Burns v Laws (No 2) - [2007] NSWADT 47

Pending Appeal:

CITATION: Burns v Laws (No 2) [2007] NSWADT 47

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Gary Burns
RESPONDENT
John Laws
INTERVENOR
Attorney General of New South Wales

FILE NUMBER: 051044

HEARING DATES: 16/02/2007, 14-15/03/2006, 27/03/2006 & 10/10/2006

SUBMISSIONS CLOSED: 23 October 2006

DATE OF DECISION:
1 March 2007

BEFORE: Chesterman M - ADCJ (Deputy President); Mooney L - Non Judicial Member at 288; Quayle C - Non Judicial Member

CATCHWORDS: Vilification - Homosexual

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977
Anti-Discrimination Act 1991 (Qld)
Commonwealth Constitution
Racial and Religious Tolerance Act 2001 (Vic)
Racial Discrimination Act 1975 (Cth)

CASES CITED: Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106
Bellino v Australian Broadcasting Commission (1996) 185 CLR 183
Briginshaw v Briginshaw (1938) 60 CLR 336
Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005)
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16
Brown v Classification Review Board (1998) 82 FCR 225
Bryl v Kovacevic & Ors [1999] HREOCA 11
Burns v Dye [2002] NSWADT 32
Burns v Laws [2005] NSWADT 229
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284
Coco v The Queen (1994) 179 CLR 427
Collier v Sunol [2005] NSWADT 261
Craig Williamson Pty Ltd v Barrowcliff [1915] VR 450
Deen v Lamb [2001] QADT 20
Dimozantos v The Queen (No 2) (1993) 178 CLR 122
Handyside Case, European Court of Human Rights (1976) Ser A No 24) 1 EHRR 737
He Kaw Te v R (1985) 157 CLR 523
Hellenic Council of NSW v Apoleski (No 1) [1995] NSWEOT (25/9/97)
IW v The City of Perth (1997) EOC 92-892; (1999) 91 ALJR 943
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Jones v Scully [2002] FCA 1080
Jones v Toben [2002] FCA 1150
Jones & Anor v The Bible Believers’ Church [2007] FCA 55
Jones & Anor v Western Aboriginal Legal Service [2000] NSWADTAP 28
Kazak v John Fairfax Publications Ltd [2000] NSWADT 77
London Artists v Littler [1969] 2 QB 375
NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559
R v Central Independent Television plc [1994] 3 All ER 641
R v Keegstra (1990) 61 CCC (3d) 1
Sunol v Collier [2006] NSWADTAP 51
Toben v Jones [2003] FCAFC 137
Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18
Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701
Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43
Waters v Public Transport Corporation (1993) 173 CLR 349
Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102
Wheeler v Leicester City Council [1985] 1 AC 1054

REPRESENTATION:
APPLICANT
D Rofe (16 February, 14, 15 and 27 March 2006)
No appearance on 10 October 2006
RESPONDENT
G Reynolds SC
P Hewitt, barrister

ORDERS: 1. The complaint is dismissed.; 2. The question of costs is to be resolved in accordance with the directions given at paragraph [287] of these reasons.

Procedural history

1 In these proceedings, the Applicant, Gary Burns, alleged that the Respondent, John Laws, who is a high-profile radio commentator, had unlawfully vilified homosexual men while speaking on a radio talkback program, ‘The John Laws Morning Show’. The relevant segments of the program were broadcast between 9 and 10 a.m. on 3 November 2004 by Radio 2UE, a Sydney radio station.

2 Mr Burns based his claim on s. 49ZT of the Anti-Discrimination Act 1977 (‘the Act’). On 17 November 2004, he forwarded a complaint regarding the broadcast to the Anti-Discrimination Board. On 31 March 2005, the President of the Board, having determined that the matter could not be resolved through conciliation, referred the complaint to the Tribunal.

3 In Amended Points of Claim, filed on 10 June 2005, Mr Burns stated that he was a homosexual man and was entitled to bring these proceedings. He alleged that he had suffered distress, anger, insult and mental suffering in consequence of Mr Laws’ statements. He sought from the Tribunal orders that Mr Laws should pay damages and his legal costs and should apologise for his statements, both in the radio session that he presented each morning on 2UE and in various newspapers.

4 During August 2005, a Tribunal Panel including two members of the present Panel heard an application by Mr Laws for an order that the complaint be summarily dismissed, on the ground that the predominant purpose of Mr Burns in instituting and maintaining these proceedings was an improper purpose, namely, obtaining publicity for himself. In a judgment delivered on 10 October 2005 (Burns v Laws [2005] NSWADT 229), the Panel dismissed this application.

5 The resolution of these proceedings was further delayed by a number of factors, including replacement of a member of the Panel and, on a separate occasion, the illness of a Panel member.

6 The most significant of these delaying factors was an indication from those representing Mr Laws that he wished to raise issues of federal constitutional law. Specifically, he wished to argue that s. 49ZT of the Act was either (a) wholly invalid, by virtue of conflict with the implied guarantee of freedom of political communication contained in the Commonwealth Constitution or (b) required to be interpreted with greater emphasis on free speech considerations than has been accorded in the case law so far, in order to make it compatible with this implied guarantee. It was made clear that the latter argument would be more strongly pressed than the former.

7 In consequence, the Attorney General of New South Wales, having been notified of this development, intervened in the proceedings. He indicated that if and when these issues came to be canvassed before us, he would wish to have the opportunity of making submissions.

8 We determined, however, that we should first hear and receive all the evidence and argument that the parties wished to put before us, except for submissions on these constitutional issues. In so deciding, we took account of the fact that in other Tribunal proceedings, also involving Mr Burns and Mr Laws, precisely the same issues had arisen for determination at appellate level.

9 Before 10 October 2006, the final day of hearing of the case as thus limited, the Tribunal received notification that both Mr Rofe QC, who had previously appeared for Mr Burns, and the solicitors instructing him were no longer retained by Mr Burns. In various communications to the Tribunal at about this time, Mr Burns expressed a desire that the case be decided by us without further delay.

10 Neither Mr Burns nor anyone on his behalf appeared at the final day of the hearing. By this time, however, all the evidence in the case had been received. In addition, Mr Rofe had filed written submissions (both in chief and in reply to submissions filed on behalf of Mr Laws) and had addressed us orally. The Registry, on our instructions, sent a transcript of the final day of hearing to Mr Burns.

11 Toward the end of proceedings on that day, Reynolds SC, who appeared for Mr Laws together with Mr Hewitt of counsel, indicated that his client might not wish after all to put arguments to us on the constitutional issues that we have identified. The reason, he said, was that the constitutional argument on which Mr Laws relied most strongly – namely, that s. 49ZT of the Act had to be interpreted with greater emphasis on free speech considerations than has been accorded in the case law so far, in order to make it compatible with the implied constitutional guarantee of freedom of political communication – would, if successful, produce outcomes that were in practical terms the same as followed from a number of submissions based on common law principles of free speech that Mr Reynolds had put to us.

12 In a letter received by the Registry on 23 October 2006, Mr Laws’ solicitors confirmed that the foreshadowed constitutional arguments were no longer pressed and requested that we reach a decision without regard to these arguments. Among the reasons advanced was a desire to avoid further delay. The letter indicated, however, that Mr Laws reserved the right to raise these constitutional issues in any appeal from our decision.

13 We have determined that in these circumstances it is appropriate for us to reach a decision on Mr Burns’ application without regard to these foreshadowed arguments on matters of constitutional law.

14 We have also determined that although there was no appearance by Mr Burns at the final day of hearing, his case was sufficiently presented to us to enable us to reach our decision without any denial of procedural fairness to him. In so ruling, we take account particularly of the fact that the written submissions in reply that Mr Rofe filed were prepared after he had both received the written submissions and heard a significant proportion of the oral submissions that were put before us on behalf of Mr Laws.

Our decision

15 Our reasons are unusually lengthy. The main reasons are that we had to consider a number of difficult issues of interpretation of the relevant legislation, which were raised at length by counsel, and that a number of the significant questions that we had to resolve were finely balanced.

16 It is appropriate in these circumstances that we state at the outset what we have decided. It is as follows. We rule unanimously that the statements that Mr Laws made on the relevant broadcast constituted homosexual vilification, because they incited severe ridicule of homosexual men on the ground of their homosexuality. By majority, we rule further, however, that his publication of these statements on the radio fell within an ‘exception’ established by the Act that is designed, within appropriate limits, to preserve freedom of expression. Our majority decision is accordingly that the publication was lawful.

Relevant legislation

17 The provisions of the Act making homosexual vilification unlawful are ss. 49ZT(1) and (2), in conjunction with s. 49ZS. At the time of the broadcast by Mr Laws, these were as follows:-

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 group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful:

(b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or

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

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, and

(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, and

(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 group of persons on the ground of the homosexuality of the person or members of the group.

18 Reference should also be made to s. 104, which states:-

104 Proof of exceptions

Where by any provision of this Act or the regulations conduct is excepted from conduct that unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent.

19 In addition to receiving transcripts of the relevant segments of the broadcast, we heard a sound recording of them. The following transcript was tendered and admitted in Mr Laws’ case. In the ensuing reproduction of it, paragraph numbers have been added:-

Radio Transcript - 2UE

John Laws Morning Show

3 November 2004

1) [9.15AM] - JOHN LAWS: This is a really serious thing. It is not often I get really worried about this country but I tell you what I had a sleepless night last night after watching the television that I saw in relation to the Melbourne Cup. Who is this pompous little pansy prig who is strutting around everywhere yesterday telling Australian blokes how to wear their pocket square as he called it - that's poof speak for handkerchief and he had it wrong when he did adjust it. Who is this - he might be famous in certain circles - circles being the operative word. We know where they are. I don't know much about other Australian blokes, but this fella didn't inspire me too much, who the hell was he? Apparently he works on a programme on Channel 10 but yesterday he seemed to be everywhere but Channel 10. He was on Channel 7 judging girls, now what the hell does a pillow biter know about judging girls? They should have had a few truckies down there or me or the co-driver even. Fair dinkum Aussie blokes judging fair dinkum Aussie girls. Not this pompous little pansy. I remember when Australia was a land of proud dedicated women and hard drinking hard talking men M-E-N -men. Why this sudden proliferation of pansies I don't know. It's a major issue. I mean it is all very good and well that Australia tolerates people with varied sexual leanings, but I don't know why we should be celebrating it. Anyway, the sooner this fairy flies out and let us judge our own women on own criteria the better, so on behalf of truck drivers, wharf labourers, free thinking red blooded Australian men and me, let's collectively say: "pi[bleep]ss off pansy [in other voice]".

2) I know what you would have like to have said, you would have liked to have said "pi[bleep]ss off poof [in other voice]" but you can't say because that's a derogatory word so we won't say that, we wouldn't stoop to that well well - we really want (sic) to stoop to anything would I?

3) [9.23AM] - MARION: Oh g'day how's it going. I have just been killing myself laughing here, that was the funniest thing I've heard in awhile. Although I must say, you do say a lot of funny things and that was about that -what did you say? Pillow biting pompous little prig. You just crack me. Because I think that's what he is -I don't know where they get these shows from but I watched it on the news -Melbourne Cup whatever and what he did to that poor reporter, why that reporter stood there and let him...

4) JOHN LAWS: Why he copped that -he was Martin King I think.

5) MARION: Yes 1 thought he's face was red -actually 1 think his whole body went red -he seemed to be so embarrassed.

