Burns v Radio 2UE Sydney Pty Ltd & Ors

[2004] NSWADT 267

Pending Appeal:

CITATION:	Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT Radio 2UE Sydney Pty Ltd, John Laws and Steve Price
FILE NUMBER:	031086; 031149
HEARING DATES:	02/03/2004-03/03/2004, 07/05/2004
SUBMISSIONS CLOSED:	05/07/2004
DATE OF DECISION:	11/22/2004
BEFORE:	Rice S - Judicial Member; Alt M - Non Judicial Member; Bolt M - Non Judicial Member
APPLICATION:	Homosexual - Vilification
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Burns v Dye [2002] NSWADT 32 John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 Jones v Toben [2002] FCA 1150 Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102
REPRESENTATION:	APPLICANT C Ronalds, SC and L Crowley, barrister RESPONDENT J Oakley, barrister
ORDERS:	1. The complaint of homosexual vilification against the respondents Steve Price and Radio 2UE Sydney Pty Ltd is substantiated; 2. The complaint of homosexual vilification against the respondents John Laws and Radio 2UE Sydney Pty Ltd is substantiated; 3. The question of an appropriate remedy is reserved; 4. By 10 December 2004 the applicant will file and serve submissions on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made; 5. By 24 December 2004 the respondents will file and serve submissions in reply on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made ; 6. The question of costs is reserved; 7. By 24 December 2004 the respondents will file and serve submissions on costs.

What happened

1 On 15 June 2003 the first program in a television series called ‘The Block’ was telecast in Sydney. The program introduced four couples, each of which had the task of renovating a home unit in poor repair within a particular period on a particular budget. Three of the couples comprised a man and woman; two couples were married and the third was a de facto relationship. The fourth couple comprised two men in a homosexual relationship.

2 The next morning Mr Gary Burns was at home listening to a broadcast on Sydney radio station 2UE, for which the presenter was Mr Steve Price. At different times between 8.09am and 9.00am, Mr Burns heard Mr Price comment on The Block, converse with callers about The Block, and converse with another presenter, Mr John Laws, about The Block.

3 In light of what he heard on that broadcast, Mr Burns lodged with the Anti-Discrimination Board two complaints of homosexual vilification against Radio 2UE Sydney Pty Ltd. The first complaint concerned an exchange between Mr Price and Mr Laws shortly before 9.00am. The second complaint concerned comments made by Mr Price throughout the period 8.09am to 9.00am.

4 The complaints were referred to the Administrative Decisions Tribunal for inquiry, and the Tribunal joined Mr Price and Mr Laws as respondents to the inquiry.

The inquiry

5 At the inquiry it was argued that Mr Burns had not had standing to lodge the complaints as the comments he complained of related specifically to the two homosexual men in The Block, and not to him. The Tribunal decided that comments complained of were on the ground of male homosexuality and, as Mr Burns is a male homosexual, he is entitled to lodge a complaint as a person who has the relevant characteristic (s88(1D) Anti-Discrimination Act 1977).

6 The Tribunal received documentary evidence, and heard evidence from Mr Burns. Neither Mr Price nor Mr Laws gave evidence; they did not attend the inquiry into the lawfulness of their conduct at any stage, but were legally represented. The Tribunal listened to a recording of the radio broadcast, and viewed a recording of the relevant episode of The Block.

7 When he lodged his first complaint, Mr Burns attached a transcript of a part of the broadcast. When he lodged his second complaint, Mr Burns attached a transcript of more of the broadcast, but not of the whole of the broadcast throughout the period 8.09am to 9.00am. A full transcript and a full recording were made available to the Tribunal. During the course of the inquiry the Tribunal decided that the second complaint was a complaint about all references to The Block in the broadcast between 8.09am and 9.00am, not merely about the references to The Block in the transcript provided by Mr Burns to the Anti-Discrimination Board.

8 Mr Burns provided the Tribunal and the respondents with a copy of the full transcript, identifying those parts of it that he complained were homosexual vilification. That document was dealt with by the Tribunal and parties as particulars of Mr Burns’s complaint and it is on that document, and the passages highlighted in it, that we rely on as indicating the words used and complained of.

9 Mr Burns was unclear in his evidence as to how much and what parts of the broadcast he heard. While those questions are relevant to the issue of what compensation, if any, Mr Burns is entitled to, they are irrelevant to either the jurisdiction of the Tribunal of the question of whether the conduct he complains of was vilification. We agree with the respondents’ submission that the test for vilification is an objective one to which Mr Burn’s evidence is not relevant.

