Valkyrie and Hill v Shelton - [2023] QCAT 302

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Valkyrie and Hill v Shelton [2023] QCAT 302

PARTIES:

JOHNNY VALKYRIE
DWAYNE HILL

(applicants)

v

LYLE SHELTON

(respondent)

APPLICATION NO/S:

ADL057-20 and ADL058-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

10 August 2023

HEARING DATE:

28 to 30 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. Lyle Shelton’s blog of 16 January 2020, and his posts of 25 January 2020, 25 July 2020, 29 August 2020, 19 September 2020, 2 October 2020 and the video podcast of 17 November 2020 did not and do not amount to vilification of Johnny Valkyrie or Dwayne Hill in contravention of section 124A of the Anti-Discrimination Act 1991 (Qld).

2. ADL057-20 and ADL058-20 are dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where complaints of vilification – how to interpret and apply the Queensland vilification law

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where complaints of vilification – where the respondent published a blog and other posts critical of the complainants’ drag queen performance for children in a library – whether the publications incited hatred towards, serious contempt for, or severe ridicule of the complainants on the ground of their sexuality or gender identity

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where complaints of vilification – where the complainants made their complaints as individuals but relied on vilification of various groups of persons of which they were members – whether such complaints may be made – whether the tribunal should treat the complaints as representative complaints

Anti-Discrimination Act 1991 (Qld), s 4A, s 34, s 124A, s 146, s 194, s 199, s 204, s 206

Human Rights Act 2019 (Qld), s 5(2)(a), s 8, s 13, s 17(b), s 20, s 21, s 26, s 48

Australian Broadcasting Tribunal’s decision in Inquiry Into Broadcasts by Ron Casey (1989), as cited in the NSW Law Reform Commission’s Report 92(1999) - Review of the Anti-Discrimination Act 1977 (NSW)
Australian Macedonian Advisory Council Inc. v LIVV Pty Limited trading as Australian Macedonian Weekly (Anti-Discrimination) [2011] VCAT 1647
Bennett v Dingle (Human Rights) [2013] VCAT 1945
Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Burns v Dye [2002] NSWADT 32
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Laws (EOD) [2008] NSWADTAP 32
Burns v McKee [2017] NSWCATAD 66
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Burns v Smith [2019] NSWCATAD 56
Burns v Sunol [2014] NSWCATAD 2
Burns v Sunol [2014] NSWCATAD 61
Burns v Sunol [2015] NSWCATAD 131
Burns v Sunol [2016] NSWCATAD 16
Burns v Sunol (No 2) [2017] NSWCATAD 236
Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284
Cottrell v Ross [2019] VCC 2142
Deen v Lamb 2001 [QADT] 20
DLH v Nationwide News (No 2) [2018] NSWCATAD 217
Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79
Ekermawi v Jones (No 3) [2014] NSWCATAD 58
Ekermawi v Nine Network Australia Pty Ltd [2019] NSWCATAD 29
GLBTI v Wilks & Anor [2007] QADT 27
Huenerberg v Murray [2023] QCAT 175
John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35
Jones v Scully [2002] FCA 1080
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Kerslake v Sunol (Discrimination) [2022] ACAT 40
Lamb v Campbell [2021] NSWCATAD 103
Margan v Manias [2015] NSWCA 388
Menzies and anor v Owen [2014] QCAT 661
Ms RA v Mr NC [2018] QCAT 94
M v S and G [2008] QADT 24
Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170
Purvis v New South Wales (2003) 217 CLR 92
Rep v Clinch (Appeal) [2021] ACAT 106
Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223
Sisalem v The Herald and Weekly Times [2017] VSC 254
Sloan v State of Victoria (Human Rights) [2021] VCAT 933
Sunol v Collier (No.2) [2012] NSWCA 44
Sun v Nationwide News Pty Limited [2021] NSWCATAD 147
Unthank v Watchtower Bible and Tract Society of Australia (Human Rights) [2013] VCAT 1810
Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18
Vines v Djordjevitch (1955) 91 CLR 512

Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102

APPEARANCES & REPRESENTATION:

Applicant:

Greg Barns SC, Benedict Coyne and Evan Mijo (counsel), instructed by LGBTI Legal Service.

Respondents:

Anthony JH Morris KC and Simon Fisher (counsel) instructed by Human Rights Law Alliance Limited.

REASONS FOR DECISION

These are complaints of vilification brought by Johnny Valkyrie and Dwayne Hill (the complainants) against Lyle Shelton (the respondent).
The complaints are about the respondent’s blog and subsequent posts and a podcast following a drag queen story time event at Brisbane Library presented by the complainants dressed as drag queens.
The complaints were made to the Queensland Human Rights Commission (QHRC). There was no conciliated resolution and the complainants asked for the complaints to be referred to the tribunal to be heard and determined.
The first complaint to QHRC was made by Mr Valkyrie on 27 January 2020 about the respondent’s blog dated 16 January 2020. He said that the respondent:
described me as ‘dangerous’ for children as I am transgender, homosexual and do drag
On 12 June 2020 Mr Hill made a complaint to QHRC based on the same material as Mr Valkyrie’s complaint.
Although it was said on Mr Hill’s behalf that his complaint was to be conducted jointly with Mr Valkyrie’s complaint,[1] the QHRC treated it as a separate complaint. When, on 15 September 2020, the complaints were referred to the tribunal, Mr Hill’s complaint was given case number ADL057-20 and Mr Valkyrie’s was given case number ADL058-20.
[1]Email of 12 June 2020.
After the referral to the tribunal, further posts of the respondent were added to the complaint, with the leave of the tribunal.
The relevant vilification law in Queensland is contained in section 124A of the Anti-Discrimination Act 1991 (Qld) (ADA). It renders unlawful certain public behaviour which incites hatred towards, serious contempt for, or severe ridicule of the complainants on the ground of (of relevance here) their sexuality or gender identity. There are exceptions for fair reporting of existing material and where there is absolute privilege in defamation (proceedings in parliament, courts and inquiries) and (of relevance here) debates and discussions in the public interest.
The vilification law uses a model stated in simple terms but whose meaning and application is unclear.
This is the same model as is used in other States and Territories around Australia. In Queensland there is little case law to clarify how the law should be interpreted. There is more case law in the other States and Territories, but it is inconsistent.
This has made it difficult to decide the correct way to decide these complaints. How I approach this will directly affect the outcome of the matter.

The hearing

The hearing was over three days 28 to 30 November 2022. Regrettably, the legal uncertainties required further submissions from the parties after the hearing and that has delayed the final determination of these complaints.

Application to add claim for victimisation

At the commencement of the hearing, on behalf of the complainants an application was made to amend the complaint to add a victimisation claim. Objections were taken to the proposed amendment and for reasons given orally in the hearing I refused this application.[2]
[2]Transcript 1-14.

Application for disclosure

On day 3 of the hearing after evidence had been given about the moderation of third party comments, on behalf of the complainants two applications for disclosure were made. One was for disclosure of the moderator’s contract of employment, and that was offered without opposition.[3] The other was for disclosure of the third party comments which had been removed by moderation and for reasons given orally in the hearing I refused this application.[4]
[3]Transcript 3-27 line 1.
[4]Transcript 3-32.

Liability only

Although the parties seemed ready to deal with liability and remedy at the hearing, due to certain time and witness difficulties it was decided on day 3 of the hearing to convert the hearing to liability only, leaving remedy to be dealt with at a subsequent hearing if required. This was on the basis that evidence as to remedy adduced during the liability hearing could be taken into account in any remedy hearing.

Presentation of the evidence

I was greatly assisted by the preparation of a searchable trial bundle containing all relevant filed material up to just before the hearing.
This was supplemented by the following documents which were not in the bundle:
(a)Complainants’ Submissions on Facts in Issue and Issues for the Tribunal’s Determination dated 18 November 2022 (provided electronically).
(b)Respondent’s written submissions dated 24 November 2022 (provided in paper form).
(c)Affidavit of Mr Hill dated 25 November 2022 exhibiting all the respondent’s published material and third party comments, and referring to the respondent’s recent posts.
(d)Statement of Facts in Relation to Drag Queen Story Time dated 25 November 2022.
(e)Complainants’ particulars of loss and damage dated 25 November 2022.
(f)Affidavit of Mr Valkyrie dated 27 November 2022 referring to the respondent’s recent posts.
(g)Affidavit of Nelson Tang (solicitor) dated 28 November 2022 about particulars sought from the respondent.
After the hearing, I was assisted by a full transcript of the evidence given over three days provided by the parties.

Exhibits

The exhibits were:
1: ‘Love Makes a Family’ by Sophie Beer.
2: Facebook advertisement for the drag queen story time event.
3: Law Clerk agreement dated 7 October 2020.
4: Courier Mail articles.

Challenges to the evidence

In the bundle were lists of the complainants’ objections to parts of the respondent’s evidence and expert evidence and lists of the respondent’s objections to the complainants’ evidence and expert evidence. I decided to let all the evidence be put before the tribunal on the basis that the lawyers could cross examine if they wished to but they could also explain their position about the evidence in submissions even if a point had not been put in cross examination.[5]
[5]Transcript 1-19.

Expert evidence

On behalf of the respondent there were three experts and Mr Valkyrie had one expert.[6]
[6]For Mr Valkyrie was Dr Julian Dodemaide a consultant psychiatrist, and for the respondent were Dr Mary Rice Hasson, an American attorney and Fellow at the Ethics and Public Policy Center Washington DC, Professor Dianna Theadora Kenny, a consultant psychologist and psychotherapist who treats for gender dysphoria, and Professor Patrick Parkinson AM, a professor of law with particular expertise in family law and child protection.
The respondent’s expert evidence, with one exception,[7] was relied on only to the limited extent to show the nature and extent of the discussion and debate which was alleged to be in the public interest.[8] On behalf of the complainants even this limited reliance was said to be unnecessary because it was admitted that the issue of gender identity or gender dysphoria was in the public interest as topics of public discussion or debate.[9] As it turned out, only Prof Parkinson needed to be called.[10]
[7]Prof Parkinson was relied on for evidence about the drag queen label: respondent’s written submissions dated 24 November 2022 paragraph 65.1.
[8]Respondent’s written submissions dated 24 November 2022 paragraphs 13 to 15.
[9]Complainants’ submissions on facts in issue and issues for the tribunal’s determination dated 18 November 2022 paragraph 4 and transcript 1-19 line 39.
[10]Transcript 3-34.

Evidence of Keira Lee Bell

On behalf of the respondent, Keira Lee Bell provided an affidavit which I read.

Post hearing submissions

The submissions given after the hearing were:
(a)Complainants’ closing submissions on liability dated 24 February 2023.
(b)Respondent’s closing submissions on liability dated 17 March 2023.
(c)Complainants’ closing submissions in reply on liability dated 6 April 2023.
(d)Claimant’s submissions re: nature of complaints dated 3 May 2023.
(e)Respondent’s submissions on representative complaints and related issues dated 4 May 2023.
(f)Respondent’s closing submissions on grounding and capacity to incite dated 28 July 2023.
(g)Complainants’ further submissions re: interpretation and application of s.124A Anti-Discrimination Act 1991 (Qld).