6) JOHN LAWS: I mean all the precious little pansy wanted to do was humiliate him.

7) MARION: That's right, yes.

8) JOHN LAWS: And we've got fair dinkum Australian blokes giving into that sort of garbage.

9) MARION: Yeah. As you said, you know with the women saying who was the best and who was not.

10) JOHN LAWS: Oh he was judging the women.

11) MARION: Judging the women I thought oh my God what a twit. It is just sad.

12) JOHN LAWS: It really is.

13) MARION: Why does it have to be flaunted so much I do not know.

14) JOHN LAWS: Neither do 1- why were we celebrating him. What about that little jockey, was he great?

15) MARION: Oh I backed that.

16) JOHN LAWS: Did you?

17) MARION: Yes.

18) JOHN LAWS: Yes. So did the princess.

19) MARION: Oh good.

20) JOHN LAWS: Every year she gets it right.

21) MARION: How clever is that.

22) JOHN LAWS: The last four years, she has picked the winner. '

23) MARION: Well I got first and third last year and I have put that [incomprehensible] on and I was listening to you talking to some poor fellow and said something about how sad it was that he got that because it was never going to win but oh no you cacked me up this morning you just -I was sort of wondering around here thinking what I am going to do with myself today and I just burst into laughter and I have just been laughing and laughing I think.

24) JOHN LAWS: If I've made you happy, that's the object of the operation. [Music]

25) Now the thing that annoyed me about that person was that he was tucking people's pocket handkerchief in, he called it your pocket square -it is not a bloody pocket square, it is a pocket handkerchief and the way you tucked it in, you clown, was wrong. I would rather listen to the likes of the people who dress people like Gary Cooper and Cary Grant and the way you tuck the pocket handkerchief in, is you put the points in first and you leave the fluffy soft bit sticking out. So if you want to do it, do it right at least but don't do it just go home you bother me.

26) [9.26AM] JOHN LAWS: Darren good morning.

29) DARREN: Yes good day John how are you going mate?

30) JOHN LAWS: I'm pretty good.

31) DARREN: Yes I just rang.

32) JOHN LAWS: I am a bit pi[bleep]ed off with the pansies but apart from that, I am in good shape.

33) DARREN: I have just been cracking up back here at work listening to you talking about him. I didn't see him much as the races yesterday, I saw him on Rove last night and sort of felt the same way as you did.

34) JOHN LAWS: Oh God was he on Rove too?

35) DARREN: Yes.

36) JOHN LAWS: Why are we making this sweet little pet a hero for God's sake?

37) DARREN: Yes that's what I would like to know.

38) JOHN LAWS: He is a raving old pansy and he comes out here and we make him a hero.

39) DARREN: Yes bloody oath. Yeah. I just rang up to say good on you mate. I was cracking up out loud. I listen to you everyday and [incomprehensible].

40) JOHN LAWS: Good on you Darren.

41) DARREN: Thanks mate. Can I say hello to my brother Trent?

42) JOHN LAWS: Yes of course you can.

43) DARREN: Thanks. Keep the dream alive Lawsy.

44) JOHN LAWS: Good boy thanks for the call.

45) DARREN: No worries. Bye.

46) JOHN LAWS: Bye.

47) [9.50AM] - JOHN LAWS: Warren. Good morning.

48) WARREN: Morning John. How are you going?

49) JOHN LAWS: I'm okay, a bit worried about the co-driver but apart from that.

50) WARREN: Yeah mate. This has been the funniest morning on radio that you've done in a while. You are on fire today mate I'll tell you.

51) JOHN LAWS: [laughter]

52) WARREN: You are giving everyone heaps. Mate, I just wanted to ring up about that fairy bloke you were talking about before. Talk about laugh. I mean, I don't want to copy everyone else what they're saying, I've got the filthiest hang over today after yesterday.

53) JOHN LAWS: [laughter]

54) WARREN: As I do after every Anzac day, the two days of the year I write myself off.

55) JOHN LAWS: Did you pick a winner though?

56) WARREN: Oh mate. I was that gone by the time the Cup was on I didn't know what I was doing there for a while.

57) JOHN LAWS: [laughter]

58) WARREN: But anyway, I managed to sleep in the spare room last night so I must have had a good night. Um, yeah, I moved to Sydney about 17 years ago.

59) JOHN LAWS: Yeah.

60) WARREN: From the country and um, I'll tell you what, the fairy thing. My son said to me, he is. 8 years old, he said to me "Dad, why are those blokes kissin’?" you know, like, down the main street of Darlinghurst.

61) JOHN LAWS: Yeah.

62) WARREN: And if you did that in the country John, you know, you just don't see it because it doesn't happen. So. I understand that people have to have their own, like their own way of life or whatever, but I don't know about promoting it like that. I don't know. I'm probably a bit old school. I'm only 37 but I'm... I don't know.

63) JOHN LAWS: No, you're a fair dinkum Aussie. We tolerate a lot of things. But tolerance has got to be a two way street and I just thought what the hell are we doing? This is the great Australian race.

64) WARREN: I know.

65) JOHN LAWS: And we've got this imported pansy, poncing around the place, tucking people's handkerchiefs in, and judging our girls. Bugger that.

66) WARREN: I mean isn't it. Isn't the Melbourne Cup telecast across the world as well? I mean.

67) JOHN LAWS: Yeah.

68) WARREN: You know what I mean. So we've got that Queer Eye for the Straight Guy coming from America to here, so what are we sending back? Some gay bloke jumping around fixing someone's tie at our international horse race.

69) JOHN LAWS: Hey listen. Don't hold your breath. It won’t be too long before we have Queer Eye for the Straight Guy with Australian Queer guys.

70) WARREN: Yeah, maybe. They need to get some like, hard core people on that show and see if they can really straighten them out you know.

71) JOHN LAWS: [laughter]. I don't want to straighten them out. I'm very happy for people to be homosexual if they want to be, that's fine.

72) WARREN: Same. I agree.

73) JOHN LAWS: I've got a lot of close friends that are homosexual, but they could not believe and I've talked to a couple of them this morning, who are dead set, 100% homosexual, and I talked to them and they said could you believe putting that clown on Australian television? You know, that's not representative of Australia.

74) WARREN: Yeah, I had a bit of a confronting thing with that. I was at a party once, and I had quite a few drinks again one night, and this homosexual guy came up to me, which is not a problem for me, and I was growing a beard at this stage, and he came up and he goes "Oh my god look at that on your face". And he grabbed my beard and he pulled it. And he goes "That's disgusting. Why don't you do it properly if you are going to do it". So I said mate, and I came up and grabbed him on the groin.

75) JOHN LAWS: Ohh.

76) WARREN: And I said "Mate, why don't you use this properly?"

77) JOHN LAWS: [laughter]. I think we better change the subject Warren.

78) [more laughter].

79) 131332 is our telephone number.

80) Believe me I have nothing, absolutely nothing, against homosexuals. But I just couldn't stand that pansy that was running around. It's just overtly gay.

20 In our assessment, based on listening to the sound recording, a casual listener would obtain the impression that Mr Laws may have wanted his remarks to be interpreted as humorous. If in fact he wished to indicate clearly that his critical comments were not serious, he did not wholly succeed. He could not be said to have displayed a ‘light touch’. He paused at times – for example, before the phrase ‘circles being the operative word’ in the first paragraph – seemingly to draw the listener’s attention to secondary meanings.

21 It is useful to add here that the ‘other voice’ referred to in the first and second paragraphs of the transcript was in each case a chorus of male voices. In cross-examination, Mr Laws said that he had arranged for these interpolations to be prepared shortly before the program began.

The evidence in Mr Burns’ case

22 Mr Burns did not tender a written statement, nor did he give oral evidence. No other witness was called on his behalf.

23 In addition to a CD-Rom containing the above parts of the broadcast and a transcript of them (which was in fact incomplete), the evidence tendered and admitted in Mr Burns’ case comprised four documents.

24 One of these was a printout, dated 13 March 2006, of material on Radio 2UE’s web-site. Under the headings ‘Presenters’, ‘John Laws’ and ‘John Laws Morning Show’, it set out what purported to be a ‘biography’ of Mr Laws. This included descriptions of him as ‘Australia’s most successful and influential broadcaster’ and ‘the undisputed king of Australia’s talk back airwaves’. It quoted a description of him by former Prime Minister Paul Keating as ‘the broadcaster of the century’ and by the Independent Monthly as a ‘rare phenomenon, the voice of the masses’. It indicated that he had worked for 51 years in radio at a number of stations, including 2UE between 1979 and 1984, and that since his return to 2UE in 1988 both he and this station had been ‘consistently at the top of the ratings ladder’.

25 This printout also stated that every day the broadcasts by Mr Laws were made on a network of over 60 stations, covering every State and Territory in Australia and reaching over 2 million people.

26 Also tendered in Mr Burns’ case was a copy of an ‘open letter’ to Mr Laws, dated 10 November 2004 and signed by seven organisations representing homosexual people. The writers strongly criticised his broadcast of 3 November, claiming that it would lead to an increase in violence against gays and lesbians. They referred to research on the incidence of such violence, claiming that it was often perpetrated by men under the age of 25 who were ‘strongly influenced by what they hear both from their peers and in the media’. The letter concluded as follows: ‘Mr Laws, you should apologise for your offensive comments and retract them immediately.’

27 The third document tendered was a copy of a letter dated 24 June 2003 from Mr Ian Sheppard, the General Manager of Radio 2UE, to Mr Burns. Referring to an earlier broadcast by Mr Laws, regarding which Mr Burns had also made a complaint under the Act, Mr Sheppard stated that he considered it inappropriate for Mr Laws to use the word ‘poof’ on air and that he had ‘raised this matter with him personally’.

28 Finally, a copy of a letter dated 22 March 2006 from Mr Laws’ solicitors to the solicitors then retained by Mr Burns was tendered. Its topic was the geographical range of the broadcast by Radio 2UE of a statement by Mr Laws. This occurred on 15 March 2006, which was one of the days of hearing of this case.

The framing of Mr Burns’ case under s. 49ZT(1) of the Act

29 In this section and subsequently, we will use the term ‘vilification’ to describe material that falls within s. 49ZT(1) of the Act and the term ‘unlawful vilification’ to describe material of this nature which does not fall within the ‘exception’ in s. 49ZT(2).

30 It is convenient at this stage to deal with three aspects of the case that Mr Rofe put forward with a view to establishing that the relevant segments of Mr Laws’ broadcast on 3 November 2004 amounted to vilification.

31 The relevant ‘public act’. It was not disputed that a radio broadcast, such as this particular broadcast, is a species of ‘public act’ as defined in s. 49ZS of the Act.

32 A less straightforward question is whether the relevant segments of the broadcast by Mr Laws should properly be regarded as a single ‘public act’ or as two or more ‘public acts’. The reason why the latter view might be preferable is that there were in fact four distinct segments. As appears above, an introductory monologue by Mr Laws (paras 1 – 2) commenced at 9.15 a.m. and was then followed by short conversations with three listeners: Marion, commencing at 9.23 (paras 3 – 25); Darren, commencing at 9.26 (paras 26 – 46); and Warren, commencing at 9.50 (paras 47 – 80).

33 It will be observed that the longest gap was between the penultimate and the final conversation. The starting time of the final conversation was in fact 24 minutes later than that of its predecessor and 35 minutes later than the time when Mr Laws first raised the topic of Mr Kressley’s behaviour as shown on Channel 7.

