Burns v Nine Network Australia Pty Ltd

[2010] NSWADT 267

CITATION:	Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT Nine Network Australia Pty Ltd
FILE NUMBER:	091127
HEARING DATES:	19 May 2010
SUBMISSIONS CLOSED:	10 November 2010
DATE OF DECISION:	10 November 2010
BEFORE:	Needham J SC - Deputy President; Lowe A - Non-Judicial Member; Hayes E - Non-Judicial Member
CATCHWORDS:	Homosexual vilification – skit mocking homosexual male in context of an inability to play rugby league - whether broadcast incites hatred or serious contempt or severe ridicule – elements of satire – reasonable person’s reaction.
LEGISLATION CITED:	Anti-Discrimination Act 1977 Racial Discrimination Act (Cth)
CASES CITED:	Carter v. Brown [2010] NSWADT 109 John Fairfax Ltd v. Kazak [2000] ADTAP 35 Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at 77,238 Burns v. Dye [2002] NSWADT 32 Burns v. Radio 2UE [2004] NSWADT 35 Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 Kelly-Country v. Beers & anor [2004] FMCA 33 Creek v. Cairns Post Pty Ltd (2001) 112 FCR 3526 Jones v. Scully (2001) 113 FCR 343 Burns v. Laws [2008] NSWADTAP 32 De La Mare v. Special Broadcasting Service [1998] HREOCA 26
REPRESENTATION:	APPLICANT In person RESPONDENT K. Eastman, barrister
ORDERS:	1 The application is dismissed 2 The respondent has sought leave to be heard on costs. Any costs application should be made by serving and filing submissions on costs, including any submissions on whether the application for costs can be heard “on the papers”, within two weeks of the date of publication of these reasons for decision. The applicant should then file and serve any submissions in answer within a further two weeks, and the respondent can deal with any matters in reply in writing filed and served within a further two weeks 3 If no application for costs is to be made, the respondent should let the Registry and the Applicant know within the period of the first two weeks.

REASONS FOR DECISION

1 Mr Gary Burns, the applicant, made a complaint to the President of the Anti-Discrimination Board against Nine Networks Australia Pty Ltd (“Nine”) on 25 May 2009 in relation to a skit (“the skit”) which formed part of “The Footy Show” programme (“the Show”) aired on Channel 9 on 7 May 2009. The complaint was on the basis of homosexual vilification.

The Legislation

2 Following are the sections of the Anti-Discrimination Act 1977 which are relevant to this complaint.

3 Division 4 of Part 4C of the Act deals with homosexual vilification as follows:

49ZS Definition
In this Division:
public act includes:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, 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.

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:
(a) a fair report of a public act referred to in subsection (1), or
(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or
(c) a public act, done reasonably and in good faith, for academic, artistic, 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.”

4 It is conceded by the respondent that the broadcasting of the skit during the Show was a public act.

5 Section 53 of the Act extends liability to employers by imposing vicarious liability.

53 Liability of principals and employers
(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

6 There is no issue that the respondent is the proper respondent and that Nine is jointly and severally liable with the personnel of the Show.

7 Further, there was no issue that Mr Burns, as a homosexual man, had standing to bring the complaint.

The Show and the skit

8 “The Footy Show” is a weekly programme, shown on Channel 9 during the winter football season, based on Rugby League football and which includes elements of a talk show, interviews, news and comedy. It is hosted by regular panellists, at the relevant time including the former footballers Andrew and Matthew Johns. Each of Andrew and Matthew Johns are well known in the rugby league world, both as players and more latterly as panellists on the Show.

9 The Show opened with an apology from Matthew Johns for his involvement in a group sex scandal which had recently become public. While this has no bearing on the content of the skit, it was mentioned by the applicant as being relevant.

10 The skit was clearly meant to be humorous, in what was apparently the trademark style of the Show. It appeared approximately 15 minutes into the Show. It was in a “mockumentary” style, being introduced by Mr Vautin, the host of the show, as a “Footy Show Exclusive” by a “Wide World of Sports” (another Nine show) journalist, Tim Sheridan. The skit was in the style of “Sixty Minutes” (another Nine show) and was entitled “My Three Sons”.

11 In the skit, Matthew and Andrew Johns played themselves, a Nine senior executive played their father, and Matthew Johns also played a third Johns brother, Elton Johns. The name “Elton Johns” is a clear reference to the singer Elton John, who is well-known to be gay and for dressing, at least for his public performances, in a flamboyant manner. The “Elton Johns” character dressed in clothes reminiscent of the performer.

