Corbett v Burns

NCAT Appeal Panel|2014-04-30

Introduction 17The Appellant relied on three grounds of appeal. Grounds 1 and 2 relate to the passage from the Tribunal's decision dealing with the so-called exceptions to homosexual vilification. (See [15] above.) Ground 1 was that the first sentence of that paragraph constituted an error of law and ground 2 was that the second sentence constituted an error of law. The third ground of appeal was that the Tribunal erred when it failed to turn its mind to the High Court authorities on the implied right to freedom of political communication. 18The Respondent submitted that these grounds do not identify a 'question of law' as required by s 113(2) of the Administrative Decisions Tribunal Act, s 113(2). While that criticism was well founded, we accept that the Respondent's re-characterisation of those grounds does identify such a question, namely: What is the proper construction of s 49ZT? In particular should s 49ZT(1) and (2) be considered together or is s 49ZT(2) properly characterised as a defence or exception to s 49ZT(1)? 19The Respondent also made the point that the appeal was futile because there was no appeal against the orders themselves. We accept the Appellant's submission that it can be implied that the appeal is against the Tribunal's orders and that, if the appeal is upheld, the Appeal Panel would set aside those orders.

Consideration 25Section 49ZT(2) has variously been described as a 'defence', an 'exemption' and an 'exception.' Our view is that the Tribunal did not err in treating s 49ZT(2) as an exception to s 49ZT(1). The Tribunal adopted the correct approach by first considering whether a public act comes within sub-section (1) and then going on to consider whether any of the exceptions in sub-section (2) applied. Section 49ZT(1) is the primary provision. No further inquiry needs to be made unless the public act meets the test in that provision. 26Our conclusion is supported by the wording in s 49TZ(2) - "Nothing in this section renders unlawful . ." and each of the paragraphs (a), (b) and (c). There is no significance in the fact that the words in s 49ZT(2) are different from those used in some other provisions of the Anti-Discrimination Act. The meaning is the same. Paragraph (a) excepts a 'fair report' of a public act that is otherwise unlawful. Paragraph (b) imports a defence of absolute privilege and paragraph (c) excuses a public act done reasonably and in good faith for particular purposes. 27As Allsop P pointed out in Sunol v Collier (No 2), when considering whether s 49ZT breaches the implied freedom of political communication it should be read as a coherent provision. But his Honour went on to say, at [71], that "[T]he section operates in a manner that for an act that falls within subsection (1) not to be unlawful it must fall within subsection (2)." 28In Jones v Trad [2013] NSWCA 389 when considering the identical provision in relation to racial vilification, Ward JA referred to Allsop P's characterisation of vilification provisions. Her Honour noted at [105] that, ". . . while referred to commonly as defences, the exceptions contained in the sub-paragraphs of 20C(2) strictly operate as exceptions to the prohibition in s 20C(1) . . " Ward JA's finding that the Tribunal had erred by giving no consideration to the position of the Second Respondent, Harbour Radio Pty Ltd, in relation to the application of s 20C(2)(a) or (c), does not assist the Appellant in this case. Harbour Radio raised the defence before the Tribunal at first instance whereas Ms Corbett did not. 29It follows that if the Appellant wished to avoid liability, the onus was on her in the proceedings at first instance, to prove that her conduct fell within one of the exceptions in s 49ZT(2): s 104. 30Alternatively, the Appellant submitted that even if the three matters listed in s 49ZT(2) are exceptions, the Tribunal should have considered whether any of those matters applies to the circumstances of this case. As the Tribunal impliedly acknowledged at [41] of the decision, (re-produced at [15] above), there is still a chance that an exception can be made out in the absence of any evidence from the Respondent. The Appellant submitted that the Tribunal should have taken into account the facts as known and determined whether any of the exceptions applied. 31The Appellant did not suggest that the 'fair report' exception or the exception relating to absolute privilege apply to her situation. Rather, it was suggested that her conduct is lawful because of s 49ZT(2)(c): Nothing in this section renders unlawful: 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. 32For this exception to excuse the Appellant's conduct, the Tribunal would have to have been satisfied that the public acts were done reasonably and in good faith for a purpose which was in the public interest. In Sunol v Collier Bathurst CJ noted at [41] that: 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. For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose. 33According to the Appellant, the Tribunal erred by not considering the reasonableness or bona fides of the Appellant's conduct. 34Any failure to consider the reasonableness of Ms Corbett's comments is not determinative because both reasonableness and good faith are required before the exception applies. For the public acts to have been done "in good faith" they must have been engaged in bona fide and for the protected purpose: Sunol v Collier (No 2) per Bathurst CJ at [41]; Jones v Trad per Ward JA at [110]. 35There is some disagreement as to whether "good faith" should be assessed both subjectively and objectively or just subjectively. French J, as he then was, preferred the first approach in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105 at [101]. Bathurst CJ preferred the second approach in Sunol v Collier at [41]. His Honour adopted the view of the Victorian Court of Appeal in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc (2006) 15 VR 207 at [92] where Nettle JA stated that: . . . the requirement that conduct has been engaged in bona fide for a genuine religious purpose within the meaning of s 11 will be established if it is shown that the defendant engaged in the conduct with the subjectively honest belief that it was necessary or desirable to achieve the genuine religious purpose. 36On either interpretation, subjective good faith is required. 37Even if Ms Corbett was engaged in a public interest purpose at the time she made the comments, she bore the onus of proving that she had the subjectively honest belief that her otherwise unlawful public acts of vilification were necessary or desirable to achieve that purpose. The best evidence of a person's state of mind is that person's testimony. In rare cases, there may be other, secondary evidence which satisfies the Tribunal that the person had the requisite belief. 38The Appellant's representative submitted that the Tribunal could have come to that view on the basis of the following "documented and uncontested facts": (1)that Ms Corbett was an endorsed candidate running an active election campaign; (2)that the public act was directed to the local newspaper which services the electorate of Wannon in Western Victoria; (3)that Ms Corbett was responding to 'on-the-spot' enquiries from a journalist about her political views; (4)that the public acts were in the context of an interview about federal anti-discrimination laws, (5)the words, "You should be able to discriminate" were merely reflecting current employment exceptions for "churches and religious organisations;" (6)other political issues were canvassed in the interview; (7)Ms Corbett later clarified that by grouping homosexuals and paedophiles she was saying that they were both 'moral issues' but the journalist who originally interviewed her did not clarify the answer to his question. 39Even if we accept that these matters were all "facts", known to the Tribunal, they are not evidence of Ms Corbett's subjective state of mind at the time. 40It follows that the Tribunal did not err by finding that there was 'no basis for believing' that the ground of exemption created by s 49ZT(2) might be available or that Ms Corbett had 'very little chance' of satisfying the requirement of good faith' if she did not give evidence.