34 Mr Rofe initially advanced his client’s case on the basis that there was only one ‘public act’. When we suggested that there were or might have been more than one, he agreed that this could be correct, but claimed that it made no difference to the result. He pointed out that the introductory monologue formed part of the context of the three subsequent conversations with listeners, none of which could be properly understood in isolation. Whichever approach to this issue was adopted, he said, the relevant parts of the broadcast contained material that breached s. 49ZT of the Act.

35 Mr Reynolds did not seek to dispute Mr Rofe’s preference for characterising all four segments of the broadcast as one ‘public act’. He suggested that many listeners to the John Laws Morning Show regularly heard all or most of the program.

36 As illustrated in Collier v Sunol [2005] NSWADT 261 at [36 – 38], there is scope for some degree of flexibility in applying the concept of ‘public act’ to the dissemination or broadcast of text or spoken words at different stages in a single electronically distributed document or radio program. While the gaps between the introductory monologue and the first two conversations were relatively short, we would comment that it might be stretching matters to treat the final conversation (with Warren) as forming part of a single ‘public act’ that commenced some 35 minutes earlier.

37 It was however Mr Rofe’s preference that all four segments should be treated as constituting one ‘public act’. Mr Reynolds did not oppose this. In reaching our conclusions, therefore, we will adopt this standpoint.

38 The question whether the alleged vilification was with respect only to homosexual men in general, or with respect to Mr Carlton Kressley as well. As stated above, s. 49ZT(1) of the Act renders it unlawful (subject to s. 49ZT(2)) for ‘a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group’. As indicated by the words here emphasised, it may be sufficient under the subsection to show that the hatred, serious contempt or severe ridicule allegedly incited was directed towards a single person, not a group of persons.

39 In his complaint to the Anti-Discrimination Board and in the Amended Points of Claim filed in the Tribunal, Mr Burns asserted (a) that his case was based on the allegation that Mr Laws’ broadcast incited hatred, serious contempt and/or severe ridicule directed at homosexual men generally, on the ground of their homosexuality, and (b) that he (Mr Burns) had standing to bring the proceedings framed in this way because he was a homosexual man. As Mr Rofe pointed out, the latter assertion was not disputed.

40 At one point in the hearing, however, it was suggested to us that Mr Burns’ case might be based in the alternative on an allegation that the broadcast incited hatred, serious contempt and/or severe ridicule directed at Mr Kressley specifically, on the ground of Mr Kressley’s homosexuality.

41 Mr Reynolds raised the following three objections to this additional way of framing the case against Mr Laws. First, there had been no prior notification that Mr Burns’s claim might be enlarged in this way. Secondly, the Tribunal had no jurisdiction to entertain it because it formed no part of Mr Burns’s complaint to the Anti-Discrimination Board. Thirdly, the provisions of the Act regulating standing to bring complaints of vilification (ss. 87A, 87B, 87C and 88), when read in conjunction with s. 49ZT(1), made it clear that a complainant could not rely on the alleged vilification of another person unless the complaint was made ‘on behalf of’ that person. In this event, certain requirements regarding the giving of consent or authorisation by the other person had to be satisfied. They had not been satisfied in the present case.

42 In his submissions in reply, however, Mr Rofe stated unequivocally that Mr Burns did not seek to sue on behalf, or as a representative, of Mr Kressley. He maintained that at all times Mr Burns had framed the complaint only as ‘a complaint made on his own behalf as an admitted homosexual in relation to a public act of … vilification of homosexuals by the Respondent focussed upon and/or motivated by Mr Kressley’s conduct at the 2004 Melbourne Cup’.

43 On the final day of hearing, Mr Reynolds submitted that this aspect of Mr Rofe’s submissions in reply constituted a withdrawal of any earlier claim that Mr Burns’ case could and should be based on an additional allegation of vilification of Mr Kressley individually.

44 We agree. It follows, as Mr Reynolds acknowledged, that the three objections that he had previously raised do not need to be considered in this judgment.

45 The specific reaction or reactions alleged to have been ‘incited’ by the broadcast. As just indicated, Mr Burns alleged, in his complaint to the Anti-Discrimination Board and in the Amended Points of Claim filed in the Tribunal, that the reactions that Mr Laws’ broadcast incited amongst its audience were ‘hatred for, serious contempt towards and/or severe ridicule of’ homosexual men. This three-way formulation of the claim reproduces verbatim the wording of s. 49ZT(1).

46 While Mr Rofe appeared at times to adhere to this formulation, it increasingly became clear to us that the only allegation that he strongly pressed was that the broadcast had incited ‘severe ridicule of’ homosexual men. This was specifically confirmed in the latest of his submissions to be made, which were his written submissions in reply.

47 Although Mr Reynolds suggested during his oral submissions that a claim of incitement of hatred and/or serious contempt was also being pressed, we are satisfied that the case, as ultimately formulated by Mr Rofe, was based only on the alleged incitement of ‘severe ridicule’. We would add that in our opinion there was clearly no incitement of ‘hatred’ and that a claim that ‘serious contempt’ was incited would be most unlikely to succeed.

The evidence in Mr Laws’ case

48 The most significant items of evidence tendered and admitted in Mr Laws’ case were the transcript of the relevant parts of his broadcast (reproduced above), a transcript and videotape of the television program featuring Mr Kressley to which Mr Laws referred at the start of his broadcast, and a witness statement signed by Mr Laws during December 2005. He was cross-examined on this statement and in relation to other evidence before us.

49 The witness statement signed by Mr Laws. The salient parts of this statement, which was filed in the Tribunal on 20 December 2005, can be summarised as follows. During November 2004 and at the time of signing the statement Mr Laws hosted a daily radio program on Radio 2UE running between 9 a.m. and 12 noon. The aim of the program was to ‘entertain’ his audience with a ‘lively and sometimes humorous discussion’ of matters which he regarded as ‘of interest to the public generally’. He understood that a large portion of his audience were ‘country people and those who drive motor vehicles and trucks for a living including truck drivers, couriers, taxi drivers and the like’. He attempted to appeal to this audience in the way in which he discussed topical matters and through the humour that he employed for this purpose.

50 On 2 November 2004 he attended a Melbourne Cup lunch. While watching a Channel 7 broadcast of the Cup he noticed Mr Kressley’s behaviour. That evening, in accordance with his usual practice, he watched news and current affairs programs on television, including ‘A Current Affair’ on Channel 9 at 6.30. This program included a segment featuring Mr Kressley.

51 While watching this segment of ‘A Current Affair’, he made a number of observations and subjective judgments. They included the following: (a) that Mr Kressley behaved in a manner that was ‘in poor taste’ and ‘overtly sexual and in particular homosexual’, and that seemed designed to draw attention to his homosexuality; (b) that he made a number of comments about the sexual attractiveness of some of the men whom he met; (c) that it seemed ‘incongruous’ that a homosexual American man should be ‘criticising the dress sense of Australian men’ and should be ‘judging the fashion sense of Australian women, particularly at such an iconic Australian event as the Melbourne Cup’; (d) that Mr Kressley behaved inappropriately in purporting to undress a commentator appearing on the program; and (e) that Mr Kressley used expressions such as ‘queer’ and ‘fag’ in relation to himself.

52 Mr Laws then decided that he could appropriately discuss this matter on his program the next morning, since various aspects of the segment on ‘A Current Affair’ would be matters of interest to his audience that could be discussed ‘in a humorous and not overly serious way’. The aspects that seemed particularly worth discussing included the ‘appropriateness’ of the following: having ‘overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m.’, having ‘an American as a central figure on an iconic Australian day such as Melbourne Cup day’ and having ‘a gay man from the United States’ both ‘criticising the dress sense of Australian men’ and ‘judging the fashion sense of Australian women’. Mr Laws also wanted, as he said, ‘to use the occasion to send up what I regarded (and still regard) as the overly politically correct regulation of discussion of homosexuality in the media’. Next morning, he accordingly prepared some observations regarding Mr Kressley for his morning show

53 His intention in broadcasting the material was primarily to entertain his audience with a humorous discussion of the matters that he had identified. His comments were not made out of malice towards Mr Kressley (whom he had never met) or homosexuals in general. They were intended to relate to Mr Kressley and his appearance on ‘A Current Affair’, not to homosexuals in general. He did not intend to incite hatred, contempt or ridicule of Mr Kressley or homosexuals in general.

54 His introductory words, such as ‘this is a really serious thing’, were intended to be tongue in cheek and would, he thought, be interpreted in this way by his audience. He chose to use words such as ‘pansy’, ‘prig’, ‘poof’ and ‘pillow biter’ primarily because of their alliterative quality. In addition, he had heard close friends of his who were homosexual use these expressions, without regarding them as likely to incite hatred, contempt or ridicule of homosexuals. He may also have been influenced by Mr Kressley’s use of similar words.

55 During the broadcast, Mr Laws had in mind the impact that his comments would have on many of his listeners, which is why he mentioned ‘truck drivers, wharf labourers and other “free thinking red blooded Australian men”’.

56 He honestly held the views that he expressed. He believed that Mr Kressley had invited comment and discussion by his overtly sexual behaviour and his attempts to be humorous through the use of sexual innuendo, double meanings and jokes about his own sexual behaviour.

57 Finally, Mr Laws’ intentions and his honest belief in the opinions that he expressed extended to the comments that he made in response to the contributions by ‘Marion’, ‘Darren’ and ‘Warren’.

58 The segment on ‘A Current Affair’. It is not necessary to describe this segment in detail or to reproduce the transcript. It is sufficient to say that a number of Mr Laws’s observations about it, as summarised above, were reasonably accurate. It was a lightweight and generally light-hearted program. At the beginning, Mr Kressley was introduced as ‘an American Queer Eye’. His conduct thereafter seemed designed to draw attention regularly to his homosexuality. He was shown using expressions such as ‘queen’ and ‘fag’ in relation to himself, making comments about the sexual attractiveness of men whom he met and pretending both to flirt with and to undress a commentator, called Martin King, who was also appearing on the program. By way of example, he said at one point to Mr King: ‘I had better see you in private backstage.’

59 Other evidence. The remaining evidence tendered and admitted in Mr Laws’ case included the following items: (a) copies of correspondence, following the broadcast on 3 November 2004, between Mr Laws and representatives of the organisations which wrote the ‘open letter’ referred to at [26] above; (b) a copy of a statement headed ‘A message from John Laws to the gay and lesbian community’ (according to accompanying documentation, this was published in the Sydney Star Observer on 18 November 2004); and (c) a transcript of a statement, in virtually the same terms, that Mr Laws made on Radio 2UE on 15 March 2006.

60 The letter relating to this statement that Mr Burns tendered (see [28] above) indicated that it had not been broadcast throughout Australia or even New South Wales, The range of the broadcast was described as ‘the Sydney Metropolitan Area …[and] also… a wider area, approximately to Wisemans Ferry in the north, Richmond in the north/west, Glenbrook in the west, Camden in the south/west and Waterfall in the south’.

61 In broad terms, this statement conveyed a recognition by Mr Laws (a) that his program on 3 November 2004, although intended to be humorous only, had caused offence and distress within homosexual communities, (b) that he wished to apologise for this, (c) that he had come to realise that his remarks might have been interpreted as condoning or encouraging discrimination or violence against homosexual people and (d) that to the extent that this had occurred, it was a matter of considerable regret to him.

