Farah v Sandilands - [2021] ACAT 92

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

FARAH v SANDILANDS (Discrimination) [2021] ACAT 92

DT 32/2020
Catchwords: DISCRIMINATION – unlawful vilification – religious conviction – application to dismiss matter for lack of jurisdiction – whether material facts give rise to the ‘other than in private act’ by the respondent necessary to make out the elements of section 67A of the Discrimination Act 1991 – audience – third-party acts – whether the alleged discriminatory act occurred within the geographical reach of section 67A – extraterritoriality – conduct and result statutory provisions – test for summary dismissal – whether claim bound to fail – Tribunal found to have jurisdiction
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 23
Civil Liability Act 2002 (NSW) s 5N
Court Procedures Act 2004 s 5A
Discrimination Act 1991 s 67A
Legislation Act 2001 ss 122, 139
Human Rights Act 2004 ss 14, 16, 21
Human Rights Commission Act 2005 s 53A
Racial and Religious Tolerance Act 2001 (Vic) s 8

Cases cited:Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161
Allatt & ACT Government Health Directorate [2012] ACAT 67
Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52
Bottrill v Sunol [2017] ACAT 81
Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
Burns v Gaynor [2015] NSWCATAD 211
Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267
Burns v Sunol [2012] NSWADT 246
Catch the Fire Ministries Inc v Islamic Council of Victoria [2006] VSCA 284
Clinch v Rep [2020] ACAT 13
Clinch v Rep (No. 2) [2020] ACAT 68
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Dey v Victorian Railways Commissioners [1949] HCA 1
DLH v Nationwide News Pty Ltd (No 2) [2018] NSWCATAD 217
Dow Jones & Co Inc v Gutnick [2002] HCA 56
Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
Ex parte Iskra; Ex parte Mercantile Transport Co Pty Ltd (1962) 5 FLR 219
Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102
Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27
Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143
Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132
General Steel Industries Inc v Commissioner for Railways(NSW) [1964] HCA 69
Insight Vacations Pty Ltd trading as Insight Vacations v Young [2011] HCA 16
Jones v Trad [2013] NSWCA 389
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95
Kay’s Leasing Corporation Pty Ltd v Fletcher [1964] HCA 79
Kays Holdings Pty Ltd v Nassar [1968] 1 NSWR 497
Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173
Lipohar v R [1999] HCA 65
Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1
Margan v Manias [2015] NSWCA 388
Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] ALR 791
Momcilovic v The Queen [2011] HCA 34
Pearce v Florenca [1976] HCA 26
Re Application for Bail by Islam [2010] ACTSC 147
Seven Network Ltd v News Ltd (No 4) [2005] FCA 244
Sims v Wran [1984] 1 NSWLR 317
Spellson v George and Ors [1992] NSWCA 254
Stergiou & Ors v Citibank Savings Ltd (1998) 148 FLR 244
Sunol v Collier (No 2) [2012] NSWCA 44
Trinity Enterprises Pty Ltd v Drum Services (WA) Pty Ltd (1992) 7 WAR 587
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
West & Anor v State of New South Wales & Anor [2007] ACTSC 43

List of

Texts/Papers cited: ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT) Final Report (2015)
Stephen Colbran, et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7^th ed, 2019)
DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019)

Tribunal:Senior Member Prof. P Spender

Date of Orders:  28 September 2021
Date of Reasons for Decision:      28 September 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 32/2020
BETWEEN:
KHALIL FARAH
Applicant

AND:
KYLE SANDILANDS
Respondent

TRIBUNAL:Senior Member Prof. P Spender

DATE:28 September 2021

ORDER

The Tribunal orders that:

The application by the respondent challenging the jurisdiction of the tribunal is dismissed.
The matter is to be listed for further directions on a date to be advised by the tribunal.

………………………………..

Senior Member Prof. P Spender

REASONS FOR DECISION

Summary of decision

The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current member.
This decision concerns a complaint filed by the applicant for religious vilification under section 67A of the Discrimination Act 1991 (Discrimination Act). The respondent filed an interlocutory application on 23 February 2021 to dismiss the application on the grounds that the tribunal lacked jurisdiction to deal with the application.
The Tribunal has decided that the respondent’s interlocutory application to dismiss the application on the grounds that the tribunal lacks jurisdiction (both substantively and geographically) should be dismissed. The Tribunal has found that the challenges made by the respondent do not satisfy the Tribunal that the claim is bound to fail under the relevant tests for summary dismissal that apply under ACT law. The matter will be listed for further directions regarding the future conduct of the matter on a date to be advised by the tribunal.

Procedural background

As stated above, this decision concerns an interlocutory application filed by the respondent on 23 February 2021 seeking dismissal of the applicant’s complaint on the ground that the tribunal lacked jurisdiction.
The applicant filed a complaint alleging unlawful vilification under section 67A of the Discrimination Act with the Human Rights Commission (HRC) on 16 October 2019. The complaint was referred to ACAT on 6 July 2020 in accordance with section 53A of the Human Rights Commission Act 2005.
The applicant filed and served a document on 2 October 2020 which set out each act, fact, matter, circumstance or thing which he said amounted to unlawful discrimination under the Discrimination Act which was the subject of the complaint to the HRC and the orders sought (Applicant’s Particulars of Discrimination). Further and better particulars of the complaint were provided by the applicant during the period 18 November 2020 to 23 November 2020.
The jurisdictional objections were originally raised in the respondent’s points of response to the Applicant’s Particulars of Discrimination filed on 3 December 2020 (Points of Response). The applicant made submissions in response to the Points of Response on 25 January 2021 (Applicant’s Submissions). Witness statements were filed by the parties in the proceedings that were admitted into evidence at the hearing of the interlocutory application. On 25 January 2021 the applicant filed the witness statements of Kahlil Farah (Farah Statement)[1] and Dany El Khoury (El Khoury Statement).[2] On 22 February 2021 the respondent filed the witness statement of Duncan Campbell (Campbell Statement).[3] On 23 March 2021 subpoenas were issued to the applicant, Ms Rahme and Mr El Khoury to produce material in relation to the events described below under the heading ‘Events’ but the recipients of the subpoenas advised that there was nothing to produce.[4]
[1] Witness statement of Kahlil Farah dated 24 January 2021 – exhibit A1
[2] Witness statement of Dany El Khoury dated 24 January 2021 – exhibit A2
[3] Witness statement of Duncan Campbell dated 22 February 21 – exhibit R1
[4] Transcript of proceedings 13 April 2021, page 9
A hearing was conducted on 13 April 2021. The respondent filed further detailed submissions on the day of the hearing on 13 April 2021 which elaborated the points of response (Respondent’s Hearing Submissions). Pursuant to a timetable set at the hearing regarding the application of Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller[5] (Voller), the respondent filed submissions on 27 April 2021 and the applicant made further submissions on 11 May 2021.

Events

[5] [2020] NSWCA 102; (2020) 380 ALR 700

The applicant, Mr Farah, has resided in the ACT since 1988.[6] Mr El Khoury has resided in the ACT for about 21 years.[7] The applicant and Mr El Khoury are members of the Maronite Catholic Community. The members of this community share information about issues concerning the community by “word of mouth”, “social media chat rooms” and “social media pages”.[8]
[6] Farah Statement at [1]
[7] El Khoury Statement at [2]
[8] Farah Statement at [4]
The respondent, Mr Sandilands, is the co-host of ‘The Kyle & Jackie O Show’ breakfast program on the commercial radio station known as KIIS106.5 (Breakfast Program).[9] The Breakfast Program is produced and broadcast by the Australian Radio Network Pty Limited (ARN) and/or one of its subsidiaries. The Breakfast Program commences at 6am on each weekday, and usually concludes at approximately 10am.[10]
[9] Campbell Statement at [5]
[10] Campbell Statement at [2], [5]
The Breakfast Program is broadcast via its terrestrial signal live into Sydney. The Breakfast Program is not broadcast live into other capital cities, for reasons including ARN’s limited licence area.[11] On the relevant date, the Breakfast Program was not broadcast into the ACT via live terrestrial signal.
[11] Campbell Statement at [10]
ARN makes its programs, including the Breakfast Program, available in digital audio form as podcasts accessible from the websites of ARN’s various radio broadcast brands. It also records audio-visual film footage of the Breakfast Program and uses some of this footage for publication to the station’s related social media platforms (such as Instagram and Facebook). The respondent alleges that he does not control or get involved in the publishing of content on ARN’s websites or social media.[12]
[12] Campbell Statement at [11], [15], [18], [19]
The live segment during which Mr Sandilands made comments that are the subject of the complaint (the Segment) was broadcast on the morning of 18 September 2019 at approximately 9:22am. Mr Sandilands was at ARN’s studios in Sydney for the live broadcast.[13] A transcript of the relevant part of the Segment is reproduced below in Annexure A. Annexure A has extracted portions of the Segment where the respondent made the comments that are referred to in the Applicant’s Particulars of Discrimination and witness statements,[14] together with the context of those statements. A longer transcript of the Segment was admitted into evidence during the interlocutory proceedings.[15]
[13] Campbell Statement at [13]
[14] Farah statement and El Khoury statement
[15] Campbell Statement at [14], Annexure DC-1
On or about 3pm on 18 September 2019 the applicant heard about “Mr Sandilands’ comments” “from a group of the staff at work” who were discussing “what Mr Sandilands said on the radio”.[16]
[16] Farah Statement at [3]
At around 3pm on 18 September 2019, members of the Maronite Catholic Community began discussing in group conversations on WhatsApp what “had allegedly been said by Mr Sandilands on live radio that morning”.[17]
[17] El Khoury Statement at [3]
At around 6pm on 18 September 2019, the applicant’s wife, Ms Rahme, sent Mr El Khoury a “link by text message” to hear the words spoken by Mr Sandilands.[18]
[18] El Khoury Statement at [4]
The applicant arrived home at about 6:30pm on 18 September 2019 and learned that Ms Rahme had also learnt of “the words spoken by Mr Sandilands from members of the Maronite Catholic Community”.[19] Several of Ms Rahme’s friends had called her and “told her how horrible Mr Sandilands’ attack was on the Virgin Mary” and they “sent her the link so we can hear it ourselves”.[20]
[19] Farah statement at [5]
[20] Farah Statement at [5]
At around 7pm on 18 September 2019, the applicant and Ms Rahme “looked at Facebook together to hear the words spoken by Mr Sandilands”.[21]
[21] Farah Statement at [5]
At an unspecified time and date, a podcast which included the Segment was placed on the website of KIIS FM web site (the Podcast).
At approximately 4:30pm on 19 September 2019, audio-visual film footage from the previous day’s Breakfast Program, which included footage of the Segment (the Social Media Material) was posted onto the following social media accounts:
(a)Kyle and Jackie O Facebook.
(b)Kyle and Jackie O Instagram.
(c)KIIS1065 Instagram[22] (the Social Platforms).
[22] Campbell Statement at [16]
A number of complaints were made about the Segment on 19 September 2019 and the Social Media Material was removed from the Social Platforms at approximately 7pm on 19 September 2019.[23] The Podcast was edited to remove the Segment during the morning of 20 September 2019.[24]

Legislation

[23] Campbell Statement at [17]
[24] Campbell Statement at [17] – this paragraph states ‘20 September 2020’ but the Tribunal assumes this is a typographical error.

