Burns v McKee

NCAT Administrative and Equal Opportunity|2015-09-02

s [2000] NSWADT 102 Veloskey v Karagiannis (EOD) [2002] NSWADTAP 18 Texts Cited: Nil Category: Principal judgment Parties: Garry Burns (Applicant) Geoffrey McKee (Respondent) Representation: Solicitors: In person (Applicant) R Balzola & Associates (Respondent) File Number(s): 1410520 Publication restriction: Nil

Introduction

In these proceedings, Mr Burns makes complaint that by publication of material on a website between 30 December 2013 and 16 June 2014, Mr McKee has engaged in unlawful vilification on the ground of homosexuality in breach of ss 49ZS and 49ZT of the Anti-Discrimination Act, 1977 (NSW) (AD Act). He seeks an apology and other orders. For the reasons which follow we have found that elements of presumptive liability have been established in respect of the second sentence of the publication. We have not been satisfied that Mr McKee has made out the exception under s 49ZT(2)(c). Accordingly, we have found that the complaint is substantiated in part and that Mr McKee should publish an apology.

Other submissions and materials

In submissions filed on his behalf Mr McKee sought to establish that his son, rather than himself, was the true target of the proceedings and that Mr Burns' complaint was vexatious. No formal application was made in respect of that allegation nor was there sufficient evidence before us to make any finding even if leave had been granted to make it.
During the course of cross examination Mr McKee said that at the time of publication he was physically in Hanoi. Mr Balzola was asked whether Mr McKee was seeking to raise a jurisdiction issue. First Mr Balzola said that his client was concerned about the introduction of the matters outside the period of the complaint rather than jurisdiction. He later said that his client did seek to raise what he called the "territorial jurisdictional issue". He said that he conceded that the decision of the High Court of Australia in Dow Jones and Company Inc v Gutnick 210 CLR 575 provided that the relevant act of publication is completed where a recipient opens their laptop and views the material rather than where the material is uploaded. Mr Balzola made reference to no other authority.
The issue of jurisdiction was not pleaded nor did it appear in written submissions served by Mr McKee. Nor did Mr Burns seek to make any submissions about jurisdiction. In circumstances in which Mr Balzola did not seek leave to make a formal application or otherwise press the issue, in which event Mr Burns would have been entitled to an opportunity to respond, we have not proceeded to consider it.
We note that the Appeal Panel in Corbett v Burns [2014] NSWCATAP 42 at [63] also found on the facts of the case the subject of appeal and by reference to Dow Jones that a finding by the Tribunal that the public acts involved communications to an audience in New South Wales was open to it.
There were also in the materials provided to us documents apparently concerning an altercation involving Mr Burns and Mr McKee and a Mr John Sunol, threats said to have been made against Mr Burns and other matters which we consider have no relevance to the issues to be determined by the Tribunal upon this application. Other than for the purposes of determining the question of relevance, we have had no regard to these additional documents in considering the matter.

Mr Burns' complaint

In his letter to the ADB dated 16 June 2014, Mr Burns set out his complaint in the following terms: "On the 30 December 2013 Mr. Geoff McKee published on https:///www/causes.com/posts/891061 (Attachment A, a public act on Facebook)."
Annexure A is contained in the President's Bundle and sets out the entire comment complained of. It is a screen shot apparently taken from the URL referred to. The comment is as follows: "The cultural shift towards "gay marriage" has a very dark and dangerous underbelly. This is because homosexuals are three times more likely to commit sex crimes against children than heterosexuals. Two pedophiles form a union in a "gay marriage" and become "gay dads" by adopting a baby for the purpose of later sharing with their kind on a "boy lover" network. Gay marriage is therefore promoted by pedophiles as a mask for their perverted nature. The joys of gay fatherhood, indeed."
The allegation comprising the complaint referred to the Tribunal by the President of the ADB is in the following terms: "Mr Burns alleges Mr McKee published comments at the internet address http://www.causes.com/posts/891061 which he alleges to be comments that incite hatred towards homosexual persons."
It is noted that the reference made in the President's Report to the words complained of omits the word "gay" before "fatherhood" in the last line.
The complaint referred by the President is not in identical terms to that described in the letter from Mr Burns. There is no reference to Facebook. It was also in different terms to those set out in the Points of Claim filed by Mr Burns and his evidence. We will consider these anomalies in the course of these Reasons.
Mr Burns seeks the following orders: 1. A finding that by the publication of the statement complained of the respondent engaged in unlawful homosexual vilification. 2. The respondent publish an apology in a place, form and time to be determined. 3. The respondent remove all material which vilifies homosexual males and people from the respondent's Facebook or on any other website or blog controlled by him. 4. The respondent be restrained from posting any further material on Facebook, website or blog controlled by him that vilifies homosexual males or people contrary to the Anti-Discrimination Act.
Mr Burns is not seeking monetary compensation.
Mr McKee admits that he posted the comment on the Causes.com site but denies that this comprised a breach of the ADA. He says that the publication included or was published on Causes.com website by reference to the contents of a YouTube audio clip (audio clip) containing a radio broadcast appearing under the comment. The broadcast was by Hereward Fenton of an interview conducted by him and broadcast on Truth News Radio Australia in August 2013. He says that he is entitled to rely on the exception provided for in s 49ZT(2)(c) of the AD Act.

Whether the publication includes the audio clip

There was significant issue between the parties about whether the publication complained of included the contents of the audio clip. Mr Burns submitted that the complaint was restricted to the comment identified in the President's report. Mr McKee said that the content of the publication on the Causes.com website included the audio clip. A transcript of part of the audio clip was in evidence. It read relevantly: "[Hereward Fenton] so I've got a clip here that does show aspects of that. I've got the story here to show you that it comes from Australia, but it does have an American component - which is really an incredibly dire and disturbing story about paedophilia and child trafficking. It really beggars belief. I find it utterly incredible: the level of psychopathy involved with the individuals concerned, the way the whole affairs went on right under the nose of the Police, and the mainstream media - which is undeniable - where in this case we have a gay couple who allegedly adopted a child - where in fact they bought a child. And they were actually interviewed in an ABC Radio puff piece on the joys of gay marriage and how wonderful it is that in Australia we have gay marriage. And portrayed this couple as if they were some wonderful example to hold up to the world. And in the interview the couple actually talks about how they were actually screened by the Police prior to the adoption. And it turns out, years later, that they were engaged in the heinous crimes imaginable and the worst things you can possibly imagine. It really is very, very disturbing ladies and gentleman, very disturbing. And we need to reflect on it, we need to understand, and we need to think about what has happened in our society. We need to think about the editorial integrity of the ABC - how is it that they have done this story with so little investigation? But it turned out that the child was not actually a surrogate, as the couple had described in the interview. The couple described the child as actually being the result of a surrogacy that was paid for and managed by them. In fact, the child was simply bought with 8,000 Euros from a lady in Russia who forged the birth certificate. That's how it was done. [02:27 minutes - interlude] Now, I'd like to return to the story I mentioned earlier - a very sad, very disturbing tale about the gay couple in Australia - one American, one Australian, who adopted a child for the purpose of sex slavery and just most horrifically abused this child. This child was sent around the word to basically be abused by men, was filmed doing various activities, and eventually the men were caught. But before they were caught - long before they were caught - they had already been screened by Police - according to an interview which was conducted by ABC Radio - and this is an incredible aspect of the story - because the couple were interviewed years ago - long before the arrest. The couple were interviewed as part of an ABC puff piece on the joys of gay marriage and they were talking about how wonderful and they were basically celebrating this couple. And subsequently the story of this couple went around the world and was repeated on various gay activist sites and you can still find it there, as you can see the photo of the couple with the little boy. It turned out that the child was not a surrogate. The interview claimed that the man was actually the biological father, that the man in the interview by the name was Mark - had actually paid a Russian surrogate to have the child. None of that was true. The birth certificates were forged and the child was being used for sexual perversion and was being shared around - with a network of men."
The audio recording was first published on or around 7 August 2013. The statement complained of and audio clip were posted by Mr McKee on 30 December 2013.
Mr McKee explained that the audio clip was on his laptop as an MP4 file and that he uploaded the entire file of twenty-two megabytes onto the Causes.com site. He said that it was then automatically converted into an audio clip so that it would be put on YouTube although it was not in fact linked to YouTube.
Mr McKee submitted that the audio clip was the subject of the one paragraph comment complaint of and was the primary content of his post. He said that the audio clip is an inherent part of the publication and that it played automatically upon accessing the Causes.com website by the hyperlink on his Facebook page and that it would have been heard by any member of the public accessing the site.
Mr Burns submitted that the audio clip did not play automatically on accessing the link to the Causes.com site and said that he had not heard the audio clip when he read the comment on the site.
There was in evidence a screenshot of the Causes.com webpage containing the publication and a YouTube player. It is noted that the time bar at the foot of the YouTube player indicates that at the time the screenshot was taken the audio clip had played one minute fourteen seconds of twenty two minutes thirty eight seconds. Whether or not it commenced to play automatically upon accessing the link is not clear from that evidence.
Mr McKee was cross examined extensively in relation to his evidence about whether the audio clip played automatically upon accessing the site. He said in answer to a question from the Tribunal: "Let me explain what I found when I experimented with this site was that when you click on to the site originally you go to the very front page of this particular cause which was for the protection of children and that is seen in Figure 5, you see. If you scroll down you would eventually come to my comment, okay, and you can read perhaps my sentence there but you can keep scrolling down and the YouTube clip won't play then but only if you press on my comment it opens up to a new page and the YouTube clip automatically plays. In this particular thread there was just my comment but on 30 December 2013 when you scrolled down you come across a comment by Geoffrey McKee. If you read my one paragraph and you just keep going down the YouTube won't play but if you say that's an interesting thread I'll click on Geoff McKee it opens up all the conversations and as it opens up the YouTube clip automatically plays."
Mr McKee ultimately conceded in cross examination that the audio clip did not play when the Causes.com site is accessed and that it only plays when his post was clicked on. He conceded that the post could be read in isolation and the audio clip would not open up. When questioned by the Tribunal, Mr McKee agreed that the full content of his first paragraph was available to be read by anybody accessing the site without the audio clip playing.
Mr McKee further submitted that the audio clip was the primary content of the publication because he had uploaded the audio clip specifically to comment on it in the public interest. He said that the material complained of is a commentary on the content of the audio clip. Mr McKee's intention whilst relevant to making out that element of the exception under s 49ZT(2) of purpose is not relevant to determination of what was published, which is a question of fact.
The audio clip is not the subject of the complaint referred by the President. It is not able to be accessed without clicking on the comment which was the subject of the complaint. The comment complained of was able to be read without reference to the clip. In those circumstances we cannot be satisfied that the audio clip formed part of the publication complained of and accordingly find that it did not.

