REASONS FOR DECISION
Background
1 In Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 we found that conduct engaged in by the second respondent Mr Steve Price, and the third respondent Mr John Laws, was vilification in breach of s s49ZT(1) of the Anti-Discrimination Act 1977. The first respondent, Radio 2UE, is jointly and severally liable for their conduct. We sought submissions from the parties on the appropriate orders to make in the circumstances. We now make those orders and give reasons.
What type of orders can be made?
2 For conduct that is unlawful vilification the Tribunal is empowered (s113(1)(b) Anti-Discrimination Act 1977) to order all or any of: damages, non-repeat of the unlawful conduct, remedial activity, an apology, a retraction, development and implementation of a program or policy, and the voiding of an agreement. The intention of such orders is not to penalise or punish the respondents - these are not criminal proceedings and no criminal liability is imposed by a finding of unlawful vilification. Hardship that might follow from the performance of obligations imposed by orders is a necessary consequence and not a reason to not make the appropriate orders.
3 Although the status of a breach of the Anti-Discrimination Act 1977 remains uncertain (see eg Commissioner of Police v The Estate of Edward John Russell & Ors (2002) 55 NSWLR 232 at [69]-[78]; [99]) it is clearly not a crime or other conduct that attracts formal sanction. A breach of the Anti-Discrimination Act 1977 is, if not a 'statutory tort', analogous to one for purposes of characterising the orders that can be made consequent on a finding of such a breach. That is to say that the orders that the Tribunal is empowered to make do not impose on the respondent a penalty or punishment, but instead attempt to remedy the effect of the respondent's conduct. The position has been expressed in the Federal Court in this way:
The proceedings before the Commission were not punitive proceedings in which the humiliation of a defendant might be taken into account in mitigation of penalty. The proceedings were civil proceedings in which the various applicants sought relief appropriate to their individual claims. ( Re: Hall; Oliver and Reid and A & A Sheiban Pty Ltd; Dr Sheiban and Human Rights and Equal Opportunity Commission 20 FCR 217 per Wilcox at 260-261).
4 To this end the orders that can be made are each capable, to different degrees, of being all or any of compensatory, preventative and remedial. We have already said that, in the circumstances, we do not consider an order for the payment of damages under s113(b)(i) is appropriate. The need for an order under s113(b)(iv) voiding an agreement does not arise. We agree with the observation of the Federal Court in Jones v Scully [2002] FCA 1080 at [245] that "a retraction is only appropriate where it has been established by an applicant that what has been published or disseminated by a respondent is false". In this matter, as in Jones v Scully, the issue was not the truth or falsity of what was said, but whether what was said was reasonably likely to incite serious ridicule. In these circumstances an order for a retraction under s113(b)(iiia) is not appropriate.
5 An order "enjoining the respondent from continuing or repeating" any unlawful conduct under s113(b)(ii) might be appropriate when conduct, such as the display of a sign, is found to be unlawful and it is necessary to prevent its continuation. When the conduct occurred as a specific act or limited set of events, as in this matter, an order to not repeat the conduct imposes the same requirement, in effect, that the Act itself imposes - to not engage in conduct that is unlawful - but with different consequences. While conduct can lead to a complaint under the Act it can, if in breach of an order, lead to enforcement proceedings and a criminal penalty. It appears to us that such an order would usually be made when there is a possibility that the conduct will be repeated, and we consider that that is the case in this matter.
6 There remains the possibility of orders for remedial activity under s113(b)(iii), an apology under s113(b)(iiia), and development and implementation of a program or policy under s113(b)(iiib). The specific orders that the applicant seeks are for an apology, and for appropriate programs or policies. The respondents submit that the Tribunal should take no action.
Should any order be made?
7 In support of their submission that that the Tribunal should take no action, the respondents submit as a general matter that the conduct which was the subject of the Tribunal's findings "should be placed at the less serious end of the vilification scale".
8 Whether or not that is so, it is irrelevant. As we said above, we are not imposing a penalty. We are making orders that depend not on some scale of culpability, but on the nature of the consequences of the conduct. However one might characterise its inherent 'seriousness', the conduct was no more or less than vilification as defined.
9 Of the many arguments that the respondents rely on to support their contention that no order should be made, the first is an elaboration of the 'seriousness' argument. The respondents say that conduct that is capable of inciting severe ridicule is necessarily less serious than conduct that is capable of inciting hatred or serious contempt. We do not agree. In our view the drafting of s.49ZT(1) identifies three qualitatively different responses to incitement, none more or less serious than the other. Each has been identified by Parliament as conduct that is vilification and is unlawful.