The vilification complaints

It is important for me to identify precisely what acts are said in the complaints to QHRC, as amended by the tribunal, to have been acts of vilification in contravention of section 124A of the ADA.
The complaints to QHRC were much more limited than the amended complaints before me. They were only about a blog published by the respondent on 16 January 2020, and only about vilification directed at the complainants as individuals. There was no complaint of vilification of a group of persons where the complainants were members of the group.
On 12 November 2020, pursuant to the usual tribunal directions, ‘contentions’ were filed on the complainants’ behalf.[11] These referred not only to the original blog of 16 January 2020 but also to further posts up to 2 October 2020. Also the contentions relied not only on vilification directed at the complainants as individuals but on vilification of groups of persons of which complainants were members. On 20 November 2020, a video podcast on 17 November 2020 was added to the contentions.[12]
[11]Bundle page 137.
[12]Bundle page 142.
By a tribunal consent order of 8 April 2021, the complaint was amended to add all the new posts relied on, that is 25 January 2020, 25 July 2020, 29 August 2020, 19 September 2020, 2 October 2020 and the video podcast of 17 November 2020.
The original blog of 16 January 2020 and all the other posts which are the subject of the complaints including a transcript of the video podcast of 17 November 2020 have been exhibited to Mr Hill’s affidavit dated 25 November 2022. In these reasons I have called these ‘the respondent’s published material’.
Although there was no order of the tribunal expressly amending the complaint to include a complaint about vilification of groups of persons where the complainants were members of the group, no point is taken by the respondent about this. Since it could be said that the effect of the tribunal’s directions was to permit such amendment, I shall take it that the complaint in its final amended form, is before me.
On 23 July 2021 the complainants amended their contentions again, this time to include details about comments made by members of the public in reaction to the respondent’s published material and as posted on the Facebook site concerned.[13] In these reasons I have called these comments ‘the third party comments’. Most of these comments printed out from the Facebook site have been exhibited to Mr Hill’s affidavit dated 25 November 2022. It is not being said on the complainants’ behalf that the respondent is liable also for these third party comments.[14] They are only relied on as showing how people reacted to the respondent’s published material.
[13]Bundle page 173.
[14]Transcript 2-90 line 19.
On 25 November 2022 the complainants set out particulars of loss and damage, as directed by the tribunal on 23 November 2022. This referred to subsequent publications of the respondent. They are not relied on as contraventions of the ADA but are relied on in support of a claim for aggravated damages.

The passages to which particular objection is taken

It has been made clear on the complainants’ behalf that not all the respondents’ material is complained of.[15] Instead, the passages mostly relied on have been selected and listed in a document called ‘Amended Index of Publications and Comments’.[16]
[15]Transcript 1-16 line 46.
[16]In the bundle starting on page 181.
It is convenient to split these lists into two parts, although when considering whether they amount to vilification, the parts must be taken in the context of each other and in the context of the respondent’s published material as a whole. To do this, it is necessary to look at the respondent’s published material as a whole, as exhibited to Mr Hill’s affidavit dated 25 November 2022.
The parts of the respondent’s published material which, it is said, particularly support the vilification complaint for Mr Valkyrie, drag queens and transgender persons generally are:
In the blog of 16 January 2020
(a)The title: Why Queeny and Diamond Good-Rim are dangerous role models for children. The complainants were pictured in drag.
(b)The sub-title: Warning: words and images below are shocking. But if we want to protect kids, we need to know who the left want their role models to be.
(c)The wrongdoing is done by those who put drag queens in front of children and who want to spread their radical sexual expressionism and gender confusion to children everywhere.
(d)It’s also worth recognising that in taking a reactionary “stand against” Drag Queen Storytime they were taking a “stand for” something very precious – the innocence of children.
(e)Queeny is a woman who goes by the name of Johnny Valkyrie. Johnny is crowd funding under the name of Jean Genie to help pay for her breasts to be surgically sliced off so she can present as a man.
(f)What are the kids to make of role models like Queeny? Will this lead to more or less confusion among children about their biological gender? Will there be class actions against the likes of Brisbane City Council in the future brought by adults with transgender regret and mutilated bodies.
(g)After referring to the complainants, stating Have we learned nothing from creeps like Harvey Weinstein, Jeffrey Epstein and Prince Andrew?
(h)Drag queens are not for kids.
In the post of 25 January 2020
(a)A repeat of the statement Drag queens are not for kids.
(b)LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation.
In the post of 25 July 2020
(a)Johnny Valkyrie is a woman who presents as a man.
(b)I objected to Johnny being placed in front of children as a role model because Johnny represents and celebrates the idea that gender is fluid, a dangerous idea to sow into the minds of children.
(c)Drag Queens and what they represent are not for kids. They are dangerous role models and they should not be provided a place in front of children in public libraries.
In the post of 2 October 2020
(a)My crime was to assert that they are dangerous role models for children.
(b)Passages stating that drag queens are ‘advocates’ for ‘gender fluidity’ and the adult entertainment industry in presenting Drag Queen Storytime, ‘inducting’ children ‘into the worlds of gender fluidity and sexual expressionism’.
In Pellowe Talk Live
(a)The drag queens [are] suing me for saying that they are dangerous role models to children, which they are.
(b)[HOST: Did you say they personally are, or drag queens generically are?] Well both because if you put gender fluid role models in front of children, in my opinion I think that’s a dangerous role model.
The parts of the respondent’s published material which, it is said, particularly support the vilification complaint for Mr Hill, but also support the case for drag queens and persons generally on the ground of sexuality:
In the blog of 16 January 2020
(a)Referring to Diamond Good-Rim The homo-erotised name, a reference to the anus, should be enough to ring alarm bells in the minds of thinking parents let along (sic) the geniuses at Brisbane City Council who thought it was a good use of ratepayers’ resources to put him in front of kids.
(b)Good-Rim is a 2019 winner of an X Award from the Adult Entertainment Industry.
(c)Have we learned nothing from creeps like Harvey Weinstein, Jeffrey Epstein and Prince Andrew?
(d)Whose idea was it to put a porn star in front of children?
(e)Let’s hope the kiddies watching Drag Queen Storytime last Sunday don’t go exploring on Good-Rim’s Facebook page. Or ask their mum what “good-rim” means in the wonderful world of drag queens.
In the post of 25 January 2020
(a)When referring to images in the Twitter account of the presenter of drag queen story time events in Melbourne: .. I felt it necessary to publish because of the deceitful nature of the rainbow political agenda and the debauched world to which it seeks to induct children, and here he is in the debauched LGBTIQA+ world to which he is seeking to induct children.
(b)When referring to images in the Facebook account of the presenter of drag queen story time events in Perth Admittedly this is a private facility but is (the provider of the facility) being responsible putting (the presenter) out there with children given what he represents in his debauched queer world? Note the simulated sexual violence (hair pulling).
(c)Good-Rim’s name is a deliberate reference to obscene and filthy homosexual activity. “Mummy what’s a good rim?” a child might ask. Don’t answer that.
(d)LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation.
In the post of 25 July 2020
(a)Good-Rim is a reference to a homosexual sex act and he is also involved in the sex trade as an “adult entertainer”.
(b)It would be obvious to the overwhelming majority of mainstream Australians that Good Rim is a dangerous role model for children.
In the post of 19 September 2020
The drag queen Diamond Good-Rim, whose name is a reference to anal sex ..
Generally
(a)Passages incorrectly saying that Mr Hill used the name ‘Diamond Good-Rim’ when performing to child audiences. He only used that name when performing to adult audiences; when performing to child audiences he used the name ‘Diamond’.
(b)Passages incorrectly saying that Mr Hill was in the pornography and ‘sex trade’ industries.

The two limbs of the complaints

The vilification complaints as amended have two limbs:
A.Vilification directed to the complainants as individuals.
B.Vilification of groups of persons where the complainants were members of the group.
In addition to these two limbs it can be seen that the vilification complaints rely on two different ways of viewing the words used in the respondent’s published material:
1.General vilification of the complainants as individuals and as members of a group arising from the literal meaning of the words in the articles.[17]
2.Vilification of the complainants as individuals and as members of a group arising from imputed meanings of the words in the articles, namely that the complainants were a danger to children and were child sex offenders.[18]
[17]Second further amended complainants’ contentions dated 27 November 2022 paragraph 6.
[18]Second further amended complainants’ contentions dated 27 November 2022 paragraphs 7 and 8.

Individual complaints

Limb A offers no challenges as far as jurisdiction is concerned.
For A2, that is complaints as individuals based on imputations, the complainants say that the relevant passages in the respondent’s published material effectively asserted that:[19]
(a)The complainants when dressed as drag queens, were dangerous to children.
(b)Mr Valkyrie, however dressed, was dangerous to children due to the fact that he was a transgender person.
(c)The complainants were child sex offenders.
(d)Mr Hill, however dressed, was dangerous to children.
[19]Second further amended complainants’ contentions dated 27 November 2022 paragraphs 7 and 8.
In the amended contentions, the complainants give particulars explaining why it is said that the relevant passages in the respondent’s published material make those assertions. This is supported by a document entitled ‘Further Particulars on Behalf of the Complainants’,[20] and also written submissions.
[20]Bundle page 191.

Vilification of groups of persons where the complainants were members of the group

Limb B of the complaints, that is vilification of groups of persons where the complainants were members of the group, may present some jurisdictional challenges.
The groups of persons in their final form are:[21]
(a)drag queens;
(b)transgender persons;
(c)persons with a homosexual sexual orientation;
(d)members of the numerous and diverse LGBTIQ+ community; and/or
(e)LGBTIQ+ human rights and community advocates.
[21]Complainants’ closing submissions dated 24 February 2023 paragraph 10(a). For previous forms see second further amended complainants’ contentions dated 27 November 2022 paragraph 6(b) and complainants’ submissions on facts in issue and issues for the tribunal’s determination dated 18 November 2022 paragraph 12(b).
Collectively, in the complainants’ submissions, these groups of persons are called the ‘Named Groups’ or the ‘Representative Identity Groups’. Hence the complainants say that they can make a complaint of a contravention of section 124A on the basis that they are members of the groups concerned.
The vilification of the named groups is said to be because, by implication, the respondent’s published material asserted:[22]
(i)      That drag queens, and therefore also transgender persons and persons with homosexual sexual orientation, are dangerous to children.
(ii)      That drag queens are ‘advocates’ for gender fluidity and the adult entertainment industry in presenting Drag Queen Storytime, ‘inducting’ children ‘into the worlds of gender fluidity and sexual expressionism’.
(iii)     That transgender persons are dangerous to children.
(iv)     In the 25 January 2020 article, that ‘LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation.’
[22]Second further amended complainants’ contentions dated 27 November 2022 paragraph 8, also in the same terms complainants’ submissions on facts in issue and issues for the tribunal’s determination dated 18 November 2022 paragraph 15.
I had some concern about how far the complainants could go with this limb of the complaints, and therefore about my jurisdiction to hear and determine it, bearing in mind groups (a), (d) and (e) do not as whole hold the protected attributes of sexuality or gender identity under section 124A. There are comprehensive provisions in the ADA when dealing with representative complaints, and about who can complain to QHRC. I asked for submissions on this issue and I am grateful for the additional submissions received on behalf of the parties.
I have considered this matter in schedule 1 of these reasons. I have concluded that it is appropriate to treat the complainants as members of sub-groups of the named groups of persons (a), (d) and (e). Taking Mr Hill and the drag queen group as an example, Mr Hill was a member of a homosexual sub-group of the drag queen group. On that basis he would have standing to make the complaint and could show a contravention of section 124A if the offending material would incite hatred etc. towards the drag queen group on the ground of the sexuality of his sub-group.

