Jones v Trad

[2013] NSWCA 389

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jones v Trad [2013] NSWCA 389

Hearing dates:

5 August 2013

Decision date:

20 November 2013

Before:

Ward JA at [1]
Emmett JA at [148]
Gleeson JA at [175]

Decision:

1. Appeal allowed.

2. Order 1 made by the Appeal Panel on 20 October 2012 dismissing the appeal by the appellants from the Tribunal's decision in relation to the Schedule A broadcast be set aside.

3. In lieu, uphold the appeal by each of the appellants from the Tribunal's decision in relation to the Schedule A broadcast; set aside that decision and remit the complaints made against each of the appellants in relation to the Schedule A broadcast to the Tribunal for determination in accordance with law.

4. Order the respondent to repay the sum of $10,000.

5. Direct the parties to file any brief written submission in relation to costs (and as to whether any part of the Court's reasons should be redacted on publication) within seven days, with a view to those submissions being dealt with on the papers.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

STATUTES - acts of parliament - interpretation - Anti-Discrimination Act 1977
s 20C - person who engaged in the 'public act' in context of a radio broadcast - whether error of law in failing to consider applicability of s 20C(2) separately in case of the radio station and radio presenter - whether error in consideration of capacity to 'incite' - whether race must be the sole or dominant ground for the incitement of the requisite emotion

ADMINISTRATIVE LAW - whether the Tribunal had power to order a change in policies that related to employees of the radio station that were not directly or indirectly involved in the conduct the subject of the dispute

APPEAL AND NEW TRIAL - where leave required for Appeal Panel to consider the merits - where Appeal Panel did not explicitly give leave to hear the matter on the merits on a critical issue - whether matter should be remitted to the Tribunal to be decided in accordance with law

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Anti-Discrimination (Racial Vilification) Amendment Bill 1989
Anti-Discrimination Act 1977
Broadcasting Services Act 1992 (Cth)
Supreme Court Act 1970

Cases Cited:

Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47
Australasian Performing Right Association Limited v Commonwealth Bank of Australia [1992] FCA 609; (1992) 40 FCR 59
B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481
Baldwin v Elphinston 96 E.R. 610; (1755) 2 Wm Bl 1037
Bond v Douglas (1836) 7 C & P 626
Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105
Burns v Cunningham [2011] NSWADT 240
Burns v Dye [2002] NSWADT 32
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Radio 2UE Sydney Pty Limited & Ors [2004] NSWADT 267
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207
Creek v Cairns Post Pty Limited [2001] FCA 1007; (2001) 112 FCR 352
De La Mare v Special Broadcasting Service [1998] HREOCA 26
Dimozantos v The Queen (No 2) [1993] HCA 52; (1993) 178 CLR 122
Emlyn-Jones and Federal Capital Press [2009] ACTDT 2
Emmens v Pottle (1885) 16 QBD 354
General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84; (2006) 65 NSWLR 502
Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19
Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 62
Jones and Harbour Radio Pty Limited v Trad (EOD)(No 3)) [2012] NSWADTAP 33
Jones v Toben No 2 [2003] FCAFC 137; (2003) 129 FCR 515
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Li & Anor v The Herald and Weekly Times & Anor [2007] VSC 109
Morrison v Ritchie & Co (1902) 4 F 645 (Scotland), Ct of Sess
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Nyungar Circle of Elders v West Australian Newspapers Ltd [2001] HREOCA 1
R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58
R v Eade [2002] NSWCCA 257
R v Walter (1799) 3 Esp 21
Rae v Commissioner of Police (No. 2) [2010] NSWADT 36
Sunol v Collier and Another (No 2) [2012] NSWCA 44
Trad v Jones & anor (No. 3) [2009] NSWADT 318
Veloskey v Karagiannakis [2002] NSWADTAP 18
Watts v Fraser (1835) 7 C & P 369
Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Whisprun Pty Ltd v Dixon [2003] HCA 48
Woolworths Ltd v Olson [2004] NSWSC 849

Category:

Principal judgment

Parties:

Alan Jones (First Appellant)
Harbour Radio Pty Ltd (Second Appellant)
Keysar Trad (Respondent)

Representation:

Counsel:
Ms K Eastman SC with T Glover (Appellants)
Ms K Nomchong SC (Respondent)
Solicitors:
Baker & McKenzie (Appellants)
Turner Freeman (Respondent)

File Number(s):

CA 12/335873

 Decision under appeal 

Citation:

Jones & Anor v Trad

Date of Decision:

2012-10-02 00:00:00

Before:

R Madgwick QC, Deputy President; R Perrignon, Judicial Member; E Hayes, Non-Judicial Member

File Number(s):

109004 & 109005

Judgment

1. WARD JA: This appeal concerns the construction and application of the racial vilification provisions in the Anti-Discrimination Act 1977 (NSW).

1. On 28 April 2005, during his weekday morning radio "talk-back" programme on radio station 2GB, Mr Alan Jones read out the text of a letter that had been sent to him by a listener. In that letter, the listener had commented adversely on conduct that had been the subject of a segment on a current affairs programme televised the previous evening. The conduct in question (which I will refer to generally as the "car hoons" incident) related to the behaviour of a group of young men at The Rocks in Sydney on 24 April 2005 and the interaction of that group of men with police officers. The men had identified themselves as Lebanese. Mr Jones' comment, after reading the letter, was critical of the way the police had responded to the incident.

1. The following day, Mr Keysar Trad, who was at the time the President of the Lebanese Muslim Association, lodged a complaint with the Anti-Discrimination Board, alleging that Mr Jones had made derogatory comments about him, and about the entire Australian Muslim community and Lebanese community, and seeking by way of an outcome that Mr Jones recant his derogatory remarks.

1. Mr Trad's complaint ultimately included allegations not only about the 28 April broadcast in respect of the "car hoons" incident (referred to as the Schedule A broadcast) but also about other segments of Mr Jones' morning radio programmes over the days from 26-29 April 2005 (those other segments together referred to as the Schedule B broadcast) in which, among other things, Mr Jones had criticised the lack of response by the Muslim leadership or community to offensive comments reported to have been made about rape victims by a Muslim sheik.

1. The complaint was investigated by the Board and was then referred by the President of the Board to the Administrative Decisions Tribunal, in March 2007. The President's Summary of Complaint and Report (Blue 454 - 456) circumscribed the scope of the Tribunal's jurisdiction to hear and determine the complaints. By the time the matter was referred to the Tribunal, Harbour Radio Pty Limited, which held the broadcast licence for radio 2GB, had been included as a respondent to the complaint.

1. Mr Trad's allegations, and the appellants' response thereto, were in due course encapsulated in formal Points of Claim and Defence (the relevant documents ultimately being Mr Trad's Second Further Amended Points of Claim filed 7 August 2009 (Blue 1) and the appellants' Amended Points of Defence filed 11 August 2009 (Blue 37)).

1. On 21 December 2009, the Tribunal found that Mr Trad's complaint of racial vilification in respect of the Schedule A broadcast was substantiated but otherwise dismissed the complaint (Trad v Jones & anor (No. 3) [2009] NSWADT 318).

1. The Tribunal ordered Mr Jones and Harbour Radio to pay Mr Trad damages in the sum of $10,000 and directed the parties to confer in relation to an apology to be published in accordance with its reasons. It also ordered that Harbour Radio conduct a critical review of its policies and practices on racial vilification and the training provided for employees including all "on air" personnel with a view to determining whether they were adequate to ensure compliance with the racial vilification provisions contained in the Anti-Discrimination Act (to which I will refer as the "review order"). It declined Mr Trad's application for aggravated damages.

1. Appeals were lodged both by the appellants and by Mr Trad in relation to different aspects of the Tribunal's decision. The Appeal Panel handed down three judgments in respect of the respective appeals from the Tribunal's decision (Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19; Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 62; and Jones and Harbour Radio Pty Limited v Trad (EOD)(No 3)) [2012] NSWADTAP 33). Only the first decision is relevant for present purposes.

1. In relation to the appeal by Mr Jones and Harbour Radio, the Appeal Panel found that the Tribunal had made no error of law (or none that might have affected the ultimate result) ([21], [29], [53], [61], [70], [73]-[74], [90]-[91], [93], [99]), though it found that the Tribunal had made one incorrect finding of fact that was adverse to Mr Jones ([51]) and it accepted that the Tribunal had failed separately to consider the applicability of s 20C(2) of the Anti-Discrimination Act in relation to Harbour Radio's conduct. The Appeal Panel extended the appeal by Mr Jones and Harbour Radio to the merits on the limited issue of the review order made by the Tribunal, and amended that order ([101]), but did not otherwise give leave for their appeal to extend to a review of the merits of the Tribunal's decision.

1. In relation to the appeal by Mr Trad, which was from the Tribunal's dismissal of the vilification complaint insofar as it related to vilification on the ground of religious belief, the Appeal Panel extended Mr Trad's appeal to the merits on the question as to whether the Tribunal had misconstrued the concept of "ethno-religious origin" in the definition of "race" in s 4 of the Act (and hence whether it had erred in determining that Muslims did not constitute a "race"). Having heard further submissions on that issue, the Tribunal ultimately dismissed Mr Trad's appeal. There is no appeal by Mr Trad from that decision.

Appeal

1. The appeal now brought to this Court by Mr Jones and Harbour Radio is limited to the dismissal by the Appeal Panel of their appeal from the Tribunal's decision in relation to the Schedule A broadcast. The appeal is brought under s 119(1) of the Administrative Decisions Tribunal Act 1997 (NSW) and s 48(2)(f) of the Supreme Court Act 1970 (NSW). Section 119(1) provides that this Court's jurisdiction is limited to questions of law (and see B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481).

1. In summary, the appellants contend that, on the proper construction and application of ss 20B and 20C of the Anti-Discrimination Act, it was not open for the Tribunal to make a finding that both Mr Jones and Harbour Radio contravened the Anti-Discrimination Act; that both the Appeal Panel and the Tribunal applied the wrong test to determine whether the Schedule A broadcast was one that incited serious contempt for Lebanese men, by focusing improperly on the identity of Mr Jones (and perceptions about his motives) and by failing to identify the relevant audience for the broadcast; and that the Appeal Panel erred in finding that, although the Tribunal had failed separately to consider Harbour Radio's position in relation to the pleaded s 20C(2)(a) and (c) defences, there was no substantive injustice to it so as to warrant any disturbance of the outcome before the Tribunal in its case ([91]). A challenge is also made to the power of the Tribunal to make the review order.