12 The family in the skit were not accepting of “Elton”. Matthew Johns (playing himself) talked about his happy childhood and the close-knit family, with the music of Elton John playing in the background, saying “Elton never really fit in”. There were references to the young Matthew Johns having difficulties deciding whether to play football or to “try on Mum’s clothing”, and Andrew Johns being “surprised he turned out so straight”. The father, Gary, thought he might have been “switched at birth” and sought to return him to the hospital when he was a young child, saying “I want to return this, it’s faulty”. There was a reference to “Elton” having as a boyfriend the only openly gay rugby league player, Ian Roberts (although there is also an underhand reference to another sportsperson named Ian, who does not publicly identify as gay). The Johns family in the skit were dismayed by “Elton’s” preferring music to football, and were seen changing the TV channel from “Elton” playing piano and singing at the Oscars in order to watch “the Footy Show” – the clip of which was Andrew Johns playing “Reg”, a regular, somewhat blokey character. The skit ends with “Elton” determining to give up performing and take up rugby league, playing for the Knights, the Johns’ brothers’ team, although he had “rooted for the Roosters all his life”.

13 There were a number of references throughout the skit, in addition to the hospital scene, which could be seen as derogatory towards homosexuals. The introduction by Tim Sheridan referred to “the runts of (the) litter”. The first introduction of “Elton” shows a photograph of a baby licking, and being licked by, a pig. A backyard game of football shows “Elton” dressed like Elton John and being hit in the head with a football. He was referred to as a “health hazard”. Andrew Johns referred to playing as a child with “Elton” as “mincing about”. Andrew Johns said “Like Dad, I’m so ashamed of him” (although the exact wording is difficult to hear over the laughter). “Elton” says, “Mother, she knew I was gay the day I was born” over footage of a photograph of a baby refusing a breast.

14 On the other hand, the father, “Gary” Johns, says that he is proud of all his children, and “to say I am embarrassed about having Elton as a son is a complete falsehood” (although that statement is broadcast over “Gary” taking “Elton” back to the hospital for exchange). There are also references to whether Matthew Johns was himself gay, a view held in the skit by his brother Andrew.

15 The Show was taped before a live audience prior to the Show’s timeslot, and broadcast after a short delay that night. The laughter of the live audience is clearly audible during the skit and there are scattered moments of applause. Clearly it was a skit that tickled the funny bone of the live audience. The audience, shown at the end of the skit, appears to be mainly male and mainly young (in their 20s or 30s, which is backed up by the evidence of Mr O’Brien that the demographic makeup of the show demonstrating that the largest audience for Sydney and Brisbane are men aged 25 to 39, followed closely by men aged 40 to 54. Women make up a much smaller portion of the audience).

16 The skit ends, and the camera cuts to Mr Vautin shaking his head in a ruefully amused manner and saying, “Where will it stop, where will it end. The younger brother, eh?” and Andrew Johns saying, “Elton, I’m very proud of him”. It appears that further episodes of the life of “Elton Johns” were planned, as Mr Vautin indicated that the Show would be returning to follow up on “Elton’s” playing career.

17 The members of the Tribunal have each viewed the skit (during the proceedings) and have also viewed the entirety of the Show in which the skit appeared in order to ascertain the context of the skit and the style of the Show.

18 The President of the Anti-Discrimination Board wrote to the Chief Executive of Nine on 29 May 2009 seeking his co-operation in retaining a copy of the broadcast. Nine replied on 4 June 2009 and enclosed a copy of the DVD of the Show.

19 Mr Burns alleged that the skit vilified male homosexuals. The complaint particularly pointed to the hospital scene and the words “I want to return this. It’s faulty” but also raised other references as demonstrating vilification. The applicant said:-

“This message implies those who are of a male homosexual characteristic are “sick” and not a normal part of society. The skit communicates a message to the viewer that there is something dirty about male homosexuality. I felt violated by the comments because those comments portrayed me as a sick and dirty person”.

20 The applicant sought an apology, in the form of a full page advertisement in “Sydney’s leading Gay Publication SX Weekly” and sought to “stop the vilification of certain groups in the community and to promote tolerance, understanding and acceptance in the community”. In his complaint to the ADT he noted that he “did not seek personal recompense for himself”.

