Burns v Laws [2001] FCA 1007 | Case summary

REASONS FOR DECISION 1 This is an appeal by a complainant, Mr Burns, over the dismissal by the Tribunal's Equal Opportunity Division of a complaint brought by him against the broadcaster, Mr Laws, alleging unlawful homosexual vilification. (In this decision we will refer to Mr Burns either by his name or as the appellant, and to Mr Laws either by his name or as the respondent.) 2 On Wednesday 3 November 2004, the morning after Melbourne Cup Day, Mr Laws made various statements about the role and behaviour of the American actor and celebrity, Carson Kressley, in the television coverage of Cup Day. Mr Burns' complaint was that Mr Laws, by his conduct, had breached s 49ZT of the Anti-Discrimination Act 1977 (the ADA). 3 Section 49ZT was inserted into the Act by the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 (operative 1 March 1994). It imposes civil liability. A separate provision creates a criminal offence. 4 Section 49ZT provides: ' 49ZT Homosexual vilification unlawful (1) 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. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.' 5 Anti-vilification provisions are found in anti-discrimination statutes across Australia. They deal with various types of vilification, most notably racial vilification, religious vilification and homosexual vilification. They have a relatively consistent framework with a broad primary provision, qualified by an exception very similar to sub-section (2). 6 The Tribunal dismissed Mr Laws' preliminary application for the complaint to be summarily dismissed: see Burns v Laws [2005] NSWADT 229. The matter went to a full hearing which proceeded over several days. 7 The Tribunal's dismissed the complaint by majority (two to one): see Burns v Laws (No 2) [2007] NSWADT 47. However the final decision was favourable to Mr Burns' complaint on many points. The Tribunal found that he had made out a prima facie case of unlawful vilification, thereby satisfying sub-section (1). The Tribunal was satisfied in particular that Mr Laws' broadcast involved a public act that incited severe ridicule of the specific person the subject of comment and of homosexual persons generally on the ground of their homosexuality. However, the Tribunal was satisfied that the otherwise unlawful conduct fell within the scope of the exception in sub-section (2)(c). 8 It found that the vilifying comments were a public act that had been done reasonably and in good faith for a purpose in the public interest. The Tribunal was unanimous in its finding that the conduct met the good faith standard, but divided two to one as to whether it met the reasonableness standard. The majority view, that it met the reasonableness standard, prevailed. The Appeal 9 The appeal is brought under s 115 of the ADA and ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act). An appeal may be made as of right in relation to a question of law, and may, by leave of the Appeal Panel, be extended to the merits. There is no requirement that an error of law be demonstrated before consideration of an application for leave to extend to the merits: Lloyd v Veterinary Surgeons Investigating Committee (2005) 65 NSWLR 245. But demonstration of an error of law will often be a consideration relevant to granting leave to extend to the merits. 10 In this case there are eight grounds of appeal alleging errors of law. We will turn to the eight grounds shortly. 11 There is also an application for leave to extend the appeal to the merits. The appellant contends that the particular findings of the majority of the Tribunal in connection with reasonableness were 'unjustified, unreasonable and inconsistent with the bulk of the admissible evidence'. Developing this point the grounds contend, along similar lines to the minority member's opinion: 'Such a finding by the majority ignored the gratuitously insulting tone used in the broadcast, the issue of proportionality, the insufficiency of the relationship of the broadcast statements to the Respondent's alleged purposes, the degree of harm inflicted on the persons vilified by the material, and the range of dissemination of the material.' 12 In Hinton & Ors v Commissioner for Fair Trading, Office of Fair Trading (GD) [2007] NSWADTAP 17, the Appeal Panel made the following observations on how the exercise of the discretion to grant leave to extend an appeal to the merits might be exercised in a case where no error of law has been identified. The Appeal Panel said: '85 While the Appeal Panel's discretion to grant leave is not qualified by the ADT Act (see, for example, Sunol v Collier [2006] NSWADTAP 51 at [29]), it should be exercised with caution and in the interests of justice. It is not enough that the appellant disagrees with the decision. The Appeal Panel is not designed to be a second trial level of the Tribunal. As McHugh J said in CDJ v VAJ (1998) 197 CLR 172 at [111] the power to permit an appeal on a question of fact is 'not intended to have the practical effect of obliterating the distinction between original and appellate jurisdiction'. Appeal Panels must recognise the importance of not interfering with soundly-made decisions. An appellant should normally, we think, demonstrate on persuasive grounds that a substantial injustice would result if the decision was allowed to stand. … 88 In considering leave applications, Appeal Panels should be wary in acceding to objections to the fact-finding process which would manifestly have failed as error of law points.' The Reply 13 The respondent in reply supports the Tribunal's ultimate decision. He contends, however, that the matter should never have reached the stage of having to consider sub-section (2)'s applicability, as the prior reasoning making a prima facie finding of unlawfulness under sub-section (1) was erroneous. 14 The appeal was filed on 27 March 2007. On 30 April 2007 the respondent filed two documents, the first headed 'notice of reply to the appeal', the other headed 'notice of contention'. The 'notice of reply to the appeal' responded only to the grounds of the appeal. The challenge to the Tribunal's findings adverse to the respondent under sub-section (1) was raised by the other document. The procedure adopted by the respondent reflects practice in the Court of Appeal. The Tribunal's Practice Note, Practice Note No 5, governing internal appeals to the Appeal Panel provides that where, as a result of the appellant lodging an appeal, the respondent seeks to have the original reasons for the decision (but not the orders) reconsidered, the respondent must set out in its notice in reply under the heading "Errors in the Reasons" those parts of the reasoning it seeks to have reviewed and identify the error of law. 15 The respondent filed an 'amended reply' on 20 July 2007, after realising it had not followed the required procedure on the first occasion. There was an objection taken at the hearing by the appellant to the respondent being permitted to have the amended reply entertained, as it was filed outside the time allowed for a reply under the timetable. In our view the appellant did not suffer any unfairness. The respondent made it clear, from the outset, that he disagreed with other aspects of the reasoning. There was simply a mistake as to the way in which the disagreement was documented. 16 The two days of the appeal hearing (11 and 12 September 2007) were spent addressing the appellant's grounds of appeal. After some discussion, and with their consent, the Appeal Panel directed the respondent to lodge submissions as to the alleged errors in the reasons of the Tribunal and the appellant to lodge submissions in reply. It was agreed that it would be better if the Appeal Panel was minded to uphold the appeal of the appellant, and thereby put the final order of the Tribunal at risk, for it to go on and dispose of the respondent's alternative grounds as to why the order should be upheld rather than reconvene for that purpose. These submissions were filed, respectively, on 17 October and 26 November 2007. The Conduct in Issue 17 Mr Laws' program occupied the mid-morning slot on Radio 2UE Sydney. The program has national reach, being syndicated to numerous stations elsewhere in the country. Mr Laws' station publicity at that time stated that the program is syndicated to 63 radio stations across Australia, and has an audience reach of 2 million people. (Mr Laws retired from broadcasting at the end of 2007.) 18 Carson Kressley plays himself in the American television show 'Queer Eye'. In 'Queer Eye' five homosexual men ('the Fab Five') seek to assist 'straight men' to improve their appearance in areas in which the Fab Five are skilled such as fashion, food and interior decoration. 19 Kressley appeared at different times during the Seven Network's day-time coverage of the Melbourne Cup. He was one of the judges of the fashion competition for women racegoers held as part of the day's festivities, Fashions on the Field. He was also featured in a segment on a Nine Network program that evening, 'A Current Affair'. 20 Like the Tribunal below, the Appeal Panel heard a sound recording of the program, and viewed relevant excerpts from the two television shows. The transcript (Ex E before the Tribunal] is set out in the decision under appeal at para [19] and will not be repeated here. [We did notice that the play back and the text of the transcript were inconsistent in some minor respects.] A transcript does not, of course, readily capture such aspects of oral presentation as tone, inflection, use of irony and the like. Nor does it readily capture the elements prepared in advance of the broadcast, providing background effects using music and sound effects at certain points. 21 In finding that the broadcast fell within the scope of sub-section (1) the Tribunal placed the program at the lower end of the degrees of offensive conduct set out in that provision. The Tribunal held that viewed objectively the program could not be said to have incited 'hatred' or 'serious contempt' but that it did incite 'severe ridicule'. The Tribunal recognised that 'mere' ridicule was not regulated: see para [118]. The Tribunal said 'there is no sharp dividing line' between 'mere' ridicule and 'severe' ridicule and there is a 'value judgment' involved. The Tribunal cited with approval a similar discussion in the case of Veloskey & Anor v Karagiannis & Ors [2002] NSWADTAP 18 (Veloskey) and the reference at [29] of those reasons to severe ridicule being constituted by 'harsh or extreme mockery or derision'. Case Law Bearing on the Exception (s 49ZT(2)(c)) 22 There is now a substantial body of case law going to these matters made of decisions directly on point in this Tribunal, and decisions in the Federal jurisdiction and in Victoria dealing with analogous provisions. 23 The relevant Tribunal decisions include Harou-Sourdon v TCN Channel Nine Ltd (1994) EOC 92-604; Western Aboriginal Legal Service Ltd v Jones & anor [2000] NSWADT 102 (Western Aboriginal Legal Service); Veloskey, already mentioned; Kazak v John Fairfax Publications Ltd [2002] NSWADTAP 35 (Kazak). An earlier decision involving the homosexual vilification provision is Burns v Dye (No 2) [2002] NSWADT 32. 24 The Federal cases include determinations of the Human Rights and Equal Opportunity Commission (HREOC) and judgments of the Federal Court. Important cases are Bryl and Kovacevic v Nowra and Melbourne Theatre Company [1999] EOC 93-022 (HREOC) (Bryl); Creek v Cairns Post Pty Ltd [2001] FCA 1007 (Kiefel J); Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510, a judicial review proceeding (RD Nicholson J) relating to the primary decision by HREOC; and, on appeal against the judicial review outcome, Bropho v Human Rights & Equal Opportunity Commission & Anor (2004) 135 FCR 105 (French, Carr, Lee JJ)) (Bropho). There are also a series of cases where a leader of the Jewish community in Australia, Jeremy Jones, has laid complaints against purveyors of 'No Holocaust' views in respect of various remarks they have made about Jewish people. These cases include Jones & ors v Toben (2000) EOC [93-110] (HREOC); on judicial review, Jones v Toben [2002] FCA 1150 (Branson J); on appeal against the judicial review outcome, Toben v Jones [2003] FCAFC 137 (Carr, Kiefel, Allsop JJ); Jones v Scully (2002) 120 FCR 243 (Hely J); and Jones v The Bible Believers Church [2007] FCA 55 (Conti J). 25 The Federal Court Full Court decision in Bropho was the subject of an application for leave to appeal to the High Court. See Bropho v HREOC & anor [2005] HCATrans 9 (4 Feb 2005). The application was refused by majority (Gleeson CJ, Hayne J; Kirby J dissenting). Remarks from the Bench were taken into account by the primary Tribunal in this case. 26 The Victorian decisions relate to the one case. The decisions are Islamic Council of Victoria v Catch the Fire Ministries Inc & ors [2004] VCAT 2510 (Higgins CCJ, Vice President); and on appeal, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 (Nettle, Ashley and Neave JJA)) (Catch the Fire). 27 We, like the Tribunal below, have had considerable difficulty in identifying consistency in the statements of principle in the case law. Many of the opinions as to how an exception of the present kind should be interpreted and applied are highly divergent. 28 There are three statements of principle of general application that need to be kept in view: (i) Freedom of speech and expression is not limited to what might be called polite, decent or tasteful expression but is a freedom which embraces offensive, rude, hostile, derogatory and angry speech or expression, and speech or expression that is tasteless, insensitive and undignified. (ii) Anti-vilification provisions abridge freedom of speech and expression. Accordingly, the exception should not be construed in a narrow way, thereby minimising any undue further qualification of the abridgement of free speech effected by the primary liability provision. (iii) Proceedings dealing with a vilification complaint are not a forum for the determination of the truth or falsity of the statements put in issue. 