At the relevant time section 67A of the Discrimination Act stated as follows:
67AUnlawful vilification
(1)     It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:
(a)disability;
(b)gender identity;
(c)HIV/AIDS status;
(d)intersex status;
(e)race;
(f)religious conviction;
(g)sexuality.
Examples—other than in private
1      screening recorded material at an event that is open to the public, even if privately organised
2      writing a publicly viewable post on social media
3      speaking in an interview intended to be broadcast or published
4      actions or gestures observable by the public
5      wearing or displaying clothes, signs or flags observable by the public
Note Serious vilification is an offence under the Criminal Code, section 750. …
(2)     However, it is not unlawful to—
(a)make a fair report about an act mentioned in subsection (1); or
(b)communicate, distribute or disseminate any matter consisting of a publication that is subject to a defence of absolute privilege in a proceeding for defamation; or
(c)do an act mentioned in subsection (1) reasonably and honestly, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter. …

Particulars of discrimination alleged by the applicant

Conduct amounting to unlawful vilification

The applicant submitted that Mr Sandilands’ comments broadcast on 18 September 2019 incited hatred toward, revulsion of, serious contempt for or severe ridicule of people of the Christian faith on the ground of their religious conviction.[25]
Other than in private
[25] Applicant’s Particulars of Discrimination, page 3
The applicant asserted that it is uncontroversial that the act was done “other than in private”. Mr Sandilands’ comments were broadcast on live FM radio, and the comments were later republished on publicly viewable posts on social media during the afternoon of 19 September 2019.[26]
Incitement
[26] Applicant’s Particulars of Discrimination at [2]
The applicant pointed to the religious vilification provisions under Victorian legislation that were discussed in Catch the Fire Ministries Inc v Islamic Council of Victoria[27] (Catch the Fire) which provides guidance as to the operation of section 67A of the Discrimination Act. The provisions of both Acts follow the ‘incitement model’ and in particular that it is not necessary to prove that:
(a)The vilifier intended to incite hatred.
(b)Anyone was actually incited.[28]
[27] [2006] VSCA 284; (2006) 15 VR 207
[28] Applicant’s Particulars of Discrimination at [3]
The applicant continued:
The effect of the conduct in question should generally be measured from the perspective of the ordinary member of the class of persons to whom it was directed. The conduct must do more than merely convey hatred, serious contempt, severe ridicule or revulsion; it must have the capacity to ‘incite’ this response in others. These phrases should be given their ordinary meaning, and the conduct need produce only one of the responses.[29]
[29] Applicant’s Particulars of Discrimination at [4]
The applicant further contended that both Nettle and Neave JJA in Catch the Fire emphasised that the identity of the people who were the audience for the respondent’s conduct is significant when determining whether the conduct had the relevant effect. As stated by Nettle JA:
... a statement made about religious beliefs in the course of a talk-back radio broadcast could run foul of ... the Act while the same thing said as part of intellectual discourse within a seminary or faculty of theology would not have that effect.^.[30]
[30] [2006] VSCA 284; (2006) 15 VR 207 at [17], cited in Applicants Particulars of Discrimination at [5]
The applicant alleged that “Sandilands, throughout the broadcast of the Kyle and Jackie O program, made a number of derogatory, derisive and offensive comments directed at biblical miracles, the fidelity and honesty of the Virgin Mary, and the intelligence and gullibility of people of the Christian faith.”[31] The following table is quoted from the Applicant’s Particulars of Discrimination which alleged the following implications of the comments in the Segment.[32]
[31] Applicant’s Particulars of Discrimination at [6]
[32] Applicant’s Particulars of Discrimination at [6]

Sandilands Comment	Implication
“some other bastard parted the ocean... that’s bullshit too”	Attack on Moses as a ‘bastard’; attack on the parting of the Red Sea by Moses as ‘bullshit’
“and Jesus walked on water... because he’s a magic man”	Comparison of Christ’s mission and miracles with the analogy of “an old fake rubber thumb that used to pull off’, implying Christ was a trickster or a cheat seeking to deceive those around him.
“You might believe everything that’s written down 2000 years ago to be absolutely accurate, and good on you, you’re dumb. That’s all I’m saying. Dumb as dog-shit... if they’re your beliefs, good on you”	Direct attack on Christians as ‘dumb’ for professing a belief in the Bible and scriptures. Use of phrase ‘dumb as dog-shit’ a sign of bad faith and an attempt to mock Christians as gullible, naive and stupid. Use of sarcasm in ‘good on you’ a further put-down of Christians and an invitation to the audience to share Sandilands’ contempt for and ridicule of ‘dumb’ Christians
“Right … and the mother, the mother lied obviously … and told everyone ‘no oh I got pregnant by a magical ghost’. The dumb husband believed that bullshit story, and then run around telling everyone ‘my son is the son of God’. Bullshit. She got...someone chock-a-blocked her behind the camel shed. And’ “she lied ... and everyone believed it! For thousands of years.”	Attack on Mary, the mother of Jesus as a liar; denigration of the Immaculate Conception as founded on lies. Mary is attacked as being unfaithful, with an extremely crude, vulgar and malicious suggestion she was ‘chock-a-blocked ‘behind a camel shed’. Further reference to the naivety, gullibility and stupidity of those who profess a belief in the Immaculate Conception.
“Oh I got pregnated [sic] by a giant man in sandals”	Further attack on Mary as a liar; denigration of the Immaculate Conception

Taken collectively, said the applicant, the above comments of Mr Sandilands (among others) amount to unlawful discrimination under the Discrimination Act on the basis that they incite serious contempt and severe ridicule of Christians on the grounds of their religious conviction.[33]
[33] Applicants Particulars of Discrimination at [7]

The applicant alleged that the respondent’s comments were directed at listeners of the Kyle and Jackie O program, “one of the most listened to programs broadcast in the FM market in Australia.”[34] The applicant submitted that:
These listeners were not, by way of reference to the comments of Nettle JA, audience members in a faculty of theology, and nor were [Mr Sandilands’] derogatory comments delivered as part of any kind of intellectual discourse. His crude, crass demeanour was deployed to garner controversy, to mock Christians and Christian beliefs for the purpose of cheap humour, and to invite his audience to share in his ridicule of ‘dumb as dog-shit’ Christians.[35]
[34] Applicants Particulars of Discrimination at [8]
[35] Applicants Particulars of Discrimination at [8]
Relying on Burns v Radio 2UE Sydney Pty Ltd[36] (Burns v 2UE) the applicant asserted that the respondent’s comments were capable of inciting an ordinary reasonable listener to hold feelings of serious contempt for or severe ridicule of Christians. Burns v 2UE dealt with derogatory comments made about a homosexual couple during radio broadcasts by presenters Steve Price and John Laws. Referring to the couple who were contestants on the television program The Block, Laws and Price complained about “gay blokes” taking over the show, labelled them as a “couple of poofs” and commented “I don’t know what’s happened to Kerry’s taste” a reference to Channel 9 owner Kerry Packer. The NSW Administrative Decisions Tribunal (NSW ADT) held that the comments were capable of urging, spurring or stimulating an ordinary reasonable listener to ridicule homosexual men on the ground of their homosexuality. In Burns v Radio 2UE, the NSW ADT made the following comments:
... the conduct is that of people with a high profile in the community...
He [Price] 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.[37]
[36] [2004] NSWADT 267
[37] [2004] NSWADT 267 at [34], [44]
The applicant submitted that Mr Sandilands, similar to Price and Laws, is a nationally recognised broadcaster with significant influence. In Burns v 2UE, Price and Laws engaged in a similar form of ridicule as the respondent, seeking to mock the contestants, and by extension homosexual persons, for the purposes of humour. All three respondents in the case, being Radio 2UE Sydney, Laws and Price were found to have engaged in unlawful vilification.[38]
[38] Applicant’s Particulars of Discrimination at [11]
The Tribunal will quote from the Applicant’s Particulars of Discrimination regarding the respondent’s statements in the Segment and the potential application of section 67A.
12. Sandilands’ comments themselves constitute severe ridicule, labelling Christians as being ‘dumb as dog-shit’ and implying the Virgin Mary was a lying, adulterous woman. More importantly, however, is the fact that his comments were capable of inciting others to ‘more than mere mockery or derision, but to harsh or extreme mockery or derision: that is, severe ridicule’.[39] The nature and derisive tone of Sandilands comments, including his use of vulgar language and expressions, are capable of leading an ordinary listener to have understood that they were being incited to severe ridicule of Christians based on their religious beliefs. Sandilands’ nature and tone are also demonstrative of the unreasonableness of his behaviour, in the sense that doubts in the veracity of biblical miracles can be expressed cogently without the need for recourse to offensive language and imagery. [footnote added]
13. The underlying theme that persists in Sandilands’ comments is that Christians are naive, gullible and stupid for professing a belief in biblical miracles. Sandilands, in a derisory way, directly addresses and congratulates Christians for holding those beliefs, by stating ‘good on you’. He uses what he deems to be the implausibility of biblical miracles and the Immaculate Conception as a vehicle by which he launches an attack on the intelligence of Christians, mocking them and holding them in contempt for expressing those beliefs.[40]
[39] Citing Burns v 2UE at [60]
[40] Applicant’s Particulars of Discrimination at [12] and [13]
The applicant sought various orders in the proceedings including that the respondent:
(a)not repeat the unlawful act;
(b)make a donation to a nominated charity;
(c)provide a private apology to the applicant;
(d)pay a nominated amount by way of compensation to the applicant.[41]
[41] Applicant’s Particulars of Discrimination, page 6

