Human Rights - Discrimination - Grounds of discrimination - Homosexuality - Tribunal member found that dissemination of pamphlet was a breach of anti-discrimination legislation - Pamphlet was not distributed in public interest - No error in Tribunal member's reasoning.

Toben v Jones [2003] FCAFC 137, applied.

Constitutional Law - Operation and effect of the Commonwealth Constitution - Restrictions on Commonwealth and State legislation - Rights and freedoms implied in Commonwealth Constitution - Freedom of political communication - Particular cases - Anti-Discrimination legislation - Whether the Tasmanian anti-discrimination legislation infringes the implied freedom of political communication - Provisions do not infringe the implied freedom.

Anti-Discrimination Act 1998 (Tas), ss 17, 19, 20, 55.

Brown v Tasmania [2017] HCA 43; Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; McCloy v New South Wales [2015] HCA 34, 89 ALJR 857, applied.

Catch the Fire Ministries Inc v Islamic Counciil of Victoria Inc [2006] VSCA 284; Sunol v Collier (No 2) [2012] NSWCA 44; Owen v Menzies; Bruce v Owen; Menzies v Owen [2012] QCA 170; Jones v Scully [2002] FCA 1080, (2002) 120 FCR 243; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, followed.

Chief of Defence Force v Gaynor [2017] FCAFC 41; Monis v The Queen [2013] HCA 4, 249 CLR 92; Eatock v Bolt [2011] VCA 1103[2011] FCA 1103; , 197 FCR 261; Coleman v Power [2004] HCA 39, 220 CLR 1, cited.

Intervenor M E O'Farrell SC, P Turner and M Duvnjak

Judgment Number: [2018] TASSC 48

JAMES WILLIAM DURSTON v ANTI-DISCRIMINATION TRIBUNAL

and THE HONOURABLE WILL HODGMAN ATTORNEY-GENERAL

1. In 2013, the appellant, as part of a group known as "ThreeWiseMonkeys", caused the dissemination of a pamphlet throughout the Sandy Bay area of Hobart. The pamphlet was entitled "HOMOSEXUALITY Stats". It commenced with the sentence:

"It is warned that homosexuality should not be tolerated, and therefore this will benefit both the individual and society."

It then made a number of factual assertions, including in the nature of statistics, concerning the life span and causes of death of "homosexuals" and "lesbians". In part, the assertions involved a comparison between persons said to fall into those categories and members of society generally.

1. The dissemination of the pamphlet was the subject of a complaint to the Anti-Discrimination Commissioner, pursuant to the Anti-Discrimination Act 1998 (the Act). At the conclusion of the investigation, the Commissioner referred the matter to the Anti-Discrimination Tribunal (the Tribunal) for inquiry, pursuant to s 78 of the Act. During the course of a directions conference in relation to that inquiry held pursuant to s 80 of the Act, the appellant conceded that he had been responsible for the dissemination of the pamphlet.
2. The Tribunal, constituted by Tribunal member Professor M Otlowski, conducted an inquiry on 8 May 2015. During the course of the inquiry, the man who had made the complaint, an openly gay man, made "submissions" to the Tribunal. These included the provision of information to the Tribunal concerning the emotional impact upon him and others of the dissemination of the pamphlet throughout the community. The appellant appeared before the Tribunal at the inquiry, but when invited to speak, did not make any submissions or adduce documents, except that he claimed he had not broken the law and was exercising his right to freedom of religion under s 116 of the Australian Constitution. The respondent also asserted that the Tribunal had no authority in respect of the complaint.
3. On 30 June 2015, the learned Tribunal member handed down a written decision: Williams v 'Threewisemonkeys' and Durston [2015] TASADT 4. She found the complaint substantiated, in that the dissemination of the pamphlet constituted a breach of various provisions of the Act. She made orders requiring the appellant to make a public apology and retraction in the Mercury newspaper, and made a further order that the appellant "must not repeat the discriminatory conduct".
4. The appellant has now appealed from the Tribunal's findings and orders. The appeal is authorised by the Act, s 100, which provides that a person may appeal to this Court "on a question of law or fact" against an order made under a relevant provision of the Act. Section 100(4) provides that an appeal "is to be instituted, heard and determined in accordance with the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court".
5. Having regard to s 6 of the Supreme Court Civil Procedure Act 1932 (the SCCP Act) and the relevant Rules of Court, it is clear that an appeal from the decision of the Tribunal is by way of rehearing. An appeal of that nature is one "in which the appeal court re-determines the issues raised upon the hearing of the appeal as at the date of the rehearing, relying on the material that was before the court or tribunal appealed from": Minister for Immigration and Border Protection v SZVFW [2018] HCA 30 per Gageler J at [30]-[31]; Fernando v Medical Complaints Tribunal (No 2) [2003] TASSC 139, 12 Tas R 337; Motor Accidents Insurance Board v Wright [2016] TASSC 13. The Court should only exercise its appellate power if satisfied that an error on the part of the Tribunal has been established: Minister for Immigration and Border Protection v SZVFW; Motor Accidents Insurance Board v Wright at [13], and cases referred to therein.
6. The Learned Tribunal member found that the dissemination of the pamphlet by the appellant had contravened the Act in the following respects:

"(1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (f), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed."

The Tribunal member was satisfied that the distribution of the pamphlet offended, humiliated, insulted or ridiculed the complainant and others on the basis of an attribute, in particular, sexual orientation. "Sexual orientation" is defined by s 3 of the Act to include "homosexuality". She was satisfied that in the circumstances "a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, insulted or ridiculed" by the distribution of the pamphlet.

"A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of -

(a) the race of the person or any member of the group; or

(b) any disability of the person or any member of the group; or

(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or

(d) the religious belief or affiliation or religious activity of the person or any member of the group."

The learned Tribunal member was satisfied that the distribution of the pamphlet satisfied the requirement of a public act, and that the content of the pamphlet was likely to incite hatred towards, severe contempt for or severe ridicule of a person or group of persons on the ground that they were homosexual. The member noted in particular that the pamphlet contained the following sentence: "Scripture rejects homosexuality as utterly abominable."

"(1) A person must not publish or display, or cause or permit to be published or displayed, any sign, notice or advertising matter that promotes, expresses or depicts discrimination or prohibited conduct."

1. The Tribunal member found that it was not necessary to consider whether the pamphlet promoted, expressed or depicted discrimination, and having already found a contravention of s 17, the Tribunal member was satisfied that it followed that s 20(1) had also been contravened in respect of the promotion of prohibited conduct.
2. Although the appellant had not asserted any factual matter that would have supported a defence under s 55 of the Act, the Tribunal member considered its applicability. That section provides that ss 17(1) and 19 do not apply if the person's conduct is a public act done in good faith for any purpose in the public interest. The Tribunal member noted that the appellant had not sought to provide any information or submission that would bring his conduct within that provision. This was a relevant matter because s 101 provides that a person who relies on an exception such as that contained in s 55, as a defence, is to prove that exception on the balance of probabilities. In any event, the Tribunal member concluded that she was not satisfied that the act was done for a purpose in the public interest, on the basis of an objective assessment.
3. Finally, the appellant claimed that his actions were justified having regard to the freedom of religion provided for under s 116 of the Australian Constitution. The Tribunal member considered the provision and rejected that argument. I will consider this aspect in more detail later in these reasons.

