Burns v Nine Network Australia Pty Ltd (EOD)

[2011] NSWADTAP 25

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Burns v Nine Network Australia Pty Ltd (EOD) [2011] NSWADTAP 25
Hearing dates:	15 April 2011
Decision date:	20 May 2011
Jurisdiction:	Appeal Panel - Internal
Before:	Appeal Panel comprised of: Judge K P O’Connor, President, G Furness SC, Judicial Member, Z Antonios, Non-judicial Member
Decision:	Appeal dismissed
Catchwords:	EQUAL OPPORTUNITY - Appeal - Finding that impugned conduct did not constitute homosexual vilification within the terms of s 49ZT - nature of standard of proof - reference to 'capacity to incite' - held no errors - appeal dismissed - Anti-Discrimination Act 1977, s 49ZT
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
Cases Cited:	Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 Burns v Laws (EOD) [2008] NSWADTAP 32 Carter v. Brown [2010] NSWADT 109 Catch The Fire Ministries Inc and Ors v Islamic Council of Victoria Inc and Anor [2006] VCSA 284 JM and JN v QL and QM [2010] NSWADT 66 John Fairfax Publications Pty Ltd -v- Kazak (EOD) [2002] NSWADTAP 35 Leach v R [2007] HCA 3; (2007) 232 ALR 325; (2007) 81 ALJR 598 Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650 Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 Qantas Airways Limited v Gama [2008] FCAFC 69 South Australia v Totani [2010] HCA 39 State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287 Z v University of A & Ors (No 7) [2004] NSWADT 81
Category:	Principal judgment
Parties:	Gary Burns (appellant) Nine Network Australia Pty Ltd (respondent)
Representation:	R Lancaster SC (Appellant) K Eastman (Respondent) Surry Partners (Appellant) Baker & McKenzie (Respondent)
File Number(s):	109062
Decision under appeal	Citation: Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267 Date of Decision: 2010-11-10 00:00:00 Before: Equal Opportunity Division File Number(s): 091127

REASONS FOR DECISION

1. The appellant has applied to the Tribunal for orders to be made against the respondent ('Nine') for racial vilification. The Equal Opportunity Division of the Tribunal has dismissed the complaint. See Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267. He now appeals.

1. Nine televises 'The NRL Footy Show' on Thursday evenings during the rugby league season across New South Wales and Queensland. It includes comedy segments. On the evening of Thursday 7 May 2009 the show contained a comedy segment which included a number of elements that 'could be seen as derogatory towards homosexuals' (Tribunal reasons [13]). On 9 May 2009 the appellant complained to the President of the Anti-Discrimination Board (ADB) raising the question of whether the segment infringed the prohibition on homosexual vilification laid down by the Anti-Discrimination Act 1977 (ADA). The President was unable to resolve the complaint, and referred it to the Tribunal for hearing and determination. As noted, the complaint was dismissed.

1. There is no dispute that the segment constituted a 'public act' for the purposes of the relevant law, or that Nine is vicariously responsible for the conduct in issue.

1. The key provision of the ADA is s 49ZT:

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.

1. The segment (called a 'skit' by the Tribunal) had four characters, all belonging to a famous rugby league family, the Johns. Two of the characters, Matthew and Andrew, played themselves. Another person played their father, and another person played a fictional third son, 'Elton', depicted in dress and with mannerisms typical of the world-famous singer Elton John, who is homosexual. The sketch included a number of crude remarks, including ones derogatory of persons who are homosexual, ones suggesting that persons such as Elton were more comfortable with music than rugby and generally along the lines that rugby was not a game for homosexuals. Fuller details are given in the Tribunal's reasons.

1. To succeed, the appellant needed to establish to the satisfaction of the Tribunal on the civil standard of proof that the segment incited hatred, serious contempt or (at the least) severe ridicule of homosexual persons on the ground of their homosexuality. The Tribunal dealt with the case as a 'severe ridicule' case.

1. Nine replied that the segment could not reasonably be regarded as inciting severe ridicule of homosexual persons on the ground of their homosexuality, and accordingly did not infringe sub-section (1). If the Tribunal was against it on sub-section (1), Nine submitted that in any case there was no infringement by reason of the exception given by sub-section (2)(c). It submitted that the conduct had been done reasonably and in good faith, with an artistic purpose in the public interest. It went further, and suggested that it could be seen as a parody of anti-homosexual prejudice.

