A Public Act
49Section 49ZT(1) renders it unlawful " for a person by a public act " to do certain things. Thus, the first step in determining liability under the section is to identify whether there was, upon the proper construction of the ADA, a " public act " of the Respondent or one for which the Respondent was responsible on the proper construction of the section.
50In the present case, it is not in dispute that the Respondent spoke to Mr Bolger and Ms Smith on the telephone and gave them his views on, among other things, homosexuals. There does not appear, however, to be any other action on the Respondent's part that could properly be held to constitute a relevant " public act ".
51The inclusive definition of " public act " found in s 49ZS deals with various forms of communication to the public, including speaking, in subs (a). The other forms of communication to the public in subs (a), namely writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material do not apply to what the Respondent did in this case. Nor do the types of conduct referred to in s 49ZS(b) or (c).
52As to the proper construction of the words " public act " in s 49ZT(1), Mr Tobin QC who appeared with Mr Kelleher for the Respondent submitted that because the section has the potential adversely to impact upon the common law right to freedom of speech, it was appropriate to give the expression " public act " a narrow construction, restricting it to actions that effect direct communication between a respondent and the public. The Respondent drew attention to the comment of Kirby J in Coleman v Power (2004) 220 CLR 1 at [253] concerning freedom of speech and the need for it not be unduly restricted by a broad reading of a statute criminalising public use of insulting words. If this restrictive approach to the construction of s 45ZT(1) were adopted, it was said that the section would be interpreted as excluding circumstances such as arose in the present case where there was a private communication of views by the Respondent to a journalist who controlled whether, and what account of, those views were published. In short, the submission was that the interposition of an intermediary such as the journalist meant that any communication to the public of the Respondent's views was by the journalist and not by the Respondent.
53Naturally, the Tribunal accepts what Kirby J said in the context of that case. It should be noted, however, that one of the bases for his Honour's approach as stated in Coleman v Power (2004) 220 CLR 1 at [253] was that to adopt a broad construction:
would potentially impose criminal sanctions upon an extremely large number of communications in or near public places. It would do so without defences or qualifications appropriate to allow the legitimate and quite common use of insult and strong language in many forms of communication. Significantly, for the present purpose, these could include communications about governmental and political matters.
54The same cannot be said in the present case. Not only are there defences in s 45ZT(2) of a type that have been held should be construed broadly (see French J in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [73]). There are also qualifications on the imposition of liability in s 49ZT(1) itself including the requirement that any incitement be of " severe" ridicule or " serious " contempt. These features of s 49ZT provide sufficient grounds for distinguishing this case from Coleman v Power . Notwithstanding this, the Tribunal does accept the importance of the common law right of freedom of speech and the need to construe statues, including the ADA, as not unduly impinging upon that right. A useful discussion of these principles is also found in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [72] - [73] in a context similar to the present.
55In the light of the qualified terms in which s 45ZT(1) is expressed and the freedom of speech defences available under s 45ZT(2), it does not follow, however, that the expression " public act " should be given a confined or narrow interpretation. What is required is a construction of those words which is consistent with the text of all the subsections of s 45ZT and related sections and with the scope and purpose of the ADA.
56From s 49ZS, the inclusive definition of " public act ", it can be discerned that that expression is intended to refer to various means by which ideas, opinions or views can be brought to the attention of the public. It includes a broad range of acts that can effect such communications. The Second Reading Speech in relation to the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) by which the definition of " public act " was first introduced into the ADA sheds some light on what was intended by the use of the expression. By that Act, a new s 20B was inserted into the ADA and it provided a definition of " public act " which is the same as the definition in s 45ZS, except that in subs (c) the ground referred to relates to race and not to the homosexuality of the person or groups of persons. The Attorney-General in his Second Reading Speech (NSW Parliament, Legislative Assembly 4 May 1989 Hansard p 7489) said:
Proposed section 20B of the bill defines the term "public act" for the purposes of the new division. "Public acts" includes spoken and written communications to the public, actions and gestures observable by the public, the wearing and displaying in public of signs and emblems and the distribution of matter to the public with knowledge that the matter vilifies a person or group on the ground of race. The conduct encompassed by the bill is intended to be limited to "public acts" and does not include private communications or other conduct in private.
57Vilification by " public act " whether it be based on race, homosexuality, transgender status or HIV/AIDS status is a serious matter. Any means by which a person effectively communicates his or her vilifying ideas, views or opinions to the public should, in general, be caught by the various vilification provisions of the ADA, whether that communication by the person is direct or indirect. Whether the public acts in question are unlawfully vilifying, however, will depend upon whether they have the requisite inciting effect and upon the application of the freedom of speech defences under s 49ZT(2).
58Nonetheless, it will be a question of fact in each case, whether a person has communicated to the public by way of a " public act " or whether there has been in reality only a private communication or other conduct in private, to use the dichotomy proposed in the Second Reading Speech quoted above. For example, a speaker speaking at a public gathering communicates directly to the public and should be found to have engaged in a " public act " within the meaning of the section. An author who publishes a book or article would also generally be found to have engaged in a " public act " even though he or she employed a publisher to print and distribute the book or article. Similarly, a person who broadcasts their views on radio or television or published their views online will also have engaged in a " public act " notwithstanding the interposition of an intermediary in the form of the broadcaster or the internet host - see Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 at [20] - [22]. At the other end of the spectrum, a person who communicates a private view to another on the basis, express or implied, that it is not for publication or dissemination by that other person, is most unlikely to be found to have engaged in a " public act " within the meaning of the vilification provisions of the ADA, even if that view is subsequently published by that other, without the person's knowledge or consent.