The challenge to jurisdiction

The respondent’s contentions

Summary of respondent’s contentions

The respondent’s jurisdictional objections were twofold:
(a)Substantive jurisdictional objection: The respondent argued that the applicant’s complaint failed to allege any material facts giving rise to the ‘other than in private act’ by the respondent necessary to make out the elements of section 67A. Accordingly, there is no basis upon which the Tribunal can uphold the applicant’s complaint even taking it at its highest.
(b)Geographical jurisdictional objection: Even if the applicant’s complaint could be construed as extending to an ‘other than in private’ act of the respondent, the respondent did not perform that act in the ACT and his conduct is therefore beyond the geographical reach of section 67A properly construed. Accordingly, the Tribunal has no jurisdiction to determine the complaint.[42]
Respondent’s contentions: the substantive jurisdictional objection
[42] Respondent’s Hearing Submissions at [3]
The respondent asserted the following fact:
[t]he Breakfast Program is broadcast via its terrestrial signal live into Sydney only, and it is not broadcast live into any of the other capital cities, for reasons including its limited licence area.[43]
[43] Respondent’s Hearing Submissions at [10], relying on the Campbell statement at [10]
The respondent argued that the following must therefore be accepted:
a.     The only alleged conduct of the [r]espondent is the making of comments about the Virgin Mary in a live radio broadcast of the Breakfast Program on the morning of 18 September 2019.
b.     Neither the [a]pplicant nor Mr El Khoury (or apparently Ms Rahme) listened to the [r]espondent’s live radio broadcast. There is no evidence that anyone in the ACT listened to the live radio broadcast.
c.      The applicant may have ‘heard about’ the Segment from staff at work discussing it in the afternoon of 18 September 2019… Mr El Khoury may have heard about the Segment from members of the Maronite Catholic community in a WhatsApp conversation in the afternoon of 18 September 2019… Ms Rahme, was sent a link from her Maronite Catholic friends which apparently led to a Facebook post which the [a]pplicant and Ms Rahme were able to ‘look at’ to ‘hear’ the Segment. This same link, forwarded by Ms Rahme to Mr El Khoury, was also the way in which Mr El Khoury says he ‘heard’ the [r]espondent’s comments.[44]
[44] Respondent’s Hearing Submissions at [14]
The respondent contended that the live radio broadcast of the Segment in NSW and the act by which the applicant and Mr El Khoury claim to have later heard the Segment in the ACT are two independent acts, the former being the only act for which the respondent was responsible but the latter being the subject of the applicant’s complaint. The latter was described in the respondent’s submissions as a “third party act”.[45] The respondent argued that there is a distinction between the act of a radio presenter making comments on live radio (as was the case of the respondent and the Segment) and the active transmission of those comments later by someone other than the radio presenter. This was considered in the case of Jones v Trad[46] (Jones v Trad). In Jones v Trad both the relevant acts (which constituted a relevant public act for the purposes of the NSW racial vilification provision) consisted of a live radio program that both the presenter and the radio station knew would be transmitted immediately to their audience. As stated by Ward JA:
[E]ach case must be considered on its own facts. Here, Mr Jones spoke the words in question that were almost immediately broadcast to his radio audience by Harbour Radio. Such a communication is in my view a public act within s 20B(a).[47]
[45] Respondent’s Hearing Submissions at [15]
[46] [2013] NSWCA 389; (2013) 86 NSWLR 241
[47] Jones v Trad at [46]
Emmett JA noted that it was relevant to the finding of ‘public act’ in that case that the radio presenter was aware that his words would be immediately broadcast by the station. Further, this conclusion might be different if the relevant act was a subsequent or retransmitted broadcast performed at the discretion of the radio station. His Honour stated:
Mr Jones engaged in a public act in compiling and speaking the content of the Broadcast, knowing that it was to be transmitted almost immediately in the performance by Harbour Radio of its contractual obligations to him and to Belford under the Service Agreement.
The position may be different if the compiling and speaking of the content of a program were intended for subsequent transmission at the discretion of a licensed broadcaster.[48]
[48] Jones v Trad at [172]-[173]
The respondent argued that the situation in Jones v Trad was whether a distinction could be drawn between the acts of the presenter himself, Mr Jones, and the acts of the radio broadcaster, and whether these could be seen as independent acts. It was accepted in JonesvTrad that they were independent acts, but both of the respondents, i.e. both of the actors, were ‘on the hook’ for the conduct complained of there, which was the live broadcast because both of them were aware that their actions were immediately transmitted to their audiences. Here the applicant contends that he has been vilified by a separate communication from someone that we do not know the identity of. Unlike Jones v Trad we do not have all the actors in the proceedings, particularly the third-party actors.
The respondent pointed to Burns v Sunol[49] (Burns v Sunol) as authority for this proposition that the respondent’s act in the present case was not an ‘other than in public’ act. In Burns v Sunol the NSW ADT made the findings regarding 15 passages of text which were allegedly communicated to the public. In respect of the 15^th passage, which consisted of republication of part of an email composed by Mr Sunol in 2003 and appearing on a website, the NSW ADT held the following:
35. On the other hand, it is not clear from the evidence relating to publication no. 15 that any such invitation existed on a website maintained by Mr Sunol. Mr Sunol did not deny that he composed an email including the material in question, that this material was accessible on the internet on a website maintained by someone other than himself, or indeed that it was possible for internet users who had logged into his website to discover the link giving them access to the material. But we do not believe this to be enough to render Mr Sunol responsible for the ‘public act’ of communicating the material to the public by means of the internet.
36. Our overall conclusion, therefore, is that Mr Sunol was responsible, in the relevant sense, for the ‘public act’ whereby the first 14 of the 15 passages of text quoted above were communicated to the public. But he was not responsible for the publication of no.15.[50]
[49] [2012] NSWADT 246
[50] Burns v Sunol [2012] NSWADT 246 at [35]-[36]
The respondent said that the circumstances surrounding the communication of the 15^th passage of text in Burns v Sunol are analogous to the circumstances in the present case insofar as:
a. the [r]espondent … is the author of the original impugned material; and
b. the material was posted by a third party to a third-party website separate to, and without any action from, the [r]espondent.[51]
[51] Respondent’s Hearing Submissions at [21]
Therefore, argued the respondent, he was not responsible for, and had no control over or knowledge of, the publication by the third party, and therefore cannot be liable for that publication as the relevant ‘other than in private’ act for the purposes of section 67A.[52]
[52] Respondent’s Hearing Submissions at [22]
The reason, said the respondent, that it is critical to accurately identify the relevant ‘other than in private’ act is because it is essential for determining who the intended audience of the act was, which in turn determines whether the act has the necessary quality of being able to ‘incite’. This is explicitly recognised by Nettle JA in Catch the Fire, in Sunol v Collier (No 2)[53] (Sunol v Coller (No 2)) and more recently in Margan v Manias[54] where Gleeson JA stated as follows:
77. The question of whether conduct has the capacity to incite the requisite emotion is ultimately one of fact in the context in which the public act takes place. … The particular class to whom the public act is directed may be taken to be aware of various matters which contextualise the public act. … It is an assessment based upon the characteristics of the ordinary member of the particular audience to whom the public act is directed.
78. It is for this reason that the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited …[55]
[53] [2012] NSWCA 44; (2012) 260 FLR 414
[54] [2015] NSWCA 388
[55] Margan v Manias [2015] NSWCA 388 at [77]-[78]
Gleeson JA also commented that the cases emphasise the importance of the context in which a public act occurs when analysing whether multiple public acts should be treated separately or conjunctively. ‘Context’ includes temporal and geographical factors.[56]
[56] Margan v Manias [2015] NSWCA 388 at [97]
The respondent argued that there was insufficient evidence available to the Tribunal to conclude either that:
a the Third Party Act had the relevant capacity to incite; or
b the Third Party Act was done “other than in private” particularly as the Third Party Act is said to have consisted of a friend in the Maronite Catholic community forwarding a link to Ms Rahme and Ms Rahme forwarding the link via ‘text’ to miss to Mr El Khoury. Even if the evidence was sufficient to satisfy the tribunal of those elements that person is not been made respondent to the proceedings and there is nothing for the tribunal to determine as against them.[57]
Respondent’s contentions: the geographical jurisdictional objection
[57] Respondent’s Hearing Submissions at [25]-[26]
As stated above, in summary, the respondent argued that even if the applicant’s complaint could be construed as extending to an ‘other than in private’ act of the respondent, the respondent did not perform that act in the ACT and his conduct is therefore beyond the geographical reach of section 67A properly construed. Accordingly, the Tribunal has no jurisdiction to determine the complaint.[58]
[58] Respondent’s Hearing Submissions at [3]
The respondent contended that the geographical jurisdictional objection is an exercise in statutory interpretation, that is, construing whether the words of section 67A are intended to encapsulate conduct occurring outside the ACT or whether it only relates to conduct occurring inside the ACT. If the Tribunal determines that the ‘other than in private act’ complained about is the live radio broadcast by the respondent on the morning of 18 September 2019, the respondent did not perform that act in the ACT and his conduct is therefore beyond the geographical reach of s67A properly construed. The question arises as to whether section 67A has extraterritorial application sufficient to apply to conduct that occurred in NSW.[59]
[59] Respondent’s Hearing Submissions at [27]
There is a common law presumption against extraterritorial operation of statutes.[60] The respondent notes that the question of whether the presumption has been rebutted to give a provision extraterritorial operation is different from the question of whether or not a state or territory is able to legislate extraterritorially. The ability to legislate extraterritorially has been held to hinge upon the existence of a connection between the enacting state and the extraterritorial persons, things and events on which a state or territory law operates.[61] The presumption is said to be reflected in provisions of the various interpretation statutes in each State and Territory, including section 122 of the Legislation Act 2001 (Legislation Act). Being a presumption, it may be rebutted by express words or a contrary intention.[62]
[60] Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309 at 363 per O’Connor J
[61] Respondent’s Hearing Submissions at [30] citing Union Steamship Co. of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1, 14 and the discussion in DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9^th ed, 2019) (DC Pearce) at [5.12]
[62] Respondent’s Hearing Submissions at [29] citing Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] ALR 791; (1966) 115 CLR 10, 23, 30-31, 38, 43 and Legislation Act sections 5(3), 6(3)
The respondent noted that it is not doubted that the ACT Legislative Assembly has the ability to legislate extraterritorially if the requisite connection exists; but the question is rather whether it has done so in section 67A. That comes down to the question of the proper construction of section 67A according to the principles of statutory interpretation and whether there are express words or a contrary intention to rebut the presumption against extraterritoriality.
The respondent relied on the summary of the principles of statutory interpretation in the ACT set out by Murrell CJ in Legal Practitioner P1 v ACT Civil and Administrative Tribunal[63] as follows:
Principles of statutory interpretation
19. … [T]he starting point is a consideration of the text of the legislation …
20. In order to understand the meaning of statutory text it may be necessary to consider the context of the provision in question, including the legislative context and the general purpose and policy of the provision…
21. Chapter 14 of the Legislation Act … provides guidance about the interpretation of Acts, but it is not intended to be a comprehensive statement of the law of interpretation as it affects ACT Acts and it assumes that the common law presumptions operate in conjunction with the Legislation Act: s 137. Section 139 of the Legislation Act reflects the common law and requires that, when resolving an ambiguous or obscure provision of an Act, preference be given to the interpretation that would best achieve the purpose of the relevant Act.[64] [emphasis added]
[63] [2017] ACTSC 173; (2017) 322 FLR 169
[64] (2017) 322 FLR 169 at [19]-[21]
The respondent argued that section 67A is not a ‘result’ or ‘effect’ provision. Rather the provision is directed to conduct that ‘incites’ and quoted Nettle JA in Catch the Fire, who said of the term ‘incite’ in section 8 of the Racial and Religious Tolerance Act 2001 (Vic) (Racial and Religious Tolerance Act):
…incitive conduct is capable of contravening s.8 without necessarily causing hatred or serious contempt or revulsion or serious ridicule. As with the common law criminal offence of incitement, I view s.8 as directed to inchoate or preliminary conduct, whether or not it causes the kind of third party response it is calculated to encourage. In that sense, the section is prophylactic.[65]
[65] Respondent’s Hearing Submissions at [33] quoting Catch the Fire at [14] and citing Bathurst CJ in Sunol v Collier (No 2)
In this sense, said the respondent, the unlawful vilification provisions in Victoria, NSW and the ACT are not what is commonly referred to as ‘result’ provisions (or ‘result offences’ in a criminal law context). As Nettle JA described, they are directed to “inchoate or preliminary conduct”, or conduct that is anticipatory or preparatory, rather than conduct that provides an actual result. In this sense, as Nettle JA said, the provision is “prophylactic” in that it is focused on preventing or warding off conduct rather redressing its effects.[66]
[66] Respondent’s Hearing Submissions at [34]