10 The respondents argue that even within the category of "conduct capable of inciting severe ridicule", the conduct in this instance is "at the less serious end of the vilification scale". As we have said, we do not agree that any assessment of the "seriousness" of the conduct is relevant to the orders we make. If we are wrong on that point, we address briefly each of the matters relied on by the respondents in support of the argument. As well, we do so because some of the matters raised might in any event be thought to be relevant to, in their own right, to whether an order should be made in the circumstances.
11 The respondents submit that the conduct is "less serious" because there was no finding of actual incitement, and further there was no finding that severe ridicule "had actually been created". Each of these two appears to make the same point as the other, and we proceed on that basis. It is true that we made no finding of actual incitement, and no finding that severe ridicule "had actually been created". It is also true, however, that no such finding was necessary, so the absence of a finding of actual incitement is irrelevant. Tending against the premise of the respondent's submission on this point however, we note that some listeners who shared the views that Mr Price expressed appear to have been motivated by his conduct to express those views publicly.
12 The respondents submit that that the conduct is "less serious" because there was no finding of intention to incite. It is true that there was no finding of an intention to incite. It is also true, however, that no such finding was necessary. We did not make a positive finding that that there was no intention to incite; the matter did not arise for decision. In the circumstances, the absence of a finding of intent is irrelevant.
13 The respondents submit that the "less serious" nature of the conduct is indicated by our decision to not order damages. We had intended to make clear in our decision that an award of damages was not, in our view, appropriate in the circumstances because (at [97]-[98]): there was no evidence of diagnosed harm, the applicant did not claim pecuniary loss, the vilification was not directed to the applicant personally, the applicant felt offence as a member of the vilified group of which we assume other members were offended, and the applicant pursued the complaint for what he saw as its significant 'public interest'. In those circumstances, the absence of an award of damages is merely a function of our assessment of appropriate orders, and is irrelevant to evaluating the seriousness of the conduct.
14 The respondents submit that the conduct is "less serious" because it was "essentially light-hearted banter". We found that the conduct was, essentially, unlawful vilification. A significant purpose of the legislation under which we made our decision is to make clear that what passes for "light-hearted banter" can, in some circumstances, be capable of inciting hatred, serious contempt or severe ridicule. This is one reason why intention is irrelevant to the issue.
15 The respondents submit that the "less serious" nature of the conduct is indicated by the Acting President of the Anti-Discrimination Board having dismissed the complaint on the basis that it lacked substance. The Acting President's view was reached after he had concluded his investigation - this is clear from the terms of his letters in July 2003to the applicant and the first respondent (which was then the only respondent). It is apparent from that correspondence that the Acting President's investigation did not include advising the respondent even of the fact of the complaint, let alone of its terms. The Acting President's investigation appears to have made no inquiries of the respondent at all. The Acting President came to his view on the basis of having "looked at all the information [the applicant gave] the Board" which was a partial transcript of the broadcast.
16 Even if the view of the Acting President were relevant, it would in these circumstances be of no probative value. However, the view of the Acting President has no relevance. He came to his view exercising an administrative function; the Tribunal has come to a different view, after conducting an inquiry. The Acting President had no role in the inquiry; the view he had formed was not relied on by the respondents as a matter relevant to the question of whether the conduct had substance. To suggest that the view of the Acting President has relevance at this stage can only imply that the Tribunal's finding that the complaint has substance is now to be doubted, and that the Acting President's view is to be preferred; whether the Tribunal's finding is wrong is a matter for the Appeal Panel, not for the Tribunal at this stage of the original proceedings.
17 The respondents submit that the "less serious" nature of the conduct is indicated by the Australian Broadcasting Authority having dismissed a complaint about the same conduct. We have no knowledge of this. There is no evidence before us that such a complaint was made, let alone how it was dealt with and according to what considerations. It is pointless for us to speculate on absent evidence, but a starting position might be that the view of the Australian Broadcasting Authority would be of no more relevance than that of the Acting President of the Anti-Discrimination Board.
18 The respondents submit that the "less serious" nature of the conduct is indicated by the applicant's "extraordinary" conduct (in a letter he wrote to one of the respondents), compared to which the unlawful conduct is "restrained and moderate". The applicant's conduct was not in issue in these proceedings. No evidence was led and no submissions were made as to the applicant's good faith or credit. None would have been relevant to our objective assessment of the respondents' conduct.
19 For the reasons above, none of the matters raised by the respondents establish the "less serious" nature of the conduct.
20 In addition to the "seriousness" argument that we have rejected, the respondents submit that no action is appropriate because the applicant was not mentioned in the broadcast. That is true. It is for that reason that we do not propose, as we have already said, to order a compensatory remedy. The fact that the applicant was not mentioned in the broadcast has, in the circumstances, only limited relevance to the question of whether and what broader remedial and preventative orders should be made.
