The need for a rational connection between the public acts and the purpose in the public interest for which the acts were done;

The need for proportionality between the public acts and the public interest to be served;

The need for an objective judgment, that is, one not based upon the assessment by the actor of his own conduct, but a judgment based upon what a reasonable, ordinary person would have done or said.

1. Nonetheless, it should also be remembered that in [82] of Bropho , French J noted that this was not a definitive or exhaustive lists of the circumstances that might be relevant in determining whether public acts were " done reasonably " in the many circumstances in which the issue might arise.

1. " Reasonably " in s 49ZT(2)(c) was also considered by the Tribunal and by the Appeal Panel in Burns v Laws (No 2) [2007] NSWADT 47 and Burns v Laws [2008] NSWADTAP 32, respectively. The Tribunal at first instance concluded its consideration as follows:

209For the foregoing reasons, we conclude (with some diffidence, since the issue is far from easy) that the correct approach to interpreting 'reasonably' in s. 49ZT(2)(c) is to ask, following French J in Bropho , whether the relevant 'public act' (a) bears 'a rational relationship' to one or more of the purposes set out in this provision and (b) is 'not disproportionate to what is necessary' to carry out such purposes. We interpret 'not disproportionate to' in accordance with one of the dictionary definitions of 'reasonable': namely, 'not going beyond the limit assigned by reason'. In applying this test, the matters to be taken into account should include the four factors that we have just identified. In summary form, they are as follows: (i) the extent to which the vilifying material cannot be related to any of the relevant purposes; (ii) whether this material is composed in such a way as to include 'gratuitous insults'; (iii) the degree of harm inflicted on those members of the relevant group who have been vilified; and (iv) (as an element of (iii)) the range of dissemination of this material and the degree to which it is likely to be influential.

1. The Appeal Panel's conclusion on the issue of " reasonably " was as follows ([2008] NSWADTAP 32 at [111]):

111To sum up. Whether the conduct was done reasonably is a matter for objective assessment by the Tribunal. We do not wish to be definitive about what factors might in a particular case be relevant to the objective assessment of the reasonableness of the conduct. We think that in the present case the Tribunal's approach was satisfactory, involving as it did a broad division of the considerations into ones going to the 'rationality' of the relationship of the comments to the permitted purpose, and ones going to their 'proportionality' to the permitted purpose. ...

1. Accordingly, the Tribunal should consider whether the " public acts " were engaged in " reasonably " having regard to:

Whether there was a reasoned connection between the public purpose of informing voters of a candidate's views on matters relevant to the Federal election and the acts; and

Whether the acts were appropriate for the communication of the candidates views to the voting public and not excessive or immoderate,

judged objectively, not by reference to a respondent's subjective views or intentions.

1. In the present case, the Respondent spoke to the journalists so that voters in the electorate for which he was standing could be informed of his views on homosexuals and homosexuality. The Tribunal finds that, viewed objectively, what the Respondent said was rationally and reasonably connected with that purpose and that the Respondent did not express his views in a way that was gratuitously insulting or offensive. Although some may have been insulted or offended by his views on homosexuality, this was inherent in his views and was not the consequence of the Respondent's inappropriately using the opportunity to communicate his views as a candidate from an ulterior purpose such as stirring up violence or hatred. Indeed, the Respondent's description of his conversation with Mr Bolger as " polite, civilized and pleasant and ended amicably " was not disputed or challenged. Ms Smith's assessment of Mr Cunningham's sincerity in her online comment of 10 August 2010 in the Southern Courier referred to above is consistent with this.

1. In addition, the Tribunal holds that the Respondent's public acts would be viewed by an ordinary, reasonable person as appropriate, both in manner of communication and content, to the purpose of informing voters of his views. He did not, for example, add essentially irrelevant insulting or offensive comments or use extravagant or obnoxious language. In that sense, the Respondent's acts can be said to be "proportional" to his purpose and to the public interest served by informing voters of the views of candidates on issues that may be significant to voters.