62 Also tendered and admitted in Mr Laws’ case were a recording and transcript of a discussion between him and Mr Steve Price, another radio commentator, broadcast on Radio 2UE on 2 June 2003. The discussion concerned a television program, ‘The Block’, relating to the renovation of residential apartments by four couples. One of the couples was homosexual. Mr Price, after raising this matter on air with Mr Laws, indicated his disapproval of depicting homosexual people on television at times when the audience would be expected to include children. When Mr Price suggested that the homosexual couple were ‘renovating in their undies’, Mr Laws replied: ‘Oh God. Working on the ballroom.’ Shortly after, he said: ‘If Channel Nine thinks it’s entertaining to have a couple of old poofs painting a room…’ He made a couple more observations in similar vein.

63 This broadcast was the subject of earlier proceedings for unlawful homosexual vilification brought by Mr Burns against Mr Laws, Mr Price and Radio 2UE. The Tribunal decided these proceedings in Mr Burns’ favour (Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267). This decision is under appeal.

64 The cross-examination of Mr Laws. Part of this cross-examination was devoted to eliciting from Mr Laws the meanings that he intended to convey by some of the phrases that he used in his broadcast and the meanings that, on his understanding, his listeners would have attributed to these phrases. Mr Laws did not deny that some of these phrases – for example, ‘pillow biter’ and ‘circles being the operative word’ – had sexual implications of particular relevance to homosexual men. He said that he had used such phrases in an attempt to be humorous and that he believed that his audience would view them similarly. With reference to his use of terms such as ‘pompous’, ‘poof’, ‘pansy’, prig’ and ‘pillow-biter’ he said that he had a liking for alliteration. He referred also to the ‘blokiness’ of many of his listeners. More than once, he claimed to have intended epithets such as ‘pansy’ and ‘prig’ to refer to Mr Kressley only, not to homosexual men in general.

65 It was put to Mr Laws that, in view of what he said on air on 3 November 2004 and also in the earlier broadcast that prompted the proceedings in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, his attitude to homosexual people was one of hostility. He denied this.

66 Mr Laws agreed in general terms with the description of his activities and his reputation as a broadcaster contained in the print-out from Radio 2UE’s web-site. He acknowledged, on being pressed, that his status as a broadcaster over 50 years tended to ‘give weight’ to views that he supported.

67 Another part of the cross-examination related to the matters which, according to Mr Laws’ statement, he regarded as worthy of discussion in commenting on the program on ‘A Current Affair’ (see [52] above). When pressed on the question, he could not identify any part of the transcript of his broadcast in which he raised the first of these matters, namely, the appropriateness of having overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m. In re-examination, he pointed out that 6.30 p.m. fell within what he called ‘children’s viewing time’.

68 A further topic dealt with in the cross-examination comprised the events following the broadcast outlined above at [26] and [59 – 61].

The grounds of Mr Laws’ defence

69 The primary contention on Mr Laws’ behalf was that his statements did not amount to vilification. In the alternative, he maintained that if this question was determined against him, his statements fell within paragraph (c) of s. 49ZT(2) of the Act and therefore could not be held to be unlawful vilification. This was because they constituted 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’.

The interpretation of s. 49ZT(1)

70 The submissions of counsel were in conflict with each other over a number of questions arising in the interpretation and application of s. 49ZT(1). By way of generalisation, it may be said that Mr Rofe relied, on the whole, on the approach adopted in previous Tribunal decisions, notably in the prior case involving both his client and Mr Laws (Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267). Mr Reynolds challenged a number of these decisions. It is convenient to discuss each of these contested questions separately, alongside some further matters of interpretation that arise in this case.

71 The basic approach to interpreting vilification provisions. Mr Reynolds contended that in its decisions relating either to s. 49ZT or to a similar section of the Act (s. 20C) relating to racial vilification, the Tribunal had paid insufficient attention to fundamental common law principles governing the interpretation of statutory provisions that impose or appear to impose any restriction on fundamental rights, freedoms or immunities such as freedom of expression. These principles required, he said, that (a) where the wording of a provision is ambiguous as to whether any restriction of freedom of expression is intended, it must be interpreted as not imposing any restriction, and (b) where there are two or more possible interpretations of a provision that restricts freedom of expression, a court or tribunal should adopt the interpretation that is least restrictive of this freedom.

72 A further submission by Mr Reynolds, linked to the second of these propositions, was that the value sought to be served by s. 49ZT(1) – which can be summarised as the protection of homosexual people from being the targets of hatred, serious contempt or severe ridicule on account of their homosexuality – was not a fundamental value under the common law. It therefore could not be said that the weight to be given to it in interpreting s. 49ZT was the same as the weight to be given to freedom of expression.

73 The cases on which Mr Reynolds principally relied in advancing these propositions were Coco v The Queen (1994) 179 CLR 427 and Brown v Classification Review Board (1998) 82 FCR 225. In the former case, he referred us specifically to the following passage in the judgment of Mason CJ and Brennan, Gaudron and McHugh JJ at 437:-

The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

74 In Brown v Classification Review Board at 235, French J, having stated that the common law currently gave a ‘high’ value to freedom of expression, explained that, as a ‘particular application’ of this principle stated in Coco, it followed that ‘a conservative approach must be adopted to the construction of statutes which would impair or abrogate it’.

75 Mr Reynolds also relied on passages to similar effect in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 182-183 (High Court), Wheeler v Leicester City Council [1985] 1 AC 1054 at 1065 (House of Lords) and R v Central Independent Television plc [1994] 3 All ER 641 at 652 (Court of Appeal, England).

76 We do not consider that the first of Mr Reynolds’ propositions could be said to have direct application to either s. 49ZT or s. 20C of the Act. We agree with the observation of Mr Rofe, made in his submissions in reply, that these vilification provisions manifest a clear statutory intention to restrict the fundamental right of freedom of expression.

77 We recognise, however, the importance of Mr Reynolds’ second proposition when interpreting and applying s. 49ZT. But we would point out that the legislature itself, in enacting the ‘exception’ set out in s. 49ZT(2), has provided explicit guidance as to how the values sought to be served by s. 49ZT(1) should be balanced against freedom of expression.

78 It would not be appropriate in these circumstances to read down s. 49ZT(1) unduly (out of a concern to give proper scope for freedom of expression), then to narrow its scope of operation even further in order to take account of the express words of s. 49ZT(2). Instead, the enactment of these two subsections side by side requires that they should be interpreted in a manner that provides scope for both of them to operate. To put this point in another way, if the task of proving vilification under s. 49ZT(1) is made too difficult, s. 49ZT(2) will in practice have little or no work to do.

79 These observations receive support from the Tribunal’s judgment in Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [22]. After referring to the Coco and the Brown decisions, the Tribunal observed that the Attorney General, in the Second Reading Speech relating to the amending legislation inserting s. 20C (from which the Tribunal had quoted at [17]), made it ‘perfectly clear that the balance between the right to be free from racial vilification and free speech principles has been carefully struck in the legislative provisions’. The Tribunal continued:-

IW v The City of Perth

80 We agree with Mr Reynolds that earlier Tribunal decisions interpreting ss. 20C or 49ZT have not regularly referred to these basic issues of interpretation. But as we have just illustrated, they have not gone unnoticed.

81 In this connection, we refer also to a recent decision in the Court of Appeal of Victoria, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284. This decision, which was delivered on 14 December 2006, dealt with ss. 8 and 11 of the Racial and Religious Tolerance Act 2001 (Vic) (‘the RRT Act’). These provisions, so far as relevant, are as follows:-

11 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-

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

82 At [173 – 174], Neave JA said:-

174 There are two main ways in which this balance is struck. First, as Nettle, J.A. points out at [34], s.8 is concerned with the incitement of extreme responses. The words or conduct alleged to be unlawful must incite "hatred or severe contempt or revulsion or serious ridicule." Secondly, s.11 exempts behaviour which would otherwise be unlawful, if it is engaged in reasonably and in good faith for a genuine religious purpose.

83 We treat these observations as relevant to the interpretation of s. 49ZT of the Act. Further aspects of this case are considered below.

84 Whether an intention to incite must be proved. Relying in particular on two Appeal Panel decisions relating to s. 20C of the Act – John Fairfax Publications Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10], Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [24] – Mr Rofe submitted that it was not necessary under s. 49ZT(1) to prove that the respondent intended to incite hatred, serious contempt or severe ridicule.

85 Mr Reynolds argued that this view of the Appeal Panel, which had not in fact been adopted in some earlier decisions of the Equal Opportunity Tribunal (see eg Hellenic Council of NSW v Apoleski (No 1) [1995] NSWEOT (25/9/97) at 17) was incorrect, principally for two reasons.

86 First, it contravened the general principle, already outlined, that where there are two or more possible interpretations of a provision that restricts freedom of expression, a court or tribunal should adopt the interpretation that is least restrictive of this freedom. In this instance, ambiguity arose because the statute was silent on the matter of intention.

87 Secondly, it contravened the well-established principle, illustrated in the Victorian case of Craig Williamson Pty Ltd v Barrowcliff [1915] VR 450 at 452, that where the same provision appears in two parts of a statute, there is a presumption that they should be interpreted in the same way. In the Act with which this case is concerned, s. 49ZT(1) and s. 20C(1) are accompanied by provisions (s. 49ZTA and s. 20D respectively) rendering ‘serious vilification’ a criminal offence in certain narrowly defined situations. These accompanying provisions use the same term – ‘incite’ – as their counterparts which establish civil liability only. They also do not state expressly that intention must be proved. Yet since they create criminal offences, it is beyond doubt, by virtue of leading authorities such as He Kaw Te v R (1985) 157 CLR 523, that proof of intention is required. It follows, Mr Reynolds argued, that the same requirement applies under s. 49ZT(1) and s. 20C(1).

88 These arguments do not persuade us that we should depart from the view that the Appeal Panel has consistently adopted. As was said by Barrett J in the Supreme Court in NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559 at [47], there are ‘cogent reasons why members of the Tribunal should in general follow decisions of the Appeal Panel even though no principle of stare decisis requires them to do so’.

89 Furthermore, we think that while the two arguments advanced by Mr Reynolds undoubtedly deserve careful consideration, they are outweighed by the competing contentions set out in detailed discussions of this issue in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [83 – 92] and in John Fairfax Publications Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [6 – 11]. (The former decision was reversed by an Appeal Panel in Jones & Anor v Western Aboriginal Legal Service [2000] NSWADTAP 28, but not on grounds relating to any matter dealt with in the present judgment.) Two matters mentioned in those discussions are in our opinion particularly compelling.

90 The first is that in the Second Reading Speech that we have already mentioned, the Attorney General made the following observation which is directly in point:-

The requirement for intention in the offence of serious racial vilification sets it apart from section 20C and further ensures that prosecution and conviction will be limited to only very serious cases of racial vilification.

91 Secondly, the High Court, in discussing provisions of anti-discrimination legislation in other States that also, like s. 20C and s. 49ZT, impose civil liability on discriminators, has expressed the opinion that the attainment of the objects of such legislation would be significantly impeded if a complainant was required to prove intention or motive on their part. At [90 – 91], the Tribunal quoted passages to this effect from the judgment of Mason CJ and Gaudron J in Waters v Public Transport Corporation (1993) 173 CLR 349 at 359 and from the judgment of Kirby J (dissenting, though not on this issue) in IW v The City of Perth (1999) 91 ALJR 943 at 995.

92 For these reasons, we do not think that proof of liability under s. 49ZT of the Act requires proof of an intention to incite.

