Bathurst CJ at [1]; Allsop P at [55]; Basten JA at [75]
Decision:
(1)Declare that s49ZT of the Anti-Discrimination Act 1977 (NSW) does not exceed the legislative power of the State, as confined by the implied constitutional protection of political discourse, and is not invalid on that ground.
(2)Summons otherwise dismissed.
(3)No order as to costs.
[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 Court146s 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:
STATUTORY INTERPRETATION - Anti-Discrimination Act 1977 s 49ZT - unlawful, by public act, to incite hatred - whether regard must be had to effect of act on class of persons to whom it is directed - whether ordinary or reasonable member of class considered
STATUTORY INTERPRETATION - Anti-Discrimination Act 1977 s 49ZT - whether defence of "good faith" requires objective assessment of defendant's intentions
STATUTORY INTERPRETATION - words and phrases - meaning of "incite" - Anti-Discrimination Act 1977 s 49ZT
CONSTITUTIONAL LAW - constitutional validity of legislation - unlawful to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of homosexuality - whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) burdens implied freedom of political communication - whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth)
CONSTITUTIONAL LAW - implied freedom of political communication - whether regard must be had to the content of prohibition said to burden the implied freedom
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Sunol v Collier (No 2) [2012] NSWCA 44
Case
[2012] NSWCA 44
Decision Date
CaseChat Overview and Summary
In *Sunol v Collier (No 2)*, the New South Wales Court of Appeal, constituted by Bathurst CJ, Allsop P, and Basten JA, considered the constitutional validity of section 49ZT of the *Anti-Discrimination Act 1977* (NSW). This provision makes it unlawful, by public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of homosexuality. The proceedings involved a challenge to the validity of this section on the basis that it burdened the implied freedom of political communication guaranteed by the Australian Constitution.
The Court was required to determine two primary legal issues. Firstly, whether section 49ZT of the *Anti-Discrimination Act 1977* (NSW) exceeded the legislative power of the State, as confined by the implied constitutional protection of political discourse. Secondly, in relation to the interpretation of section 49ZT, the Court considered whether the assessment of whether an act incites hatred, serious contempt, or severe ridicule required regard to the effect on a class of persons to whom it is directed, and whether the defence of "good faith" necessitated an objective assessment of the defendant's intentions.
The Court reasoned that for section 49ZT to be invalid on constitutional grounds, it must be found to impose an undue burden on the implied freedom of political communication. The Court held that the provision was reasonably appropriate and adapted to serve a legitimate end compatible with the maintenance of the system of government prescribed by the Constitution. The Court also considered the meaning of "incite" and concluded that the section did not require an objective assessment of the defendant's intentions for the "good faith" defence to apply, nor did it mandate consideration of the effect on a reasonable member of the targeted class.
Ultimately, the Court declared that section 49ZT of the *Anti-Discrimination Act 1977* (NSW) does not exceed the legislative power of the State, as confined by the implied constitutional protection of political discourse, and is not invalid on that ground. The summons was otherwise dismissed, and no order was made as to costs.
Orders
Orders of the court
(1)Declare that s49ZT of the Anti-Discrimination Act 1977 (NSW) does not exceed the legislative power of the State, as confined by the implied constitutional protection of political discourse, and is not invalid on that ground.
(2)Summons otherwise dismissed.
(3)No order as to costs.
[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 Court146s 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.]