21 The respondent replied to the President on 2 July 2009. The comments made were:-

a)a denial that the skit amounted to vilification of homosexual men, because it did not incite hatred towards, serious contempt for or serious ridicule of any person or group on the ground of homosexuality; and
b)was a public act, done reasonably and in good faith, for artistic purposes, in the public interest (ie, the exemption in s 49ZT(2)(c)).

22 The respondent “unreservedly apologises to the complainant for any offence that may have been caused, and conveyed that apology to him in a letter dated 28 May 2009, a copy of which is attached to this letter”. The apology did not include any admission of liability.

23 The letter of 2 July 2009 gave more details of the defences which were later raised in this hearing. They included:-

a)the skit was satirical and silly, and was “taking the mickey” out of the Johns brothers by poking fun at “boofhead” football culture, “presented as a parody of a serious current affairs type programme”.
b)the skit was a play on the surname of the Johns brothers and that of Elton Johns, and the main attributes of Elton John which were mocked were his “preference for absurd glasses and feather boas” rather than his sexuality;
c)the ignorance of the parents, and of the Johns brothers, were being portrayed as “ridiculous” (and the Oscar/Footy show television choice was given as an example);
d)the attempted return of the child to hospital was in the context “primarily upon [“Elton”] being poor at football”. The father in particular is a parody and stereotype, and his attitudes are not being presented in a positive light.

24 The enclosed letter of 28 May 2009 repeated many of the above contentions, and noted that:-

“What was being ridiculed was the notion that any reasonable person would think less of a son who was an internationally successful performer of the calibre of Sir Elton John simply because he was not good at sport or because of his sexual preferences. The humour or satirical point of the piece arises because viewers realise how absurd that notion is, and laugh at the ignorance of anyone who would hold that view”.

The hearing

25 The hearing took place on 19 May 2010. Mr Burns represented himself and the respondent was represented by Ms Eastman of counsel. The DVD of the skit was viewed and each party made submissions, both in writing and orally. The parties filed Points of Claim and a Defence. Neither the evidence nor the submissions departed significantly from the views put in the original complaint by Mr Burns and the reply to his complaint by Nine. Mr Burns put on some media reports and public comment on the skit, and the respondent filed statements by Mr O’Brien, the Executive Producer of the Show. Mr Burns and Mr O’Brien were cross-examined.

26 The questions for determination are as follows:-

a)Did the skit breach s 49ZT in that it incited “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?”
b)If so, can Nine establish the defences set out in sub-s 49ZT(2)(c), in that it was “done reasonably and in good faith, for ... artistic ... purposes in the public interest”.
c)If the applicant establishes a breach of s 49ZT, and the respondent fails to establish an exemption, what are the appropriate remedies?

27 The applicant bears the onus to establish:-

a)that the respondent did a “public act” in broadcasting the skit (noting that this is not in dispute);
b)the skit was capable, in an objective sense, of inciting other persons to:-
feel hatred towards; or
hold in serious contempt; or
hold in severe ridicule;
the Applicant or homosexual men; and
there is a causal nexus between the public act and homosexuality.

28 As to onus, see Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSW ADT 102.

29 The Tribunal must be “comfortably satisfied” of the above elements for a claim to be made out: Carter v. Brown [2010] NSWADT 109 at [16].

Did the skit vilify male homosexuals in breach of s 49ZT?

30 Mr Burns submitted that the required causal nexus is established by the content of the skit, which is based on “the idea that being gay is wrong and if someone was a male homosexual it is a reason to ridicule and mock them”.

31 As for the incitement of hatred, serious contempt or severe ridicule, the applicant cited John Fairfax Ltd v. Kazak [2000] ADTAP 35 at [10] where the Appeal Panel said, on the question of the meaning of the word “incite”:-

“The ordinary meaning of "incite" is to spur on, stir up, prompt, provoke, urge, or stimulate. There is no necessary element of intention in the use of the term in everyday parlance, for example, a letter published in a newspaper may provoke a response from the readership without the author of the letter, or the publisher, intending that consequence. It is the contents of the public act which prompt others to action, albeit the acts of writing and publishing are intentional. Admittedly, the contents of the publication may be of such a nature that an inference of an intention to incite hatred or serious contempt is warranted and, when that is effected by means of the threat of physical harm or inciting others to threaten physical harm, on the ground of race, the elements of s 20D may be satisfied. Be that as it may, there is nothing unnatural or unreasonable in a construction of "incite ... on the ground of race" in s 20C which eschews an intention to incite, any more than it is unnatural or unreasonable to construe "discriminate ... on the ground of race" as not requiring an intention to discriminate: Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ, Gaudron J, Deane J: and see Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Gaudron and Deane JJ : IW v City of Perth per Kirby J.