"1) Homosexuality has no lawful validity or lawful standing in the State of Tasmania, nor of the Commonwealth of Australia."

1. The respondent complains that this is not a proper ground of appeal. There is merit in this submission. However, the appellant does not have legal representation. Whilst many of his arguments have a philosophical rather than a legal basis, it was possible with the use of his written and oral submissions to identify the argument. In the circumstances, there is, in my view, no prejudice in assessing this argument.
2. In any event, the argument underpinning this ground can be dealt with briefly. The reasoning seems to be as follows. The pamphlet was referring to the effects of sexual practices involved in a homosexual lifestyle. Accordingly, it was not dealing with or targeting "sexual orientation of homosexuals". Hence, it does not fall within the ambit of prohibited conduct on the basis of an attribute, in particular sexual orientation.
3. There is no merit in this argument. As noted above, sexual orientation is specifically defined to include homosexuality. The focus and subject-matter of the pamphlet is concerned with homosexuality. A person who is offended, humiliated, intimidated, insulted or ridiculed by the contents of the pamphlet will be so on the basis of his or her sexual orientation. Further, insofar as the contents of the pamphlet incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons, it will be because of the sexual orientation of the person or group of persons in the sense of their homosexuality.
4. There is no merit in this ground. It must fail.

"2) The Respondent [sic] exercised his lawful right as a resident of Tasmania and member of the Commonwealth of Australia to participate in the democratic process as established and upheld by the High Court of Australia ruling on the freedom of communication on governmental or political matters as implied in the Constitution."

1. This ground raises a constitutional argument, but not one that was raised before the learned Tribunal member. At the inquiry, the appellant relied on his asserted right to religious freedom having regard to s 116 of the Australian Constitution. However, in submissions before me, the appellant relied on that provision, as well as the implied freedom to discuss political and governmental affairs arising by implication from a number of provisions of the Constitution, and identified by the High Court in cases such as Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Coleman v Power [2004] HCA 39, 220 CLR 1 and McCloy v New South Wales [2015] HCA 34, 89 ALJR 857, and most recently Brown v Tasmania [2017] HCA 43.
2. In relation to the argument under s 116, the learned Tribunal member dealt with this succinctly at [46] and [47] of her written decision:

"This provision has been interpreted narrowly by the High Court of Australia. In The Attorney General for the State of Victoria (at the relation of Black) and Ors v The Commonwealth of Australia [1981] HCA 2; (1981) 146 CLR 559 per Stephen J at 610 it was stated that:

'It is not, in form a constitutional guarantee of the rights of individuals ... instead takes the form of express restriction upon the exercise of Commonwealth legislative power.'

Notably, there is no similar constraint imposed upon the legislatures of the States: The Attorney General for the State of Victoria (at the relation of Black) and Ors v The Commonwealth of Australia [1981] HCA 2; (1981) 146 CLR 559 at 605; Grace Bible Church v Redman (1984) 36 SASR 376."

1. These observations are, with respect, patently correct. The appellant did not argue otherwise. However, despite seeming to accept the accuracy of these observations, he persisted with an argument that because Parliament has not legislated to "prohibit Christianity or beliefs based on the Bible", he is free to express Christian values. This is circular reasoning which attempts to rely upon a "right" arising from s 116. For the reasons expressed in the cases referred to by the learned Tribunal member, s 116 does not create or give effect to such a right, and hence this argument falls away.
2. Even if the provision did create a personal right protecting religious freedom, there was no evidence placed before the learned Tribunal member that would establish the factual basis of the application of such a right. The appellant simply relied on s 116 without providing any evidence to establish that the distribution of the pamphlet was somehow related to his asserted "right to religious freedom". There is no merit in this argument and it will not support this ground of appeal.

1. Although this argument was not raised in the inquiry before the Tribunal, the question of the validity of the Act is a matter of public interest. Further, as the appeal involved a matter arising under the Australian Constitution, I adjourned the proceedings while notice was given to the Attorneys-General of relevant jurisdictions in accordance with s 78B of the Judiciary Act 1903 (Cth). The only response was from the Attorney-General of Tasmania. The Attorney was represented by the Solicitor-General, Mr O'Farrell SC, who made detailed and helpful submissions about this question. It is clearly appropriate, in all of the circumstances, that the issue raised by this ground of appeal be considered and resolved by me.
2. Similarly to the position with respect to s 116, the implied freedom of political communication arising under the Constitution is not a personal right but rather a limit on legislative power. The nature of the freedom was explained by Gordon J in Brown as follows:

"[313] Freedom of communication on matters of government and politics is an indispensable incident of the system of representative and responsible government which the Constitution creates and requires. The freedom is implied because ss 7, 24 and 128 of the Constitution (with Ch II, including ss 62 and 64) create a system of representative and responsible government. It is an indispensable incident of that system because that system requires that electors be able to exercise a free and informed choice when choosing their representatives, and, for them to be able to do so, there must be a free flow of political communication within the federation. For that choice to be exercised effectively, the free flow of political communication must be between electors and representatives and 'between all persons, groups and other bodies in the community'.

[313] The implied freedom operates as a constraint on legislative and executive power. It is a freedom from government action, not a grant of individual rights. The freedom that the Constitution protects is not absolute. The limit on legislative and executive power is not absolute. The implied freedom does not protect all forms of political communication at all times and in all circumstances. And the freedom is not freedom from all regulation or restraint. Because the freedom exists only as an incident of the system of representative and responsible government provided for by the Constitution, the freedom limits legislative and executive power only to the extent necessary for the effective operation of that system." [Footnotes omitted.]

1. Hence, a law which infringes the implied right will be invalid. That is the only question raised by the appellant's argument. That argument, however, raises a reasonable question: whether a law which restricts the capacity of a person or group of persons to express themselves, infringes the implied freedom. There is no question that the freedom may be infringed by a State law, which will result in that law being invalid. see Brown per Gordon J at [316]; Lange at 571-572; Unions NSW at 549 [22]. In Brown, of course, it was a State law which was held to be invalid on this basis.
2. In Lange v Australian Broadcasting Corporation (above) the High Court set down a two-stage test for determining whether a law infringes the implied constitutional freedom.

"First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? cf Cunliffe [1994] HCA 44; (1994) 182 CLR 272 at 337. Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people."