1. The Tribunal considered that the segment had elements that were 'tasteless, offensive and unfortunate' (reasons [44]). However, it concluded that the segment did not infringe sub-section (1). It made its judgement having regard to the opinion of the hypothetical observer, being the ordinary viewer of ordinary sensibilities: it asked would that viewer have been incited to severe ridicule.

1. The Tribunal went on to discuss the position had it found an infringement of sub-section (1). It stated that it would have found Nine's defence relying on the exception given by sub-section (2) made out. It said that there was no evidence that the telecast was made other than reasonably and in good faith. It did not address expressly what 'purpose ... in the public interest' was being achieved. But it can perhaps be inferred from its reasons that it regarded the segment as parody or satire in the 'mockumentary' style, falling into the 'artistic' purpose category. It did not respond to Nine's suggestion that the segment sought to parody anti-homosexual prejudice.

1. In his notice of appeal, the appellant raises questions of law, and seeks the leave of the Appeal Panel for the appeal to be extended to the merits (as to the appeal right in respect of an original decision of this kind, see ADA, s 115 and Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113).

Question of Law No 1

1. The appellant's first and most fundamental challenge is that the Tribunal applied the wrong standard of proof.

1. The Tribunal began its reasons by outlining the key elements of the segment. It then set out the core assertions in the appellant's complaint to the President of the ADB, referred to Nine's initial response (a prompt one offering an apology for any hurt caused), Nine's later statement of its formal defences, the referral of the matter to the Tribunal for hearing and the issues to be determined. It then turned to the question of what elements needed to be proved by the applicant to establish unlawful conduct, and the standard of proof.

1. The Tribunal said at [27]-[28]:

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.

1. The appellant's submission is that the Tribunal then committed an error of law at [29] in formulating the standard of proof required. The Tribunal said:

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].

1. In Carter v Brown at [16]-[17] the Tribunal said:

Onus and Standard of Proof

16 In JM and JN v QL and QM [2010] NSWADT 66, the Deputy President stated [at [15]):

It has often been said in the context of anti-discrimination complaints, that when determining whether an applicant has discharged this onus, the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 should be applied: Sharma v Legal Aid Queensland [2002] FCAFC 196 at [40]. Recently, in Qantas Airways v Gama [2008] FCAFC 69 the Federal Court (Branson J at [139]) said that the application of 'the Briginshaw standard' is likely to lead a trier of facts into error: The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved.

Although not bound by the rules of evidence, we consider this to be the correct approach. Section 140 of the Evidence Act 1995 states that:

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.

17 We agree with and adopt that approach.

1. The submission is that the Tribunal inaccurately paraphrased the above passage, giving rise to an error of law. The error of law said to be that the Tribunal adopted a third intermediate standard of proof between the civil and the criminal. If the Tribunal did apply a third standard of proof there would clearly be an error of law.

1. Weinberg J dealt with a similar ground of appeal in Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650 (21 December 1998). While the appeal was successful on other points, Weinberg J rejected this ground of appeal. He said:

As for the contention that the Commissioner erroneously construed the Briginshaw principle by treating it as though it sanctioned the adoption of a third standard of proof, mid way between the civil and criminal standards of proof, I do not accept that this was what the Commissioner intended to convey when he said that "such a finding would surely call for proof based on more than a mere balance of probabilities". In my view, this statement was no more than a convenient shorthand method of articulating the Briginshaw principle, perhaps infelicitously expressed, but not to be pored over and scrutinised with the type of over-zealous pedantry criticised by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272:

".. the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed."

1. (For completeness, we note that a further appeal (by the State of Victoria) to the Federal Court Full Court failed: State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287. However the Full Court did uphold a point of contention raised by the complainant that touched on the Briginshaw issue. It ruled that a complaint of unintentional unlawful discrimination did not attract the operation of the Briginshaw caution, whereas a complaint of intentional discrimination would attract the caution. It disagreed with an observation of Weinberg J to the effect that a complaint relating to government statements of policy or authorised practices should attract a caution.)