What has to be proved?

10 Because of the availability of the transcripts, and of a recording of the broadcast, there was no dispute as to what comments were made.

11 At the inquiry there was no dispute that the radio broadcast was a public act, or that the conduct was on the ground of the homosexuality of the male couple. The dispute in this matter is whether there was vilification, that is, whether the conduct incited hatred towards, serious contempt for, or severe ridicule of, homosexual men.

12 In their submissions the respondents conceded that it is not necessary for the Tribunal to find that there was an intention to incite. Decisions in this Tribunal have been inconsistent on this issue, and the NSW Law Reform Commission has said that it is desirable to clarify the position under the Anti-Discrimination Act 1977 (Report 92, 1999 at 7.112-7.122). But it seems to be “the now dominant view” that intention need not be proved (McNamara L, Regulating Racism Sydney Institute of Criminology, 2002, at 185, and see John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Veloskey & Anor v Karagiannis & Ors (EOD) [2002] NSWADTAP 18 at [24]). In this matter, therefore, it does not matter to the Tribunal what the respondents intended in making their comments about homosexual men.

13 Nor is it necessary to show that anyone was actually incited. This is not immediately apparent from the wording of s49ZT(1) of the Anti-Discrimination Act 1977, which appears to require proof that there was in fact incitement of hatred, serious contempt, or severe ridicule. This point – and the point that establishing vilification would be considerably more difficult if proof of actual incitement was necessary – was made in the second reading debates in relation to the identically worded racial vilification provisions (Hansard, Legislative Assembly, 10 May 1989, p7930; and see Rice S, Racial Vilification: The Missing Words (1995) 20 Alt LJ 304). Nevertheless this Tribunal has always proceeded on the basis that “it [is not] necessary to prove that anyone was in fact incited by the public act in question. It is the capacity of the public act performed by a person which is significant” (Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102 at [93], and see Veloskey & Anor v Karagiannis & Ors at [25], and NSW Law Reform Commission Report 92 at 7.125), and we do not propose taking a different approach in this matter. The respondents, in making submissions as to what the conduct was ‘capable of’, rather than what effect it actually had, effectively conceded this point.

14 It remains necessary for the Tribunal to decide whether the ordinary reasonable listener, drawing on their own knowledge and experience of worldly affairs, could have understood from the broadcast that they were being incited to hatred towards, serious contempt for, or severe ridicule of homosexual men (see, eg John Fairfax Publications Limited v Kazak (EOD) [2002] NSWADTAP 35 at [16]). This requires us to hypothesise as to the likely effect of the comments on the ordinary reasonable listener. As some indication of this, in this matter we have in evidence the recordings which tell us how listeners actually responded to the conduct, as we set out below.

15 The respondents’ submissions exhort us to reject, because it was unsatisfactory and unreliable, Mr Burns’s evidence on how Mr Price’s and Mr Law’s conduct should be understood. We place no weight at all on Mr Burns’s evidence in this regard, not because of its quality but because it is irrelevant to our making an objective assessment.

16 For the same reason we reject the respondents’ submission that in not providing evidence of what the ordinary reasonable listener could have understood from the broadcast, Mr Burns failed to discharge his “onus of proof”. The exercise for the Tribunal is to make a judgement, as an objective matter. That exercise is not dependent on there being evidence of anything more than the conduct itself, although in this matter there is as well some evidence of the response of listeners.

Mr Price’s conduct

17 Mr Price’s conduct comprised comments he made in the period 8.09 until 9.00am, taking into consideration the manner in which he made them.

18 Some of Mr Price’s comments were clearly a statement of his opinion as to a matter of public interest. As we say below when considering what defences are available to the respondents, there is a public interest in the content of television programs and the timing of their telecast. An example of a comment Mr Price made to this effect is his saying and “ at 6.30 pm on a Sunday afternoon or Sunday evening . . . The Block will attract a lot of kids . . . and maybe their queries about ‘dad, mum what is gay?’ might be a perfect opportunity to explain it to them, it might be a perfect opportunity to explain that some people’s sexual orientation are [sic] towards their own. But do I really need that conversation late on a Sunday . . . ”. A further example is his saying “ . . . the show is on 6.30 on Sunday night. I don’t need to explain to my children what gay couples are”.

19 In further comments regarding The Block, Mr Price:

- called the showing of a male homosexual relationship in the program “overly politically correct”

- asked of the inclusion of a homosexual couple in the program “Why do they feel the need to trick it up like that?”