1. The test has been modified, clarified and applied in a number of subsequent decisions. See Coleman v Power and McCloy. In Brown, the most recent decision of the High Court on the subject, the Court restated the test as follows:

"1 Does the law effectively burden freedom of political communication?

1. Is the purpose of the law legitimate, in the sense that it is compatible with the maintenance of the constitutionally prescribed system of government?
2. Is the law reasonably appropriate and adapted to advance that purpose in a manner compatible with the maintenance of the constitutionally prescribed system of government?

If the first question is answered 'yes', and if either the second question or the third question is answered 'no', the law is invalid."

1. The focus of the consideration is not on conduct in a specific case, and whether the law applied to that conduct constitutes a burden on political communication. The focus must be on the terms, operation and effect of the law itself, not confined to its application in a particular case. See Brown at [90]; Sunol v Collier (No 2) [2012] NSWCA 44, per Bathurst CJ at [24]. As Gageler J explained in Brown at [180].

"Whether, and if so how and how intensely, a law effectively burdens freedom of political communication is a qualitative question to be answered by reference to the legal operation and practical effect of the law. The expression 'effectively burden[s]' has been recognised to mean 'nothing more complicated than that the effect of the law is to prohibit, or put some limitation on, the making or the content of political communications'."

1. The qualitative nature of this assessment makes it necessary to construe the relevant law, in order to determine whether the law imposes a burden on the implied freedom, and if so, the extent of that burden. This is not a question of evidence. Brown per Gordon J at [316]. Of course, the operation of the law in a particular case may provide a useful example for the purpose of the construction process. Brown per the plurality at [90].
2. The freedom relates to communication on matters of government and politics. The range of matters that fall within that category is broad. per French CJ in Hogan v Hinch [2011] HCA 4, 243 CLR 506, as cited in Sunol v Collier (No 2) per Bathurst CJ at [42]. Discussion and debate with respect to issues of "human sexuality and the rights of people in Australia connected therewith" was considered to legitimately fall within the scope of topics that might be relevant to political discourse in Sunol v Collier (No 2) and Owen v Menzies; Bruce v Owen; Menzies v Owen [2012] QCA 170. Of course, the scope of the provisions under consideration in this case is much wider than the particular communication which was before the Tribunal.
3. The identification of the burden is the essential first step in the application of the test. As Gageler J described in McCloy, at [126]-[127]:

"The simplicity of the inquiry should not detract from its importance. The oral argument in this case seemed at times to proceed on the assumption that the first step is perfunctory - no more than a box to be ticked before moving to the second step. If that were the case, the Lange analysis would be detached from the function that it was formulated to perform. The first step is critical. If a law does not operate to impose a meaningful restriction on political communication, the supervisory role of the courts is not engaged. If the law does operate to impose a meaningful restriction on political communication, the supervisory role of the courts is engaged to consider the justification for that restriction."

1. However, once identified, the extent of the burden must be assessed. According to Gageler J, it is important that this occur at this point of the inquiry so as to achieve the "calibration" necessary to answer the final two questions. His Honour explained this at [150]:

"In my view, it is imperative that the entirety of the Lange analysis is undertaken in a manner which cleaves to the reasons for the implication of the constitutional freedom which it is the sole function of the Lange analysis to protect. Whatever other analytical tools might usefully be employed, fidelity to the reasons for the implication is in my view best achieved by ensuring that the standard of justification, and the concomitant level or intensity of judicial scrutiny, not only is articulated at the outset but is calibrated to the degree of risk to the system of representative and responsible government established by the Constitution that arises from the nature and extent of the restriction on political communication that is identified at the first step in the analysis."

1. These comments are consistent with the general approach adopted by the other judges in the majority in McCloy and Brown, although not all would recognise the "calibration" as an early part of the foundation of the balance of the analysis. However, I will apply the analytical approach of Gageler J in this respect.

1. The second question of the Brown analysis can be divided into two parts:
   1. What is the purpose of the law? In Brown, Gageler J made the point that the purpose cannot be discerned only from the construction of the Act, but must be assessed in a wider context:

"[209] The purpose of a law is the 'public interest sought to be protected and enhanced' by the law. The purpose is not what the law does in its terms but what the law is designed to achieve in fact. The purpose can sometimes be found spelt out in the text of the law. More often than not, the purpose will emerge from an examination of its context."

Gordon J said of this question that "Care must be taken not to identify the object or purpose of the law too narrowly ... In other words, it is important to separate the means adopted by a law from the end that it is designed to pursue" [322]. The question of whether the means justify the end is the proper domain of the final question. This point was also endorsed by the plurality [104].

1. Is that purpose "compatible with maintenance of the constitutionally prescribed system of representative and responsible government"? Compatibility is an essential part of the justification of the law required once a burden has been identified and assessed. However, it must again be noted that it is the purpose of the law, not the means, which must be assessed as compatible at this point. Further, compatibility does not mean that "the end must itself be the maintenance or enhancement of that system". As Gordon J said in Brown at [321]:

"Laws may, and often do, pursue objects unrelated to the system of representative and responsible government. It is therefore unnecessary, and often unhelpful, to identify a relationship between the object of the law and the maintenance of the system of representative and responsible government established by the Constitution. The question is whether the object of the law (whatever it is ascertained to be), and the means of achieving that object, are not incompatible with the maintenance of the system of representative and responsible government established by the Constitution. Identifying the object or purpose of the law is similar to identifying the 'mischief' that the law is designed to address. The object or purpose will be disclosed by the text, the context and, if relevant, the history of the law." [Footnotes omitted.]

1. In McCloy, the plurality formulated and applied a three-stage "proportionality test" as a practical means of assessment of this question. This test was explained by the Full Court of the Federal Court in Chief of Defence Force v Gaynor [2017] FCAFC 41 as follows at [91]:

"(1) Suitability: 'a rational connection between the provision in question and the statute's legitimate purpose, such that the statute's purpose can be furthered' (at [80]).

(2) Necessity: 'the availability of other, equally effective, means of achieving the legislative object which have a less restrictive effect on the freedom and which are obvious and compelling' (at [81]).

(3) Adequacy in balance, said by the plurality to be the most important stage: 'It compares the positive effect of realising the law's proper purpose with the negative effect of the limits on constitutional rights or freedoms. It requires an "adequate congruence between the benefits gained by the law's policy and the harm it may cause", which is to say, a balance. ... Logically, the greater the restriction on the freedom, the more important the public interest purpose of the legislation must be for the law to be proportionate' (at [87], footnote omitted)."

1. In Brown, the Court was invited to reconsider the formulation of this test. Each judgment analysed the third question in a different way and only the plurality utilised the three-stage test. However, I think a reasonable assessment of the response of each member of the majority to the invitation is encapsulated in the following comments of Gageler J:

"[158] Three-staged proportionality testing was not sought to be characterised in McCloy as anything more than a tool of analysis, not to be confused with the constitutional principle it served. The plurality did not suggest that its adoption is compelled by the reasoning which supports the implication of the freedom of political communication as authoritatively expounded in Lange. The plurality also disavowed any suggestion that 'it is the only criterion by which legislation that restricts a freedom can be tested'.