Relevant legislation

The complaint referred by the President is that of homosexual vilification under ss 49ZS and 49ZT of the ADA. These sections provide as follows: "49ZS Definition In this Division: "public act" includes: (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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." "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."
There is a threshold issue. Section 88 of the Anti-Discrimination Act provides: "88 Vilification complaints A vilification complaint cannot be made unless each person on whose behalf the complaint is made: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim."
Section 104 of the Anti-Discrimination Act provides: "104 Proof of exceptions Where by any provision of this Act or the regulations conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent."
In order to succeed in a complaint of homosexual vilification in breach of s 49ZT Mr Burns must establish four elements being: 1. A public act; 2. Which incites; 3. Hatred towards, serious contempt for or severe ridicule of a person or group of persons; 4. On the ground of the homosexuality of the persons or members of that group. See Burns v Dye [2002] NSWADT 32 at [14], Collier v Sunol [2005] NSWADT 261 at [30], Burns v Sunol [2015] NSWCATAD 131 at [26].
Mr Burns will fail if one of the exceptions outlined in s 49ZT(2) applies. The onus of establishing such an exception lies on Mr McKee.

Standing

The first question is whether Mr Burns has standing to bring the claim before the Tribunal. In earlier proceedings before the Administrative Decisions Tribunal, Mr Burns has claimed to be a homosexual man; see Burns v Corbett [2013] NSWADT 227 at [25]. He has repeated that claim before this Tribunal; see Burns v Sunol [2015] at [28]. He repeated the claim in his statement filed on 26 September 2014 in these proceedings.
Mr McKee submitted that due to Mr Burns' long track record of "bombarding" the Board with homosexual vilification complaints he could no longer be considered to have standing under the legislation to make complaints of homosexual vilification. He submitted that Mr Burns was in a different category to what he referred to as an ordinary homosexual person who had standing under the ADA to make a complaint. There is no evidentiary basis for this submission, nor does it go to a matter relevant to the question of standing.
Mr McKee also submitted that issues including what he described as an alleged psychiatric condition, criminal conviction for defamation, fear and anxiety issues, and a tendency to exaggerate and twist material as reasons why Mr Burns was not a fit and proper person to lodge a complaint. This submission is also unfounded. There is no requirement of being fit or proper for a person with the relevant qualifying characteristic to lodge a complaint. No evidence was offered in support of the submission.
Mr Burns has claimed to be a homosexual man. His claim was not the subject of cross examination or contrary evidence and we find there is no sufficient reason to doubt it. We find the requirement for standing to be satisfied.

The terms of the complaint and public act

The next question is whether or not the material complained of has been published by way of a "public act" within the meaning of s 49ZS. This is a question of fact; see Burns v Cunningham [2011] NSWADT 240 at [58].
As we have indicated a question arises in the material before us about the exact nature of Mr Burns' complaint and the factual basis for it. In his letter of complaint dated 16 June 2014 which was accepted by the President of the ABD for investigation Mr Burns said: "On 30 December 2013 Mr Geoff McKee published on https:///www.causes.com/post,891061 (attachment A, a public act on Facebook)" Attachment A is a screenshot taken from the Causes.com website.
The form of the complaint referred by the President of the ADB is in the following terms: "Mr Burns alleges Mr McKee published comments at the internet address http://www.causes.com/posts/891061 which he alleges to be comments that incite hatred towards homosexual persons." There is no reference to Mr McKee's Facebook page.
In his Points of Claim however Mr Burns asserts that a link to the subject material on the Causes.com website was published on Mr McKee's Facebook page. He then asserts that Mr McKee published the relevant statement on Facebook. In his statement dated 26 September 2014, he says: "When I logged on to the publicly accessible Facebook page where the statement of Mr McKee was published I was shocked to read …"
There is no other evidence that the words complained of were, in fact, published in that form on Mr McKee's Facebook page at this time.
Mr McKee accepted that the material was posted on the Causes.com website on or around 30 December 2013. He accepted that he uploaded the material which he says comprised both this comment and an audio clip to the Causes.com site and that this was linked to his Facebook account. The evidence was that the actual quote appeared on the Causes.com site and there was a screen shot of the comment on that site in the President's Bundle. The site was accessible by a link on Mr McKee's Facebook page. Mr McKee denied publishing the comment in its terms on his Facebook account on 30 December. He did say that he published the comment on his Facebook account several months previously although this is not the subject of the complaint.
In light of the form of Mr Burns' complaint to the ADB, the form of the complaint referred by the President, the contents of his Points of Claim which we have identified and the evidence from Mr McKee we find that Mr Burns is mistaken in his recollection of reading the subject material in its terms on Mr McKee's Facebook page. It is more likely, taking all those matters into account, that he accessed the URL on Mr McKee's Facebook page which lead him to the Causes.com website on which the material was contained. Accordingly, we consider that the terms of the complaint are those referred by the President for public hearing, namely the publication by Mr McKee on the Causes.com website to which we have referred.
If we are wrong about this, on the question of commission of a public act, we find that the publishing by Mr McKee of the URL on his Facebook page by which the material on the Causes.com site was linked to it would not, of itself, be found to be a public act under s 49ZS.
There was no evidence of any material surrounding the link on Mr McKee's Facebook page including whether or not the page contained an invitation to access the material complained of via the link. In Burns v Sunol [2012] NSWADT 246 the Tribunal found at [35] that where there was no clear evidence that an invitation existed on a website maintained by the respondent to access the link to the material in question, the facts that the respondent did not deny that he composed the email including the material in question, that the material was accessible on the internet on a website maintained by someone else or that it was possible for internet users who had logged on to his website to discover the link giving them access to the material were not enough to render the respondent in those proceedings responsible for the "public act" of communicating material to the public by means of the internet.
Similarly in Burns v Sunol No 2 [2012] NSWADT 247 the Tribunal said at [22]: "There are dangers, we think, in ruling that the existence of an evident link between a 'linking statement' on one website and 'offensive' material (e.g. because it vilifies or is defamatory) on other site is sufficient, without more, to make the publisher of the linking statement liable as a publisher of the offending material."
The decision concerned highlighted statements in text published by the respondent rather than a URL. Nevertheless, the Tribunal did not accept that the linking statements, without more in the way of an express or implied invitation to register or make use of the link, were sufficient to constitute a public act; see Burns v Sunol No 2 [2012] at [21]. On the basis of these authorities, and in the absence of evidence as to any express or even implied invitation to access the link on his Facebook page to view the Causes.com website, we could not be satisfied that Mr McKee is responsible in the relevant sense for the "public act" of communicating material to the public via his Facebook page.
The complaint we have proceeded to consider is that referred to in Mr Burns' letter of complaint and summarised in the President's Report, namely the comment posted on the Causes.com website. There was no clear evidence that the Causes.com website was a website accessible to the general public. However, Mr McKee conceded that his comment could be read by anybody accessing the site. Mr Burns was apparently able to gain access to the comment via the link on Mr McKee's Facebook profile without a password. We conclude that viewing of the material was not restricted and therefore that it was publicly accessible. There was no evidence to the contrary.
In Collier v Sunol [2005] at [33] the Tribunal considered that: "33 … [t]he act of posting written text on a website that is not password protected and therefore is publicly accessible falls within paragraph (a) of the definition of 'public act' in s 49ZS. It constitutes a 'form of communication to the public'"
On this issue, the Tribunal in Collier v Sunol [2005] had regard at [34] to the reasoning of Branson J in Jones v Toben [2002] FCA 1150 where the court held that posting material on a publicly accessible site was an act "not done in private" for the purposes of the vilification provisions of the Racial Discrimination Act 1975 (Cth). Section 18C(2) of that Act stated that: "An act is taken not to be done in private if it: … causes words, sounds, images or writing to be communicated to the public; …"
Her Honour said at [73] - [75]: "73 In my view, the placing of material, whether text, graphics, audio or video, on a website which is not password protected is an act which causes words, sounds, images or writing to be communicated to the public in the sense that they are communicated to any person who utilises a browser to gain access to that website. 74 I conclude that the placing of material on a website which is not password protected is an act which, for the purposes of the [Race Discrimination Act], is taken not to be done in private. … 75 I further conclude that the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publication, in that it allows individuals who access the website with a browser to read that text and see those graphics."
The publication is found on the Causes.com website. Mr McKee gave evidence that he posted it on the site. We are satisfied that any member of the public with access to the internet could access the site and read the material. No one is prevented from accessing the site.
In line with these authorities we conclude that the posting of the material on the site by Mr McKee constitutes a "public act" within the meaning of s 49ZS. We find that Mr McKee was responsible in the relevant sense for the public act by which the subject material was communicated to the public.