93 Whether ‘actual’ incitement must be proved. Both in written submissions and orally it was argued on Mr Laws’ behalf that a complainant must prove under s. 49ZT(1) that the relevant ‘public act’ had the effect of actually inciting, in the sense of generating in at least one other person, one or more of what we will call ‘the relevant reactions’: i.e., hatred, serious contempt and/or severe ridicule. In so far as the Tribunal, in a number of decisions, had held instead that what must be established is that the public act had a ‘capacity’ or ‘tendency’ to incite one or more of these reactions within ‘the ordinary reasonable person’, the argument put to us was that it had interpreted the subsection incorrectly.

94 Mr Reynolds sought to support this argument by pointing out that there was an ambiguity in s. 49ZT(1) as to whether actual incitement, or simply a tendency or capacity to incite, must be proved. In this event, he said, the Tribunal was bound to prefer the former alternative since it gave greater leeway for freedom of expression.

95 Mr Reynolds also argued that the terms ‘capacity’ and ‘capable’, as used for instance in Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 at [93] and Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [13], [31] and [33], were clearly incorrect. By rephrasing the question to be decided as whether the relevant ‘public act’ was merely ‘capable’ of inciting one or more of the relevant reactions, as opposed to whether it actually incited such a reaction, the Tribunal, he said, was effectively rewriting the section.

96 Mr Rofe’s response to these contentions was principally to rely on relevant rulings in Tribunal decisions, notably the Appeal Panel decision in Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [25]. It is convenient to add here that these rulings were recently reaffirmed by the Appeal Panel in Sunol v Collier [2006] NSWADTAP 51 at [8 – 13].

97 Subject to two qualifications, outlined below, we are again not disposed to depart from the principles that have been stated and applied by the Tribunal both at first instance and on appeal.

98 In addition to the reasons given in support of these principles by the Tribunal, we would add three observations.

99 The first is that in a recent case that we have already mentioned, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284, Nettle JA made the following observations at [14] regarding the term ‘incite’ in s. 8 of the RRT Act (footnote omitted):-

14 … I accept that "incites" in s.8 means "urge[s], spur[s] on...stir[s] up animates[s] or stimulate[s]". That accords with the plain and ordinary meaning of the word and also with the criminal law’s conception of incitement, upon which s.8 appears loosely to be based. I also allow that incitive conduct is capable of contravening s.8 without necessarily causing hatred or serious contempt or revulsion or serious ridicule. As with the common law criminal offence of incitement, I view s.8 as directed to inchoate or preliminary conduct, whether or not it causes the kind of third party response it is calculated to encourage. In that sense, the section is prophylactic….

100 At [154], Neave JA expressed her agreement with Nettle JA, adding that in her opinion s. 8 of the RRT Act ‘covers conduct which is capable of causing hatred of or other relevant emotion towards a person or class of person on the ground of their religious belief, even if it does not actually succeed in provoking that emotion’.

101 With regard to Nettle JA’s reference to the criminal offence of incitement, we note that in Dimozantos v The Queen (No 2) (1993) 178 CLR 122 at 131 the High Court observed that ‘a person can be convicted of the offence of incitement to murder notwithstanding that there has been no murder’.

102 Secondly, in resolving this issue, it is important to bear in mind the normal meaning of the term ‘incite’. As pointed out on a number of occasions by the Tribunal (see for instance Burns v Dye [2002] NSWADT 32 at [19]), the ordinary natural meaning of ‘incite’ is to ‘urge, spur on,… stir up, animate; stimulate to do something’ (New Shorter Oxford English Dictionary, 1993) or to ‘urge on; stimulate or prompt to action’ (Macquarie English Dictionary, third edition, 1997). In our opinion, if A ‘urges’, ‘spurs on’, ‘stimulates’ or ‘prompts’ B to do X, the use of any one of these terms to describe A’s conduct is not dependent on B deciding that she will do X as result of that conduct. One can ‘urge’ unsuccessfully just as one can do so successfully. Without wanting to appear to trivialise the matter, it is the task of opposing barristers, such as Mr Rofe and Mr Reynolds in this case, to ‘urge’ courts and tribunals to reach decisions favourable to their clients even though in the nature of things they will succeed only some of the time.

103 To put this point shortly, to require that ‘actual incitement’ must be proved under s. 49ZT(1) is tantamount to requiring not only that there was ‘incitement’, in the sense of urging, spurring or prompting those who saw and/or heard the relevant ‘public act’, but that the incitement achieved the desired result. It must have persuaded or induced one or more of those people to experience one or more of the relevant reactions This appears to us to involve a departure from the text of the subsection.

104 Thirdly, we see at least one major dilemma that would arise if s. 49ZT(1) was held to require proof of ‘actual’ – or, as we would describe it, ‘successful’ – incitement. If the view adopted was that evidence of successful incitement of a single person was sufficient, that might well – contrary to Mr Reynolds’s general arguments regarding freedom of expression – make it unduly easy for a complainant to succeed on this issue. Testimony from just one witness – in the present case, it could be the person called Warren who spoke on air to Mr Laws on 3 November 2004 (see paras 47-77 of the transcript at [19] above) – that in consequence of hearing and/or seeing the relevant ‘public act’ he or she experienced one or more of the relevant reactions vis-à-vis homosexual people would be sufficient.

105 If it were claimed in response to this suggestion that the witness in question would also have to be shown to be previously free from such reactions and/or not unduly susceptible to be persuaded to harbour them, the apparently necessary probing of the witness’s past sentiments towards homosexual people and, indeed, his or her general psychological make-up could become interminable and the determination on these matters would be highly artificial and speculative. If the response was that more than one witness claiming to have been ‘actually incited’ would have to be called, the question then arising is: how many? Would five be sufficient, for instance, or need it be fifty?

106 Concerns such as these have brought about the development of principles in defamation law (which shares a number of features with vilification law) whereby the court makes findings as to the objective effect of the allegedly defamatory material upon the hypothetical ‘ordinary reasonable person’. This exercise has of course its artificial aspects, but a less artificial approach is difficult to envisage.

107 These issues were discussed at some length in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (see Nettle JA at [14 – 19], Neave JA at [155 – 159, 181 – 183]). But in the present judgment, we do not need to examine what their Honours said.

108 In defamation law, evidence from people who were exposed to the allegedly defamatory material regarding its effect on their opinion of the plaintiff is generally treated as irrelevant and therefore inadmissible in determining whether the material was in fact defamatory. In the Tribunal decisions interpreting ss. 49ZT(1) and 20C(1), the opposite view has been taken in ruling on ‘incitement’: see eg Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [25].

109 While generally bound, as already stated, to follow Appeal Panel decisions, we would observe in this instance that we have doubts about this particular view. Testimony from one witness that he/she experienced one or more of the relevant reactions in response to the relevant ‘public act’ is all too easily countered by diametrically opposing testimony from another witness. If such evidence is to be admitted, it should, in our opinion, be given little weight. This constitutes the first of the two qualifications to the Tribunal’s prior rulings that we foreshadowed above (at [97]).

110 The second qualification relates to the Tribunal’s use of the terms ‘capacity’ and ‘capable’. We agree with Mr Reynolds that these terms have the potential to understate what must be proved. In defamation law, they bear upon what is in essence a threshold question only. An allegedly defamatory imputation is judicially determined to be ‘capable of defaming’ the person to whom it refers if there are sufficient grounds to warrant referring to a jury the quite distinct question of whether it actually did defame this person.

111 In our opinion, the issue to be resolved under s. 49ZT(1) is better framed as follows: would the relevant ‘public act’ have had the ‘effect’ of inciting, in the sense of urging or prompting, a hypothetical ‘ordinary reasonable person’ to experience one or more of the relevant reactions towards one or more homosexual people (as identified by the complainant), on the ground of their homosexuality? If terms such as ‘capacity’ or ‘tendency’ (this word appears in Neave JA’s judgment in Catch the Fire Ministries at [161]) are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or possible effect.

112 This point is important if, as previous authorities have made clear, the term ‘incite’ is to be interpreted as meaning merely ‘urge’, not ‘successfully urge’ or ‘induce’. A test that required no more than proof that the relevant public act had the potential or possible effect of urging an ordinary reasonable person to experience one or more of the relevant reactions would in our view be unduly broad.

113 Before leaving the issue of what constitutes ‘incitement’ under s. 49ZT(1), it is also worth pointing out that inciting hatred, serious contempt or severe ridicule vis-à-vis homosexual people is quite distinct from actually conveying or expressing hatred, serious contempt or severe ridicule. This well recognised distinction was made in the submissions on behalf of Mr Laws and was not contested by Mr Rofe.

114 The meaning of ‘ridicule’. The discussion in this section leaves to one side the significance of the requirement in s. 49ZT(1) that such ridicule as is claimed to be incited must be ‘severe’. It focuses on the word ‘ridicule’ in isolation.

115 In oral submissions, Mr Reynolds argued that the phrase ‘ridicule of ’, as it appears in s. 49ZT(1), is to be distinguished from ‘hatred towards’ and ‘contempt for’ in that it implies the incitement of not merely an emotional response but also of some form of conduct on the part of the person being incited. The course of action being ‘incited’ must, he submitted, be that of ‘mocking’ or ‘deriding’ one or more homosexual persons, on the ground of their homosexuality. In that sense, he argued that ‘ridicule’ should be treated as an active measure directed at the person(s) targeted.

116 This way of conceiving ‘ridicule’ was not addressed in Mr Rofe’s submissions. He relied on Tribunal decisions – for example, Burns v Dye [2002] NSWADT 32 at [23]; Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [29] – that referred to synonyms for ‘ridicule’ as a noun or as a verb. These synonyms include ‘mockery’, ‘derision’, ‘make fun of’ and ‘laugh at’.

117 We agree with Mr Reynolds that these particular synonyms imply activity – not merely an emotional reaction – on the part of the person who ‘mocks’, ‘derides’, ‘makes fun of’ or ‘laughs at’ the person being ridiculed. But we did not understand Mr Reynolds to have argued that the conduct being incited or urged must be to take immediate steps, to the exclusion of all other activities, to locate a homosexual person and subject him or her to ridicule. If he did, we are inclined to disagree. If his submission was just that the reactions incited in ordinary reasonable people must be those of (a) treating a homosexual person as an object of derision (both in their own minds and, conceivably, in conversations with heterosexual people) and (b) intending, if the opportunity occurs, to engage in mockery of a homosexual person, we have no difficulty with it.

118 The significance of the word ‘severe’. In relation to this issue, Mr Rofe relied on the following passage in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [36 – 42]:-

37 Nevertheless, in the debate, members of Parliament were concerned to illustrate the type of conduct not caught by the term “severe ridicule”, saying “[it] does not mean a comment cannot be made in the newspaper about homosexuals, that there cannot be a cartoon in the newspaper about homosexuals, that there cannot be a comedy skit about homosexuals, or that one cannot put on a shirt an emblem referring to gay or lesbian homosexuals. The bill provides that by any of those processes one cannot incite someone else to vilify, physically abuse or ridicule those people on the basis of their homosexuality” (p1829). An example was given of a short person, standing to speak, then being called on to ‘stand up’: “[t]hat is ridicule but it is mild. Plenty of people receive that sort of ridicule” (p1832).

38 It was pointed out, the homosexual vilification provision that was being debated “is absolutely identical to that in the racial vilification legislation” (p2047). In the second reading debate of the racial vilification provision the then Attorney General said “[i]t is not the intention of the Government to cover matters of a trivial nature”, and he dismissed suggestions that the vilification laws would “stop the telling of Irish or Hungarian jokes” (Hansard, Legislative Assembly, 10 May 1989, p7489-90).

