General principles
46 Objective test: In determining whether s 18C of the RD Act has been contravened, it is first necessary to determine whether, for the purposes of para (1)(a), the act complained of is "reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people". In deciding this, the Court does not simply rely on how a particular person or group of people subjectively felt about or reacted to the doing of the act complained of. Rather, the Court assesses whether, objectively, the act complained of was "reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate" another person or a group of people: Hagan v Trustees of Toowoomba Sports Ground Trust [2000] FCA 1615 at [15]; Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 (Cairns Post) at [12]; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243 (Jones v Scully) at [98]-[100]; Eatock v Bolt [2011] FCA 1103; (2011) 197 FCR 261 (Bolt).
47 In Bolt at [257], Bromberg J noted that the expression "in all the circumstances" needs firmly to be kept in mind. With that I agree. I should add that, in my view, the circumstances in a particular case will depend on the facts found from the evidence.
48 Justice Bromberg in Bolt goes on at [258]-[261] to discuss what the expression "reasonably likely" means in this statutory context and concluded that it should be taken to be speaking to the chance of an event occurring or not, which is real, not fanciful or remote. With that I also, with respect, agree. As I do with his Honour's statement that whether an act is reasonably likely to cause offence is to be assessed on the balance of probabilities.
49 I note that, at [257], Bromberg J stated that a determination of whether it is reasonably likely, in all the circumstances, that an act gives offence, "requires that the social, cultural, historical and other circumstances attending the person or the people in the group be considered". I can understand that such factors may well be relevant to that determination but whether they are required to be considered on every occasion would, I think, depend on the evidence led in the proceeding. The "circumstances" that will readily be relevant are those particular factual circumstances in which a particular act complained of was done. Of course, the reasons why a particular person or group might feel offended, insulted, humiliated or intimidated by a particular act will also be relevant though not determinative of the issue, as explained below.
50 The "reasonable victim" perspective: When applying the objective test it is, however, necessary to regard the perspective of the hypothetical person or group - sometimes referred to as the "reasonable victim" - who might possibly be offended by an act of the type complained of.
51 The adoption of such a perspective is important because, if the Court were not to do so there would be a real risk that the standards of some other, different person or group would be adopted without any sensitivity to cultural differences between groups in the community. This point is well made in human rights literature. For example, Akmeemana S and Jones M, "Fighting racial hatred", in Racial Discrimination Act 1975: A review (Race Discrimination Commissioner, Commonwealth of Australia, 1995) observe, at p 168, that the adoption of a "reasonable victim" standard can be understood as a means of eliminating a systemic barrier as complainants will no longer be subject to the views of the dominant group concerning the types of comments that in fact are offensive to other groups or sub-groups in the community.
52 The Cairns Post case provides a good illustration of the point. The Cairns Post newspaper had published an article concerning the custody of a two year old Aboriginal girl. It concerned the decision of the Queensland Department of Family Services, Youth and Community Care to take the child from foster care with a white family and place her into the care of the applicant who also had the care of the child's two brothers. The article was accompanied by two photographs, one of the applicant and one of the couple from whose care the child had been removed. The difference between the photographs was that the couple was presented in their living room in a comfortable chair, with photographs and books behind them, while the photograph of the applicant showed her in a bush camp with an open fire and a shed in which young children could be seen. The photographs had been chosen by the respondent after resort to a photographic library. As it transpires, the photograph of the applicant had been taken on an earlier occasion when she had assisted in locating some backpackers who had become lost in a remote area. The applicant alleged that the publishing of the photo caused her upset and humiliation as it portrayed her as a primitive bush Aboriginal woman and implied that this was her usual lifestyle and therefore one in which the child would have to live. In reality the applicant lived in a comfortable four bedroom brick home with the usual amenities.
53 In assessing the applicant's complaint Kiefel J, at [13], noted the necessity to consider the perspective under consideration, that is to say, the hypothetical person in the applicant's position or the group of which the applicant is a member. Her Honour pointed out that a simple reference to the person's race may, in some cases, be too wide a description. Having regard to the evidence, her Honour observed, at [13], that Aboriginal people's views about being portrayed as having a more traditional lifestyle, will differ depending upon where and in what circumstances they live. Thus, her Honour accepted that the perspective suggested on behalf of the applicant in order to test whether the respondent had contravened s 18C, was apposite, namely, that of "an Aboriginal mother, or one [who] cares for children, and who resides in the township of Coen" (where the applicant lived).
54 Viewed from that perspective, her Honour considered such a person would feel offended, insulted or humiliated if they were portrayed as living in rough bush conditions in the context of a report which was about a child's welfare. Her Honour accepted that, in that context, it was implied by the photographs that the hypothetical person would be taking the child into less desirable conditions, and that was how a "reasonable reader" would have viewed the photographs.