Authorities on implied right to freedom of political communication 41The third ground of appeal was that the Tribunal erred when it failed to turn its mind to the High Court authorities on the implied right to freedom of political communication. The Appellant accepted that since the decision in Sunol v Collier, there can be no doubt that s 49ZT is valid. But the Appellant submitted that it must still be borne in mind that one reason for its validity is the protection given by s 49ZT(2). It was submitted that the Tribunal erred by not referring to the decisions in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520; Coleman v Power [2004] 39; (2004) 220 CLR 1 on the implied right. 42The Appellant also highlighted the following passages at [64] and [65] of Allsop P's decision in Sunol v Collier: The recognition of the implied Constitutional freedom does mean, however, that the words "reasonably", "in good faith" and "other purposes in the public interest" should take into account the important Constitutional freedom to discuss matters of wide public interest that may be related to political and governmental matters. One of those subject matters for discussion in our society, potentially affecting the workings of the Commonwealth Parliament, is human sexuality and the rights of people in Australia connected therewith. Topics such as marriage, adoption and superannuation readily come to mind. Some of the debate that surrounds these issues contains expressed or unexpressed assumptions or predicates about the rightness or wrongness of certain sexual orientations. That these assumptions or predicates may have been settled for many, if not most, in our community some years ago, cannot deny the existence of social and political debate about these issues. 43The Tribunal did not err by failing to refer expressly to the implied Constitutional freedom to discuss matters of political interest or to the cases on that subject. Allsop P recognised in Sunol v Collier at [72] that there could be public acts that are communications of a political or government character that will not be reasonably expressed or in good faith. If these fall within s 49ZT(1) and not within s 49ZT(2) "a distinct type of communication capable of falling within the Constitutional protection . . will be made unlawful." The Tribunal approached its task correctly by considering firstly whether the conduct came within the terms of s 49ZT(1) and then considering whether s 49ZT(2) applied. In circumstances where there was no basis for finding that the exemptions might be available to the Respondent, the Tribunal made no error of law.