29 As to the exception itself, the following statements have broad, though not universal, support: (i) The onus lies on the respondent to satisfy the tribunal of fact that the conduct was done 'reasonably and in good faith' (in NSW, s 104 of the ADA is relied upon). (ii) The inquiry as to whether the conduct was 'done reasonably and in good faith' is not confined to evidence relating to the 'doing' of the act (the method), but extends to the contents (the message). (iii) In forming a view as to whether the conduct was done reasonably and in good faith, relevant material includes the content of the offensive material (in this case the broadcast), any evidence given by the respondent as to the circumstances, reasons and motives for the publication, any inferences that may reasonably be drawn from the material itself in respect of these matters, the context of the publication including any pattern of conduct by the publisher of the statements. (iv) While the expression 'done reasonably and in good faith' may be regarded, broadly speaking, as a composite one, it contains two elements or requirements, to be addressed separately. (v) Whether the conduct was done reasonably is to be assessed in an objective manner. (vi) Good faith is not established if the respondent acted in bad faith, out of malice or for an improper purpose. (vii) Ultimate judgments as to such matters as 'reasonableness' and 'good faith' are ones of fact. Grounds of Appeal 1 and 2 30 The appeal alleges eight errors of law. Grounds 1 and 2 are the most significant: 1. The Tribunal erred in law in its construction of s49ZT(2)(c) in its construction and interpretation of the phrases in that subparagraph viz that the "public act" was done: "in good faith" and "for purposes in the public interest." 2. The majority of the Tribunal erred in law in finding that in the circumstances the admitted "public act" was done "reasonably." 31 The first ground of appeal, in essence, puts in issue the following ruling of the Tribunal, at [192] of its reasons: 'The requirement under s. 49ZT(2)(c) of the NSW Act that the relevant 'public act' should have been 'done … in good faith' for one or more of the purposes listed in this paragraph will be established if it is shown that the defendant acted with 'the subjectively honest belief that it was necessary or desirable to achieve' the purpose or purposes in question.' 32 The second ground of appeal does not contest the proposition that the Tribunal's view that the assessment of 'reasonableness' involves an objective inquiry, but challenges the Tribunal's conclusion in the circumstances of the case. 33 In our view, the point of most importance to the result in this case was the Tribunal's ruling at [192], made after a close consideration of the relevant case-law. 34 The Tribunal, in ruling as it did on the good faith requirement, adopted the view preferred by Nettle JA in Catch the Fire, and is consistent with previous authority in this Tribunal. For example in the Western Aboriginal Legal Service case, the Tribunal dealt with the equivalent exception in the racial vilification civil liability provision of the ADA. At [122] of its reasons it said of the phrase 'good faith', it 'would appear to be the converse of acting with malice', and that the crucial factor was 'whether the commentator honestly believed in the truth of what he or she said'. 35 The appellant presses the view that a higher standard should be accorded to the requirement of good faith in line with the views expressed by French J in Bropho, which in turn, in our view, are consistent with the previous leading Federal Court cases on the point. 36 The broader and narrower conceptions of good faith in a regulatory scheme were the subject of comment by Kirby J (in dissent, but not as to this point) in Cannane v J Cannane Pty Ltd (in liq) (1998) 192 CLR 557 at [101]: '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'... 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.' 37 Cannane was a bankruptcy case where the question arose whether a disposition by the bankrupt prior to bankruptcy had been made to a transferee who had acted in 'good faith'. The transferee was the wife of a business man who was in financial difficulties. 38 The Federal Court judges have not seen it as sufficient for a respondent to demonstrate lack of bad faith, malice or absence of an improper purpose. 39 As the Federal Court judges have seen it, the reliance on the exception or defence arises in circumstances where the maker of the statement has been found to have engaged in offensive conduct. The Federal Court decisions have all referred to the objectives of anti-vilification provisions in connection with their discussion of the reasonableness and good faith exception. 40 The exception is seen as operating in an environment where the maker of the statement has chosen to engage in conduct that is prima facie in breach of the law. Accordingly, it is not enough for the maker of the statement to plead 'honest ineptitude'. (This term is taken up in Bropho from Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460 at [34] per Gummow, Hill and Drummond JJ, a case dealing with the nature of the obligation of a statutory body to give accurate information to persons making commercial decisions on the information.) 41 Before examining more closely the debate surrounding the meaning to be given to the 'good faith' requirement, and whether its appraisal is subjective, objective or mixed subjective/objective, it is necessary to refer first to the approach adopted in the case law to the assessment of 'reasonableness'. 42 As noted above, the authorities all see the expression as being objective. Many of the cases, especially in this Tribunal, have used the yardstick, very familiar in the law, of the judgment of the hypothetical bystander, described often as 'the ordinary, reasonable person'. There has been a debate as to what qualities or attributes should be accorded to that person. Nettle JA in Catch the Fire invested the hypothetical person with several special characteristics that he felt a reasonable person in modern society with a commitment to laws of the present kind would be expected to possess. 43 In Bropho the approach preferred does not use as the reference point the ordinary reasonable person but instead proceeds to address what would be 'reasonable' by reference to considerations seen as relevant. Nettle JA did not question this approach. The reasonable person was seen as someone who might have regard to particular matters including the kind of considerations listed by French J. In the early Tribunal decision, Western Aboriginal Legal Service, the kind of considerations to which the reasonable person might have regard was discussed briefly. Some of the factors endorsed by French J trace back to the dicta in Western Aboriginal Legal Service. In this case the Tribunal adopted French J's approach to the assessment of reasonableness. Good Faith 44 In Bropho the complaint related to a newspaper cartoon, depicting Aborigines in an insulting, demeaning and stereotypical way in the context of the debate over repatriation to Western Australia of the skull of an Aboriginal tribal leader of the 19th century held in a museum in England. The provisions under notice were ss 18C and 18D of the Racial Discrimination Act 1975. They provided relevantly: ' Offensive behaviour because of race, colour or national or ethnic origin S 18 C. (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. Exemptions S 18 D. Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.' 45 It will be seen that s 18C captures a wider range of comment (e.g. 'insult') than is caught by the equivalent provision in this case (s 49ZT(1) (the outer boundary being 'severe ridicule'). The exception is expressed in very similar terms to s 49ZT(2)(c). 46 HREOC found that the cartoon infringed s 18C, but that defence provided by s 18D was established. Bropho, one of the complainants to HREOC, applied for judicial review. The primary judge (Nicholson J) dismissed the application, and the Full Court dismissed the appeal against R D Nicholson J's decision (Lee J dissenting). 47 Catch the Fire concerned a complaint by the Islamic Council of Victoria against a Christian ministry organisation, Catch the Fire Ministries, and two of its pastors, belonging to the church known as the Assembly of God. The Islamic Council complained over statements made by one of the pastors at a seminar presented on behalf of Catch the Fire Ministries; and publications issued by Catch the Fire Ministries. The provisions under notice were ss 8 and 11 of the Racial and Religious Tolerance Act 2001. They provided relevantly: ' 8. Religious vilification unlawful (1) A person must not, on the ground of the 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. 11. Exceptions-public conduct (1) A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith- (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for- (i) any genuine academic, artistic, religious or scientific purpose; or (ii) any purpose that is in the public interest; or (c) in making or publishing a fair and accurate report of any event or matter of public interest. (2) For the purpose of sub-section (1)(b)(i), a religious purpose includes, but is not limited to, conveying or teaching a religion or proselytising.' 48 In Bropho the principal ground of appeal was that HREOC had erred in treating good faith as requiring no more than absence of bad faith, malice or improper purpose. The appellant submitted that good faith was a positive requirement not met by the finding of an absence of bad faith. 49 All three judges agreed with this contention, but they differed as to whether HREOC had taken an unduly narrow view of good faith. In our respectful view, it is difficult to see how the majority reached the conclusion that it did (no error). The text of HREOC's final determination on this point is short (the 'core paragraphs' (as Carr J called them)). They are set out at paras [38] and [159] of Bropho). The reasons only expressly speak of good faith in the narrow sense. Carr J acknowledged this point, but took the view that a fair appraisal of HREOC's treatment of both elements of the exception disclosed that it had taken account of the higher ethical considerations that he saw as relevant on the good faith side: see [173] and [176]. French J considered that viewed overall the Tribunal had dealt with the question satisfactorily. In contrast, Lee J considered that HREOC did err, and would have remitted the case. 50 In Catch the Fire the primary tribunal accepted the authority of French J's decision on both good faith and reasonableness, and found the exception not established, with the result that the respondent was found to have acted unlawfully: Islamic Council of Victoria v Catch the Fire Ministries at [388]-[389]. On appeal, the Court of Appeal found that VCAT had erred on a number of points, including in relation to its interpretation of what was required to satisfy the good faith standard. It specifically disagreed with French J's reasoning. 51 In Bropho French J dealt with the nature of the good faith requirement from [86] to [103], Lee J from [140] to [144], and Carr J from [173] to [178]. 52 French J said at [85] that the exercise of a power in good faith requires an 'honest and conscientious' approach. At [93] he said that: 'In a statutory setting a requirement to act in good faith, absent any contrary intention express or implied, will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes as attracting the requirement of good faith observance. … A good faith provision offers a warning that game playing at the margins of a statutory proscription may attract a finding of liability.' 53 As to the role of the exception in an anti-vilification provision, he said at [94]-[95]: '94 In my opinion, the balance struck in ss 18C and 18D between proscription and freedom requires more in the exercise of the protected freedom than honesty. Section 18D assumes that the conduct it covers would otherwise be unlawful under s 18C. The freedom it protects is broadly construed. But, given that its exercise is assumed to insult, offend, humiliate or intimidate a person or group of persons on the grounds of race, colour or national or ethnic origin, there is no legislative policy which would support reading 'good faith' more narrowly than its ordinary meaning. 95 How does this approach operate in the context of s 18D? It requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section. The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C. It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict. It will not use those freedoms as a 'cover' to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin.' 54 He concluded: '101 Generally speaking the absence of subjective good faith, eg dishonesty or the knowing pursuit of an improper purpose, should be sufficient to establish want of good faith for most purposes. But it may not be necessary where objective good faith, in the sense of a conscientious approach to the relevant obligation, is required. In my opinion, having regard to the public mischief to which s 18C is directed, both subjective and objective good faith is required by s 18D in the doing of the free speech and expression activities protected by that section. 