Sunol v Collier (No 2)

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.