- said “we all know that most interior decorators are gay”

- speculated on the making of a “Disneyland version of The Block”

- on three occasions to three different people speculated on the making of “the uncut The Block”

- said that in “the uncut version of The Block . . . they could do all sorts of grubby things at about 11 o’clock at night”

- said that in the uncut version of The Block participants would be “in the renovated spa together rubbing each other down with some sort of incense and oil”

- said that in the uncut version of The Block participants “could renovate with no clothes on at all”

- stated that “these two blokes like to renovate in their undies” and referred to this as an ‘admission’ that they had made

- volunteered as a description of the show that a homosexual couple are “renovating in their undies”

- said “They’ll be the first to ‘give them the arse’ I was going to say, but flicked out of that Block

- said “Now Big Brother, it’s rating its backside off”

- answered a query “Are you well and happy?” by saying “Very well and happy apart from the gay blokes who’ve taken over The Block . . .”

- called the homosexual couple “young poofs”.

20 Mr Price’s speculation about the content of The Block “uncut” was in a context that clearly indicated that he was referring to the representation of a homosexual relationship. In that context he said that in an uncut The Block “[w]e could renovate with no clothes on at all”.

21 When saying “give them the arse” and “it’s rating its backside off” Mr Price paused and gave emphasis to “arse” and “backside”.

22 Mr Price made these comments over a period of 50 minutes. It was the only topic that he maintained as a theme of his presentation throughout that time.

23 Mr Price’s conduct ridiculed homosexual men. The reference to “grubby activities” verges on the contemptuous.

24 The ridicule was heightened by the condescending and patronising way in which Mr Price responded to the views of a listener who disagreed with him: he repeated, with emphasis, the fact that the listener was “anonymous”, his voice dropped to a mock-serious tone when quoting the listener in a way it did not when he read a supportive email, and he gave particular emphasis to words he was reading, including the word “gay”, in a way that conveyed a dismissive attitude.

25 Similarly he was dismissive of the attempts by Peter Ford to engage in debate. For example, his immediate response to Peter Ford’s observation that the homosexual couple “behaved quite well, they’re going to be good contestants, they seem like thoroughly reasonable people”, was to volunteer the possibility of an “uncut” version of The Block.

Mr Laws’s conduct

26 Mr Laws’s conduct comprised comments he made in the period of a few minutes before 9.00am, taking into consideration the manner in which he made them. As we set out in more detail below when considering whether the conduct was capable of incitement, some of what Mr Laws said was merely inquiries as to the nature and content of The Block. In further comments regarding The Block, Mr Laws:

- responding to Mr Price’s saying “they’re renovating in their undies these blokes”, said “Oh God. Working on the ballroom”

- referred to the homosexual couple as “a couple of old poofs”, and as “a couple of young poofs”

- said ‘I don’t know what’s happened to Kerry’s taste”

- said “ I think Kerry is a man of good taste. I don’t know that he’d be happy for that being on at 6.30”

- referred to the homosexual couple “doing it in their little knickers”

- suggested that showing a homosexual couple on such a show indicates a lapse in “Kerry’s taste”

- responding to Mr Price’s saying “[w]e could renovate with no clothes on at all”, said “yeah, no you’re talking”.

27 The references to “Kerry” are to Mr Kerry Packer. Mr Laws clearly implied that to show a homosexual couple painting a room is in poor taste.

28 The tone that Mr Laws adopted gave emphasis to the ridicule that was conveyed by his comments.

29 Mr Laws’s conduct ridiculed homosexual men.

30 It was submitted for the respondents that Mr Laws’s and Mr Price’s use of the word “poof” has been assumed by Mr Burns to contravene the vilification provisions of the Anti-Discrimination Act 1977. It is submitted that in fact the word does not have a derogatory connotation in the gay community and is used interchangeably with “gay” in the gay press, and that in any event a derogatory connotation is insufficient to contravene the vilification provisions.

31 The fact that a word does not have a derogatory connotation within a particular community is of little relevance to the issue of whether its use is capable of inciting ridicule in the ordinary listener. It may be that in some contexts, such as a public broadcast, its has that capability. But in this matter the conduct that is said to amount to vilification is not each comment, word or phrase, but the whole of the broadcast having regard to factors such as what was said, the way it was said, and the context in which it was said. Use by Mr Laws and Mr Price of the word ‘poofs’ is only a part of that conduct, and nothing in this matter turns on whether that word alone has a particular connotation among a particular group.