55 Similarly, in McGlade v Lightfoot [2002] FCA 1457; (2002) 124 FCR 106 (McGlade v Lightfoot) at [46], Carr J explained that the first logical step in a proceeding of this type is to identify a person or group of people who, on the basis of a reasonable likelihood, "may have been affected in the manner described in s 18C". In that case, where the applicant complained about the public comments concerning Aboriginal people made by the respondent that were published in a newspaper, Carr J initially considered that the relevant person or group of people would at least include "an Aboriginal person or a group of Aboriginal persons leading a traditional way of life", but also accepted the submission of counsel for the applicant that the respondent's act should also be assessed "from the aspect of its reasonably likely effect on an Aboriginal person or a group of Aboriginal persons who attach importance to their Aboriginal culture".
56 In Jones v Toben [2002] FCA 1150 (Jones v Toben), at [96], Branson J, at first instance, in relation to a proceeding concerning publications about Jewish people, defined the relevant group as "members of the Australian Jewish community vulnerable to attacks on their pride and self-respect by reason of youth, inexperience or psychological vulnerability". On appeal in Toben v Jones [2003] FCAFC 137; (2003) 129 FCR 515 (Toben v Jones) the identification of the group in this way was not in dispute: see for example, Carr J at [25], Kiefel J at [57], and Allsop J at [154] (his Honour agreeing with the reasons of Carr J at [32]-[38] in concluding that contravention of s 18C was made out).
57 In Bolt, the Court, in relation to a proceeding concerning the publication of "blogs" about certain Aboriginal people, considered the perspective of "fair skinned Aboriginal persons" when assessing the blogs.
58 In Bolt, Bromberg J, at [253], expressly rejected the respondent's contention that the objective nature of the assessment required by s 18C(1)(a) imported an objective assessment of community standards, and that the same standard applied irrespective of whether group offence or personal offence was alleged. In rejecting this submission, his Honour noted that the contention would see a reasonable person test substitute the reasonable representative test and would result in the perspective clearly required by para (a) being ignored.
59 However, his Honour accepted, at [255], that the purposes of the RD Act are to be served by objectively attributing to the "ordinary" or "reasonable" representative of the group, characteristics consistent with what might be expected of a member of a free and tolerant society. With respect, I agree with his Honour's observation, understanding that it is the reaction of the reasonable member of the group that needs to be regarded.
60 Identifying the "reasonable victim": There is an issue, which I will determine later in relation to this proceeding, whether it is the perspective of a "person" or a "group" that should be adopted in any particular case. In some cases it may only be an individual who is the subject of an impugned act done or said. In other cases, while a particular person may consider what was done or said was directed at them personally, it may be that it was also directed at a larger group (or subgroup) of which they are a member.
61 I agree with what Bromberg J said in Bolt, at [248], that the dichotomy between conduct directed to an identified individual, on the one hand, and conduct directed to a group of people in a general sense, on the other, works well in the ordinary case. However, there will be cases where the conduct may be directed to both the individual and the group. In Bolt, at [248], Bromberg J, however, considered that the publications of the respondent should be characterised as directed to individuals identified as examples of people in a wider group and also directed at members of the wider group. As a result, at [250], his Honour adopted the approach of not assessing the acts complained of simply by reference to the perspective of the individuals identified, but rather from the perspective of the reasonable representative of the group of the people who were offended - namely, "fair skinned Aboriginal persons".
62 I further agree with what Bromberg J said in Bolt, at [251], that a group of people may include the "sensitive as well as the insensitive, the passionate and the dispassionate, the emotional and the impassive". For that reason it is necessary to consider only the perspective of the ordinary or reasonable member or members of the group, not those at the margins of the group whose view may be considered unrepresentative.
63 Finally, I also agree with what Bromberg J noted in Bolt, at [252], that, as in Jones v Toben, the defined group may include a smaller group. In Jones v Toben, as noted above, the "young and the impressionable" Jews were regarded as a vulnerable subgroup of Australian Jewry who were identified as the relevant group whose perspective ought to be taken into account.
64 Of course the facts and circumstances of each case in which unlawful discrimination is alleged, contrary to the RD Act must guide the correct identification of the reasonable victim in each case.
65 The "serious effects or consequences" consideration: When it comes to applying the objective test from the perspective of the "reasonable victim", the words "offend, insult, humiliate or intimidate" used in s 18C(1)(a) do not constitute a compendious phrase and should be separately considered and given their ordinary English meanings: see McGlade v Lightfoot at [51]; Jones v Scully at [102]; Jones v Toben at [90]; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 (Bropho v HREOC) at [67].