39 It is clear from the debates in relation to both the racial vilification and homosexual vilification provisions that the Parliament was concerned to “achieve a balance between the right to free speech and the right to an existence free from . . . vilification and its attendant harms” (Hansard, Legislative Assembly, 10 May 1989, p7489-90; and see McNamara L, Regulating Racism Sydney Institute of Criminology, 2002, at 127-130). We must have that consideration in mind when deciding where the line is to be drawn for purposes of characterising conduct as vilification.

40 We consider the ordinary meaning of the term “severe ridicule” having regard to the guidance given by the parliamentary debates, by common dictionary definitions (se eg Burns v Dye; John Fairfax Publications Limited v Kazak), and by our own understanding of the ordinary meaning of the words. A distinction can be drawn between ‘mild ridicule, mere mockery or derision’, and ‘harsh or extreme mockery derision’ (see eg Burns v Dye at [23]). The Appeal Panel in Veloskey & Anor v Karagiannis & Ors at [29] said that ‘severe ridicule’ equates with “extreme derision”. But while these views refine the meaning of ‘severe ridicule’ by describing different degrees of severity, they do not greatly assist in being able to say when conduct has crossed the ‘severe ridicule’ line.

41 Qualifiers such as ‘mild’ and ‘harsh’ are relative measures of degree, and cannot be understood in the abstract any more than the wrong that parliament means to address through this legislation exists in the abstract. The parliamentary debates make clear that that wrong is the causing of, at worst, physical harm, and, at least, offence and distress, to people on the ground of a characteristic, in this case homosexuality. To identify ridicule that is ‘mild’ on the one hand and ‘harsh’ on the other could involve a judgment as to the possible impact of the ridicule on the type of person to whom it is directed. An indicator that conduct is “severe ridicule” could therefore be an assessment that it could reasonably cause distress or offence to a person with that characteristic. But conduct can be severe ridicule without that assessment being made.

42 We understand ‘severe ridicule’ to be ‘harsh or extreme mockery or derision’. As a tribunal of fact, we make an evaluative judgment within a broad discretion as to whether the conduct amounts to “severe ridicule” (see Veloskey & Anor v Karagiannis & Ors at [29]).

119 Mr Reynolds did not contest this account of the matter. He emphasised the considerable significance of ‘severe’ as a qualifier, arguing that it clearly excluded mere jokes directed at homosexuals from the notion of vilification. He did not rule out the possibility, however, that what a respondent might seek to pass off as no more than humour at the expense of homosexuals might, in an extreme case, constitute incitement to severe ridicule of them.

120 We recognise, as the Tribunal did in Burns v Radio 2UE Sydney, that there is no sharp dividing line between ‘ridicule’ and ‘severe ridicule’. In any case where the issue arises, a value judgment must be made.

121 The capacity of a respondent to exert influence. Mr Rofe submitted that where the respondent in proceedings such as these enjoys a position of influence in the community, this is a relevant factor in determining whether statements made by him or her would have the effect of inciting one of the relevant reactions. Mr Reynolds did not appear to dispute this proposition. It is supported by authority: see for example Burns v Dye [2002] NSWADT 32 at [65].

122 In so far as this factor provides grounds for thinking that the respondent’s statements would be likely to be taken seriously by his audience and would therefore be interpreted as genuinely seeking to induce the reactions suggested by their content, we agree that it is relevant. But consistently with the principle that what must be proved to establish ‘incitement’ is that an ordinary reasonable person is ‘urged’ or ‘prompted’ to experience one of the relevant reactions – not that he or she is actually induced to do so – we do not believe that this factor should be treated as relevant in any other way in vilification proceedings under the Act. If a respondent in such proceedings is not a person of influence, and indeed wholly lacks credibility, it does not follow that his or her statements will not be held to have ‘urged’ or ‘prompted’ reactions falling within the scope of s. 49ZT(1) or s. 20C(1). This is illustrated in a number of Tribunal decisions: see for example Burns v Dye and Sunol v Collier [2006] NSWADTAP 51.

123 As indicated below, we do consider however that the influence exerted by a respondent in vilification proceedings under the Act may be relevant in another context, namely, if the issue of ‘reasonableness’ falls to be determined under s. 49ZT(2) or s. 20C(2).

124 The phrase ‘on the ground of the homosexuality of’. In the written submissions filed on Mr Laws’ behalf, it was argued that this phrase in s. 49ZT(1) required proof of two matters: (a) that the respondent intended to incite one or more of the relevant reactions on the ground of the homosexuality of the relevant person or persons; and (b) that the ‘public act’ objectively conveyed the ‘message’ that the homosexuality of the relevant person or persons was the true basis for the reaction(s) being incited.

125 In view of our ruling that an intention to incite need not be proved, we consider that the first of these matters need not be proved. In our opinion, it is sufficient only to establish the second matter, with the additional element that it is the reaction of the ‘ordinary reasonable person’ that must be assessed.

126 It was also argued in these submissions that where one or more of the relevant reactions is incited towards a person or group of persons on a number of grounds, including the ground of homosexuality, it must be shown that the ground of homosexuality is a ‘substantially contributing factor’ to the incitement. The judgment in Collier v Sunol [2005] NSWADT 261 at [64] was cited in support. We agree with this proposition, which is in fact to be found in the Appeal Panel’s judgment in Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [30].

127 The onus of proof. It was not disputed that Mr Burns bore the onus of proving the matters required to be shown under s. 49ZT(1). Mr Reynolds submitted, citing Briginshaw v Briginshaw (1938) 60 CLR 336, that since a finding of unlawful vilification was a serious matter, we should not make such a finding unless we were ‘comfortably satisfied’ of the relevant factual matters. We agree with this submission. But we would add, contrary to a further submission that he made, that on our understanding of the Briginshaw principle it applies to primary facts rather than to assessment or value-judgments that must be made on the basis of such facts. This view receives support in the judgment of French J (on which Mr Reynolds relied in other ways) in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [77].

General aspects of the interpretation of s. 49ZT(2)

128 In this and the ensuing two sections, we review at some length various issues of interpretation arising under subsection (2) of s. 49ZT. Many of them arise because the subsection is far from easy to interpret.

129 Onus of proof. This was a contested issue. Mr Rofe argued that by virtue of s 104 of the Act (this is reproduced at [18] above), a respondent who sought to rely on any of the grounds of exoneration from liability set out in this subsection bore the onus of proving any relevant factual matters.

238 Underlying this finding is a proposition regarding the sharp distinction that Mr Reynolds sought to draw between incitement of severe ridicule of a single homosexual man, such as Mr Kressley, and incitement of severe ridicule of homosexual men generally. In our judgment, this distinction is less sharp than might initially appear when account is taken of the fact that if the relevant material is to constitute vilification the incitement must in either case be ‘on the ground of’ homosexuality.

239 The point that we are making can be briefly expressed as follows. To the extent that in a case such as the present, severe ridicule of an individual homosexual man is incited on the ground of his homosexuality, the viewer, reader or listener is encouraged to believe, unless otherwise persuaded, that other homosexual men are equally deserving of severe ridicule on the ground of their homosexuality. Even if, as in the present case, this process of generalisation is only made explicit on a couple of occasions, the implicit invitation is always present.

240 This is not to say that the distinction drawn by Mr Reynolds is illusory. It is expressly drawn in s. 49ZT(1). But its significance appears us to operate principally at the level of remedy. If Mr Kressley had successfully instituted vilification proceedings, he could have argued that any damages awarded to him should significantly exceed the damages (if any) that would be awarded to another complainant suing on the basis that there had been vilification of homosexual men generally.

241 We were urged to take account of the evidence regarding Mr Laws’ high status and reputation as a broadcaster. In so far as this provides grounds for thinking that his statements would be likely to be taken seriously by his audience and would therefore be interpreted as genuinely seeking to induce the reactions suggested by their content, we agree that it is a relevant consideration.

242 As stated earlier, a determination as to whether ‘mere’ ridicule or ‘severe’ ridicule is incited by a ‘public act’ necessarily calls for a value judgment. Our judgment, taking all the foregoing considerations into account, is that the material complained of, when broadcast by Mr Laws in the manner and the circumstances outlined above, had the effect of inciting (in the sense of urging or prompting) a hypothetical ‘ordinary reasonable person’ in the position of a casual listener to the broadcast to treat homosexual men as objects of ‘severe ridicule’ (in the sense of extreme derision or mockery). The relevant segments of the broadcast accordingly fell within s. 49ZT(1) of the Act.

Did Mr Laws’ broadcast fall within the terms of s. 49ZT(2)(c)?

243 Since we have concluded that the relevant statements within Mr Laws’ broadcast on Radio 2UE constituted homosexual vilification, we must now determine whether they fell within the exception to liability set out in s. 49ZT(2)(c).

244 As stated earlier, we accept as appropriate the methodology explained by Nettle JA in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 at [89 – 92]. The first step in the process of determination is accordingly to identify the purpose or purposes for which Mr Laws made the statements. We must then decide whether any one or more of the identified purposes were ‘purposes in the public interest’ and, if so, whether the requirements of ‘reasonableness’ and ‘good faith’ were satisfied.

245 What purpose or purposes did Mr Laws have? In his affidavit, as outlined above at [51 – 53], Mr Laws described his purposes as follows. He aimed to entertain his audience by discussing, ‘in a humorous and not overly serious way’, various matters relating to the segment on Mr Kressley in the previous evening’s program, ‘A Current Affair’. These matters would, in his opinion, be of interest to his audience.

246 In summary form, they comprised (a) the depiction on television of Mr Kressley’s behaviour, notably in so far as it was ‘overtly sexual and in particular homosexual’, it seemed to be designed to draw attention to his homosexuality and it included both a series of comments about the sexual attractiveness of some of the men whom he met and a pretended undressing of a commentator appearing on the program; (b) the appropriateness of having ‘overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m.’; (c) the appropriateness of having ‘an American as a central figure on an iconic Australian day such as Melbourne Cup day’; (d) the appropriateness of ‘a gay man from the United States’ publicly ‘criticising the dress sense of Australian men’ and ‘judging the fashion sense of Australian women’; and (e) what Mr Laws regarded (and still regards) as ‘the overly politically correct regulation of discussion of homosexuality in the media’ (this being a matter that he wanted to ‘send up’).

247 In cross-examination, Mr Laws effectively conceded (see [67] above) that in the broadcast he did not in fact raise the second of these matters: namely, the ‘appropriateness’ of having ‘overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m.’. Accordingly, this alleged purpose must be left out of account in our consideration of whether s. 49ZT(2)(c) applies.

248 The claim by Mr Laws to have made the relevant statements for the purpose of entertaining his audience through discussing the remaining matters set out in his affidavit was not challenged in cross-examination. Having regard both to the content of these statements and what was depicted in the segment on ‘A Current Affair’, we do not regard any of these purposes as inherently implausible. We therefore accept the submission made on his behalf that they were indeed his purposes.

249 Should these purposes be held to be ‘purposes in the public interest’? In arguing that these purposes were indisputably within the broad range of ‘purposes in the public interest’, Mr Reynolds emphasised in particular the following factors: (a) that the comments by Mr Laws related to the contents of a program that had been shown to the public at large on television; (b) that they related also to what both Mr Reynolds and Mr Laws described as an ‘iconic’ Australian sporting event; and (c) that they involved both ‘discussion’ and ‘exposition’. He maintained that the matters discussed by Mr Laws undoubtedly would be characterised in the law of defamation as ‘matters of public interest’, within the context of the defence of fair comment. In this context, he cited Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43, in which the conduct of greyhound racing was held to be a matter of public interest. It followed, he said, that Mr Laws’ purpose in engaging in this discussion must inevitably be held, having regard to the Tribunal’s observations in Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 and John Fairfax Publications v Kazak [2002] NSWADTAP 35, to have constituted a purpose ‘in the public interest’.