Interpretation of s 49ZT(1)

We turn to consider whether the public act we have identified falls within the operation of s 49ZT(1). Detailed consideration of the interpretation of s 49ZT was undertaken by the New South Wales Court of Appeal in Sunol v Collier (No 2) [2012] NSWCA 44; see also Jones v Trad [2013] NSWCA 389 at [49] - [55]; Margan v Manias [2015] NSWCA 388 at [11] - [15] per Gleeson JA. In their decision the members of the Court gave guidance as to the interpretation of s 49ZT in the course of considering the principle question in the proceedings, namely whether the section was rendered invalid, wholly or in part, by the implied constitutional freedom of political communication. In light of a tension in the authorities as to the proper construction of s 49ZT(2)(c) which provides for the exception to which we shall refer it is appropriate to set out the findings of the Court in detail. At [25] - [41], Bathurst CJ said: "66. The Construction of s 49ZT of the Act 25 The first step in considering the question of whether s 49ZT infringes the implied constitutional freedom is the construction of the provision itself: Coleman v Power supra at [3], [147]-[158]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [11]. 26 I have set out the section above. The first question raised is what is meant by the word "incite". The meaning of the word has been considered both in the context of anti-discrimination legislation and in the context of criminal offences involving incitement. In Young v Cassells (1914) 33 NZLR 852, a case concerning the charge of inciting persons to resist constables, Stout CJ described the word as meaning "to rouse, to stimulate, to urge, to spur on, to stir up, to animate" (at 854). In R v Massie [1998] VSCA 82; [1999] 1 VR 542, Brooking JA, with whom Winneke P and Batt JA agreed, said at 555 that the word covered words which command, request, propose, advise or encourage. In R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390, Smart AJ (at [59]) cited what was said by both Stout CJ and Brooking JA with approval. 27 The word has received a similar construction in the context of anti-discrimination legislation: Catch the Fire Ministries supra at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102]. 28 Although it is clear from this review of the authorities that the word "incite" can cover a wide variety of conduct, it must be borne in mind that it is not sufficient to attract the operation of s 49ZT that the words simply express hatred, serious contempt for, or severe ridicule of a person on the grounds of homosexuality; the relevant public act must be one which could encourage or spur others to harbour such emotions: Burns v Dye supra at [20]; Burns v Laws (No 2) supra at [113]. 29 It is also well established, both in the area of criminal law and in the context of anti-discrimination legislation, that it is not necessary for a person in fact to be incited by the words or publication: R v Eade supra at [60]; R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62; Veloskey v Karagiannakis supra at [25]; Catch the Fire Ministries Inc supra at [14]. 30 The next issue is whether an intention to incite is required for a contravention of s 49ZT. The Tribunal has consistently held that intention is not an element of a contravention of this or related sections: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. 31 Neither party at the hearing suggested that that approach was incorrect. I am prepared to proceed on this basis without finally deciding the issue. It is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments: 'However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, 'to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status'. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations.' (at 359) Deane J agreeing at 382; but see McHugh J at 401. 32 The next issue of construction raised by the section is whether the public act required for a contravention of s 49ZT is one which would incite hatred, serious contempt for or severe ridicule in an "ordinary reasonable reader" or in a reasonable member, or an ordinary member, of the class to which the public act was directed. The first of the three alternatives is the one which has been consistently adopted by the Tribunal, following the test set out by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that "the ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs": John Fairfax Publications Pty Ltd v Kazak supra at [13]-[14]; Veloskey v Karagiannakis supra at [26]; Burns v Cunningham supra at [69]. 33 A different approach to the question was taken by the Court of Appeal of Victoria in Catch the Fire Ministries Inc supra. In that case Nettle JA took the view that for conduct to incite hatred it must reach a relevant audience. In those circumstances he said the question is to be answered having regard to the effect of the conduct on a reasonable member of the class of persons to whom it is directed (at [16]-[18]). Ashley JA and Neave JA on the other hand suggested the question should be decided by reference to an ordinary member of the class rather than a reasonable member (at [132], [157]-[158]). 34 I prefer the view of Ashley and Neave JJA. This is because the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals. That, of my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation. 35 The final question of construction is what is involved in the context of reasonableness and good faith in s 49ZT(2)(c). In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105, French J as his Honour then was, in considering an equivalent provision (s 18D of the Racial Discrimination Act (Cth)) expressed the view that an act would be done reasonably in one of the protected activities in the section if it bore a rational relationship to that activity and was not disproportionate to carrying it out (at [79]). So far as good faith was concerned, French J took the view that it required more than subjective honestly and legitimate purpose but rather, under the aegis of loyalty to the relevant principles of the Act, a conscientious approach to the task of honouring the values asserted by the Act which are to be assessed objectively (at [96]). 36 Carr J who together with French J comprised the majority in Bropho, did not deal with the question. However Lee J, who dissented in the result, appeared to agree with French J on the issue of good faith, stating that it involved an objective determination having regard to the degree of harm likely to be caused and to the extent to which it may be destructive of the object of the Act (at [141]). 37 On the other hand, in Catch the Fire Ministries Inc supra, Nettle JA took a contrary view as to the meaning of good faith in the relevant equivalent section, stating (at [92]) that he saw no reason to "load objective criteria into the concept of good faith or otherwise to treat it as involving more than a 'broad subjective assessment' of the defendant's intentions". Neave JA agreed with Nettle JA (at [197]). Ashley JA did not deal with the issue. 38 In Burns v Laws (No 2) supra, the Tribunal expressed a preference for the views of Nettle JA to those of French J (at [191]). 39 Once again the parties did not address this issue. Indeed, although both cases were cited on different issues, the Court's attention was not drawn to the difference of opinion of two appellate courts as to the meaning of the provision. However, Mr Sunol in his written submissions (at [28]) seemed to suggest that the construction placed on s 49ZT(2)(c) in Burns v Laws (No 2) was correct. As I indicated, the Tribunal in that case preferred the view of Nettle JA to those of French J. This approach was not disputed by the Attorney General. 40 In these circumstances I propose to proceed on the basis that the later decision of the Court of Appeal of Victoria on this issue is correct. There was a clear majority on the issue in that case and it has not been shown to be plainly wrong. Conclusion on Construction 41 In these circumstances, s 49ZT should be construed as follows: (a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement. (b) It is not necessary for a contravention that a person actually be incited. (c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. (d) It is not necessary to establish an intention to incite. (e) For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out. (f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose."
Allsop P said at [57] - [62]: "57 The secondary material being the second reading speech of Clover Moore MP for the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (Legislative Assembly, 11 March 1993) and the report of the New South Wales Anti-Discrimination Board entitled 'Discrimination and Homosexuality' published in 1982 identified the subject matter and mischief to which Pt 4C was directed. This subject matter included the way homosexuals were from time to time vilified in public, which was seen as capable of creating the conditions for violence against homosexual men and women. Violence was more directly addressed by s 49ZTA, but the incitement of hatred, serious contempt or severe ridicule can be seen to create the conditions for violent behaviour. 58 The secondary material also demonstrates a keen awareness of the effect of a provision such as s 49ZT on freedom of speech and of the need to balance such freedom with the desired aim of the legislation - to make unlawful public acts which incite the emotions and conditions to which I have referred. That attempted balance can be seen from the text employed by Parliament in subsections (1) and (2). 59 Thus, one comes to the task of construing s 49ZT recognising the high value that the common law (and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that restrict it. This approach is reinforced by the recognition of the limitation on Commonwealth, State and Territory legislative power by the implied Constitutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[45] and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton v The Queen [2012] HCA 2 at [32]. 60 The text of s 49ZT reflects an attempt by Parliament to weigh the policies of preventing vilification and permitting appropriate avenues of free speech. Subsections (1) and (2) should be read together as a coherent provision that makes certain public acts unlawful. Subsection (2) is not a defence; it is a provision which assists in the defining of what is unlawful. It attempts to ensure that certain conduct is not rendered unlawful by the operation of subsection (1). 61 Subject to the following comments, I agree with the Chief Justice as to the construction of subsection (1). The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider. 62 Further, satisfaction of s 49ZT(1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience."
Basten JA said at [79]: "79 Applying this approach, I agree with the construction of s 49ZT of the Anti-Discrimination Act 1977 (NSW) outlined by Bathurst CJ. The critical aspect of s 49ZT for present purposes is the requirement that to be unlawful the conduct must incite "hatred towards, serious contempt for, or severe ridicule of" persons within the protected class. Mere insults, invective or abuse will not engage the prohibition."
As the Tribunal indicated in Burns v Sunol [2015] at [49] and Burns v Sunol [2012] at [15] a different approach to the term "incite" had been taken by the Tribunal in Burns v Laws (No 2) [2007] NSWADT 47 to which the Chief Justice in Sunol v Collier (No 2) [2012] referred at [110] - [112]. The Tribunal in Burns v Laws (No 2) [2007] had said: "110 The second qualification relates to the Tribunal's use of the terms 'capacity' and 'capable'. We agree with Mr Reynolds … that these terms have the potential to understate what must be proved. In defamation law, they bear upon what is in essence a threshold question only. An allegedly defamatory imputation is judicially determined to be 'capable of defaming' the person to whom it refers if there are sufficient grounds to warrant referring to a jury the quite distinct question of whether it actually did defame this person. 111 In our opinion, the issue to be resolved under s 49ZT(1) is better framed as follows: would the relevant 'public act' have had the 'effect' of inciting, in the sense of urging or prompting, a hypothetical 'ordinary reasonable person' to experience one or more of the relevant reactions towards one or more homosexual people (as identified by the complainant), on the ground of their homosexuality? If terms such as 'capacity' or 'tendency' (this word appears in Neave JA's judgment in Catch the Fire Ministries at [161]) are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or possible effect. 112 This point is important if, as previous authorities have made clear, the term 'incite' is to be interpreted as meaning merely 'urge', not 'successfully urge' or 'induce'. A test that required no more than proof that the relevant public act had the potential or possible effect of urging an ordinary reasonable person to experience one or more of the relevant reactions would in our view be unduly broad."
The Tribunal had observed in Burns v Sunol [2012] at [16] that the: "… reference here to the reactions of an 'ordinary reasonable person' must now be considered incorrect in light of the different pronouncements on this question by Bathurst CJ (with the concurrence of Basten JA) and Allsop P in Sunol v Collier (No 2). But the Tribunal's observations as to the potential ambiguity of the terms 'capable' and 'capacity' in this particular context should be borne in mind." We respectfully agree, noting the Tribunal's observation in Burns v Sunol [2014] NSWCATAD 2 at [24] that although the Tribunal in Burns v Sunol [2012] highlighted the potential ambiguity of the terms "capable" and "capacity" it applied the test in the alternative at [42] where it concluded that each of the publications has the "capacity to incite" or the "effect of inciting" the relevant emotions.
It is clear from the Court of Appeal's decision in Sunol v Collier (No 2) at [62] and [63] that a finding of fact must be made to identify the relevant audience. The purposes of making such a finding is as the Tribunal stated in Trad v Jones (No 7) [2014] NSWCATAD 225 at [34]: "… to assess whether the public act would "reach the mind" of the audience as something which encourages or incites the relevant reaction. The audience must be identified keeping that purpose in mind."
The Tribunal in Burns v Sunol [2012] at [43] considered in the circumstances of the case that the class of persons was internet users at large. Similarly, the publication by Mr McKee was general.
Mr McKee submitted that the targeted audience of the post was "internet users who want to feel they are doing something about the sexual exploitation of children on Facebook"
The webpage on the Causes.com site was in evidence. The heading across the top of the page states: "Video posted as a reason to Facebook Must Be Block Illicit Images and Videos of Children." On the right hand side of the header are contained the words: "131, 612 people have helped this campaign." Immediately under the header is the comment complained of. Immediately below that is a YouTube banner containing a graphic including the words: "beyond the spin … TRUTHNEWS Australia" There are some graphics and other text within the graphic. The document in the President's Bundle was indistinct as to all of the material contained in the graphic.
There was also contained in the President's Bundle a screenshot of a Google search of "TNRA ABC Ginger Goreman's Puff Piece using Causes" which also provides a link to the comment complained of on the Causes.com site.
However, there is no evidence before us of the actual nature of the class of persons who visit the Causes.com site or whether they would be more responsive than "ordinary" internet users to the content of the publication of which complaint is made. There will no doubt be persons accessing the site holding different political, religious and social views across a broad spectrum, some of them extreme. These persons would include, as Mr McKee suggests, those concerned about the sexual exploitation of children. They might also include persons engaged in the sexual exploitation of children. In the absence of evidence as to the nature of the "ordinary" visitor to the Causes.com site, we find that the question of incitement is to be measured by reference to the "ordinary member" of that class being internet users at large with no greater propensity to be incited than a member of the general public; see Sunol v Collier (No 2) [2012] per Bathurst CJ at [33] - [34] and Basten JA at [79].
On the question of the interpretation of the remaining words contained in s 49ZT(1) the Tribunal in Burns v Dye [2002] at [23] said: "23 The third element the complainant must establish is that the public act must be capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons. These words are to be given their ordinary dictionary meaning. Kazak v John Fairfax Publications Limited [1995] EOC 92-701 [at 40] set out the following definitions: 'hatred' means 'intense dislike; detestation' (Macquarie), 'a feeling of hostility or strong aversion towards a person or thing; active and violent dislike' (Oxford); 'serious' means 'important, grave' (Oxford); 'weighty, important' (Macquarie); 'contempt' means 'the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account'(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie); 'severe' means 'rigorous, strict or harsh' (Oxford); 'harsh, extreme' (Macquarie); 'ridicule' means 'subject to ridicule or mockery; make fun of, deride, laugh at' (Oxford); 'words or actions intended to excite contemptuous laughter at a person or thing; derision' (Macquarie)…..."
As the Tribunal noted in Cunningham at [73] there is a degree of similarity or even overlap between "contempt" and "ridicule". It went on to say: "… a common element appears to be that the objects of the contempt or ridicule are worthless or can be despised, laughed at or derided because they are not worthy of being treated with dignity or respect. This element is particularly relevant in the context of an Anti-Discrimination statute one of whose underlying principles is the right of every person to be treated with the respect and dignity that is inherent in being a human being."
On the meaning of "serious" and "severe" the Tribunal in Burns v Sunol [2012] at [18] made reference to the decision of the Appeal Panel in Veloskey v Karagiannis (EOD) [2002] NSWADTAP 18 in a matter determined under s 20C of the AD Act which defines unlawful racial vilification. Like s 49ZT(1) it employs the phrase "incite hatred towards, serious contempt for or severe ridicule of a person or group of persons". The Appeal Panel said at [29]: "29 The words 'hatred', 'contempt' and 'ridicule' are to be given their ordinary English meaning, but the latter two are qualified by the adjectives 'serious' and 'severe' respectively. Thus, in the context of s 20C, the public act must be capable of inciting intense dislike or hostility towards a person or group of persons, or grave scorn for a person or group of persons, or extreme derision of a person or group of persons: Kazak v John Fairfax Publications Ltd; Burns v Dye. The use of the adjectives 'serious' and 'severe' call for an evaluative judgment on the part of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556."
When considering the same issue in Cunningham the Tribunal put it at [75] in the following way: "It should also be noted that these latter two words "contempt" and "ridicule" are qualified in s 49ZT (and in the other vilification provisions of the ADA) by the adjectives "serious" and "severe" respectively. These are both intensifiers. In the case of "serious", it emphasises that the contempt must be grave, weighty or important. Likewise ridicule will only be "severe" when it is harsh or harshly extreme."
As the Tribunal noted in Cunningham at [76] the words "serious" and "severe": "… also play a functional role in marking out cases of incitement of contempt or ridicule which should attract the intervention of the Tribunal under the ADA from less important cases which do not warrant intervention."
The meaning of "on the ground of" in s 49ZT was considered by the Tribunal in Burns v Sunol [2012] at [19] which said: "19 With reference to the question whether alleged incitement is 'on the ground of the homosexuality of the person or members of the group', as required by the concluding words of section 49ZT(1), the Tribunal in Collier v Sunol [2005] NSWADT 261, in a passage subsequently approved in Collier v Sunol [2008] NSWADT 339 at [36], said at [63 - 64]:- 63 The principles governing this issue are summed up as follows in Burns v Dye [2002] NSWADT 32 at [24]:- 24 We note that s 4A of the Act does not apply to vilification complaints. Section 4A provides that in relation to complaints of unlawful discrimination, where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, (whether or not it is the dominant or substantial reason), then that act is taken to be done for that reason. Consequently in the context of s 49ZT it is helpful to look at relevant cases, which dealt with the meaning 'on the grounds of' before the 1994 amendment to the Act, inserting s 4A, took effect. Mathews DCJ in O'Callaghan v Loder [1984] EOC 92-023 at 75,499 took the view that the phrase 'on the ground of' meant a 'significant factor,' 'a substantially contributing factor' and 'a causally operative effect'. Her Honour used these clauses interchangeably. In Waterhouse v Bell (1991) 25 NSWLR 99 at p 106. Clarke JA used the phrase 'an operative ground'. 64 In Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, the Appeal Panel used the phrase 'a substantially contributing factor'. We take this to be the preferable view."
We have considered the evidence and the submissions of the parties by reference to the interpretation of s 49ZT in line with these authorities.