The respondent further argued that the nature of section 67A as a conduct provision means that its focus may be distinguished from the unlawful discrimination provisions of the Discrimination Act. Unlike section 67A, the unlawful discrimination provisions are focused on results insofar as there can be no discrimination without a particular person sustaining or being proposed to sustain the unfavourable treatment (in the case of direct discrimination) or the disadvantageous effect (in the case of indirect discrimination).[67] This argument is reinforced by the structure of the Discrimination Act as a whole, which separates unlawful discrimination (contained in Part 3, with exceptions in Part 4) from other unlawful acts including vilification (contained in Part 7).[68]
[67] Respondent’s Hearing Submissions at [36]
[68] Respondent’s Hearing Submissions at [37]
Importantly, the respondent further contended that this means that unlawful vilification under section 67A is relevantly different from the tort of defamation which is directed to the results of conduct, namely the damage to the reputation of the defamed person. The respondent said that the High Court’s decision in Dow Jones & Co Inc v Gutnick[69] (Gutnick) made this abundantly clear[70] as follows:
The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputation. … But it is a tort concerned with damage to reputation and it is that damage which founds the cause of action.[71]
[69] [2002] HCA 56; (2002) 210 CLR 575
[70] Respondent’s Hearing Submissions at [40]
[71] Gutnick at [25] per Gleeson CJ, McHugh, Gummow and Hayne JJ
In relation to the application of defamation law, the respondent invited the tribunal to disregard all defamation law because that area focuses upon publications causing damage to reputation and damage to reputation is not only the result of the conduct, it is also the gist of the cause of action.[72] The respondent further relied the High Court’s comments in Gutnick about identifying the relevant place where damage to reputation occurs.[73]
[72] Gutnick at [25], [42]-[44] per Gleeson CJ, McHugh, Gummow and Hayne JJ
[73] Respondent’s Hearing Submissions at [40] citing Gutnick at [44]
However, argued the respondent, the same rationale cannot be used to dispense with a similar concern in relation to religious vilification under section 67A because the conduct under section 67A does not identify any particular person and need not cause any actual incitement. As in the current case, the conduct may refer to an entire religious group. In that sense there is no ability to “limit the scale of the problem” in the same way that exists in respect of defamation where there must be damage to the reputation of an individual. Therefore, the Tribunal should be extremely cautious about adopting concepts derived from the law of defamation to the interpretation of section 67A.[74]
[74] Respondent’s Hearing Submissions at [42]-[43]
In interpreting legislative provisions to examine the operation of the presumption against extraterritoriality, the respondent argued that the question is where the provision focuses its attention.[75] This was recognised by the High Court Insight Vacations Pty Ltd trading as Insight Vacations v Young[76] (Insight Vacations) which considered section 5N of the Civil Liability Act 2002 (NSW) (Civil Liability Act). This case is discussed in more detail below.
[75] Respondent’s Hearing Submissions at [44]
[76] [2011] HCA 16; (2011) 243 CLR 149
In this sense, said the respondent, there is no reason to conclude that the presumption against extraterritoriality must be rebutted in order for section 67A to achieve its purpose, as might be required if section 67A had been a “result provision” concerned with the effects of the alleged vilifier’s conduct. It is not a situation akin to that in Brownlie v State Pollution Control Commission[77] (Brownlie) where the release of a pollutant by a farmer in Queensland that flowed into the waters of NSW was held to breach the law of NSW notwithstanding the fact that the polluter was a resident of Queensland and had not committed an offence in that state. The Court reasoned that the NSW law extended to acts done in Queensland because the NSW law was a “result offence” and concerned with the results in NSW waters.
[77] (1992) 27 NSWLR 78
Therefore applying both InsightVacations and Brownlie and considering the text of section 67A, the respondent posed the question: what does the provision focus attention on?[78] The respondent said that the provision focusses attention on the conduct of the alleged vilifier and not on the result because the result does not have to happen. Section 67A directs attention to the quality of conduct of the alleged vilifier: where is that relevant conduct to occur? Once section 67A is read as hinged on the conduct of the alleged vilifier, there is no basis for construing the provision as applying to conduct outside of ACT (even if the effects of that conduct might extend that far).[79] Accordingly, there is no basis in the text for concluding that the presumption against extraterritoriality has been rebutted in order to extend the operation of section 67A to conduct of the alleged vilifier occurring outside the ACT.[80]
[78] Respondent’s Hearing Submissions at [44]
[79] Respondent’s Hearing Submissions at [45]
[80] Respondent’s Hearing Submissions at [48]
As regards the legislative purpose, when applying section 139 of the Legislation Act and Re Application for Bail by Islam[81] (Islam) there was no reason to limit consideration of purpose to the purpose of the Act as a whole: the purpose of “the Act” may therefore be read as referring not just to the purpose of the Act as a whole but also to the purpose of the provision itself.[82] In ascertaining the purpose of section 67A, the respondent argued that assistance may be gained from resorting to extrinsic materials which describe the mischief that the provision was concerned to address. In addressing this, the respondent took the Tribunal to the parliamentary debates that accompanied the passage of the provision, arguing that the concerns motivating the insertion of the new provision were clearly concerns to regulate the conduct of people in the ACT, and indeed to prevent people in the ACT from engaging in conduct that followed the conduct of ‘far right’ adherents that had occurred in Western Australia and NSW.[83]
[81] [2010] ACTSC 147; (2010) 244 FLR 158
[82] Respondent’s Hearing Submissions at [55]
[83] Respondent’s Hearing Submissions at [58]-[61]
Accordingly, the legislative history of the insertion of unlawful vilification into the Discrimination Act supports the narrower construction of section 67A favoured by the respondent.[84] Further, there is an added layer to consider in the ACT in light of sections 28 and 30 of the Human Rights Act 2004 (Human Rights Act). Following the steps set out by Penfold J in Islam, the respondent argued that the interpretation which has the least impact on freedom of expression is one which confines its reach to people who vilify in the ACT rather than one which extends the reach of section 67A to people who vilify anywhere.[85]
[84] Respondent’s Hearing Submissions at [62]
[85] Respondent’s Hearing Submissions at [77]
An earlier decision of ACAT in Bottrill v Sunol[86] (Bottrill No 1) is directly relevant to the present proceedings. In that case, the tribunal found that section 67A extended to acts that had occurred outside the ACT where the material was posted on a website of a NSW resident and downloaded in the ACT. Bottrill No 1 decided that a religious vilification claim by an ACT resident against a NSW resident “is within the ACT jurisdiction so long as it vilifies ACT residents”.[87]
[86] [2017] ACAT 81
[87] Bottrill No 1 at [75]
The respondent contended that aspects of the tribunal’s decision in Bottrill No 1 are erroneous. In particular, the respondent disagreed with the tribunal’s assessment of the purpose of the Discrimination Act and the reasoning that such purpose means that section 67A is primarily concerned with the result of conduct and the protection of those impacted by such result.[88]
[88] Respondent’s Hearing Submissions at [80] citing Bottrill No 1 at [53] and [72]-[73]
The respondent argued that tribunal’s analysis in Bottrill No 1 does not accord with the text of section 67A, which is clearly directed to conduct and not results, as explained above. Ultimately, said the respondent, the analysis in Bottrill No 1 gives section 67A extraterritorial operation in respect of the very thing to which the provision is directed, and which must be presumed to be within territorial limits, in the absence of any textual or purposive reason to do so, contrary to the High Court’s approach in Insight Vacations.[89]
[89] Respondent’s Hearing Submissions at [77]
The respondent argued that tribunal’s examples in Bottrill No 1, which were drawn to illustrate the correctness of its construction, are also misplaced. The tribunal stated in Bottrill No 1 as follows:
An example that illustrates the mischief being addressed is where a NSW resident in NSW stands near the border of the ACT, and yells into a loudspeaker – so that it can be heard in the ACT – vilifying remarks about classes of people that reside in the ACT or, as here, the complainant. This conduct would surely be proscribed by section 67A. The internet is the equivalent of the loudspeaker.[90]
[90] Bottrill No 1 at [74]
The respondent commented that where the provision is a ‘result provision’ (as in Brownlie), it may well be readily inferred that extraterritorial conduct is intended to be captured (and the presumption against extraterritoriality rebutted) so as to achieve the purpose of addressing the results of such conduct that occur within territorial limits. But not all provisions are ‘result provisions’ (and section 67A is not one) and that explains why not all conduct occurring on a ‘border’ will be subject to the laws of the neighbouring jurisdiction across the border.[91]
[91] Respondent’s Hearing Submissions at [86]
The tribunal in Bottrill No 1 generally accepted the construction preferred by the ACT Human Rights Commissioner (Commissioner) (intervening as amicus curiae) which concluded that section 67A extended to conduct performed outside the ACT. However, argued the respondent in the present case, the Commissioner’s approach was described in several ways which were not entirely consistent with one another.[92] Further, in Bottrill No 1, the ACT Attorney-General argued for a preferred construction of section 67A that aligns with that contended for by the respondent in this case.[93]
[92] Respondent’s Hearing Submissions at [88]
[93] Respondent’s Hearing Submissions at [94]
In any event, even if the Commissioner’s preferred approach in Bottrill No 1 were correct, as explained in the discussion of the substantive jurisdictional objection above, there is no evidence of any “facts and circumstances” in this case that would “connect” the respondent’s act (i.e. the Segment) with the ACT.[94]
[94] Respondent’s Hearing Submissions at [93]
The respondent argued that the approach taken by the NCAT Appeal Tribunal in Burns v Gaynor (Burns v Gaynor),[95] should be preferred. In that case, there was a posting in Queensland of vilification material made by the respondent about the complainant who was in NSW. The tribunal member stated:
In my opinion, there was no relevant public act by Mr Gaynor in NSW. His acts of posting material on his computer were public acts but they took place in Queensland. It was the separate act of Mr Burns himself, not of Mr Gaynor, which caused the material to be downloaded in NSW. As it happened Mr Gaynor lived in Queensland not far from the NSW border. However, if Mr Burns’ argument is correct, a person who never leaves a country which permits (or even encourages) the publication of material vilifying homosexuals and who uploads vilifying material on his computer could be held liable to pay damages under the Act to a complainant if such complainant, or someone else, downloads the material in NSW. This would be so even though the complainant was not known to the uploader and was identified only by reference to a very large class of persons to which the complainant claimed to be a member. In my opinion, such a circumstance is beyond the reach of the NSW Parliament.[96]
[95] [2015] NSWCATAD 211
[96] Burns v Gaynor at [17]
For these reasons, in the respondent’s submission, the tribunal should depart from the reasoning in Bottrill No 1 to the extent that it requires section 67A be given extraterritorial operation covering the alleged ‘other than in private act’ of the respondent occurring wholly outside the ACT.[97]
[97] Respondent’s Hearing Submissions at [95]
In summary, the respondent submitted that in the absence of:
a. the [a]pplicant alleging the requisite material facts to satisfy the elements of s[ection] 67A; and
b. any extraterritorial reach of s[ection] 67A to encompass the acts of the [r]espondent done outside the ACT,
there is no basis on which the Tribunal can uphold the [a]pplicant’s complaint and it must therefore be dismissed.[98]