1. For Mr Trad, it was submitted at the outset that this appeal is an academic exercise, since the remedies ordered by the Tribunal, and upheld by the Appeal Panel, have been (or may be assumed to have been) complied with by the appellants. Senior Counsel appearing for Mr Trad, Ms Nomchong SC, notes that compensation as ordered was paid on 1 February 2010 and that an apology was broadcast on 19 December 2012. There is no evidence to suggest that Harbour Radio has not complied with the review order.

1. In circumstances where it was not suggested that, if the appeal were to be successful, there should be no order for the repayment of the damages paid to Mr Trad and where there may be costs consequences depending on the outcome of the appeal, it cannot be said that there will be no practical consequences for the parties flowing from the appeal and it cannot be dismissed as being no more than an academic exercise.

Background

1. The background to this dispute has been briefly set out above. The text of the Schedule A broadcast is annexed to the Second Further Amended Points of Claim (at Red 17). As previously indicated, the broadcast consisted of Mr Jones reading, with one or two brief interpolations, his listener's letter relating to the car hoons incident.

1. It is accepted by the appellants that the letter contained derogatory and offensive comments about Lebanese males, describing them as "vermin" and stating that they "simply rape, pillage and plunder a nation that's taken them in". While reading the letter, Mr Jones interpolated (incorrectly, as it appears from the recording of the television programme referred to at [2] above, a copy of which was contained in an optical disk in the appeal books) the comment "remember, these people announced themselves as Lebanese Muslims", though the group did appear to identify themselves as Lebanese. Mr Jones' comment, immediately after reading the letter, went not to the conduct of the "car hoons" but, rather, was critical of the lack of action by police in relation to the incident that had been televised.

1. The day after the Schedule A broadcast, Mr Jones again made reference to the car hoons incident, repeating in substance parts of the offensive comments that had been contained in the letter read out the previous day but without attribution on this occasion to the listener (transcript p 63 contained on CD at Blue 451), a matter to which Ms Nomchong points as indicating Mr Jones' endorsement of the Schedule A broadcast material.

Relevant statutory provisions

1. The racial vilification provisions of the Anti-Discrimination Act were introduced into the legislation in 1989. The terms of ss 20C and 20B, which are the only racial vilification provisions relevant to the present appeal, relevantly mirror the homosexual vilification provisions that were introduced in 1982 (ss 49ZT and 49ZS) and that were the subject of consideration by this Court in Sunol v Collier and Another (No 2) [2012] NSWCA 44, a decision handed down after the determination by the Tribunal of Mr Trad's complaint and therefore of which it did not have the benefit when determining the complaint.

1. Mr Dowd, the Attorney-General, in his second reading speech to the Assembly in respect of the Anti-Discrimination (Racial Vilification) Amendment Bill, said, of the proposed s 20C, that:

... the bill will make it unlawful for a person to engage in racial vilification, that is to incite hatred towards, serious contempt for, or serious ridicule of, a person or group of persons, on the ground of the race of the person or members of the group. It is not the intention of the Government to cover matters of a trivial nature...

[The] exceptions [to 20C] have been included in the bill to achieve a balance between the right to free speech and the right to an existence free from racial vilification and its attendant harms. The government is also mindful of the possibility of undue reliance by potential respondents on these exceptions and has therefore included the requirement that the act be done reasonably in good faith.

1. On that occasion, the then leader of the opposition, Mr Carr, stated that:

In considering this legislation the Parliament is being asked to strike a balance; to curb freedom of expression on the one hand, with the right of an individual to build his or her life in an atmosphere of mutual tolerance, understanding and respect on the other hand... it will give sanctions against those who inflame racial hatred and it is a clear expression of the Parliament's and society's concerns about these occasional lapses in the public debate.

1. Section 20C, under the heading "Racial vilification unlawful", provides as follows:

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

...

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

1. "Public act", for the purposes of s 20C, is defined by s 20B as including:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

1. Before turning to the specific grounds of appeal, I note that Senior Counsel for the appellants, Ms Eastman SC, submits that, when interpreting the above provisions, regard should be had to the reference made, during the course of the Second Reading Speeches in respect of the bill and, in particular, to the recognition by Mr Zammit MLA, member for Strathfield (10 May 1989 at p 7923) that a balance was to be drawn between the right to free speech and the right to a dignified and peaceful existence free from racial vilification. Ms Eastman submits that it can be discerned, from the reference during the Second Reading Speeches to Articles 19(1) and (2) of the International Covenant on Civil and Political Rights, that Parliament intended the racial vilification provisions of the legislation to be construed in a manner consistent with those human rights covenants. In that regard, Ms Eastman emphasises that the freedom to hold opinions without interference recognised in Article 19(1) is without qualification and submits that this Court should be cautious before adopting a liberal construction to the provisions if to do so would impact upon the human rights recognised in this International Covenant.

1. Reference was also made by Ms Eastman to the observation by Brennan CJ and McHugh J in IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 (at p 12), when considering the interpretation of anti-discrimination legislation in Western Australia and having noted that such legislation should be given a fair, large and liberal interpretation, as beneficial and remedial legislation, that nevertheless the task of the Court remains one of statutory construction and the Court is not at liberty to give the legislation a construction that is unreasonable or unnatural.

1. The proposition that construction of the racial vilification provisions should be undertaken recognising the concern by the legislature to balance the prevention of racial vilification and the need not unduly to restrict the holding of opinions and freedom of speech, is not novel. In Sunol v Collier, Allsop P, as his Honour then was, having had regard to the second reading speech of Clover Moore MP at the time of the introduction of the almost identical homosexual vilification provision, and the report of the New South Wales Anti-Discrimination Board on the subject matter to which those provisions were directed, observed at [58] that this material demonstrated a keen awareness of the effect of such a provision on freedom of speech and of the need to balance such freedom with the desired aim of the legislation.

1. Like his Honour in Sunol v Collier, albeit in respect of different provisions, I consider that the task of construing the racial vilification provisions is one to be approached with conservatism, recognising the high value placed by the common law, and by the legislature, on freedom of expression ([59]). It is not necessary to express any conclusion as to the intention of the legislature when recognising the existence of Articles 19(1) and (2) of the International Covenant to which Ms Eastman has referred.

Grounds of Appeal

1. Of the appeal grounds contained in the Notice of Appeal filed on 2 January 2013, only grounds 1-5 and 8 were ultimately pressed. I consider those in turn.

Ground 1 - "Public act"

1. The first ground of appeal goes to the meaning of "public act" in s 20B(a) of the Act, namely:

1. Whether the Appeal Panel misconstrued the meaning of 'communication to the public' in s 20B(a) of the Anti-Discrimination Act 1977 by finding that the First Appellant [Mr Jones], engaged in a 'public act' in circumstances where he provided content to the Second Respondent [sic] [Harbour Radio], which in turn communicated that content to the public, as the licensed broadcaster (First Decision [21] & [22]).

1. No distinction was drawn in the Second Further Amended Points of Claim between the impugned conduct of Mr Jones and that of Harbour Radio. In respect of the Schedule A broadcast, the appellants' conduct was particularised (at [10], Red 3) as being conduct that was:

(a) (i) ... a form of communication to the public which included speaking and broadcasting within the meaning of section 20B(a) of the Act. (my emphasis)

(ii) ...was made in the circumstances set out in paragraphs 7 and 8 above. [Relevantly, paragraph [7] of the Second Further Amended Points of Claim alleged that Mr Jones and Harbour Radio "broadcast" the words in Schedule A.]

... and/or (emphasis in original)

(b) ... the distribution or dissemination of matter to the public with knowledge that the matter promotes or expresses hatred towards, and/or serious contempt for, a person or group of persons on the grounds of the race of the person or members of the group within the meaning of Section 20B(c) of the Act.

1. As to particular [10(b)], the Tribunal did not separately address or make any finding that the Schedule A broadcast was a public act within the meaning of s 20B(c) of the Act. Rather, it dealt solely with the question whether the Schedule A broadcast was a public act of one or both of the appellants within the meaning of s 20B(a), i.e. a form of communication that included both speaking and broadcasting. There was no differentiation in the claim made by Mr Trad between the roles of Mr Jones and Harbour Radio in that regard.

1. Both before the Tribunal and on appeal to the Appeal Panel, it was the position of the appellants that the Schedule A broadcast, though conceded to be a public act for the purpose of s 20C of the Act, was not a public act on the part of Mr Jones because it was Harbour Radio, as the licensed broadcaster, who made the broadcast. The appellants contended that Mr Jones' role was simply to provide content for the broadcast and that Mr Jones had no capacity to communicate the content to the public in his own right. Mr Trad disputed this, pointing to the rights that Mr Jones had under his confidential contractual arrangements with Harbour Radio as to the content of his radio programme.

Tribunal

1. At [119], having given a description of Mr Jones' role during the programme with which the appellants do not cavil, the Tribunal said:

... The question is whether Mr Jones's voice and opinions are broadcast by 2GB. It is a false dichotomy to suggest that if the public act in question is the act of one person it is not the act of another. An act may be a joint enterprise. ... That 2GB uses its own equipment to broadcast Mr Jones's voice and opinion does not derogate from the fact that his voice, plus all the other items featured in his show, is broadcast.

1. For Mr Trad, it is contended on this appeal that the Tribunal should there be read as having implicitly found that there was a joint enterprise between the respective appellants (T 39.13). It is by no means clear that the Tribunal made such a finding. Rather, it seems to have accepted the possibility that an act may be a joint enterprise without determining whether in the present instance that was the case or what consequence that might have when considering the other requirements of the section. Instead, the last sentence of [119] in my view points to an acceptance by the Tribunal that Mr Jones was engaged in a public act, for the purposes of s 20C of the Anti-Discrimination Act, by reason of the fact that it was his voice that was broadcast by Harbour Radio. In other words, the "form" of the communication found by the Tribunal to have occurred in Mr Jones' case was the speaking by him of the words that were almost immediately broadcast to his listeners.

Appeal Panel

1. The Appeal Panel found no error of law by the Tribunal on this issue. It did not deal with the Tribunal's suggestion that this might have been a "joint enterprise". Rather, it considered that Mr Jones had clearly communicated to the public "by presenting his own words and those of his listeners for near-immediate radio broadcast transmission by Harbour [Radio]" ([21]). Further, it referred to the contractual arrangements between Mr Jones' company and Harbour Radio and concluded (contrary to the submission put for the appellants) that Mr Jones did have the capacity to communicate the content to the public.

1. The Appeal Panel considered that there was nothing in the definition of "public act", or in the Act or its context, to indicate that the ordinary meaning of the words "communication" and "broadcast" should be restricted, implicitly rejecting any suggestion that the word "broadcast" should be read as having a meaning restricted to the actual transmission of the radio broadcast by the licensed broadcaster.