102 A person acting in the exercise of a protected freedom of speech or expression under s 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D. On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith.' 55 While Lee J in this case was, as noted, ultimately in dissent on the adequacy of HREOC's approach to the interpretation and application of the exception, he made the following observations on the approach to be taken to the assessment of good faith at [141], which in our view are consistent with those of the majority: 'The requirement that an act to which s 18D applies must be shown to have been done in good faith as well as reasonably, will not be met by the publisher asserting that there is an absence of evidence that it acted in bad faith, fraudulently, or with malice. The question whether a publication was an act done in good faith must be assessed, in part, by having regard to the subjective purpose of the publisher but overall it is an objective determination as to whether the act may be said to have been done in good faith, having due regard to the degree of harm likely to be caused and to the extent to which the act will be destructive of the Act.' 56 He continued at [144]: 'The words 'in good faith' as used in s 18D import a requirement that the person doing the act exercise prudence, caution and diligence, which, in the context of the Act, would mean due care to avoid or minimize the consequences identified in s 18C.' 57 Carr J, in this case and in the earlier case of Toben v Jones to which we refer below, has tended to favour an approach which does not strictly separate the two elements of the exception but treats them as a composite expression. His view is that the inquiry as to both elements of the exception is primarily an objective one which can be informed by the subjective evidence; and that more is required to satisfy the exception than mere absence of dishonesty, bad faith or the like. 58 The background to Toben v Jones is a complaint lodged by Mr Jones, a leading member of the Jewish community, alleging racial vilification of Jewish people against the author of material promoting 'no Holocaust' views, Mr Toben. The case was unusual in that the respondent at no stage of the proceedings chose to give direct evidence of his motive and intention. Accordingly the various tribunals reached their conclusions entirely by assessment of the published material. 59 In the Full Court the principal judgment was delivered by Carr J who said at [44]: 'In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make [to provide evidence in support of the conventional view of the Holocaust], a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.' 60 Allsop J expressed his general agreement with Carr J's reasons. At [159] his Honour dealt with the 'good faith issue' and said that he 'agreed entirely' with the reasons of Carr J that 'the contents of the document, taken as a whole, do not establish that the publication was done reasonably and in good faith'. Kiefel J at [71] did not directly address the interpretation of s 18D but her Honour did say of the inquiry as to motive or reason under s 18C(1)(b), which she saw as relevant to the approach that might be taken to the interpretation of the 'reasonably' standard in the exception: '63 The inquiry as to motive or reason is not however limited to the explanation a person might provide as to their conduct or their genuine understanding as to what motivated them. The inquiry is as to the true reason or true ground for the action … . A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reason may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reasons for their actions.' 61 In Catch the Fire the leading judgment is by Nettle JA. His Honour said at [91] that once a statutorily permissible purpose is established: '92 … I think that one should move next to the question of whether the defendant had engaged in the conduct reasonably and in good faith for the genuine religious purpose. According to ordinary acceptation, to engage in conduct bona fide for a specified purpose is to engage in it honestly and conscientiously for that purpose. [Citing Black's Law Dictionary 7th Ed. at 701; Bropho , FCR at 120, per French, J.] In my view that appears to be the intent of s.11. The legislative requirement that the conduct be engaged in not only in good faith but also reasonably means that objective standards will be brought to bear in determining what is reasonable. Despite what has been held under s.18D of the Racial Discrimination Act, I see no reason to load objective criteria into the conception of good faith in s.11, or otherwise to treat it as involving more than a "broad subjective assessment" of the defendant's intentions. In my view, the requirement that conduct have been engaged in bona fide for a genuine religious purpose within the meaning of s.11 will be established if it is shown that the defendant engaged in the conduct with the subjectively honest belief that it was necessary or desirable to achieve the genuine religious purpose.' 62 Neave JA expressly agreed with Nettle JA at [197] without giving any additional reasons. The Tribunal's Preference and Finding 63 The Tribunal below gave the following reasons for preferring the Victorian approach. It said: '191 Discussion and conclusions: 'good faith'. Our treatment of this issue may be relatively brief. With due respect to French J's elaboration of this concept in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, we are inclined to agree with the view expressed by Nettle JA in Catch the Fire Ministries (at [92]). In the special leave application in Bropho , Kirby J seemed sympathetic to that view. What Nettle JA said was that there was 'no reason to load objective criteria into the conception of good faith …, or otherwise to treat it as involving more than a "broad subjective assessment" of the defendant's intentions'. 192 Adapting to the present context what Nettle JA then went on to say (referring to s. 11 of the RRT Act), we arrive at the following formulation. The requirement under s. 49ZT(2)(c) of the NSW Act that the relevant 'public act' should have been 'done… in good faith' for one or more of the purposes listed in this paragraph will be established if it is shown that the defendant acted with 'the subjectively honest belief that it was necessary or desirable to achieve' the purpose or purposes in question. A finding that the respondent acted dishonestly or in the knowing pursuit of an improper purpose will be sufficient to rule out good faith. 193 Our principal reason for preferring the opinion of Nettle JA to that of French J on this issue stems from the fact that, as French J acknowledged, the determination of 'reasonableness' involves the consideration of objective factors. The application of the composite criterion 'reasonably and in good faith' becomes unnecessarily complex if objective factors are deemed also relevant in assessing 'good faith'. If the term 'good faith' stood alone, French J's elaboration of it would seem distinctly more appropriate. 194 The Appeal Panel decision in John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 illustrates (at [35]) that a respondent may succeed in establishing 'good faith' without having giving evidence on the matter. The respondent in that case was however a company that published the relevant material, not the person who wrote the article which contained it. Having regard to other Tribunal decisions (see for example Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [148 - 149]; Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [77 - 78]), we believe that it will generally be difficult for a respondent who has actually written or uttered vilifying material to prove 'good faith' without giving evidence as his or her state of mind. But we do not need to pursue this issue further as in this case Mr Laws did give such evidence. 195 This same paragraph in Kazak also provides authority for the proposition that in determining whether 'good faith' is present account may be taken of relevant conduct of the respondent following publication of the vilifying material.' 64 Having preferred a 'substantially subjective' inquiry in dealing with the 'good faith' requirement, the Tribunal applied its approach as follows: '252 Were the statements by Mr Laws broadcast 'in good faith'? In cross-examination, it was put to Mr Laws that his attitude to homosexuals, as demonstrated in the broadcast at issue in this case and in the earlier broadcast that prompted the proceedings in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, was one of hostility. We were invited to make a finding to this effect. 253 In support of this claim, Mr Rofe submitted that when towards the end of the broadcast (see paras 71, 73 and 80 of the transcript at [19] above) Mr Laws said that he was 'very happy for people to be homosexual', that he had friends who were homosexuals and that he 'had nothing, absolutely nothing, [against(?)] homosexuals', he was in 'damage control mode'. Mr Rofe maintained that these assertions of a tolerant attitude towards homosexuals were insincere and should not be taken into account in Mr Laws' favour. 254 Mr Rofe also contended that in so far as conduct by Mr Laws after the broadcast might appear to be conflict with the indications that he was hostile towards homosexuals, it should be disregarded. Such conduct was, in Mr Rofe's submission, no more than an ex post facto attempt to excuse his contravention of the Act. 255 The evidence tendered by Mr Burns included a copy of a letter dated 24 June 2003 in which Mr Ian Sheppard, the General Manager of Radio 2UE, stated that he considered it inappropriate for Mr Laws to use the word 'poof' on air and that he had 'raised this matter with him personally' (see [27] above). It may be argued (though the point was not made by Mr Rofe) that this prior conversation between Mr Sheppard and Mr Laws provides grounds for inferring that when during his broadcast Mr Laws observed that 'you can't say' the word 'poof' because 'that's a derogatory word' (see para 2 of the transcript at [19] above), he was displaying a degree of resentment towards homosexuals. 256 On Mr Laws' behalf, the responses to these contentions included the following. First, during cross-examination Mr Laws denied the allegation of hostility towards homosexuals. Secondly, his statements towards the end of the broadcast were quite sincere, and formed part of an attempt to make it clear to his audience that his criticisms were of 'overtly gay' behaviour only, not of homosexuals generally. Thirdly, the apologies conveyed by him to the homosexual community, notably in the course of meetings with representatives of that community and in publishing a statement in an appropriate newspaper about a fortnight after the broadcast (see [59 - 61] above), further illustrated that he maintained sentiments of good will towards homosexuals. (As noted above at [195], the Appeal Panel held in John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [35] that in determining 'good faith', account may be taken of relevant conduct of the respondent following publication of the vilifying material.) Fourthly, his comments about the use of the word 'poof' on air were attributable to his avowed aim, in making the broadcast, to 'send up' what he regarded as 'the overly politically correct regulation of discussion of homosexuality in the media'. Fifthly, with one exception, already noted (see [247] above), nothing was put to Mr Laws in cross-examination to suggest that the various purposes for which he claimed to have made the broadcast were not his genuine purposes. 257 In our opinion, the third and the fifth of these arguments are compelling. As to the third argument, we would observe that the point made by Mr Rofe is clearly relevant, but that in all the circumstances we think that the steps taken by Mr Laws to apologise to the homosexual community should in this particular context be taken into account in his favour, as evidence supporting his claim that his general attitude to homosexual people is not one of hostility. 258 Even though we have found that the effect of some of the statements in the broadcast was to incite severe ridicule of homosexual men on the ground of their homosexuality, we are satisfied that the broadcast, as a whole, was not motivated by hostility towards homosexuals and that Mr Laws' claim to have made it for purposes that we have found to be 'in the public interest' must be accepted. 259 For these reasons, Mr Laws has sufficiently established 'good faith' under s. 49ZT(2), in accordance with the test that we stated above (at [192]). In including the vilifying statements within his broadcast, he acted in 'the subjectively honest belief' that they were 'necessary or desirable' to achieve the purposes that he had in mind in making the broadcast. He did not act 'dishonestly' or 'in the knowing pursuit of an improper purpose'.' Assessment 65 The respondent submitted that the approach taken by French J was wrongly informed by consideration of other Commonwealth statutory frameworks where the relevant requirement is solely a 'good faith' one. They were not composite 'reasonableness and good faith' requirements. This point is alluded to in the last sentence of the Tribunal's remarks at para [193]. In our view, French J and the other Federal Court judges to whom we have referred were well aware that they were dealing with a dually expressed requirement. 66 In our view, the higher standard of good faith should form part of the appraisal of the conduct of a respondent seeking to rely on s 49ZT(2)(c). In our view, it is vital to the effective operation of an anti-vilification law of the present kind that persons actively engaged in otherwise offensive discourse with the wider community demonstrate conscientiousness in upholding the policy and objectives of anti-vilification provisions. 