The applicant’s contentions

Applicant’s contentions: written submissions
[98] Respondent’s Hearing Submissions at [96]

In his written submissions filed on 25 January 2021, the applicant made the following arguments. These arguments were elaborated during the interlocutory hearing (as discussed below) by reference to the evidence that had been filed and the inferences that the applicant argued are available in the context of the relevant standard that applies to an application for summary dismissal.
The applicant rejected the respondent’s jurisdictional objections and relied upon analogous ACAT discrimination decisions such as Bottrill No 1 and Clinch v Rep[99] (Clinch No 1) to support this position. The applicant said that several propositions put by the respondent are contrary to High Court authority in Gutnick on the issue of republication and Momcilovic v The Queen (Momcilovic)[100] regarding statutory interpretation. Regarding the interpretation of section 67A, the applicant contended that the respondent’s arguments about its purpose and the tribunal’s jurisdiction are entirely inconsistent with the decisions by ACAT to date in Bottrill No 1 and Allatt & ACT Government Health Directorate (Allatt).[101]
[99] [2020] ACAT 13
[100] [2011] HCA 34; (2011) 245 CLR 1
[101] [2012] ACAT 67, as discussed in Applicant’s Submissions dated 25 January 2021 at [26]-[39]
The applicant said that Bottrill No 1 is “apt” in the current circumstances.[102] That case decided (as stated above) that a religious vilification claim by an ACT resident against a NSW resident “is within the ACT jurisdiction so long as it vilifies ACT residents”.[103] Therefore, the tribunal decided it had jurisdiction under section 67A to the extent the applicant suffered the effect of the religious vilification in the ACT. Bottrill No 1 applies here to ground ACAT’s jurisdiction for an alleged breach of section 67A by the respondent in NSW because the applicant felt the effect of the breach in the ACT.
[102] Applicant’s Submissions dated 25 January 2021 at [3]
[103] Bottrill No 1 at [75]
The applicant also supported the statement of statutory purpose in Bottrill No 1: “to protect the persons that have the attributes that should not be vilified or be the subject of the discrimination”.[104] Further, in Clinch No 1, the tribunal decided that witness statements that show the material was accessed in the ACT was sufficient to overcome jurisdictional objections by the respondent.[105]
[104] Bottrill No 1 at [72], cited in Applicant’s Submissions dated 25 January 2021 at [4]
[105] Clinch No 1 at [23]
The applicant argued that statements had been filed by witnesses in the present case that established an “irrefutable connection of the matter with the ACT” because the witnesses heard the respondent’s words within the ACT and felt the effects of the religious vilification in the ACT, including ridicule and hatred.[106] The alleged unlawful act is constituted by the words spoken by the respondent which were reproduced in the original particulars filed by the applicant on 2 October 2020. These words are an identical account of the respondent’s words spoken on live radio as evidenced by the official transcript supplied in the respondent’s letter dated 2 December 2020. The words spoken by the respondent are thus uncontentious.[107]
[106] Applicant’s Submissions dated 25 January 2021 at [9], referring to the Farah Statement and the El Khoury Statement
[107] Applicant’s Submissions dated 25 January 2021 at [22]
In the alternative, the applicant disagreed with the proposition that a republication of the respondent’s words shifts liability away from the respondent for his unlawful act. As stated in Gutnick, a publisher may be liable for any subsequent republication of unlawful material where that is the “intended or natural and probable consequence of its acts”.[108] Further, the High Court in Gutnick approved the NSW Supreme Court’s decision in Sims v Wran (Sims)[109] on this point. In Sims Hunt J noted that the ‘prominent’ position of the defendant (as a publicly known figure) made it natural and probable that other persons would republish the unlawful material.[110] The applicant contended that Sims is apt in the current circumstances given the similarly prominent status of the respondent as a publicly known figure with a large audience and reach. It follows, argued the applicant, that the original publisher may be liable for the subsequent republications of the unlawful material, notwithstanding what form it later took (e.g. from radio to Facebook post). The liability for the unlawful act under section 67A was submitted to remain with the respondent.[111] Further, the tribunal in Bottrill No 1 also accepted this reasoning in the context of section 67A, noting the internet acts as a “loudspeaker”.[112] The words spoken by the respondent are what breached the Act and caused the effects of religious vilification among ACT residents. The republication of the respondent’s words through social media channels, including by the respondent’s employers, does not shift liability away from this unlawful act.
Applicant’s contentions: elaboration during the hearing
[108] Gutnick at [124] cited Applicant’s Submissions dated 25 January 2021 at [20]
[109] [1984] 1 NSWLR 317
[110] Gutnick at [124]
[111] Applicant’s Submissions dated 25 January 2021 at [21]
[112] Bottrill No 1 at [74] cited in Applicant’s Submissions dated 25 January 2021 at [23]
The applicant’s primary submission was that, applying the high test for summary dismissal, there is evidence before the tribunal that meets this standard at this stage and therefore the tribunal should let it go through to final hearing. The applicant should not be denied his rights to final hearing in light of there being evidence at least from which inferences are available that ground the elements of section 67A.
1 Substantive objection to jurisdiction
The applicant argued that from the moment Mr Sandilands spoke into a microphone on the morning of 18 September 2019 it was inevitable that he would incite people in the ACT. Relying on Gutnick, the applicant said that ‘inevitable’ here means that it was the natural and ordinary consequence of the act of speaking into that microphone that he would incite people in the ACT in the way described or in the way complained of. Here the natural and probable consequence of his act was that people in the ACT would hear and it transpired that it was so heard. Although the respondent argued that the microphone was somehow limited to Sydney because the radio broadcast only went out to Sydney, the contrary inference is available – inferentially he was speaking to the whole of the country – and that is what the Tribunal should rely on at this stage.
The evidence establishes that the relevant statements were republished by ARN[113] but it was heard in the ACT before and after that republication. The Campbell statement states that the programs are ordinarily made available in digital form as podcasts and other material from the websites of their various platforms.[114] The respondent must have known that dissemination of the material would happen or that it was likely or probable that it would happen because segments of his program are regularly put on social media platforms such as Instagram and Facebook.[115] It means that from the very moment he spoke into that microphone he must have known that there was a good chance it was going to go online or at least be available in the ACT. The respondent has not denied that it was his intention that it be heard in the ACT.
[113] Campbell statement at [16]
[114] Campbell statement at [11]
[115] Campbell statement at [15]