32 The applicant submitted that the yardstick for measuring the tendency of material to incite is the “ordinary reasonable person” and cited Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at 77,238 (in relation to racial vilification):

“The test to be applied is, in the Tribunal's view, an objective one. The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal's view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views.”

33 The applicant sought to have reference to views expressed by persons, often known by initials or pseudonyms, who commented online on articles published in the Daily Telegraph and elsewhere reporting on the applicant’s stand on the skit and the Show. He sought to bring these views into play by reference to the “ordinary viewer” and that they “could have understood that they were being incited to severe ridicule and contempt of homosexual men”. The respondent objected to this evidence being used for the purpose sought by the applicant.

34 The respondent submitted that the question was whether the skit was capable of inciting hatred towards, and/or serious contempt, and/or severe ridicule of the Applicant, or of other homosexual men. The respondent submitted that the test was as in Burns v. Dye [2002] NSWADT 32 at [19]:-

“... the word “incite” is to be given its ordinary natural meaning which is to “urge, spur on, ... stir up, animate; stimulate to do something” (New Shorter Oxford English Dictionary, 1993) (Oxford); “urge on; stimulate or prompt to action” (the Macquarie Dictionary, third edition, 1997) (Macquarie).”

35 It is apparent that the parties do not differ significantly as to the meaning of the words used in the section. Where they differ is on the effect which the words were capable of having.

36 The test – as to whether the skit had the capability to incite the required responses – is an objective test. It is not to the point that Mr Burns, or some of the persons leaving comments on media reports – were upset by the comments. They are patently insensitive in parts and a large proportion of the viewing public would most likely view the skit as being less than funny. But again, that is not the test.

37 Would an ordinary person, a reasonable viewer, who saw the skit understand that he or she was being incited to hate homosexual men? Would that reasonable viewer take the view that the point of the skit was to invoke serious contempt or severe ridicule of homosexual men? The Tribunal is of the view that the term “incite” is where the applicant’s argument falls down. Nothing in the skit is a call to action in the manner proscribed by s 49ZT. The respondent submitted that “the impugned public act must be capable of arousing reactions at the extreme end of the scale” and with this submission we agree.

38 The applicant pointed to the decision in Burns v. Radio 2UE [2004] NSWADT 35 in which two influential radio announcers, Steve Price and John Laws, were found to have breached s 49ZT in decrying a television show “The Block” as being inappropriate for viewing at 6.30 pm on the basis of it featuring a gay male couple. The conduct differs somewhat from the skit in question. In the Radio 2UE Case, the presenters were giving a comment on whether or not a particular programme was in the public interest, and were demonstrably evincing an opinion which with they expected their listeners to agree.

39 In this case, the skit was intended to be humorous, and while opinions on how successfully that aim was achieved may differ, it is obvious from a viewing that that was the intention. It was light-hearted, and did not use any threats or violence. While the parts of the skit noted above in paragraph 13 may be seen as offensive or potentially offensive, it is the view of the Tribunal that the skit revolved around the writer’s and actor’s vision of purported characteristics of gay men (flamboyant dressing, inability to play rugby league, “mincing”). However, it did not have the effect of inciting hatred, or severe ridicule or serious contempt in the reasonable viewer. This is partly so because the way the skit was written referred to the well-known style of the performer Sir Elton John, and portrayed “Elton Johns” as wearing the same style of clothes and glasses commonly worn by Sir Elton at one point in his career. Further, in the context of a sports entertainment show, rather than a more serious programme, the content could reasonably be expected to be lightweight. The respondent characterised the Johns brothers as being “larrikin, knockabout” personalities, and accordingly views expressed by them would not have the persuasive weight of more influential broadcasters such as, for instance, Mr Price and Mr Laws in the 2UE Case.

40 The Tribunal is of the view that the skit was not capable of inciting hatred, serious ridicule or severe contempt of Mr Burns or other homosexual men.