Evidence, submissions and findings on incitement

In his Points of Claim, Mr Burns says that on reading the material he was "shocked, upset and humiliated because paedophilia is a criminal offence" and that he had thereby suffered loss and damage. He says that he was offended, injured and hurt by the publishing of a statement that because he is homosexual he is more likely to molest male children. The Tribunal accepts that Mr Burns genuinely felt the way he described. However, that does not determine whether the respondent has breached s 49ZT(1); see Cunningham at [82].
On the element of incitement Mr Burns says that the deliberate use of asterisks (by this we understand him to mean quotation marks) in the publication to highlight the words "gay marriage", "gay dads" and "boy lover" links male homosexuality to paedophilia with the suggestion that homosexual males are to be considered in the same category as paedophiles. No particular perpetrator is identified by name. Mr Burns submitted that the statement categorised all homosexuals as criminal because paedophilia is a crime.
Mr McKee firstly submitted that any incitement was that of the interviewer referred to at the commencement of the transcript of the audio clip, Ginger Goreman. We cannot accept this submission. Mr McKee was the publisher of the comment the subject of the complaint which we have found does not include the audio clip. Even if the audio clip was part of the complaint the relevant question is not who authored the material but who published it. It is not relevant that the offending material was written by others if published by Mr McKee; see Burns v Sunol [2015] at [61].
Mr McKee also submitted that the words in the quotation marks were in the vernacular and so should be read in that way. He submitted, in effect, that the words used were not capable of inciting the ordinary reader to harbour the requisite hatred or serious contempt or severe ridicule for homosexuals on the ground of their homosexuality.
Cambridge Dictionary Online (at Dictionary.cambridge.org) defines "punctuation" relevantly as follows: "We also use single quotation marks to draw attention to a word. We can use quotation marks in this way when we want to question the exact meaning of the word: I am very disappointed by his 'apology'. I don't think he meant it at all."
Oxford English Dictionary (Online Ed) defines "quotation marks" as follows: "Each of a set of punctuation marks, single (' ') or double (" "), used either to mark the beginning and end of a title or quoted passage, or to indicate that a word or phrase is regarded as slang or jargon or is being discussed rather than used within the sentence."
Macquarie Dictionary (Online Ed) defines "quotation marks" as follows: "3. Quotation marks are also used from time to time to draw attention to a word which the writer feels is out of the ordinary. It may be technical, or one which has ironic implications. …"
On the basis of these definitions we find that the words in quotation marks (being "gay marriage", "gay fathers" and "boy lovers") should be read in the context of the sentences in which they appear and the publication as a whole as a reference in each instance to something which is not as literally described or something described in an ironic way.
An alternative construction would be that the subject words are quoted from another source. Mr McKee did not submit that this was the case. Nor do the words "gay dads" or "boy lovers" appear in the transcript of the audio clip in evidence.
Turning to the publication as a whole, Mr Burns made reference to the Tribunal's decision in Burns v Corbett [2013] in which the Tribunal said at [37]: "37 … For highly distressing reasons, the Australian public at the present day is being made particularly aware of the serious and long-lasting psychological damage suffered by victims of paedophilia. At any time, and especially at this time, any pronouncement that 'brackets' (for want of a better term) homosexual people with paedophiles is 'capable of', or has the effect of, 'urging' or 'spurring on' an 'ordinary member of the class to whom it is directed' to treat homosexuals as deserving to be hated or to be regarded with 'serious contempt'. …"
Mr Burns submitted that the "bracketing" of the words he identified was done deliberately by Mr McKee to link homosexuality, particularly male homosexuality, with paedophilia. He submitted that the publication suggests that homosexual males are to be considered in the same category as paedophiles.
As we have indicated, intention is not a relevant element of a breach of s 49ZT(1). The statement complained of contains a number of sentences. For the purposes of considering whether s 49ZT(1) has been offended it is necessary to consider each sentence in turn.
The first is: "The cultural shift towards "gay marriage" has a very dark and dangerous underbelly." On the basis of the definitions to which we have referred we find that the use of quotation marks around "gay marriage" denotes something which styles itself as a same sex marriage but is not. The use is ironic. There is no explanation in the sentence read by itself as to what the "very dark and dangerous underbelly" might be. We find that the words used by themselves are not capable of rousing or stimulating, urging or spurring on hatred, contempt for or ridicule of homosexuals in any ordinary member of the class which we have identified. To adopt the reasoning in Cunningham at [93] the ordinary reader could not be caused by the words used to understand that he or she was being incited to feel hatred, or contempt for or to ridicule homosexuals.
The second sentence is: "This is because homosexuals are three times more likely to commit sex crimes against children than heterosexuals."
Mr McKee submitted that as an aid to interpretation the audio clip was available for the purpose of giving context to his comment, his evidence being that the clip was uploaded immediately before, and no later than, the same time as the comment complained of.
The question of contextual publication in claims for vilification has not been considered to any great extent in the authorities. In Burns v Sunol [2012] the Tribunal said at [32]: "… when determining whether any one of the 15 publications amounted to unlawful homosexual vilification under section 49ZT of the Act we must consider the publication in isolation. The 'message' that it conveyed must be determined without reference to any of the 'messages' conveyed by any of the other 14 publications. On the other hand, any material published within the 'vicinity' (putting it loosely) of one of the 15 publications may form part of the context of that publication and for that reason be relevant to its interpretation."
Although the audio clip appears on the same webpage as the comment and immediately underneath it, the evidence does not support a finding that the contents of the clip would have been brought to the attention of each reader of the comment. The evidence establishes that the clip did not commence to play automatically upon accessing the webpage and that the comment could be read without listening to the audio clip. Nor was there any express or implied invitation on the webpage so as to make it likely that those accessing the site would also listen to the audio clip.
In those circumstances there is a question whether the audio clip was "material published within the vicinity" as the Tribunal put it in Burns v Sunol [2012] which might form part of the context of the publication complained of and be relevant to its interpretation. However, we do not need to determine that question. There was no reference in the transcript of the audio clip to the comparative propensity of homosexuals to commit sex crimes against children or other material to which reference might be made for the purposes of interpreting the second sentence. Even if the audio clip was found to be material published in the vicinity of the material complained of in the second sentence its content was of no relevance to the interpretation of the second sentence.
On their face, the words of the second sentence constitute a statement of a comparison between homosexuals and heterosexuals with regard to their respective propensity for the commission of crimes against children. We do not have to consider whether the statement is true. As the Tribunal said in Cunningham at [47] proceedings dealing with vilification complaints are not a forum for determination of the truth or falsity of the statements put in issue.
The sentence does not say that all homosexuals are paedophiles or are likely to commit such crimes (or indeed that no heterosexuals are paedophiles or unlikely to commit such crimes). However, the sentence in its terms links homosexuals with crimes against children. It is directed to the tendency of homosexuals to commit crimes against them. In recent years child sexual abuse has become the subject of significant social and media attention. Identifying male homosexuality with a tendency towards paedophilia is a very damaging slur to members of the homosexual community.
We find that in their plain ordinary English meaning the words of the sentence are capable of inciting hatred towards, serious contempt for or severe ridicule of homosexuals in the ordinary member of the class of internet users at large. The subject of the sentence is homosexuals rather than paedophiles. The sentence carries the serious imputation that homosexuals by reason of the characteristic of homosexuality have a tendency to abuse children and thereby commit criminal acts and that this tendency is greater than that found in heterosexuals.
We find that the words used express hatred, serious contempt or severe ridicule towards homosexual men. We are satisfied that the publication, which we have found to be a public act, would reach the minds of members of the class of internet users at large as something which is capable of inciting or encouraging those emotions. We find that the characteristic of homosexuality is a substantially contributing factor to the feelings capable of being aroused. As we have said, the subject of the sentence is homosexuals. We find that the publication of this sentence satisfies the criteria for presumptive liability under s 49ZT(1) of the AD Act.
The third sentence is: "Two pedophiles form a union in a "gay marriage" and become "gay dads" by adopting a baby for the purpose of later sharing with their kind on a "boy lover" network." This is not on its face, as Mr Burns suggests, a statement directed to homosexuals. In their plain ordinary English meaning the words refer to persons who are paedophiles purporting to enter into a same sex marriage for the purpose of committing a sex crime against children. The subject of the sentence is "two paedophiles". We find that the words in quotation marks, namely "gay marriage" and "gay dads" read objectively within the sentence are used ironically. They are references to same sex marriage which is not in fact a marriage but a sham and same sex parenthood which is not in fact same sex parenthood but a sham. We find that the reference to "boy lover" is also ironic being bracketed with the subject of the sentence, namely paedophiles who commit child abuse, rather than homosexuals. The words used are not in our view capable of inciting the relevant emotions in an ordinary member of the class which we have identified. If we are wrong on the issue of incitement in respect of this sentence we find that there is no causal connection between such incitement and homosexuality, the relevant substantially contributing factor being the subject of the sentence, that is, paedophiles.
The fourth sentence is: "Gay marriage is therefore promoted by pedophiles as a mask for their perverted nature". This sentence is also directed to the conduct of paedophiles rather than homosexuals. We find that it is not capable of inciting the relevant emotions in an ordinary member of the identified class. We find that if any incitement was established homosexuality was not the substantially contributing factor to it.
The last sentence reads: "The joys of gay fatherhood, indeed." In our view the words in this sentence are not, on their own, capable of inciting the relevant emotions in an ordinary member of the identified class. They do not reach the level of insult, invective or abuse let alone the hatred, serious contempt or severe ridicule required of s 49ZT. If we are wrong about this and, taking the words in the context of the entire comment, they could be said to be capable of incitement, we find that there is no causal connection between such incitement and homosexuality. The subject of the comment is, by reference to the two sentences before it, including the words "gay dads", paedophiles. There is no causal connection between any such incitement and homosexual men.
During the hearing Mr Burns sought to introduce evidence of what he says was the actual incitement of Mr Sunol and evidence of Mr Sunol's republication of the material on 21 March 2014. This was objected to by Mr Balzola. When questioned by the Tribunal whether evidence of actual incitement was a relevant matter, Mr Burns said he would not press it.
Later during the hearing Mr Burns submitted that the material "incited" Mr Sunol to republish the statement on his blog and encouraged him to add further statements harmful to homosexual males. Mr Burns said that Mr Sunol should be viewed as an ordinary member of the class to whom Mr McKee was addressing his statement. When again asked by the Tribunal whether he needed to establish whether actual incitement occurred Mr Burns said: "I know. But I use that as an example of what occurred because of that statement. I'm not suggesting that I have to prove on the balance of probability that this case is - that it has the capacity or effect of incitement. I just include that in my submissions ….to say that that's what happened. "
Mr Burns did not refer us to any authority in support of the proposition that actual incitement, if available, is a relevant matter for consideration. The Court of Appeal in Sunol v Collier No 2 [2012] at [41] found that proof of actual incitement is not necessary. On that issue the Tribunal in Burns v Dye [2002] at [21] made reference to the decision in Western Aboriginal Legal Services Ltd v Jones & Anor (2000) NSWADT 102 at [93] in which the Tribunal said: "It is the capacity of the public act performed by a person which is significant, rather than the intent of the person who performed that act. Further, it is the likely effect rather than the actual effect of the public act which is significant." [Emphasis added] This decision was overturned on appeal for reasons unconnected with the statement of principle to which we have referred.
Mr Burns did not press the submission and we did not proceed to consider it.
Accordingly, for the reasons given, we find that the criteria for presumptive liability under s 49ZT(1) are satisfied in respect of the words used in the second sentence of the publication. We find that those criteria are not satisfied in respect of the balance of the publication.