Uncertainties in the vilification law

Identifying the law to apply to these complaints has been difficult. I am grateful to the lawyers on both sides for their written and oral submissions before during and after the hearing, and for their extensive citation of authority.
The Queensland vilification provision (leaving aside for the moment the exceptions for fair reporting and public interest discussion) is in these terms:[23]
A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
[23]Section 124A of the ADA.
In Menzies and anor v Owen [2014] QCAT 661 at [17], Member Fitzpatrick set out the legal principles identified by Member Savage SC, in GLBTI v Wilks & Anor [2007] QADT 27 as applicable here, with slight amendments to the source references:
(a) The respondents’ intent to incite is irrelevant: Burns v Dye [2002] NSWADT 32, para 21; John Fairfax Publications Ltd v Kazak [2002 NSWADTAP 35 at para 10; Veloskey & Anor v Karagiannakis & Ors [2002] NSWADTAP 18, para 24, Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, para 12.
(b) What is required is that there has been incitement to another to hate etc rather than a mere conveyance of a hatred already held by the speaker cf Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, para 33.
(c) “Incite”, “hatred”, “contempt” and “ridicule” should all be given the ordinary natural meaning i.e. to incite – urge on, stimulate or prompt to action cf Burns v Dye supra para 19; John Fairfax Publications Ltd v Kazak supra para 40.
(d) It is not necessary that it be proved that any particular person was incited but that the capacity of the public act to incite the ordinary reasonable person is what must be made out cf Deen v Lamb [2001] QADT 20 see also John Fairfax Publications Ltd v Kazak supra; Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284; Burns v Laws (No.2) [2007] NSWADT 47;
(e) The incitement to hatred must be on “the grounds of sexuality” meaning that that matter was a “substantially contributing factor” cf Waterhouse v Bell (1991) 25 NSWLR 99, 106 per Clark JA; Velsokey supra, Burns v Dye. Sexuality is defined in the Act’s schedule (Dictionary) as inter alia homosexuality.
In Menzies, Member Fitzpatrick accepted submissions that (d) should read ‘ordinary member of the class to which the public act is directed, taking account of the circumstances in which the conduct occurs’, in line with Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284 and should not read ‘ordinary reasonable person’.
When deciding the complaints before me, it quickly became clear from reading the submissions of the parties and some of the authorities cited, that although most of the legal principles set out in Menzies were properly applicable, there were uncertainties about some of them.
One uncertainty was how the hypothetical audience should be constructed in order to apply the objective test of whether the public act would incite members of that audience on the relevant ground. The answer to this question is of central importance to this complaint and directly affects its outcome.
This uncertainty can be described in this way (using words borrowed from the various cases which have considered this):
When deciding whether the hypothetical audience would be incited by the public act, should people who hold extreme views or who are unthinking and not susceptible to being roused to enmity be filtered out? Or should such people be included? Is it appropriate to filter the hypothetical audience by taking an ‘ordinary reasonable person’, or should it be an ‘ordinary person’, or an ‘ordinary member of the class to which the public act is directed, taking account of the circumstances in which the conduct occurs’? Or should some other test be used such as whether ‘the natural and ordinary effect’ of the public act would be to incite?
A second uncertainty was for a public act to be vilification, whether it was sufficient for it to have the ‘capacity to incite’ the hypothetical audience or whether it should be ‘likely to incite’ or whether some other formulation was required. Menzies referred in (d) to the ‘capacity to incite’. But in Burns v Laws (No 2) [2007] NSWADT 47 Deputy President Chesterman sitting with Members Mooney and Quayle said that these words had the potential to understate what must be proved, and if such words were used it should be understood that they refer to the actual effect of the public act rather than the potential or possible effect.[24]
[24][110] and [111]. This has been cited with approval by several subsequent NSW tribunals, but nothing higher, for example Burns v McKee [2017] NSWCATAD 66 at [75], and it has been ‘borne in mind’ in Burns v Sunol [2012] NSWADT 246 at [16] and Burns v Sunol [2015] NSWCATAD 131 at [50] (not questioned in an appeal).
A third uncertainty which would have a direct effect on the outcome of the complaints was whether ‘on the ground of’ in the vilification law refers to the public act (requiring the public act to be done on the ground of the attribute) or refers to the reaction of the audience (requiring the audience to react on the ground of the attribute) or both.
Despite this law being in place for some 22 years now, how the words should be applied has never been considered by the QCAT Appeal Tribunal or by a higher court in Queensland.[25]
[25]The closest was Owen v Menzies & Ors; Bruce v Owen; Menzies v Owen [2012] QCA 170 but that dealt only with the applicant’s standing in QCAT, whether QCAT was a court of a State within Chapter III of the Commonwealth Constitution, and whether section 124A of the ADA infringed the implied constitutional freedom of communication about government and political matters.
As stated in the explanatory note to the Bill which first introduced the Queensland vilification law,[26] it was modelled on the New South Wales racial vilification law. Closely similar wording is also used in the ACT, Tasmania and Victoria. So ideally I could look to case law in those States and Territories to see how to apply the test.
[26]Explanatory note to the Anti-Discrimination Amendment Bill 2001 (Qld) page 2.
A survey of that case law however shows otherwise. Schedule 2 to these reasons demonstrates that there is no consensus across the jurisdictions about the uncertainties mentioned above, despite as shown in schedule 3 the law in those jurisdictions is closely similar.
The vilification law is an important prohibition against behaviour which is protective of those with certain attributes, but which also impacts human rights of free speech. It is regrettable that the test for vilification remains unclear after so long.
The uncertainty about these things must make the task of lawyers trying to assess the merits in these cases very difficult. And for the decision maker there are so many different tests to choose from, that this is difficult to do so without applying a subjective view. As Principal Member Britton in the NSW tribunal has said in several decisions, applying the test is ‘inevitably impressionistic and does not lend itself to empirical measurement or scientific assessment’,[27] and that it is apparent that ‘reasonable minds may differ on whether a particular public act has the capacity to incite’.[28]
[27]For example, Burns v Sunol (No 2) [2017] NSWCATAD 236 at [62].
[28]For example, Burns v Sunol [2015] NSWCATAD 178 at [51]. The Appeal Panel of the NSW tribunal in Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 at [43] also described the test elements as ‘largely matters of impression and as such, they are matters upon which minds may reasonably differ.’

The elements of vilification

In these reasons, with the assistance of persuasive rather than any binding authority, I need to decide which approach to take to apply the Queensland vilification law.
Vilification is prohibited by section 124A of the Anti-Discrimination Act 1991 (Qld) (ADA). If there is a contravention of section 124A then this is unlawful and it can be the subject of a complaint despite not being related to an ‘area of activity’ under the ADA, such as the provision of services or accommodation. So section 124A is a standalone prohibition against certain behaviour. The section provides:
124A Vilification on grounds of race, religion, sexuality or gender identity unlawful
(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
(2) Subsection (1) does not make unlawful—
(a) the publication of a fair report of a public act mentioned in subsection (1); or
(b) the publication of material in circumstances in which the publication would be subject to a defence of absolute privilege in proceedings for defamation; 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 public discussion or debate about, and expositions of, any act or matter.
In section 131A there is another vilification provision where there are threats of, or incitement to, violence and which can result in a criminal prosecution. In this complaint I am not concerned with that provision.

Public act

For an act to be vilification under section 124A of the ADA the act must be a ‘public act’. Section 4A of the ADA defines ‘public act’ as follows:
4A Meaning of public act
(1) A public act includes—
(a) any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and
(b) any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
(2) Despite anything in subsection (1), a public act does not include the distribution or dissemination of any matter by a person to the public if the person does not know, and could not reasonably be expected to know, the content of the matter.
It can be seen that the definition includes any communication to the public, or conduct observable by the public. It can be seen that there can be no vilification where the act is one in which only the perpetrator and the complainant are involved.
Here there is no dispute between the parties that each part of the respondent’s published material was a public act.[29]
[29]Complainants’ second further amended statement of contentions dated 27 November 2022 paragraph 12, complainants’ submissions on facts in issue and issues for the tribunal’s determination dated 18 November 2022 paragraph 25, and respondent’s written submissions dated 24 November 2022 paragraph 4.

Somebody to incite

A slightly different requirement before vilification can be found, is that there must be somebody who could be incited to hatred etc. by the public act. As Nettle JA said in Catch the Fire:
[16] Evidently, there can be no incitement in the absence of an audience. It is not a contravention of s.8 to utter exhortations to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions.
It is conceivable that it might be found as a fact by the tribunal that, although there was a public act, for one reason or another, there was no one upon whom the public act could have had an impact. This would seem to be fatal to the complaint of vilification on the above authority.
For example, the facts of the QCAT case of Ms RA v Mr NC [2018] QCAT 94 were that a man in a lift spoke in Arabic in a disparaging way about the prophet Mohamad to a woman wearing a hijab. There was another man in the lift, and so the tribunal found that the speaking was a public act. But on the authority of the passage cited above, if it were a fact that the man did not understand Arabic then it would seem to be open to tribunal to find that there was no one who could be incited by the public act, at least by the spoken words.

Hatred, serious contempt or severe ridicule

Unless an exception such as fair comment or public interest applies, vilification occurs under section 124A of the ADA if a person incites hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group. Hatred, serious contempt and severe ridicule are strong words.
The words can be contrasted with the words used in the sexual harassment provision, section 119, which refers to offending, humiliating or intimidating a person even in private. It is to be noted that the ADA only prohibits sexual harassment and not harassment on the ground of race, religion, sexuality or gender identity. It was obviously a deliberate decision to protect people with those attributes not by way of harassment law but by way of the vilification provisions for public acts.
I note the respondent’s submission relying on M v S and G [2008] QADT 24 at [77] that the words used in the ADA indicates ‘that the relevant incitement, to attract the operation of the Act, must be towards the extreme end of the spectrum of comment’.[30]
[30]Respondent’s written submissions dated 24 November 2022 paragraph 56.1.
The difficulty of course is that what I regard as ‘extreme’ will differ from what other decision makers regard as extreme. Meanwhile it seems, my decision on whether the public act amounts to vilification will be a question of fact.[31] This makes it more difficult to appeal and try to get a second opinion.
[31]Margan v Manias [2015] NSWCA 388 at [77].

Who must be incited (how to construct the hypothetical audience)?

It is well established that in vilification cases, the complainant does not actually have to prove that anyone was incited to hatred etc. by the public act.[32]
[32]See cases cited in Jones v Trad [2013] NSWCA 389 at [50], also Catch the Fire, Nettle JA at [14] and Neave JA at [154].