[159] The point is therefore not one of reopening and overruling McCloy: nobody has suggested that McCloy was wrongly decided; McCloy does not elevate three-staged proportionality testing to the level of constitutional principle; and McCloy does not endow it with precedential status. The point is one of emphasising that the tool is, at best, a tool. For my own part, I have never considered it to be a particularly useful tool."

Section 19

1. In Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, the Court of Appeal in Victoria considered whether s 8 of the Racial and Religious Tolerance Act 2001 (Vic) contravened the implied constitutional freedom. The relevant provision prohibited a person from engaging "in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of" another person or class of persons on the ground of religious belief or activity. The conduct which was said to be in breach of that Act related to a series of statements and publications which attacked various asserted tenets and aspects of the Islamic faith. Each member of the court concluded, after a relatively brief analysis, that s 8 did not burden the freedom of political communication "in the sense contemplated in Lange", per Nettle JA. Neave JA took the view that "the mere fact that legislation is capable of restricting communications which contain some political material is not sufficient to invalidate it" [208].
2. Further, each of their Honours expressed the view that if the legislation did in fact impose a burden on political discourse, then it did not breach the Constitution because of the application of the second stage of the test, ie it was reasonably appropriate and adapted to serve a legitimate end. As Neave JA said at [210]:

"Even if s 8 does burden political communications (which in my view it does not), it is compatible with the requirements of a representative democracy to place reasonable limits on the freedom to communicate views which incite hatred or other relevant emotions against people because of their religious beliefs. [In R v Keegstra [1990] INSC 224; [1990] 3 SCR 697 it was held that the importance of preventing the harm caused by hate propaganda was of sufficient importance to warranted overriding a constitutional freedom of expression.]"

1. However, in Sunol v Collier (No 2) (above) each member of the Court of Appeal of NSW approached the first stage of the test in a different way in respect of a provision under the Anti-Discrimination Act 1977 (NSW) which was, for all practical purposes, in identical terms to s 19 of the Tasmanian Act, although the section referred specifically to the attribute of "homosexuality". Bathurst CJ relied on a comment by Mason CJ, Toohey and Gaudron JJ in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 124, in which their Honours stated that the implied freedom covers "all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about". Bathurst CJ concluded:

"Discussion of the position of minority groups in society and the extent to which their position should be enhanced or protected by legislation, including but not limited to anti-discrimination legislation, forms part of the fabric of political debate in this country at the present time and, in my opinion, is a matter which bears on the choice people have to make at federal elections or their evaluation of the performance of federal ministers or their departments. It has been recognised that political debate in this country takes place in a fashion that is generally robust, frequently insulting and sometimes acrimonious: Coleman v Power supra at [105], [237]-[239]. A law of the nature of the one in question can, in these circumstances, effectively burden freedom of communication about government or political matters."

1. Allsop P agreed, noting that "human sexuality and the rights of people in Australia connected therewith" is a legitimate topic of contemporary social and political debate. He relied on a passage from the judgment of McHugh J in Coleman v Power as follows:

"The use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation. And whether insulting words are or are not used for the purpose of intimidation, fear of insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of the political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. Such prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of representative government."

1. His Honour concluded that the provision "should be taken as burdening in a real way the freedom to communicate about matters of homosexuality".
2. Basten JA came to a different conclusion on this question. His Honour observed that, although in one sense the law could be seen to prohibit political communication, in another sense it may, rather than "burden political discourse; on the contrary, it may promote such discourse". He made this comment on the basis of an analysis that, by its regulation of aspects of debate which overbear or oppress opposition, the legislation in fact promoted an appropriate exchange of views. His Honour therefore concluded that the provision in fact promoted "... essential elements of the Constitutional system of government. These elements include the maintenance of a society in which all persons may participate as equals and express their views publicly, as well as at the ballot box, without fear of being the subject of public utterances inciting hatred towards, or serious contempt for, or severe ridicule of them as homosexuals". Accordingly, his Honour was not satisfied that the implied freedom was engaged, having regard to his analysis of the application of the first stage of the test.
3. Irrespective of the variation of their Honours' views in respect of the first stage of the test, they were agreed that s 49ZT complied with the second stage of the test, as it was formulated at that time, that is that the provision was reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of the system of government prescribed by the Constitution. In arriving at that conclusion, Bathurst CJ noted the following:

(a) That the freedom under the Constitution is not absolute.

(b) That the question for the court is "not whether the choice made by Parliament was preferable or desirable, but whether the choice was reasonable in light of the burden placed on the constitutional freedom of communication".

(c) That the legislation does not have the direct purpose of restricting political communications, but that such restriction is only incidental to the operation of the legislation.

1. His Honour concluded that "... seeking to prevent homosexual vilification is a legitimate end of government". He was satisfied that the provision was "... the appropriate balance between the legitimate end of preventing homosexual vilification and the requirement of freedom to discuss and debate government or political matters ...". Allsop and Basten JJA expressed similar views.
2. In Owen v Menzies; Bruce v Owen; Menzies v Owen (above), the Queensland Court of Appeal considered the same question in respect of corresponding legislation in that State. Margaret McMurdo P noted the conflicting views expressed by the courts of appeal in Victoria and New South Wales in the cases discussed above, and preferred the view adopted by the Victorian Court of Appeal in Catch the Fire Ministries, and Basten JA's minority view in Sunol in respect of the application of the first stage of the Lange test. Her Honour's conclusion was that the relevant Queensland provision did not "in its terms, operation or effect, effectively burden freedom of communication about government or political matters". The other two judges of appeal found it unnecessary to decide this question.
3. Despite this difference, the judges were agreed that in respect of the second stage of the test, the provision was "reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible Government", per Margaret McMurdo P at [77]. Accordingly, the provision did not breach the implied freedom.
4. These cases were decided before the three stage "proportionality" test was formulated in McCloy. However, any suggestion that the persuasive effect of the judicial views expressed in those cases is reduced accordingly, is negated by the explanation in Brown of the relevance and operation of that test.