The exception

Mr McKee says that the publication was made for academic or scientific purposes or for other purposes in the public interest. In respect of any finding of a breach of s 49ZT(1), he relies on the exception under s 49ZT(2)(c) and, in particular, the analysis of the way in which that provision operates as discussed in Cunningham at [113] - [164].
Mr Burns submitted that Mr McKee's comment "came before the audio clip" and accordingly that he could not satisfy the exception in s 49ZT(2)(c). The submission appears to relate to the fact that material on the audio clip could not be accessed until the link to the webpage upon which the publication is found, which also contained the audio clip, was activated. It follows, we infer, that the publication would be read before or even without accessing the audio clip. Mr Burns conceded that if the audio clip was viewed prior to reading the publication the exception might be available to Mr McKee under s 49ZT(2)(c).
With respect to Mr Burns we cannot accept this submission. It is not necessary to make out the exception that the material to which Mr McKee had regard when publishing the comment was also available to the public.
In order to fall within the description of conduct which is not otherwise unlawful under s 49ZT(1) the public act complained of will have to be shown to have been done reasonably, in good faith and either for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest including discussion or debate about or exposition of any act or matter. As we have said, s 104 places the onus of establishing the exception on the respondent. The operation of the exception was considered by the Tribunal in Cunningham at [116] - [117] as follows: "116 This exception to liability for vilification on the grounds of homosexuality found in s 49ZT(2) is also found as an exception to vilification on the grounds of race, transgender status and HIV/AIDS status in the ADA. Moreover, similar exceptions appear in the Federal anti-discrimination statues and in other State and Territory statutory provisions dealing with vilification. The general principles relevant to the application of this type of exception can be summarised as follows: Anti-vilification provisions, such as s 49ZT(1) of the ADA, create an exception to the common law right of freedom of speech and expression. The exemptions in provisions such as s 49ZT(2) should be seen as defining the limits of the proscriptions in ss 49ZT(1) and not as a free speech exception to them. Accordingly, provisions such as s 49ZT(2) should be construed broadly, not in a narrow way, thereby minimising any undue abridgement of free speech effected by the primary liability provision - Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [72] and [73], Burns v Laws [2008] NSWADTAP 32 at [28(ii)]. Proceedings dealing with a vilification complaint are not a forum for the determination of the truth or falsity of the statements put in issue - Burns v Laws [2008] NSWADTAP 32 at [28(iii)], Toben v Jones [2003] FCAFC 137 at [74]. 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 - Burns v Laws [2008] NSWADTAP 32 at [28(i)]. 117 Although the text of s 49ZT(2) might suggest that the words " done reasonably and in good faith " is a composite expression, the authorities establish that the two elements of reasonableness and good faith should generally be examined separately - see Burns v Laws [2008] NSWADTAP 32 at [29(iv)] but note also [73] to [76]. That is not to say, however, that some facts and considerations relevant to reasonableness are not also likely to be relevant to establishing good faith and vice versa - see Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [103]."
It is appropriate to address each of the elements of 49ZT(2) separately; see Cunningham at [118], Trad v Jones (No 7) [2014] at [80].
On the question of the order in which the elements are considered, the Tribunal in Cunningham at [119] determined that although the issue of purpose is last mentioned in s 49ZT(2)(c) it was more helpful to deal with it first as the purpose of the public act informs the assessment of both reasonableness and the good faith of the act.
When considering the element of purpose the Tribunal in Cunningham upon a review of the authorities concluded at [126] that the Tribunal "is required to determine the respondent's actual, subjective purpose" in making the comment complained of. The Tribunal found in Corbett v Burns [2014] at [37] that the best evidence of a person's state of mind is their testimony although "in rare cases there may be other, secondary evidence which satisfies the Tribunal that the person had the requisite belief".
It is appropriate to have regard to evidence of Mr McKee's actual subjective purpose in publishing the entire comment in which the second sentence is contained as well as, to the extent to which such evidence is available, his purpose for including the second sentence in its terms.
In support of his reliance upon the exception, Mr McKee said that he made the comment in reaction to a news story of public interest. He said that Truth News Radio Australia is a world commentary show broadcast live over some FM stations in Texas in the United States. He said that the shows are available to listeners in Australia. Mr McKee's evidence was that whilst he was in Hanoi he listened to the audio clip. He received a Facebook solicitation inviting his signature on a child protection issue. He said that he thought to himself that people would be interested in the audio clip so he uploaded it to the Causes.com site and made the one paragraph comment the subject of the complaint.
Mr McKee said that the comment the subject of the complaint summarised the opening section of the content of the audio clip. He said that the audio clip drew attention to a possible unforeseen risk factor associated with sham male same sex marriages to which his comment was directed. He said that the underlying story was earlier broadcast by ABC Radio and later the ABC television 4 Corners program. He said relevantly in his evidence: "The story was about a couple of Australian gay dads who were later found to be paedophiles. What was significant about the story was the difference between the theme of the initial ABC Radio coverage that was designed to advertise the beauty and normalcy of the relationship and the later 4 Corners program that was a shocking horror show made after the two gay dads were jailed for 40 years for molesting and allowing others to molest their adopted child. The story shocked the world and, I believe, led to a move in Russia to ban the adoption of Russian babies by any person or couple from any country whose government recognise same sex marriage."
Mr McKee gave evidence that his state of mind upon listening to the audio clip was one of concern and sadness when reflecting on the fate of infants taken from their natural mothers by commercial surrogacy arrangements and handed over to be raised by two men. He said he was concerned that infants were being removed from their natural mothers because commercial surrogacy was unregulated in some jurisdictions and that they were being paid for by paedophiles. He said that commercial surrogacy was a crime in some states in Australia and that the New South Wales Attorney General had said the practice was "unethical" and "not in the best interests of the mother or the child".
Mr McKee further said in his evidence: "My reaction to this news story would be no different to most ordinary reasonable person's reaction, with the exception that I based my hypothesis on a quoted medical research paper. It did not vilify homosexual persons as it did not mention any homosexual person. It raised an academic question in relation to the proportion of male paedophiles among the group of male persons who develop a male/male sexual orientation compared to the proportion of male paedophiles among the group of male persons who develop a male/female sexual orientation."
Mr McKee said that the audio clip and his comment represented a serious and legitimate concern about an increased risk posed to children brought about through commercial surrogacy. He said that he was discussing the nature and risk of paedophilia in connection with the purchase of surrogate babies by male homosexual couples. He said he was motivated not by hate but by an appreciation of the vulnerability and needs of children. Mr McKee said he also considered public discussion of same sex marriage to be important in Australia due to possible changes in the law. He said that the concerns he raised could influence the state of mind of voters in a future referendum on same sex marriage in Australia. Mr McKee said that it was understandable that public discussion of scientific data relating to the relative incidence of paedophilia within the male homosexual community and compared to the male heterosexual community would be strongly resisted by political lobby groups set up to push for same sex marriage. He said that his one paragraph commentary dealt with what he described as "controversial and challenging" child protection concerns in relation to legalised gay marriage between two males of unknown or unverified sexual orientation.
In support of what he said was the academic or scientific basis for the statement made in the second sentence of the publication Mr McKee referred to the article: "Freund K and Watson R J 'The proportions of heterosexual and homosexual paedophiles among sex offenders against children: an exploratory study', Journal Sex Marital Ther. 1992, Spring; 18(1): 34 - 43."
He said that a hyperlink to this reference was provided in the internet discussion which followed the 30 December 2013 publication. Mr McKee made reference to the abstract of the article on which he says his statement was based. The abstract and the article were in evidence. The abstract read as follows: "Previous investigations have indicated that the ratio of sex offenders against female children vs. offenders against male children is approximately 2:1, while the ratio of gynephiles to androphiles among the general population is approximately 20 to 1. The present study investigated whether the aetiology of preferred partner sex among paedophiles is related to the aetiology of preferred partner sex among males preferring adult partners. Using phallometric tests sensitivities to calculate the proportion of true paedophiles among various groups of sex offenders against children, and taking into account consideration previously reported mean numbers of victims per offender group, the ratio of heterosexual to homosexual paedophiles was calculated to be approximately 11 to 1. This suggests that the resulting proportion of true paedophiles among persons with the homosexual erotic development is greater than in persons who develop heterosexually. This, of course, would not indicate that androphilic males have a greater propensity to offend against children."
In his evidence Mr McKee set out his conclusions based upon his reading of the article saying: "If one is reasonably capable of doing arithmetic, one can roughly apply the above data to, say, a representative sample of 100,000 adults in the Australian population. The ratio of 20:1 referred above implies that there will be 95,200 opposite-sex attracted adults and 4,800 same-sex attracted adults in that sample size. If we now assume, for arguments sake, that approximately 1% of all children suffer from some form of sexual molestation at the hands of an adult, then we can assume that 1000 children have been sexually molested in some way by that sample size of 100,000 adults. The above ratio of 2:1 suggests that, of those 1000 unfortunate children, 667 will be girls and 333 will be boys. The report says that it is rare that an adult female sexually molests a child, so we will ignore such unlikely events and assume that only adult males molest children. Therefore the sample size of 100,000 adults would contain approximately 47,600 opposite-sex attracted males and 2,400 same-sex attracted males. These numbers indicate a ratio of 36 heterosexual adult males per female child sexually molested, but a ratio of 3.6 homosexual males per male child sexually molested. On this simplistic analysis of the data, a homosexual male is 10 times more likely to molest a child than a heterosexual male. The Respondent's comment that a homosexual male is three (3) times more likely to sexually molest a child than a heterosexual male therefore appears substantiated."