1. Finally, having regard to all the circumstances of the case, the Tribunal finds that there were no other elements in the Respondent's conduct which would render it unreasonable so as to take it outside the scope of the exception found in s 45ZT(2)(c).

1. The Applicant submitted that a " vilifying opinion that is not based on reasonable grounds is not ' done reasonably' within the meaning of the subsection. " No authority was cited for this proposition. One difficulty with this submission is that it focuses upon what it describes as a " vilifying opinion " whereas the ADA renders unlawful not vilifying "opinions " but vilifying " acts ". The purpose of the anti-vilification provisions is not to censor opinions. Rather, it is to outlaw conduct which has the propensity to cause members of the public violently to harm or abuse a person or group of persons merely because of some characteristic of the person or group, which characteristic is one of those identified in the ADA. Even where there is vilifying conduct, there is no unlawfulness if the conduct is done reasonably and in good faith for a purpose falling with s 49T(2)(c). This is so even if the opinion upon which the conduct is based may appear to be unreasonable, at least to some persons.

1. In this regard, the Tribunal is also mindful of the proposition referred to above that proceedings dealing with a vilification complaint are not a forum for the determination of the truth or falsity of the statements put in issue.

1. Moreover and in any event, the Respondent indicated he was seeking to adhere to what he understood to be the teaching of the Catholic Church in relation to homosexuality, including the necessity for respect and concern to be shown to homosexuals as persons, when expressing his views in a fashion we have found to be moderate and not extravagant. The Tribunal does not believe it would be correct to hold that someone genuinely doing this should be held to be acting without reasonable grounds, even if he or she could not explain the detail of, and the bases of support for, that teaching. This approach is consistent with the Speech of the Member of Parliament who moved that the Anti-Discrimination (Homosexual Vilification) Amendment Bill be read a second time, the Hon Clover Moore MP. Hansard for the Legislative Assembly, 11 March 1993 at page 658 records her words as follows:

The bill will not make it illegal for people to talk about homosexuality. It will not prevent people from stating that they disagree with or disapprove of lesbian or gay lifestyles. The bill will not affect people who state their belief that homosexuality is a sin or who quote from the Bible to support their argument.

1. For these reasons, the Tribunal finds that the Respondent's public acts were done reasonably for the purposes of s 49ZT(2)(c).

Good Faith

1. The final element of the exception provided by s 49ZT(2)(c) is that the public acts must have been done " in good faith ". In the cases under the various anti-vilification statutes in Australia a difference of opinion has developed as to whether the requirement of " good faith " in this general context requires a respondent to prove:

only that he or she was not acting out of malice or bad faith or, put another way, was acting with the subjectively honest belief that what was done was necessary or desirable to achieve the relevant purpose. This is sometimes called subjective good faith; or

not only subjective good faith but also that the respondent's conduct, objectively viewed, involved the pursuit of his or her purpose conscientiously taking care to avoid the harm or consequences of the offensive statements which the anti-vilification provisions were designed to avoid. The latter element is sometimes known as objective good faith.

1. The view that a respondent only had to establish subjective good faith was adopted by the Tribunal in Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 where it held:

122If a statement or comment is made in "good faith" that would appear to be the converse of acting with malice. "Good faith" appears to imply the absence of "spite, ill-will or other improper motive". As with malice, "good faith" appears to be a state of mind and the crucial factor in determining the presence of "good faith" would seem to be "whether the commentator honestly believed in the truth of what he or she said".

1. Subjective good faith was also held to be all that was required under s 11 of the Victorian RRTA in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207 at [92]:

... According to ordinary acceptation, to engage in conduct bona fide for a specified purpose is to engage in it honestly and conscientiously for that purpose. In my view that appears to be the intent of s.11. The legislative requirement that the conduct be engaged in not only in good faith but also reasonably means that objective standards will be brought to bear in determining what is reasonable. Despite what has been held under s.18D of the Racial Discrimination Act, I see no reason to load objective criteria into the conception of good faith in s.11, or otherwise to treat it as involving more than a "broad subjective assessment" of the defendant's intentions. In my view, the requirement that conduct have been engaged in bona fide for a genuine religious purpose within the meaning of s.11 will be established if it is shown that the defendant engaged in the conduct with the subjectively honest belief that it was necessary or desirable to achieve the genuine religious purpose.

