Nine Entertainment Co Pty Limited & Ors v Kyle-Sailor

[2022] HCATrans 207

[2022] HCATrans 207

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S62 of 2022

B e t w e e n -

NINE ENTERTAINMENT CO PTY LIMITED (ACN 122 205 065)

First Applicant

NINE DIGITAL PTY LIMITED
(ACN 077 753 461)

Second Applicant

NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407)

Third Applicant

ALEX HEINKE

Fourth Applicant

and

ANDREA KYLE‑SAILOR

Respondent

Application for removal

GAGELER J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 18 NOVEMBER 2022, AT 10.34 AM

Copyright in the High Court of Australia

____________________

MR D.A. McLURE, SC:   May it please the Court, I appear for this matter for the applicants with MR T.O. PRINCE.  (instructed by Thomson Geer Lawyers)

MR R. MERKEL, KC:   If the Court pleases, I appear with my learned friends MR J.E. HARTLEY and MR T.M. WOOD for the respondent.  (instructed by Levitt Robinson Solicitors)

GAGELER J:   Thank you, Mr Merkel.  Mr McLure.

MR McLURE:   Your Honours, section 18C of the Racial Discrimination Act generates attention of two worthy ideals.  On the one hand, the elimination of harmful conduct by reason of race and the other being the freedom to communicate about political matters, including matters of race in the sense held by this Court in Wotton, even if the idea or the rhetorical method may cause offence.

Neither freedom is, of course, absolute, and neither may be enjoyed without detriment.  In terms of the factors relevant to the removal that we seek, we start from the premise – rather, the accepted premise by the respondent that the constitutional issue which we seek to raise is an important one in the sense that it has not been the subject of binding determination by this Court and is, consequently, also ripe.

GAGELER J:   Well, the problem is not the facts and the possibility of a defence applying and being made out.  It is the prematurity of this Court dealing with this issue at this stage.  That is the problem for you.

MR McLURE:   None of the factual questions that are necessary for the determination of the constitutional question will require contest.  They all may be determined within the four corners of the three impugned publications.  Your Honour is correct to say that there would be a contest about the defence under section 18D, but it is our position that if the Court arrived at that position, that would be a matter for remittal.  We do not seek the determination of the section 18D defence in this Court

and it is not necessary to decide that defence in order to resolve the constitutional question.

GAGELER J:   The publications would need to be put in context and inferences drawn by this Court in the first instance as to the content of those publications, is that not right?

MR MCLURE:   Well, your Honour, we submit that all of the contextual matters that would be necessary to construe the impugned publications are admitted between the parties.  That is to say, the publications arose consequent upon the settlement of the Wotton class action.  Neither party suggest that there are other contextual matters that are necessary to determine the correct interpretation of the impugned publications.

Your Honours, in terms of – if I can return to the constitutional question briefly – the objects of the RDA supply an added dimension to the debate that was held in Monis however the core question, we submit, remains the one addressed in Monis, that is to say, whether or not laws prohibiting offence in political communication are incompatible with representative government.

The purpose of the RDA may be said to be the maintenance of dignity and the elimination of racism. We submit that stated in those seductive terms, they are legitimate purposes. Perhaps, however, the purpose of section 18C needs to be addressed more narrowly. We submit that the purpose of that provision is to deter offence where part of the cause of it is race, and because offence will, on occasion, be necessary in order to engage in political communication about matters of race, it is not a legitimate purpose.

In terms of the proportionality of the burden, the circumstances of this case, we submit, raise factors that are quite different to Monis.  In relation to this, we draw your Honours attention to two features of the Docket Judge’s decision in Eatock v Bolt which remains, we submit, one of, if not the leading decision of the Federal Court on section 18C.

The first matter is on the question whether the act is reasonably likely to offend.  While it has been accepted that this is an objective analysis, it was held in Eatock that it is necessary to determine the offence from the perspective of someone in the targeted group.  That is, someone most likely to have been offended by the relevant conduct and not by reference to general community standards.  That is a consideration which was not considered in Monis.

Secondly, while his Honour accepted in Eatock v Bolt that the offence prohibited by section 18C did not extend to personal hurt unaccompanied by public consequence, his Honour held that that public consequence need only be slight, again not a consideration raised in Monis.  These conclusions, we submit, need to be considered in the context of section 18B of the Racial Discrimination Act, which your Honours know permits the causal link between the impugned conduct and race to be only slight.

The combined effect of these points, we respectfully submit, is that section 18C can prohibit conduct which might not be offensive in accordance with general community standards where the cause of the conduct had only a slight connection with the person’s race and may have only a slight consequence for the person aggrieved. Once those circumstances are recognised, the burden of the implied freedom may be said to be substantial.