This was also recognised in the explanatory note when the vilification legislation was first enacted in Queensland by the Anti-Discrimination Amendment Act 2001 (Qld). The relevant part of the explanatory note to the Bill says:
Consistent with the interpretation that has been accorded “incite” in other jurisdictions, the section will not require proof that anyone was actually incited to be satisfied.
In Deen v Lamb 2001 [QADT] 20, Walter Sofronoff QC, President, having explained that it was not necessary to show that any particular person was incited, said:
The section directs attention towards the nature of the act, not the result of it.
This means that (a) if there is actual evidence that none of the possible witnesses to the act were incited, this does not mean that the complaint will fail; conversely (b) if there is evidence that that a witness was incited this does not mean that the complaint will succeed.
(a) was envisaged by Neave JA in Catch the Fire:[33]
I therefore agree with Nettle, J.A. that the Tribunal did not err in finding that s.8 covers conduct which is capable of causing hatred of or other relevant emotion towards a person or class of persons on the grounds of their religious belief, even if it does not actually succeed in provoking that response.
[33][154].
(b) was envisaged by Senior Member Orr QC in Kerslake v Sunol (Discrimination) [2022] ACAT 40:[34]
It is not necessary to show that anyone was actually incited. It flows from this and the objective test for vilification that even if someone is incited, this may not be enough to show vilification.
[34][76].
This also means that the vilification test needs to be applied to a hypothetical audience. The explanatory note to the 2001 Bill explains:
The test of whether incitement has occurred is an objective one based on a hypothetical listener or viewer.
On the question how the hypothetical audience should be constructed, two opposing views were described in the NSW Law Reform Commission’s Report 92(1999) - Review of the Anti-Discrimination Act 1977 (NSW):
7.123 Who must be incited?
There are two views on who must be incited. The EOT in Harou-Sourdon quoted with approval from the Casey decision that:
the yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal’s view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views.¹²⁵
7.124 A contrasting view which is considered to be a more realistic test¹²⁶ is that it must be “anybody, even the most malevolent or unthinking person, who might be inspired to treat the targets with hatred or contempt”.¹²⁷
¹²⁵(1989) 3 BR 351 at 357.
¹²⁶N Hennessy and P Smith, “NSW Racial Vilification Laws Five Years On” (1994) 1(1) Australian Journal of Human Rights 249 at 253.
¹²⁷Nealy v Johnston (1989) 10 CHRR 6450 at 6470.
N Hennessy and P Smith in the article in note 126 above, having cited the Casey test, pointed out:[35]
In contrast, the Canadian Human Rights Tribunal held in Nealy v. Johnston that in assessing the impact of an allegedly vilifying message upon recipients, the test to be used is not the objective one of
. . . the reasonable listener, but whether there is anybody, even the most malevolent or unthinking person, who might be inspired to treat the targets with hatred or contempt.
This is a more realistic test than the one quoted by the EOT in Harou-Sourdon because if a person does not hold racially prejudiced views, presumably he or she could not, in any circumstances, be incited to hate others on the ground of their race.
[35][2.6].
Whether those with extreme views, or who are unthinking and not susceptible to being roused to enmity, should be filtered out from the hypothetical audience seems to be a very similar question to whether the hypothetical audience should be an ‘ordinary member of the class to which the public act is directed, taking account of the circumstances in which the conduct occurs’ or whether it should be ‘the ordinary reasonable person’, or whether this should be ‘an ordinary person’ or whether it should be some other formulation. The task of identifying the hypothetical audience has been described as finding ‘descriptors’ for the audience.[36]
[36]John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [13].
In their submissions the parties have suggested various tests. On behalf of the complainants it is said that the test is ‘ordinary members of the audience for the publications’, ‘an ordinary member of the relevant class who access the material’, ‘an ordinary member of the class to whom the act is directed/the audience or likely audience’, ‘an ordinary reasonable reader’, ‘an ordinary reasonable person’, or ‘an ordinary reasonable person not immune from susceptibility to incitement, nor holding prejudiced views’.[37]
[37]Complainant’s submissions on facts in issue and issues for the tribunal’s determination dated 18 November 2022 paragraphs 17(b), 29 and 34, complainant’s closing submissions dated 24 February 2023 paragraph 9, B4, 23(d), 23(j), 34(a), 34(b), and 44.
On behalf of the complainants a ‘tinderbox’ argument has also been presented in which it is said that the ordinary members of the relevant class were a tinderbox ready to be set alight by the respondent’s inflammatory words, because ordinary members of the relevant class would be likely to have conservative views on social issues and be more readily triggered or incited by the respondent’s published material.[38] This test is therefore quite different from the ‘ordinary reasonable reader’ test also contended for on the complainant’s behalf.
[38]Closing submissions dated 24 February 2023 paragraphs 36 and 41.
Later submissions on the complainants’ behalf revisited this issue and proposed a ‘more nuanced approach’. Although it was said that the test might be ‘whether the natural or ordinary effect of the conduct is to incite .. in the circumstances of the case including the appropriate social and historical context’, the preferred test is the ‘ordinary person in the relevant social/historical context in the class of persons in the audience or likely audience to which the impugned public act was directed’.[39]
[39]Complainants’ further submissions re: interpretation and application of s.124A of the Anti-Discrimination Act 1991 (Qld) dated 4 August 2023 paragraphs 21, 41, 51 and 61.
On behalf of the respondent the test is also put in various ways. It is said that for vilification the words must incite ‘an ordinary and reasonable member of the public’, or ‘an ordinary member of the relevant class who accessed the material’ that is ‘internet users at large’, or the words must have a ‘natural and ordinary effect’ to incite the audience.[40] In later submissions on behalf of the respondent it is said that the test was whether the ‘natural and ordinary effect was to incite .. an ordinary reasonable member of the public’ or ‘an ordinary member of the respondent’s audience which – according to prior authorities – is an ordinary user of the internet’.[41]
[40]Respondent’s written submissions dated 24 November 2022 paragraphs 60.1, 60.2, 61, 62, and 66; respondent’s closing submissions on liability dated 17 March 2023 paragraphs 61, 63(a), 63(b) and 64.
[41]Respondent’s closing submissions on grounding and capacity to incite dated 28 July 2023 paragraph 9.
The way the hypothetical audience is constructed needs to cope with all the following scenarios and produce the ‘correct’ outcome in each case. My difficulty, and no doubt the difficulty faced by first instance decision makers in such cases, is knowing what, in accordance with the intention of the legislature, is the correct outcome. In the table below I have made assumptions about this. I do not think this can be helped. The table is of course subject to the fair comment and public interest defences.

Scenario

Is it vilification subject to the fair comment and public interest defence?

A

An internet blog whose audience is the general public ‘outs’ the complainant, a prominent politician, as homosexual.

No

B

A man enters a bar frequented by homosexual persons and shouts abuse about homosexuality. Only those in the bar are witnesses.

No

C

Academic research reports that people of a certain race do worse in Western style intelligence tests than other races. The report is presented by a speaker at a conference attended mostly by those interested in promoting equal opportunities.

No

D

A man stands outside a bar frequented by homosexual persons and shouts abuse about homosexuality. Members of the public passing by are witnesses.

Possibly

E

A strongly worded internet blog written by neo-Nazis recommends that Muslims and Jews be identified and deported. The audience is the general public.

Yes

F

A speaker at a neo-Nazi rally open to the public makes a strongly worded speech recommending that Muslims and Jews be identified and deported.

Yes

G

The complainant, a prominent politician, is ‘outed’ as homosexual in a highly charged public rally attended mostly by people who are vehemently against homosexuality.

Yes

H

Academic research reports that people of a certain race do worse in Western style intelligence tests than other races. The report is presented by a speaker at a neo-Nazi conference open to the public to support proposals to identify and deport people of that race.

Yes

I now apply the ‘ordinary reasonable person’ test to the scenarios in the table. In other words the audience is taken to be reasonable – not holding extreme views, not unthinking, and not susceptible to being roused to enmity. It seems to me that the outcomes are all ‘correct’ except for G which has the outcome of ‘no’ yet the outcome should be ‘yes’. And depending on how reasonable this audience is supposed to be, the answer to E and F and H might also be ‘no’ when it might be thought the answer should be ‘yes’. It can be seen that the ‘ordinary reasonable person’ test is not universally successful.
In other words, this test allows a respondent to escape liability for a public act which would amount to vilification if witnessed by an audience in an emotionally charged public meeting where reason had been pushed aside by passion or hatred, on the grounds that no reasonable person would be incited by the public act.[42] The test would also allow a respondent to try to escape liability for a public act which would amount to vilification if, by luck, the only witness was or witnesses to the public act were, ‘unthinking’,[43] or ‘immune to susceptibility to excitement’.[44]
[42]As contemplated by Neave JA in Catch the Fire at [157] and Allsop P in Sunol v Collier (No 2) [2012] NSWCA 44 at [61].
[43]As discussed in Veloskey & Anor v Karagiannakis & Ors [2002] NSWADTAP 18 at [26].
[44]As discussed in Burns v Dye [2002] NSWADT 32 at [65].
The ‘reasonable member of the class of persons to whom the publication is directed’ test seems to give the same outcomes as the ‘ordinary reasonable person’ test. It does not seem to work in every case.
I now apply the ‘ordinary member of the class’ rather than a ‘reasonable member’ test, that is containing people who may not be reasonable at all. It seems to me that this produces better outcomes except that in A is a ‘yes’ when it should be ‘no’. Again the test is not universally successful.
It can be seen that the ‘ordinary person’, ‘ordinary reasonable person’ and ‘ordinary member of the class to whom the publication is directed’ tests can be made to work if the ‘right’ test is selected to achieve the ‘correct’ outcome. So it is possible to say that usually the test can be the ‘ordinary member of the class rather than a reasonable member’ test but that when this gives the ‘wrong’ outcome then the ‘ordinary reasonable person’ test should be used instead.
Nettle JA referred to this in a postscript to his judgment in Catch the Fire where he said:
[115] Since writing this judgment, I have had the opportunity to read in draft the reasons for judgment of Neave, J.A. and Ashley, J.A. and, with the benefit of their insight, I wish to add three things to what I have written.
[116] First, for the purposes of determining what constitutes “incitement”, although I have concluded that one may usually assume a degree of reasonableness among an audience, as Neave, J.A. demonstrates, that will not always be so.
And this is what happened in Rep v Clinch (Appeal) [2021] ACAT 106. This concerned Facebook posts which were said to be vilification of the complainant on the ground of gender identity. The appeal panel said:[45]
[152] The more difficult issue is as to the relevance of this aspect of context and the response of Ms Rep’s audience. Part of this difficulty arises from the fact that there have been a number of judicial and tribunal views as to who are the relevant audience when deciding whether a statement could incite them and therefore amount to vilification. This consideration indicates that there are three possibilities. The first is an “ordinary reasonable reader”, that is, a reasonable member of the public. The second is “a reasonable member of the class of persons to whom … [the publication] is directed”, which directs attention to the actual audience. The third is “an ordinary member of the class rather than a reasonable member”, who may not be reasonable at all.
Then having cited the views of Bathurst CJ and Allsop P in Sunol v Collier (No.2) [2012] NSWCA 44 and having considered the three possible tests, the appeal panel said:
[158] In summary, the posts were available to anyone to read on the internet, which included Ms Rep’s supporters, who generally agreed with and often amplified her strongly expressed views, and Ms Clinch’s supporters, who generally disagreed with Ms Rep and her supporters in strongly expressed terms. Because of this, in this case, we think that the relevant audience for assessing whether there was vilification is an ordinary and reasonable member of the public. This reflects the position of Allsop P, rather than Bathurst CJ. We think this approach is warranted in this case since this reflects the actual diverse audience, and the position that the test for vilification is an objective one. To have regard to only Ms Rep’s supporters, or Ms Clinch’s supporters, would distort the operation of section 67A and run the risk of making either everything Ms Rep says, or nothing she says, vilification. Such extreme positions would not appropriately balance the non-discrimination and freedom of expression principles.
[45]Acting Presidential Member R Orr QC and Senior Member Prof. P Spender.
So in Rep v Clinch, having identified three possible ways of filtering the views of the hypothetical audience, as can be seen from the summary in [158], the appeal panel chose the one to use by deciding which test seemed to give the correct outcome.
The obvious problem with this approach is that the tribunal has to decide the correct outcome first, and then choose the test to achieve that outcome. This means that on appeal, the losing party would need to understand how the tribunal decided upon the correct outcome, yet this may not be apparent or expressed.
There is also a paradox if it is necessary to add the ‘reasonable person’ filter for a general audience, because it makes it feasible for example for exactly the same video podcast to amount to vilification when played to people fired up in a neo-Nazi rally, yet not to amount to vilification when viewed by the general public. This is because there would be no filtering of the people at the rally (the audience would be taken to include the most unreasonable people) but there would be filtering of the general public (the audience would be taken to exclude the most unreasonable people). It is difficult to see that the legislature intended such a distinction to be made.
These outcomes are also affected by the degree of reasonableness of the hypothetical audience. If the most unreasonable people are to be filtered out of the hypothetical audience how unreasonable must they be? Again this can be adjusted by the decision maker to achieve what seems to be the correct outcome.

A different type of test was proposed in Catch the Fire, although it was proposed in parallel with the ‘ordinary member of the audience’ test. It was said that the tribunal should consider the ‘natural and ordinary effect’ of the public act having regard to the nature of the audience.[46]
[46]Nettle JA at [19] and [30], and Neave JA at [158] where the test was said to be the ‘natural or ordinary effect’.
Assuming that the use of these words means that unnatural and extraordinary responses for that audience should be ignored, which is an easier way to look at this, then this test produces the ‘correct’ outcome in every scenario I the table above.
The ‘natural and ordinary effect’ test has only been expressly applied in a few later decisions after Catch the Fire[47] and notably it has not been applied in the subsequent NSW Court of Appeal decisions where the ‘ordinary member of the audience’ test has been preferred.
[47]Australian Macedonian Advisory Council Inc. v LIVV Pty Limited trading as Australian Macedonian Weekly (Anti-Discrimination) [2011] VCAT 1647 at [66], Sisalem v The Herald and Weekly Times [2017] VSC 254 (on appeal) at [4] and [10], and Sloan v State of Victoria (Human Rights) [2021] VCAT 933 at [60].
Since the ‘natural and ordinary’ effect test seems to work in all the scenarios in the table, and it seems likely to reduce the impact of the subjective views of the decision maker, I propose to adopt it to decide these complaints.
Therefore my conclusion is that the test that I should apply to these complaints is:
Whether on the balance of probabilities the natural and ordinary effect of the public act having regard to the nature of the audience being considered, would be to incite members of that audience on the ground of (the attribute). The test is easier to apply by considering whether the audience being considered would be incited to hatred etc., ignoring unnatural and extraordinary reactions of that audience.

