Reasoning
27 In Cannane at 596 Kirby J in his dissenting reasons for judgment said that "many cases emphasise this rudimentary proposition that the meaning of a slippery phrase such as "acted in good faith" depends almost entirely on its particular statutory setting."
It is necessary then to first examine s 18D in its statutory setting.
28 Section 18D in which the words "reasonably and in good faith" appear is contained in Pt IIA - prohibition of offensive behaviour based on racial hatred. The effect of s 18C is to create offences - that is, it is to make conduct which falls within the ambit of that section unlawful. The purpose of s 18D is to render "anything said or done reasonably and in good faith" within the subpars (a), (b) or (c) of that section free of the application and the imputation of unlawfulness imposed by s 18C.
29 The phrase "said or done reasonably and in good faith" addresses the particular items referred to in pars (a), (b) and (c) of s 18D. Expressed in a shorthand way those paragraphs refer to artistic work, public interest statements and fair reports or comments in the public interest. Each of these paragraphs is concerned to protect aspects of freedom of speech.
30 Precisely that point was made in the explanatory memorandum to the Racial Hatred Bill which made the following observations in relation to the proposed s 18D (pp 10 - 11):
"Proposed section 18D provides a number of very important exemptions to the civil prohibition created by proposed section 18C. The exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest.
However, the operation of proposed section 18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.
...
It is for the complainant, in relation to the civil prohibitions, to establish that the respondent´s act was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group, and that the act was done because of the race, colour, or national or ethnic origin of the complainant or group of people of which the complainant is a member. However, if so established, the onus then rests on the respondent to show, on the balance of probabilities, that his or her action falls within one of the exemptions in section 18D."
This memorandum was cited and relied upon in Jones v Scully [2002] FCA 1080.
31 In the course of the Second Reading speech of the Racial Hatred Bill 1994 (Parliament of Australia, Senate, Hansard, 28 November 1994, 3277) the Minister said:
"The bill places no new limits on genuine public debate. Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke. The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people. The law has no application to private conversations.
Nothing which is said or done reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for an academic, artist, or scientific purpose, or any other purpose in the public interest will be prohibited by the law."
There is consequently nothing in either the explanatory memorandum or second reading speech reference to which is permissible within the provisions of s 15AB of the Acts Interpretation Act 1901 (Cth) to suggest that the exemption provisions in s 18D should be read other than in a way which gives full force and effect to them. Commissioner Johnston did not therefore err in favouring a broad approach.
32 It is appropriate also to have regard to the character of s 18D as an exempting provision. In Vines v Djordjevitch (1955) 91 CLR 512 at 519 the High Court said:
"But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evidence that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter…"
I do not understand that proposition to be controverted in the submissions for the applicant or the reasoning of Commissioner Johnston.
33 The Commissioner was required to find as a fact whether the application of the exemptions was established. That required him to consider whether, on the evidence and findings, the elements of the section were established. That involved him in applying as one of the elements of the section the concept of reasonableness and good faith in respect of the act found to contravene s 18C. What was required in those circumstances was an objective finding on the evidence whether the conduct which would otherwise be unlawful pursuant to s 18C was "said or done reasonably and in good faith" in the circumstances referred to pars (a), (b) or (c) of s 18D. In Cannane at 596 Kirby J said:
"The words "good faith" and "acted in good faith" appear in many statutes in virtually all countries of the common law. It would be erroneous to suggest that a single meaning could be adopted, indifferent to the particular statutory context. It has been remarked that, putting it broadly, the words "good faith", or their Latin equivalents, have received "two divergent meanings": (Siano v Helvering (1996) 13 F Supp 776, cited in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993)44 FCR 290 at 298. See also South Australia v Clark (1996) 66 SASR 199 at 230; Municipality of Bhiwardi v Kailash Sizing Works (1974) 2 SCC 596 at 599). The first is a broad or subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produce it. The second involves the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence. The particular interpretation apt to the use of the words in a given legislative context will depend on the decision-maker's elucidation of the purpose of the legislature."
In my view the good faith requirement in s 18D is in the character of the second of the two categories referred to by Kirby J. Therefore, I do not consider that a commissioner applying s 18D is required to inquire into the actual state of mind of the person concerned. That is not to say evidence of such state of mind may not be relevant. It is to say that the focus of inquiry dictated by the words involves an objective consideration of all the evidence and not solely a focus on the subjective state of mind of the person doing the act or making the statement in question.
34 There are two particular contextual considerations which favour the second objective construction. The first is that s 18D refers to anything "said or done" so that there is a requirement to demonstrate some conduct which is coloured by the requisite "good faith": Cf Cannane at 596. Equally the context of the legislation requires an objective rather than a purely subjective meaning because subjective intentions cannot properly be the basis of applying an exemption of conduct from the realm of unlawfulness proscribed by s 18C.
35 I therefore agree with the formulation of Commissioner Johnston so far as it excludes the first of the divergent meanings referred to by Kirby J in Cannane at 596 namely, the subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produced it. I am, however, unable to agree precisely with his formulation that a possible finding of satisfaction of the terms of s 18D would be an adequate basis on which to decide the matter. What is required is a finding in terms of the second divergent meaning and the terms of the section on the evidence.
36 Because the objective construction of the words is appropriate, the Commissioner deciding the issue of the application of s 18D is required to examine all of the evidence before the Court relevant to a determination of reasonableness and good faith. If there were findings based on the evidence of "dishonesty or fraud" or "malice" that would preclude a finding of reasonableness and good faith and thus would preclude the application of the exemption in s 18D. If there were no evidence of such matters it would not be necessary for the Commissioner to require the respondent to positively establish its state of mind, for that would be to revert to the subjective use of the phrase. The characterisation of the use of the good faith requirement in conjunction with the reasonableness requirement as requiring the objective approach precludes the possibility of the application of the requirement for a respondent to a complaint to positively establish its state of mind in that respect as a necessary part of the evidence.
37 It follows I do not consider that the Commissioner was in error of law in approaching the application of the requirement of reasonableness and good faith in the way in which he did. He had regard to all the evidence, including the evidence from Mr Murray, and reached a conclusion as to reasonableness. In the absence of evidence of lack of good faith he was not required to have evidence called in addition to that before him. In my view he did not err in applying s 18D in taking that approach.
38 I add in relation to the evidence of Mr Murray that in the critical passage in his reasoning Commissioner Innes said "Paul Murray gave evidence that he had made a judgement call, knowing that the cartoon would receive some opposition, but forming the view that it was appropriate to represent an important community issue in this way." It was accepted in the course of argument that this was in effect the Commissioner's finding on the evidence of Mr Murray. Given that finding, the Commissioner clearly took Mr Murray's evidence into account together with the other evidence which he then referred to. Importantly, however, there was nothing arising from the evidence of Mr Murray as so found which would support a finding of absence of reasonableness and good faith.