Relying on the language that was used in Bottrill No 1 and according to the evidence in the Campbell statement, the applicant asserted that the act of the respondent was as if he was standing at the border with a microphone so loud that it could be heard in California.[116] The applicant quoted the Campbell statement as follows: “Mr Sandilands is one of Australia’s best known and most successful radio personalities.”[117] The applicant noted the geographical ambit of this observation: “it says Australia, not NSW and not Sydney”.[118] Further, the applicant noted Mr Campbell had deposed that “[p]art of [the respondent’s] success is his on-air persona in which he ‘pushes the envelope’ or sometimes says outlandish things”.[119] The applicant alleges that the reason the respondent is heard all around Australia is because he engages in precisely the impugned speech or conduct that is complained of here.
[116] Campbell statement at [30]
[117] Campbell statement at [6]
[118] Transcript of proceedings 13 April 2021, page 46
[119] Campbell statement at [6]
The applicant alleged it was also the respondent’s intention to do the acts that are complained of and there is evidence before the Tribunal taken at its highest that can ground this, so the question about which particular publications were heard, what times things were put up and references to apparent third-party acts is really just a “fob” which hides the central question demanded by the legislation which is incitement.[120]
[120] Transcript of proceedings 13 April 2021, page 45
So, said the applicant, what the Tribunal is left with at this early stage, taking the inferences and evidence at their highest, is the proposition that the respondent knew that his statements were going to reach the ACT.
The applicant argued that the respondent had mischaracterised the relevance of the NSW case law to the present case because the legislation in NSW deals with public acts. This is very different to section 67A of the Discrimination Act. The NSW cases turn on factual propositions about what the acts were and where they occurred. All the NSW cases that discuss public acts are limited in their applicability. All that needs to be established in the ACT is that it was an ‘other than in private’ act. The ‘other than in private’ test is self-evidently wider than the ‘public act’ test in NSW. This widens the ambit of what may be regarded as vilification in ACT.[121] In this case, one cannot compare the acts of the respondent to someone having a spoken conversation with another person in their house. What happened here was something that was done other than in private, in circumstances where it was inevitable that it would be heard in the ACT.
[121] Transcript of proceedings 13 April 2021, page 51
The applicant argued that it is the respondent’s words that are complained of, not some reframing of them: “[t]here is no need to reframe them, they’re all themselves deeply troubling”.[122] The current state of the evidence is that the respondent’s words were published before the first time that the applicant heard them. That is a scenario that is specifically covered by section 67A. The applicant argued that the Tribunal does not need to descend into the details of the communication because the question for section 67A is did he incite people in the ACT? As stated by counsel for the applicant:
… [D]id he incite people in the ACT? No doubt about it. And as I said, it’s like he’s standing at the border with a huge microphone. There’s no need to decide what mountain it bounced off. It was loud enough to be heard in Los Angeles.[123]
[122] Transcript of proceedings 13 April 2021, page 49
[123] Transcript of proceedings 13 April 2021, page 49
To exemplify this point, the applicant referred to the respondent’s arguments about substantive jurisdiction and compared the present circumstances to the 15^th extract in Burns v Sunol where the NSW ADT found that the relevant publication was not a public act because of the circumstances of the publication. The applicant noted that that communication in that case was put online by someone on an ‘obscure’ website. In Burns v Sunol, the respondent had no control over the republication on a third-party site and no expectation of [re]publication or repetition of his statements. However, the conduct of the respondent in the present case is comparable to the interview given by the respondent in Burns v Sunol to the Newcastle Herald. That act was held by the NSW ADT to be a public act.[124] In this case, the respondent must have known that it would be republished because this is his way of communicating with the whole of Australia. And that republication had occurred in a manner and ways that were a verbatim account of what he said; the actual words were broadcast.
2 Geographical objection to jurisdiction
[124] Burns v Sunol at [27]
The applicant emphasised that the presumption of non-extraterritoriality would not be as strong with respect to interstate matters, as opposed to international matters. Regarding the respondent’s arguments that section 67A is a conduct provision, the applicant argued that the facts in the present case cover both conduct and effects: if the respondent was always going to speak across Australia and the communication is always going to be heard, then the conduct is inciting in the ACT. So one has both the conduct and the result or effects.
Regarding the application of Bottrill No 1, the applicant argued that the present Tribunal should not lightly depart from the decision in Bottrill No 1 because it could not be satisfied that it is plainly wrong. Bottrill No 1 was thoroughly argued and involved interveners including the Attorney-General and the Commissioner. Further, the applicant recognises the need for an ACT connection, but this may be established in multiple ways. One way is the questionnaire administered by the HRC.[125] Another way may be that it is a natural and ordinary consequence of inciting conduct in the ACT that occurs due to the act of speaking in NSW. However, as stated in Bottrill No 1, this may not address all the ways that there is an ACT connection.[126]
[125] Discussed in Bottrill No 1 at [68]
[126] Bottrill No 1 at [68]
The applicant argued that one can see a statement in Bottrill No 1 that the clear statutory purpose is to protect persons that have the relevant attributes[127] and those persons are ACT residents.[128] It is not appropriate to rely on the parliamentary debates to establish a jurisdictional limitation in section 67A as the respondent has done here. It is one thing to rely on a second reading speech if there is a major ambiguity but it is unsafe to rely on the parliamentary debates: it amounts to guesswork about Parliament’s intention.
[127] Bottrill No 1 at [72]
[128] Bottrill No 1 at [73]
For both the substantive and the geographical objections, the applicant pointed to the evidence that had been led by the respondent, particularly the Campbell statement, about the respondent’s audience. The applicant invited the Tribunal to distinguish between what is described as the ‘audience’ in that evidence[129] and the people that the respondent was seeking to communicate with. As stated above, the applicant said that the respondent’s success as a persona involves pushing the envelope and saying outlandish things that are not politically correct. In doing that, he is communicating with people beyond his ‘audience’. There is a danger in focussing on the idea of the audience that is set out in the Campbell statement. In the applicant’s submission, the idea that the respondent thought he was only speaking to some defined number of people is an absurdity. The contrary inference is available and that is what the Tribunal should rely on at this stage.
[129] Transcript of proceedings 13 April 2021, page 55; Campbell statement at [9]
The Tribunal should not decide at this stage that the audience definitively did not include people in the ACT, because there is an available inference in favour of the applicant, and there is evidence that supports this inference. There may be further examination of the facts in the final hearing for example, by cross-examination. But at this stage, the utility of the evidence in support of the applicant’s case is clear.

Consideration

The general requirements that must be established by the respondent for summary dismissal

President Neate expounded the principles relevant to an interlocutory application of this kind, that is, an application for summary dismissal, in Errington & Anor v ACT Planning and Land Authority (Errington).[130]
[130] [2019] ACAT 47
In Errington the President stated:[131]
The tribunal should not lightly strike out any application. Counsel for the ACT Planning and Land Authority … acknowledged that his client accepted the high onus and that orders of this kind are made sparingly. He referred the tribunal to the judgments of the High Court of Australia in General Steel Industries Inc v Commissioner for Railways (NSW)[132] (General Steel) and the ACT Supreme Court in Galovac Pty Ltd v Australian Capital Territory[133] (Galovac).
[131] [2019] ACAT 47 at [14]
[132] [1964] HCA 69; (1964) 112 CLR 125
[133] [2010] ACTSC 132
Jagot J stated the relevant principles succinctly in Galovac as follows:
(1) The party seeking summary judgment faces a “very high threshold” (Financial Integrity Group Pty Limited v Scott Farmer & Anor [2009] ACTSC 143 at 12). [Financial Integrity]
(2)     The lack of a cause of action must be “clearly demonstrated” (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129).
(3)     The procedure calls for “exceptional caution” (General Steel at 129).
(4)     The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a “real question” to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91). [Dey]
(5)     Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686; [2005] FCA 244 at [14] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965).[134]
(6) The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West & Anor v State of New South Wales & Anor [2007] ACTSC 43 at [9]). [West]
(7)     The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).[135]
[134] (2005) 214 ALR 686; [2005] FCA 244 at [14] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965
[135] Galovac at [5]
This may be described as the ‘traditional approach’ to the summary jurisdiction where the court finds that actions and defences should not be permitted in the ordinary way because it is apparent that they must fail.[136] The present Tribunal notes criteria 1 to 5 of Jagot J’s principles, in particular the very high threshold that must be achieved by the applicant for summary dismissal. Further statements in the case law emphasise the need for “exceptional caution” and there must be no real question to be tried in the sense that the claim is bound to fail. In relation to criteria 1 to 5, the Tribunal extracts a portion of Refshauge J’s judgment in Financial Integrity which emphasises these elements:
12. The principles on which such applications are determined are generally not in doubt… The test to be applied was expressed by Dixon J in Dey v Victorian Railways Commissioners… as being reserved for “exercise as to actions that are absolutely hopeless”.
13. In General Steel Industries Inc v Commissioner for Railways (NSW), Barwick CJ said (at 129-30) in a passage since quoted many times:
… It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action … is clearly demonstrated. The test to be applied has been variously expressed; “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”; “discloses a case which the Court is satisfied cannot succeed”; “under no possibility can there be a good cause of action”; “be manifest that to allow them” (the pleadings) “to stand would involve useless expense”.
At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or “so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument”; “so as to speak apparent at a glance”. …
… Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: “A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court … in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiffs so clearly untenable that it cannot possibly succeed. [footnotes omitted]^[137]
[136] Stephen Colbran, et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7^th ed, 2019) [13.4.2]
[137] Financial Integrity at [12]-[13]
Regarding the procedural aspects of this application, the Tribunal notes criterion 6 of Galovac, where Jagot J stated that the application is to be assessed on the assumption that every fact pleaded by the plaintiff is true. In this respect, the Tribunal quotes from West as follows:
In an application to strike out a pleading on the ground that it discloses no reasonable cause of action, it is not appropriate to consider at all the strength of the evidence that may be presented at any future trial. The application is to be dealt with on the assumption that every fact pleaded by the plaintiffs is true (and capable at the end of the day of being supported by credible and admissible evidence), and the Court should only strike out the pleading if it is bound to fail even if all the allegations are proved. Thus, it is no part of this proceeding to determine the strength of the evidence or whether the allegations made in the plaintiffs’ statement of claim are true and able to be proved.[138]
[138] West at [9] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1; [1991] 4 All ER 961 at 965
The Tribunal notes that the necessity for argument, even extensive argument, is no bar and Refshauge J in Financial Integrity commented that arguments of law might be raised in applications for summary dismissal.[139] However, the role of the decision-maker in an application for summary dismissal is carefully delineated. Traditionally the courts relied upon the pleadings filed in the proceedings, supplemented by affidavits.[140] This enabled the court to address the substance of the claim and not the mere expression of it.[141] However, as Refshauge J warns in Financial Integrity the use of affidavits “is not designed to encourage, or perhaps even permit, the court to adjudicate on matters of fact”.[142] His Honour noted:
The rules themselves do not permit the deponents of affidavits to be cross-examined without leave[143] and such leave will not readily be granted: Trinity Enterprises Pty Ltd v Drum Services (WA) Pty Ltd.[144] No deponent of any affidavit received by me in this application was cross-examined.[145] [footnotes added]
[139] Financial Integrity at [20]
[140] Financial Integrity [16]
[141] Financial Integrity at [15] citing Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 (at 536);
Stergiou & Ors v Citibank Savings Ltd (1998) 148 FLR 244 (at 249).
[142] Financial Integrity at [19]
[143] Referring to rule 1149(4) of the Court Procedures Rules 2006
[144] (1992) 7 WAR 587
[145] Financial Integrity at [19]
The reason for this approach is that it is inappropriate to proceed to summary dismissal where there is a conflict on matters of fact.[146] Doyle J of the Supreme Court of South Australia in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd[147] (Adelaide Brighton) recently explained that the exercise of the power requires a “practical assessment”[148] and that the court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based.[149] His Honour differentiated between the exercise of the Court’s power to strike out and summarily dismiss, noting that the:
difference between the two mechanisms for challenging an applicant’s claim lies in the nature and focus of the challenge. The power to strike out … is directed to the applicant’s Claim or pleading … whereas the power to dismiss is directed to the applicant’s action … The focus of the former is … upon the articulation of the applicant’s case in the relevant document, usually a pleading. And the focus of the latter is upon the applicants case itself.[150]
[146] Financial Integrity at [19] citing Kays Holdings Pty Ltd v Nassar [1968] 1 NSWR 497; (1967) 69 SR (NSW) 231 at 242 per Sugerman JA (with whom Jacobs JA agreed); Spellson v George and Ors [1992] NSWCA 254; (1992) 26 NSWLR 666 at 678
[147] [2020] SASC 161; (2020) 137 SASR 117
[148] Adelaide Brighton at [59]
[149] Adelaide Brighton at [60]
[150] Adelaide Brighton at [66]
Connolly J in West commented that the cautious ‘traditional approach’ to summary judgment is consistent with the statutory recognition of the right to fair trial in section 21 of the Human Rights Act, notwithstanding the new approach to case management and the overriding purpose of achieving a just resolution of disputes as quickly, inexpensively and efficiently as possible which is now set out in section 5A of the Court Procedures Act 2004 and section 7 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).
As stated by Connolly J in West:
It seems to me that the plaintiffs’ asserted claim … is not a claim which can be said to be unreasonable or unarguable. There is no binding High Court authority either way, but that of itself clearly should not preclude the matter going to trial. Indeed, the common law can only develop by way of novel cases going to trial and eventual appellate determination.[151]
[151] West at [31]
The approach taken by the courts to summary dismissal must necessarily be adapted to the procedural context of the tribunal. Accepting that ACT law, as expressed by Errington, Galovac and Financial Integrity, maintains the traditional approach to summary dismissal,[152] the Tribunal’s task in determining the interlocutory application is to assess whether there is no real question to be tried in the sense that the claim is bound to fail taking into the material provided by both parties at this stage of the proceedings on the assumption that every fact ‘pleaded’ by the applicant is true. This is discussed in more detail below.