1. The view that what must be shown is both subjective and objective good faith was adopted by the Full Federal Court in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 in respect of the provisions in s 18D of the RDA. A comprehensive analysis of " good faith " in this context is found in the reasons of French J at [83] to [103]. In particular, it was held in Bropho as follows:

95.How does this approach operate in the context of s 18D? It requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section. The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C. It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict. It will not use those freedoms as a 'cover' to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin.

96.It follows from the preceding discussion that good faith may be tested both subjectively and objectively. Want of subjective good faith, ie seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively.

...

101... In my opinion, having regard to the public mischief to which s 18C is directed, both subjective and objective good faith is required by s 18D in the doing of the free speech and expression activities protected by that section.

102A person acting in the exercise of a protected freedom of speech or expression under s 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D. On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith.

1. The Appeal Panel in Burns v Laws [2008] NSWADTAP 32 resolved that dispute when applying s 45ZT(2)(c) of the ADA in favour of the more onerous approach. It held at [66]:

66.In our view, the higher standard of good faith should form part of the appraisal of the conduct of a respondent seeking to rely on s 49ZT(2)(c). In our view, it is vital to the effective operation of an anti-vilification law of the present kind that persons actively engaged in otherwise offensive discourse with the wider community demonstrate conscientiousness in upholding the policy and objectives of anti-vilification provisions.

1. This approach was also adopted by the Appeal Panel in Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 at [41]:

41.The phrase 'in good faith' envisages honesty and sincerity of purpose, including as to observance of the law against public hate speech. There is a subjective and an objective aspect to it. It is more than just the absence of malice. Particularly in the absence of positive extrinsic evidence from which such honesty and sincerity might be inferred, various matters might prevent a finding of good faith, including apparent recklessness as to the serious harm likely to be caused. [ The Panel went on to cite Bropho and in particular what French J had said of 'good faith' in this context ].

1. Accordingly, in determining whether the Respondent acted in good faith within the meaning of s 49ZT(2)(c), the Tribunal has to make an assessment of the Respondent's subjective motivation for, and honesty in, doing the public acts which, if s 49ZT(2)(c) is to be applicable, must be assumed (contrary to our conclusion above) to have contravened s 49ZT(1). In addition, the Tribunal must also make an objective assessment of whether the Respondent's conduct involved what an ordinary, reasonable person would regard as a conscientious approach to the task of honouring the values asserted by the ADA.

1. It has been suggested in a number of Tribunal decisions (see for example Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 at [148] - [149] and Burns v Radio 2UE Sydney Pty Ltd ) [2004] NSWADT 267 at [77]) that it may be difficult for a Respondent to establish subjective good faith if he or she does not give evidence and that the Tribunal will not presume that comments are made in good faith without an appropriate evidentiary foundation. This can be accepted. The Respondent in this case did give evidence, was cross examined and put material before the Tribunal.

1. Having regard to all of those matters, the Tribunal has no doubt that the Respondent's views were honestly and sincerely held by him. Further, we accept that, although he disapproved of homosexual acts and lifestyles, the Respondent did not feel himself, or seek to promote in others, animosity towards homosexuals.

1. We are confirmed in this view by the comments of Ms Smith in her online comment of 10 August 2010 in the Southern Courier where she said:

I do believe that Mr Cunningham's view of people "inflicted" with homosexuality is not based in hatred, he genuinely pitied them and wanted to help. Mr Cunningham feels sorry for the gay and lesbian community, but I feel sorry for him.

1. In addition, in our view, the Respondent's expression of views were elicited by journalists seeking the views of candidates in the Federal election, of whom Mr Cunningham was one. He gave them the views he genuinely held in a moderate and polite manner.