Determination of first ground of appeal

1. In my opinion, the Appeal Panel did not err in reaching the above conclusion.

1. The appellants' submissions emphasise that in Woolworths Ltd v Olson [2004] NSWSC 849 at 344 -346 and Australasian Performing Right Association Limited v Commonwealth Bank of Australia [1992] FCA 609; (1992) 40 FCR 59 at 74 the courts proceeded on the basis that s 20B(a) requires focus on the form of the relevant communication and identification of the entity that caused the material to be broadcast to the public. In that regard, Ms Eastman notes that the Broadcasting Services Act 1992 (Cth) only permits radio transmission by persons holding the requisite licence, which in this case is Harbour Radio.

1. Ms Eastman notes that in the case of other complaints of breach of s 20C (referring to Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604; Kazak v John Fairfax Publications Limited [2000] NSWADT 77; Rae v Commissioner of Police (No. 2) [2010] NSWADT 36) or similar provisions in other jurisdictions (referring to Nyungar Circle of Elders v West Australian Newspapers Ltd [2001] HREOCA 1 and, on appeal, Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105), the public act in question was attributed to the entity causing the communication to be made (such as broadcasters or publishers). Reference is also made to De La Mare v Special Broadcasting Service [1998] HREOCA 26, Creek v Cairns Post Pty Limited [2001] FCA 1007; (2001) 112 FCR 352 at [3] and Emlyn-Jones and Federal Capital Press [2009] ACTDT 2 in this regard.

1. However, in none of those cases was it suggested that the broadcast or publication in question could give rise only to a contravention by the person in the position of Harbour Radio who effected the relevant broadcast or publication. (The basis on which, in Nyungar, the application for joinder of the cartoonist was refused is not apparent from the published reasons of the Tribunal and the point was not agitated on appeal.)

1. Ms Nomchong draws an analogy with cases in the defamation context where each entity involved in the publication of defamatory material may be jointly and severally liable (referring to Bond v Douglas (1836) 7 C & P 626; R v Walter (1799) 3 Esp 21; Watts v Fraser (1835) 7 C & P 369; Baldwin v Elphinston 96 E.R. 610; (1755) 2 Wm Bl 1037; Morrison v Ritchie & Co (1902) 4 F 645 (Scotland), Ct of Sess; Emmens v Pottle (1885) 16 QBD 354; and Li & Anor v The Herald and Weekly Times & Anor [2007] VSC109).

1. In my opinion it is not necessary for the acts of Mr Jones and Harbour Radio to be characterised as a joint enterprise in order for Mr Jones to have committed a public act (and neither the Tribunal nor the Appeal Panel so characterised them).

1. Section 20B(a) is in very broad terms ("any form of communication to the public"). It makes clear that a communication to the public for the purposes of s 20C may take one of a number of forms. Relevantly, it includes "speaking" as well as "broadcasting". Even if the concept of broadcasting in that section is limited to the technical act of making the radio transmission to the public by use of the necessary electronic equipment, whether that person be authorised by a statutory licence or not, rather than (as I consider would be more consistent with the ordinary usage of the word "broadcasting") including the conduct of someone publicly speaking via the medium of a licensed broadcaster's equipment, there is nothing in s 20C to suggest that there may not, in the course of the particular conduct of which complaint is made, be two separate contraventions.

1. In the present case, Mr Jones spoke the offending words into a microphone or other sound transmission equipment for the purpose of those words being broadcast almost simultaneously to his radio audience. Harbour Radio, as is conceded by it, played a different role in the technical act of broadcasting Mr Jones' speech by way of radio transmission. The fact that, by reason of the technical act of making the radio transmission to the public, Harbour Radio was engaged in a public act when making the Schedule A broadcast, does not in my view preclude a finding at the same time that Mr Jones was engaged in a separate public act in speaking the words for public broadcast.

1. This is consistent with the finding by the Tribunal in Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102, that Mr Jones (there described as a primary participant in the publication) had performed a public act, as defined in s 20B(a), by communicating to the public "via the medium of broadcasting" on a particular radio station (at [133]). Similarly, in Burns v Radio 2UE Sydney Pty Limited & Ors [2004] NSWADT 267, the Tribunal held (at [11]) that the relevant public act was committed not only by the entity holding the broadcasting licence but also by the two presenters concerned.

1. Although Ms Eastman suggested that a construction of s 20B(a) that encompassed Mr Jones' conduct in the present case would have the result that a speaker or author might be liable, many years after the speaking or writing of words offending the racial vilification provisions, simply because another person chose later to communicate those words to the public (with or without the consent of the speaker or author), each 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).

1. Ground 1 of the Notice of Appeal is not made out.

Ground 2 - meaning of "incite"

1. The second ground of appeal is as to whether the Appeal Panel misconstrued or misapplied the second matter to be established for a contravention of s 20C, namely that the impugned public act have the capacity to incite the requisite emotion, that ground of appeal being as to:

2. Whether the Appeal Panel misconstrued s 20C(1) of the Act, in particular the meaning of "incite" by:

(a) failing to apply an objective test to determine whether the impugned public act pleaded in Schedule A of the Respondent's [Mr Trad's] Second Further Amended Points of Claim incited a member of [Harbour Radio]'s listening audience;

(b) relying on [Mr Jones'] intentions and personal characteristics generally to determine whether a hypothetical listener was incited or capable of being incited to serious contempt for [Mr Trad] or a group of persons; and

(c) disregarding whether an actual listener/s was incited to serious contempt for [Mr Trad] or a group of persons by the impugned public act pleaded in Schedule A of [Mr Trad]'s Second Further Amended Points of Claim.

(First Decision [46] [47], [56]-[62], [78], [81]).

1. There is no dispute between the parties as to the meaning of "incite" in the relevant provision. In Sunol v Collier, this Court considered that the word "incite", when used in the homosexual vilification provisions, has its ordinary natural meaning (being to urge, spur on, stir up, animate, stimulate or rouse someone or some request of another or others to do something) (Bathurst CJ at [26], Allsop P and Basten JA agreeing). Bathurst CJ noted at [28] that this could cover a wide variety of conduct, but emphasised that it is not sufficient that the words simply express hatred, serious contempt for, or severe ridicule of a person on the relevant ground; rather the relevant public act must be one which could encourage or spur others to harbour such emotions (his Honour citing Burns v Dye [2002] NSWADT 32 at [20]; Burns v Laws (No 2) [2007] NSWADT 47 at [113]).

1. His Honour at [29] also noted that it was well established that it is not necessary for a person in fact to be incited by the words or publication (citing R v Eade [2002] NSWCCA 257 at [60]; R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [25]; Catch the Fire Ministries Incv Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 at [14]).

1. His Honour proceeded in that case, without formally deciding the issue, on the basis that an intention to incite is not required to be established (citing John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Burns v Dye at [21]; Veloskey v Karagiannakis at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]).

1. There is no dispute between the parties that the above analysis is equally applicable to the racial vilification provisions here under consideration. Further, both parties accept (Orange 16X, 34X) that when construing whether words incite or have the capacity to incite the requisite emotion one should look at the context in which those words were used and that, in the case of a broadcast such as the Schedule A broadcast, one should consider the words in the context of the entire broadcast (Western Aboriginal Legal Service v Jones [2000] NSWADT 102 at [103]).

1. There has been a divergence of views as to whether the public act required for a contravention of vilification provisions such as the present is one which would incite the requisite emotion in an "ordinary reasonable" member (as opposed to simply a "reasonable" member or an "ordinary member") of the class to which the public act was directed (see Catch the Fire Ministries; Bropho). Bathurst CJ in Sunol v Collier preferred the views of Ashley JA and Neave JA in the Court of Appeal of Victoria in Catch the Fire Ministries (at [132], [157]-[158]), namely that the question was to be answered by reference to an "ordinary" member. However, nothing turns on this for the purposes of the present appeal. Rather, the nub of the dispute in the present case goes to the identification, or more precisely the contended absence thereof, of the relevant audience to which the Schedule A broadcast was directed.

1. In Sunol v Collier, Bathurst CJ made it clear that it was essential, when considering whether the impugned public act had the necessary capacity to incite, that consideration be given to the particular class to whom the public act was directed. At [34], his Honour said:

... the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals. That, of my view, can be measured only by reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation. (my emphasis)

1. Earlier, in Catch the Fire Ministries Inc at [14] - [16], Nettle JA, noting that there can be no incitement in the absence of an audience, said at [16] that:

... 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. (my emphasis)

Tribunal

1. In the present case, although the Tribunal acknowledged that the test to determine whether a public act had the capacity to incite the requisite emotion was an objective one (citing Burns v Laws (No 2) at [111]) and that it was not necessary to prove that any particular person was, in fact, so incited (at [160]) (citing Burns v Laws at [93]-[113]; Dimozantos v The Queen (No 2) [1993] HCA 52; (1993) 178 CLR 122 at 131), it did not expressly identify the particular audience to which the Schedule A broadcast was directed for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited to have serious contempt for Lebanese males by reason of the broadcast. Sunol v Collier makes it clear that it was against such a member that the effect of the Schedule A broadcast was to be taken into account.

1. The Tribunal, in the context of considering the question as to who or what group was the target of the respective broadcasts, referred (in various places, such as [129], [132] and [133]), to the "ordinary reasonable listener". It stated at [130] that there was no argument between the parties as to the identity of the ordinary reasonable listener (a proposition disputed by Ms Eastman, who pointed to the submission made to the Tribunal that the relevant audience was required to be specified) but then simply went on to refer to various formulations of listener and to make a determination of what the "ordinary reasonable listener" would have understood from the Schedule A broadcast, without expressly adverting to or identifying the particular audience for the Schedule A broadcast.

1. Similarly, when later focusing on the question whether the Schedule A broadcast was capable of inciting hatred or serious contempt (from [157]-[178]), the Tribunal did not identify the particular audience to which the broadcast was directed. Instead, having noted (at [163]) the contention for Mr Jones and Harbour Radio that the Tribunal ought take into account the nature of commercial broadcasting and, in particular, the nature of talk-back radio, the Tribunal listed the seven factors that it had taken into account ([169]-176]; Red 104-106) and concluded, at [178], that the Schedule A broadcast not only conveyed the impression that Mr Jones held the Lebanese Muslim community and Lebanese males in deep contempt "but also was capable of inciting the ordinary reasonable listener to feel serious contempt for both groups".