41 The respondent relied on the observation of Justice French (as he then was) in Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 at [69] where his Honour said:-

“As a general principle freedom of expression is not limited to speech or expression which is polite or inoffensive ...”

which observation was adopted in Kelly-Country v. Beers & anor [2004] FMCA 336 at [105] (in relation to the Racial Discrimination Act (Cth)):-

“Clearly the vast majority of Mr Beers’ act and types are calculated to be impolite and offensive to many sections of the Australian community, including ministers of religion, women, as well as Aboriginal people. Accordingly, merely because the act is offensive and insulting does not of itself make it unlawful ...”

42 The respondent in Kelly-Country, Mr Beers, was a performer who adopted the guise of an Aboriginal man named “King Billy Cokebottle” and his work was recorded and sold as comedy. The applicant, Mr Kelly-Country, alleged that:-

“The respondent portrays Aboriginal persons as rude, stupid, unable to pronounce longer words, unable to speak English properly, dirty, ill educated, always drunk (or at least always drinking), and always swearing. And the respondent in his performances refers to matters involving aspects of sacred tribal activities which should be discussed only by and in the presence of initiated Aboriginal male persons.” (at [5]).

43 In Kelly-Country, the jokes the subject of the complaint were acknowledged to be “tasteless and unnecessarily crude” (at [52]) and “the jokes are offensive” (at [57]), and “vulgar and in poor taste.” (at [111]. Some had “more of a racial content than others” (at [59]). However, they were not contrary to the provisions of the relevant Act, which could be seen, in its proscription of material which could merely “offend, insult, humiliate or intimidate”, as being a lower bar than s 49ZT of the Anti-Discrimination Act (see par [67]-[68] of Bropho for an exposition of the meanings of these words).

44 The Tribunal, likewise, finds the portrayal of homosexual men in the character of “Elton Johns” as being tasteless, offensive and unfortunate. In particular, the suggestion that a child who dresses in a non-traditional way is gay and somehow “faulty” is offensive on many levels. However, the question is not whether our own sensibilities are offended, but rather whether the material, when viewed objectively, has the capacity to incite the relevant feelings in a reasonable person. The Tribunal is of the view that it does not. Accordingly, the Footy Show skit did not transgress s 49ZT of the Act in that it was not capable of inciting hatred, or severe contempt or serious ridicule of homosexual men or of the Applicant.

45 The Tribunal reaches this view based on the test being “an objective [one] of the likelihood unaffected by the intention of the person doing the act: Hagan v Trustee of Toowoomba Sportsground Trust[2000] FCA 1615; BC200006905 at [15] per Drummond J; Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [12] per Kiefel J (cited by French J (as he then was) in Bropho (at [66]).

46 The respondent further submitted that the skit did not meet the “causal nexus” required in that it was broadcast “on the ground of homosexuality”. That nexus was achieved in the 2UE Case because the only basis for making the comments was homosexuality.

47 The respondent relied upon the statements of Kiefel J in Creek v. Cairns Post Pty Ltd (2001) 112 FCR 352, where her Honour said that the relevant ground must be a cause of the publication, and must be motivated by considerations (in that case) of race.

48 The Tribunal agrees with the applicant that the nexus has been established to show that the broadcasting of the skit was “on the ground of” homosexuality. There is very little in the sketch which is not related to homosexuality, however much the respondent seeks to maintain that the seed of the skit was an inability to play football. There would be no need to call the fictitious Johns brother “Elton Johns” were it not to make a connection with Sir Elton John’s homosexuality, and the rather distasteful hospital scene, where the father seeks to return the child because “it’s faulty” refers directly to the child being perceived as gay.

49 Her Honour Kiefel J said in Creek v. Cairns Post:-

“If there was anything to suggest that the respondent, in arriving in its decision to include the photograph, had acted upon an assumption that this [that the relevant photograph was motivated by considerations of race] was the case, or if it had chosen the photograph when others depicting the true circumstances were available, I consider that the requirement of race as a cause may well have been satisfied”.

50 Here, the Tribunal is satisfied that the issue of homosexuality is so bound up in the attempts at humour that the question of homosexuality must have motivated the content of the broadcast. It is very much a one-joke skit, and that joke is that “homosexuals are no good at rugby league” with minor variations.

Defence of a public act done in good faith

51 The finding of the Tribunal above, that the broadcast, while made on the ground of homosexuality, does not breach s 49ZT, means that the question of a defence is not required to be considered. However it was fully argued by the parties and it is as well to give consideration to the issue in those circumstances.