When is conduct capable of incitement?

32 It is one thing to make comments that ridicule homosexual men, which is what Mr Price and Mr Laws did. It is another thing to say those comments were likely to have incited hatred, serious contempt or severe ridicule in others. What effect was their ridicule likely to have had on the ordinary reasonable listener? Were the comments likely to have incited hatred, serious contempt or severe ridicule?

33 To “incite” does not mean only “to bring into existence”, and the test is not whether conduct could create hatred, contempt or ridicule only where it had not previously existed (see eg NSW Law Reform Commission report 92 at 7.126). To incite is to stir up or animate, and the test is whether the conduct could urge, spur on or stimulate hatred, serious contempt or severe ridicule (see eg Burns v Dye [2002] NSWADT 32 at [19]). Merely engaging in conduct that conveys hatred, or expresses serious contempt or severe ridicule, is not unlawful (see Burns v Dye at [20], [62]): there be something in the conduct and its manner or circumstances that render it capable of inciting. When, how and by whom the conduct is engaged in is as important as what the particular conduct is.

34 In Burns v Dye, for example, abusive words that were “the rantings of a drunken, possibly mentally-ill individual” did not, in those circumstances, have the capacity to incite hatred, serious contempt, or severe ridicule. In this matter, the conduct is that of people with a high profile in the community, whose job is in part to express opinion in a public forum, and invite public responses to those opinions. They are relevant circumstances in which the conduct occurred.

Meaning of ‘severe ridicule’

35 Was the ridicule that the comments were capable of inciting “severe ridicule”? First, what is meant by “severe ridicule”?

36 In the second reading debate in relation to the homosexual vilification provision the term “severe ridicule” was described as “very interesting”, and a concern was expressed that it covered “very wide territory” (Hansard, Legislative Assembly, 29 April 1993, pp1825,6). It was pointed out that the provision “does not define the term and how it is applied” (p1829), and that “[i]t could be said that those words mean what they say [and] if a prosecution [sic] occurs the courts will have to give an interpretation of the words” (p1834). The NSW Law Reform Commission has pointed out that this ‘interpretation’ approach is taken in most jurisdictions, and it “accepts that the common meanings of the terms are intended, and provide appropriate guidance to the public and to courts and tribunals” (Report 92, 1999 at 7.128).

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]).

Was Mr Price’s conduct capable of incitement?

43 What effect was Mr Price’s ridicule likely to have had on the ordinary reasonable listener?

44 At the time Mr Price had been a journalist for 30 years, a radio presenter for 15 years and a program director. He is a nationally recognised broadcaster who was broadcasting at a prime time on one of Australia’s most-listened-to radio stations. His standing as a public figure and commentator, whose business was in part to propagate his opinion, gives his comments considerable weight in the minds of ordinary listeners.

45 Those comments are the more influential for having been broadcast on radio station 2UE. Radio 2UE Sydney is widely known as a well-listened to radio station, particularly for its ‘talk back’ programs. In February 2000 the Australian Broadcasting Authority, in its report into Radio 2UE Sydney Pty Limited, said at page 1 of the Executive Summary “Talkback radio is an influential medium, and 2UE was probably the most listened-to talk back radio station in Australia during the 1990s”. We are satisfied that in June 2003 Radio 2UE Sydney was a high profile radio station, reaching a significant listening audience. Mr Price’s comments were broadcast through the influential medium of talkback radio on a very well-listened to radio station.

46 In our view the comments were capable of urging, spurring or stimulating an ordinary reasonable listener to ridicule homosexual men on the ground of their homosexuality.

47 There was evidence of how listeners were actually affected by Mr Price’s comments. Mr Burns’s evidence was not relevant in this regard. His evidence on how the conduct affected him could be relevant only if we needed to know the effect of the comments on a person who is a member of the vilified group. That issue does not arise under the vilification provisions of NSW Anti-Discrimination Act 1977 as it does under those of the Federal Race Discrimination Act 1977.

48 The recording of the broadcast provides evidence of how listeners to Mr Price reacted to his comments. Each of “Judy”, “Janet” and “Pam” telephoned Radio 2UE, and “Lisa” emailed, to say that they agreed with Mr Price’s comments. In some cases they volunteered their own comments. An anonymous listener sent an email disagreeing with Mr Price’s comments, and a regular on-air commentator, Peter Ford, expressed disagreement with Mr Price’s comments.