67 Anti-vilification laws seek to furnish a degree of protection to groups of people historically the subject of unlawful discrimination and deep-seated prejudice resulting in them being treated unequally as compared to other members of the community not having those characteristics. A number of Members of Parliament who spoke in support of the law under notice in this case saw a direct link between the making of vilifying statements about homosexual persons and the occurrence of unprovoked assaults on homosexual persons ('gay bashing') and, sometimes, outright murder. See for example Second Reading of the Bill (a Private Member's Bill), Ms Moore (Member for Bligh), Hansard (Legislative Assembly), 11 March 1993, 657; and the subsequent debate reported 13 April, 29 April, 16 September, 17 November 1993. 68 A similar point is made by Lee J in Bropho: '137 The Act is a statement, first, that acts done because of race promote a significant mischief in the community, sufficient to require intervention by statutory prohibition, and second, unless good cause is shown for the conduct concerned, it is in the greater public interest that the right of free expression be controlled by removing from public discourse racially based acts that offend, insult, humiliate or intimidate members of a race within the community thereby tending to set one part of the community against another.' 69 This case involves a popular broadcaster with an immense following and reach in the Australian community. 70 A broadcaster works in a regulatory framework that contains several impairments on the exercise of freedom of speech such as the law of defamation, contempt law, specific laws (relating for example to jury deliberations) and the regulatory standards imposed by broadcasting authorities. These impairments exist to meet other public interests - such as the fair protection of individual reputation and the administration of justice. The constraints now under notice are a more recent addition to these long-standing impairments of free speech. 71 While we prefer, like the Federal Court, a mixed subjective/objective approach to the assessment of good faith, if the matters we see as relevant to the good faith inquiry are taken up in considering reasonableness there is no fundamental difficulty. The test enunciated by French J imposes a higher standard on the doing of the act than merely an absence of bad faith or the like. It requires a conscientious approach to the doing of the act once a decision is taken to engage in conduct which prima facie contravenes anti-vilification provisions. 72 Accordingly, we will turn to the issues raised by the appeal in relation to the way the primary Tribunal assessed reasonableness. Reasonableness 73 We have already noted, in our summary of the propositions that appear to be relatively well established, that the assessment of 'good faith' and the assessment of 'reasonableness' involve separate inquiries. We should note that there is support in the case law for a more relaxed approach. 74 Carr J favours an approach that simply looks at all the evidence, and applies to it an objective judgment without strictly separating 'good faith' from 'reasonableness'. In Bropho he referred to the phrase 'done reasonably and in good faith' as a 'composite expression' (at [173]). He said at [176]: 'Questions of moral and ethical considerations would, of course, relate to good faith as well as reasonableness'. At [178], he said: 'The appellant complained that the primary judge (and by implication the Commission) erred in law by applying a subjective test for the conclusion of reasonableness and good faith. In my view, the Commission applied an entirely appropriate test. It took an objective approach, but without excluding evidence of Mr Murray's actual state of mind. I respectfully agree with the primary judge [Nicholson J at first instance in the Federal Court] when he expressed the view, at [33] of his reasons, that the focus of the inquiry is an objective consideration of all the evidence, but that the evidence of a person's state of mind may also be relevant.' 75 His Honour took a similar approach in Toben v Jones . This approach is not unlike that favoured by Priestley JA in a leading contract case examining the operation of an express or implied term of good faith and reasonableness, Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 (CA) at 263-268. 76 In our view this approach has some attractiveness as it avoids the separation of the requirement into two distinct elements, and the further dispute about whether each element is to be adjudged purely objectively or purely subjectively. Nonetheless the preponderant view in the higher courts favours a separation, and we must, we feel, adopt that approach. 77 In the Federal racial vilification civil provisions (ss 18C and D) there is express reference to the test of reasonableness at both the primary liability stage of the inquiry (s 18C), and in the consideration of whether the exception applies (s 18D). Under the primary liability provision, s 18C, conduct is only offensive if it is 'reasonably likely' to result in one of the types of harm listed. On the other hand in the Victorian religious vilification primary provision (s 8) and in the NSW primary provisions (s 49ZT(1), and, similarly, the racial vilification provision, s 20C(1)) the primary liability provision does not include a 'reasonable likelihood' test. Nonetheless the Victorian Court and this Tribunal in its earlier decisions have, in effect, implied a reasonableness standard into the interpretation of the primary provision. 78 As previously noted, the early cases in this Tribunal saw the assessment of reasonableness, whether for the purposes of determining whether one of the impacts listed in the primary liability provision or for the purposes of the application of the exception, was to be done objectively applying the view of an 'ordinary, reasonable person' see, for example, Western Aboriginal Legal Service and Kazak. In Kazak the Appeal Panel agreed with both propositions: see paras [21] and [22]. Importantly, the Appeal Panel warned at [17] to [19] against investing the ordinary reasonable person with characteristics of the targeted group, sympathies to the position historically of the affected group or beliefs of the targeted group. The ordinary reasonable person should only be invested with a general 'knowledge and experience of human affairs' in assessing whether the conduct is to be seen as reasonable. 79 It specifically rejected the primary Tribunal's view which had invested in the objective bystander specific characteristics of the victimised group. That approach had its antecedents in the reasons for summary dismissal of a complaint given by Sir Ronald Wilson, President, in an early HREOC case, Bryant v Queensland Newspapers [1997] HREOCA 23, and since described as the 'reasonable victim' test. Wilson P said, there dealing with the operation of the primary liability provision under Federal law with its express reference to 'reasonable likelihood': 'But are the words reasonably likely to offend, insult, humiliate or intimidate the complainant or some people of English origin? I accept that the complainant is offended, but that is not enough. I agree with the Race Discrimination Commissioner that the test must be an objective one, because of the use of the words "reasonably likely". It is a question of fact in every case, depending on the context in which the allegedly offensive word or words is used.' 80 In Catch the Fire Nettle JA dealt at some length with the attributes to be invested in the hypothetical bystander. He said (footnotes omitted): '93 That then leaves the question of whether the conduct was engaged in reasonably for the genuine religious purpose, and plainly as I see it that does involve an objective analysis of what is reasonable and therefore calls for a determination according to the standards of the hypothetical reasonable person. 94 Therein, however, is a further complication. It is not all that long ago that the standards of the hypothetical reasonable person were spoken of in terms of the man on the Clapham omnibus. So long as the population of this country was of predominantly Anglo-Celtic extraction, that was perhaps as apposite here as it was in United Kingdom. But today, as in the United Kingdom, our society is different. It is now a polytopic multicultural society and we recognise, and indeed the Preamble to the Act makes clear, that the standards of reasonable persons are the standards of an open and just multicultural society. Accordingly, where as here the conduct in question consists in the making of statements for a religious purpose, the question of whether it was engaged in reasonably for that purpose must be decided according to whether it would be so regarded by reasonable persons in general judged by the standards of an open and just multicultural society. 95 Such an assessment may not always be easy. A society which consists of varied cultural groups necessarily has the benefit, and bears the burden, of a plurality of standards. Hence, in this society, to speak of persons in general is to speak of persons who in large part have different standards. And to speak of what is reasonable among them it is to invoke an idea which as between them is to a considerable extent informed by different standards. Nevertheless, experience has taught us that reasonable members of an open and just multicultural society are inclined to agree on the basics. 96 In my view one is entitled to assume that a fair and just multicultural society is a moderately intelligent society. Its members allow for the possibility that others may be right. Equally, I think, one is entitled to assume that it is a tolerant society. Its members acknowledge that what appears to some as ignorant, misguided or bigoted may sometimes appear to others as inspired. Above all, however, one is entitled to assume that it is a free society and so, therefore, one which insists upon the right of each of its members to seek to persuade others to his or her point of view, even if it is anathema to them. But of course there are limits. Tolerance cuts both ways. Members of a tolerant society are as much entitled to expect tolerance as they are bound to extend it to each other. And, in the scheme of human affairs, tolerance can extend each way only so far. When something goes beyond that boundary an open and just multicultural society will perceive it to be intolerable despite its apparent purpose, and so judge it to be unreasonable for the purpose for which it was said.' 81 Nettle JA's reference to toleration draws on dicta of HREOC Commissioner Johnston in Bryl where he spoke of the need to apply the exception with a 'margin of tolerance' to the conduct and the respondent. 82 French J's approach in Bropho does not depend in the same way on assessment by reference to a putative or hypothetical bystander. The key passages from French J's judgment are: ' The Construction of Section 18D - Reasonableness 78 There is a number of definitions of 'reasonable' in the Shorter Oxford English Dictionary. The relevant ones are: '3. Agreeable to reason; not irrational, absurd or ridiculous. 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate.' The adverb 'reasonably' is defined as 'in a reasonable manner; sufficiently, fairly'. 79 There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done 'reasonably' in one of the protected activities in par (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things 'reasonably'. The judgment required in applying the section, is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D and a recognition of the two competing values that are protected by those sections. 80 An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question. An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise 'inferior' to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to par (b) of s 18D. 81 The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done 'reasonably'. A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered 'reasonably'. 82 The ways in which the concept of reasonableness is brought to bear in the context of s 18D are no doubt as numerous in their variety as are the circumstances in which alleged racial vilification may arise. The preceding comments do not purport to offer an exhaustive account of the concept of reasonableness nor a definitive view about the examples offered. Rather, they are intended to illustrate the kind of task that faces a court applying s 18D.' 83 French J's approach was generally approved by Lee J, and both referred to the importance of proportionality. Lee J said: '138 The act of publication was not an act of offensive behaviour in a minor degree in respect of a limited group of people. It was found to be an act reasonably likely to offend, insult, humiliate or intimidate any Aboriginal person. Humiliation or intimidation involves more than destruction of self-perception or self-esteem of a person. It affects others in the community by lowering their regard for, and demeaning the worthiness of, the person, or persons, subjected to that conduct. It stimulates contempt or hostility between groups of people within the community and it is the intent of the Act that such socially corrosive conduct be controlled. 139 I note that in Western Aboriginal Legal Service Limited v Jones … the Tribunal … considered that the construction of the words "reasonably and in good faith" imported a requirement for proportionality to be demonstrated in the conduct engaged in having regard to the degree of harm inflicted. At [153] the Tribunal said as follows: "...it seems that in many cases a factor to be taken into account when determining whether a public act performed for a purpose in the public...interest was 'reasonable' will be the impact of that public act upon those members of the racial group who have been vilified. Perhaps it will be necessary to undertake a balancing act with the guiding principle being the greater the impact the more difficult it will be to establish that the public act was reasonable."' 