1. In summary, those seven factors related to the high-profile and influence of Mr Jones; the public nature of his acts; the "stimulatory effect" of Mr Jones' technique in conducting interviews with and reading correspondence from listeners, as well as the tone used by him throughout the broadcast period when speaking about the subjects relevant to the present matter; Mr Jones' implicit endorsement of the particular correspondent's views, perceived as arising from Mr Jones' "own indubitable authority" and he having read the letter "approvingly"; and the repeated emphasis of the threats posed by, among others, the car hoons and frequent denunciation of government and police inaction, which it was said carried an implication that populist action might be necessary. Of those, the Tribunal described the public nature of Mr Jones' acts as "obviously of significance, although not decisive" (at [171]).

1. Complaint is made by the appellants as to the relevance of any of those seven factors to an objective determination of the effect of the broadcast on the ordinary or ordinary reasonable listener. In that regard, Ms Nomchong submits that the appellants cannot now assert that the seven factors identified by the Tribunal were all factors that should not have been taken into account as this would amount to running a different case than that put before the Appeal Panel (on the basis that there was no challenge made in the notice of appeal lodged in respect of the Tribunal's decision to some of the matters it had considered - in particular, that the Tribunal had taken into account the "tone" used by Mr Jones (at [173]) and as to the use made by the Tribunal (at [175]) of the transcript of surrounding broadcasts). Reference was made to Whisprun Pty Ltd v Dixon (2003) HCA 48 at [51]) in this context. Ms Nomchong in any event submits that the Appeal Panel did not err in its conclusion that the Tribunal committed no error of law that could have affected the result in taking those matters into account.

1. However, leaving aside the ambit of the appeal that was before the Appeal Panel and the question whether matters such as Mr Jones' fame, reputation, stature or "commercial value as a broadcaster" were or might be relevant to the assessment of whether the broadcast had the capacity to incite the requisite emotion in an ordinary member of the audience to whom the broadcast was directed (and in my opinion matters of that kind might be of relevance to take into account when considering how an ordinary listener of a particular audience would be affected by the broadcast), the strength of the appellants' argument lies in the fact that there was simply no identification by the Tribunal of that audience against which the likely effect of the broadcast should have been assessed.

1. While it may perhaps be implicit in the Tribunal's reasons that it was referring to the effect of the Schedule A broadcast on an audience comprised of the ordinary (or ordinary reasonable listener), of Mr Jones' morning talk back programme, there was no finding as to what such an audience comprised and no consideration of whether the Schedule A broadcast would "reach the mind" of an ordinary (or, perhaps, an ordinary reasonable) member of that audience "as something which [would] encourage" the requisite emotion, to adopt the language in Catch the Fires at [16].

1. The failure of the Tribunal to identify the particular audience to which the Schedule A broadcast was directed and to consider the likely effect of the broadcast on an ordinary member of that audience means in my opinion that, whether or not the seven factors it took into account would have been relevant matters to consider, the Tribunal erred as a matter of law in its finding (at [189]) that the requirement of capacity to incite was satisfied in respect of the Schedule A broadcast.

Appeal Panel

1. The Appeal Panel (commencing from [30] of its reasons) considered the approach of the Tribunal to the question whether the Schedule A broadcast was capable of inciting the requisite emotion. It did so in the course of its consideration of the issue whether the Tribunal had failed objectively to consider the actual material of which complaint had been made and whether it had impermissibly misused the contextual material to enquire as to Mr Jones' subjective state of mind from time to time.

1. It concluded that, in looking to judge the likely effects of the Schedule A broadcast and its capacity to incite the requisite emotions, there was no error in law in the Tribunal having considered matters such as Mr Jones' public prominence, his capacity to influence listeners, his evident technique of provoking inflamed comment and his tone ([47]). It stated (at [47]) that:

...It is true that a person with a high public profile who is an influential opinion leader is in no worse position as to the legal right to freedom of speech than any other. However the potential for such a person's stated opinions or endorsements of others' remarks to influence the ordinary reasonable member of a more or less unremarkable audience may well be thought likely to be greater than that of some unknown plodder: people in the latter class are rarely sought for product endorsements, for example ...

1. While the Appeal Panel accepted (at [51]) that the Tribunal had made a legally objectionable finding in relation to its criticism of Mr Jones' "implied partiality" for a "vigilante solution" to the "problem", it considered that the Tribunal's comments in [177] needed to be understood in the light of its conclusion at [178] and it was of the opinion that this was but one aspect of the reasons for the Tribunal's conclusion (going to matters relevant to the applicability of s 20C(2)(c)) that Mr Jones' comments were not "reasonable commentary".

1. The Appeal Panel also considered that the forensic context of the broadcast, while of no direct relevance to the question whether the comments of Mr Jones throughout the broadcasts (as opposed to in the Schedule A broadcast itself) constituted an incitement, was of importance. It stated that the degree to which the other broadcasts highlighted criticisms of Lebanese Australians generally and the degree of virulence of those criticisms could be relevant to the submissions that had been made for Mr Jones and that the weight to be given to those matters was a factual question for the Tribunal ([50]).

1. The Appeal Panel did not accept that the Tribunal had misinterpreted the verb "incite" or had incorrectly applied the objective test for that concept or had taken irrelevant material into account ([53]).

1. The Appeal Panel itself appears to have recognised that it was essential that the audience be identified. Indeed, it stated at [54] that it was common ground that the identification and nature of the audience were essential matters and there was no demur therefrom by Ms Nomchong on the present appeal. It did not, however, uphold the appellants' appeal on this ground.

1. The Appeal Panel seems to have understood (see [56]) the Tribunal's finding as to the audience to have been that it was:

... large; 'within the general public'; used to Mr Jones approaching even less controversial topics with vigour; inclusive of at least hundreds of Lebanese Muslims, and inclusive of people far more extreme in their apparent antipathy to the Lebanese Muslim community than Mr Jones himself.

However, it attributed this conclusion to no more than "the general references given by counsel", which were not identified. The Appeal Panel accepted that the Tribunal "did not refer to some known attributes of Mr Jones' probable audience" ([58]) but then went on to opine that the matter needed to be approached in a practical way (at [59]).

1. Ms Nomchong submits that the relevant finding by the Appeal Panel is to be discerned from [58] onwards of its reasons. I have noted [58] above. That paragraph contains no more than an acknowledgement that the Tribunal did not refer to some known attributes of Mr Jones' probable audience. At [59], having referred to the need for a practical approach, the Appeal Panel said:

...The only distinguishing attributes of Mr Jones' audience mentioned in argument before us but not referred to by the Tribunal were that there was a mild preponderance of women, that most listeners were at home, and that they were in the older reaches of the general population's age distribution. It was not suggested that a hypothetical ordinary reasonable listener from a population with those attributes or any of them would be likely to have any different comprehension or reaction to Mr Jones' words than a hypothetical ordinary reasonable person drawn from the population at large. Nor was there any evidence that might have sustained such an unlikely proposition.

1. Ms Nomchong submits, by reference to the above extract, that the finding of the Appeal Panel on this issue was that there was no identified difference between Mr Jones' audience for the Schedule A broadcast and the general population at large. If this amounts to a finding by the Appeal Panel that the audience was to be treated as being the general population at large, then what it has clearly failed to address is the requirement emphasised in Sunol v Collier and Catch the Fires that consideration be given to the particular audience to which the act in question was directed.

1. Ms Eastman pointed to the evidence that was before the Tribunal and the Appeal Panel as to the probable audience for Mr Jones' weekday programme at around 9.30am when the Schedule A broadcast took place (see Blue 75-78), and submitted that the relevant audience was a group comprised for the most part of women aged over 55 years who were at home (T 22.20). Ms Eastman submits that neither the Tribunal nor the Appeal Panel gave consideration to the effect of the broadcast on an ordinary member of that audience, as opposed to its effect on, say, the whole of the Sydney community at large.

1. At the highest, one might infer from [59] that the Appeal Panel proceeded on the basis that the audience was largely an "at-home" audience of demographically "older" people, with a mild preponderance of women who were accustomed to Mr Jones' style of radio presentation (whose perceptions would not differ from those of any ordinary reasonable person from "the population at large"). I note in passing that Ms Nomchong (at T 44) pointed out that a review of Schedule B broadcasts indicated a much wider range of listeners, including males and people who identified themselves as Muslims or as younger than the over-55 demographic.

1. Even if that was the finding of the Appeal Panel, the Appeal Panel did not make clear the basis on which it concluded that an ordinary member of that audience could be assumed to have the same reaction as an ordinary member of the public at large.

1. Its conclusion that "[n]o legal error with a reasonably possible effect on the outcome" had been shown to have been made by the Tribunal in this respect (at [61]) seems to have been based on nothing more than the Appeal Panel's view that there would be no difference between the comprehension of, or reaction to, Mr Jones' words of the audience described above and that of the general population. The basis for that view is not stated.

Determination of second ground of appeal

1. As noted, there was evidence as to the likely demographic composition of Mr Jones' audience at around the time of the Schedule A broadcast. The appellants' criticism of the Tribunal is that it did not engage in the exercise of determining what the relevant audience was or the likely effect on an ordinary member of that audience of the Schedule A broadcast. That criticism is well founded. Their criticism of the Appeal Panel is that it purported to make a different factual finding without any relevant consideration of the evidence and simply proceeded on an assumption that the attributes of that audience would not differ from those of the population at large - an approach inconsistent with what the analysis in Sunol v Collier requires. Again, that criticism is well founded.

1. Moreover, the Appeal Panel did not extend the appellants' appeal to the merits other than on a limited ground (the appeal from the review order). Allsop P, as his Honour then was, with whom Giles and Basten JJA agreed, in B & L Linings, noted (at [38]) the distinction, on an internal appeal to the Appeal Panel, between an appeal on any question of law and a review of the merits of the appellable decision (s 113(2)). The role of the Appeal Panel when considering the appeal by Mr Jones and Harbour Radio from the Tribunal's determination of the complaint was (except in the one limited aspect in respect of which leave was given to extend to the merits) limited to questions of law.

1. Had the Appeal Panel been minded to give leave, pursuant to ss 113 and 115 of the Administrative Decisions Tribunal Act 1997 and s 115 of the Anti-Discrimination Act 1977, to hear this issue on the merits, it might be expected to have adverted to that fact (General Manager, WorkCover Authority of NSW v Law Society of NSW [2006] NSWCA 84; (2006) 65 NSWLR 502 at [98]).

1. To the extent that, in the present case, the Appeal Panel chose to substitute its own finding as to Mr Jones' likely audience, in order to remedy the absence of such a finding by the Tribunal, it went beyond a determination of whether the Tribunal had erred on a question of law in failing to make a finding of fact as to the relevant audience and it did so on the basis of an assumption that a member of the relevant audience would have no different reaction than the public at large.