Mr McKee said that he concluded upon the basis of the material in the article and his calculation as he put it "society faces a significantly increased risk of sexually abused children if two men of unknown and unverified sexual orientation are legally permitted to marry in the same way as a man and woman are legally permitted to marry."
Mr McKee was cross examined on his expressed motivation for the publication and as to the relative incidence of paedophilia among homosexual persons when compared with heterosexuals. He said that it was "a combination of status quo views combined with concern for scientific data that suggest that homosexual men are ten times more likely to have paedophilic sexual orientation compared to the same sample size of heterosexual males". He said that this was his opinion based upon his scientific research. He said that he had consulted other people on the technical paper and they had come back with similar conclusions. He did not elaborate on who those people were or the specific nature of their conclusions. He said: "Even though it's unpalatable for the homosexual community, the fact is that you can make other generalisations about the homosexual community, for example, ACON says that the use of drugs is much, much higher in the homosexual community that in the heterosexual community, probably by a factor of ten. Justice Kirby says the prevalence of Aids is higher in the homosexual community. That is not inciting hatred. So I say the prevalence - based on my scientific research and my gut feel and based on the YouTube clip that the instance of paedophilic sexual orientation is higher amongst homosexuals than heterosexuals and the YouTube clip demonstrated that".
He went on to say: "… but I believe that scientific statement and that's why I have great concerns about two men of unknown sexual orientation being allowed to marry in Australia and adopt babies. I see an ocean of suffering in the future caused by this. I am entitled to have that pessimistic view of same sex marriage - mainly between men …".
Mr McKee was also cross examined on the difference between the publication in which he stated that homosexual men are three times more likely to commit sex crimes against children and his statement in the evidence in which he said they were ten times more likely to offend. He responded: "The three times was a less onerous comment. That was based on calculations done at the time based on percentaging the Australian census … number of homosexuals in the Australian population based on the 10% figure that 10% of all crimes against children were done by homosexual paedophiles, whereas when I researched the actual scientific paper and did calculations on a spreadsheet it came out at ten times …".
On further questioning Mr McKee said that it was his honest belief based on his research that homosexual men are ten times more likely to have paedophilic sexual orientation compared with the same sample size of heterosexual men and that he was being conservative in the estimate contained in the publication.
The members of the Tribunal were troubled by what appeared to be inconsistencies in Mr McKee's evidence about the basis for the content of the second sentence in the publication complained of. The last two sentences of the abstract to which he had regard when making the statement and undertaking his calculation read: "This suggests that the resulting proportion of true pedophiles among persons with a homosexual erotic development is greater than that in persons who develop heterosexually. This, of course, would not indicate that androphilic males have a great propensity to offend against children."
Androphilia is defined in the body of the article to be "an erotic preference for physically mature males".
The conclusion in the abstract on its face was, as Mr McKee submitted, that there was a higher proportion of persons of paedophilic sexual orientation within the male homosexual community compared to the heterosexual community. The last sentence in the abstract distinguished what it termed "androphilic" members of the homosexual community and noted that the findings do not suggest that androphiles have any greater propensity to offend against children.
The second sentence in the comment complained of, which we have found to be capable of incitement, has a different meaning. It suggests that all homosexuals have a greater propensity (by three times) to commit crimes against children than all heterosexuals and, by inference, that the characteristic of homosexuality is the reason for the propensity rather than paedophilia.
Mr McKee seems to accept the difference in meaning in his evidence to which we have referred where he said that he sought to raise what he termed an academic question in relation to: "the proportion of male paedophiles among the group of male persons who develop a male/male sexual orientation compared to the proportion of male paedophiles amongst the group of male persons who develop a male, female sexual orientation." He also made reference to the relative incidence of paedophilia within the male homosexual community elsewhere in his evidence.
Nor are Mr McKee's calculations easy to follow. His evidence was that the numbers indicate a "ratio of thirty six heterosexual adult males to female child sexually molested but a ratio of 3.6 homosexual males per male child sexually molested upon which analysis a homosexual male is ten times more likely to molest a child than a heterosexual male". It is not apparent how this ratio is arrived at or how it gives rise to the conclusion Mr McKee says he made. Even if the calculations were accurate they would go to the proportion of true paedophiles among persons with homosexual erotic development when compared with persons who develop heterosexually in line with the more general conclusion reached in the article. The calculations of themselves do not provide any basis for a conclusion that homosexual males are more likely to molest a child than heterosexual males.
We find that the second sentence of the comment which was published by Mr McKee is not supported in its terms by either the abstract of the article or the article to which he refers or his calculation. It is expressly contradicted by the last sentence of the abstract.
As we have indicated proceedings such as these are not a forum to determine the truth of the matters published. We have, however, taken into account the inconsistencies to which we have referred in considering the elements of the exception.
We had the opportunity to observe Mr McKee closely during the course of his evidence. He was extensively cross examined by Mr Burns. Mr McKee was from time to time argumentative however his answers were, with few exceptions, responsive and given without hesitation. We find that Mr McKee gave his evidence about his purpose truthfully and to the best of his recollection.
We accept the evidence of Mr McKee that at the time of the publication the audio clip was already published. He also had access to the journal article to which he referred. We accept Mr McKee's evidence and find that his actual subjective purpose in publishing the comment was, in part, to draw the public's attention to the audio clip and the content which it provided both about the incident (in which two subsequently convicted paedophiles were able to adopt a child whom they mistreated) and the issue of child adoption or surrogacy by paedophiles. The comment appears on the Causes.com website screenshot, which was in evidence. Immediately underneath the comment is the YouTube banner on which the audio clip is accessible. Although we have found on the evidence that the audio clip does not commence to play automatically upon accessing the site and there is no invitation in Mr McKee's comment to play the audio clip, it is in close proximity to the comment and able to be accessed by a viewer. The content of the audio clip formed, at least in part, a basis for his comment. It concerned actual events in which two paedophiles apparently in a same sex relationship procured a child for abuse. It also concerned commercial surrogacy arrangements.
In his submissions to the Tribunal, Mr McKee asserted that his subjective purpose in publishing the material was also to raise awareness about the increased risk of homosexual paedophiles utilising the cover of same sex marriage for the procurement of children. Mr McKee said that his concern was triggered by the reporting of actual events in the audio clip, and his calculation of risk by reference to statistics presented in the article. The Tribunal is satisfied that Mr McKee's actual subjective intention was also in part to raise the question of risk to children which he identified in his evidence. The second sentence of the publication was not ultimately expressed in terms consistent with the article and we shall return to this issue when considering the elements of reasonableness and good faith.
Having made a finding about Mr McKee's actual subjective purpose in publishing his comment, we turn to consider whether that purpose falls within s 49ZT(2)(c). As we have indicated Mr McKee, in the evidence to which we have referred, makes reference to what he calls his "scientific" research. He also pleaded that this comment was made for both academic and scientific purposes.
Mr Burns submitted that Mr McKee could not satisfy the exception under s 49ZT(2)(c) because the statement complained of did not identify any persons to quantify his argument. He said that the general statement to the effect that homosexuals as a group of people in the community are more likely to molest children based on their homosexual characteristic does not, as part of a process of scientific reasoning, satisfy the exception. We accept that submission. We are not satisfied on the evidence that Mr McKee's purpose in publishing the second sentence was for academic, scientific or research purposes. It was not "of a serious, intellectual kind" referred to in Jones and Harbour Radio Pty Ltd v Trad [2011] NSWADTAP 19 at [35], Cunningham at [120]. The comment did not discuss or make reference to the journal abstract or article nor the basis of Mr McKee's calculation said to give rise to it. It was published generally rather than directed to the academic or scientific community.
However, Mr McKee also submitted that his comment was for other purposes in the public interest including discussion and debate about, and exposition of, any fact or matter. The interpretation of the words "purpose in a public interest" within the meaning of s 49ZT(2)(c) was as the Tribunal indicated in Cunningham at [120] the subject of consideration by the Appeal Panel in Jones and Harbour Radio Pty Ltd v Trad at [35] where it said: "35 That defence [under s 20C(2)(c) which is relevantly the same as s 49ZT(2)(c)] is a broad and generous one in the interests of the virtues of free speech. Had the words 'including discussion or debate about and expositions of any act or matter' not been included, it may well have been right, by application of the ejusdem generis principle, to construe 'other purposes in the public interest' as limited to purposes of the same kinds as 'academic, artistic, scientific or research purposes', that is to say, purposes of serious, intellectual kinds. However the concluding words indicate that 'other purposes in the public interest' are to be taken to include the purposes of discussion or debate about any act or matter, as well as expositions (that is, setting forth or explaining) of some subject. Thus words said for the purpose of discussion or debate about virtually any subject are deemed to be said for a purpose that is in the public interest."
On the basis of Mr McKee's evidence, we find that his actual subjective purpose fell otherwise within the wide parameters of "another purpose in the public interest" within the meaning of s 49ZT(2)(c), namely the discussion or debate about the actual event where two paedophiles used a sham same sex marriage for procurement of a child and the risks of similar activity for the adoption of children and surrogacy by paedophiles within the homosexual community within the debate about same sex marriage. We find that it was a contribution to the public concern arising from the events and that it was made for the purpose of discussion or debate about issues relating to that concern in the public interest.
The next question is whether the act was done reasonably.