66 However, in Bropho v HREOC, French J, at [67], noted that the words used in para (a) are "open textured" and that in ordinary parlance are sometimes used to describe a level of response to another person's conduct which is relatively minor. For example, relevant definitions in the Shorter Oxford English Dictionary are:
offend - to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).
insult - to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage…
humiliate - to make low or humble in position, condition or feeling, to humble… to subject to humiliation; to mortify.
intimidate - to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.
67 His Honour, at [68], considered that the "lower registers" of these definitions, particularly those of "offend" and "insult" seemed a long way removed from the mischief to which Pt IIA of the RD Act was directed. His Honour then undertook an examination of the legislative history of Pt IIA of the RD Act and its foundation on Art 4 of the CERD, to which Australia is a State party, and concluded, to similar effect as Kiefel J in Cairns Post, that s 18C was intended to deal with "serious incidents only".
68 In Cairns Post, at [16], Kiefel J, having examined the legislative history of Pt IIA of the RD Act, stated:
To 'offend, insult, humiliate or intimidate' are profound and serious effects, not to be likened to mere slights. Having said that, the court would of course be conscious of the need to consider the reaction from that person or group's perspective.
(Emphasis in original.)
69 This approach to the application of s 18C(1)(a), that it is intended, put generally, to deal with serious effects or consequences, has now been generally adopted and applied in a number of cases following Cairns Post and Bropho v HREOC, including Toben v Jones and Bolt.
70 I note, however, that in Jones v Toben, Branson J, having regard to Kiefel J's observation that s 18C was concerned with profound and serious effects not to be likened to mere slights, stated that she did not understand her Honour to have intended that a "gloss" be placed on the words in s 18C(1)(a). At [92], Branson J said:
Rather, I understand her Honour to have found in the context provided by s 18C of the RDA a legislative intent to render unlawful only acts which fall squarely within the terms of the section and not to reach to 'mere slights' in the sense of acts which, for example, are reasonably likely to cause technical, but not real, offence or insult (see also Jones v Scully per Hely J at [102]). It would be wrong, in my view, to place a gloss on the words used in s 18C of the RDA.
(Emphasis in original.)
71 I also note that in Bolt, while Bromberg J, at [268], expressly agreed with the view that the conduct caught by s 18C(1)(a) will be conduct which has "profound and serious effects, not to be likened to mere slights", his Honour, at [267], stated that the "public consequence…need not be significant…[i]t may be slight". His Honour suggested conduct will evince the relevant seriousness to satisfy para (a) where it involves "conduct which invades or harms the dignity of an individual or group". His Honour, in my respectful view, was not in saying this seeking to restate the test by which para (a) of s 18C(1) will be satisfied, but emphasising the point made at [268], namely, conduct which does not give "real" offence, as opposed to "mere slights", will not be found to satisfy para (a).
72 The AHRC, in its submissions, draws attention to what Branson J said in Jones v Toben. Senior counsel for the respondent also drew attention to her Honour's observations and submitted they could not stand with the remarks of Kiefel J and French J. For my part, accepting that subtleties are no doubt always important, I fail to see a lasting difference between them. If one takes the simple dictionary definitions of the words "offend" or "insult" given above, then, in my view, there is force in the view that, on the face of them, even relatively minor conduct might fit their meanings. But those and the other words employed in s 18C(1)(a) are not employed without qualification. Rather, the test for offensive behaviour is whether the act done "is reasonably likely, in all the circumstances" to offend etc. So an act that may, at first regard, appear to fall within the statutory proscription, may not be considered reasonably likely to do so when all the circumstances of the case are considered from the perspective of the reasonable victim.
73 What is important and what remains important in the assessment process, is the perspective of the reasonable victim, as indeed the qualification of Kiefel J in the passage from Cairns Post cited above at [68] emphasises. In that case, her Honour held that the act of publication of the two juxtaposed photographs would be likely to offend when considered from the perspective of an "Aboriginal mother, or one [who] cares for children, and who resides in the township of Coen" and so satisfied para (a) of s 18C(1) (although her Honour went on to find it did not satisfy para (b) of s 18C(1)).
74 Thus, an act done, something said, that might not offend one group of Australians because it will be considered by them as a mere slight only, may well be considered reasonably likely, in the circumstances, to offend another, minority group. Communications about a historically oppressed minority group are far more likely to cause relevant harm to that group, than communications which relate to a dominant majority.
75 It goes without saying that in regarding the perspective of the reasonable victim, while the subjective feelings of a particular person who complains about an act is not determinative of the question whether an act is reasonably likely to offend, etc, the Court is not properly equipped without relevant evidence to identify that perspective. The Court will therefore regard evidence led by the parties to that end, including from a complainant (such as the applicant in this proceeding) and then, having evaluated it, form a view about the perspective of the reasonable victim in relation to a particular act complained of.