1. In my opinion the Appeal Panel erred in finding that there was no error of law by the Tribunal in its consideration of the question of capacity to incite and in substituting its own finding on that issue; and ground 2(a) is therefore made out.

1. For completeness, I note that Ms Eastman also submits that the Tribunal erred in failing to make any finding that the conduct of Harbour Radio (as opposed to that of Mr Jones) incited or was capable of inciting the ordinary or ordinary reasonable listener, in circumstances where the Tribunal focused (as did the Appeal Panel) solely on the conduct of Mr Jones in this regard. While neither the Tribunal nor the Appeal Panel appears to have given any separate consideration to the position of Harbour Radio in this regard, it is difficult to see that there would be any different finding on this issue as between Mr Jones and Harbour Radio. What was broadcast by the latter were the words of the former and the inflammatory effect or otherwise of those words being spoken by Mr Jones was part and parcel of the act of Harbour Radio in transmitting those words. In any event this does not appear to have been raised as a ground of the present appeal.

1. Further, Ms Eastman submits that (at [33]) the Appeal Panel incorrectly conflated its consideration of whether the public act incited the audience for the purpose of s 20C(1) with its consideration of the available defences in 20C(2)(c) of the Act (the latter introducing the subjective element of good faith). She submits that, having accepted that Mr Jones' intentions or motives were not relevant ([32]), the Appeal Panel should have found that the Tribunal's approach was in error.

1. In response, Ms Nomchong submits that there is a distinction between taking into account the contextual factors identified by the Appeal Panel and having regard (wrongly) to the intentions or motives of the speaker. It is submitted that the Appeal Panel did not take into account the latter when considering whether the impugned public act had the capacity to incite the requisite emotion, notwithstanding that it discussed together the question whether the public act incited the audience for the purpose of s 20C(1) and the question whether s 20C(2)(c) applied (at [32]-[33]).

1. Having regard to the conclusion I have reached as to ground 2(c), it is not strictly necessary to consider whether the Appeal Panel erred as a matter of law in its analysis at [32]-[33]. Had it been necessary to do so, I would have been inclined to the view that, though the Tribunal considered matters that went to Mr Jones' own views, it did so in the context of what effect the communication of those views or the approval or endorsement of the listeners' views would have on the listener and the Appeal Panel did not err in concluding that there had been no error of law by the Tribunal in that regard. Hence I would not have held that grounds 2(a) and (b) were made out.

Ground 3 - "on the ground of race"

1. The third ground of appeal goes, in substance, to whether race must be the sole or dominant ground for the incitement of the requisite emotion, this ground of appeal being:

3. Whether the Appeal Panel misconstrued s 20C(1) of the Act, in particular the meaning of the phrase 'on the ground of the race of the person or members of the group' by:

(a) failing to construe the phrase to mean the sole or dominant reason for the Appellants to make the impugned public act pleaded in Schedule A of [Mr Trad's] Second Further Amended Points of Claim, in circumstances where s 4A of the Act has no application to s 20C(1); and

(b) incorrectly considering what the ordinary hypothetical listener would have understood the reason for the public act, where the question should be directed why the persons alleged to have engaged in the public act, so acted;

(c) failing to dismiss the complaint about Schedule A when the primary tribunal found that the 'hoons' were the 'trigger' for [Mr Jones]' 'reading of the letter'.

(First Decision [46], [47], [56]-[62], [78], [81]).

1. The appellants submit that both the Tribunal and the Appeal Panel erred by finding that s 20C(1) of the Act was satisfied if race was "a", rather than the sole or dominant, reason for the impugned public act. It is submitted by Ms Eastman that in so doing both failed properly to consider the application of s 4A of the Anti-Discrimination Act; and both wrongly had regard to the test considered in Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 in relation to s 50 of the Act (at [181] - [183]). It is also submitted that, the Tribunal having made the factual finding (at [136]; Red 99T) that it was plain that the "trigger" for the public act was the car hoon incident, it was not open to the Tribunal to find that the public act was done "on the ground of" race.

1. It is further submitted that both the Tribunal and the Appeal Panel confused the issue of causation, introduced by the requirement in s 20C that the incitement be on the ground of race, with the identification of the person or group of persons who have been vilified (referring to [128] and [129] of the Tribunal's decision and [64] - [70] of the Appeal Panel's first decision).

Tribunal

1. The Tribunal considered (from [126]-[137]) who or what group was the target for the Schedule A broadcast and concluded that the ordinary reasonable listener would have understood that Lebanese males and Lebanese Muslims were referred to in that broadcast. It later went on (at [179]-[189]) expressly to consider whether the incitement that it made findings in relation to were "on the ground of" race. It stated (at [179]) that it would be implicit in what it had earlier said that it considered this element satisfied. It then went on to address the contention for Mr Jones and Harbour Radio that race was required to be the "sole ground question or reason for the vilification, not a substantial ground or reason" ([181]), noting the distinction drawn by the appellants between the language used in s 20C of the Anti-Discrimination Act and that in s 18B of the Racial Discrimination Act 1975 (Cth).

1. In this regard, the Tribunal considered that the approach adopted in Nicholls & Nicholls to the meaning of the words "on the ground of" in s 50 of the Act (in the context of complaints of victimisation) applied equally to complaints of racial vilification in breach of s 20C. In Nicholls, the Appeal Panel considered that for complaints of discrimination, the relevant reason must have been "a reason which, either alone or in combination with other reasons, was the true basis for the treatment".

1. The Tribunal addressed and rejected the contention by Mr Jones/Harbour Radio that the ordinary listener would have understood the Schedule A broadcast to be referring solely to the "car hoons" and not the Lebanese Muslim community or Lebanese males. The Tribunal had earlier (at [131]) described the Schedule A broadcast as being "concerned with the behaviour of a group of young 'car hoons' who had been filmed confronting police officers in Hickson Rd, The Rocks".

1. From [184] - [188] the Tribunal considered that Mr Jones had forged the link in his broadcasts between the conduct of the car hoons and their ethno-religious background ([186]) and that it was oversimplistic to argue that any incitement of the groups was solely on the grounds of the poor behaviour of some of their number ([188]). It concluded, from the repeated reference to and emphasis on race, that race (or "their respective races") was one of the real, genuine or true reasons for serious contempt being incited towards Lebanese Muslims and/or males in relation to the Schedule A broadcast.

Appeal Panel

1. The Appeal Panel found no legal error in the Tribunal's conclusion on this point ([70]).

1. The Appeal Panel, expressing some doubt as to whether it be correct that discrimination in s 4A does not include racial vilification, rejected the proposition that, because of the expressio unius principle and the terms of s 4A the requirement in s 20C(1) was that incitement be solely on the ground of race. It considered that implicit in the notion of "on the ground of ... race" was that race be a real, operative and substantial ground of the vilification (from [62]-[67]).

1. Reference was made to Veloskey v Karagiannakis at [30], where the Appeal Panel had said:

Moreover, these reactions must be aroused because of the race of the person or group of persons, said to be vilified by the public act. Race, in these circumstances, must be "a substantially contributing factor" to the incitement. It is not sufficient if there are other, equally consistent, grounds for the incitement, given that s 4A of the AD Act does not apply to the vilification provisions.

1. However, the Appeal Panel concluded that it was not necessary to consider whether, if there were another equal ground, that would be sufficient, implicitly rejecting the submission that the poor behaviour of the "car hoons" had been an equally consistent ground for the incitement.

Determination of third ground of appeal

1. I do not consider that the Appeal Panel erred in its finding that there was no error by the Tribunal on the question of causation.

1. The fact that s 4A applies, in its terms, to unlawful discrimination and not to unlawful racial vilification does not, in my opinion, mean that, for the purpose of s 20C, race must be the sole reason for the incitement. I see no reason not to follow the approach in Nicholls on this issue, albeit recognising that there the legislature was focusing on different conduct.

1. As to the substance of the findings made on causation, the fact that "the trigger" for the discussion in the Schedule A broadcast was the poor behaviour of the "car hoons" does not preclude a finding that the alleged vilification was because or on the ground of race.

1. I consider there to be a distinction between the "trigger" for making comment on the car hoons incident (which seems to have been a combination of the poor behaviour and police inaction of which Mr Jones complained) and the basis or ground on which a listener is incited to hatred or contempt. The Schedule A broadcast went well beyond a criticism of the behaviour of the car hoons. It very clearly invited consideration of the behaviour of (and potential national security threat posed by) Lebanese males "in their vast numbers".

1. The Appeal Panel did not err, in my view, in finding no error by the Tribunal in its determination that any vilification of Lebanese males in the Schedule A broadcast was on the ground of race.

1. Insofar as Ms Eastman submits that the Appeal Panel's consideration of this aspect of the appeal improperly merged consideration of s 20C(1) with the defence in s 20C(2)(c) when referring to the Appeal Panel's reference (at [63]) to the proscription by the Tribunal of "very serious hate speech", the legislature's intention to proscribe such speech can be discerned in my view from the Second Reading Speech referred to earlier. I do not consider that the Appeal Panel's conclusion has been shown to have been affected by considering those issues together.

Grounds 4 and 5 - Harbour Radio's reliance on s 20C(2)(c)

1. Grounds 4 and 5 of the appeal raise the operation of s 20C(2)(c) of the Anti-Discrimination Act.

4. Whether the Appeal Panel misconstrued s 20C(2)(c) of the Act by:

(a) failing to construe the defence as it applied to a corporate entity that did not create the content of the impugned public act but broadcast the content; and

(b) assuming (without evidence and without extending to the merits) that the question of an act done 'reasonably' and in 'good faith' by an individual, [Mr Jones], was the same as an act done 'reasonably' and 'good faith' for a corporation, [Harbour Radio].

(First Decision [85]-[92], [94]).

5. Given the finding at [85] in the First Decision, whether the Appeal Panel misconstrued s 114(2) of the Administrative Decisions Tribunal Act 1977 by failing to give [Harbour Radio] the opportunity to have its defence under s 20C(2) of the Act considered on the merits by either extending this aspect of the appeal to the merits or remitting the matter to the primary tribunal. (First Decision [92]).