In relation to the element of reasonableness, Mr Burns submitted that Mr McKee does not make out the exception because he has not provided any body of legitimate medical, psychiatric or scientific opinion linked to the statement complained of which supports the view that homosexual males seek out male children through the campaigning of gay marriage for the predominant purpose of sexually abusing them or sharing them on a boy lover network with other homosexual men. He says that a vilifying opinion not based on reasonable grounds is not "done reasonably" within the meaning of the subsection.
The statement the subject of the claim for exception is not the comment as a whole, but the second sentence which has been found to offend s 49ZT(1). What constitutes reasonableness for the purposes of the exception was considered in some detail in Cunningham at [128] to [148]. The Tribunal concluded at [132] saying: "132 From these matters it follows that, when considering whether the public acts in question were done 'reasonably', the Tribunal must ask whether: the acts were rational, in accordance with reason or fitting in that they had a reasoned connection with the relevant type of activity identified in s 49ZT(2)(c); and the acts were within the limits prescribed by reason, in the sense of being appropriate for the circumstances and not excessive or immoderate. 133 In addition the judgment required should be based upon what the ordinary reasonable person would do or think rather than the subjective opinion or the person who engaged in the acts." See also Cunningham at [142].
In drawing its conclusion the Tribunal in Cunningham at [140] - [141] had regard to the findings of the Tribunal and the Appeal Panel as to the meaning of "reasonably" in s 49ZT(2)(c) set out in Burns v Laws (No 2) [2007] and Burns v Laws [2008] NSWADTAP 32 saying: "140 "Reasonably" in s 49ZT(2)(c) was also considered by the Tribunal and by the Appeal Panel in Burns v Laws (No 2) [2007] NSWADT 47 and Burns v Laws [2008] NSWADTAP 32, respectively. The Tribunal at first instance concluded its consideration 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. 141 The Appeal Panel's conclusion on the issue of "reasonably" was as follows ([2008] NSWADTAP 32 at [111]): 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. ... 142 Accordingly, the Tribunal should consider whether the "public acts" were engaged in "reasonably" having regard to: Whether there was a reasoned connection between the public purpose of informing voters of a candidate's views on matters relevant to the Federal election and the acts; and Whether the acts were appropriate for the communication of the candidates views to the voting public and not excessive or immoderate, judged objectively, not by reference to a respondent's subjective views or intentions."
In Sunol v Collier (No 2) [2012], Bathurst CJ at [41] interpreted the word "reasonably" in s 49ZT(2)(c) as follows: "41 … (e) For the public act to be reasonable … it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out."
As indicated, whether or not the act was done reasonably is to be assessed objectively; see Cunningham at [142], Trad v Jones (No 7) [2014] at [80].
In Trad v Jones (No 7) [2014] the Tribunal also considered the relevance of the identification of the audience when considering whether an act was done reasonably. At [81] - [82]: "81 The identification of the audience is relevant when considering whether the act was done "reasonably". The Respondents relied on the following passage from Bromberg J in Eatock v Bolt (2011) 179 FCR 261 which mentions "audience" as a relevant consideration when considering whether an act is done reasonably: Considerations which may have a bearing on whether an act is done reasonably include 'time, place, audience, and whether or not gratuitously insulting or offensive matters, irrelevant to the question of public interest under discussion, have been included: Eatock v Bolt (2011) 197 FCR 261 at 340 [341]. 82 The Respondents submitted that the reference to the audience in this passage is significant. But it should be borne in mind that this quotation is a summary of what Bromberg J understood French J to be stating in Bropho at [79] to [82]. It is instructive to set out in full what French J had to say about the relevance of a particular audience in the context of the equivalent exception in the Racial Discrimination Act 1975 (Cth). After noting that an act would be done reasonably in relation to publications on events or matters of public interest if it bears a rational relationship to those purposes, his Honour used an example which is relevant to these proceedings at [81]: 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'."
We have found on the evidence that Mr McKee published his post for the purposes of drawing public attention to the audio recording and its contents and his concern about what he considered to be the increased risk of sham same sex marriage being used for procurement by paedophiles within the homosexual community and the issue it raised about adoption and commercial surrogacy within the debate about same sex marriage. In the absence of any evidence identifying the particular members of the audience and their characteristics, we have concluded that it comprises the class of persons being internet users at large.
Viewed objectively, the evidence does not support a finding that the second sentence of the publication in its terms was rationally and reasonably connected with the purpose which we have identified.
The second sentence in the publication is not supported by, and is indeed contradicted by, the final sentence of the abstract upon which Mr McKee relied as a basis for its content. The abstract expressly excludes androphilic homosexuals from its conclusion. There was no basis for Mr McKee to assert that homosexuals were three times more likely to assault children. Neither the abstract nor calculations substantiate that conclusion in its terms. We find that in the absence of any basis for publication, the second sentence in the publication cannot be considered other than gratuitously insulting or offensive. In its terms, it is irrelevant to the question of public interest which Mr McKee sought to raise.
The comparison contained in the second sentence of the comment has caused insult or offence to Mr Burns and possibly many other people. There is, however, no evidence upon which we might be satisfied that any insult or offence was the consequence of Mr McKee inappropriately using the opportunity to communicate the material for an ulterior purpose such as stirring up violence or hatred; see Cunningham at [143].
Nevertheless, we find that the act of publication of the second sentence in its terms was inappropriate for communication of Mr McKee's interest in the issue and the related audio clip to the general public. Without foundation, it was not rationally or reasonably connected with that purpose.
It is our view that the public act would not be viewed by an ordinary person as appropriate either in manner of communication or content to the purpose of informing the general public of Mr McKee's views. Unlike the position in Cunningham at [144] and, even though there was no use of extravagant or obnoxious language, the second sentence in its terms had no foundation. Accordingly we are not satisfied that Mr McKee's act of publication can be said to be "proportional" to his purpose and to the public interest which we have identified.
The last element of the exception provided by s 49ZT(2)(c) is that the public act must have been done "in good faith". There is a tension in the authorities about whether good faith must be demonstrated subjectively or both subjectively and objectively; see Trad v Jones (No 7) [2014] at [83].
In Cunningham upon an analysis of the authorities to that time the Tribunal concluded at [156]: "156 Accordingly, in determining whether the respondent acted in good faith within the meaning of s 49ZT(2)(c) the Tribunal has to make an assessment of the respondent's subjective motivation for, and honesty in, doing the public acts which, if s 49ZT(2)(c) is to be applicable must be assumed, (contrary to our conclusion above) to have contravened s 49ZT(1). In addition, the Tribunal must also make an objective assessment of whether the respondent's conduct involved what an ordinary, reasonable person would regard as a conscientious approach to the task of honouring the values asserted by the ADA."
French J in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [101] preferred the combined approach. The combined approach was also adopted by the Tribunal in Cunningham.
The subjective approach was favoured by Bathurst CJ in Sunol v Collier (No 2) at [41] where His Honour found: ""41 … (f) For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose." Bathurst CJ at [40] preferred the view of Nettle JA in the Victorian Court of Appeal in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 at [92] where His Honour found that good faith would 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".
As was the case in Trad v Jones (No 7) [2014] at [84] we are bound by the authority of the New South Wales Court of Appeal and adopt the subjective test in relation to the question of good faith. There is no requirement to consider objectively whether the conduct involved what would be regarded as a conscientious approach to the task of honouring the values of the AD Act.
The meaning of "good faith" was explained in Western Aboriginal Legal Service v Jones & Anor [2000] [122] where the Tribunal said: "If a statement or comment is made in "good faith" that would appear to be the converse of acting with malice. "Good faith" appears to imply the absence of "spite, ill-will or other improper motive". As with malice, "good faith" appears to be a state of mind and the crucial factor in determining the presence of "good faith" would seem to be "whether the commentator honestly believed in the truth of what he or she said".
This passage was adopted by the Tribunal in Trad v Jones (No 7) [2014] at [85].
In Cunningham at [157] the Tribunal referred to the authorities which suggested that it might be difficult for a respondent to establish subjective good faith if they do not give evidence and that the Tribunal will not presume that comments are made in good faith without an evidentiary foundation. Mr McKee did give evidence, was cross examined and put material before the Tribunal.
On the material before us and, having observed Mr McKee giving evidence and being cross examined, we are satisfied that Mr McKee honestly and sincerely believed that the contents of the abstract and journal article and his calculations supported a conclusion that within the homosexual community there was a greater proportion of paedophiles when compared with the heterosexual community and that this gave rise to a risk to children relevant to the debate about same sex marriage. However, he did not express himself in the second sentence complained of in terms consistent with the conclusion in the journal abstract (and indeed to the contrary). The second sentence in its terms had no foundation. As we have said Mr McKee appears to accept this in his submissions where he refers more expressly to the relative incidence of paedophilia within the homosexual and heterosexual communities consistently with the conclusions in the abstract.
We are satisfied that Mr McKee was acting with subjective good faith in the circumstances in which the second sentence was published both as to the belief he had at the time based upon the conclusion in the abstract and his reasons for publication. There is no evidence to conclude that Mr McKee when posting his comment was acting out of spite, ill-will or other improper motive. However, in our view Mr McKee has not established that he was acting with subjective good faith in the way in which the material came to be published. There was no evidence upon which we could be satisfied that at the time of publication Mr McKee held the subjectively honest belief that it was necessary or desirable to publish the second sentence in its terms to achieve the purpose of identifying what he considered to be an increased risk to children. There was no basis for his statement and it contradicted the conclusion in the article on which he relied. We find that the element of good faith is not made out.
We have found that the subject comment including the second sentence was published for a purpose in the public interest. We are not, however, satisfied that the publication was made reasonably and in good faith. Accordingly, we find that Mr McKee does not make out the exception contained in s49ZT(2)(c) of the AD Act in respect of the publication of the second sentence.