We draw attention to these matters because, of course, as this Court held in the Unions (No 2) case, the onus of demonstrating that a law is compatible with the constitutionally‑prescribed system of government rests on the party seeking to uphold the law – on this case, the respondent.

GAGELER J:   Why should we be cutting across the usual processes of trial, appeal, and application for special leave to appeal?

MR McLURE:   Two reasons, your Honour.  Firstly, as I have said, there will be no factual contest relevant to the determination of the constitutional questions, but ‑ ‑ ‑

GAGELER J:   Nor is there any urgency.

MR McLURE:   Well, the consequence of the matter proceeding in the ordinary way, through the first instance decision and then, perhaps, an intermediate appeal is that the parties may be expected to cut their cloth according to what has been already held in Eatock v Bolt in terms of the correct construction of section 18C.

GAGELER J:   You can pick the options, though.

MR McLURE:   Your Honour, we would submit that there is a very real prospect that even if the arguments put for the applicant are unsuccessful in this Court are unsuccessful, one probable outcome would be that this Court would arrive at a different construction of 18C to the ones set out in Eatock v Bolt, and that would ‑ ‑ ‑

GAGELER J:   The experience in taking these sorts of constitutional questions too early has been that the parties come along and tend to argue distorted positions on the facts, they take a different position before this Court when it comes to arguing constitutional validity than they would take if everything is in issue in proceedings.  That is a difficulty that we have actual experience with.

MR McLURE:   I understand.  Your Honour, I would accept that if it was essential for the Court to deal with the facts relevant to the section 18D defence, then this case would not be a worthy case for removal, but as I have submitted – and it does not seem to be contested by our friends – that it is not necessary, and, indeed, it would not be correct to engage in a contest on the facts in relation to the section 18D defence.

So, the legitimate concern, with respect, that your Honour raises in relation to the parties advancing distorted contentions of fact will not arise, we submit; the question will simply be whether or not the provisions, according to its terms, passes the tests for burdening the implied freedom.

Your Honours, could I ask your Honours to consider the questions that we propose in the application book at tab 1, page 7, paragraph 2.  Direct to the concerns that your Honour Justice Gageler has just raised, questions 2(a) and (b) are, we submit, effectively pure questions of law.  They will not require findings of fact specific to the case beyond those which have been admitted, and as I have said, the terms of the impugned publications are transcribed and conceded.

GLEESON J: Do you concede that there has been a contravention of section 18C in relation to these publications?

MR McLURE:   No, your Honour.  To the extent that the respondent wishes to adduce evidence of constitutional facts – and this is the matter addressed behind tab 3, page 147, paragraph 15, your Honours would not accept, we submit, that matters of that kind – that is to say, academic literature generated after the enactment of the relevant provision, would need to be the subject of contest, but in any event, could be adduced subject to relevance.  Your Honours, we submit, would have real doubt about the need for expert evidence about that matter, in any event, as is suggested in paragraph 15.

Returning to the questions at page 7, question 2(c), as we would frame it, is an objective question.  Primarily, it would be determined within the bounds of the published words and the facts admitted in the concise statements.  Again, the respondents . . . . . do not identify any fact that would be necessary for that determination.  As I have said, the applicants do not invite the Court to determine the section 18D defence, that will only arise if all of the three questions set out in paragraph 2 of the application are determined adversely to the applicants.

GAGELER J:   So, what would happen in that case?  What would happen if all of the questions were so determined?

MR McLURE:   Remittal. For the section 18D point.  I am sorry, that is incorrect.  If all points are determined adversely to us, then it would be remittal on contravention and the section 18D defence.

GAGELER J:   Leading to a trial, possibly to an appeal and to an application for special leave to appeal.

MR McLURE:   But the determination at the trial and an intermediate appeal would be determined in light of what this Court decides on the constitutional question, and that would be – in all likelihood – foreclosed.  Whereas, without this Court’s determination of the constitutional question, the primary judge and an intermediate Court of Appeal will be faced with having to choose between the evenly decided case in Monis.

Your Honours, can I just make this clear in relation to remittal.  If the answer to question 2(a) is no, that will result in remittal.  If the answer to question 2(a) is yes, and then no to question 2(b), that will be the end of the case.  If the answer to question 2(a) is yes, and 2(b) is yes, then it is only then that the Court will be required to answer question 2(c) – and again, if that question is determined adversely to the applicants, it is only then that there would be remittal.

Your Honours, those are our submissions, unless I can be of other assistance.

GAGELER J:   Thank you.  Mr Merkel, we do not need to hear from you.  We are not persuaded that the case is appropriate for removal into this Court.  The application is refused with costs.

AT 10.47 AM THE MATTER WAS CONCLUDED