What must be established by the applicant to show a breach of section 67A?

[152] Compare this approach to the ‘reasonable’ and ‘no real prospect of success’ approaches adopted in other Australian jurisdictions: Stephen Colbran, et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7^th ed, 2019) [13.4.2]-[13.4.5].

The applicant argued that it is erroneous to characterise section 67A exclusively as a conduct provision. If the respondent speaks across Australia and the communication is heard in the ACT, and it is alleged to incite, then the conduct incites in the ACT. So even if examined from a results perspective, it is the same thing, in the fact of the result. Further, if that conduct was always going to be heard in the ACT, the presumption is not as strong because it is an interstate presumption.
Further, the applicant argued that the respondent’s submissions set up a false dichotomy between conduct and results provisions as well as the law of defamation and unlawful vilification that draws attention away from the question that is being asked by section 67A. The answer is informed by Gutnick and Voller in the sense that liability extends to a person who has acted notwithstanding that others have participated in the publication. The respondent engaged in an act which affected people in the ACT. It was the natural and probable consequence that it would be heard in the ACT.[178]
[178] Applicant’s further submissions dated 11 May 2021 at [3]-[4]
The Tribunal accepts the arguments made by the respondent that section 67A may differ from ‘result offences’ such as section 16 of the Clean Waters Act 1970 (NSW), which was considered by the NSW Court of Appeal in Brownlie. The purpose of that provision was to prevent the occurrence of pollution in NSW, so that the interpretation of and power in the NSW statute applied to acts or omissions outside NSW provided they had relevant results in NSW waters.[179] As stated by Gleeson CJ:
In my view the answer to the arguments advanced on behalf of the appellant lies in the consideration that the offences created by s 16(1) and s 16(3) of the Clean Waters Act of New South Wales are result offences, and that the purpose of the legislation is to prevent the occurrence in New South Wales of a certain consequence, that is to say, pollution of New South Wales. That being so, there is no difficulty about the conclusion, as a matter of interpretation and of power, that the New South Wales legislation applies…[180]
[179] Brownlie, pages 83, 87
[180] Brownlie, page 87 per Gleeson CJ
But there is significant question whether section 67A can be characterised exclusively as a ‘conduct provision’ as argued by the respondent. The respondent pointed to the High Court judgment in Insight Vacations as an example of the construction of a statutory provision (section 5N Civil Liability Act)) that examined the focus of the statutory provision and supported the present respondent’s interpretation of section 67A. In InsightVacations the High Court found that section 5N applied to contracts (wherever made and by whatever law governed) for the supply of recreational services in NSW. When considering the extraterritorial operation of section 5N, the High Court asked: what geographical limitation is there to the operation of the Civil Liability Act? The Court stated that the general approach is as follows:
As Kitto J pointed out in [Kay’s Leasing Corporation Pty Ltd v Fletcher[181]], it is necessary to reconcile the generality of the language used in a provision like s 5N with the geographical limitation to which the legislative power of a State parliament is subject. And that reconciliation must be undertaken upon a consideration of the context and the subject matter of the Act in question.[182]
[181] [1964] HCA 79; (1964) 116 CLR 124 at 142
[182] Insight Vacations at [29]
In answering this question, the High Court interpreted several provisions of the Civil Liability Act to determine the statutory context of section 5N.[183] The Court stated:
Reading s 5N(1) as hinging on the place of performance of the contract best gives effect to the purposes and text of the provision when it is read in its statutory context.[184]
[183] Particularly Div 5 of Pt 1A, Insight Vacations at [33]-[36]
[184] Insight Vacations at [36]
In Insight Vacations, the High Court found that section 5N of the Civil Liability Act did not apply to contracts for the supply of recreational services to be performed wholly outside NSW. However, with respect, the Tribunal does not consider that InsightVacations assists the interpretation of section 67A in deciding whether the presumption against extraterritoriality is rebutted. First, InsightVacations says nothing about the respondent’s theory that section 67A is conduct-based. Second, InsightVacations is a case where the relevant provisions contemplated place. So, to repeat the quote above, reading section 5N as hinging on the place of performance of the contract best gave effect to the purpose and text of the provision when it is read in its statutory context. That is not the case here.[185] InsightVacations is a valuable case for exploring the context of a statutory provision to assist in interpreting whether a geographical limitation should apply to a provision. However, Part 7 of the Discrimination Act does not have comparable contextual provisions such as those contained in Division 5 of Part 1A of the Civil Liability Act. In fact, some of the arguments made by the respondent in the present case cut against that interpretation especially the argument about the disparate purposes of provisions of the Discrimination Act; these arguments are mentioned above and addressed below. It may be that the purpose of the Discrimination Act is more complex than the Civil Liability Act when assessing questions of geographical limitation.
[185] Insight Vacations at [35]
The argument about conduct and results provisions is very interesting but it is hard to conceptualise a provision that is purely prophylactic or conduct-focused when standing is conferred upon someone to make a claim based on conduct that is alleged to breach the provision. Further, as argued by the applicant in the present case, we have both conduct and effect. Certainly, where a procedure is available to someone to make a claim based on unlawful conduct there may be some engagement with the effects or results of the conduct. For example, Nettle JA recognised the ‘results’ of acts of vilification in Catch the Fire:
Evidently, there can be no incitement in the absence of an audience. It is not a contravention of s.8 to utter exhortations to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience[186] [footnotes omitted]
[186] Catch the Fire at [16]
The tribunal made similar comments in Bottrill No 1[187] and characterised the provision as “results focussed”.[188] The Tribunal notes that the Attorney-General in Bottrill No 1 characterised section 67A as a results provision so it is an issue upon which reasonable minds differ.[189]
[187] Bottrill No 1 at [75]: ‘The Act must be taken to include the existence of a potential incitement and to proscribe conduct (not in private) where it becomes known.’
[188] Bottrill No 1 at [53]
[189] Attorney-General’s submission in Bottrill No 1 dated 18 August 2017 at [61]
The Tribunal rejects the respondent’s submissions that section 67A is exclusively conduct-based and that the law of defamation has no relevance to vilification proceedings. On the latter point, one reason why defamation law is being used analogically for vilification cases,[190] is because it analyses communications and considers some of the questions that are ventilated in the current case such as republication and the intended audience. Given that this law is in a state of development[191] it would be inappropriate for the Tribunal to order summary dismissal on the basis of a proposition that section 67A is exclusively conduct-based and defamation law is results-based or effects-based. The relationship between the two bodies of law is nuanced and evolving.[192]
The general interpretation of section 67A and the Discrimination Act
[190] See Bottrill No 1; Bottrill (No 2); Clinch No 1; Clinch No 2; Catch the Fire at [15]
[191] West at [31]
[192] The Tribunal had the benefit of the parties’ submissions about the New South Wales Court of Appeal judgment in Voller and the High Court upheld that decision in Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021). It has not been necessary to discuss the High Court’s judgment in these reasons.
The respondent further argued that a preferable interpretation of section 67A involves recognising its exceptional nature within the ambit of the Discrimination Act. The respondent also made arguments about the conventional statutory and human rights interpretation of the provision which led to the conclusion that section 67A was intended to only operate to the acts of the alleged vilifier that occur within the ACT.
As stated above, the respondent relied on extracts from Hansard of the parliamentary debates in the Legislative Assembly that allegedly reveal that the concerns motivating the insertion of section 67A were concerns to regulate the conduct of people in the ACT, in particular to prevent people in the ACT from engaging in conduct that followed the conduct of ‘far right’ adherents that had occurred in Western Australia and NSW.[193]
[193] Respondent’s Hearing Submissions at [58] citing Hansard 28 November 1991, pages 5209-14
The Tribunal notes the arguments made by the applicant about the caution that should be exercised regarding the use of parliamentary debates as extrinsic material to interpret statutory provisions. As stated by the applicant, this material is less probative than a Second Reading speech in gleaning the legislative intention.[194] As regards the application of the Human Rights Act that is raised in this case, in particular the right to freedom of expression[195] and the right to freedom of thought, conscience, religion and belief,[196] the Tribunal observes that both parties put forward interpretations of section 67A involving human rights cases such as Re Islam, Allatt and Momcilovic but arrived at opposite conclusions as to whether or not the tribunal has jurisdiction.[197] Given the complexity of the intersecting rights that are in play in this case and their application both to section 67A and the existing case law this is not something that should be determined on an application for summary dismissal.
Application of Bottrill No 1
[194] Transcript of proceedings 13 April 2021, page 52
[195] Human Rights Act section 16
[196] Human Rights Act section 14
[197] Respondent’s Hearing Submissions at [66]-[78]; Applicant’s Submissions dated 25 January 2021 at [35]-[39]
The next issue concerns the application of Bottrill No 1 where a Senior Member of ACAT held that there could be unlawful conduct where potential incitees can read the posts which allegedly incite hatred etc. under section 67A. In Bottrill No 1, the complainant, David Bottrill, was an ACT resident and his complaint was against John Sunol who was a resident of New South Wales. The tribunal held the HRC and the tribunal had jurisdiction because although the conduct of uploading material took place in NSW, it had an effect in the ACT, and there was a clear statutory purpose to protect persons that have attributes specified, and those persons are ACT persons.[198]
[198] Bottrill No 1 at [68]-[76]
The applicant urged the present Tribunal to follow Bottrill No 1 and argued that the Tribunal should only decline to follow it if it considered that Bottrill No 1 is plainly wrong.[199] The respondent urged the Tribunal to decline to follow Bottrill No 1 because, inter alia, the tribunal in that case had not differentiated between the general provisions of the Discrimination Act dealing with protected attributes and section 67A. The respondent also challenged the correctness of some of the examples that were given by the tribunal in Bottrill No 1, for instance the statement by the Senior Member about whether the ‘mischief’ that is contemplated by section 67A addresses conduct that occurs on the border where someone yells into a loudspeaker that projects into the ACT so it can be heard in the ACT.[200]
[199] Applicant’s Submissions dated 25 January 2021 at [19]
[200] Bottrill No 1 at [74]
By contrast, the applicant agreed with the approach in Bottrill No 1, particularly the tribunal’s conclusion that the clear purpose of the Discrimination Act is to protect ACT residents with the identified attributes.[201]
[201] Bottrill No 1 at [76] cited in Applicant’s Submissions dated 25 January 2021 at [14]
The Tribunal is not persuaded that it should not follow Bottrill No 1, given the similarity of the facts of that case to the material facts in the present case taken at their highest and applying available inferences. The reasoning in Bottrill No 1 is sound and based on thorough submissions made by the parties, interveners and amici including the Attorney-General and the Commissioner. The Tribunal notes the arguments made by the respondent in the present case that the Attorney’s submission was not followed by the tribunal in Bottrill No 1 but it was given due consideration.[202] The decision is also useful as authority for the connection that might need to be established if the presumption against extraterritoriality is rebutted,[203] although Pearce tells us that the requirement for a relevant connection has been liberally applied and even a remote and general connection may suffice.[204] In Bottrill No 1 the tribunal considered Burnsv Gaynor but did not follow that decision.[205]
[202] Bottrill No 1 at [19]-[45]
[203] See for example, Bottrill No 1, Annexure A: HRC supplementary submissions at [9]
[204] DC Pearce at 5.12 citing Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55; (1988) 166 CLR 1; 82 ALR 43, generally, and Lipohar v R [1999] HCA 65; (1999) 200 CLR 485; 168 ALR 8 at [126]
[205] Bottrill No 1 at [68] and [71]
However, for the current application the question is not whether or not the Tribunal ought to follow Bottril No 1. Rather, the question is whether the arguments made by the applicant (and rejected by the respondent) that the presumption against extraterritoriality may be rebutted are bound to fail. The Tribunal is not persuaded that these arguments are bound to fail. The Tribunal therefore rejects the respondent’s geographical jurisdictional objection.
Conclusion on the geographical objection to jurisdiction
Again, the Tribunal notes the need for exceptional caution that is invoked in the case law applicable to summary dismissal and concludes that the applicant’s arguments about the geographical jurisdiction of the tribunal are not bound to fail.