1. The preponderance of judicial views in the cases discussed above supports the view that the first stage of the test is not engaged by s 19. While those decisions are not directly binding on me, they have considerable persuasive effect. In any event, the views expressed largely reflect my own conclusion with respect to the application of the first limb of the test to s 19.
2. The question posed by the first limb is whether the law effectively burdens freedom of communication about governmental or political matters, in its terms, operation and/or effect. Section 19 will clearly restrict some communications which might occur in the course of political discourse. However, as Basten JA said at [86] in Sunol v Collier (No 2), the first question requires that there be an "effective burden" on such discourse which means that the court must "ask to what extent, as a matter of practical reality, compliance with the impugned law will constrain political discourse". His Honour went on to say:

"Thus, it is necessary to inquire whether prohibition of the conduct covered by s 49ZT, to the extent that it falls within the area of political discourse, will burden, rather than enhance, that discourse. Such a question does not relate to the effectiveness of political advocacy, nor to elements of civility; rather, it seeks to distinguish a rule which, by regulating the manner or content of communications diminishes, rather than enhances, participation and the free exchange of ideas. Conduct by which one faction monopolises a debate or, by rowdy behaviour, prevents the other faction being heard, burdens political discourse as effectively as a statutory prohibition on speaking. A law which prohibits such conduct may constrain the behaviour of the first faction, but not effectively burden political discourse; on the contrary, it may promote such discourse: see Coleman v Power at [256] (Kirby J)."

1. I agree with and respectfully adopt these comments. The point here is that the proper application of s 19 will not prevent legitimate debate in respect of questions relating to the attributes referred to therein, for example, sexual orientation. It will not impose any real burden on freedom of discourse about any other subject. The terms, operation and effect of s 19 will only catch conduct which is capable of inciting hatred towards or serious contempt for or severe ridicule of a person or group of persons. Such conduct sits outside the boundary of what might be expected from reasonable political debate and discourse. Most importantly, the restriction on conduct of that nature sets boundaries and limits with respect to debate which protects, and thereby enhances, legitimate debate. The protection and enhancement of legitimate debate and discourse is also supported by s 55 (see my subsequent discussion of this provision), but, in my view, is not reliant upon it. Compatibility with, and indeed the support and enhancement of, the system of representative and responsible government established by the Constitution is an inherent aspect of the operation of s 19 itself.
2. In reaching this conclusion, I have taken into account the proper interpretation of s 19. In respect of this question, Bathurst CJ said of the corresponding Queensland provision that it should be construed as follows at [41]:

"(a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.

(b) It is not necessary for a contravention that a person actually be incited.

(c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed.

(d) It is not necessary to establish an intention to incite."

I observe that these conclusions are essentially those reached in relation to s 19 by the learned Tribunal member.

1. It can be argued that the fact that it is not necessary to establish an intention to incite, and that it is not necessary that the person be actually incited, extends the breadth of the operation of the provision to the extent that it would deter appropriate political discourse. However, when regard is had to the requirement that the conduct must incite hatred toward, serious contempt for, or severe ridicule of another person before it falls within the prohibition of the section, it can be seen that the provision in fact sets reasonable boundaries for political discourse and, in that sense, is protective of it, as discussed above.
2. In view of this conclusion, it is not strictly necessary to proceed to the second or third questions. However, for the sake of a thorough assessment against the analytical framework, there is utility in doing so.
3. The discussion as to whether the legislation burdens the implied freedom has already brought into focus the purpose of the law. In my view, the primary purpose of the Anti-Discrimination Act is to prevent conduct which discriminates against or otherwise adversely impacts upon a person, because that person possesses or shares a defined attribute with others. Such legislation seeks to prevent and redress conduct which is seen as unjust, divisive and anathema to modern society. Accordingly, the Act has the higher purposes of the individual protection of all members of society and the overall maintenance and enhancement of social cohesion. The consequential benefits of the achievement of these purposes is the enhanced capacity of all members of the community to express views and participate in the political and social life of the community. As already discussed, I am of the view that these purposes are compatible with the maintenance of the system of representative government prescribed by the Constitution.
4. At a Federal level, anti-discrimination legislation fulfils Australia's obligations pursuant to a number of international conventions. It can be argued, however, that this purpose is achieved through existing Commonwealth legislation, and cognate State legislation is, therefore, unnecessary.
5. The next question is whether the law is reasonably appropriate and adapted to serve the legitimate end compatible with the maintenance of the constitutionally prescribed system of representative and responsible government. I observe that each member of the court in each of the abovementioned cases was satisfied that the law corresponding to s 19 in their respective States fulfilled this requirement. However, in order to further test these conclusions in respect of s 19, I will consider this question in the light of the "proportionality" test from McCloy.
6. The first limb of the test is the suitability of the provision. There can be no real doubt about this. The prohibition of conduct which vilifies a person or group of persons on the ground of specified attributes, including that person's sexual orientation, must be clearly seen as consistent with the legitimate purposes of the statute.
7. On the question of necessity, there are certainly alternative laws which might catch aspects of the conduct dealt with by s 19. For example, existing criminal laws may deal with public acts directly targeted against a specific person. However, there are very important aspects of the prohibition of conduct in s 19 which are not, and cannot be, replicated in other law. These include:

(a) The conduct need not be targeted directly at or committed against the person in respect of whom it is aimed. That person need not be present when the incitement takes place. This is a crucial aspect of the law because it protects social cohesion in a general sense. It also protects the person who is the subject of the conduct from adverse consequences which are indirect and consequential upon the conduct.

(b) The provision catches all conduct of the nature defined in the section which occurs "on the ground of" the attribute in question. In other words, it is a statutory prohibition of conduct of the nature concerned which has as its basis an attack on other members of the community because of the specific attribute in question. This specific quality is not replicated in any other law. This is a strong legislative embodiment of an important social principle. It places a transparent and clear boundary around freedom of conduct as part of the need to balance the freedom of political communication against the effect of the conduct on others.

(c) The consequence of a breach of the provision is relief which has been specifically designed to deal with discrimination and associated conduct. Again, the remedies that would be available under the criminal law, or under the common law as a result of civil action, are, and have been found to be, inadequate to deal with the specific mischief at which the legislation is aimed. The remedies in question allow and promote a targeted and proportional response to conduct caught by the provision.

1. As was pointed out in Monis v The Queen [2013] HCA 4, 249 CLR 92 at [347], and endorsed by the plurality in McCloy, any alternative means must be "obvious and compelling". It is clear from the above analysis that there is no obvious and compelling alternative. I am satisfied that the provision satisfies the test of necessity.
2. The third stage of the test is that the law must be adequate in its balance. The plurality in McCloy pointed out that the balancing exercise will necessarily involve a value judgment but this "does not entitle the courts to substitute their own assessment for that of the legislative decision-maker". The tension between the need for the court to make a value judgment and respect for the proper boundaries between the legislative and judicial function was explained further by the plurality as follows at [91]:

"Deference to legislative opinion, in the sense of unquestioning adoption of the correctness of these choices, does not arise for courts. It is neither necessary nor appropriate for the purposes of the assessment in question. The process of proportionality analysis does not assess legislative choices except as to the extent to which they affect the freedom. It follows from an acceptance that it is the constitutional duty of courts to limit legislative interference with the freedom to what is constitutionally and rationally justified, that the courts must answer questions as to the extent of those limits for themselves."