1. These grounds of appeal relate solely to the position of Harbour Radio.

1. At the outset, I note that, while referred to commonly as defences, the exceptions contained in the sub-paragraphs of s 20C(2) strictly operate as exceptions to the prohibition in s 20C(1), as recognised by Allsop P, as his Honour then was, when considering the homosexual vilification provisions in Sunol v Collier (and are referred to as exceptions in the Attorney-General's Second Reading Speech, as noted above). In Sunol v Collier, Allsop P said, at [60], that:

... Subsections (1) and (2) should be read together as a coherent provision that makes certain public acts unlawful. Subsection (2) is not a defence; it is a provision which assists in the defining of what is unlawful. It attempts to ensure that certain conduct is not rendered unlawful by the operation of subs (1).

1. However, nothing turns for the purpose of the present appeal on this distinction.

Tribunal

1. The Tribunal considered (from [203] - [216]) the applicability of s 20C(2)(c) and (from [217] - [223]) whether Mr Jones' broadcasts were motivated by bad faith.

1. It concluded that Mr Jones' commentary, taken as a whole, was unreasonable having regard to the four matters set out from [209] - [214], which focused on the manner in which Mr Jones had commented on the material before him, engaged with listeners; had directly or indirectly endorsed or impliedly endorsed the adoption of "violent solutions"; and had, in the Tribunal's opinion) exaggerated the effects and significance of the illegal street car racing. While the Tribunal accepted (at [206]) that the anti-social behaviour of the "car hoons" was a matter of public interest on which Mr Jones was entitled to make reasonable comment in good faith, it considered that he had not acted reasonably.

1. As to the question of good faith, the Tribunal adopted a test as to whether Mr Jones held an honest belief in the truth of the opinions or comments and was not motivated by malice, spite, ill-will or other improper motive (citing Western Aboriginal Legal Service v Jones; Jones v Toben No 2 (2003) 199 ALR 1 ([217]). It considered the content of the broadcast (at [219]) and concluded that Mr Jones was "both highly offensive and reckless in repeating to his audience in the Schedule A broadcast his correspondents' view ... and later adopting and repeating these views as his own"; in his comments as to rape, pillage and plunder; his reference to vermin; and his reference to the national security problem ([210]). The Tribunal described Mr Jones' comments (though not restricting this to the Schedule A broadcast) as "reckless hyperbole calculated to agitate and excite his audience without providing them with much in the way of solid information".

1. In Sunol v Collier, Bathurst CJ concluded that for the impugned public act to be reasonable within the meaning of the equivalent provision to s 20C(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out and that for the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose. No challenge was made by Mr Jones in the Notice of Appeal to the Appeal Panel's dismissal of his appeal on the applicability of s 20C(2).

1. While the appellants' written submissions (at [66] - [73]) make other criticisms of the Tribunal's decision in relation to the applicability of s 20C(2), as Ms Nomchong notes, the Notice of Appeal raises no challenge in relation to those matters and it is not necessary to consider those criticisms.

1. However, the fact remains that no consideration was given by the Tribunal to the position of Harbour Radio insofar as the application of s 20C(2)(a) or (c) was concerned. The failure of the Tribunal to consider the applicability of s 20C(2) in Harbour Radio's case was clearly in error.

Appeal Panel

1. The Appeal Panel accepted that the Tribunal had failed to consider the applicability of the exceptions in s 20C(2) on which Harbour Radio relied in its defence ([83]).

1. At [84], the Appeal Panel acknowledged that Harbour Radio was "entitled to have its defences separately considered" but concluded that there was no substantive injustice done to it since there was no reasonable prospect of success in relation to its defences.

1. First, the Appeal Panel held that the pleaded defence of "a fair report" of the television report referred to at [2] above was not known to law and could not have been upheld (on the basis that subs 2(a) refers to a fair report of a public act referred to in subs (1)). It was not suggested on this appeal that the Appeal Panel had erred in law by so concluding.

1. Second, the Appeal Panel noted that the "defence" of "reasonable, good faith discussion" had been exhaustively considered and rejected as to Mr Jones; that his broadcasts were contemporaneously played in the hearing of "apparently all levels of employees engaged by Harbour [Radio]"; that no use had been made of the seven second delay to transmission to intercept the broadcast "on prudential grounds" and that there was no evidence of any intercession by or on behalf of Harbour Radio with Mr Jones to suggest "modification of his rhetoric or lack of fairness and balance" ([89]).

1. The Appeal Panel was of the view that, de facto, the judgment whether material might breach the racial vilification provisions had apparently been "effectively abandoned" to Mr Jones (and his team) ([89]) and therefore it was not possible to say that its conduct, in relation to the broadcast was either objectively reasonable or done in good faith ([90]). The Appeal Panel referred, in that regard, to the sense in which good faith had been considered in Bropho.

1. Ms Nomchong submits that the wide discretion provided by s 114 of the Administrative Decisions Tribunal Act, which allows the Appeal Panel to affirm, vary or make a decision in substitution of the decision of the Tribunal, permitted the Appeal Panel to assess the significance of the Tribunal's omission and to make the determination that it did in respect of Harbour Radio's position. Ms Nomchong further submits that the proper approach to this issue is to regard the broadcast as a joint undertaking. However, as already noted, there was no express finding that this was the case.

1. The Appeal Panel did not extend leave to appeal to the merits in this regard. To the extent that it implicitly made a finding that Harbour Radio, in broadcasting the Schedule A broadcast did not communicate to the public reasonably and in good faith, the evidence to which it referred was the fact that no employee had activated the seven second "dump button" and that there was no evidence of any intercession with Mr Jones (the latter presumably referring to the period after the Schedule A broadcast as it is not clear how it is contemplated that any practical opportunity for intercession would have occurred during the broadcast, which lasted for only a minute or so in total). This, it seems, was treated by the Tribunal as the effective abandonment by Harbour Radio of any judgment as to whether the material might offend the law against racial vilification.

1. In my opinion, the Appeal Panel (having not extended leave to appeal to the merits of this aspect of the decision) erred in not remitting the matter to the Tribunal once it had found an error on the part of the Tribunal in failing to deal with the applicability of s 20C(2)(c), in Harbour Radio's case.

Ground 8 - Review order

1. The final ground pressed on appeal is the following:

8. Whether the Appeal Panel misconstrued s 108(2)(e) of the Act by making an order that applied to employees of [Harbour Radio] who were not directly or indirectly involved with the impugned public act pleaded in Schedule A of [Mr Trad]'s Second Further Amended Points of Claim. (First Decision [101]-[102]).

1. In the Tribunal Mr Trad sought broad ancillary orders (the content of which was not specified) as to the development and implementation of policies aimed at eliminating racial vilification by Mr Jones and Harbour Radio (submissions at Black 48 at [198]). The appellants submitted, inter alia, that such orders were punitive, had not been sought in the Points of Claim and were vague and uncertain. It was submitted that it would not be proper for the Tribunal to make such orders (submissions Black 113 at [271]).

1. The Tribunal's reasons for making the review order (at [245]) were that:

In our view it would be of greater utility [than making an order that each respondent refrain from further acts of racial vilification, which the Tribunal recognised would do little more than state that the respondents must comply with the law] if [Harbour Radio] were to undertake a critical review of its policies and practices on racial vilification and the training provided for employees including all 'on air' personnel with a view to determining whether they are adequate to ensure compliance with the racial vilification provisions contained in the Act.

1. The Appeal Panel dealt only with the criticism made of this order being that there might have been a review in the intervening period. It varied that order to permit the appellants to furnish proof of any such review ([101]).

1. Ms Nomchong submits that ground 8 should be dismissed on the basis that it was not a matter raised by the appellants when the matter was before the Appeal Panel.

1. In this regard, Ms Nomchong's complaint seems to relate to the fact that ground 8 of the Notice of Appeal in this Court refers to employees who were not directly or indirectly involved with the impugned public act whereas ground 17 of the Notice of Appeal filed on 15 January 2010 in respect of the Tribunal's decision (Red 121) did not challenge the review order on that particular basis. Rather, it did so on the following three bases: first, that Mr Jones was not an employee of Harbour Radio and there was no evidence before the Tribunal with respect to the conduct of any "employee"; second, that the evidence of Harbour Radio's policies was directed to policies applicable at April 2005, there being no evidence with respect to its current policies or practices, and third, referring to Exhibit R7 paragraphs [12] & [13], that the evidence of training was directed to training at the relevant time and there was no evidence of any training since April 2005.

1. While it is true that there was no reference to the impact of the order on employees not directly or indirectly involved with the broadcast, it is difficult to see any prejudice to Mr Trad in dealing with that further basis of the more general complaint made by Mr Jones and Harbour Radio as to the jurisdiction of the Tribunal to make such an order. I would not therefore dismiss ground 8 outright.

1. The complaints made to the making of the review order therefore broadly relate to two matters: the impact of the order on personnel not involved in the offending broadcast and the lapse of time between the offending broadcast and the time at which the practices and policies or training programmes were to be reviewed.

1. As to the complaint that the review order affected employees neither directly nor indirectly involved in the impugned public act, Ms Eastman submits that the order made by the Tribunal in 2009 had direct effect on employees of Harbour Radio at the time of the decision and covered training of employees who had nothing to do with Mr Jones' broadcast and who may not have even been employed by the radio station at the relevant point in time. In response, Ms Nomchong submits that, properly understood, the review order is directed to Harbour Radio and the content of its policies and training programs, not to its employees.

1. Subsection 108(2)(e) is in broad terms. In his second reading speech, to which I have earlier referred, the Attorney-General referred to the proposed power of the Tribunal to order the development of a programme or policy aimed at the elimination of unlawful discrimination, and went on to describe this as follows:

The terms of the order to develop a program or policy aimed at eliminating unlawful discrimination will allow for the tribunal to tailor its orders to the needs and resources of the individual respondent. The inclusion of such a power has a number of advantages. By specifically providing for this order, the public education aim of the racial vilification is highlighted. The specific availability of this order, and orders to publish an apology or retraction, will also allow the tribunal to resolve a matter without recourse to the imposition of monetary orders.

1. Section 108(3) expressly recognises that an order of the Tribunal may extend to conduct of the respondent (such as, here, Harbour Radio) that affects persons other than the complainant(s) if the Tribunal, having regard to the circumstances of the case, considers that such an extension is appropriate. This subsection was introduced into the legislation in 2004, following the decision in Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 where it was held that an order of the Tribunal could confer no rights on third parties. In the second reading speech for the amendment the Hon Mr Bob Debus MP said

... an order may extend to conduct of the respondent that affects persons other than the person who lodged the complaint. This will allow the tribunal to address identified situations of systemic discrimination.

1. This was repeated in the speech of the Hon Ian MacDonald MLC in the Legislative Council.

1. The terms of s 108 in my opinion make clear that orders granted under that section may indirectly affect persons other than the person who made the complaint. The Tribunal, in my opinion, had jurisdiction to make an order of the scope that it did. There may have been a question as to whether it exercised its power correctly but this would require a determination that the exercise of discretion had miscarried.