49 It is apparent from what they are recorded as having said that each of Judy, Janet, Pam and Lisa were spurred on or animated by Mr Price’s comments to telephone and express their views. The respondents submit that Judy and Pam were expressing views that they already held. We do not know that and cannot reasonable infer it from the material available to us.

50 When Mr Price said “Look we all know that most interior decorators are gay, but I mean can we just leave all that out and just get on with the show as it was advertised it was going to be?” Judy agreed with him, and went on herself to say “I think they were a bit overboard with all the touchy touchy”. Janet said “I agree with you also”. Pam said ‘I’m so glad you raised that issue because I was disgusted last night . . . I know they’re out there and there’s no denying it but why put it in your face? . . . I think they should also advertise the fact that it’s not going to be a straight program, that it’s going to have alternate sides to it or something like that because it just took away the whole gloss of the thing. I was just sickened by it to be quite honest.” Lisa was quoted by Mr Price as saying “I totally agree with your comments on the gay couple . . . My 11 year old son and nine year old daughter did not need to know that they like to renovate in their undies or Speedos”.

51 To the extent that the listeners were agreeing with Mr Price’s opinion that showing a male homosexual relationship on television between 6.30pm and 7.30pm on a Sunday was inappropriate, they were not expressing hatred contempt or ridicule. To the extent that the listeners were agreeing with Mr Price’s ridicule of homosexual men they too were ridiculing homosexual men. Mr Price’s own comments urged, stirred up and animated the listeners to express ridicule, even to the extent that he invited listeners to agree with him and patronised those who did not.

52 We do not know whether or to what extent the listeners were agreeing with Mr Price’s ridicule. It is not explicit in, nor can it reasonably be inferred from, the recording of what they said, and they were not available to the Tribunal to give evidence. Their recorded comments show, however, that Mr Price’s conduct was capable of urging, stirring up and animating listeners. What Mr Price says is not without effect. His conduct has the demonstrated capability of affecting people, causing them to adopt his views and to express similar views.

53 Mr Price’s exchange with Mr Laws clearly demonstrates that his ridicule was capable of inciting others to ridicule. In the course of the exchange, during which Mr Price ridicules homosexual men, Mr Laws’s attitude changes, both in what he says and the way he says it. It moves from an uninterested position to one in which he too engages in ridicule.

54 Mr Price’s answer to Mr Laws’s question “Are you well and happy?” is “Very well and happy apart from the gay blokes who’ve taken over The Block on Channel 9 at 6.30 on Sunday”. Mr Laws does not respond to Mr Price’s gratuitous reference to “gay blokes” but asks “What the hell is The Block?” In describing the program Mr Price volunteers that “one of the couples is a gay couple”, but Mr Laws ignores this and questions him further about the premise of the program. Mr Laws then confirms that “What’s upset you is that this particular couple is homosexual?’ and asks “Why has that upset you?” Mr Price then explains his view that showing a male homosexual relationship on television between 6.30pm and 7.30pm on a Sunday was inappropriate, saying he did not want to have to explain to his children at that time what a ‘gay couple’ is. Mr Laws asks Mr Price how he would explain it and Mr Price says he doesn’t know, and repeats an account Janet gave of trying to explain homosexuality to her son.

55 To this point Mr Laws appears to have been taking part in a discussion of a matter of public interest. His principal concern appears to have been to understand the way in which the program worked. Mr Laws then asks Mr Price again how he would explain homosexuality, and Mr Price, in what must be described as a non-sequitur, answers by saying “They’re renovating in their undies these blokes”.

56 At this point Mr Laws’s comments change significantly in character. He responds by saying “Oh God. Working on the ballroom”, and continues with the comments we have listed above. On listening to the recording we discern difference too in Mr Laws’s tone of voice. From having been uninterested in Mr Price’s references to the homosexual couple in the show, wanting instead to understand a show he says he had not heard of, Mr Laws turns to making comments that, in their content and tone, ridicule homosexual men.

57 The responses of the listeners, and the reaction of Mr Laws, support the view that we have come to independently. It is our view that Mr Price’s conduct was capable of inciting ridicule of homosexual men on the ground of their homosexuality. As the above account shows, it did in fact incite such ridicule. While the actual occurrence of incitement to ridicule is consistent with the view we have formed as to what an ordinary reasonable listener could have understood from the broadcast, our view is not dependent on the fact that actual incitement has been shown.

Mr Price inciting severe ridicule?