1. In Brown, Nettle J noted the need to apply this aspect of the test within the context of the overall assessment. His Honour noted that:

"[290] ... an impugned law that otherwise presents as suitable and necessary for the achievement of a legitimate purpose compatible with the constitutionally prescribed system of government should not be regarded as inadequate in its balance unless it so burdens the implied freedom of political communication as to present as 'grossly disproportionate' to, or as otherwise going 'far beyond', what can reasonably be conceived of as justified in the pursuit of the legitimate purpose."

1. I am satisfied that this provision adequately balances the achievement of the legitimate legislative purpose against the restriction on freedom involved in doing so. All laws which prohibit conduct affect freedom. In this case, the restriction on freedom is limited to prohibiting conduct which incites hatred towards, serious contempt for or severe ridicule of another person or group of persons on the ground of a particular attribute, including sexual orientation. If such conduct is allowed to go unchecked, then there is potential for significant impact on a person possessing the particular attribute, and in that sense the freedom of that person to live life with the full expression of that attribute is severely curtailed. I have already discussed the wider implications for social cohesion and the need to foster legitimate political debate and participation in the political process. On the other hand, the section does not prohibit legitimate, even robust, debate which may relate to the attribute in question. There is clearly a very wide ambit of freedom remaining, which permits legitimate comment and robust debate without resorting to conduct of the nature prohibited by the section. Further, the balance is enhanced by:

(a) the provisions of s 55 which provide some protection where the otherwise prohibited conduct occurs in the circumstances defined in that provision; and

(b) the assessment of these questions is left in the hands of a specialist competent tribunal; and

(c) the consequences of the conduct are not limited, as with the provision of criminal penalties, but rather the legislation provides the Tribunal with a raft of specifically designed powers, which in turn provides for flexibility and balance when dealing with the conduct in question.

1. I am satisfied that the provision satisfies the test of validity, as now formulated in Brown. It follows that s 19 does not infringe the implied freedom arising under the Australian Constitution and is, accordingly, a valid law.

Section 17

1. Section 17(1) is also a provision which prohibits conduct. By its terms, it is apparent that the provision has an extremely wide ambit of operation. Some aspects of this are as follows:

(a) The scope of conduct is unlimited. It encompasses "any conduct" which falls within the description contained in the section. However, the section will almost always be concerned with conduct which involves communication in one form or another. It follows that the section has the capacity to burden the implied freedom by restricting communication in a wide variety of circumstances.

(b) Read literally, the words "offends, humiliates, intimidates, insults or ridicules" are vague terms which have the potential to encompass a broad range of subjective emotions and feelings. The emotional response will vary from one person to another. However, judicial interpretation of the words "offend, insult, humiliate or intimidate" in respect of similar but not identical provisions under s 18C of the Racial Discrimination Act 1975 (Cth) suggests that the operation of the section is more restricted than the literal meaning of the words would suggest. In Eatock v Bolt [2011] FCA 1103, 197 FCR 261, Bromberg J endorsed judicial statements which require the conduct caught by s 18C to have "profound and serious effects and not to be likened to mere slights". Creek v Cairns Post Pty Ltd [2011] FCA 1007, 120 FCR 243 at [16] (Kiefel J); Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [70] (French J as he then was); Jones v Scully [2002] FCA 1080, (2002) 120 FCR 243 at [102] (Hely J). His Honour also said:

"[267] In my view, 'offend, insult, humiliate or intimidate' were not intended to extend to personal hurt unaccompanied by some public consequence of the kind Part IIA is directed to avoid. That public consequence need not be significant. It may be slight. Conformably with what I regard as the intent of Part IIA, a consequence which threatens the protection of the public interest sought to be protected by Part IIA, is a necessary element of the conduct s 18C is directed against. For the reasons that I have sought to explain, conduct which invades or harms the dignity of an individual or group, involves a public mischief in the context of an Act which seeks to promote social cohesion."

1. However, the basis of the public aspect was explained as follows:

"[263] The ordinary meaning of these words is potentially quite broad. To 'offend' can mean to hurt or irritate the feelings of another person. If the concern of the provision was to fully protect people against exposure to personal hurt, insult or fear, it might have been expected that the private domain would not have been excluded by the phrase 'otherwise than in private' found in the opening words of s 18C(1). The fact that it is, suggests that the section is at least primarily directed to serve public and not private purposes: Coleman at [179]. That suggests that the section is concerned with consequences it regards as more serious than mere personal hurt, harm or fear. It seems to me that s 18C is concerned with mischief that extends to the public dimension. A mischief that is not merely injurious to the individual, but is injurious to the public interest and relevantly, the public's interest in a socially cohesive society."

Of course, a significant difference between ss 18C and 17(1) is that the latter does not contain the words "otherwise than in private". It will extend to private communications.

(c) It is not required that the person engaging in the conduct intend or even subjectively foresee that the conduct may have the said effect. The qualification requires objective foreseeability or anticipation. This requirement places some limit on the ambit of the provision, but places an obligation on the communicator to think through the potential effect of the proposed communication. In respect of mass communication which is typical of political discourse, this places an extremely heavy burden on the proposed communicator, which in turn places a commensurate burden on political communication.

(d) To fall within the section, the conduct must offend, humiliate, intimidate, insult or ridicule another person "on the basis of an attribute" as defined. The connection required between the conduct and the attribute, is that the conduct is done by reference to the attribute, rather than the stronger and more direct causal relationship required by some other formulations, such as "because" or "by reason of". See Macedonian Teachers' Association of Victoria Inc v Human Rights and Equal Opportunity Commission [1998] FCA 1650; (1998) 91 FCR 8 at 29-30 (Weinberg J_)_; Wotton v State of Queensland (No 5) [2016] FCA 1457. This also tends to broaden the application of the prohibition applied by the section, thereby increasing its burden on the freedom of political communication.

1. It is clear, therefore, that the section will burden the implied freedom of political communication. Further, the construction of the provision as discussed above, will have a number of implications in respect of the assessment of the extent of the burden. It is difficult to conceive how one could engage in a robust debate, particularly in relation to matters relevant to a prescribed attribute, without it being objectively foreseeable that another person may, at the least, be offended or insulted on the basis of that attribute, by comments made during the course of that debate. It is also not difficult to envisage a situation in which comments in a debate might be caught by the provision, notwithstanding that the debate itself relates to a subject other than a prescribed attribute.
2. There can be no real question that the legislative purposes of s 17 are identical to those of s 19. These are legitimate purposes for the reasons already explained. The real question is the third part of the test, whether the section is "reasonably appropriate and adapted to serve" the legitimate purposes. This test will be calibrated in a similar manner to that relating to s 19. In this respect, the wide ambit of the potential operation of the section is an important consideration. Of the three factors relevant to the proportionality test, adequacy in balance is the matter of concern. There is clearly a rational connection between the purpose of the statute and the provision, and hence it fulfils the requirement of suitability. Further, I accept the necessity of s 17, because it directly targets conduct which is contrary to the purpose sought to be achieved by the statute. The wide ambit of the provision can be justified on the basis of the wide variety of possible conduct which might be adverse to the achievement of the legitimate end of the legislation. The real question is whether the ambit of the operation of the provision, arising from its terms, results in "the positive effect of realising the law's proper purpose" being outweighed by "the negative effect" imposed on the freedom of political debate and discourse, and hence the maintenance of the constitutionally prescribed system of representative government.
3. In Coleman v Power (above) the constitutional validity of a statutory provision which made it an offence to use insulting words in or near a public place, was under consideration. McHugh J, who was in the majority, but was not in agreement with the other judges on this point, held that the provision was invalid because it conflicted with the implied freedom. The other judges in the majority disagreed with that conclusion on the basis that the law in the particular circumstances of the case was seen as "reasonably capable of being seen as appropriate and adapted" to a legitimate purpose, and hence complied with the second limb of the Lange test as it was then formulated. On this question, McHugh J said at [105]:

"The use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation. And whether insulting words are or are not used for the purpose of intimidation, fear of insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of the political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. Such a prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of representative government."

1. In Monis v The Queen (above), the High Court considered whether a Commonwealth provision creating an offence if a person used a postal service in a way that a reasonable person would regard as being in all the circumstances, offensive, breached the implied freedom. The court was equally divided, with three judges finding that it did so. Those judges reasoned, in part, that the provision could not be applied in a manner which was compatible with the maintenance of the constitutionally prescribed system of government.
2. In my view, the dominant feature of the operation of s 17(1) is the potential effect on debate and discussion of topics that might be the subject of political or governmental interest. A person engaging in robust debate would find it necessary to consider and predict whether somebody may be inadvertently or incidentally offended, humiliated, intimidated, insulted or ridiculed on the basis of a prescribed attribute, in respect of everything said in that debate. This has the potential to place an impossible burden on the type of political discourse and discussion envisaged by the system of representative democracy established by the Constitution.
3. If it were left at this, it would be difficult, if not impossible, to justify the provision. However, in order to fully assess the effect of the section, and hence the burden imposed by it, it is necessary to take into account the effect of the exception provided by s 55. A provision such as this "defines the limits of the proscription" in s 17, and is not "a free speech exception to it": Bropho per French J at [73]. Accordingly, it should be construed broadly. In Jones v Scully (above), Hely J rejected a challenge to the validity of s 18C having regard to its impact on the implied freedom. Although the section was found to burden the freedom, his Honour held that it satisfied the test of proportionality. A crucial consideration in his Honour's reasoning was the balance provided by s 18D (the RDA's counterpart to s 55):

"[240] The next question is therefore whether the RDA is reasonably appropriate and adapted to achieve the elimination of racial discrimination having regard to the requirement of freedom of communication about government and political matters required by the Constitution. I agree with the Commissioner that, bearing in mind the exemptions available under s 18D, Part IIA of the RDA is reasonably appropriate and adapted to serve the legitimate end of eliminating racial discrimination. Section 18D, by its terms, does not render unlawful anything that is said or done 'reasonably and in good faith' providing that it falls within the criteria set out in subs (a)-(c). I consider that those exemptions provide an appropriate balance between the legitimate end of eliminating racial discrimination and the requirement of freedom of communication about government and political matters required by the Constitution. I accordingly reject the respondent's argument that the RDA should be declared unconstitutional 'for the sake of freedom to communicate political matters'."

1. This view is also consistent with the approach adopted by the intermediate courts of appeal in the cases discussed in respect of s 19, in respect of similar legislative exceptions in those jurisdictions. Although those cases were concerned with the interaction between the exception and a provision in the nature of s19, the balancing analysis conducted in each case is apposite to the interaction between ss 17 and 55 of this Act.
2. However, there are, of course, some significant differences between the relevant provisions in other jurisdictions, and ss 17 and 55 of this Act. Accordingly, it is appropriate to consider the actual terms of s 55. This section provides as follows:

"The provisions of section 17(1) and section 19 do not apply if the person's conduct is -

(b) a communication or dissemination of a matter that is subject to a defence of absolute privilege in proceedings for defamation; or

(i) academic, artistic, scientific or research purposes; or

It is immediately apparent that the section generally will ameliorate the burden imposed upon the implied freedom by s 17. However, s 55(c)(ii) is of particular relevance. Under that provision, conduct will be exempt from the operation of s 17(1) if:

• it is a public act;
• done in good faith;
• for any purpose in the public interest.

1. In Bropho (above), French J said this in respect of the requirement of good faith in s 18D:

"[94] In my opinion, the balance struck in ss 18C and 18D between proscription and freedom requires more in the exercise of the protected freedom than honesty. Section 18D assumes that the conduct it covers would otherwise be unlawful under s 18C. The freedom it protects is broadly construed. But, given that its exercise is assumed to insult, offend, humiliate or intimidate a person or group of persons on the grounds of race, colour or national or ethnic origin, there is no legislative policy which would support reading 'good faith' more narrowly than its ordinary meaning.

[95] How does this approach operate in the context of s 18D? It requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section. The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C. It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict. It will not use those freedoms as a 'cover' to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin."

1. I am satisfied that the same must be true of s 55. In this sense, s 55 provides a significant contribution to the balance between freedom of speech and the achievement of the protective and social aims of the legislation. The requirement of good faith has the effect that the section will permit honest debate, even if it causes offence, insult etc, but only if there has been "a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it" (see Bropho at [102]).
2. Further, the conduct must be for a purpose in the public interest. The focus of this inquiry is on the purpose which is pursued by the conduct. In Eatock v Bolt, Bromberg J made the following points about the analogous requirement in s 18D:
   • It is not enough that the communication be about a matter of public interest. It must be for a purpose in the public interest [my emphasis]. Freedom of expression itself is not an adequate purpose.
   • It is not the subjective purpose of the speaker that is relevant to this assessment. There must be an objective assessment of "whether the purpose is genuinely in the public interest".

These observations suggest that it is necessary for a court or tribunal to make a discretionary value judgment about the perceived purpose of the communication. This is consistent with the view taken by the majority in O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216. I do not think that it is either necessary or desirable for me to be any more prescriptive about the meaning or application of s 55. It is sufficient to observe that the application of the section in any particular case will depend upon the circumstances of that case. Ultimately, the concepts of "good faith" and "for a purpose in the public interest" will be matters for judgment by the court or tribunal in question. A broad interpretation is appropriate, and many cases will turn on factual questions. For example, a verbal attack on a person or group of persons on the basis of a prescribed attribute which is ostensibly in the public interest, but in reality has as its dominant purpose the causation of insult and offence to persons sharing that attribute, will be unlikely to satisfy either requirement. On the other hand, legitimate debate about the same subject-matter, conducted with a conscientious attempt to avoid the effects to which s 17 refers, and conducted solely for the purpose of putting a view, at least perceived by the maker to be for the benefit of the public, will be likely to fall within the exception. The question for me in this case is whether this provision creates sufficient space for legitimate public debate and comment so as to satisfy the test of adequacy in balance. Having regard to the broad construction discussed above, and in particular the wide and flexible ambit of s 55, I am satisfied that the answer to that question must be in the affirmative.