1. Clearly equal opportunity proceedings are civil proceedings governed by the ordinary civil standard, the 'balance of probabilities'. In Briginshaw the High Court warned of the need for caution in reaching satisfaction on the balance of probabilities in cases where the direct evidence was weak or the consequences for the party the subject of an adverse finding were grave. Recently Heydon J (in dissent, but not on this matter) referred to the cautions sounded in Briginshaw as 'protective principles': South Australia v Totani [2010] HCA 39 at [257].

1. The phrases 'comfortable satisfaction' and 'reasonable satisfaction' (and like variants) when used in connection with the standard of proof have their ancestry in what was said in Briginshaw . In Briginshaw the issue was whether an allegation of adultery as a ground for divorce needed to be proved on the criminal standard (as the judge below had held) or the civil standard. The High Court ruled that it was the civil standard. All the judges commented on the need for care in making a finding against a party on the preponderance of probabilities if there was little or no direct evidence or where the misconduct was of a serious kind and the finding had grave consequences for the party.

1. Latham CJ said at CLR 347:

[T] he ordinary standard of proof in civil matters must be applied to the proof of adultery in divorce proceedings, subject only to the rule of prudence that any tribunal should act with much care and caution before finding that a serious allegation such as that of adultery is established.'

1. Dixon J famously said at 361-362:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

1. The use of the adjective 'comfortable' appears in the judgment of Rich J as follows at 350:

In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. But to say this is not to lay it down as a matter of law that such complete and absolute certainty must be reached as is ordinarily described in a criminal charge as "satisfaction beyond reasonable doubt."

1. In recent years, the higher courts have expressed concern over the ritual incantation of the words 'comfortably satisfied' and 'reasonably satisfied' by judges when referring to the civil standard. The concern is the one reflected in this ground of appeal, that the practice may lead to a distortion of the civil standard, and the possible establishment of a third standard.

1. The Appeal Panel commented on this concern in 2008 in Burns v Laws (EOD) [2008] NSWADTAP 32. After referring to Briginshaw , and Dixon J's judgment, the Appeal Panel said:

135 In Neat Holdings Pty Ltd v Karajan Holdings [1992] HCA 66; (1992) 67 ALJR 170 at 171 Mason CJ, Brennan, Deane and Gaudron JJ emphasised that Briginshaw did not set some third standard of proof intermediate between the ordinary civil standard and the criminal standard, even though often statements have been made to that effect. Further they cautioned against over-insistence on the standard: 'There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as directed to the standard of proof, likely to be unhelpful and misleading.'

136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88]-[90].

137 To find a broadcaster guilty of vilification, whether racial, religious or homosexual, is, we accept, a serious matter with possible consequences for the public standing and reputation of the broadcaster. It does not sit as high in the spectrum of gravity, we think, as an adverse finding of adultery against a wife in public court proceedings in the 1930s.

1. Branson J's comments at [139] of Qantas v Gama had as their context repeated references in the judgment there under appeal to Briginshaw . The court spoke of the ' Briginshaw standard' and the 'onerous Briginshaw test'. Her Honour made the point that undue reference to the standard may lead a tribunal into the error of applying a third or different standard. Despite these reservations she agreed with the joint judgment of her colleagues (French and Jacobsen JJ) that the court had not fallen into error by applying a third, higher standard.

1. No case was cited to us where an appeals court has upheld an appeal on this ground.

Assessment

1. We accept that the Tribunal's statement at para [29] did not adequately or fully record what was said in JM and JN and endorsed in Carter v Brown . But a failure of this kind does not necessarily lead to the conclusion that the Tribunal misunderstood the relevant law, or misapplied it.

1. The Tribunal simply referred to Briginshaw once and then only to the effect that it had to be 'comfortably satisfied' of the elements it had set out. While it may have been better had it more fully stated the nature of the standard of proof, the Tribunal did not in our view misdirect itself. It used a compressed expression with a long history of use, perhaps over-use, in the law. We do not think it fell into the error of applying a third, stricter standard.