Conclusion

Given that the Tribunal has rejected both the respondent’s substantive jurisdictional objection and its geographical jurisdictional objection, the respondent’s application for summary dismissal is dismissed. As stated by Connolly J in West:
These are all arguments which, it seems to me, should be made after a hearing and when the facts are established. This decision should not be taken to mean that I have formed a view, one way or another, as to whether the plaintiffs’ claim will succeed. All that I have decided is that the plaintiffs’ claim is not one that is bound to fail and that the plaintiffs’ case is arguable.[206]
Next steps
[206] West at [34]
The matter is to be listed for further directions. During the hearing of this application the respondent argued that no further evidence could be led by the parties because directions had been made about the filing of evidence, leading to the conclusion that the evidence filed to date represents all evidence that may be relied on by the parties both in respect of the interim application and the substantive complaint.[207] On this point, it should be observed that the tribunal has a broad discretion to determine appropriate procedures[208] and the further conduct of the matter, including questions of evidence, is an issue that is to be decided by the tribunal, in consultation with the parties.
[207] Respondent’s Hearing Submissions at [5]
[208] ACAT Act section 23

………………………………..

Senior Member Prof. P Spender

Date(s) of hearing	13 April 2021
Counsel for the Applicant:	Mr E Kerkyasharian
Solicitors for the Applicant:	Ms Rademeyer, Mitry Lawyers
Counsel for the Respondent:	Ms P Bindon
Solicitors for the Respondent:	Mr S Trew, Ms M Cant and Mr J Kim, Holding Redlich

ANNEXURE A

Transcript of Segment from Campbell Statement dated 22 February 2021, Annexure DC-1[209]
[209] Campbell Statement, Annexure DC 1, pages 3-7

18 September 2019 at approximately 9.22 am
Speaker 2:
That’s a lot.40 hours is a long time to not eat.
Kyle:
There’s always giving up something for something. The Muslims are going to stop eating for something or other. And then the Christians, they’re doing Lent so they can’t do the... I say the ultimate sacrifice, and l’ve always said this, is I give up lent for lent. The ultimate sacrifice. Where l’m giving up the whole process of lent and changing nothing about what I do every day. The ultimate sacrifice.
Speaker 2:
That is the ultimate sacrifice. How do you do it? All hail Kyle.
Kyle:
lf you believe in Jesus, for example, I know a lot of you don’t and that’s fine, me neither, but l will in this case because he comes up good in the argument. lf you believe Jesus died for us to live happily, why are we fasting? That’s not what he wanted. He died in vain if that’s the case.
Speaker 2:
It’s to maybe experience a little bit of what he went through, is it?
Kyle:
I don’t know.
Speaker 2:
Don’t know, myself. Not that religious.
Kyle:
Don’t even know the story well enough to actually even comment.
Speaker 2:
Me either. You brought it up though.
Kyle:
Yeah. For a while, I thought Mary was his girlfriend but apparently was the mother.
Speaker 2:
Yeah, I got confused for a while there too, Kyle.
Kyle:
There was one Mary that was a whore, they said. ls that the mother? No, the mother couldn’t be the whore cause she-
Peter:
That was Magdalene, Mary Magdalene.
Speaker 2:
Mary Magdalene.
Kyle:
Oh, so everyone knows an escort. So, even Jesus knew a whore.
Peter:
Yeah, she was a prossy.
Kyle:
Right, and the mother lied obviously and told everyone, “No, I got pregnant by a magical ghost.” The damn husband believed that bullshit story and then run around and telling everyone “My son is the son of God.” Bullshit. Someone chockablocked her behind the camel shed, And she lied and everyone believed her for thousands of years.
Speaker 2;
Yeah, well it’s never happened since, has it?
Kyle:
No, not once.
Speaker 2:
The immaculate conception, that has never happened.
Speaker 3:
Everyone stuck with the lie long enough.
Kyle:
Now, l’m calling B.S. on the immaculate conception. The rest came unpaved, yeah.
Speaker 3:
[crosstalk 00:04:23].
Kyle:
Do you believe that? Do you believe that happened? I think l’m calling B.S. on it. And I don’t mean to cast ... But if you believe what you believe in, but think, “Probably full of shit,” huh?
Speaker 2:
Well, yeah, you do have to question it.
Kyle:
lf you showed up here with a big belly and said, “Oh, I got impregnated by a giant man in sandals.” I would say bullshit. You been stepping out. How long would you run with it for? You could keep the kid’s hair long, make him grow a beard, all that stuff.
Kyle:
l’ll just say, it’s a lot of magic going on back in the day and there’s no magic now. What is Criss Angel now the son of God because he can walk through-
Speaker 2:
Yeah, well he could try and get away with that if he wanted to.
Kyle:
And would no one believe him. They’d say, “Bullshit, you work in Vegas, you’re not the son of God.”

Speaker 2:
“You’re just a magician.”
Kyle;
“Yeah, you’re just the magic man.” I believe Jesus was the first Criss Angel.
Speaker 2:
What a bold statement.
Kyle:
That’s what I believe.
Speaker 2:
So, you believe he was the first great magician?
Kyle:
Absolutely. He was.
Speaker 3:
He could die and then do the trick, here he is back to life.
Kyle:
Yeah, the old disappearing, some other bastard parted some ocean.
Speaker 2:
Moses.
Kyle:
That’s bullshit too.
Speaker 2:
And Jesus walked on water. How’d he do that, hey?
Kyle:
Well, because he’s a magic man. l’m telling you if I had my dad’s old fake rubber thumb that he used to pull off and I went back to those times, I would have been the one that everyone’s hailing now. “Oh, the great one that could pull his thumb off.” You know what I mean?
Speaker 2:
Yeah, l know the trick, l do. lt’s a child’s trick, really. It doesn’t even look that believable, but hey, seems like anything was accepted back in those days.
Kyle;
Oh, back in those days, yeah. lt’s all lies. Well, that’s what l think.
Speaker 2:
That’s your opinion.
Kyle:
You might believe everything that’s written down 2000 years ago to be absolutely accurate and good on you, you’re dumb. That’s all I’m saying. Dumb as dog shit. But anyway...
Speaker 2:
Wow.
Kyle:
Well it’s true.
Peter:
But if they’re your beliefs.
Kyle:
But if they’re your beliefs, good on you.
Speaker 2:
We respect that. Yes, yes.