This test makes redundant I think, any other test of whether the public act was ‘capable’ of inciting or had ‘the capacity to incite’ or was ‘likely’ to incite or any such formulation. Although these expressions can be found in Catch the Fire, I think the following passage in the judgment of Nettle JA shows that the ‘natural and ordinary effect’ test can stand alone and can be used as the full vilification test:
[107] .. I also note in passing that the Tribunal found only that the totality of the article was “likely to incite a feeling of hatred towards Muslims” whereas the test is whether it incited hatred and so whether the natural and ordinary effect of the article was to encourage hatred of Muslims because of their religious beliefs. It may be that the two things are the same, but considerable care needs to be exercised.
This passage also demonstrates that there needs to be a causal connection between the public act and the reaction of the hypothetical audience. It does seem to be well understood that when considering this, the public act does not have to be the sole or dominant ground for the reaction and that it would be sufficient if the public act was ‘a real, operative and substantial ground’ of the reaction.[48]
[48]Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 at [64], not disturbed on appeal: Jones v Trad [2013] NSWCA 389 at [97].
Returning to the table of scenarios set out above, each row of the table has an audience. To understand whether the public act would have the natural and ordinary effect to incite, the understanding and perception of the public act of that audience needs to be understood, and the proclivity of that audience to incitement by the public act also needs to be understood. But there is no advantage in dividing the audience into sub-groups with different understanding, perceptions and proclivity and applying the test to each sub-group. The outcome of the test will be the same. This is because the test does not require it to be likely that the majority of the people in the audience being considered would be incited. It is sufficient if some of them would be.

The test does not mean that merely providing an opportunity for a person to react (for example by providing a website or Facebook page for posts) could itself amount to vilification. It can be seen from the third party comments which have been put in evidence in these complaints that some of the comments were quite extreme and would have been extremely offensive to the complainants. But rightly it seems to me, it is not suggested on the complainant’s behalf that merely providing the opportunity to make those comments could itself be a contravention of section 124A of the ADA.

What ‘on the ground of’ refers to

Returning to the provisions of section 124A(1):
A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
It is clear that the attribute of race, religion, sexuality or gender identity which is of relevance here is that of the ‘person or group of persons’ referred to in this subsection.
But there is nothing to show whether it is the public act or the reaction of the audience, which needs to be ‘on the ground of’ that attribute. It is clearly important to know which of these applies or whether they both do. It seems to me that the outcome of these complaints will be affected by this.
In most of the reported cases it is said that it is the ‘incitement’ which needs to be on the ground of the attribute.
The difficulty with this is that it does not answer the question whether:
(a)it is the act of incitement, that is the public act, which needs to be on the ground of the attribute; or
(b)it is the incitement, that is the effect of the public act, in other words the reaction of the audience, which needs to be on the ground of the attribute.
The semantic problem arises from the fact that the word ‘incitement’ can mean either the public act or the reaction to that public act. Since the word ‘incite’ means ‘cause the incitement’ the word ‘incite’ also has these two possible meanings.
As can be seen from the survey of cases in schedule 1, there are a number of first instance decisions which clearly state that the public act needs to be on the ground of the attribute, and others which clearly state that the reaction of the audience needs to be on the ground of the attribute.
In these complaints both sides originally presented their cases on the basis that the public act needs to be on the ground of the attribute.[49] After closing submissions however, it seemed to me that on the authorities, it was more likely that the reaction of the audience needs to be on the ground of the attribute and I invited submissions on the matter.
[49]I raised this with the parties on day 2 of the hearing, transcript 2-94 and this is also how it was argued in submissions: respondent’s second further amended statement of contentions dated 14 July 2022 paragraph 25.1, respondent’s written submissions dated 24 November 2022 paragraphs 63 and 64 and respondent’s closing submissions on liability dated 17 March 2023 paragraph 49. The complainants’ closing submissions in reply on liability dated 6 April 2023 do not say that this is incorrect and argue the question in the same way: paragraphs 26 to 28.
In submissions on behalf of both sides it now is accepted that the reaction of the audience needs to be on the ground of the attribute.[50] Despite this now being agreed it may be helpful if I explain why I formed the view that this must be the case.
[50]Complainants’ further submissions re: interpretation and application of s.124A of the Anti-Discrimination Act 1991 (Qld) dated 4 August 2023 paragraphs 5, 6 and 8. Respondent’s closing submissions on grounding and capacity to incite dated 28 July 2023 paragraph 2.
It seems to me that the key to the correct answer here is that the intention behind the public act is irrelevant. This has been recognised in all the authorities, except for those dealing with the criminal vilification law. This is because the civil test for vilification, that is whether the public act would incite, is entirely objective.
This was said to be significant when considering what ‘on the ground of’ refers to in Western Aboriginal Legal Service Limited v Jones & anor [2000] NSWADT 102:[51]
[51]Judicial Member N Rees sitting with Members Silva and Luger.
[113] The fifth element of section 20C(1) concerns the ground upon which the requisite degree of ill-feeling must be incited. The public act by a person must incite hatred towards, serious contempt for or severe ridicule of a person or a group of persons “on the ground of the race of the person or members of the group”. As we have determined that it is not necessary to prove that the person who performed the public act intended to incite anyone it is clearly not relevant to look at his or her reasons or grounds for performing the public act in question. It seems that we must ask whether the ordinary, reasonable person would have been incited by the public act to have the requisite degree of ill-feeling on the ground of race. There must be a causal connection between the persons about whom the requisite degree of ill-feeling is held and the race of those persons which is produced by the public act in question. In other words, the reason or ground for the ordinary, reasonable person having the requisite degree of ill-feeling as a result of the public act must be the race of the person or group of persons about whom that requisite degree of ill-feeling is generated.
Emphasis added

Although the decision in Western Aboriginal was set aside by the Appeal Panel on appeal, this was because the complainant did not have standing to bring the complaint,[52] and the above dicta was not disturbed.
[52]Jones & anor v Western Aboriginal Legal Service Limited (EOD) [2000] NSWADTAP 28.
On the same lines, in Kazak v John Fairfax Publications Limited [2000] NSWADT 77, Deputy President Hennessy with Members Farmer and Jowett said:
[69] .. “on the ground of” in the vilification provisions relates to the relationship between race and incitement, not race and the public act. In other words, the grounds on which the public act was performed is not relevant, it is the ground on which the reader was incited to hatred etc which is relevant.
Although Kazak went on appeal the above dicta was not challenged.[53]
[53]John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35.
The same approach was taken by the Appeal Panel of the NSW tribunal in Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, where having explained that the public act must be capable of inciting intense dislike or hostility towards a person or group of persons, or grave scorn for a person:[54]
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.
[54][30].
The irrelevance of the intention behind the public act is also what led the Victorian Supreme Court of Appeal in Catch the Fire Ministries v Islamic Council of Victoria Inc [2006] VSCA 254 to take the same approach as in Kazak.[55] In section 9(1) of the Victorian vilification law the person’s motive in engaging in the conduct is expressly stated to be irrelevant, and this was considered to be significant.[56]
[55]Neave JA at [144] and [149].
[56]Section 9(1) of the Racial and Religious Tolerance Act 2001 (Vic), as explained by Nettle JA at [23], Ashley JA at [131], and Neave JA at [141].
Therefore it was said that the statutory provisions did not require any intention that the public act was on the ground of the stated attribute, but required the person incited to react on the ground of the stated attribute. This differed therefore from the Commonwealth prohibition against public offensive behaviour on the ground of an attribute, that is 18C(1) of the Racial Discrimination Act 1975 (Cth) (set out in schedule 3 to these reasons) expressly stating that the act must be on the ground of the attribute. Hence in Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105, French J held that section 18C(1) required a causal connection to exist between the public act and the attribute of the person or group affected by the act.
In Catch the Fire the statutory wording was different. Nettle JA recited the tribunal reasoning and then said:
[30] With respect, there are several aspects of that reasoning which I take leave to doubt. The first of them arises out of the adoption of the Bropho test and, consequently, the Tribunal’s conclusion that the words “on the ground of [religious beliefs]” imply a causal connection between religious beliefs and impugned conduct. In effect the Tribunal decided that the Seminar contravened s.8 because the Tribunal was satisfied that Pastor Scot was moved or caused by the religious beliefs of Muslims to make the statements which he did at the Seminar, and that an ordinary reasonable person who was not malevolently inclined or free from susceptibility to prejudice would be inclined by Pastor Scot’s statements to hate Muslims. But, for the reasons which I have given, I do not consider that that was the question which needed to be decided. In my view the question was whether, having regard to the content of the statements in the context of the whole of the Seminar, and to the nature of the audience in the sense that I have described, the natural and ordinary effect of what was stated was to encourage the hatred of Muslims based on their religious beliefs.
Then Neave JA, having considered the wording of section 18C of the Racial Discrimination Act 1975 (Cth) and the Bropho test said:
[141] By contrast, s.8 of the Racial and Religious Tolerance Act determines whether the words or conduct are unlawful by reference to their effect on the relevant audience. To put it another way, the Victorian legislation is not concerned with whether the alleged inciter has been actuated by the religious belief of a person or class of person, but with whether the audience was incited to hatred (or other relevant emotion) of another group, because of that groups’ religious beliefs.
Although the Queensland and New South Wales law does not contain the equivalent of section 9(1) in the Victorian law, the principles which are applied are to the same effect. It is the consistent view expressed in the authorities that the intention behind the public act is irrelevant.[57] In those circumstances it cannot be said that whether the public act was done on the ground of an attribute is relevant. Hence ‘on the ground of’ must refer to the reaction of the audience.
[57]The relevant authorities are set out by Member Fitzpatrick in Menzies, to which I would add Sunol v Collier (No 2) [2012] NSWCA 44 Bathurst CJ at [41], Allsop JA at [61] and Basten JA at [79]), and Kerslake v Sunol (Discrimination) [2022] ACAT 40, Senior Member R Orr QC at [73].

Causal connection between the attribute and reaction of the audience

The question now arises how close and direct the causal connection between the attribute and the reaction of the audience needs to be for there to be vilification. Allied to this question is whether it would be sufficient for there to be vilification for the reaction of the audience to be because of a characteristic which might be held by someone with the attribute.
This is important for me to decide because (as I have found below) the first blog could have incited persons to hold contempt for Mr Hill because the blog stated (incorrectly as it turned out) that he was a porn-star and used a sexually explicit name when performing as a drag queen even to child audiences. It might be possible to find that an audience which reacted in this way was in fact reacting on the ground of Mr Hill’s sexuality.
It seems to me that the terms of section 124A require a close connection between the reaction of the audience and the attribute. In this respect it is unlike the ‘discrimination on the basis of an attribute’ test in section 10 of the ADA, which is greatly enlarged by the operation of section 8 of the ADA to include less favourable treatment on the basis of characteristics which a person with the attribute generally has, or which is often imputed to the person, or which the person is presumed to have. It seems to me that because of the express terms of section 124A there is no room to understand ‘on the ground of’ as including ‘on the ground of such characteristics’.
For the same reason the ‘but for’ test would seem to be inappropriate when considering whether the reaction of the audience was ‘on the ground of’ an attribute for the purposes of section 124A. In this respect, the High Court when applying the ‘less favourable treatment because of the aggrieved person’s disability’ test in Purvis v New South Wales (2003) 217 CLR 92, said that the ‘but for’ test would not be fairly applied,[58] and was not an accepted test for causation in the context of anti-discrimination legislation.[59]
[58]Gleeson CJ at [13].
[59]McHugh and Kirby JJ at [166].
It does seem to be well understood however that when applying the ‘on the ground of an attribute’ test, the attribute does not have to be the sole or dominant ground for the reaction and that it would be sufficient if the attribute was ‘a real, operative and substantial ground’ of the reaction.[60]
[60]Jones And Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19 at [64], not disturbed on appeal: Jones v Trad [2013] NSWCA 389 at [97].