250 We realise that many people might consider the issues discussed by Mr Laws to be trivial. They were certainly not issues of major importance for the material welfare of the community or for its welfare in any other well-recognised sense. But we agree with Mr Reynolds that the phrase ‘matters of public interest’ in defamation law extends to many issues that are likewise not of major importance. We agree also that the contents of public television programs and the conduct of a major sporting event such as the Melbourne Cup would qualify as ‘matters of public interest’. The two Tribunal cases on which Mr Reynolds relied indicate, in different ways, that the range of purposes covered in s. 49ZT(2)(c) of the Act includes, and indeed is not limited to, ‘discussion’, ‘debate’ or ‘exposition’ relating to ‘matters of public interest’. We would add that the judgments of French and Carr JJ in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 indicate that an opinion may be held to have been published for a purpose ‘in the public interest’ even though it is expressed in humorous or satirical terms.

251 The outcome of these considerations is, in our judgment, that the purposes for which Mr Laws made the statements on Radio 2UE with which these proceedings are concerned were ‘purposes in the public interest’, within the meaning of s. 49ZT(2)(c) of the Act.

252 Were the statements by Mr Laws broadcast ‘in good faith’? In cross-examination, it was put to Mr Laws that his attitude to homosexuals, as demonstrated in the broadcast at issue in this case and in the earlier broadcast that prompted the proceedings in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, was one of hostility. We were invited to make a finding to this effect.

253 In support of this claim, Mr Rofe submitted that when towards the end of the broadcast (see paras 71, 73 and 80 of the transcript at [19] above) Mr Laws said that he was ‘very happy for people to be homosexual’, that he had friends who were homosexuals and that he ‘had nothing, absolutely nothing, homosexuals’, he was in ‘damage control mode’. Mr Rofe maintained that these assertions of a tolerant attitude towards homosexuals were insincere and should not be taken into account in Mr Laws’ favour.

254 Mr Rofe also contended that in so far as conduct by Mr Laws after the broadcast might appear to be conflict with the indications that he was hostile towards homosexuals, it should be disregarded. Such conduct was, in Mr Rofe’s submission, no more than an ex post facto attempt to excuse his contravention of the Act.

255 The evidence tendered by Mr Burns included a copy of a letter dated 24 June 2003 in which Mr Ian Sheppard, the General Manager of Radio 2UE, stated that he considered it inappropriate for Mr Laws to use the word ‘poof’ on air and that he had ‘raised this matter with him personally’ (see [27] above). It may be argued (though the point was not made by Mr Rofe) that this prior conversation between Mr Sheppard and Mr Laws provides grounds for inferring that when during his broadcast Mr Laws observed that ‘you can't say’ the word ‘poof’ because ‘that's a derogatory word’ (see para 2 of the transcript at [19] above), he was displaying a degree of resentment towards homosexuals.

256 On Mr Laws’ behalf, the responses to these contentions included the following. First, during cross-examination Mr Laws denied the allegation of hostility towards homosexuals. Secondly, his statements towards the end of the broadcast were quite sincere, and formed part of an attempt to make it clear to his audience that his criticisms were of ‘overtly gay’ behaviour only, not of homosexuals generally. Thirdly, the apologies conveyed by him to the homosexual community, notably in the course of meetings with representatives of that community and in publishing a statement in an appropriate newspaper about a fortnight after the broadcast (see [59 – 61] above), further illustrated that he maintained sentiments of good will towards homosexuals. (As noted above at [195], the Appeal Panel held in John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [35] that in determining ‘good faith’, account may be taken of relevant conduct of the respondent following publication of the vilifying material.) Fourthly, his comments about the use of the word ‘poof’ on air were attributable to his avowed aim, in making the broadcast, to ‘send up’ what he regarded as ‘the overly politically correct regulation of discussion of homosexuality in the media’. Fifthly, with one exception, already noted (see [247] above), nothing was put to Mr Laws in cross-examination to suggest that the various purposes for which he claimed to have made the broadcast were not his genuine purposes.

257 In our opinion, the third and the fifth of these arguments are compelling. As to the third argument, we would observe that the point made by Mr Rofe is clearly relevant, but that in all the circumstances we think that the steps taken by Mr Laws to apologise to the homosexual community should in this particular context be taken into account in his favour, as evidence supporting his claim that his general attitude to homosexual people is not one of hostility.

258 Even though we have found that the effect of some of the statements in the broadcast was to incite severe ridicule of homosexual men on the ground of their homosexuality, we are satisfied that the broadcast, as a whole, was not motivated by hostility towards homosexuals and that Mr Laws’ claim to have made it for purposes that we have found to be ‘in the public interest’ must be accepted.

259 For these reasons, Mr Laws has sufficiently established ‘good faith’ under s. 49ZT(2), in accordance with the test that we stated above (at [192]). In including the vilifying statements within his broadcast, he acted in ‘the subjectively honest belief’ that they were ‘necessary or desirable’ to achieve the purposes that he had in mind in making the broadcast. He did not act ‘dishonestly’ or ‘in the knowing pursuit of an improper purpose’.

260 (Majority opinion of Deputy President Chesterman and Member Quayle) Were the statements by Mr Laws broadcast ‘reasonably’? We have found this to be the most difficult question to have arisen in this case.

261 To a substantial degree, the difficulty arises from the language of s. 49ZT of the Act. For reasons that have already been explained, it must be treated as envisaging what appears at first sight to be an outright contradiction. This is that a ‘public act’ – such as in this case a radio broadcast – which has the effect of inciting severe ridicule of homosexual men on the ground of their homosexuality may also be found to have been carried out ‘reasonably’ for one or more ‘purposes in the public interest’. What follows from this is that a court or tribunal applying the section may be required – as we are now required – to distinguish (adapting the words of Gleeson CJ in Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005)) between incitement to severe ridicule that is ‘reasonable’ and incitement to severe ridicule that is ‘unreasonable’.

262 The apparent difficulty of this exercise is mitigated by the interpretation of ‘reasonably’ that we have found to be appropriate. As formulated above at [209], the requirement of reasonableness is satisfied if the relevant ‘public act’ (a) bears ‘a rational relationship’ to one or more of the purposes for which it was carried out and (b) is ‘not disproportionate to what is necessary’ to carry out such purposes. The phrase ‘not disproportionate to’ is be interpreted in accordance with one of the dictionary definitions of ‘reasonable’: namely, ‘not going beyond the limit assigned by reason’. In resolving the latter question, the matters to be considered include, but are not limited to, the following: (i) the degree to which the vilifying material within the ‘public act’ 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..

263 The submissions made on Mr Burns’s behalf did not address in any detail the question whether the requirement of ‘reasonableness’ was satisfied.

264 Mr Reynolds argued that this requirement was clearly satisfied. Basing himself on the approach to the phrase ‘reasonably and in good faith’ adopted by French J in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, he argued first that if we found Mr Laws to have acted in good faith, it followed more or less automatically that he must have acted reasonably.

265 For reasons that we explained above at [193], however, we would draw a sharper distinction between ‘good faith’ and ‘reasonableness’ than French J did. As we see it, these two concepts depend respectively on subjective and objective factors. We therefore do not accept this submission by Mr Reynolds.

266 He argued also that since Mr Laws was not cross-examined on ‘reasonableness’ it was not open to us to make an adverse finding on this issue. We do not agree. Since ‘reasonableness’ is to be resolved objectively, we do not see why we are precluded from making a finding contrary to Mr Laws simply because his evidence and opinion relating to the issue was not challenged. But we do take account of observations, mentioned above, in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [151]. The Tribunal suggested that ‘the ultimate effect of the reasonableness requirement’ was, it seemed, ‘to call upon’ a person who had engaged in vilification to ‘explain his or her behaviour’ and that when this was done the requirement would ‘no doubt… be interpreted quite broadly’.

267 An element of Mr Reynolds’ argument on ‘good faith’ was his demonstration, referring to passages in the relevant transcripts, that there were clear links between substantial portions of Mr Laws’ broadcast and both (a) the events depicted on the relevant segment of ‘A Current Affair’ and (b) the purposes for which Mr Laws made the broadcast. There was, he pointed out, little in the broadcast that did not have these links to the earlier television program and/or to one or more of the purposes envisaged by Mr Laws.

268 This submission is in our opinion more properly directed to the question of reasonableness. As a description of the evidence in this case it is broadly accurate. In our judgment, it sufficiently establishes the first of the two components of the test of ‘reasonableness’ that we have formulated: that is, that the statements made by Mr Laws during his broadcast did bear a ‘rational relationship’ to the purposes for which he made the broadcast.

269 It is the second component that to our minds presents the greatest difficulty. Can it be said that Mr Laws’ statements were ‘not disproportionate to’ what was ‘necessary’ to carry out his purposes?

270 If this question is to be answered in Mr Laws’ favour, it must, as we see it, be principally on account of three aspects of his broadcast which we have mentioned previously but have not emphasised.

271 The first is that one of the features of Mr Kressley’s conduct as depicted on ‘A Current Affair’ – being a feature to which Mr Laws expressly referred in his elaboration of the purposes underlying his broadcast – was its ‘overtly gay’ nature. It would not be overstating matters to say that Mr Kressley engaged consistently in mannerisms that are stereotypically associated with homosexual men and, indeed, flaunted his homosexuality. He portrayed it as an integral part of his public image, as did the presenter who introduced him as ‘an American Queer Eye’.

272 Secondly, at the end of the broadcast Mr Laws did explain that his critical comments about Mr Kressley were not intended to reflect on homosexual men generally but only on those homosexual men whose behaviour was ‘overtly gay’. Although, as we have said above, this explanation was an insufficient ‘antidote’ to the vilificatory nature of his earlier comments, it should in our opinion be taken into account in characterising the overall subject matter of his broadcast and the links between this subject matter and the purposes of the broadcast.

273 Thirdly, one of the aims that Mr Laws pursued – as indeed did the program on ‘A Current Affair’ – was to entertain his audience through dealing with issues ‘in a humorous and not overly serious way’. Opinions may differ as to the extent to which he succeeded in being, or indeed appearing to be, humorous. It is sufficient for present purposes to note that this was his purpose.

274 In these circumstances, it can be argued that in presenting a half-serious critical commentary focusing on Mr Kressley’s mannerisms, on his self-proclaimed homosexuality and on the depiction of these matters on a television program, it was not ‘disproportionate’ for Mr Laws to refer to Mr Kressley’s homosexuality, to express opinions about his mannerisms as depicted on ‘A Current Affair’ and to employ colourful epithets which homosexual men sometimes use for each other. By contrast, if Mr Kressley, while using effeminate mannerisms, had not consistently drawn attention to his homosexuality, it would clearly have been ‘disproportionate’ for Mr Laws to draw attention to this matter to the extent and in the manner that he did.