76 Thus, in the Cairns Post case, the Court regarded the evidence of the applicant mother affected directly by the publication complained of, in McGlade v Lightfoot the Court regarded the evidence of a senior Nyungar women and a number of senior men and in Bolt, the Court regarded the views of a member or members of a group of "fair skinned Aboriginal persons".
77 Causation issue: If, having regard to para (a) of s 18C(1), the Court determines that the doing of an act is reasonably likely, in all of the circumstances, to offend, insult, humiliate or intimidate another person or group of people, then the further question must be asked, for the purposes of para (b) of s 18C(1), whether the act complained of was done "because of" the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.
78 As noted above, it is not necessary, having regard to the terms of s 18B of the RD Act, to show that the act complained of was done solely for one or other of those reasons. It is enough that the race of the applicant, for example, was one of the reasons for the doing of the act in question.
79 The use of the expression "because of" in s 18C(1)(b) raises questions concerning: how an applicant should go about proving the causal relationship between, for example, the act done and a person's race; whether the motive or intention of the respondent is relevant to that issue; and, if it is, whether it matters that motive or intention for the doing of the act is not directly proved.
80 In Cairns Post, Kiefel J concluded, at [28], that the question in the case before her was whether anything suggested race "as a factor" in the respondent's decision to publish the photograph. Her Honour noted that the context of the article in question was race, but merely to publish a photograph of a person involved in the story could not mean that considerations of race should be taken to have "actuated the publication" - that is to say, to have been "a factor". For her Honour the question was whether the publication of a photograph showing the applicant's apparent living standards, "was motivated by considerations of race".
81 In the result, Kiefel J was not satisfied that the act complained of had been done "because of" race. Her Honour considered, at [29], there was nothing in the newspaper article itself which provided an insight on the question. The reader might reasonably draw a comparison between the two photographs. The reader might assume the photograph to accurately portray the applicant's living circumstances. If there was anything to suggest that the respondent, in arriving at its decision to include the photograph, had acted upon an assumption that this was the case, or if it had chosen the photograph when others depicting the true circumstances were available, then her Honour considered the requirement of race as a cause may well have been satisfied. But the evidence did not suggest that. Her Honour also considered it was possible that the respondent's employees just did not turn their minds to what the photograph conveyed, in addition to the portraits of the parties. In that regard mere thoughtlessness would not qualify the conduct as unlawful under s 18C.
82 Thus, it can be seen that Kiefel J accepted that motivation or reason for the doing of an act is relevant to the causal issue, and that if there is evidence to support the finding, motivation or reason based on race may be inferred from the act itself - for example, from the terms of a publication.
83 In Toben v Jones, at [61], Kiefel J confirmed and elaborated on the view she had expressed in Cairns Post. At [63], her Honour said that the inquiry as to motive or reason for an act is not limited to the explanation a person might provide for their conduct or their genuine understanding as to what motivated them. Her Honour emphasised that: "The enquiry is as to the true reason or true ground for the action" (emphasis in original).
84 Her Honour, at [63], added that:
A person whose conduct is complained of might not always be a reliable witness as to their own actions. Their insight may be limited. Their true reasons may however be apparent from what they said or did. In some cases there may be other circumstances which throw light upon the reason for their actions.
85 Her Honour also noted, at [64], that the question posed by s 18C(1)(b) is separate and different from the one posed by s 18C(1)(a) and that more is required to answer the question as to the motivation of the person complained about and whether the race of the group was one reason.
86 At first instance, the primary judge had found that the relevant group was Australian Jewry and other members of the Australian Jewish Community within that group, particularly younger, vulnerable members, and that the impugned publication contained the following meanings or imputations:
(a) There is serious doubt that the Holocaust occurred.
(b) It is unlikely that there were homicidal gas chambers in Auschwitz.
(c) Jewish people who are offended by and challenge Holocaust denial are of limited intelligence.
(d) Some Jewish people for improper purposes, including financial gain, have exaggerated the number of Jews killed during World War II and the circumstances in which they were killed.
87 Justice Kiefel, at [65], considered that the conclusion reached by the primary judge, that the publication in question was plainly calculated to convey a message about Jewish people, stated the necessary causal connection between the act of publication that gave offence and the group of a particular race.
88 At [68], Kiefel J suggested it may be possible in some cases "to infer that a person must have intended offence to the racial or ethnic group in question by what is said or done". Such a conclusion, her Honour reasoned, might be reached by reference to the gravity of the offence likely to be caused and the apparent relevance of the statement in the context in which it appears.