Evidence about the audience and its actual reaction – admissibility and relevance

Since there are third party comments in evidence showing reactions to the respondent’s published material I need to consider the extent to which this is admissible and relevant to the test whether the natural and ordinary effect of the public act would be to incite the audience being considered to hatred etc. on the ground of the attribute.
The first way in which such evidence is relevant it seems to me, is in helping to identify the nature of the audience.
The importance of the nature of the audience was emphasised in Catch the Fire, where Nettle JA contrasted a ‘select’ audience of academics with the general public,[61] and by Neave JA who considered that the tribunal was in error by failing to consider the effect of the public act on the audience to which it was actually directed.[62]
[61][17]. Also Neave JA in Catch the Fire at [159] where her Honour said that it was relevant to consider the characteristics of the audience to which the words or conduct is directed.
[62][162] and [164].
The characterisation of the audience was said to be ‘crucial’ in Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 when applying the ‘capable of inciting others’ test.[63] In Jones v Trad [2013] NSWCA 389 the tribunal’s failure to identify the audience was a successful ground of appeal.
[63]The Appeal Panel of the NSW tribunal at [26].
A second way in which such evidence could be relevant it seems to me, is showing how the public act was understood and perceived by the audience. This would include for example, how certain words or phrases were understood in the modern vernacular or whether the juxtaposition of certain passages held a particular meaning to the particular audience.
A third way such evidence could be relevant it seems to me, is showing the proclivity to incitement of the audience by the public act. That this is very relevant can be seen from the vilification test to the scenarios in the table set out above.
Apart from these possibilities it seems also that the way people actually reacted might also assist to show how the hypothetical person might react. This is not to say that if there is an actual reaction to hatred etc. on the relevant ground this proves that the public act was vilification. The value of the evidence is limited to showing objectively, whether the natural and ordinary effect of the public act on the audience would be to incite to hatred etc. the ground of the attribute. In considering this, it would be necessary to ask whether the reaction was unnatural or extraordinary and should therefore be ignored.
There is some dicta in support of the suggestion that this guidance can be gleaned from evidence of actual reactions. In Catch the Fire, evidence was adduced of the deep offence of Muslims who witnessed a presentation critical of certain aspects of the Koran. Both Nettle JA and Neave JA expressed the view that such evidence could be relevant as to whether the public act was sufficiently vehement to invoke hatred or other relevant emotion of or towards Muslims on the basis of their religious beliefs.[64]
[64][65] and [185].
As Nettle JA pointed out however, since in that particular appeal the evidence had come from Muslim attendees it was ‘largely if not wholly irrelevant’ because it was the effect of the public act on non-Muslims which had to be considered.[65] This dicta appears to suggest that if evidence had been adduced about the effect of the public act on non-Muslims it could have been relevant.
[65][76].
A similar thing was said by the Appeal Panel in the NSW tribunal in Burns v Laws (EOD) [2008] NSWADTAP 32:[66]
it is not necessary to supply evidence that any person was actually incited, though the existence of any such evidence is a matter that might be taken into account by the trier of fact
[66][118], President O'Connor DCJ sitting with Judicial Member Grotte and Member Nemeth de Bikal.
The Appeal Panel in Burns v Laws cited Jones v Scully [2002] FCA 1080 for the proposition put forward. However that was an appeal heard by Hely J in a complaint under section 18C(1)(a) of the Racial Discrimination Act (1975) (Cth) where the wording is quite different.[67] But like the Queensland vilification laws, Hely J said that the test was objective, and so it was not necessary to have any evidence of actual impact. His Honour said that where there was actual evidence of impact, or even opinion evidence of likely impact on others, this would be admissible but not determinative.[68]
[67]As can be seen from schedule 3 to these reasons, that section asks whether the act was ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people’.
[68][99].
In Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 the tribunal said that the evidence of actual impact supported the view that the tribunal had reached independently, that the public act was capable of inciting ridicule of homosexual men on the ground of their sexuality.[69]
[69][57].

Also in Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, the Appeal Panel of the NSW tribunal said that evidence that the public act had an actual effect may be relevant both on the question of the capacity of the public act to incite, and on the question of damages.[70]
[70][25]. Deputy President Latham, DCJ sitting with Judicial Member Ireland and Member Edwards.
It is interesting to note that the possibility of opinion evidence as to the likelihood of incitement was not rejected by Senior Member Noreen Megay in Unthank v Watchtower Bible and Tract Society of Australia (Human Rights) [2013] VCAT 1810.[71]
[71][24].

The nature of the publisher and the publication

It seems to me that whether the ‘natural and ordinary effect’ of the public act would be to incite on the relevant ground in cases where the publisher is known to the audience may also turn on how authoritative the publisher is. Clearly a prominent politician respected by colleagues and with much support would be much more likely to incite than an unknown person using exactly the same words.
This was a factor in Burns v Dye [2002] NSWADT 32:
[65] Could the same be said, however, for the ordinary reasonable person, to use the language of the Casey test, “not immune from susceptibility to incitement, nor holding racially prejudiced views”? It is not in issue that Mr Dye is a simple, poorly educated man. The evidence shows, on the evening of 2 September in a drunk and incoherent state he hurled abuse at Mr Burns. Mr Dye’s rantings would have made it abundantly clear to the hypothetical observer that he hated or held feelings of serious contempt for Mr Burns (at least while in that drunken state). However we are not comfortably satisfied that this abuse would have incited the same feelings in third parties, including those not immune from susceptibility to incitement or prejudice. In our view, an observably drunk Mr Dye who, from the evidence available, from outward appearances would not appear to enjoy any position of respect or influence, would be unlikely to influence, urge on or prompt, any witness to this assault to feelings of ill will towards Mr Burns. This is not to suggest that it is necessary to establish that the vilifier commands a position of influence or power over the victim or his/her audience (or potential audience) but rather that in certain situations this may be a relevant consideration.

The blog then implied that it was wrong to put Mr Hill ‘in front of children’.
The blog expressed the hope that the children attending the event would not explore ‘Good-Rim’s Facebook page’ or ‘ask their mum what “good-rim” means in the wonderful world of drag queens’.
The post of 25 January 2020 went further. It included this paragraph:
Good-Rim’s name is a deliberate reference to obscene and filthy homosexual activity.
The post again referred to a child asking their mother ‘what’s a good rim’.
The post of 25 July 2020 stated:
Good-rim is a reference to a homosexual sex act and he is also involved in the trade as an “adult entertainer”
It would be obvious to the overwhelming majority of mainstream Australians that Good Rim is a dangerous role model for children.
The post of 19 September 2020 repeated the assertion that Mr Hill’s name was a ‘reference to anal sex’ and that he was ‘a recipient of an adult entertainment industry X Award’.
In the respondent’s post of 25 January 2020 there were three references to a debauched world. One was to such a world that the ‘rainbow political agenda .. seeks to induct children’, another was to a drag queen story time presenter in Melbourne being in a ‘debauched LGBTIQA+ world to which he is seeking to induct children’ and the third was to a drag queen story time presenter in Perth who represented a ‘debauched queer world’. On the complainants’ behalf these comments are relied on under this head of complaint.
The last debauched world comment seems to be a reference to the world of homosexuality but the earlier ones seem to be more general.
As can be seen from the third party comments, as a result of the information about Mr Hill in the respondent’s published material the view was expressed by several people that he was unsuitable to present to children.[177] At its extreme, one person questioned whether, since Mr Hill had a ‘passion to the x-rated industry (an award winner)’ that he ‘had a passion for children?’,[178] and another possibly described him as a ‘paedophile’.[179]
[177]For example, JK on pages 48, 50, 53 and 57, MKW and LB on page 64, SP on page 67, CJBR and FS on page 72, JR on page 85, ML on page 161.
[178]AG on page 201.
[179]ES on page 90.
I do not read from the respondent’s published material the assertion that Mr Hill was dangerous to children generally. The respondent’s message was that Mr Hill was unsuitable to be presented to children as a role model or be allowed to inform children about gender fluidity because children needed protection from ‘radical sexual expressionism and gender confusion’. This is quite different from saying that he was dangerous to children generally.
It seems to me that the natural and ordinary reaction of the relevant audience to the respondent’s published material would be that Mr Hill was unsuitable to present to children because children needed protection from ‘radical sexual expressionism and gender confusion’.
To be a contravention of section 124A as vilification of Mr Hill this reaction would need to be on the ground of his sexuality, in this case homosexuality. But it is clear that such a reaction would not be on such a ground. The reason for such a reaction would be because the person was of the belief that children needed protection from radical sexual expressionism and gender confusion, and that Mr Hill would undermine that. In other words, the people would hold the same belief even if Mr Hill did not have any such attribute.
I have considered in passing whether in the respondent’s post of 25 January 2020 the words:
‘our fourth drag queen active with children is Diamond Good Rim’
was suggestive of some sort of paedophilia by Mr Hill, however in the context of the earlier parts of that particular post I do not think that it did so, and this is not the case as presented on his behalf.
Although from the complainants’ contentions and submissions, it does not seem to be part of the complaint that the respondent’s published material was that the overall effect of the respondent’s published material would incite people to hatred towards or serious contempt for Mr Hill on the ground of his sexuality in a general way, I shall deal with this for the sake of completeness.
Some of the third party comments do suggest that some people despised him for his sexuality, with one correspondent calling both complainants ‘freaks’,[180] another seemingly describing him as a ‘lewd freak’,[181] another ‘a terrible lady’.[182]
[180]BC on page 149.
[181]EL on page 69.
[182]FDHS on page 70.
It does seem likely that the respondent’s published material caused the people who made third party comments to despise Mr Hill for these expressed reasons, and could therefore have resulted in the same reaction in a hypothetical audience. The people who would be so moved, would be those who are unable to read about homosexual activity without feeling contempt for those who practise it. They would regard the homosexual world as debauched, as the respondent described it in the last ‘debauched world’ statement in the post of 25 January 2020.
There is a causation problem with such a reaction because the reaction would seem to be caused by something other than the respondent’s published material. In any case it seems to me that, in Australia, such a reaction only lives in the past. These days, any such a reaction to the blog would be unnatural and extraordinary because of general understanding and respect in Australia of the attribute of sexuality, in Mr Hill’s case homosexuality, so if there was any such incitement it could not be vilification under section 124A.
If instead, the test should be the ‘ordinary reasonable reader’ then this produces the same outcome because such a reaction would not be reasonable having regard to the respondent’s published material.
If instead, the test should be the ‘ordinary reader (however unreasonable)’ or ‘ordinary member of a class of reader (however unreasonable)’ then the complainants’ case is stronger but I do not think this is the correct test.
It follows that the complaint under this head fails.