59In the present case, the Respondent's acts were conversations, communication by speaking. It can be accepted that a conversation between two individuals in their private capacities, whether on the telephone or in the presence of one another, would ordinarily be a private communication and not a " public act " - see the reasoning of the Tribunal in Barry v Futter [2011] NSWADT 205 at [64] to [79] in relation to " public act " in the context of transgender vilification under s 38S of the ADA. In the present case, however, although the relevant acts were conversations, those conversations were not between two persons in their private capacities. Furthermore, the conversations were accompanied by circumstances that can be seen as adding a public character to the communications.
60In Barry v Futter at [74] to [76], it was held:
74.Whilst it is not possible to identify in advance all the types of circumstances that may be relevant in determining whether a communication by speaking is public or private, there are a number of factors that may indicate that the communication is to the public rather than a private communication and that might be relevant in the present case. First, where a speaker addresses an audience irrespective of whether there is any pre-existing relationship between the members of the audience and the speaker, the communication is more likely to be to the public. In that case, it is often appropriate to conclude that the speaker is addressing them in their capacities as members of the public and not because of their relationship. By way of contrast, speaking only to a family member, friend or acquaintance, fellow employee or co-participant in a joint activity, in that capacity, may be more likely to involve a private communication rather than a " public act ".
75.Secondly, the size of the audience may also indicate whether the communication is public or private. A speaker addressing a group of people is more likely to be communicating to the public than a speaker who is having a one on one conversation with another person. Nonetheless, a person who speaks to a series of people individually and seeks to communicate essentially the same message may be seen as speaking to a wider audience and not just engaging in private conversations.
76.Thirdly, the nature of the communication, the intentions of the parties to the communication and the circumstances giving rise to it may also give some indication of whether the communication is properly characterised as a public communication or a private conversation.
61The Respondent was a candidate for election in a Federal election and to that extent he was a public figure in the community. In his capacity as a candidate, he spoke to two journalists and he appreciated that they were seeking his views on matters related to homosexuals because he was a candidate standing for election in the Kingsford-Smith electorate. He was also aware that they might publish any views he disclosed to them and he was, at least, content for that to occur.
62Although he was not speaking directly to the public, the Tribunal is of the view that the Respondent was communicating his views to the journalists, not for their private use or consideration, but on the understanding that the journalists could communicate those views to members of the public, if the journalists decided to do so. When the journalists published their articles in the City Voice and in the Southern Courier the Respondent's views were communicated to the public. In short, in this case, the nature of the communication, the intentions of the participants in the conversations and the circumstances in which they occurred all indicate that the Respondent indirectly communicated to the public his views by: (a) speaking to the journalists not privately but for potential publication; and (b) his views then being published.
63This conclusion is consistent with the decision of the Federal Court in McGlade v Lightfoot (2002) 124 FCR 106 at [38] to [41] in which it was held that a politician who spoke to a journalist on an " on the record " basis " caused his words to be communicated to the public " (within the meaning of relevant Commonwealth anti-vilification provision) when the journalist published the politician's comments. Although the wording of the section is not the same as s 45ZT and McGlade does not amount to a directly applicable authority, the decision provides an indication of what might amount to a " any form of communication to the public " in the definition in s 45ZS.
64It should be noted that in order for there to be a communication to the public in a situation where an election candidate speaks to a journalist about election issues, it would generally be required that the candidate's views expressed to the journalist actually be published. The definition in s 49ZS(a) refers to " any form of communication to the public ". If there were no publication, it would be unlikely that there was any communication to the public. Put another way, absent communication to the public, there would most probably be no completed " public act ". At most, if the journalist did not publish the candidate's views, there might be an attempt by the candidate to communicate to the public but this alone would not generally amount to a completed " public act ".
65A further consideration is also relevant, especially in the light of submissions made on behalf of the Respondent that, because he did not control whether or what the journalists published, there was no " public act " for which he was responsible under the ADA. The effect of the submission was that any communication to the public in a case such as the present was by the journalist and/or his or her publisher and not by the Respondent. The Tribunal would only be disposed to accept this submission if what occurred was that the journalist did not publish a fair statement or summary of the candidate's views as communicated to the journalist but rather communicated to the public an inaccurate or misleading account of those views. The candidate should not be held responsible for published views that were not a fair representation of what the candidate had said. Where, however, the candidate's views were fairly reported and the candidate communicated those views to the journalist with knowledge that they might be reported and was content for that to occur, it appears to the Tribunal that, when published, the candidate has communicated his or her views to the public. This public communication was achieved by the candidate's speaking to the journalist. The journalist was merely the medium of communication to the public.
66In the present case, notwithstanding some minor discrepancies in what were reported to be the Respondent's views compared to the notes of the conversations and the Respondent's recollections, the Tribunal does not believe that the reports in the City Voice and the Southern Courier relevantly went beyond reporting what the Respondent had said.
67Accordingly, we find that the Respondent's communicating to journalists his views, in his capacity as a candidate in a Federal election, on an issue of public interest when he knew, and was content, that those views might be published amounted, when those views were published, to " public acts " within the meaning of s 49ZT(1).