275 In our opinion, these considerations warrant a finding that all of the vilifying material within the broadcast was related, indeed closely related, to one or more of the purposes underlying the broadcast. It also indicates that the epithets for homosexual men that Mr Laws used cannot be regarded as wholly ‘gratuitous’. These are factors suggesting that the vilifying material was not ‘disproportionate’, in the sense explained above

276 On the other hand, we are satisfied, as indeed Mr Laws appeared to be after taking account of the reaction that his broadcast prompted, that his statements were harmful, to a significant extent, to homosexual people. Among the reasons for this were the considerable size of his nationwide audience and his acknowledged status and influence as an eminent broadcaster. Although his statements were in one sense ephemeral, like anything said on radio, they had considerable resonance within Australia.

277 We should make it clear at this point, however, that in assessing ‘reasonableness’ we do not take into account the steps taken subsequently by Mr Laws by way of conveying an apology to homosexual people. It appears to us that the ‘reasonableness’ of a public act must be assessed as at the time when it was ‘done’. Although observations by the Appeal Panel in John Fairfax Publications v Kazak [2002] NSWADTAP 35 at [35] may appear at first sight to be in conflict with this view, we believe that they are in fact consistent with it.

278 The extent of the harm caused by Mr Laws’ statements, having regard particularly to the size of his audience and his status and influence as a broadcaster, must be weighed against the factors, identified earlier, that in our judgment point towards a finding that the ‘public act’ constituted by the broadcast was carried out ‘reasonably’. As was the case in arriving at our conclusion under s. 49ZT(1), our task in this context necessarily calls for a value judgment.

279 Our decision as to ‘reasonableness’, after careful consideration, is that Mr Laws has succeeded in establishing the necessary ingredients. He has provided an explanation for his behaviour in making the vilifying statements. They had a ‘rational relationship’ to the purposes for which he made the broadcast during which they occurred and in all the circumstances were not ‘disproportionate’ to what was ‘necessary’ to carry out those purposes.

280 In consequence of this ruling, the complaint by Mr Burns falls within the exception in s. 49ZT(2)(c) of the Act.

Concluding observations

281 In very broad terms the resulting decision may be characterised as follows.

282 We have decided first that the statements made by Mr Laws caused harm to homosexual men in a way that s. 49ZT(1) seeks to prevent. This conduct on his part does him no credit. As an experienced and reputable commentator, he should have been aware – and indeed he subsequently stated that he had become aware – that his statements were pernicious in this respect.

283 We have also decided, by majority, that the provisions of s. 49ZT(2), implementing as they do a broad policy of preserving freedom of expression within acceptable limits, establish a ground of defence for Mr Laws. On applying these provisions, we conclude that he is not to be held liable under the Act for a misguided and unfortunate commentary on issues that, within a wide range permitted by this subsection, are to be regarded as matters of public interest.

284 With regard to two crucial elements of s. 49ZT(2) – ‘reasonably’ and ‘purposes… in the public interest’ – we have found the subsection particularly difficult to interpret and apply. The only solution to these difficulties is, we think, legislative amendment.

285 Our decision, by majority, is that the complaint by Mr Burns must be dismissed.

286 The parties foreshadowed that after our decision was published they would wish to be heard on the question of costs, in relation to both the substantive hearing of the complaint and the preceding application by Mr Laws for it to be summarily dismissed. This question is to be determined under s. 110 of the Act, which provides for the parties to pay their own costs unless in the Tribunal’s opinion there are ‘circumstances that justify’ a costs order.

287 We direct as follows:-

(b) Within a further 28 days, the opposing party is to file and serve submissions in reply.

(c) The matter of costs is to be resolved ‘on the papers’, under s. 76 of the Administrative Decisions Tribunal Act 1997, unless either party applies, giving reasons, for a hearing to take place.

288 (Minority opinion of Member Mooney) Were the statements by Mr Laws broadcast ‘reasonably’? I agree with the decision of the Tribunal except as to the final issue of whether it could be said that the respondent, Mr Laws, acted reasonably.

289 As set out above at [262], this issue involves consideration of the questions of whether Mr Laws’ action bore a sufficient relationship to his purposes and whether his action could be characterised as ‘disproportionate’ to his purposes. I agree with the ruling at [279] that Mr Laws was able to show the necessary ‘rational relationship’ of the material to his purpose. However, I disagree that he has succeeded in establishing the necessary proportionality between his statements and the purposes that the Tribunal, at [248], accepts he had in making them.

290 The Tribunal states that the issue of proportionality involves consideration of a number of matters, including the degree to which the material relates to the relevant purposes, whether the material could be said to include gratuitous insults and the degree of harm inflicted on the relevant persons vilified by the material. The Tribunal has found, at [242] and [282] above, that the material did have the effect of vilifying homosexual men.

291 In considering the broadcast Mr Rofe submitted that the Tribunal ought to be careful not to limit itself to the words of the transcript but to have regard to the tone. Mr Reynolds also submitted it was important that the Tribunal not over examine individual words and phrases but bear in mind that a listener would be hearing the broadcast only once and as a whole.

292 In considering the issue of proportionality I have been particularly influenced by the tone of the broadcast. It is useful, in considering the first two matters set out at [286] above, to compare the tone used by Mr Kressley in the television program with the tone used by Mr Laws in his broadcast.

293 Mr Kressley’s tone as evidenced by the segment of ‘A Current Affair’ was light-hearted, frivolous and flirtatious. Although perhaps exaggeratedly fluffy, it was not wholly unsuited to the context of the ‘Fashions On The Field’ and the setting of a race day marquis where elaborately dressed guests were drinking champagne and eating canapés.

294 Mr Laws’ tone, in contrast, despite his tongue-in-cheek opening is, in the main, quite serious. In spite of the humour, the tone flavours the broadcast in such a way as to make his remarks sound unnecessarily vindictive. This tone, in combination with the language of smutty sexual innuendo, contributes to an overall effect that could be described as ‘gratuitously insulting’ to Mr Kressley and, for the reasons set out above at [239], to homosexual men generally.

295 The final matter to be considered in weighing up the question of proportionality is the possible degree of harm the material may cause.

296 Following the wording of Lee J, dissenting, in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (quoted above at [177]), such harm in this case would be the extent to which persons who held homophobic views, or persons susceptible to the formation of such opinions, may be reinforced, encouraged or emboldened in such attitudes by the broadcast of the material which, irrespective of the intent and purpose of Mr Laws, was capable of being seen by such persons as providing support or justification from an authoritative source for views grounded on antipathy to homosexuality.

297 The reaction of the third caller to Mr Laws’ comments was such that he could conceivably be characterised as a person falling within the above description, namely a person encouraged or emboldened in his attitudes by Mr Laws’ views, to the extent that his motivation in calling was primarily to identify himself as someone who had, on an occasion in the past, subjected a homosexual man to ridicule, involving, on his own account of the incident, a minor assault.

298 At paragraph [55] of this decision the Tribunal noted that Mr Laws, in discussing his audience, had in mind the impact his comments would have on, among others, ‘red-blooded Australian men’. In his broadcast he refers specifically to ‘hard drinking hard talking men’. It is noteworthy that the third caller, Warren, was keen to identify as a heavy drinker and that he also, in discussing the Queer Eye show referred to the need to get ‘some like, hard core’ people on the show ‘and see if they can’t really straighten them out’.

299 That Mr Laws knows his audience well is not to be doubted and that his audience would include persons, such as ‘red-blooded’, ‘hard drinking hard talking’ men who held, or would be susceptible to forming, homophobic opinions is also likely.

300 Whether or not Mr Laws’ views would be perceived as ‘authoritative’ is discussed earlier in this decision in terms of his influence and reputation. A further consideration in assessing possible harm is the range of dissemination of the material.

301 As discussed earlier, it was not in dispute that Mr Laws was influential and that his program was broadcast widely across Australia. The representatives for Mr Burns drew the Tribunal’s attention to a description of Mr Laws by Radio 2UE as ‘Australia’s most successful and influential broadcaster’ and as reaching over 2 million people. At [66] the Tribunal refers to Mr Laws’ concession that his status tended to ‘give weight’ to his views.

302 The evidence in the open letter described above at [26] was that seven organisations representing homosexual people were strongly critical of the comments made by Mr Laws for the reason that they believed it would lead to an increase in violence against gays and lesbians. This fear of the harm that would flow from the broadcast was based partly on research that the perpetrators of such violence were men who were, inter alia, ‘strongly influenced by what they hear from both their peers and in the media’. For the reasons set out above, it seems likely there was justification for that fear.

303 From his own testimony, when approached by the representatives of the gay and lesbian community, Mr Laws was genuinely surprised at their perception of the degree of harm that would flow from his comments and sincere in his regret for any consequences that he did not intend. His actions in restitution are outlined earlier in this decision.

304 In conclusion, for the reasons of its gratuitously insulting tone and the degree of harm that it may cause, I have decided that the vilifying comments made by the respondent in his broadcast were sufficiently disproportionate to his purposes in making it that, although he acted in good faith, he cannot be said to have acted reasonably. Accordingly, I find that he has failed to establish the defence contained in the homosexual vilification provisions of the Act.

CITATION:	Burns v Laws (No 2) [2007] NSWADT 47
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT John Laws INTERVENOR Attorney General of New South Wales
FILE NUMBER:	051044
HEARING DATES:	16/02/2007, 14-15/03/2006, 27/03/2006 & 10/10/2006
SUBMISSIONS CLOSED:	23 October 2006
DATE OF DECISION:	1 March 2007
BEFORE:	Chesterman M - ADCJ (Deputy President); Mooney L - Non Judicial Member at 288; Quayle C - Non Judicial Member
CATCHWORDS:	Vilification - Homosexual
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Anti-Discrimination Act 1991 (Qld) Commonwealth Constitution Racial and Religious Tolerance Act 2001 (Vic) Racial Discrimination Act 1975 (Cth)
CASES CITED:	Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 Briginshaw v Briginshaw (1938) 60 CLR 336 Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005) Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 Brown v Classification Review Board (1998) 82 FCR 225 Bryl v Kovacevic & Ors [1999] HREOCA 11 Burns v Dye [2002] NSWADT 32 Burns v Laws [2005] NSWADT 229 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 Coco v The Queen (1994) 179 CLR 427 Collier v Sunol [2005] NSWADT 261 Craig Williamson Pty Ltd v Barrowcliff [1915] VR 450 Deen v Lamb [2001] QADT 20 Dimozantos v The Queen (No 2) (1993) 178 CLR 122 Handyside Case, European Court of Human Rights (1976) Ser A No 24) 1 EHRR 737 He Kaw Te v R (1985) 157 CLR 523 Hellenic Council of NSW v Apoleski (No 1) [1995] NSWEOT (25/9/97) IW v The City of Perth (1997) EOC 92-892; (1999) 91 ALJR 943 John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 Jones v Scully [2002] FCA 1080 Jones v Toben [2002] FCA 1150 Jones & Anor v The Bible Believers’ Church [2007] FCA 55 Jones & Anor v Western Aboriginal Legal Service [2000] NSWADTAP 28 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 London Artists v Littler [1969] 2 QB 375 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559 R v Central Independent Television plc [1994] 3 All ER 641 R v Keegstra (1990) 61 CCC (3d) 1 Sunol v Collier [2006] NSWADTAP 51 Toben v Jones [2003] FCAFC 137 Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 Waters v Public Transport Corporation (1993) 173 CLR 349 Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 Wheeler v Leicester City Council [1985] 1 AC 1054
REPRESENTATION:	APPLICANT D Rofe (16 February, 14, 15 and 27 March 2006) No appearance on 10 October 2006 RESPONDENT G Reynolds SC P Hewitt, barrister
ORDERS:	1. The complaint is dismissed.; 2. The question of costs is to be resolved in accordance with the directions given at paragraph [287] of these reasons.