(e) LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation

This complaint is an allegation of vilification of LGBTIQ+ activists generally, and perhaps also human rights and community advocates or LGBTIQ+ human rights and community advocates, and the complainants say that they may bring the complaint because they are members of those group of persons.
This allegation relies on passages in the respondent’s post of 25 January 2020:
Since the Marriage Act was changed, activists have doubled down on suppressing freedom of speech and ensuring gender fluid and sexualised programs for children, like “Safe Schools”, Project Rocket, Respectful Relationships and drag queen story time are rolled out nationally.
then after reviewing drag queen story time events around Australia:
LGBTIQA+ activists are hell bent on trashing the purity and innocence of the next generation.
Also in the respondent’s post of 2 October 2020 when referring to LGBTIQ+ activists said:
Instead of arguing their case in the public square and defending why they think local governments should open their ratepayers’ libraries so children can be inducted into the worlds of gender fluidity and sexual expressionism, they used flawed anti-free-speech laws to crush public discussion.
There were 466 posts third party comments to the post of 25 January 2020 and 43 third party comments to the post of 2 October 2020 at the time they were extracted.[183] One commenter confirmed her view that drag queen story time was ‘started by activists and confuses children about gender’.[184] Most other comments to the later post wished the respondent well in his defence to the complaints, or discussed Senator Chandler’s case.
[183]Exhibits 9.1 and 13.1 to Mr Hill’s affidavit of 25 November 2022.
[184]MU page 102.
It is conceivable that others in the hypothetical audience may have been moved by what was said by the respondent about activists in these posts, but it seems to me that the natural and ordinary reaction to these posts upon those critical of the activists would be only to confirm their disagreement with them. I cannot see that the post could increase that disagreement to hatred or serious contempt to the activists. Some readers may have already despised the activists but again I cannot see that the post would make them despise the activists any more than they already did.
If instead, the test should be the ‘ordinary reasonable reader’ then this produces the same outcome because such a reaction would not be reasonable having regard to the respondent’s published material.
If instead, the test should be the ‘ordinary reader (however unreasonable)’ or ‘ordinary member of a class of reader (however unreasonable)’ then the complainants’ case is stronger but I do not think this is the correct test.
For readers who, prior to reading the posts had no firm view one way or the other about the activists, it is difficult to see that the natural and ordinary effect of the posts would cause them to hate the activists or hold them in serious contempt. It seems to me that the posts would be more likely to make such a person consider whether or not drag queen story time events were appropriate, taking into account that the author of the posts was obviously strongly against such events.
If instead, the test should be the ‘ordinary reasonable reader’ then this produces the same outcome because such a reaction would not be reasonable having regard to the respondent’s published material.
If instead, the test should be the ‘ordinary reader (however unreasonable)’ or ‘ordinary member of a class of reader (however unreasonable)’ then the complainants’ case is stronger but I do not think this is the correct test.
In any case, there is a difficulty in that, for there to be a contravention of section 124A the incitement to hatred or serious contempt would need to be on the ground of the sexuality or gender identity of the LGBTIQ+ activists.
It is obvious that only some such activists would be transgender persons or have the attribute of sexuality.
Hence I do not think it follows that an attack on LGBTIQ+ activists is also an attack on transgender persons and persons with homosexual sexual orientation. The group of persons known as LGBTIQ+ activists is too wide and too diverse for that to be the almost inevitable consequence.
It follows that the complaint under this head fails.

Conclusion

I have concluded that the complaints must fail.

Schedule 1 - Can the complaints of vilification by being a member of a groups of persons be heard?

This issue arises because in limb B of the complaints, the complainants say that the respondent’s published material vilified groups of persons and that they may bring the complaints as members of the group of persons. The groups of persons of concern here are drag queens, members of the numerous and diverse LGBTIQ+ community and LGBTIQ+ human rights and community advocates.
In submissions about this on behalf of the complainants it was said that the complaints as lodged with QHRC included the complaint about vilification as members of a group and therefore the Commissioner should have made a determination whether they were representative complaints under section 146.[185] However, on the papers I have seen at least, the original complaint to QHRC and referred to the tribunal were individual complaints only. The submissions accept that a representative complaint cannot continue in the tribunal as an individual complaint, but submit that this does not apply here because the complaints are all made by the complainants as individuals albeit on the second limb as members of a group which, relying on Menzies and anor v Owen [2014] QCAT 661, is permissible.
[185]Complainants’ submissions re: nature of complaints dated 3 May 2023 paragraph 9.
In Menzies, Member Ann Fitzpatrick accepted that it was possible for a member of a group to raise complaints of vilification under the ADA, where the allegedly vilifying acts are directed at the group rather than at an individual. In that case a homosexual person complained about vilification of a group of persons, that is a local group of homosexuals.
It was submitted on behalf of the respondent that the second limb of the complaint should not be permitted as representative complaints, because the ADA does not permit both an individual complaint and a representative complaint to be pursued at the same time.[186] The submissions do not suggest that the second limb is not available under section 124A; instead, the submissions say that Menzies was rightly decided in that respect.
[186]Respondents’ closing submissions on representative complaints and related issues dated of 4 May 2023 paragraphs 10 and 14.
That the complaints of vilification by being a member of a groups of persons is within the jurisdiction of the tribunal is less clear in these complaints than it was in Menzies because:
(a)Some of the groups of persons said to have been vilified are not mentioned as protected under section 124A. So for example it is said that the group of persons described as drag queens were vilified, but this is not in the list of protected groups in section 124A. Section 124A protects groups with the attribute of race, religion, sexuality or gender identity.
(b)For some of the groups of persons said to have been vilified, the complainants were only members of a sub-group of the group. So for example some members of the group of persons described as drag queens will be homosexual persons, and so they form a homosexual sub-group of the drag queen group. But some members of the group of persons described as drag queens will not have any of the attributes protected by section 124A.
An analysis of the jurisdictional questions arising requires an examination of the words of various sections of the ADA, that is section 34 (who may complain), section 124A(1) (vilification) already set out above, and sections 146 and 194, and associated sections (representative complaints).
Section 134 of the ADA (who may complain) reads:
134 Who may complain
(1) Any of the following people may complain to the commissioner about an alleged contravention of the Act—
(a) a person who was subjected to the alleged contravention;
(b) an agent of the person;
(c) a person authorised in writing by the commissioner to act on behalf of a person who was subjected to the alleged contravention and who is unable to make or authorise a complaint.
(2) Two or more people may make a complaint jointly.
(3) A relevant entity may complain to the commissioner about a relevant alleged contravention.
(4) However, the commissioner may accept the relevant entity’s complaint under section 141 only if the commissioner is satisfied that—
(a) the complaint is made in good faith; and
(b) the relevant alleged contravention is about conduct that has affected or is likely to affect relevant persons for the relevant entity; and
(c) it is in the interests of justice to accept the complaint.
(5) In this section—
relevant alleged contravention means an alleged contravention of section 124A.
relevant entity means a body corporate or an unincorporated body, a primary purpose of which is the promotion of the interests or welfare of persons of a particular race, religion, sexuality or gender identity.
relevant persons, for a relevant entity, means persons the promotion of whose interests or welfare is a primary purpose of the relevant entity.
Under sections 134(3) to (5) a group of persons may complain through a ‘relevant entity’ whose primary purpose is the promotion of the interests or welfare of persons covered by section 124A. These subsections were added by the Discrimination Law Amendment Act 2002 (Qld), and it was said in the explanatory notes to the Bill that the changes were to:
overcome current restrictions in the Act which allow complaints to be made only by a person subjected to the alleged contravention (or the person’s agent) and representative complaints (i.e. a complaint by an individual who has a common complaint with and seeks to represent all other individuals in a particular group who have been similarly affected by the alleged contravention). In relation to complaints of vilification these restrictions are unsatisfactory as many vilifying acts are directed at a group rather than an individual. In such cases individuals within an affected group may be reluctant to make a complaint for fear of being singled out for victimisation or retribution.
This is not what happened here. Instead, these complaints were made under section 134(1)(a) it being said that the complainants were ‘subjected to the alleged contravention’.
For a complaint of vilification of a group of persons, whether a complainant was subjected to the alleged contravention depends on reading section 124A as (words not relied on being struck out):
A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a ~~person or~~ group of persons on the ground of the race, religion, sexuality or gender identity of the ~~person or~~ members of the group.
There will be some complaints about vilification of a group of persons, where all members of the group would have suffered vilification. This would mean that all members of the group could make a complaint of vilification just by being members of the group. This is because each such member would be a ‘person who was subjected to the alleged contravention’ under section 134(1)(a).
This happened in Menzies where Member Ann Fitzpatrick accepted that it was possible for a member of a group to raise complaints of vilification under the ADA, where the allegedly vilifying acts are directed at the group rather than at an individual.
Member Fitzpatrick said:[187]
[187]Menzies and anor v Owen [2014] QCAT 661 at [13] and [14].
I find that Ms Bruce and Ms Menzies have standing to bring the claim as individuals who claim that they were subjected to vilifying acts because they are homosexuals, even though the alleged acts were directed to homosexuals at large rather than to them personally.
It will be necessary to make findings as to whether they were in fact subjected to or experienced the acts complained about. That is a different issue to the question of their standing to make complaint.
The last passage shows that the Member considered that the complainant had been ‘subjected to the alleged contravention’ and therefore came with section 134(1)(a) merely by being a member of the group.
I can see that this works when vilification of the group of persons is necessarily vilification of each member of the group because all members of the group all have the same attribute, that attribute being protected by section 124A. In the complaints before me, this would apply to the following groups of persons who allegedly suffered vilification under section 124A:
transgender persons
persons with homosexual sexual orientation
But it does not seem to work when the group of persons is made up of some persons whose attribute is not protected by section 124A. For example, the members of the group of persons known as ‘drag queens’ are not all transgender persons or persons with homosexual sexual orientation. There will be many drag queens who are neither. The same would be the case I believe for the members of ‘the numerous and diverse LGBTIQ+ community’ group and the ‘LGBTIQ+ human rights and community advocates’ group.
Member of those groups would not be able to contend that merely because they are a member of the group they had been ‘subjected to the alleged contravention’ and therefore came with section 134(1)(a). Hence a person would not be able to make a complaint under the ADA about vilification of drag queens merely because the person was a drag queen; and a person would not be able to make a complaint under the ADA about vilification of the ‘LGBTIQ+ community’ merely because the person was a member of that community.

It is conceivable however that (for example) vilification of drag queens would effectively amount to vilification of those drag queens who were transgender persons, or those drag queens who were persons with homosexual orientation. These would be sub-groups of the group drag queens, and since these two sub-groups were protected from vilification under section 124A they would seem to come under the same principle as set out in Menzies. Of course to succeed under section 124A. and to have standing to make the complaint under section 134(1)(a), such a complainant would have to show:
(a)That the public act had incited hatred etc. of the principal group (drag queens) and that this effectively amounted to vilification of a sub-group protected by section 124A in this case either because:
(i) the incitement was on the ground of sexuality of the sub-group of persons with homosexual sexual orientation; or
(ii) the incitement was on the ground of gender identity for the sub-group of transgender persons.
(b)And the complainant was a member of the protected sub-group, in this case a person with homosexual sexual orientation or a transgender person.
I cannot see that anything less than these requirements in a case such as this could be actionable under section 124A. If these things are shown, then I am satisfied I would have jurisdiction to hear and determine such a complaint.
In most cases, it would be simpler for a complainant just to complain that they had been vilified as a transgender person or as a person with homosexual sexual orientation, but the way set out above (alleging vilification of a group consisting of protected sub-groups) is the way this complaint has been made in its amended form.