Principles 44Despite finding no error of law, the Appeal Panel may consider whether leave should be granted for the appeal to extend to the merits of the Tribunal's decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456. 45The Administrative Decisions Tribunal Act does not contain any guidance as to the factors that should be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in relation to appeals from decisions about guardianship and financial management. In K v K [2000] NSWSC 1052 Young J observed at [15] that: . . . broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 46Leave should be granted where there otherwise would be a substantial injustice to the appellant: Hinton v Commissioner for Fair Trading [2006] NSWADT 257 at [85]. Whether there is such an injustice must be assessed objectively by reference to the standards of the legal system: Obradovic v Commissioner for Fair Trading, Office of Fair Trading (No 2) [2006] NSWADTAP 45 (15 August 2006) at [12] to [13]. Mere disagreement with the decision is insufficient. 47The requirement for leave to be granted is based, in part, on the long standing principle that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances: D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17-18.

Grounds for extending to merits 48The Appellant's grounds for extending the appeal to the merits of the Tribunal's decision were that: (1)the Appellant should be given an opportunity to argue her case and tender the evidence contained in the statement of 11 November 2013; and (2)Ms Corbett would suffer a substantial injustice if leave is not granted; (3)the Tribunal made an incorrect factual finding; and (4)the public acts were not communicated to an audience in New South Wales.

No previous contest on the merits and evidence now available 49The Appellant submitted that the complaint has not been heard on the merits because she did not attend the hearing before the Tribunal and further evidence is now available. Ms Corbett sought leave to tender a statement dated 11 November 2013 which, it is said, merely elucidates on matters that the Tribunal would have known. That statement contains her reasons for non-attendance including that she lives in Victoria, receives the age pension and does not understand how NSW legislation could apply to her. Ms Corbett also provides details of what she says she remembers about the interview with journalists on 22 January 2013 and the comments she made later to other journalists. There was no suggestion that this evidence was not available at the time of the hearing. 50Contrary to the Appellant's submission, the merits of the complaint have been considered and findings made. Those findings, in summary, were that: (1)Mr Burns had standing to bring a vilification complaint (at [25]) (2)Ms Corbett had been given notice of the proceedings and of the date, time and place of hearing and it was not a breach of procedural fairness to hear the complaint in her absence (at [14]); (3)Ms Corbett committed public acts (at [27]) including speaking to a journalist from the Hamilton Spectator, which published her comments in the newspaper and on its Facebook page; (4)The public acts involved communication to the public in NSW (at [31]) and (5)applying the principles set out by Bathurst CJ in Sunol v Collier, the public acts incited hatred towards or serious contempt for homosexual people on the ground of their homosexuality (at [35] to [37] and [44] to [45]. 51We are not satisfied that the Tribunal made an error of law in making these findings or that the way it went about its fact finding process was unfair or unorthodox. 52In Metwally (No 2) v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28; the High Court noted the general principle that there is a public interest in the finality of litigation. The Court nevertheless acknowledged, at 70, that there were exceptions to this principle including where "an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard." Of course, the grounds on which leave may be granted in the circumstances of this case are broader, but the general principle that litigation should be final should be borne in mind. 53In Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279, the High Court allowed an Appellant to re-litigate a statute of limitations point even though it had not been argued at first instance. But that case can be distinguished from Ms Corbett's situation because although, like Ms Corbett, Banque Commerciale SA did not appear at the hearing, it did file a defence pleading the statute of limitations point. As well, the outcome of the defence did not turn on the evidence or submissions made at first instance. It did in this case. Ms Corbett was given notice of the hearing and an opportunity to attend and plead her case.

Substantial injustice 54The Appellant submitted that she would suffer substantial injustice if leave is not extended to the merits because the Tribunal has: . . .ordered her to publicly apologise for statements that she still considers religiously and morally correct. To attempt to coerce a person publicly to act in such a way, on an issue which is a matter of conscience, without exhausting the avenues for receiving her explanation would be a 'substantial injustice'. 55In all the circumstances, we do not regard having to comply with an order of the Tribunal to apologise as amounting to a 'substantial injustice'. There is no broad question of administration or policy which needs to be resolved. There was no suggestion of fraud or mistake. Ms Corbett was given notice of the hearing and chose not to attend. Even taking into account her reasons for not participating, as set out in her statement, it is not unjust that she must now comply with the orders the Tribunal made.