84 The Tribunal in this case adopted the factor-based approach of French J. After reviewing the case law, it said: '209 For the foregoing reasons, we conclude (with some diffidence, since the issue is far from easy) that the correct approach to interpreting 'reasonably' in s. 49ZT(2)(c) is to ask, following French J in Bropho , whether the relevant 'public act' (a) bears 'a rational relationship' to one or more of the purposes set out in this provision and (b) is 'not disproportionate to what is necessary' to carry out such purposes. We interpret 'not disproportionate to' in accordance with one of the dictionary definitions of 'reasonable': namely, 'not going beyond the limit assigned by reason'. In applying this test, the matters to be taken into account should include the four factors that we have just identified. In summary form, they are as follows: (i) the extent to which the vilifying material cannot be related to any of the relevant purposes; (ii) whether this material is composed in such a way as to include 'gratuitous insults'; (iii) the degree of harm inflicted on those members of the relevant group who have been vilified; and (iv) (as an element of (iii)) the range of dissemination of this material and the degree to which it is likely to be influential.' 85 The majority applied the approach set out in para [209] as follows: '260 (Majority opinion of Deputy President Chesterman and Member Quayle) Were the statements by Mr Laws broadcast 'reasonably'? We have found this to be the most difficult question to have arisen in this case. 261 To a substantial degree, the difficulty arises from the language of s. 49ZT of the Act. For reasons that have already been explained, it must be treated as envisaging what appears at first sight to be an outright contradiction. This is that a 'public act' - such as in this case a radio broadcast - which has the effect of inciting severe ridicule of homosexual men on the ground of their homosexuality may also be found to have been carried out 'reasonably' for one or more 'purposes in the public interest'. What follows from this is that a court or tribunal applying the section may be required - as we are now required - to distinguish (adapting the words of Gleeson CJ in Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005)) between incitement to severe ridicule that is 'reasonable' and incitement to severe ridicule that is 'unreasonable'. 262 The apparent difficulty of this exercise is mitigated by the interpretation of 'reasonably' that we have found to be appropriate. [The text of para [209] is repeated and the Tribunal continues.] 263 The submissions made on Mr Burns's behalf did not address in any detail the question whether the requirement of 'reasonableness' was satisfied. 264 Mr Reynolds argued that this requirement was clearly satisfied. Basing himself on the approach to the phrase 'reasonably and in good faith' adopted by French J in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, he argued first that if we found Mr Laws to have acted in good faith, it followed more or less automatically that he must have acted reasonably. 265 For reasons that we explained above at [193], however, we would draw a sharper distinction between 'good faith' and 'reasonableness' than French J did. As we see it, these two concepts depend respectively on subjective and objective factors. We therefore do not accept this submission by Mr Reynolds. 266 He argued also that since Mr Laws was not cross-examined on 'reasonableness' it was not open to us to make an adverse finding on this issue. We do not agree. Since 'reasonableness' is to be resolved objectively, we do not see why we are precluded from making a finding contrary to Mr Laws simply because his evidence and opinion relating to the issue was not challenged. But we do take account of observations, mentioned above, in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [151]. The Tribunal suggested that 'the ultimate effect of the reasonableness requirement' was, it seemed, 'to call upon' a person who had engaged in vilification to 'explain his or her behaviour' and that when this was done the requirement would 'no doubt… be interpreted quite broadly'. 267 An element of Mr Reynolds' argument on 'good faith' was his demonstration, referring to passages in the relevant transcripts, that there were clear links between substantial portions of Mr Laws' broadcast and both (a) the events depicted on the relevant segment of 'A Current Affair' and (b) the purposes for which Mr Laws made the broadcast. There was, he pointed out, little in the broadcast that did not have these links to the earlier television program and/or to one or more of the purposes envisaged by Mr Laws. 268 This submission is in our opinion more properly directed to the question of reasonableness. As a description of the evidence in this case it is broadly accurate. In our judgment, it sufficiently establishes the first of the two components of the test of 'reasonableness' that we have formulated: that is, that the statements made by Mr Laws during his broadcast did bear a 'rational relationship' to the purposes for which he made the broadcast. 269 It is the second component that to our minds presents the greatest difficulty. Can it be said that Mr Laws' statements were 'not disproportionate to' what was 'necessary' to carry out his purposes? 270 If this question is to be answered in Mr Laws' favour, it must, as we see it, be principally on account of three aspects of his broadcast which we have mentioned previously but have not emphasised. 271 The first is that one of the features of Mr Kressley's conduct as depicted on 'A Current Affair' - being a feature to which Mr Laws expressly referred in his elaboration of the purposes underlying his broadcast - was its 'overtly gay' nature. It would not be overstating matters to say that Mr Kressley engaged consistently in mannerisms that are stereotypically associated with homosexual men and, indeed, flaunted his homosexuality. He portrayed it as an integral part of his public image, as did the presenter who introduced him as 'an American Queer Eye'. 272 Secondly, at the end of the broadcast Mr Laws did explain that his critical comments about Mr Kressley were not intended to reflect on homosexual men generally but only on those homosexual men whose behaviour was 'overtly gay'. Although, as we have said above, this explanation was an insufficient 'antidote' to the vilificatory nature of his earlier comments, it should in our opinion be taken into account in characterising the overall subject matter of his broadcast and the links between this subject matter and the purposes of the broadcast. 273 Thirdly, one of the aims that Mr Laws pursued - as indeed did the program on 'A Current Affair' - was to entertain his audience through dealing with issues 'in a humorous and not overly serious way'. Opinions may differ as to the extent to which he succeeded in being, or indeed appearing to be, humorous. It is sufficient for present purposes to note that this was his purpose. 274 In these circumstances, it can be argued that in presenting a half-serious critical commentary focusing on Mr Kressley's mannerisms, on his self-proclaimed homosexuality and on the depiction of these matters on a television program, it was not 'disproportionate' for Mr Laws to refer to Mr Kressley's homosexuality, to express opinions about his mannerisms as depicted on 'A Current Affair' and to employ colourful epithets which homosexual men sometimes use for each other. By contrast, if Mr Kressley, while using effeminate mannerisms, had not consistently drawn attention to his homosexuality, it would clearly have been 'disproportionate' for Mr Laws to draw attention to this matter to the extent and in the manner that he did. 275 In our opinion, these considerations warrant a finding that all of the vilifying material within the broadcast was related, indeed closely related, to one or more of the purposes underlying the broadcast. It also indicates that the epithets for homosexual men that Mr Laws used cannot be regarded as wholly 'gratuitous'. These are factors suggesting that the vilifying material was not 'disproportionate', in the sense explained above. 276 On the other hand, we are satisfied, as indeed Mr Laws appeared to be after taking account of the reaction that his broadcast prompted, that his statements were harmful, to a significant extent, to homosexual people. Among the reasons for this were the considerable size of his nationwide audience and his acknowledged status and influence as an eminent broadcaster. Although his statements were in one sense ephemeral, like anything said on radio, they had considerable resonance within Australia. 277 We should make it clear at this point, however, that in assessing 'reasonableness' we do not take into account the steps taken subsequently by Mr Laws by way of conveying an apology to homosexual people. It appears to us that the 'reasonableness' of a public act must be assessed as at the time when it was 'done'. Although observations by the Appeal Panel in John Fairfax Publications v Kazak [2002] NSWADTAP 35 at [35] may appear at first sight to be in conflict with this view, we believe that they are in fact consistent with it. 278 The extent of the harm caused by Mr Laws' statements, having regard particularly to the size of his audience and his status and influence as a broadcaster, must be weighed against the factors, identified earlier, that in our judgment point towards a finding that the 'public act' constituted by the broadcast was carried out 'reasonably'. As was the case in arriving at our conclusion under s. 49ZT(1), our task in this context necessarily calls for a value judgment. 279 Our decision as to 'reasonableness', after careful consideration, is that Mr Laws has succeeded in establishing the necessary ingredients. He has provided an explanation for his behaviour in making the vilifying statements. They had a 'rational relationship' to the purposes for which he made the broadcast during which they occurred and in all the circumstances were not 'disproportionate' to what was 'necessary' to carry out those purposes. 280 In consequence of this ruling, the complaint by Mr Burns falls within the exception in s. 49ZT(2)(c) of the Act.' 86 It was on the application of the 'proportionality' calculus that the minority member (Mooney NJM) divided from the majority. Her key points are at [292] and following. She referred to the following matters: '(a) The tone used by Mr Kressley in the television program ('light-hearted, frivolous and flirtatious') as compared with the tone used by Mr Laws in his broadcast (his remarks sounded 'unnecessarily vindictive'). This tone, in combination with the language of smutty sexual innuendo, contributed to an overall effect that could be described as 'gratuitously insulting' to Mr Kressley and to homosexual men generally. (b) The degree of harm conduct of this kind can cause. Irrespective of the intent and purpose of Mr Laws, it was capable of being seen by persons inclined to homophobic views as providing support or justification from an authoritative source for views grounded on antipathy to homosexuality. For example, the reaction of the third caller. Conduct of this kind may contribute to an increase in violence against gays and lesbians.' 87 In our view there is no reference either in the Tribunal's statement of relevant considerations at para [209] or in the majority's objective appraisal of the conduct undertaken at paras [260] to [280] to the following matters, which we see as at the heart of the more positive understanding of good faith which we think is required by the statute: - Whether the respondent's conduct, objectively viewed, manifested an honest and conscientious endeavour to have regard to and minimise the harm it would, by definition, inflict. - Whether the respondent's conduct, objectively viewed, involved the exercise of the level of prudence, caution and diligence, which, in the context of the Act, ensured that due care was taken to avoid or minimize the consequences of the offensive statements. 88 As the appellant noted in his submissions, in its concluding observations at para [282] the Tribunal used the word 'pernicious' to describe the respondent's conduct: '282 We have decided first that the statements made by Mr Laws caused harm to homosexual men in a way that s. 49ZT(1) seeks to prevent. This conduct on his part does him no credit. As an experienced and reputable commentator, he should have been aware - and indeed he subsequently stated that he had become aware - that his statements were pernicious in this respect.' 89 In dealing with the applicability of the exception, the Tribunal said at para [276] that the broadcast was 'harmful, to a significant extent, to homosexual people'. 90 In our view, these two findings raise a serious question as to whether the good faith standard as we see it operating could in the circumstances be satisfied. 91 While, as we later explain, we accept that post-event conduct may be taken into account in forming a view as to the subjective intention of a person at a prior time, we see some difficulty in taking account of post-event conduct in the assessment of such matters as whether due care, diligence and prudence was exercised so as to minimise the offence given. Conclusions in respect of Grounds 1 and 2 92 We acknowledge that Nettle JA's approach, and that of the Tribunal below, has the appeal of simplicity in expression and application. We do not understand the primary Tribunal in this case to have gone so far as to suggest that the factors that French J and Lee J brought into play on the 'objective' side of the good faith assessment had no relevance at all to the overall appraisal of a respondent's conduct. Nettle JA's judgment is less clear, in our opinion, on this point. 