21 Further, the respondents submit that the Tribunal's decision "generated a great deal of publicity adverse to the respondents". In the same submission the respondents say that "the complaint and findings of the Tribunal received maximum media coverage, far beyond that of the broadcast complained of". It is unclear whether the two parts to this submission are intended to be understood as being to the same effect; they appear to us to be different.
22 The relevant implication in the first part of the submission is that the respondents have already suffered to a sufficient degree, and that their situation should not be compounded by further orders. We reject the implicit proposition that the mere reporting of the Tribunal's decision as to the unlawful nature of the respondents' conduct is publicity "adverse" to the respondents. The fact that the Tribunal's decision generated publicity, beyond the mere reporting of the decision, adverse to the respondents, if that is the case, is irrelevant (Hall; Oliver and Reid and A & A Sheiban per Wilcox at 261). In any event, there is no evidence before us of what constitutes "a great deal" of publicity, or that that publicity was "adverse to the respondents". The respondents submitted copies of "media coverage" which show only that some print and radio media in different parts of Australia reported the Tribunal's findings, comments by the applicant, a protestation by Mr Price that the decision was "a direct attack on free speech", and the opinion of 2UE's general manager that an apology was unlikely, the decision is wrong and that there would be an appeal. If adverse media coverage was relevant, the media coverage submitted to us does not show that opinion or comments "adverse" to the respondents were published, and there is no evidence before us that there were "adverse" consequences to any of the respondents as a result of the media coverage.
23 The relevant implication of the second part of the submission is that more people know about the findings than heard the original broadcast, and that it would therefore be inappropriate to make orders that would further publicise the findings. There is no evidence before us of the reach of the publicity of the Tribunal's findings. It is impossible to accept that the findings received "maximum" media coverage. We are, from evidence in the inquiry, aware of the audience reach of 2UE, and have been given no further material that enables us to accept that the coverage given to the Tribunal's findings reached more people than did the offending broadcast.
24 Those are the respondents' submissions that no orders should be made. We have rejected those arguments. In our view the matter is not one in which it is appropriate to decline to take any further action. The nature of the unlawful conduct - vilification - is such that it is likely to have had an effect that continues or recurs; to give effect to the intention of the Anti-Discrimination Act 1977, orders should be made to attempt to limit or prevent this.
25 Further, the nature of the conduct in the circumstances - a public broadcast by high profile public figures - is such that vilifying comments were conveyed to a large number of people; to give effect to the intention of the Anti-Discrimination Act 1977, orders should be made to attempt to convey to the same people the unlawful nature of the comments they heard. In their submissions the respondents have consistently characterised their unlawful conduct as benign, even as "restrained and moderate", and the risk that we must address is that listeners will have the same view of conduct that is in fact contrary to standards of public behaviour set by Parliament.
Should an apology be ordered?
26 The applicant proposes that Mr Price and Mr Laws each read an apology, in specified terms, on air for seven consecutive days at specified times, and that Radio 2UE publish a written apology in four specified newspapers in specified terms.
27 The applicant contends that a public apology by the respondents is appropriate as a public acknowledgment that their conduct was unlawful. He says that "just as the ordinary reasonable listener may have been incited to severe ridicule . . . so listeners should now be exposed to the legal consequences of such conduct". This does not obviously follow. More accurately, it is the case, as we said above, that in these circumstances the listening public who might have been incited to severe ridicule should now be told that that incitement was unlawful. We agree with the applicant that there is an educative dimension to the Anti-Discrimination Act 1977 implicit in the nature of the orders that we are empowered to make in circumstances, such as this matter, where the complainant was not personally the subject of the unlawful conduct.
28 The respondents submit that "to compel the publication of an apology or correction is misguided as a matter of principle". Compelling a correction is a different issue, and in any event does not arise in this matter. But the respondents' submission as to a compelled apology has some substance. The respondents cite Federal Magistrate Raphael saying that an apology "cannot be forced out of a person. If the person does not wish to give it then it is valueless" (Evans v National Crime Authority [2003] FMCA 375 at [115]). At the same time, this Tribunal has never expressed reservations about its power to order an apology in relation to vilification and in at least one case the appropriateness of an order for an apology was conceded by the respondent (Burns -v- Dye [2002] NSWADT 32).