1. Further, the Tribunal used language of moderation such as 'satisfied' at [50] and [58], and 'of the view' at [40] and [44]. It did not repeat such expressions as 'comfortably satisfied' or 'reasonably satisfied'. This lends support, we consider, to our conclusion that the Tribunal did not bring a more stringent standard to the task before it. We are accepting for the moment the premise of the appellant's case that the Tribunal had before it a contest which required a fact-finding task of a kind to which standards of proof are addressed; as to which, see further below at [32] ff.

1. While it may have been preferable to refer to the civil standard in simple terms or to use the exact terms of s 140, in our view it is not mandatory for s 140 to be employed, as JM and JN and Carter v Brown may be seen to suggest when those Tribunals picked up the words of Branson J (the 'correct approach'). The Court of Appeal (Spigelman CJ, Beazley JA and Giles JA) noted in Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331 at [735] that s 140 'in large measure encapsulates in statutory form the relevant observations in Briginshaw v Briginshaw '. The Court continued at [737]:

In this regard, whilst superimposing a mandatory statutory requirement, s 140 reflects the common law as stated in Briginshaw v Briginshaw and as explained and applied in subsequent authority. Sections 80 and 86 of the Marriage Act under consideration in Briginshaw expressly required the Court to be 'satisfied' of the relevant fact - in that case adultery. This explains Dixon J's use of the terminology of 'satisfaction' in that case. However, that terminology now has statutory force.

1. Finally, we do not think the Briginshaw principles had any real work to do in a case of the present kind. The Briginshaw principles are primarily directed, as we see it, to the need for care in making findings in relation to significant disputed matters of fact and especially to findings based on circumstantial evidence and the drawing of inferences. Often in the anti-discrimination jurisdiction there is intense dispute as to what precisely occurred, of which Carter v Brown and Qantas v Gama are themselves good illustrations. In Carter v Brown there was dispute as to the details of what was said and overheard between neighbours. In Qantas v Gama the complainant made a series of specific complaints, 21, about verbal and other intimidation on the part of fellow workers and managers in the maintenance engineering department of Qantas, which he regarded as racial in character.

1. This is not a case where there is any dispute about the basic facts. The task left to the Tribunal was the making of an evaluation as to where those facts fell on the spectrum set by s 49ZT. The Tribunal first considered whether the segment could be said to cause 'incitement to ... ridicule' for a hypothetical viewer of ordinary sensibilities, and then whether it crossed the threshold of 'incitement to severe ridicule'. If it did involve incitement to ridicule, the final question - whether the ridicule was 'severe' - involved an evaluative judgement about the degree of the ridicule.

1. In Burns v Laws the Appeal Panel commented:

138 Here there is ample underlying material. The findings to be made are not affected by a paucity of material in the way so vividly illustrated by the circumstances in Briginshaw . The difficulty here arises in making the various assessments required, flowing from the penumbra of uncertainty that surrounds such matters as the line to be drawn in respect of 'severe ridicule'; and the degree to which subjective evidence meets a requirement, or the ultimate finding is to be made on the basis of an objective assessment. (To similar effect, see French J in Bropho at [76] and the Appeal Panel in Veloskey at [43]).

139 In this regard and in reply to one of the respondent's submissions, we think the Tribunal was making the same point at para [127] of its reasons, and there is no error or misunderstanding revealed as to the way the Briginshaw principle is to be applied. The Tribunal said at [127]:

'But we would add, contrary to a further submission that [Mr Reynolds] 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.'

1. Gummow, Hayne, Heydon and Crennan JJ referred to similar issues in Leach v R [2007] HCA 3; (2007) 232 ALR 325; (2007) 81 ALJR 598. The case related to a statutory provision that gave the sentencing court a power to refuse to fix a non-parole period for a life sentence for murder "if satisfied the level of culpability in the commission of the offence is so extreme the community interest in retribution, punishment, protection and deterrence can only be met if the offender is imprisoned for the term of his or her natural life without the possibility of release on parole". The appellant argued that the state of satisfaction was to be formed by reference to the criminal standard of proof. Their Honours said at [47]:

The concept of a standard of proof, like the related concept of onus of proof, is apposite to the resolution of disputed questions of fact in issue in the litigation. Both onus and standard of proof concern the adducing of evidence at trial and the determination of which of the facts in issue are established by that evidence [30] . Standard of proof is not a concept that is apposite to the resolution of a contested question of judgment of the kind required by s 19(5), any more than it is apposite to the resolution of a disputed question of law.