58 Mr Price’s inciting conduct took place over a 50 minutes period, on a highly rated radio station at prime listening time, by a high profile radio presenter of some influence in forming public opinion. He engaged in the conduct despite acknowledging at the same time that it was inappropriate to make such comments. He expressed some of the ridicule in conversation with listeners who telephoned the program, and invited them to agree with him.

59 Mr Price’s conduct, particularly as it was done in explicit disregard of known constraints and possible consequences, did not express or imply any limits to the ridicule. Even after he said to Mr Laws “I think that’ll do, we might move on eh?”, Mr Price continued to engage in the conduct. Mr Price’s conduct was, effectively, licence to listeners to engage in ridicule without regard to limits or boundaries, and was capable of inciting ridicule certainly to a sever degree.

60 In our view Mr Price’s conduct, though not itself severe ridicule, was capable of inciting others to more than mere mockery or derision, but to harsh or extreme mockery or derision: that is, severe ridicule. An ordinary listener, on hearing Mr Price’s comments, could have understood that they were being incited to severe ridicule of homosexual men.

61 That being so, Mr Price’s conduct was homosexual vilification within the meaning of the Anti-Discrimination Act 1977.

Was Mr Laws’s conduct capable of incitement?

62 What effect was Mr Laws’s ridicule likely to have had on the ordinary reasonable listener?

63 The persuasiveness of Mr Laws’s opinions among his audience is notorious, and we take notice of it. Mr Laws’s website tells us that in 2002 he was the highest paid broadcaster in the world, an Australian Prime Minister had called him “the broadcaster of the [20th] century”, he is “the trusted voice of dial-in democracy”, he is an Australian legend, and he is an icon inside and outside the radio industry. His comments have considerable weight in the minds of ordinary listeners. Adding to this weight is the fact that his comments were broadcast through the influential medium of talkback radio on a very well-listened to radio station.

64 It is our view that his comments were capable of inciting ridicule of homosexual men on the ground of their homosexuality.

Mr Laws inciting severe ridicule?

65 We have found that Mr Laws’s conduct itself was ridicule. It was engaged in on a highly rated radio station at prime listening time, by one of the highest profile radio presenters in Australia, now and in history. Mr Laws has considerable influence in forming public opinion. He persisted in engaging in the ridicule despite his fellow presenter saying “I think that’ll do, we might move on eh?”.

66 Backed by the authority of his views on radio, Mr Laws’s conduct suggested to the ordinary listener no limits on the degree to which the ridiculing of homosexual men was acceptable.

67 In our view Mr Laws’s conduct, though not itself severe ridicule, was capable of inciting others to more than mere mockery or derision, but to harsh or extreme mockery or derision: that is, severe ridicule. An ordinary listener, on hearing Mr Laws’s comments, could have understood that they were being incited to severe ridicule of homosexual men.

68 That being so, Mr Laws’s conduct was homosexual vilification within the meaning of the Anti-Discrimination Act 1977.

Is there a defence?

69 Even though the conduct was vilification, it will not be in breach of the Anti-Discrimination Act 1977 if it was done reasonably, and in good faith, for purposes in the public interest, such as discussion or debate about, and expositions of, issues. (s49ZT(2)(c)).

70 The respondents say that the comments were made reasonably and in good faith, for the public interest purpose of discussion or debate about the issue of telecasting homosexual relationships at a particular time and on a particular day.

Was Mr Price’s conduct in the public interest?

71 There is a public interest in the content of television programs and the timing of their telecast. That programs are rated according to their content, that public warnings accompany the telecast of some programs, and that there are restrictions on what program rating can be shown at different hours of the day, all attest to this public interest.

72 Some of Mr Price’s comments were concerned with the presentation of a male homosexual relationship on television between 6.30 and 7.30 pm on a Sunday evening, when children could or, in Mr Price’s view would, be watching. In particular he was concerned that the program would require him to have to explain homosexuality to his children at that time. To that extent Mr Price’s comments were for purposes in the public interest.

73 But those comments were only a part of what constituted Mr Price’s conduct. Also a part of his conduct were the many further comments he made, set out in paragraph 19 above. Those comments were not made for purposes of the public interest. They were made much more frequently than the comments made for public interest purposes, and characterised the whole of the conduct as conduct not done for purposes in the public interest.

Was Mr Law’s conduct in the public interest?

74 None of the comments that constitute Mr Laws conduct were concerned with public interest purposes. His inquiries regarding the content of The Block were innocuous, seeking information, and to that extent they could perhaps be characterised as discussion, and possibly in relation to a public interest matter.