29 We agree that if an apology is understood, as it is commonly understood, to be a statement that reflects a person's own feeling of regret for conduct that has caused offence or harm, then of its nature it cannot be ordered to be made, unless the feeling is in fact held and it is only its expression that is ordered. In submissions the applicant, however, says that an apology for purposes of s113(1)(b)(iiia) should be understood as being associated with a legal requirement, rather than "genuine and voluntary". The Anti-Discrimination Act 1977 makes clear that there is power to order an apology in respect of a vilification complaint. The apology is acknowledgement of the wrongdoing and, seen as fulfilment of a legal requirement rather than as a statement of genuinely held feelings, it can properly be compelled by way of order. There would be a welcome extra dimension to the apology if it reflected that the person actually regrets the conduct.
30 We agree, therefore, with the respondents' argument that to compel the publication of an apology is misguided, only to the extent that the argument refers to what we will call a personal apology, rather than an apology that is one made for the purposes of the Anti-Discrimination Act 1977. An apology of the type that meets the purposes of the Anti-Discrimination Act 1977 can, and in this case will be, compelled by order.
31 The respondents have proposed that if an apology is ordered, it be read once only, "on the Steve Price program", in specified terms, by Mr Price on behalf of himself and Mr Laws. They submit that the scope of the orders sought by the applicant in relation to an apology is unreasonable and grossly disproportionate to the conduct complained of. Consistently with what we have said above about the purpose of orders the Tribunal can make, this submission is misconceived in its focus on the nature of the conduct itself. However we agree that what the applicant seeks is more than is reasonable and necessary to address the consequences of the conduct complained of, and the orders we make reflect this.
32 To our knowledge Mr Price no longer broadcasts at the same time as he broadcast the vilifying comments. It is appropriate that his apology be broadcast both at the time that he broadcast the vilifying comments, and at a time that he now broadcasts. In that way it is likely to be heard by those people who choose to listen to Radio 2UE in the morning, and those who choose to listen to Mr Price at whatever time he broadcasts. His apology, to be broadcast in the manner we direct below, will be in these terms:
Hello, this is Steve Price speaking [this can be omitted for the broadcast made at a time that he now broadcasts]. I have a statement to make. On 16 June 2003 during my breakfast show I commented on an episode of the television program 'The Block". I expressed my concerns about certain content being televised on a Sunday evening. I went further than merely expressing my concerns, and between 8 and 9am I made repeated comments about gay men.
The NSW Administrative Decisions Tribunal has decided that my comments were vilification, because they were capable of inciting severe ridicule of gay men. The Tribunal recognised my right to express concerns about television content, but said that I went too far with my comments.
My comments were a breach of the NSW Anti-Discrimination Act. The aim of the Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public, and I will be careful in future to avoid conduct that vilifies gay men.
33 Mr Laws should also broadcast an apology. His vilifying comments were broadcast on Mr Price's morning program. It is appropriate that his apology be broadcast at the time that he broadcast the vilifying comments. His apology, to be broadcast in the manner we direct below, will be in these terms:
Hello, this is John Laws speaking. I have a statement to make. On 16 June 2003 during Steve Price's breakfast show I spoke to Steve about an episode of the television program 'The Block". Shortly before 9 am I made a number of comments about gay men.
The NSW Administrative Decisions Tribunal has decided that my comments were vilification, because they were capable of inciting severe ridicule of gay men. The Tribunal recognised a person's right to express concerns about television content, but said that my comments went further than that.
My comments were a breach of the NSW Anti-Discrimination Act. The aim of the Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public, and I will be careful in future to avoid conduct that vilifies gay men.
34 Radio 2UE should publish an apology. It is appropriate that it do so in the three principal daily newspapers circulating in New South Wales, and on its website. Its apology, to be published in the manner we direct below, will be in these terms:
Radio 2UE Vilification Apology
On 16 June 2003 an announcer employed by Radio 2UE, Steve Price, commented on an episode of the television program "The Block". He expressed concerns about certain content being televised on a Sunday evening. He went further, and between 8 and 9am made repeated comments about gay men. Shortly before 9 am Mr Price spoke to an other announcer employed by Radio 2UE, John Laws, and Mr Laws made a number of comments about gay men.
The NSW Administrative Decisions Tribunal has decided that Mr Price's and Mr Laws's comments were vilification, because they were capable of inciting severe ridicule of gay men. The Tribunal recognised a person's right to express concerns about television content, but said that the announcers went too far with their comments.
The announcers' comments were a breach of the NSW Anti-Discrimination Act. Radio 2UE shares responsibility for the announcers' comments. The aim of the Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public, and we will be careful in future to ensure that our announcers avoid conduct that vilifies gay men.
Should a program or policy be ordered?