89 However, her Honour also stated, at [69], that some statements which cause offence may be made without a racially based motive and because of a lack of sensitivity or even thought towards others. These will not provide the necessary motivation for s 18C(1)(b) purposes.
90 At [70], Kiefel J noted that in other cases it may be that, in pursuing an historical or other discourse, offence cannot be avoided, and the reason for the statement causing offence will not lie in considerations of the affected group's race. In such a case, however, her Honour considered one would "expect to discern the argument" being pursued.
91 Justice Kiefel, at [72], emphasised, however, that a contravention cannot be made out "by assumptions as to motive, as distinct from inferences which may properly be drawn".
92 Justice Kiefel finally considered whether the appellant was motivated by the Jewishness of the group was to be determined by the reference to the statements made by him. Her Honour went on, at [74], to point out that the proceedings did not involve any determination about the truth or falsity of the appellant's claim or the historical records which he challenged. But her Honour added that, if it were shown that he knew his challenges to be without foundation, and that they were therefore cynically made, the conclusion that he intended offence to the group could be readily drawn. Her Honour, however, could not see how this could be gleaned from the article which principally contained denials of what was said to be historical fact, even if those denials seemed incomprehensible. However, at [77], her Honour noted other aspects of the appellant's publication where it was stated that historical fact "clearly shows that Jews are not always victims in history, but also murderers". Her Honour considered this provided "more than a little insight" into what actuated the appellant to publish the article and supported the findings made by the primary judge.
93 In Toben v Jones, Allsop J, approached the causation issue a little differently from Kiefel J. His Honour observed at [151] that it is the "reason or reasons" for the act which must be discerned in order to decide whether an act was done "because of" race or another factor. His Honour added, however:
Whilst it may be accurate to say that this is not the same thing as enquiring as to the motive or purpose or intention behind such conduct … proof of those matters (motive, purpose or intention) may, in any given case, be relevant, perhaps even central, to the ascertainment of the reason or reasons for the act in question. It is unwise, however, to go too far in explication of the language of s 18B and par 18C(1)(b) lest words be substituted for those chosen by Parliament.
94 Justice Allsop, at [154], accepting that the questions raised by s 18C(1)(a) and (b) are different and separate inquiries, noted that nevertheless the material relevant to one may be relevant to the other. His Honour suggested that the ease with which one can draw the conclusion that, objectively, the publication satisfies s 18C(1)(a), may assist in drawing a conclusion as to why the person published the material. If something is obviously offensive, that may, in the circumstances, assist a conclusion that the act of publication was, for example, done because of race. Justice Allsop otherwise agreed with Carr J that the link provided for by s 18C(1)(b) was satisfied in that case.
95 Justice Carr, at [32], noted that the appellant had not placed any evidence before the Court about his intention or motive in publishing the relevant document. His Honour considered, nonetheless, that in examining its contents it was possible to draw inferences about his intention or motive in doing so. At [37], Carr J concluded that at least one reason why the document was published was because of the race or ethnic origin of Jewish Australians, whom the appellant conceded were reasonably likely to be offended by the publication.
96 Causation and media outlets: Particular causation questions may arise in circumstances where a person, such as a media outlet like the respondent, publishes the words of another. It might for example be a letter to the editor or, as in this case, a comment published on a website designed to facilitate contemporaneous public discussion or debate on a topic of genuine public interest. If the comment published is of itself objectively offensive, can the media outlet be said to have published the comment "because of" race. On the one hand, it might be said that the only thing that the media outlet has done is publish a comment, not of its own, but of someone else. In cases such as Jones v Scully, McGlade v Lightfoot, Toben v Jones, Cairns Post and Bolt, the respondent was the actual author of the comment complained of. In a case such as the present, the respondent has facilitated the publication of someone else's comment, although having first "moderated" or vetted it.
97 Accordingly, it may possibly be argued, along the lines of the finding in Cairns Post, that if there is nothing to show that the act of publishing what is objectively an offensive comment was motivated or actuated by race then there is no contravention. On the other hand, it might be argued that it would be a remarkable outcome if a media outlet were able to avoid a finding of contravention of the RD Act for publishing objectively offensive material, by simply citing its own subjective intention to facilitate public debate on a topic of genuine public interest.
98 In Wanjurri v Southern Cross Broadcasting (Aus) Ltd (2001) EOC 93-147, a decision of the Human Rights and Equal Opportunity Commission, delivered 7 May 2001, Radio 6PR, owned by the first respondent, broadcast a morning talkshow in Perth hosted by the second respondent, Mr Sattler. It included a segment called "Taxi talk" which involved Mr Sattler seeking the views of Perth taxi drivers on a variety of local issues. Mr Sattler was responsible for the content of "Taxi talk". He was able to control what was broadcast in two ways: he discussed what was going to be said with callers before going to air; and he had access to a "dump" button that he could use to prevent any comments from being broadcast.