75 But those comments were only a part of Mr Laws’s conduct. The greater part of his conduct were the many further comments he made, set out in paragraph 26 above. Those comments were not made for purposes of the public interest, and characterised the whole of his conduct as conduct not done for purposes in the public interest.

76 If, however, Mr Price’s and Mr Laws’s conduct can be characterised as having been debate or discussion for purposes in the public interest, the question is whether the conduct was undertaken reasonably and in good faith.

Was the conduct in good faith?

77 The respondents led no evidence that was relevant to the question of “good faith”. The people best able to give such evidence were the presenters who made the comments – Mr Price and Mr Laws. They chose not to attend the inquiry. The Tribunal cannot simply presume that a comment was made in good faith, particularly as the onus is on the respondents to prove that vilifying conduct is excepted from being unlawful (s109 Anti-Discrimination Act 1977).

78 In the absence of evidence of good faith, the respondents have failed to make out the exception (see, eg, Western Aboriginal Legal Service Limited v Jones at [149]; Jones v Toben (2002) [2002] FCA 1150 at [101]).

Was Mr Price’s conduct reasonable?

79 If Mr Price’s conduct was for purposes in the public interest, and if good faith had been made out or should be presumed, then it was nevertheless not reasonable, for the following reasons.

80 First, Mr Price’s comments, beyond the opinion he expressed as to the appropriateness of the content being shown at the time, were irrelevant to the merits of his opinion. They did not contribute to any discussion about the public interest in program content. Mr Price’s flippant response to Peter Ford’s comment, and his dismissive approach to a contrary view expressed by a listener, are indicative of this.

81 Secondly, Mr Price made these comments at the same time that he acknowledged that he would “get into very big trouble”, that he anticipated that he would “get bashed again for being anti-gay”, and that he said that he did not care that because of his comments he would be declared as one of “Sydney’s greatest homophobes”.

82 Thirdly, as we detailed above, Mr Price is a journalist, radio presenter and program director of considerable experience. He is a nationally recognised broadcaster. He was broadcasting at a prime time on one of Australia’s most-listened-to radio stations. Mr Price was broadcasting under the Commercial Radio Codes of Practice and Guidelines which, as the respondents acknowledge in their submissions, are in very similar terms to the homosexual vilification provisions of the Anti-Discrimination Act 1977.

83 Fourthly, Mr Price did not see the whole of the program; the transcript shows that he said “I watched a part of this last night. I watched part of the debut . . . ”. Nevertheless Mr Price then spoke on and off for the next 50 minutes about the program, without in any way qualifying his opinion by reference to the limited knowledge he had of the actual program content. He repeated, in a manner that ridiculed, a comment in an email from a listener concerning reference in The Block to underwear, without reference to the nature and context of what was actually said in that regard in the program.

84 Finally, the conduct is unreasonable even when assessed in light of the whole of the program content. Mr Price’s expressed concern was only that the program would result in his having to explain homosexual relationships to his children. The time given in the program to the male homosexual couple was proportionately the same as the time given to the heterosexual couples. The male homosexual couple were shown engaging in the same activities as the heterosexual couples.

85 As the account in the following paragraphs illustrates, the program contained a comparatively extensive range of sex-related images, words and conduct, not to do with homosexuality, that would reasonably cause a parent to be concerned about children’s viewing of the program, but Mr Price made no mention of such concerns. His persistent comments related only to the presence of a homosexual couple, thereby substantially misrepresenting the content of the program. In the program:

- the husband of one married couple describes meeting his wife when they were “drunk and messy”

- further that husband describes his wife as “going for it schooner for schooner with the boys”.

- lying together on a bed with his wife, that husband says “I love the engine room . . . I really enjoy our time together among the white sheets and velvet pillows”, and then rolls over on top of his wife on the bed.

- the husband of another married couple refers, with clear innuendo, to his wife’s “fixtures and fittings”.

86 The extent of material of that type as it related to the homosexual couple was that during the program one of the couple said that the other preferred to renovate while wearing “his Speedos or undies” and held up a pair of Speedos, and at the end of the program a rapid sequence of short clips from future episodes includes an image of a bottom in underpants, the context implying that the bottom is that of one of the homosexual male couple.

87 The program illustrated the Bondi Beach location of the flats by a rapid sequence of short clips that included:

- a woman’s bottom in a bikini brief

- a woman’s bottom in tight shorts

- a woman’s buttocks in a G-string

- a woman’s breasts in a bikini top

- a woman’s bikini brief, shown from the front and panning up the woman’s body.