1. As to the complaint that the Tribunal erred in making the review order that it did, by reason of the fact that the review order was directed at Harbour Radio's policies and practices as at 21 December 2009 (and was not limited to the policies or practices in place on 28 April 2005) and hence was not directed at any of the conduct that had been found to contravene s 20C, this complaint is made on the basis that the review order was therefore not justified by any evidence before the Tribunal.

1. Before the Tribunal, there was evidence of Harbour Radio's policies given by Mr Thomas, who was and had been since December 2006 the company secretary of Harbour Radio and the Chief Operating Officer of its parent company. In Mr Thomas' affidavit of 5 March 2009 (Blue 74), Mr Thomas (at [12]-[13]), deposed to the provision by Harbour Radio of regular training to all presenters and production teams on the radio station's obligations under the Broadcasting Services Act and Commercial Code and briefings to those persons on the terms of Harbour Radio's Code of Conduct that had been introduced in 2006; as well as the existence of an annual compliance training programme before that time. He also deposed (at [13]) to the attendance by Mr Jones at training organised by the Compliance Committee and what that training comprised.

1. To Mr Thomas' affidavit of 21 April 2009 (Blue 210), Mr Thomas annexed details of and attendance at a 2004 compliance training presentation as well as material relating to the radio station's staff policies, on-air guidelines, compliance audit reports in May 2004 and April 2005, and revised Commercial Radio Code of Practice circulated to all staff in October 2004. The revised Commercial Radio Code of Practice made specific reference to the proscription of broadcasting a programme that was likely, among other things, to vilify any person or group on the basis of race (Blue 315, para [1.3(e)]).

1. Ms Eastman submits that the Tribunal's decision failed to address the fact that there was evidence that there had been some changes in relation to the radio station's policy since the Schedule A broadcast. There is force to the submission that the Tribunal did not consider that material in the sense that it made no express finding as to the adequacy of such policies and practices. It may be implicit in the references to the failure to use the "dump button" and lack of evidence of intercession with Mr Jones that the Tribunal considered that whatever the policies and practices they had proved to be ineffective in this instance, although in my view it does not necessarily follow from a failure to censor or intercede in relation to one broadcast that the radio station's policies and practices were ineffective as a general proposition.

1. In response, Ms Nomchong submits that the order was appropriate in circumstances where Harbour Radio employed the production staff who had assisted Mr Jones in relation to the content and programming of his radio programme; where employees of Harbour Radio had taken no steps to censor/intervene in respect of the Schedule A broadcast even though there was an ability to do so; and where Harbour Radio had failed to provide any evidence to the Tribunal or before the Appeal Panel that its policies and practices as at 2009 contained appropriate racial vilification provisions or were substantially different from those of 2005.

1. It was accepted by both parties, in my view correctly, that the Tribunal's exercise of power under s 108 of the Act must be referable to the subject matter of the complaint. Even where an unfettered statutory power is given to a court, tribunal or executive administrator, that power must nevertheless be exercised judicially (see for example Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 616) and having regard to the purpose for which the power is conferred (Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541).

1. In my opinion, the review order in the present case was sufficiently connected to the conduct the subject matter of the complaint that was found to have been established, notwithstanding the lapse of time between the offending conduct and the time at which the review order was to operate, to bring the order within what were conceded to be the broad powers available to the Tribunal with respect to that order.

1. In my opinion this ground of appeal is not made out.

Relief

1. Pursuant to s 120 of the Administrative Decisions Tribunal Act, this Court may make orders affirming the decision of the Appeal Panel or setting aside such a decision and remitting the case to be heard and decided again by the Appeal Panel either with or without a hearing of further evidence in accordance with directions of the Court.

1. In relation to Mr Jones' appeal, I have concluded that the Appeal Panel did not err in dismissing his contention that he had not engaged in a public act when speaking the words comprising the Schedule A broadcast; but that it did err in not finding that the Tribunal had erred (in both Mr Jones' case and that of Harbour Radio) in finding that the impugned public act had the capacity to incite the requisite emotion because of the Tribunal's failure to identify the particular audience to which the act was directed and to assess the likely effect of the broadcast on an ordinary member of that audience. The Appeal Panel did not extend the appeal to the merits on this issue.

1. The issue as to whether the impugned public act had the capacity to incite an ordinary member of the relevant audience having been raised before the Tribunal but not having been dealt with by it, the appropriate course was for the Appeal Panel to have upheld the appeal by Mr Jones on that ground and to have remitted the matter to the appropriate authority (the Tribunal) for the proper determination of that issue. The Appeal Panel's decision in relation to Mr Jones should be set aside and the complaint with respect to Mr Jones in relation to the Schedule A broadcast remitted to the Tribunal.

1. The same result follows in relation to Harbour Radio, where the same error as to the identification of the relevant audience was made. In addition, an error of law has been established in the failure by the Tribunal separately to consider the applicability of s 20C(2)(c) to Harbour Radio's position. The Appeal Panel's decision should be set aside and similarly the complaint with respect to Harbour Radio in relation to the Schedule A broadcast should be remitted to the Tribunal for redetermination.

1. As to costs, the appellants sought the opportunity to be heard on costs depending on the outcome of the appeal. Directions should be made for any written submissions as to costs within seven days and the issue of costs will be dealt with on the papers.

Orders

1. For the reasons above, I propose the following orders:

1. Appeal allowed.

2. Order 1 made by the Appeal Panel on 20 October 2012 dismissing the appeal by the appellants from the Tribunal's decision in relation to the Schedule A broadcast be set aside.

3. In lieu, uphold the appeal by each of the appellants from the Tribunal's decision in relation to the Schedule A broadcast; set aside that decision and remit the complaints made against each of the appellants in relation to the Schedule A broadcast to the Tribunal for determination in accordance with law.

4. Order the respondent to repay the sum of $10,000.

5. Direct the parties to file any brief written submission in relation to costs within seven days.

1. EMMETT JA: This appeal is concerned with the application of the racial vilification provisions of the Anti-Discrimination Act 1977 (the Discrimination Act) to a radio transmission (the Broadcast) by the second appellant, Harbour Radio Pty Limited (Harbour Radio), the operator of radio station 2GB in Sydney. In the Broadcast, the first appellant, Mr Alan Jones, read out the text of a letter that had been sent to him by a listener. The letter commented adversely on the behaviour of a group of young men at The Rocks in Sydney on 24 April 2005, which had been the subject of a current affairs program televised on the previous evening. The program concerned the behaviour of the young men, who identified themselves as Lebanese, and the interaction between them and police officers. After reading out the letter, Mr Jones made critical comments about the way in which the police had responded to the behaviour in question.

1. Under s 20C(1) of the Discrimination Act, it is unlawful for any person, by a public act, to incite hatred towards, serious contempt for or severe ridicule of a person or group of persons on the ground of the race of the person or members of the group. However, under s 20C(2)(c), s 20C(1) does not render unlawful a public act done reasonably and in good faith for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about, and expositions of, any act or matter. Section 20B provides that, for the purposes of s 20C, a public act relevantly includes:

• any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and the playing of tapes or other recorded material; and
• the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for or severe ridicule of a person or group of persons on the ground of the race of the person or members of the group.

1. On 29 April 2005, the respondent, Mr Keyser Trad, who was then the President of the Lebanese Muslim Association, lodged a complaint with the Anti-Discrimination Board (the Board). Mr Trad complained that Mr Jones had made derogatory comments about him and about the entire Australian Muslim community and Lebanese community. In particular, he complained that the broadcast of Mr Jones' comments were unlawful by reason of the Discrimination Act.

1. In March 2007, the Anti-Discrimination Board referred Mr Trad's complaint to the Administrative Decisions Tribunal (the Tribunal). By the time of referral, Harbour Radio had been included as a respondent to the complaint. On 21 December 2009, the Tribunal found that Mr Trad's complaint of racial vilification in the broadcast was substantiated. The Tribunal ordered Mr Jones and Harbour Radio to pay Mr Trad damages in the sum of $10,000. It directed the parties to confer in relation to an apology to be published and ordered (the Review Order) that Harbour Radio conduct a critical review of its policies and practices on racial vilification and the training provided for employees, with a view to determining whether the practices and policies were adequate to ensure compliance with the racial vilification provisions of the Discrimination Act.

1. Mr Jones and Harbour Radio lodged an appeal to the Appeal Panel of the Tribunal. The Appeal Panel found that the Tribunal had made no error of law that might have affected the ultimate result. However, it found that the Tribunal had made an incorrect finding of fact adverse to Mr Jones. It also accepted that the Tribunal had failed to consider separately the applicability of s 20C(2) of the Discrimination Act in relation to the conduct of Harbour Radio. The Appeal Panel extended the appeal by Mr Jones and Harbour Radio to the merits but limited it to the issue of the Review Order, which it amended. It did not otherwise give leave for the appeal to be extended to a review of the merits of the Tribunal's decision.

1. Under s 114(1) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), where an appeal is restricted to questions of law, the Appeal Panel is to determine the appeal and make such orders as it thinks appropriate in light of its decision. The orders that may be made on any such appeal include, but are not limited to, any of the following:

• an order affirming or setting aside the decision of the Tribunal;
• an order remitting the whole or any part of the case to be heard and decided again by the Tribunal; or
• an order made in substitution for an order made by the Tribunal.

1. Mr Jones and Harbour Radio have appealed from the orders made by the Appeal Panel. Six grounds of appeal were pressed on the hearing of the appeal. They may be summarised as follows:

• the Appeal Panel misconstrued the phrase communication to the public in so far as it concluded that where Mr Jones provided content to Harbour Radio, which in turn, as a licensed broadcaster, communicated that content to the public, Mr Jones had engaged in a public act;
• the Appeal Panel misconstrued the word incite, in so far as it relied on Mr Jones' intentions and his personal characteristics generally to determine whether a hypothetical listener was incited, or capable of being incited, to serious contempt for Mr Trad or a group of persons;
• the Appeal Panel failed to apply an objective test to determine whether the impugned public act incited a member of Harbour Radio's listening audience and disregarded whether an actual listener or actual listeners were incited to serious contempt for Mr Trad or a group of persons by the impugned public act;
• the Appeal Panel misconstrued the phrase on the ground of the race of the person or members of the group by failing to construe the phrase as referring to the sole or dominant purpose of Mr Jones and Harbour Radio in making the impugned public act, by incorrectly considering what the ordinary hypothetical listener would have understood the reason for the public act to be and by failing to dismiss the complaint, despite the Tribunal having found that the conduct at The Rocks on 24 April 2005 was the trigger for Mr Jones reading the letter;
• the Appeal Panel misconstrued s 20C(2)(c) of the Discrimination Act by failing to construe the exception provided in that section as it applied to a corporate entity that did not create the content of the impugned public act, but merely broadcast the content, and by assuming that the question of an act done reasonably and in good faith by an individual was the same as an act done reasonably and in good faith on behalf of a corporation;
• the Appeal Panel misconstrued s 114(2) of the Tribunal Act by failing to give Harbour Radio the opportunity to have its reliance on s 20C(2) considered on the merits, either by extending that aspect of the appeal to the merits or by remitting the matter to the Tribunal; and
• the Appeal Panel misconstrued s 108(2)(3) of the Discrimination Act by not by making an order that applied to employees of Harbour Radio who were not directly or indirectly involved with the impugned public act.