99 A topical issue in early 1997 was the redevelopment on the site of the old Swan Brewery in Perth, on the banks of the Swan River. It was a site considered sacred by the Nyungah Aboriginal people and there was a considerable protest against the redevelopment. On 3 February 1997 the issue was discussed on "Taxi talk". Mr Sattler and two callers had a conversation during which things were said that led to a complaint lodged by five Nyungah Elders, alleging contravention of s 18C. Each alleged they had been vilified by the comments made and sought a public apology. The complaint was considered by the Human Rights and Equal Opportunity Commission inquiry commissioner.
100 The inquiry commissioner found that Mr Sattler caused the words to be communicated because he controlled the radio program. He had control over whether the words would be broadcast by his use of the seven second "dump" button. He was willing to permit the words to be broadcast because they were consistent with his views that the Brewery site was claimed as a sacred site for dishonest reasons. He endorsed the views of two of his callers by his failure to stop comments, by the sarcastic tone of his response and participation in the general laughter at the end of the segment. As a result, the first respondent was considered vicarious responsible for Mr Sattler's act by reason of s 18E of the RD Act.
101 In Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512; (2007) 164 FCR 475, the first respondent is an incorporated association (the Collective) and had the primary purpose of reforming builders' warranty insurance in the residential building industry. It conducted an internet website that included a discussion forum, which had the purpose of enabling members of the public to discuss and debate issues relating to the building industry, particularly in relation to the reform of warranty insurance in the residential building industry. The forum was available for access to all members of the public, both in Australia and overseas, who had an internet connection and an internet browser. All messages posted on the forum could be accessed and viewed without any restriction by any member of the public. However, only a registered user could post messages on the forum. A registered user was not required to disclose their true identity. Messages posted on the forum were put up automatically without intervention by the respondent and there was no monitoring of content at the time of their posting and no systematic monitoring thereafter, although postings were reviewed from time to time. It was said to be the policy of the respondent to delete objectionable material upon becoming aware of it. But it was also said not to be practicable to review and approve every posting before it was put up and a prior approval would detract from the "real-time" interactive nature of the forum.
102 In or about May 2005, the second respondent, a registered forum user, who was later identified by his real name, posted a message that read:
'Director Ron Silberberg', that's a good Irish Name. That in itself explains the monetary push in the HIA.
103 Then, on 24 January 2006, the second respondent posted another message headed: "Silberberg is out to break the little builders", that was followed by references to Mr Silberberg's qualifications and the fact that he had a Bachelor of Economics, which the author of the post then said, "translated, he is primarily interested in making lots of money and he has the background prior to education to unequivocally qualify by way of genes…".
104 Justice Gyles of this Court found that the publication of the messages were reasonably likely, in all the circumstances to offend, insult, humiliate or intimidate the applicant "or other Jewish people". His Honour found that each message contained the imputation that the applicant's Jewish ethnicity was, in itself, the cause for an excessive monetary focus within the Housing Industry Association Limited. He found the second message was reasonably likely, in all the circumstances, to offend and insult other persons of Jewish race or ethnicity. Justice Gyles further found, at [23], that it was abundantly clear that the applicant's race and ethnicity was a reason for the publication by the second respondent. His Honour also rejected the proposition that the inclusion of the offensive portions of the messages was either reasonable or in good faith and did not constitute fair comment.
105 The Collective, however, submitted that as owner and manager of the website, it merely provided a facility - the forum - by which the second respondent published the messages, and that by simply "allowing" publication it was not in breach of s 18C. It contended it did not know the existence of the messages in the forum until it was advised of them by a letter from the applicant's solicitor.
106 Justice Gyles, at [26], noted that there is little difficulty in applying s 18C to the author of a message posted on an internet site but the position of others involved in the chain between author and ultimate reader was not so clear. At [28] Gyles J noted that material posted on an internet website may be seen to be published by the author when uploaded or posted onto a web server by or on behalf of the author and also by a person when downloaded onto a computer accessed by a person who has used a web browser to pull the material from the web server in comprehensible form. He stated that for the purposes of the law of defamation, publication is regarded as a bilateral, complete at the time of downloading (see Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575).