Effect of the representative complaint provisions

I need to mention this because the ADA imposes some obligations on the QHRC and on the tribunal where it is alleged that a number of people were subjected to the alleged contravention of the ADA.
In this respect, section 146 reads:
146 Representative complaints
(1) If a complaint alleges that a number of people were subjected to the alleged contravention by the respondent, the commissioner must determine whether the complaint should be dealt with by the commissioner as a representative complaint.
(2) The tribunal may subsequently make its own determination under section 194
Section 147 provides guidance about whether a complaint may be dealt with as a representative complaint. This might be if the complaint is made in good faith as a representative complaint, and that the justice of the case demands that the matter should be dealt with as a representative complaint. Even if this is not the case the complaint may be dealt with as a representative complaint if the complainant was affected by the vilification in common with a class of numerous persons of which they are a member. It is not necessary that the same remedy is being sought, or indeed that any remedy is sought by the persons represented.
If the commissioner decides that a complaint should be dealt with as a representative complaint then by section 151 the complainant must choose whether to proceed with the complaint as a party to the representative complaint or to make an individual complaint.
There are similar provisions on referral to the tribunal.
Section 194 reads:
194 Representative complaints
If a complaint alleges that the respondent contravened the Act against a number of people, the tribunal must determine, as a preliminary matter, whether the complaint should be dealt with by it as a representative complaint.
Section 195 provides guidance about whether a complaint may be dealt with as a representative complaint in the same terms as section 147 applies to the commissioner.
Then section 199 ensures that a person cannot pursue both a representative complaint and an individual complaint in the tribunal. It reads:
199 Representative complainant must choose
A complainant in relation to a representative complaint must choose whether to—
(a) proceed before the tribunal as a party to the representative complaint; or
(b) make an individual complaint.
In this complaint it is said that a group of persons was vilified. As can be seen above, in order for a person who was a member of the group to have standing make a complaint in such circumstances as a member of the group the person will necessarily be alleging that there was a contravention against a number of people, hence the provisions of the ADA covering representative complainants would seem to be engaged.
In Menzies, no doubt with section 194 of the ADA in mind, Member Fitzpatrick raised this with the parties at the commencement of the hearing. She decided there was no reason for the complaint to proceed as representative complaint.[188]
[188]As explained in the reasons at [11].
In the complaint before me, there was nothing in the complaint before the QHRC suggesting that the complaint could be a representative complaint. The complainants were clearly making only individual complaints.
The complaints had not changed during their time with QHRC and therefore when they were referred to the tribunal they did not appear to be representative complaints either. Hence section 194 was not engaged at that time.
On the documents I have seen, it was only when the complainants filed their contentions in the tribunal that it was first suggested that the complainants were contending that there had been a contravention of section 124A not only because the offending material was about them, but also because the offending material was about a group of persons and they were members of the group.[189]
[189]Hence it is incorrect I think, to say that from the outset the complaints were individual complaints alleging vilification against the complainants individually but also as members of a group: complainants’ submissions re: nature of complaints dated 3 May 2023 paragraph 8.
The proceedings before me have not been classified as representative proceedings, and no party has raised this with the tribunal. It is clear that it has not been, and should not be, dealt with by the tribunal as a representative complaint. This leaves the complainants free therefore to pursue the complaints as individual complaints.

Schedule 2 – survey of reported cases showing uncertainty in vilification law

This is a survey of first instance decisions in various Australian jurisdictions and also some decisions at the level of tribunal appeal panels. It is limited to 2013 onwards because by then there had been important Court of Appeal decisions in NSW and Victoria on the matter. And it does not cover Commonwealth decisions because the law is different.
Schedule 3 shows how similar the statutory vilification law is in the other jurisdictions whose decisions are surveyed here.
The vilification test has been applied to an unfiltered hypothetical audience (containing people with extreme views) in a number of cases, for example where the test was applied to ‘any ordinary (not necessarily reasonable) person’ of the general public who may have overheard the public act which occurred in a public park in the late afternoon in Bennett v Dingle (Human Rights) [2013] VCAT 1945 at [43], to a sub-group of internet users who, like Messrs Sunol and McKee, are strongly opposed to same sex marriage in Burns v Sunol [2016] NSWCATAD 16 at [48], to ‘observers who share some or all of Mr Campbell’s dreadful views’ (although this is described in [41] as an ordinary member of the public in a suburban street) in Lamb v Campbell [2021] NSWCATAD 103 at [40], to an ‘ordinary member of the class to which the public act is directed, taking account of the circumstances in which the conduct occurs’ in Menzies and anor v Owen [2014] QCAT 661 at [18], and to a section of the public even if they held racist views about Arabs in Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [32] (although the test was also applied to ‘ordinary members of the particular audience’ at [44] and [47]).
The vilification test has been applied to a filtered hypothetical audience (where those with extreme views are stripped out) in several cases for example, to ordinary members of the class of internet users at large with no greater propensity to be incited than a member of the general public in Burns v McKee [2017] NSWCATAD 66 at [82], to an ‘ordinary reasonable person’ in Huenerberg v Murray [2023] QCAT 175 at [55] and [58], to an ‘ordinary reasonable person’ in the general public in Kerslake v Sunol (Discrimination) [2022] ACAT 40 at [102], to an ‘ordinary reasonable reader’ in Menzies and anor v Owen [2014] QCAT 661 at [123], to ‘an ordinary and reasonable member of the public’ where the offending material could be read by anyone in Rep v Clinch (Appeal) [2021] ACAT 106 at [152] to [158], and possibly to an ‘ordinary member of the class of persons to whom it is directed’ in Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223 at [131].
On the question what ‘on the ground of’ refers to many cases simply say that ‘on the ground of’ refers to the incitement but as mentioned below, this is ambiguous: it could mean either the public act or the reaction of the audience or perhaps both, so this does not assist. In those cases where it can be discerned what ‘on the ground of’ was applied to, it can be seen that it was applied to the public act in Burns v Sunol [2014] NSWCATAD 2 at [61], [64], [73], [75], and [77], Burns v Sunol [2014] NSWCATAD 61 at [32], Ekermawi v Nine Network Australia Pty Ltd [2019] NSWCATAD 29 at [118], Burns v Smith [2019] NSWCATAD 56 at [43] and [55], and Kerslake v Sunol (Discrimination) [2022] ACAT 40 at [108], but was applied to the reaction of the audience in Menzies and anor v Owen [2014] QCAT 661 at [62] and [87], Burns v McKee [2017] NSWCATAD 66 at [111], and Cottrell v Ross [2019] VCC 2142[190] at [48] and [49].
[190]A criminal case of serious religious vilification.
On the question of how likely it is that the public act would incite, this has been put in various ways, for example whether people ‘could have been incited’ by the public act in Lamb v Campbell [2021] NSWCATAD 103 at [41], whether it was ‘capable of inciting’ in Riley v State of New South Wales (Department of Education) [2019] NSWCATAD 223 at [62] and [127], whether it ‘had the capacity to incite’ in Burns v Smith [2019] NSWCATAD 56 at [30], also in several Burns v Sunol cases,[191] Menzies and anor v Owen [2014] QCAT 661 at [18], DLH v Nationwide News (No 2) [2018] NSWCATAD 217 at [47], Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79 at [66] and [90], and Sun v Nationwide News Pty Limited [2021] NSWCATAD 147 at [20], whether it had the ‘capacity or effect’ of inciting the ordinary internet user in Burns v Sunol [2014] NSWCATAD 62 at [31], whether it was capable of urging or spurring on ordinary internet users or ‘having the capacity to do this’ or having ‘the effect of’ this in Burns v Sunol [2015] NSWCATAD 131 at [67], [72], [77], [82], and [83], whether people were incited by ‘words which command, request, propose, advise or encourage hatred etc.’ but can also involve words which incorporate strong and abusive language about the person or group which is likely to incite hatred etc.’ in Rep v Clinch (Appeal) [2021] ACAT 106 at [10] and [163], the ‘likely effect of the public acts’ in Ekermawi v Jones (No 3) [2014] NSWCATAD 58 at [32], whether the public act was ‘likely to incite hatred’ etc. ‘in the minds of the persons to whom the statements were directed’ in Unthank v Watchtower Bible and Tract Society of Australia (Human Rights) [2013] VCAT 1810 at [21], ‘whether the natural ordinary effect is to incite hatred’ in Sisalem v The Herald and Weekly Times [2017] VSC 254 at [4], and ‘the natural and ordinary effect’ in Sloan v State of Victoria (Human Rights) [2021] VCAT 933 at [60].
[191]Burns v Sunol [2016] NSWCATAD 16 at [48], Burns v Sunol [2016] NSWCATAD 74 at [29], Burns v Sunol [2016] NSWCATAD 81 at [22], Burns v Sunol [2017] NSWCATAD 215 at [64], Burns v Sunol [2018] NSWCATAD 10 at [59] and Burns v Sunol (No 2) [2017] NSWCATAD 236 at [38].

Schedule 3 – vilification law in the other jurisdictions

This concentrates on the vilification test in the relevant statutes and it is emphasised that in every case there is an exception for fair comment and public debate or other such exclusions.
The NSW vilification law for homosexuals is in these terms:[192]
[192]Section 49ZT of the Anti-Discrimination Act 1977 (NSW).
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 homosexuality of the person or members of the group.
The NSW vilification law for race is in these terms:[193]
[193]Section 20C of the Anti-Discrimination Act 1977 (NSW).
It is unlawful for a person, by 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.
The NSW vilification law for transgender persons is in these terms:[194]
[194]Section 38S of the Anti-Discrimination Act 1977 (NSW).
It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a) a person on the ground that the person is a transgender person, or (b) a group of persons on the ground that the members of the group are transgender persons.
The Victorian vilification law for race is in these terms:[195]
[195]Section 7 of the Racial and Religious Tolerance Act 2001 (Vic).
A person must not, on the ground of the race of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
The Victorian vilification law for religious belief or activity is in these terms:[196]
[196]Section 8 of the Racial and Religious Tolerance Act 2001 (Vic).
A person must not, on the ground of religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons.
The ACT vilification law is in these terms:[197]
[197]Section 67A of the Discrimination Act 1991 (ACT).
It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private: (a) disability; (b) gender identity; (c) HIV/AIDS status; (d) intersex status; (e) race; (f) religious conviction; (g) sexuality.
The Tasmanian vilification law is in these terms:[198]
[198]Section 19 of the Anti-Discrimination Act 1998 (Tas).
A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of – (a) the race of the person or any member of the group; or (b) any disability of the person or any member of the group; or (c) the sexual orientation or lawful sexual activity of the person or any member of the group; or (d) the religious belief or affiliation or religious activity of the person or any member of the group; or (e) the gender identity or intersex variations of sex characteristics of the person or any member of the group.
Other States and Territories have vilification laws but since they impose criminal sanctions which affects the test to apply, these are omitted from the above list.
The vilification laws set out above contrast with the alternative approach, which is to prohibit offensive conduct in public done on the ground of an attribute. The Northern Territory has recently added such a provision to its Anti-Discrimination legislation instead of using the NSW vilification model.[199] The NT model seems to have been based on the Commonwealth law prohibiting such conduct in section 18C(1) of the Racial Discrimination Act 1975 (Cth):
[199]Anti-Discrimination Amendment Act 2022 (NT), adding section 21A of the Anti-Discrimination Act 1992 (NT).
Offensive behaviour because of race, colour or national or ethnic origin
(1) It is unlawful for a person to do an act, otherwise than in private, if:
(a) the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and
(b) the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
Both the Northern Territory and Commonwealth laws exempt, in a similar way to the NSW vilification law model, artistic performances and publications, public discussions and debates in the public interest, fair and accurate reporting fair comment about things of public interest.

Scenario	Is it vilification subject to the fair comment and public interest defence?
A	An internet blog whose audience is the general public ‘outs’ the complainant, a prominent politician, as homosexual.	No
B	A man enters a bar frequented by homosexual persons and shouts abuse about homosexuality. Only those in the bar are witnesses.	No
C	Academic research reports that people of a certain race do worse in Western style intelligence tests than other races. The report is presented by a speaker at a conference attended mostly by those interested in promoting equal opportunities.	No
D	A man stands outside a bar frequented by homosexual persons and shouts abuse about homosexuality. Members of the public passing by are witnesses.	Possibly
E	A strongly worded internet blog written by neo-Nazis recommends that Muslims and Jews be identified and deported. The audience is the general public.	Yes
F	A speaker at a neo-Nazi rally open to the public makes a strongly worded speech recommending that Muslims and Jews be identified and deported.	Yes
G	The complainant, a prominent politician, is ‘outed’ as homosexual in a highly charged public rally attended mostly by people who are vehemently against homosexuality.	Yes
H	Academic research reports that people of a certain race do worse in Western style intelligence tests than other races. The report is presented by a speaker at a neo-Nazi conference open to the public to support proposals to identify and deport people of that race.	Yes