1. I have had the advantage of reading in draft form the proposed reasons of Ward JA. I agree, for the reasons given by her Honour, with the conclusions reached by her Honour in relation to all grounds of appeal. However, I have had some reservations about the first ground dealing with communication to the public. I therefore propose to say something about that ground.

Communicate to the Public

1. Mr Jones and Harbour Radio accept that the Broadcast was a public act within the meaning of s 20C of the Discrimination Act. However, they contend that it was not a public act on the part of Mr Jones. Rather, they say, it was a public act by Harbour Radio, which made the broadcast as the licensed broadcaster in respect of radio station 2GB. They say that Mr Jones did no more than provide content for the broadcast and that he had no capacity to communicate that content to the public. Their contention requires a consideration of the relationship between Mr Jones, on the one hand, and Harbour Radio, on the other, concerning the transmission of the Broadcast.

1. The Broadcast was transmitted in the performance of an agreement dated 11 March 2005 (the Service Agreement) between Harbour Radio, Macquarie Radio Network Limited (Macquarie), Belford Productions Pty Limited (Belford) and Mr Jones. The Service Agreement recited that Harbour Radio was engaged in the business of commercial radio broadcasting through, inter alia, radio station 2GB in Sydney, and that Belford was entitled to the exclusive services of Mr Jones sufficient to enable it to satisfy its obligations under the Service Agreement. The term of the Service Agreement was from 11 March 2005 to 2 March 2010, unless terminated earlier under cl 12, which has no present relevance. Thus, the Service Agreement covered the period during which the Broadcast was made.

1. The pivotal provisions of the Service Agreement for present purposes are cl 4 and cl 5. Clause 4 deals with the obligations of Harbour Radio and cl 5 deals with the obligations of Belford. Mr Jones guaranteed the obligations of Belford. Macquarie, which is the holding company of Harbour Radio, guaranteed the obligations of Harbour Radio.

1. By cl 4, Harbour Radio was obliged, while the Program was being broadcast, to promote Mr Jones, the Program and Mr Jones' association with Harbour Radio. It was obliged to use its best endeavours to broadcast of the Program as widely as possible throughout Australia on reasonable commercial terms. It was obliged to give reasonable notice of, and consult with Mr Jones about, any proposed material change to the overall programming or formatting of radio station 2GB and to broadcast the Program on radio station 2GB unless Belford or Mr Jones were in breach of the Service Agreement or it was unable to broadcast the Program as a result of circumstances outside its control or the broadcast would be in breach of the ABA Code of Conduct. Harbour Radio was obliged to ensure that proper and adequate premises, facilities and equipment and technology for the preparation, production and presentation of the Program were made available at its premises.

1. Clause 5.1 of the Service Agreement provided that Belford was to provide the Services to Harbour Radio and was obliged to use Mr Jones to provide the Services. The Services consisted of planning, preparing, co-ordinating and presenting the Program through Mr Jones, participating in discussions on the content of the Program, ensuring that Mr Jones conducted himself in a professional manner, at the standard of a first-class talkback radio presenter and consistent with the Program being of the highest quality, and ensuring that Mr Jones recorded and read a reasonable number of live radio advertisements. The Program was defined as a live breakfast programme between specified hours each week day or as varied between Harbour Radio and Belford.

1. Clause 5.2 provided that Belford was obliged to do all things necessary to give full effect to the Service Agreement and to refrain from doing anything that may hinder the performance of the Service Agreement. Belford was obliged to ensure that Mr Jones performed the Services for the term of the Service Agreement and to ensure that the Services were provided in a competent and professional manner and in accordance with any editorial and content quality guidelines determined by the Editorial Committee.

1. Clause 6 of the Service Agreement provided for the establishment of the Editorial Review Committee (the Editorial Committee). The Editorial Committee was to determine the editorial policy and guidelines that were to apply to the provision of the services. The Editorial Committee was to consist of the Chairman of Macquarie, Mr Jones and a nominee of the Board of Macquarie. However, Belford and Mr Jones were to have complete discretion and independence as to the content of the program.

1. Clause 11 relevantly provided that Belford and Mr Jones assigned to Harbour Radio all existing and future copyright that they had or would have in the Program, together with any works or subject matter created by Belford or Mr Jones in the course of or in connection with providing the Services (Works). Harbour Radio was given the right to record the Program and the Works and to modify or edit the Program and the Works, provided that it did not materially alter the meaning of statements made by Mr Jones on the Program. Harbour Radio had the right to broadcast or otherwise disseminate or publish the Program and the Works as so modified or edited. However, Harbour Radio granted to Belford and Mr Jones a perpetual worldwide non-exclusive licence to copy and use copies of any material comprised in the Program and the Works for their own purposes, but not for the purpose of commercial exploitation.

1. The question is whether, in the light of those arrangements, it can be said that Mr Jones, as distinct from Harbour Radio, engaged in any form of communication to the public, or in the distribution or dissemination of any matter to the public, by the transmission of the Broadcast. Belford was not the subject of any complaint by Mr Trad.

1. Mr Trad contended that Mr Jones engaged in a public act by speaking himself, by reading out letters and emails selected by him or his staff and by selecting callers to speak on air during the Program. He says that the communication to the public was effected by Mr Jones, through the transmission of the Broadcast on Radio 2GB and by means of simulcasting of the Broadcast on the internet. Mr Trad contended that in the light of cl 4 and cl 6, the effect of the Service Agreement was that Harbour Radio was obliged to transmit the Broadcast exactly as produced, in circumstances where Mr Jones had complete discretion and independence as to the content of the Broadcast. He said that that contractual arrangement gave Mr Jones the capacity to communicate the content of the Program to the public.

1. Mr Jones and Harbour Radio, on the other hand, contended that for the purpose of identifying the person who engages in the relevant public act s 20B focuses on the manner, not the content, of a communication. The person who communicates to the public is not necessarily the person who speaks the words alleged to incite, hatred, contempt or ridicule within s 20C(1).

1. There can be no doubt that the transmission of the Broadcast over radio station 2GB and the internet was conduct of Harbour Radio. It would be unlawful, by reason of the provisions of the Broadcasting Services Act1992 (Cth) (the Broadcasting Act), for a person who is not licensed to do so. Neither Mr Jones, nor Belford, was licensed to do so. Harbour Radio was the licensee under the Broadcasting Act. The Broadcast was transmitted by medium of equipment owned and controlled by Harbour Radio.

1. The language of s 20B requires, in relation to any contravention, the identification of a communication to the public, as well as the identification of the person who communicates. The question is whether, in addition to Harbour Radio's communication to the public, or distribution or dissemination to the public, by effecting the Broadcast, Mr Jones also, in relation to the Broadcast, engaged in a different kind of communication to the public that was still, within the meaning of s 20B, a communication to the public.

1. The racial vilification provisions of the Discrimination Act were introduced in 1989. While the Broadcasting Act was not enacted until 1992, the scheme of licensing it provided for existed under earlier Commonwealth legislation. The New South Wales parliament, in enacting the Discrimination Act, must be taken to have intended, in referring to "broadcasting" and "telecasting", to refer to the regime provided for by Commonwealth legislation. The Discrimination Act should be read in the light of the regime that existed at the time of its enactment.

1. Mr Jones expected, with justification, that Harbour Radio would transmit to the public the content of the Broadcast, being the Program, within the meaning of the Service Agreement. In fact, Harbour Radio transmitted the Broadcast within a very short time after Mr Jones spoke the words. Indeed, the Service Agreement contemplates a "live radio program". However, the Service Agreement contemplates that copyright in the Program would vest in Harbour Radio. The Program may be copied and retransmitted. On the construction accepted by the Appeal Panel, as contended for by Mr Trad, a speaker might be liable for an unlawful act many years after the words are spoken, simply because another person communicates a recording of those words to the public. That liability would arise even if the words were broadcast without the consent of the person. Thus, Mr Jones might be liable for an unlawful act in the distant future if Harbour Radio decided to transmit the Broadcast to the public again. While the words spoken by Mr Jones that are the subject of Mr Trad's complaint were broadcast very shortly after he spoke the words, if the construction accepted by the Appeal Panel and contended for by Mr Trad were to be accepted, s 20B would apply to any subsequent communication of the words spoken by Mr Jones.

1. On the other hand, the definition of public act in s 20B is an inclusive, non-exhaustive one, and the first limb of the definition is very wide. It is defined to include any form of communication to the public, which in turn is defined as including "speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and the playing of tapes or other recorded material". Thus, any form of communication to the public, in the sense of any type or kind or means of communicating, will satisfy the definition.

1. The width of the definition is such that the better view of it is that it would encompass the circumstances of the present case. That is to say, under the Service Agreement, Mr Jones has complete discretion and independence as to the content of the Program. He and Belford have a contractual right to require Harbour Radio to transmit the Program as a live Program between specified hours. Mr Jones knew, when he spoke the words that were transmitted as the Broadcast, that they would be transmitted to the public immediately, or at least no more than a matter of seconds after they were spoken. 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.

1. The position may be different if the compiling and speaking of the content of a program was intended for subsequent transmission at the discretion of a licensed broadcaster. That is not the question presently before the Court. The critical difference is that Mr Jones knew that the content of the Broadcast was to be transmitted almost instantaneously, because he had a contractual entitlement for that to happen.

1. In all of the circumstances, I agree with the conclusion reached by Ward JA that the Appeal Tribunal did not err in concluding that there was a relevant public act by Mr Jones. I agree with the orders proposed by her Honour.

1. GLEESON JA: I agree with Ward JA and the orders which her Honour proposes.

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Amendments

19 September 2014 - Correction to citation

Amended paragraphs: 139

Decision last updated: 19 September 2014