93 In our view, if the approach to good faith is simply left as a substantially subjective one, it is essential that the particular matters which we think should be canvassed on the objective side of the good faith inquiry be taken up as part of the reasonableness assessment. 94 In our view the Tribunal did not take up the objective aspect of the good faith standard as part of its assessment of reasonableness. The first two grounds of appeal are established. Grounds of Appeal 3 to 6 95 The next grounds are 'no evidence' grounds, as follows: 3. There was no evidence nor inferences from the evidence tendered entitling the Tribunal to make findings that the admitted "public act" was done "in good faith" and/or "for purposes in the public interest." 4. There was no evidence or inferences from the evidence tendered entitling the majority of the Tribunal to find that in the circumstances the admitted "public act" was done "reasonably." 5. By reason of ground 3 above the finding of the Tribunal was perverse and not one which could fairly be arrived at. 6. By reason of ground 4 above the finding of the majority of the Tribunal was perverse and not one which could fairly be arrived at. 96 In our view as there was an error of law underlying the approach taken to the reasonableness and good faith inquiry, it is unnecessary to consider closely these essentially supplementary objections. 97 We would note that appellate courts, and this Appeal Panel, ordinarily will not interfere with a finding of fact on an error of law basis. We have referred in greater detail to the relevant case-law in dealing, below, with the respondent's case for sustaining the Tribunal's order on alternative grounds. 98 One of the matters these grounds raise goes to the question of whether the evidence entitled a finding that the broadcast was done 'for purposes in the public interest'. This matter was not pressed strongly at the appeal. 99 We agree with the Tribunal's reasoning on this matter. The conception of a purpose in the public interest is to be construed generously. Programs of the kind that Mr Laws conducted are a staple of modern radio entertainment. It is routine for them to hold talk-back on events that have occurred in the last 24 hours, and to put an angle or 'spin' on them to promote discussion and some controversy. We do not think any special connotation should be attached to the 'public interest' in the context of this statute to confine it in some way to more high-minded social purposes of the kind that the activities specified in the earlier part of the exception might be said to serve. Grounds 7 and 8 100 Grounds of appeal 7 and 8 related to the inclusion by the Tribunal within the body of evidence of various items, i.e. Ex D - A message from John Laws to the Gay and Lesbian Community; Ex G - The Respondent's apology on radio to the Gay and Lesbian Community; Ex H - E-mail from Stevie Clayton; Ex K - The Respondent's interview with Stevie Clayton on 1 March 2005; and Ex M - Applicant's letter of 5 July 2003 and Respondent's response of 11 August 2003; and Ex J - Stevie Clayton's letter of 18 November 2004 to Senator Helen Coonan. 101 These grounds were not actively pressed at hearing by counsel for the appellant, though not formally abandoned. 102 We would note that the Tribunal has greater flexibility than the ordinary courts in relation to the admission of evidence. It is not strictly bound by the rules of evidence: see Tribunal Act, s 73. The Tribunal is bound by the base-line common law standard that any findings must be based on logically probative evidence. It is this standard that protects parties against misdirection by the Tribunal in its consideration of material that may have been received in the course of the proceedings. Even if, as asserted in the grounds of appeal, Ex J is irrelevant, there is nothing in the reasons of the Tribunal to suggest that it received any weight in formulating its conclusions. 103 Ground 7 refers to Exhibits D, G, H, K, and M. It is clear that conduct of Mr Laws in the two weeks after the broadcast did receive consideration by the Tribunal and was accorded significant weight. Exhibits D, G and H go to this area. It is not clear that the further contact between Mr Laws and the gay and lesbian community to which Exhibits K and M go received any weight. 104 The issue, in effect, raised by these grounds of appeal is whether conduct that occurs after-the-event of an offensive publication can be taken into account in establishing a defence or exception of the kind found in sub-section (2). In the Kazak case one of the points of criticism by the Appeal Panel of the first instance Tribunal decision was that it had declined to take into account conduct of the perpetrator after-the-event of the conduct. 105 We agree with the Appeal Panel in Kazak, and with the Tribunal below in this case, that conduct after-the-event can be given consideration where appropriate. One context in which this would be usual is where the event in issue formed part of a wider public discourse or debate in which the publisher had been involved. This was clearly the position in Kazak. The newspaper had regularly given space to different viewpoints on the Israel-Palestine conflict and tensions. The article that led to the vilification complaint against the publisher contained a vitriolic set of statements in an opinion piece hostile to Palestinians. The Appeal Panel saw as relevant to its assessment of whether the act was 'done reasonably' the evidence of the course of conduct. 106 In this case, there is no suggestion that, at or around the time of Mr Laws' broadcast, avowedly-homosexual presentations in entertainment shows were the subject of any wider public discourse. Entertainers who 'flaunt' their homosexuality have been part of the entertainment culture now for many years, two notable examples being Quentin Crisp and Julian McClary. This was a one-day issue for the Laws program. 107 Arguably Mr Laws should not have been allowed to bring after-the-event conduct to the attention of the Tribunal when considering the 'good faith' aspect of the exception. It seems to us that the conduct of a publisher, especially soon after an event, may be relevant to the judgment that is to be formed of their subjective state of mind on the occasion of the event. Our understanding is that the evidence to which objection is taken related to the period up to 18 November and was taken into account on that basis. We think that is permissible, and not objectionable in the way suggested by the grounds of appeal. 108 Each case has to be judged on its own facts in this respect. We accept that a sceptical mind may well have to be brought to the consideration of conduct after-the-event when there is no broader course of conduct to which regard is being had. It may well be that the conduct after-the-event points to guilt as to intent at that time not to innocence of intent at the time. These are factual matters for assessment at trial. 109 It will be seen, therefore, that we do not agree that the Tribunal misdirected itself in having regard to Exhibits D, G and H. We can see nothing in the reasons to indicate that it had any regard, in the end, to the other Exhibits. 110 These grounds of appeal are dismissed. Conclusion 111 To sum up. Whether the conduct was done reasonably is a matter for objective assessment by the Tribunal. We do not wish to be definitive about what factors might in a particular case be relevant to the objective assessment of the reasonableness of the conduct. We think that in the present case the Tribunal's approach was satisfactory, involving as it did a broad division of the considerations into ones going to the 'rationality' of the relationship of the comments to the permitted purpose, and ones going to their 'proportionality' to the permitted purpose. In dealing with the question of good faith, first the respondent must prove a subjective state of mind that was not affected by bad faith. In addition, the Tribunal must be satisfied objectively of the matters to which we have referred at [87]. 112 We are of the view that the Tribunal erred in law in its interpretation of the 'reasonableness and good faith' requirement by deciding not to engage in the second of the steps in connection with good faith. Nor are we satisfied that the matters we see as relevant to that second step were taken up in the assessment of the reasonableness of the conduct. 113 In our view, the appeal should be allowed unless there are other reasons for disallowing it. Accordingly, we now turn to consideration of the respondent's contention that the Tribunal's order dismissing the complaint is valid on other grounds. Respondent's Alternative Grounds for Dismissing the Appellant's Appeal 114 The respondent raises an objection to the Tribunal's reasoning in connection with sub-section (1), and aspects of sub-section (2). It submits that the Tribunal erred in law, and a conclusion adverse to the respondent was not open. The submissions list ten categories of error, appearing under the headings 2 to 11. 115 We have divided them as follows: (a) General Objection: The Tribunal failed to apply relevant principles of statutory construction (heading 2 in the submissions). (b) Objections in connection with sub-section (1): (i) failure to apply the Briginshaw principles to the finding of facts (heading 5); (ii) error in finding that the broadcast was an incitement of ridicule against homosexuals generally (heading 6); (iii) error in dealing with the question of whether the broadcast amounted to ridicule (heading 7); (iv) error in finding that it constituted severe ridicule (heading 8); (v) error in concluding that the comments were 'on the ground' of homosexuality (heading 9); (vi) error in not making an adverse finding without proof of an intent to incite (heading 10); (vii) error in failing to find proof of actual incitement of any person (heading 11). (c) Objections in connection with sub-section (2): (i) errors in relation to 'reasonably' (heading 3); and in relation to the (ii) onus of proof (heading 4). 116 In the following reasons we will refer to these grounds as (a), (b) (i) to (vii); and (c) (i) and (ii). 117 We do not propose to deal at any length with some of them. The Appeal Panel lies in the legal hierarchy below the superior court level. We accept that there are no relevant decisions at superior court level in New South Wales dealing with the present provision, or analogous provisions, in the NSW Act. On the other hand, we regard the superior court decisions on analogous provisions in other jurisdictions as highly persuasive. In addition, on some points there are previous Appeal Panel decisions that we regard as authoritative. A number of them have been cited, without criticism and on occasions with express approval, in later superior court cases. 118 In our view the following propositions are relatively settled: (1) The onus of proof of the exception lies on the respondent. We accept that in the early case-law dealing with this exception there was some uncertainty on this point, but we consider that the point is now settled. See for example, Jones v Scully at [127], [128]; Jones v Toben at [101]; Toben v Jones at [41] (Carr J); and in this Tribunal the cases cited by the Tribunal below at [129]-[136]. Ground (c)(ii) is dismissed. . (2) It is not necessary that it be shown that the respondent to a complaint had an intention to incite hatred, contempt or severe ridicule. Again there was some early debate in the case-law around this point. See Veloskey, Appeal Panel, at [23] and [24]. Kazak, Appeal Panel, at [10]. Ground (b)(vi) is dismissed. (3) Similarly, 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. See for example, Jones v Scully at [99]. Ground (b)(vii) is dismissed. 119 That leaves grounds (a), (b)(i) to (v), and (c) (i) to be considered. (a) General Objection: principles of statutory construction. 120 The respondent's submission is, essentially, as follows. Section 49ZT involves an abridgement of free speech, the text of s 49ZT contains words of uncertain breadth in their application; and accordingly an approach to interpretation should be adopted which strictly construes the provisions, and resolves any uncertainty in favour of the person engaged in speech. 121 The appropriate approach to statutory construction of provisions of the present kind has been the subject of consideration and discussion in many of the leading cases. We are not inclined on this occasion to recapitulate that debate. In our view, there was no error in the way the Tribunal dealt with this debate, and in adopting the approach it did. 122 In our view, the Parliament chose to abridge freedom of speech in a qualified and limited way when enacting anti-vilification provisions such as the present. In our view the language is unmistakable and unambiguous as to this matter in the sense suggested the High Court in Coco v The Queen (1994) 179 CLR 427 at 437. We agree with the view expressed by the Tribunal at para [76] of its reasons. In our view the provisions of s 49ZT should not be read so narrowly or tightly as to deprive them of any practical area of operation. Moreover in our view, there is no doubt that Parliament was consciously engaged in placing a limitation on freedom of speech in this respect. 123 The Tribunal should, we consider, approach the construction of these provisions without a 'leaning' position in either direction as to the way the provisions are to be construed. 