35 The applicant submits that an appropriate program or policy would be more effective and comprehensive than an ordered apology in achieving a 'public interest' outcome. That outcome, he submits, is to "reduce likelihood that members of the community, particularly those who heard the broadcast, would be incited to severe ridicule of homosexuals". To this end the applicant proposes that Radio 2UE broadcast, during the radio programs of Mr Price and/or Mr Laws, 12 programs "aimed at eliminating vilification and discrimination and raising greater community awareness of the link between discrimination, vilification and gay and lesbian related violence", of specified duration and produced by specified organisations.
36 We accept the implicit argument in the applicant's submissions that the broadcasting of material with such an aim is likely to reduce the risk of the incitement that the unlawful conduct gave rise to. In the circumstances a broadcasting of an apology, as we discussed above, is in our view sufficient for this purpose.
37 In this case the applicant seeks an order under s113(1)(iiib) that material for radio be recorded and broadcast, and that certain named organisations be a party to the production of that material. The respondents submit that the Tribunal should not order the respondents to develop or implement programs or policies aimed at eliminating unlawful discrimination.
38 In our view to "develop and implement a program or policy aimed at eliminating unlawful discrimination" under s113(1)(iiib), is most appropriately made to address systemic conduct, or patterns of conduct that occur throughout an organisation, workplace, industry or area of activity. There is no evidence that the conduct in this case has that character, and an order to develop and implement a program or policy, necessarily importing cost and administrative considerations, is not warranted.
Should an order for costs be made?
39 The applicant seeks an order for costs.
40 There is a presumption against costs being awarded unless, in our view, circumstances justify such an order (s114 Anti-Discrimination Act 1977). No authority or rule can determine whether in any particular case an order should be made: Cleary Bros (Bombo) Pty Ltd -v- Cvetkovski (EOD) [2001] NSWADTAP 10 at [69]. A combination of circumstances is required in order to justify an award of costs (Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 at [21]), such as those set out in Borg at [22].
41 There is no suggestion that the manner in which the respondent has conducted the proceedings in this matter justify a costs order. Other considerations do, however, arise.
42 As no amount of damages has been awarded, costs that the applicant is liable to meet necessarily exceed an award. That an award of damages was not made does not reflect adversely on the merits of the complaint; rather it is a function of the public interest nature of the complaint, itself a consideration in whether a costs order is justified.
43 The matter has required us to decide what we consider to be an important public interest consideration. As news media reports provided to the Tribunal by the respondents show, the respondents have themselves said that the matter is one that pits a conception of freedom of speech against Parliament's attempts to limit what can lawfully be said in public.
44 It will often be the case that a vilification complaint deals with such a tension, and it cannot be that costs would ordinarily be awarded in such matters. But it is not necessarily the case that a vilification complaint, although involving a public act, will itself raise matters of public interest. The 'freedom of speech' issue in this matter is particular in that it arises in relation to public radio, and concerns the way in which high profile public commentators can conduct themselves within constraints on their right to express opinions publicly. There has been only one previous vilification complaint about a radio broadcast decided in this Tribunal, and this decision addresses the likelihood of high profile public commentators inciting serious ridicule.
45 The matter has as well required us to consider an important matter of legal interpretation that has been a matter of some uncertainty in this jurisdiction, relating to the ordering of an apology, a remedy that is arguably particular to vilification complaints.
46 We are satisfied that the circumstances justify the making of a costs order.
Orders and directions
47 The complaint having been substantiated:
1.The first respondent will cause the apology set out above at paragraph 34 to be published:
i) by not later than 31 March 2005
ii) on the front page at the http://www.2ue.com for a period of seven days, and
iii) once in each of The Australian, the Sydney Morning Herald and The Daily Telegraph newspapers
iv) in a display advertisement not less than 70mm x 100mm
v) in black print
vi) appearing in the first six pages of the edition in which it is published
vii) in an edition published on a Monday, Tuesday, Wednesday, Thursday or Friday other than a public holiday.
2. The first and second respondents will cause the apology set out above at paragraph 32 to be read by Mr Price and broadcast:
i) once between 8.10 and 8.25 am, and once between 5.10 and 5.50pm (being a time Mr Price now broadcasts)
ii) on Radio 2UE
iii) on a Monday, Tuesday, Wednesday, Thursday or Friday other than a public holiday
iv) by not later than 31 March 2005.
3. The first and third respondents will cause the apology set out above at paragraph 33 to be read by Mr Laws and broadcast:
i) once between 8.10 and 8.25 am
ii) on Radio 2UE
iii) on a Monday, Tuesday, Wednesday, Thursday or Friday other than a public holiday
iv) by not later than 31 March 2005.
4. The respondents shall, jointly and separately, pay the reasonable costs of the applicant, on a party-party basis, in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.