1. It will be apparent from our comments that we think it was probably unnecessary for the Tribunal to make any express reference to Briginshaw in a case of the present type, but, that having occurred, we do not think it misdirected itself or reached a conclusion affected by legal error.

1. This ground of appeal is rejected.

Question of Law No 2

1. This question refers to the following passage in the Tribunal's reasons (emphasis added):

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.

1. The submission is that the words highlighted misstate the legal test. The words used in the highlighted passage are not an exact replication of the relevant words in sub-section (1). The exact words are that it is 'unlawful ... to incite' one of the states of mind to which the sub-section refers. The words 'capacity to incite' are not used.

1. If the appellant is correct, and the Tribunal has used a different legal test, then it is difficult to see what prejudice there is to the appellant's case as the words 'capacity to incite' are less strict than the words 'to incite', and if the Tribunal did apply a different test, 'capacity to incite', the appellant's position would have been assisted.

1. There is a history to the use of the word 'capacity' to condition 'to incite' in this area of the law. When that history is taken into account, and the reasons are read as a whole, we consider that the Tribunal did not substitute a different test for the one required by the sub-section.

1. It is no excuse at law for the producers of the segment, or the actors, to say that they did not 'intend' to cause offence. The law is focussed on preventing a harm. The word 'capacity' is used in this area of the law to underline that idea, i.e. that the relevant inquiry is not into intention but into the conduct's capacity to incite. The Tribunal went on in para [45] to make the same point:

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]).

1. The language of 'capability' or 'capacity' is derived from the law of defamation, and is commonly seen in judgments in the vilification area. See, for example Carter v Brown setting out a passage from Z v University of A & Ors (No 7) [2004] NSWADT 81 at [100]-[105] as accurately stating the approach required of Tribunals in vilification cases. There at [104] the Tribunal said:

104 The public act must be capable, in an objective sense, of inciting hatred towards, serious contempt for, or severe ridicule of, a person or persons. These words are to be given their ordinary dictionary meaning.

1. This text draws in turn on a leading decision in this area, John Fairfax Publications Pty Ltd -v- Kazak (EOD) [2002] NSWADTAP 35 at, for example, para [13]:

13 In determining whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race, the approach taken to the characterisation of the audience for these purposes is crucial. Common to the authorities in defamation, media and anti discrimination law is the "ordinary, reasonable person", but slight variations exist in the use of descriptors, depending on the jurisdiction. In all these jurisdictions, the descriptors set the outer limits of the spectrum, within which the ordinary reasonable person may be found.

1. This case has frequently been cited with approval, including by the Victorian Court of Appeal in Catch The Fire Ministries Inc and Ors v Islamic Council of Victoria Inc and Anor [2006] VCSA 284.

1. In our view, the Tribunal did not commit any error of law in formulating the test in the way that it did. It was using language seen in the leading authorities.

Questions of Law 3 and 4

1. These are related questions, and both go to the reasoning of the Tribunal in support of Nine's case as it related to the exception given by sub-section (2)(c). Ground 3 challenges the Tribunal's conclusion that Nine had acted reasonably and Ground 4 challenges the Tribunal's conclusion that the conduct was for artistic purposes in the public interest.

1. In light of our conclusion that the Tribunal did not err in law in respect of Grounds 1 and 2, both of which concerned sub-section (1), there is no need for us to go and consider the Tribunal's reasoning in respect of sub-section (2)(c). We do not think it appropriate for the Appeal Panel to re-open that part of the Tribunal's reasoning on this occasion.

Leave to Extend to the Merits

1. The first ground given for granting leave to extend to the merits relies on the alleged errors of law, the subject of the grounds of appeal already discussed. As there was no error, in our opinion, in relation to the primary matter, whether sub-section (1) was infringed, this ground for the grant of leave is not made out.

1. The second ground given for granting leave is a reworking of the first ground. It asserts that as the Tribunal has applied the 'wrong standard' or 'applied a standard based on an incorrect understanding of the state of satisfaction required', the appeal should be extended to the merits. For the same reasons given in relation to the first ground, leave is refused.

Order

Appeal dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.

Registrar/Associate

Decision last updated: 15 August 2011