107 Justice Gyles also noted authority to the effect that whenever a organisation publishes a posting to any subscriber who accesses a website there is a publication of that material to the reader: see Godfrey v Demon Internet Ltd [2001] QB 201 (Godfrey v Demon Internet); Kaplan v Go Daddy Group Inc [2005] NSWSC 636 (Kaplan). His Honour noted that in Kaplan, at [32]-[33], White J considered that there was a serious issue to be tried in such circumstances and that even if the publisher of material posted on its website was not the author of headings and comments, but maintains some control over the site and invited disparaging comments, it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet or the proprietors and secretary of the golf club in Byrne v Deane [1937] 1 KB 818 which allowed a defamatory statement to remain on a noticeboard.
108 Ultimately, Gyles J, at [34], considered it was clear enough that failure to remove known offensive material from a website would be caught by s 18C(1)(a), bearing in mind s 3(3) of the RD Act which provides that, for the purposes of the RD Act, refusing or failing to do an act shall be deemed to be the doing of an act and a reference to an act includes a reference to such a refusal or failure. His Honour found, at [34], that the Collective chose to conduct an open and anonymous forum available to the world without any system for scrutinising what was posted. He considered the party controlling a website of such a nature was in no different a position than publishers of other media. In his Honour's opinion, failure to remove offensive material within a reasonable time of it having been posted was an act caught by s 18C(1)(a).
109 Nonetheless, Gyles J considered, at [35], that there was substance to the Collective's argument that its relevant act, the failure to remove the offensive material, was not shown to have any relevant connection with the race or ethnic origin of the applicant, or indeed any other Jewish person, as required by s 18C(1)(b) of the RD Act. His Honour considered the failure of the unidentified administrator to remove the second message was the clearest case of failure to act, but he could not conclude the failure was attributable, even in part, to the race or ethnic origin of the applicant. His Honour considered failure to do so could just as easily be explained by inattention or lack of diligence. To draw a causal connection, Gyles J considered, would be "speculation rather than legitimate inference". In this, one might observe, his Honour came to a conclusion for reasons not dissimilar to those expressed by Kiefel J in the Cairns Post case, where her Honour considered that the respondent's motivation in selecting the published photographs was not shown to be because of race.
110 What may be drawn from these two cases is that, where the evidence is that a respondent actively solicits and moderates contributions from readers before publishing them, and reserves the right not to publish or to modify them, the potential for a finding of contravention of s 18C is real. While the apparent subjective intention or motivation of the respondent in doing an act in such circumstances will be relevant to the question of causation, it will not be definitive. If the respondent publishes a comment which itself offends s 18C, where the respondent has "moderated" the comment through a vetting process, for example, in order not to offend the general law (or to meet other media standards), then the offence will be given as much by the respondent in publishing the offensive comment as by the original author in writing it. In such circumstances, it will be no defence for the respondent media outlet to say, "But we only published what the reader sent us". Obviously, such circumstances are unlike those considered in Cairns Post, where no such moderating was undertaken, or Silberberg, where, at material times, the Collective did not know about a comment that had been posted on the website it maintained.
111 Section 18D exemptions: Finally, the exemptions provided for by s 18D of the RD Act must be noted:
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
(i) a fair and accurate report of any event or matter of public interest; or
(ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
112 Question of onus where exemption claimed: In Bropho v HREOC, French J, in referring to s 18D, observed that the immunities it creates were described in the Second Reading Speech and in the Explanatory Memorandum as "exemptions". However, his Honour suggested that it was important to avoid using a "simplistic taxonomy" to read down s 18D and that the proscription in s 18C itself creates an exception to the general principle that people should enjoy freedom of speech and expression. Justice French, emphasising the primary importance of free speech stated at [73], said that against that background s 18D may be seen as defining the limits of the proscription in s 18C and not as a free speech exception to it. Thus French J considered that s 18D should be construed broadly rather than narrowly, consistent with what the Minister said in the Second Reading Speech.
113 As to whether an applicant or a respondent carries the onus of showing the "exemption" does not exist or does it exist, French J, at [75], considered the question not to be settled, even though it was not contested in that case that the respondent carried the burden of proof in relation to the exemption claimed.
114 However, in Bropho v HREOC, neither Lee J nor Carr J suggested otherwise than that the respondent bore the onus of making out an exemption.
115 In Bolt, Bromberg J at [338]-[339] considered the respondent carried the burden of establishing the exemptions he claimed.
116 That a respondent claiming the benefit of a particular exemption has the onus of establishing it seems to me to be the conventional position and I proceed on that basis.
117 Reasonableness for the purposes of s 18D: The availability of the exemptions in paras (a), (b) and (c) of s 18D are qualified by the requirement that what was said or done was said or done "reasonably and in good faith". Those expressions have separate meanings although they plainly overlap and are sometimes referred to interchangeably and as if constituting a single composite requirement.