124 It should seek to accord to the words their ordinary or natural meaning, taking account of the objectives of the legislation, and the context in which the relevant provisions appear: see, for example, K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 per Mason J. 125 'Context' is to be seen in its widest sense - it includes 'not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which I can, by those and other legitimate means, discern the statute was intended to remedy': per Viscount Simonds LC in Attorney General v Prince Ernest Augustus of Hanover [1957] AC 436 at 461, cited with approval by Mason J in Lake City Freighters at 315. 126 As Geddes has noted: 'The importance of this statement lies in the fact that it places 'context', bracketed with 'purpose or object', at the beginning of the legislative process': 'Purpose and Context in Statutory Interpretation', Statutory Interpretation (Judicial Commission monograph, 2007), p 137. Mason J's and Viscount Simonds' approach were expressly approved in 1997 by Brennan CJ, Dawson, Toohey and Gaudron JJ in CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384 at 408. 127 In those dicta the judges, as Geddes notes, expressly extended context to include extrinsic legislative materials. See further, Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99 per Toohey, Gaudron and Gummow JJ, and 112 per McHugh J; and the case often cited for these propositions today, Project Blue Sky Inc v Australian Broadcasting Authority (1997) 194 CLR 355 at 381: 'the process of construction must always begin by examining the context of the provision being construed': per McHugh, Gummow, Kirby and Hayne JJ. 128 In our view, sub-section (1) does not contain any terms that are affected by ambiguity, in the sense of being affected materially by conflicting or inconsistent meanings. We accept that terms like 'ridicule' or 'serious ridicule' are words with an inexact connotation, and that as the Tribunal in this case observed, there is scope for reasonable minds to differ as to whether particular circumstances might justify the description 'ridicule' or 'severe ridicule'. But that does not make the words themselves ambiguous. 129 The provision is directed to placing restraints on comment of a particularly serious character that vilifies persons on the grounds of an attribute that historically has given rise to unfair and unlawful discrimination as against persons without that attribute. As noted earlier, the Parliamentary debates on this legislation make it clear that considerable concern was felt over the influence that homophobic comments have in stirring up ill will towards homosexuals and producing a social environment in which at least some people are emboldened to marginalise homosexual persons or act violently towards them. (b) Objections in connection with sub-section (1) 130 The grounds that remain to be considered under this heading all attack the fact-finding process of the Tribunal. 131 The first objection is an alleged failure of the Tribunal to apply the Briginshaw principle to its process of finding the facts. 132 The provision under notice is a civil liability provision. The standard of proof is therefore the balance of probabilities. 133 In Briginshaw v Briginshaw (1938) 60 CLR 336 Dixon J made the famous statement at 361-2 that where an allegation in a civil case is of such seriousness or, if proven, will have grave consequences, the tribunal of fact should not reach a state of reasonable satisfaction on the basis of 'inexact proofs, indefinite testimony, or indirect inferences'. 134 There a husband petitioned for dissolution of the marriage on the ground that his wife had committed adultery. His only direct evidence was of his wife being seen kissing the other man. He also sought to rely on a hearsay statement that the other man was said to have told a friend of his sister that he (the other man) had had sexual intercourse with the wife. In that time and era, a finding of adultery against a married woman was seen as a 'serious matter' (per Rich J at 350), and involved what many would have seen as a 'grave moral delinquency' (per Dixon J, ibid). The High Court agreed with the lower court that the evidence was too flimsy to grant the husband's petition. 135 In Neat Holdings Pty Ltd v Karajan Holdings [1992] HCA 66; (1992) 67 ALJR 170 at 171 Mason CJ, Brennan, Deane and Gaudron JJ emphasised that Briginshaw did not set some third standard of proof intermediate between the ordinary civil standard and the criminal standard, even though often statements have been made to that effect. Further they cautioned against over-insistence on the standard: 'There are, however, circumstances in which generalisations about the need for clear and cogent evidence to prove matters of the gravity of fraud or crime are, even when understood as directed to the standard of proof, likely to be unhelpful and misleading.' 136 Briginshaw is a case about the standard of evidence required to meet the burden of proof. It is doubtful whether Briginshaw needs to be incanted as ritually as it is in anti-discrimination law. See generally de Plevitz, 'The Briginshaw 'Standard of Proof' in Anti-Discrimination Law: 'Pointing with a Wavering Finger', (2003) 27 Melb Uni LR 308. See also the recent decisions, Qantas Airways Limited v Gama [2008] FCAFC 69 esp per Branson J at [123] ff; and Granada Tavern v Smith [2008] FCA 646 at [88]-[90]. 137 To find a broadcaster guilty of vilification, whether racial, religious or homosexual, is, we accept, a serious matter with possible consequences for the public standing and reputation of the broadcaster. It does not sit as high in the spectrum of gravity, we think, as an adverse finding of adultery against a wife in public court proceedings in the 1930s. 138 Here there is ample underlying material. The findings to be made are not affected by a paucity of material in the way so vividly illustrated by the circumstances in Briginshaw. The difficulty here arises in making the various assessments required, flowing from the penumbra of uncertainty that surrounds such matters as the line to be drawn in respect of 'severe ridicule'; and the degree to which subjective evidence meets a requirement, or the ultimate finding is to be made on the basis of an objective assessment. (To similar effect, see French J in Bropho at [76] and the Appeal Panel in Veloskey at [43]). 139 In this regard and in reply to one of the respondent's submissions, we think the Tribunal was making the same point at para [127] of its reasons, and there is no error or misunderstanding revealed as to the way the Briginshaw principle is to be applied. The Tribunal said at [127]: 'But we would add, contrary to a further submission that [Mr Reynolds] made, that on our understanding of the Briginshaw principle it applies to primary facts rather than to assessment or value-judgments that must be made on the basis of such facts.' The remaining objections under this heading focus, in the main, on the findings made by the Tribunal at paras [234] to [242]. 140 We set out the relevant passages of the Tribunal's reasons: '234 Our conclusions. In our judgment, three matters raised in the foregoing outline of the submissions by counsel are of particular significance in determining whether the broadcast fell within s. 49ZT(1). The first is that, as Mr Reynolds argued, we should indeed try to put ourselves in the position of casual listeners. Secondly, as Mr Rofe pointed out, the identification of Mr Kressley as a homosexual, involving the use of labels such as 'pansy', 'poof' and 'pillow biter', occurred very early in the broadcast and continued throughout the initial monologue by Mr Laws (paras 1 and 2). At the conclusion of this monologue, the invitation to Mr Kressley to 'piss off' was accompanied by the labels 'pansy' and 'poof', and by the sardonic comment that 'you can't say' the latter word because it is 'derogatory'. Thirdly, this monologue contained two explicit references to homosexuals generally, of which one was clearly derogatory ('proliferation of pansies') and the other (the comments about 'people with varied sexual leanings') would in our view be understood in its context to convey a negative message. Homosexual men were explicitly said to differ from 'free thinking red blooded men'. 235 In our opinion, these features of the initial monologue set the tone for both the monologue itself and the subsequent conversations between Mr Laws and the three members of his audience who telephoned the radio station. The casual listener was invited to treat Mr Kressley's homosexuality as one of the key aspects of his character that warranted his being considered worthy of ridicule. Although near the end of the broadcast Mr Laws sought to distinguish between homosexuals generally and those who, like Mr Kressley, indulged in 'poncing about the place', that distinction was not drawn at all at the beginning. What occurred at the end was, to use a metaphor sometimes employed in defamation cases, the application of an 'antidote' that was insufficient to cure the 'bane' already brought about by the initial monologue. Even if Mr Laws did not actually intend to do so, he invited casual listeners in this monologue to accept the proposition that a homosexual man would inevitably, or at least in the normal course, be 'pompous' and a 'prig' and would regularly engage in 'strutting about the place'. This association of homosexuality with effeminate mannerisms was sustained through repeated use of the term 'pansy'. Furthermore, it was implied throughout that the behaviour of 'hard drinking hard talking men M-E-N', who implicitly were heterosexual, was entirely different. 236 The labels used by Mr Laws that unambiguously drew attention to Mr Kressley's homosexuality - 'poof', 'pansy', 'pillow biter' and 'fairy' - were colourful was well as alliterative and were therefore apt to remain in the mind. The same can be said of the double entendre in the remarks about 'circles'. There was, as we have said, a distinctly sardonic edge to the comment that 'you can't say' the word 'poof' because 'that's a derogatory word'. These elements of the broadcast, all occurring near the beginning, focused on homosexuality as a key theme. They did so in a manner that cannot be characterised as mere 'joking' and 'humour', because in so far there was humour at all, it had a sharp mocking edge. The tone of voice adopted by Mr Laws (see [20] above) contributed to this outcome. 237 These matters are in our opinion distinctly more important in assessing the overall impact on the casual listener than the fact - on which Mr Reynolds placed significant emphasis - that Mr Laws referred a good deal less frequently to homosexual men generally than to Mr Kressley specifically. 238 Underlying this finding is a proposition regarding the sharp distinction that Mr Reynolds sought to draw between incitement of severe ridicule of a single homosexual man, such as Mr Kressley, and incitement of severe ridicule of homosexual men generally. In our judgment, this distinction is less sharp than might initially appear when account is taken of the fact that if the relevant material is to constitute vilification the incitement must in either case be 'on the ground of' homosexuality. 239 The point that we are making can be briefly expressed as follows. To the extent that in a case such as the present, severe ridicule of an individual homosexual man is incited on the ground of his homosexuality, the viewer, reader or listener is encouraged to believe, unless otherwise persuaded, that other homosexual men are equally deserving of severe ridicule on the ground of their homosexuality. Even if, as in the present case, this process of generalisation is only made explicit on a couple of occasions, the implicit invitation is always present. 240 This is not to say that the distinction drawn by Mr Reynolds is illusory. It is expressly drawn in s. 49ZT(1). But its significance appears us to operate principally at the level of remedy. If Mr Kressley had successfully instituted vilification proceedings, he could have argued that any damages awarded to him should significantly exceed the damages (if any) that would be awarded to another complainant suing on the basis that there had been vilification of homosexual men generally. 241 We were urged to take account of the evidence regarding Mr Laws' high status and reputation as a broadcaster. In so far as this provides grounds for thinking that his statements would be likely to be taken seriously by his audience and would therefore be interpreted as genuinely seeking to induce the reactions suggested by their content, we agree that it is a relevant consideration. 242 As stated earlier, a determination as to whether 'mere' ridicule or 'severe' ridicule is incited by a 'public act' necessarily calls for a value judgment. Our judgment, taking all the foregoing considerations into account, is that the material complained of, when broadcast by Mr Laws in the manner and the circumstances outlined above, had the effect of inciting (in the sense of urging or prompting) a hypothetical 'ordinary reasonable person' in the position of a casual listener to the broadcast to treat homosexual men as objects of 'severe ridicule' (in the sense of extreme derision or mockery). The relevant segments of the broadcast accordingly fell within s. 49ZT(1) of the Act.' 141 In his since much-cited judgment in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Glass JA at 153 ff made a number of important observations on the general inviolability of findings of fact. At 155-6, he said: 'To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence, that it ignores the probative force of the evidence which is all one way or that reasonable person would have made it, is to say the same thing in different ways.' 142 To similar effect, at 157: '… [T]his Court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable application of law to the facts found.' For a more recent exposition of relevant principles, see Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at 450-451. 