52 The applicant submitted that the onus was on the respondent (see Jones v. Scully (2001) 113 FCR 343 at [127], [128]. The applicant submitted that the skit was unreasonable, because it advocated treating homosexuals less favourably than heterosexuals, and that any “artistic purposes” were negligible. He alleged that there was no evidence that the comments were made in “good faith” or that they were in the “public interest”, and that the content of the skit militated against those propositions.

53 The respondent relied upon the rights of freedom of expression which include artistic performances, and noted that s 49ZT does not “require the Tribunal to impose standards of civility or good manners”, nor to “sanitise entertainment and artistic performances”. In Burns v. Laws [2008] NSWADTAP 32 at [28], the Appeal Panel adopted the above principles and said that:-

“Freedom of speech and expression is not limited to what might be called polite, decent or tasteful expression but is a freedom which embraces offensive, rude, hostile, derogatory and angry speech or expression, and speech or expression that is tasteless, insensitive and undignified”.

54 The respondent put a great deal of emphasis on the fact that the skit was satire, and accordingly the context and underlying message of the skit needed to be considered. In De La Mare v. Special Broadcasting Service [1998] HREOCA 26, Commissioner McEvoy said:-

“Mr De La Mare, and indeed others, may not have found the joke very funny, but in my view no reasonable person could have mistaken the film for anything other than satire. Under those circumstances I am satisfied that the first criterion of s 18C(1)(a) [of the Racial Discrimination Act] is not made out; that is, that the broadcast of the film was not reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate anyone”.

55 While the test being considered by the Human Rights and Equal Opportunity is of course a different one, the cited passage notes the impact of a satirical performance. Something which is said satirically has a different impact from something said as commentary or opinion; here, it is just as open to the viewer to see the skit as mocking homosexual men (as Mr Burns has said it does) or mocking the ignorant attitudes of persons who see homosexual men as less capable or less sporty or somehow “faulty”.

56 In Bropho, the applicants were Aboriginal people complaining about a cartoon relating to a dark portion of Western Australia’s relationship with Aboriginal people, in particular, the killing of Yagan and the removal of his head. The material in this case was also intended to be amusing, but induced shock and dismay amongst the Nyungar people who viewed it. The Commissioner hearing the case at first instance found that the cartoon breached the “offend, insult, humiliate or intimidate” requirement but fell within the exemption, similar to that provided for in s 49ZT(2)(c). The Full Federal Court put much weight, in upholding the dismissal of the original complaint, on the intent and purpose of the “artistic/reasonable/good faith” exemption, being the protection of free speech . French J saw the defence as defining the limitation of the vilification provisions, rather than being as an exception, and said that the defence should “be construed broadly rather than narrowly” (at [73]).

57 There is no evidence that the decision to broadcast the skit was taken in bad faith, or unreasonably. As noted above, the fact that a percentage of the population may not find it funny does not mean it is done in bad faith or unreasonably. The element of satire is demonstrably present in the format of the mock current affairs show and the interviews with the “family” of “Elton Johns”. This does not, of course, mean that anything which can be branded “satire” is automatically exempt from the requirements of s 49ZT; far from it. Justice French in Bropho (at [80] spoke of the “reasonableness” requirement in the following terms:-

“An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question. An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise “inferior” to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to para (b) of s 18D.”

58 The Tribunal has been, as will be clear from the above reasons, most troubled by the “hospital” section of the skit. The reasonableness or otherwise will be found in the purpose of the broadcast. The respondent quite frankly characterised the Show as “blokey” which is not, generally speaking, a term which is used to describe the gentler arts. In the broader context of the Show, and while the “hospital” segment was in bad taste, the Tribunal’s view is that the relevant element of reasonableness is satisfied.

59 Accordingly, even if Mr Burns had succeeded on the “incitement” claim, he would have failed in that the broadcast of the skit falls within s 49ZT(2)(c).

Remedy

60 There is no need to consider a remedy given that the application fails both on the question of breach, and would have failed on the exemption.

Order

61 The application is dismissed.

62 The respondent has sought leave to be heard on costs. Any costs application should be made by serving and filing submissions on costs, including any submissions on whether the matter can be heard “on the papers”, within two weeks of the date of publication of these reasons for decision. The applicant should then file and serve any submissions in answer within a further two weeks, and the respondent can deal with any matters in reply in writing filed and served within a further two weeks.

63 If no application for costs is to be made, the respondent should let the Registry and the Applicant know within the period of the first two weeks.