118 In Bropho v HREOC, French J, at [77], observed that if the burden of proof does rest upon the person invoking the benefit of s 18D, then that burden would plainly cover the proof of primary facts from which assessments of reasonableness, and good faith, are to be made.
119 As to the concept of "reasonableness" for the purposes of s 18D, French J, at [80], considered that:
An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question.
120 His Honour added that an act will be done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes "if it bears a rational relationship to those purposes".
121 Justice French also drew a possible distinction between the publication of a genuine scientific paper on the topic of genetic differences at a scientific conference where it may not be considered insulting or offensive to a group of people, and the presentation to a meeting convened by a racist organisation where what is put forward may not be a thing reasonably done. At [81], his Honour noted that 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". His Honour went on there to note that:
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'.
122 In Bropho v HREOC, Lee J, at [139] and [140], adopted the view that the construction of the words "reasonably and in good faith" imported a requirement for proportionality to be demonstrated in the conduct engaged in having regard to the degree of harm inflicted.
123 In Toben v Jones, Carr J at [43]-[45] rejected the submission that the exemption provided for by s 18D(b) applied because, taken as a whole, the document did not establish on the balance of probabilities that publication of it was done reasonably and in good faith for any genuine academic or any other genuine purpose in the public interest. Rather, it was "deliberately provocative and inflammatory". In this, his Honour referred to that passage mentioned above that described Jews as "also murderers". Consequently, at [46], Carr J considered the primary judge was correct in finding that there was no proof of good faith. Justice Allsop, at [159], entirely agreed with the reasons of Carr J that the contents of the document taken as a whole did not establish that the publication was done reasonably and in good faith. Justice Kiefel, at [78], too agreed with what Carr J said concerning the exemption provided for by s 18D and with the primary judge's finding that there was no proof of the appellant's good faith.
124 In Bolt, at [411], Bromberg J, in the course of discussing the application of s 18D, and by reference to the authorities just mentioned, amongst others, considered that the language utilised in a publication complained of should have a "legitimate purpose in the communication of a point of view and not simply be directed to disparaging those to whom offence has been caused". As a result, his Honour considered, at [414]:
The extent of mockery and inflammatory language utilised by Mr Bolt to disparage many of the individuals which the Newspaper Articles deal with, far exceeded that which was necessary to make Mr Bolt's point.
125 At [439], Bromberg J considered that questions relating to reasonableness and good faith were effected not only by an assessment of how a publication is rationally related to a matter of public interest said to be exempted, but also by reference to "the extent of harm done to the protective objectives of the RDA by the expressive conduct and whether a conscientious approach was taken which gave sufficient regard to those objectives including the minimising of the potential harm".
126 I agree with and adopt the approaches to the question of "reasonably" in s 18D indicated in the authorities I have just discussed.
127 "Good faith" for the purposes of s 18D: As to what "good faith" requires for the purposes of s 18D, in Bropho v HREOC at [93], French J considered that:
In a statutory setting a requirement to act in good faith, absent any contrary intention express or implied, will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes as attracting the requirement of good faith observance. That fidelity may extend beyond compliance with the black letter of the law absent the good faith requirement. In ordinary parlance it may require adherence to the 'spirit' of the law.
His Honour added that a good faith provision therefore offers a warning that "game playing" at the margins of a statutory proscription or obligation may attract a finding of liability.
128 At [95], French J suggested that the good faith exercise of the freedoms recognised by s 18D will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C:
It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict. It will not use those freedoms as a 'cover' to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin.
129 At [96], his Honour considered that good faith may be tested both subjectively and objectively. Thus want of objective good faith, by seeking to further an ulterior purpose or racial vilification, may be sufficient to forfeit the protection of s 18D. Thus, good faith requires more than subjective honesty and legitimate purposes.
130 At [101], his Honour said that generally speaking the absence of subjective good faith should be sufficient to establish want of good faith for most purposes. At [102], his Honour stated that a person who exercises the right to speak freely, carelessly, disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt, may be found not to have been acting in good faith.
131 Justice Lee, at [141], added that the requirement that an act to which s 18D applies must be shown to have been done in good faith, as well as reasonably, and will not be met by the publisher asserting that there is an absence of evidence that it acted in bad faith, fraudulently or with malice. His Honour, like French J, considered that whether the publication was an act done in good faith must be assessed, in part, by having regard to the subjective purpose of the publisher, but overall it is a objective determination as to whether the act may be said to have been done in good faith having regard to the degree of harm likely to be caused and to the extent to which the act may be destructive of the object of the RD Act.
132 In Bolt, Bromberg J, at [347], adopted a similar approach to French and Lee JJ in Bropho v HREOC.
133 I consider the approaches indicated by these authorities to be appropriate, particularly the principle that good faith has both a subjective and objective element.