88 Although male bodies were shown in the clips, it was as part of a general beach scene, and not in a way comparable to the images of women we have described.

89 For each of the above reasons Mr Price’s conduct, even if done in good faith and in the public interest, was not reasonable. His vilifying conduct is, therefore, not excepted from being unlawful.

Was Mr Laws’s conduct reasonable?

90 If Mr Laws’s conduct was for purposes in the public interest, and if good faith had been made out or should be presumed, then his conduct was nevertheless not reasonable.

91 Mr Laws’s comments were irrelevant to any discussion or debate on a matter in the public interest. Mr Laws did not see any of the program, and he makes clear that he knew nothing of it other than what Mr Price told him. Nevertheless he engaged in conduct that was ridicule, by reference to the program.

92 As well, as we detailed above, Mr Laws is one the most eminent broadcasters in Australia’s history. He was broadcasting at a prime time on one of Australia’s most-listened-to radio stations, under the homosexual vilification provisions of the Commercial Radio Codes of Practice and Guidelines.

93 For those reasons Mr Laws’s conduct, even if done in good faith and in the public interest, was not reasonable. His vilifying conduct is, therefore, not excepted from being unlawful.

Liability of Radio 2UE

94 Section 52 of the Anti-Discrimination Act 1977 renders Radio 2UE Sydney liable for Mr Price’s and Mr Laws’s unlawful conduct, and Radio 2UE Sydney did not argue otherwise.

95 Radio 2UE Sydney is therefore jointly and severally liable with Mr Price for his unlawful conduct, and is jointly and severally liable with Mr Laws for his unlawful conduct.

Remedy

96 Mr Burns has, as he is entitled as a person who has the relevant characteristic, complained of conduct. Mr Burns was unclear in his evidence how much of the conduct he heard between 8.09 and 9.00am, and we are satisfied that he did not hear all of it.

97 Mr Burns gave evidence that he was physically ill on hearing some of the comments made by Mr Price and Mr Laws. It is the whole of the conduct of Mr Price that constitutes vilification, and the whole of the conduct of Mr Laws that constitutes vilification. We do not expect that a person’s usual response to severe ridicule would be physical illness. Even if Mr Burns was physically ill at the time, we are not satisfied that the illness was caused by so much of the conduct of either Mr Price or Mr Laws that Mr Burns heard. We accept that he was offended and distressed to some degree by the conduct, although there is no evidence of diagnosed harm. Mr Burns claims no actual pecuniary loss resulting for the vilification.

98 The vilification was not directed to Mr Burns personally, and he felt offence as a member of the vilified group. We do not know how many, but can reasonably assume that other homosexual men were offended by the conduct. Mr Burns made clear in his evidence and in submissions that he sees his complaint as having a significant ‘public interest’ dimension.

99 In the circumstances we do not consider it appropriate to order the payment of damages by way of compensation. We agree that a complaint that concerns the public broadcast of vilifying comments by high profile presenters on a very well-listened to radio station is concerned with a matter that is in the public interest. That being so it is appropriate to order remedial conduct that reflects that public interest concern.

100 Among its powers the Tribunal is able to order a respondent to publish an apology and/or a retraction, specifying the time, form, extent and manner of publication of the apology or retraction. Mr Burns has proposed in writing certain orders to that general effect. Further the Tribunal is able to order a respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination.

101 We propose ordering an apology and/or retraction, and we would give consideration to ordering the development and implementation of an appropriate program or policy. Accordingly we reserve the question of the nature and extent of the remedy to be ordered, and invite the parties to make written submissions as to the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made.

Costs

102 Mr Burns has sought an order for his costs. There is a presumption against such an order being made, although Mr Burns has in written submissions proposed grounds that might justify the making of such an order. We reserve the question of costs, and invite the respondents to make a submission in reply to the argument already made by Mr Burns.

Orders

1. The complaint of homosexual vilification against the respondents Steve Price and Radio 2UE Sydney Pty Ltd is substantiated.

2. The complaint of homosexual vilification against the respondents John Laws and Radio 2UE Sydney Pty Ltd is substantiated.

3. The question of an appropriate remedy is reserved.

4. By 10 December 2004 the applicant will file and serve submissions on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made.

5. By 24 December 2004 the respondents will file and serve submissions in reply on the time, form, extent and manner of publication of an apology and/or retraction, and on other orders that should be made.

6. The question of costs is reserved.

7. By 24 December 2004 the respondents will file and serve submissions on costs.