Incorrect finding of fact? 56The Tribunal found that the public acts incited hatred towards or serious contempt for homosexual people on the ground of their homosexuality. At [37] the Tribunal stated that: The main consideration underlying these conclusions is that, as Mr Burns pointed out, Ms Corbett encouraged people to regard homosexuals as 'in the same category as' paedophiles. 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'. Ms Corbett 's claims that these two groups are 'in the same category' and that in due course the latter group will 'be recognised in the same way as' the former group and will 'get rights' are pronouncements of this kind. They do not merely offend or insult: they 'incite' these negative reactions. 57According to the Appellant, the Tribunal was wrong to find that the comments conveyed any connection between paedophilia and homosexuality. 58Ms Corbett does not deny saying the words re-produced at [9] above. In our view, on the basis of that evidence, the finding that those words vilified homosexuals was open to the Tribunal. It did not make that finding in an unorthodox or an unfair manner.

Was the audience in NSW? 59At [28] to [30] of the decision, the Tribunal held that the Appellant had committed three public acts: the statements to the journalist from the Hamilton Spectator, the statements to the State Political Correspondent for the Age and the statements to one of the Australian's political editors. Those statements had been re-published in various print and electronic media. The Tribunal then concluded at [31] that: If the only instance of communication of Ms Corbett 's statements to the public had been in the article appearing on 22 January 2013 in the Hamilton Spectator, the Tribunal would not, we believe, have had jurisdiction to deal with this matter. This is because the relevant 'public act' would have been committed wholly in Victoria. But all of the instances of republication that we have outlined involved communication to the public in New South Wales. 60The Appellant submitted that the real audience in this case were electors living in the Federal seat of Wannon in Victoria. The Tribunal should not have found that public acts performed wholly in Victoria breached the New South Wales Anti-Discrimination Act. The Appellant also submitted that she should not be held accountable for decisions to re-publish her words because those decisions were not in her control. 61The Appellant did not characterise these grounds as questions of law. Rather, they were put forward as reasons for extending the appeal to the merits of the Tribunal's decision. 62Generally, a party is bound by the manner in which the case was conducted at first instance: Joice v Permanent Trustee Company Limited & Anor [2004] NSWCA 262 at [106]. The fact that Ms Corbett did not attend the hearing (even taking into account the reasons for non-attendance) does not justify allowing her to run her case for the first time on appeal. 63In Dow Jones and Co Inc v Gutnick [2002] HCA 56, 210 CLR 575, a defamation case, one issue was whether material posted on a website in the United States was published in Victoria. The High Court (Gleeson CJ, McHugh, Gummow & Hayne JJ) held at [44] that: In the case of material on the World Wide Web, it is not available in comprehensible form until downloaded on to the computer of a person who has used a web browser to pull the material from the web server. It is where that person downloads the material that the damage to reputation may be done. Ordinarily then, that will be the place where the tort of defamation is committed. Even if the Appellant is entitled to raise a matter for the first time on appeal, the Tribunal's finding that the public acts involved communications to an audience in NSW, was open to it.

Conclusion 64The appeal is dismissed because the Tribunal correctly construed the homosexual vilification provisions of the Anti-Discrimination Act and was not required to refer to the implied right under the Constitution to freedom of political communication. There is no justification for extending the appeal to the merits of the Tribunal's decision because, among other things, Ms Corbett had an opportunity to put her case at first instance and chose not to do so.