143 The first of the four remaining objections relating to fact-finding is that the Tribunal erred in finding that the broadcast was an incitement of ridicule against homosexuals generally. 144 It is clear, we consider, that Mr Burns' complaint was always about the way in which the aspersions made by Mr Laws, using as their focus aspects of Mr Kressley's performance in the two programs in which he appeared on Melbourne Cup Day, also involved the making of aspersions on homosexuals generally. 145 The respondent seeks to apply a literal reading to the text. In our view, the Tribunal had ample evidence to warrant a finding that the direct references to Mr Kressley were not confined to him alone as an isolated homosexual person, but were expressed in such a way as to cast aspersions more generally on homosexual persons, especially those that might exhibit similar characteristics to those exhibited by Mr Kressley. 146 The respondent plays down the significance of the two occasions on which the broadcast became general (the reference to a sudden proliferation of pansies and the reference to people with varied sexual leanings). In our view it is open to a trier of fact to form the view that a series of direct references to one homosexual person and his or her characteristics is not confined in its impact or effect to that one person, but is simply a vehicle for an attack generally on homosexual persons. In this instance the trier of fact gave weight, we think permissibly, to two instances where the broadcaster actively generalised his statements drawing on the specific illustration. 147 There is a particular criticism made of the statements at paras [239] and [240]. It is said that the Tribunal fails to address the clear distinction between vilification of 'a person' or a 'group of persons'; and that the distinction is not one that principally operates at the level of remedy. In our view, it was open to the Tribunal to find that the comments vilified homosexuals generally not just an individual person. The comment made at [240] is essentially a supplementary comment. The Tribunal is simply saying that had the person the immediate object of the comments brought action the damages for pain, distress and humiliation suffered as an individual might have been greater than those that might be recoverable in an action brought by a person as a de facto representative of homosexual persons generally. We see nothing contentious in that statement. 148 The next two objections go to the Tribunal's treatment of the question of what is meant in this legislation by 'severe ridicule'. The objections are that the Tribunal erred in dealing with the question of whether the broadcast amounted to ridicule; and in finding that it constituted severe ridicule. 149 These, we think, are the respondent's central attacks on the fact-finding process of the Tribunal. Sub-section (1) places constraints on conduct that incites 'hatred towards', 'serious contempt for' or 'serious ridicule of' a person or group of persons on the stated ground. The words were intended, we believe, by the Parliament to be interpreted by reference to their common understanding, difficult as that may be to express with precision. 150 In making a judgment as to whether conduct falls at the 'severe ridicule' end of a spectrum starting with 'mere' ridicule, the Tribunal in this case was engaged, we consider, in the determination of a question of fact. We have referred above to the leading case of Azzopardi. In Hope v Bathurst City Council (1980) 144 CLR 1 at 7 Mason J referred to the case of Brutus v Couzens [1973] AC 854 where the only question raised was whether the conduct under notice was 'insulting'. Mason J said (ibid), similarly to the approach later taken by Glass JA in Azzopardi: 'As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact'. Similarly here we do not think it was unreasonable for the Tribunal to hold that the conduct of Mr Laws amounted to 'severe ridicule'. 151 The final objection is that the Tribunal erred in the way it addressed the question of whether the severe ridicule of the group of persons was 'on the ground of' their homosexuality. The submissions refer to the findings set out at paras [234] to [242]. They also refer to the way the Tribunal explained the approach it would take at paras [124] to [126]. It said: '124 The phrase 'on the ground of the homosexuality of' . In the written submissions filed on Mr Laws' behalf, it was argued that this phrase in s. 49ZT(1) required proof of two matters: (a) that the respondent intended to incite one or more of the relevant reactions on the ground of the homosexuality of the relevant person or persons; and (b) that the 'public act' objectively conveyed the 'message' that the homosexuality of the relevant person or persons was the true basis for the reaction(s) being incited. 125 In view of our ruling that an intention to incite need not be proved, we consider that the first of these matters need not be proved. In our opinion, it is sufficient only to establish the second matter, with the additional element that it is the reaction of the 'ordinary reasonable person' that must be assessed. 126 It was also argued in these submissions that where one or more of the relevant reactions is incited towards a person or group of persons on a number of grounds, including the ground of homosexuality, it must be shown that the ground of homosexuality is a 'substantially contributing factor' to the incitement. The judgment in Collier v Sunol [2005] NSWADT 261 at [64] was cited in support. We agree with this proposition, which is in fact to be found in the Appeal Panel's judgment in Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [30].' 152 In our view, the question of whether particular conduct is 'on the ground' of a specified attribute is one of fact. The danger that the contents of the public act (the comments in issue) may only have a remote or passing connection to the protected attributes of an individual or group is guarded against by the approach taken by the Appeal Panel in Veloskey , to which reference was made at [126] of the reasons. See further Creek v Cairns Post per Kiefel J esp at [24]. In our view in this case there was ample evidence permitting the Tribunal to make the finding that the offensive comments had as their ground the homosexuality of members of a group with that characteristic. No error of law of the kind identified by authorities such as Azzopardi , Hope or Vetter arose. (c) Objection in connection with sub-section (2) 153 The remaining objection goes to the way the Tribunal formulated its approach to assessing what is conduct 'done reasonably'. We have already in dealing with Mr Burns' appeal considered at some length this aspect of the exception. 154 To reiterate, the Tribunal summed up its view at para [209] as follows: '209 For the foregoing reasons, we conclude (with some diffidence, since the issue is far from easy) that the correct approach to interpreting 'reasonably' in s. 49ZT(2)(c) is to ask, following French J in Bropho , whether the relevant 'public act' (a) bears 'a rational relationship' to one or more of the purposes set out in this provision and (b) is 'not disproportionate to what is necessary' to carry out such purposes. We interpret 'not disproportionate to' in accordance with one of the dictionary definitions of 'reasonable': namely, 'not going beyond the limit assigned by reason'. In applying this test, the matters to be taken into account should include the four factors that we have just identified. In summary form, they are as follows: (i) the extent to which the vilifying material cannot be related to any of the relevant purposes; (ii) whether this material is composed in such a way as to include 'gratuitous insults'; (iii) the degree of harm inflicted on those members of the relevant group who have been vilified; and (iv) (as an element of (iii)) the range of dissemination of this material and the degree to which it is likely to be influential.' 155 Though the Tribunal's ultimate conclusion on whether the conduct was done 'reasonably' was in his favour, the respondent submits that the formulation was incorrect, and moreover was 'never put' to the respondent in argument either by the Tribunal or the appellant. It is asserted that this amounted to a breach of natural justice. In our view, it is clear that among the central issues in the proceedings before the Tribunal was the approach to be adopted to the interpretation and application of the exception. 156 At another point of the submissions it is asserted that it was necessary as a matter of law that if there was any challenge to be made to the reasonableness of his conduct in any respect that this be put in detail to Mr Laws in cross-examination. The Tribunal, in line with the various authorities, which we have accepted, took the view that it should assess the reasonableness of the conduct on an objective basis. It had evidence before it of Mr Laws' subjective motivations. This formed part of the material that it took into account. The fault of the respondent's submission, in our view, is that it is seeking to convert the assessment of reasonableness to reasonableness in the mind of Mr Laws. This is an entirely 'subjective' approach to reasonableness, and, as already been explained, has clearly been rejected in the authorities. 157 Contrary to the respondent's submissions, we do not think any great significance attaches to the way the reasonableness and good faith standard is expressed in the Commonwealth and Victorian exceptions as compared to the NSW exception. 158 The Commonwealth provision states that s 18C 'does not render unlawful anything said or done reasonably and in good faith', and then goes on (as relevant to this case) to apply that rule to anything said or done 'for a genuine purpose in the public interest'. The internal structure of the NSW provision begins with the words 'Nothing in this section renders unlawful …' a public act 'done reasonably and in good faith' for 'other purposes in the public interest'. It is said that in the case of the Commonwealth provision, and the Victorian provision which is drafted along similar lines, the requirement of reasonableness is a separate, free standing provision which is not directly linked to purpose in the way that occurs in the NSW provision. 159 The Commonwealth drafter has in our view simply adopted a style which uses the active voice, whereas the NSW drafter has adopted a style that uses the passive voice. The substance of the approaches, in our view, is identical. There is a similar connection made in each instance between the quality of the conduct (reasonable and in good faith) and its purpose. Final Conclusions 160 The result therefore in our view is that there are no grounds for disturbing the Tribunal's interpretation of the law and its findings so far as its analysis of sub-section (1) is concerned. On the other hand we think that it applied an unduly narrow approach to the assessment of reasonableness and good faith for the purpose of sub-section (2). This was to the disadvantage of the complainant's case. 161 The particular problem, as we see it, was that Mr Laws' conduct was not appraised by reference to an adequate understanding of the good faith requirement in a legislative scheme of this kind. As we have said, we would not have been concerned had the higher considerations we see as relevant to the assessment of good faith been taken up when assessing, objectively, the reasonableness of the conduct, but in our view that did not occur. Leave to Extend 162 In this instance we think the error was of significance, and leave should be granted to the appellant to extend the appeal to the merits. It is not desirable to remit the matter. The case has already been with the Tribunal for several years, and we should, we feel, move to finalise it. 163 The extension to the merits is to be limited to the reconsideration of the Tribunal's finding that the respondent had established that the exception contained in s 49ZT(2)(c) applied to his conduct, and therefore it was not unlawful. 164 Our provisional view is that this matter should be addressed only on the basis of the evidence already adduced. However, we will provide the parties with an opportunity to address the Appeal Panel on this matter. 165 The Tribunal's order will be set aside. If the Appeal Panel, on reconsideration, concludes that the exception is not made out, applying what the Appeal Panel considers to be the correct tests, a finding that the conduct is unlawful will be entered at that point. If that occurs, the proceedings will move to the remedy stage. Orders 1. Appellant's appeal allowed. 2. Respondent's application in its amended reply for the Tribunal's order to be upheld and the appellant's appeal dismissed on other grounds dismissed. 3. Order under appeal set aside. 4. Appellant's application for leave to extend the appeal to the merits granted. 5. The hearing on the merits is limited to reconsideration of the Tribunal's finding that the respondent's conduct was not unlawful because it satisfied the exception provided by s 49ZT(2)(c); and the making of any consequential order. 6. Directions hearing to be fixed by the Registrar.

Burns v Laws

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Judgment (13 paragraphs)

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Cases Cited (29)

Cited By (8)