Conclusion

We have found that Mr Burns has established the criteria for presumptive liability under s 49ZT(1) in respect of the publication by Mr McKee of the second sentence complained of. It was capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons on the grounds of the homosexuality of the person or members of the group.
We are not satisfied that the publication of the second sentence was made reasonably and in good faith. As a consequence Mr McKee has not made out the exception in s 49ZT(2)(c). Accordingly, we have found that Mr Burns' complaint is substantiated in respect of the second sentence.

Consequential relief

We now turn to deal with the relief sought by Mr Burns.
Mr Burns seeks orders that: 1. Mr McKee publish an apology in a place, form and time to be determined. 2. Mr McKee remove all material which vilifies homosexual males and people from his Facebook or on any other website or blog controlled by him. 3. Mr McKee be restrained from posting any further material on Facebook, website or blog controlled by him that vilifies homosexual males or people contrary to the AD Act.
Section 108 of the AD Act provides relevantly as follows: "108 Order or other decision of Tribunal … (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: … (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), …"
Reference has already been made to Mr Burns' reaction to reading the material in the publication complained of and in particular the second sentence. The evidence was uncontradicted and we have accepted it.
In circumstances of the finding which we have made that publication of the second sentence of the material by Mr McKee was in breach of s 49ZT(1) and the evidence of Mr Burns' reaction to it, an order requiring an apology is, in our view, warranted in this case. No submissions were received from Mr McKee to the contrary.
Nor were submissions received form Mr McKee as to the time for or sites upon which any apology should be published. As was the case in Burns v Sunol [2012] the apology is more likely to come to the attention of people who read the original comment by being published on the website on which the comment was originally posted and other websites controlled by Mr McKee. The material complained of was published for the period of the complaint, which was more than five and a half months. It is appropriate that the apology be published for a similar period.
Accordingly, we propose to order as follows: (1) The complaint of homosexual vilification in relation to the second sentence of the publication is substantiated. The complaint is in relation to the balance of the publication is dismissed. (2) Within 14 days of the date of this decision, the respondent is to post the following apology, attributed to him, on the Causes.com website and every website controlled by him, such apology to remain on the website for the life of the website or at least six months whichever is the lesser:- "This apology is made pursuant to an order of the New South Wales Administrative Tribunal (NCAT) made on [insert]. Between 30 December 2013 and 16 June 2014 I published a statement on a website concerning homosexual people. On [insert], NCAT held that my statement amounted to unlawful homosexual vilification in contravention of the Anti-Discrimination Act, 1977 (NSW). NCAT found that it was capable of inciting hatred or severe ridicule of or serious contempt for one or more homosexual people on the ground of their homosexuality. NCAT also found that my statement was not published reasonably and in good faith. I apologise for publishing this statement. I acknowledge that the Act makes it unlawful to vilify homosexual people on the ground of homosexuality."
Turning to the second order sought by Mr Burns, there was no evidence before us of any other material vilifying homosexual males and people either contained on Mr McKee's Facebook or on any other website or blog controlled by him. The evidence was that the offending comment had been removed by Mr McKee. In those circumstances there are no grounds to make the orders sought.
Mr Burns lastly seeks an order restraining Mr McKee from posting further similar material.
The Appeal Panel in Sunol v Burns [2015] NSWCATAP 207 considered the basis upon which an order under s 108(2)(b) might be made in respect of future conduct saying at [22] - [25]: "22 The Tribunal found that there had been a breach of the Act by the appellant, and further that circumstances justified an order in the nature of a quia timet injunction in view of the fact that, whilst no future act had yet occurred, there was the apprehension of the possibility that such conduct would be repeated. 23 Authority for the making of such a future order is well established: see for example, Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851, where Viscount Finlay said (at 859): Some particular tort is threatened, nothing has yet been done. The commission can be restrained by injunction. See also the observations of Lord Sumner at 866-867. 24 In the present circumstances, the restraining order is based upon the premise that if there were a repetition of publication of the offending material, it would constitute a violation of the respondent's legal rights. If there is a strong probability that the apprehended breach could occur in the future, such an injunction will be issued to restrain the infringement of a party's legal rights: Attorney-General v Nottingham Corporation [1904] 1 Ch 673 at 677; Attorney-General v Long Eaton Urban Council [1915] 1 Ch 124 C.A. at p 127 per Lord Cozens-Hardy MR, who said: It is as old as the hills that if a man threatens that he intends to do something which is unlawful, and asserts a right to do it, the Court will grant an injunction to restrain him. It is wholly irrelevant to say whether he has done it or not. 25 Here, the terms of s 108 of the Act amply support the orders made."
There is no evidence before the Tribunal either that Mr McKee had a history of publishing material in vilification of homosexuals or that there was an apprehension that he would do so in the future. Certainly there was no evidence that in the words of the Appeal Panel there was a "strong probability" that a breach would occur in the future. In those circumstances there are no grounds upon which we could comfortably be persuaded that a restraining order should be made and Mr Burns' application in that respect is refused.

Orders 1. The complaint of homosexual vilification in relation to the second sentence of the publication is substantiated. The complaint in relation to the balance of the publication is dismissed. 2. Within 14 days of the date of this decision, the respondent is to post the following apology, attributed to him, on the Causes.com website and every website controlled by him, such apology to remain on the website for the life of the website or at least six months whichever is the lesser:- "This apology is made pursuant to an order of the New South Wales Civil and Administrative Tribunal (NCAT) made on 06 March 2017. Between 30 December 2013 and 16 June 2014 I published a statement on a website concerning homosexual people. On 06 March 2017, NCAT held that my statement amounted to unlawful homosexual vilification in contravention of the Anti-Discrimination Act, 1977 (NSW). NCAT found that it was capable of inciting hatred or severe ridicule of or serious contempt for one or more homosexual people on the ground of their homosexuality. NCAT also found that my statement was not published reasonably and in good faith. I apologise for publishing this statement. I acknowledge that the Act makes it unlawful to vilify homosexual people on the ground of homosexuality." I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 March 2017

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (5)

Cases Cited (33)