Orders (1)The application for the appeal to extend to the merits of the Tribunal's decision is refused. (2)The appeal is dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 14 August 2014

Administrative Decisions Tribunal Act 1997(NSW)

Tribunal's decision 8The comments by Ms Corbett which were the subject of Mr Burns' complaint were made in January 2013. Those comments were first reported in the Hamilton Spectator, a newspaper published in Victoria, on 22 January 2013. The Sydney Morning Herald, the Australian and the Australian Broadcasting Corporation (ABC) reported the story online over the next couple of days. Further comments appeared on the Hamilton Spectator's Facebook page. 9The Tribunal set out the details of the article in the Hamilton Spectator at [18] and [19] of its decision: 18. This article was written by Rex Martinich. Near the commencement, it referred to Ms Corbett's recent endorsement as the candidate of Katter's Australian Party for the Federal seat of Wannon. It then reported on statements that she had made about a number of political issues, including what the article described as 'the Labor Government's controversial Anti-Discrimination Bill'. It indicated that Ms Corbett had expressed opposition to certain aspects of this Bill, though not to all of it. 19. Immediately following a quoted statement by Ms Corbett that people 'should be able to discriminate', the following passage then appeared in the article:- "I don't want gays, lesbians or paedophiles to be working in my kindergarten. "If you don't like it, go to another kindergarten." When asked if she considered homosexuals to be in the same category as paedophiles, Ms Corbett replied "yes". "Paedophiles will be next in line to be recognised in the same way as gays and lesbians and get rights," she said. 10At [20] to [21] the Tribunal identified other media outlets which had also reported on Ms Corbett's comments: 20. Further material included in the President's Report included printouts of articles published on the website of the Sydney Morning Herald on 23 January 2013, on the website of the Australian on 24 January 2013 and on the ABC's website on 24 January 2013. In each of these articles, the substance of Ms Corbett's statements that we have just quoted from the article in the Hamilton Spectator was repeated, except that the article on the Australian's website (appearing under the byline of its Victorian Political Editor) did not report her claim that homosexuals were 'in the same category as paedophiles'. This newspaper did however state that she 'refused to back away from' her 'inflammatory comments' and that she had told its reporter both that homosexuality was 'against the word of God' and that she was pleased to have 'got the front page' of the Hamilton Spectator. In addition, the article on the Sydney Morning Herald's website (appearing under the byline of the State Political Correspondent for the Age) reported a statement by her to the effect that 'gays and lesbians and paedophiles were "moral issues"'. [21] The eight pages printed out on 27 May 2013 from the Hamilton Spectator's page on Facebook included a number of comments on Ms Corbett's statements posted by members of the public. Most of these comments expressed agreement with her views. Also included in this material were the full text of the article published by the Hamilton Spectator on 22 January 2013 and an editorial headed 'Public Opinion - The Winner' discussing the issues raised by the newspaper's decision to publish this article. 11The Tribunal found that any person who makes statements to a journalist, and gives express or implied permission for those statements to be published, commits a public act within the meaning of that term in s 49ZS: [26] to [27]. The Tribunal concluded that Ms Corbett had caused her statements to be communicated to the public not only through being quoted in the article but also through the republication of her words on the newspaper's Facebook page and on the websites of the Sydney Morning Herald, the Australian and the ABC. That conclusion was based on the Tribunal's finding at [28] that Ms Corbett would have appreciated that the republications were very likely to occur. 12The Tribunal decided that further comments Ms Corbett made to the State Political Correspondent for the Age and one of the Australian's political editors were also public acts. While the publication in the Hamilton Spectator was a 'public act' committed wholly in Victoria, the other instances of republication were all communicated to members of the public in New South Wales. 13Applying the principles set out by Bathurst CJ in Sunol v Collier (No 2) [2013] NSWCA 196, the Tribunal concluded that, with two exceptions, the statements set out at [9] above ([19] of the Tribunal's decision) met the test of "incitement". Those statements, and particularly Ms Corbett's agreement with the proposition that homosexuals are in the same category as 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'." 14The two exceptions to this conclusion were that two additional statements, which did not appear in the Hamilton Spectator article but which were published on the websites of the Sydney Morning Herald and the Australian, respectively, do not fall within s 49ZT(1). Those statements were that "gays and lesbians and paedophiles were 'moral issues' and that homosexuality was 'against the word of God'." 15In relation to the applicability of the provisions in s 49ZT(2), the Tribunal made the following comment at [41]: There is no basis for believing that the defence, or ground of exemption, created by section 49ZT(2) might be available to the Respondent in these proceedings. One reason is that if the respondent to a complaint of unlawful homosexual vilification does not appear and give evidence, he or she has very little chance of satisfying the requirement of good faith contained in this provision. 16The Tribunal ordered that Ms Corbett refrain from conduct which contravenes s 49ZT, publish an apology in the Sydney Morning Herald and write a personal letter of apology to Mr Burns.

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