1. In the circumstances, we are satisfied that in making his views known to the journalists with a view to their possibly being published the Respondent was acting with subjective good faith.

1. In his signed response to the Anti-Discrimination Board dated 29 September 2010, the Respondent stated:

14.I acknowledge that Homosexual desire are not in themselves sinful. All people are subject in everyday life to sinful desires, temptations, over which we have little direct control but these do not become sinful until a person acts upon these desires to make them an act. It is hardly a matter of argument that traditional Christian teachings has regarded Homosexual conduct as sinful and that is the position I hold.

15.My views were expressing compassion and sympathy. I stated that "It's my own opinion, I feel nothing but sympathy, charity and goodwill towards these unfortunate people and have no animosity towards them whatsoever".

16.I stressed my Christian approach was opposed to any hostility towards homosexuals. ...

17.My concluding remarks referred to my time working at the Department of Industrial Relations in Oxford St in the 1970's and 1980's and again expressed my view of sympathy for their plight back in a time when the general population and the law reflected negative and even hostile views.

None of this was challenged in cross examination. Nor was it suggested that the Respondent was wrong when he described his conversation with Mr Bolger as " polite, civilized and pleasant ".

1. We conclude, on the basis of what we have found as to what the Respondent said, how he said it, the circumstances in which he said it and his reasons for saying it, that:

the Respondent expressed his views as a candidate in a Federal election as his contribution to the public discussion or debate on homosexuality;

the Respondent did so in a manner that an ordinary, reasonable person would regard as designed to minimise any incitement to hatred towards, serious contempt for or severe ridicule of any person or group on account of their homosexuality. The ordinary, reasonable reader understands that someone can disapprove of certain conduct but still believe that the person who engages in that conduct should be treated with respect and dignity;

the Respondent did not seek to make his contribution to public discussion carelessly disregarding or wilfully blind to its effect upon persons or groups who might be adversely affected by the comments but on the contrary, strove to make clear his rejection of hostility towards or mistreatment of persons who engaged in activities of which he disapproved.

1. On these bases, we find that the Respondent has established that he also acted with objective good faith in the circumstances.

Conclusion on s 49ZT(2)(c)

1. For the reasons given above, our conclusion is that even if the Respondent did (contrary to our finding) contravene s 49ZT(1) of the ADA by engaging in the public acts identified earlier in these reasons, those public acts were not unlawful as they were done reasonably and in good faith for a purpose in the public interest, namely the exposition of the views of candidates in a Federal election to the voting public in and around the relevant electorate.

The Constitutional Issue

1. In the light of this conclusion in relation to s 49ZT(2)(c) and of our earlier finding that, in any event, s 49ZT(1) was not contravened by the Respondent's public acts, the issue of what effect the implied constitutional right of freedom of political communication might have in the present proceeding does not arise. As a result, there is no occasion for the Tribunal to seek, with the President's concurrence, to refer a question of law to the Supreme Court concerning that issue under s 79A of the ADT Act and the principles referred to in Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349, (2006) 236 ALR 385.

Conclusion

1. Thus, the Tribunal concludes that the Respondent has not engaged in unlawful conduct in contravention of s 49ZT(1) of the ADA because his public acts did not incite hatred towards, serious contempt for or severe ridicule of a person or group of persons on the grounds of the homosexuality of the person or members of the group.

1. If we are wrong in reaching that conclusion, the Tribunal finds that the Respondent's public acts were not unlawful by operation of s 49ZT(2)(c) as they were done reasonably and in good faith for a purpose in the public interest, within the meaning of that subsection.

1. Accordingly, the Tribunal proposes to order under s 108(1)(a) of the ADA that the complaint be dismissed in whole.

Order

1. The order of the Tribunal is that the complaint be dismissed in whole.

Amendments

27 March 2012 - Reference to s45ZT or s45ZS should be to s49ZT or s49ZS

Amended paragraphs: Througout entire decision

Decision last updated: 27 March 2012