1. I conclude therefore that s 17(1), when read together with s 55, does not infringe the freedom of communication arising by implication from various provisions of the Australian Constitution. It is hence validly enacted.

Section 20

1. Section 20 of the Act provides as follows:

"(1) A person must not publish or display, or cause or permit to be published or displayed, any sign, notice or advertising matter that promotes, expresses or depicts discrimination or prohibited conduct.

(2) Subsection (1) does not apply to anything that is used for the purpose of discouraging discrimination or prohibited conduct."

1. It is clear that the reach of this provision does not extend beyond that of ss 17 or 19, at least as far as prohibited conduct is concerned. Accordingly, for the reasons already discussed, I am satisfied that this provision is also not in breach of the implied freedom, and is a valid exercise of legislative power.
2. It follows that there is no merit in ground 2.

"3) The Tribunal member, Margaret Otlowski, was wrong in fact in not critically appraising the assertions made by the complainant for factual veracity (many of which were wrong) when forming the basis of argument upon which her decision was made. The decision of the tribunal member was therefore based on untruths."

1. This ground can also be dealt with briefly. It attacks the factual findings of the learned Tribunal member. However, it does not point to any specific inconsistency or inherent contradiction in respect of those findings.
2. In submissions, the appellant argued, in effect, that the contents of the pamphlet were true and asserted factual material in support of that claim. However, the appellant did not dispute, either at the inquiry or before me, the fundamental facts upon which the learned Tribunal member based her decision, in particular, the contents of the pamphlet and the fact that it had been distributed to 3,000 homes. Further, it was not disputed that the pamphlet had the relevant effect on the complainant or persons known to him.
3. The further difficulty with this ground is that the appellant did not give evidence or seek to adduce evidence at the inquiry. While it is accepted that this Court has a limited discretion to accept fresh evidence on the appeal, no application has been made for that to occur and, in any event, the type of factual information referred to by the appellant was simply not relevant to the learned Tribunal member's determination.
4. There is no merit in this ground and it fails.

"4) The Tribunal member, Margaret Otlowski, was wrong in law in ignoring the higher law, including the State Constitution, Commonwealth Constitution and common law in not determining whether the application of the Anti-Discrimination Act 1998 (Tas) was valid in the matter of the complaint."

1. Insofar as this is a valid ground of appeal, it simply repeats a reference to the constitutional arguments which have already been dealt with in respect of ground 2. There is nothing fresh arising from this ground. It must fail.

1. The above deals with the grounds and asserted errors raised by the appellant. However, the appeal is in the nature of a rehearing and the appellant is unrepresented. Having regard to the nature of this mode of appeal, most recently explained by Kiefel CJ in Minister for Immigration and Border Protection v SZVFW (above) at [29]-[50], it is appropriate to conduct an overall review of the reasons to ensure that they do not disclose error on the part of the learned Tribunal member.
2. In my view, the findings made by the Tribunal member in respect of the breaches of ss 17(1), 19 and 20, are unassailable. The facts were in short compass, not disputed, either by submission or contrary evidence, and clearly understood by the Tribunal. The evaluative judgments made by the Tribunal member in respect of the matters raised by the relevant provisions are consistent with my own view of the complaint. In each case, both with respect to ss 17(1) and 19, the conduct clearly answered the description of prohibited conduct contained in those sections. There can be no question that the conduct in each case was linked in the prescribed way to the relevant attribute.
3. The real question raised by the facts before the Tribunal was whether conduct of this nature fell within the exception prescribed by s 55, in particular that the dissemination of the pamphlet was "a public act done in good faith for ... any purpose in the public interest". Although not clearly articulated by the appellant, it seems to me that it is this proposition that was the basis of his position at the Tribunal, as well as in his submissions before me. In other words, it is a fair assessment of the appellant's position that the dissemination of the material in question was consistent with a higher public purpose, that is to educate the community generally about matters in which the appellant fervently believes, notwithstanding that putting forward views of this nature may cause offence and insult to others on the basis of their sexual orientation, and may incite hatred against them. The basis of his belief is irrelevant, the fact that he holds those beliefs cannot be reasonably disputed.
4. As I have already noted, the learned Tribunal member dealt with the potential application of s 55. She did this notwithstanding that the appellant had not asserted a defence on that basis at the inquiry. Of course, the Tribunal member noted that the appellant had not sought to rely on that provision, and this may explain why she apparently dealt with the application of the provision briefly.
5. It seems to me that I am in as good a position as the Tribunal member to assess this question. As I have already discussed at some length, the freedom of political communication, and the capacity of members of the community to express themselves freely, is not absolute. As with any other aspect of the conduct of a member of a free and liberal society, the consequences of that conduct on others will inform the appropriate boundary of restriction on individual freedom. I have already attempted to explain in some detail how the interaction of the various provisions of the Act, including the exception provided by s 55, attempts to legally define these boundaries.
6. The requirement in s 101 that a person who relies on an exception, such as s 55, as a defence to a complaint, is to prove the exception, it is not just a procedural or evidentiary provision, but, in my view, an inherent part of the operation of the Act in terms of achieving an appropriate balance between freedom of communication and the protective objectives of the legislation. In this regard, I reiterate the comments made by French J in Bropho concerning the meaning of an "act done in good faith". I note also my comments with respect to the effect of the requirement that the conduct be for a "purpose in the public interest". Ultimately, these requirements are resolved by an evaluative judgment by the court or tribunal, but that judgment can only be made on the basis of the evidence of the originator of the communication. In particular, it is impossible to assess the aspect of good faith without such evidence. The appellant did not provide that evidence to the Tribunal, and did not assert or rely upon the applicability of s 55. In those circumstances, I am satisfied that the Tribunal had no option but to discount the application of s 55 to this conduct.
7. In any event, I agree with the Tribunal member's conclusion with respect to the question of public interest. In Toben v Jones [2003] FCAFC 137, Carr, Kiefel and Allsop JJ were required to consider, among other issues, whether the publication of material on the internet, found to be "racially vilificatory of Jewish people" fell within the exception in s 18D(b) of the Racial Discrimination Act on the basis that it had been published for "a genuine purpose in the public interest". The court observed that the person publishing the material had the onus of proof with respect to that exemption. All members of the court upheld the primary judge's conclusion that the appellant had not established "proof of good faith". Allsop J concluded that the nature of the material itself demonstrated that it "was designed and intended, amongst other things, to smear, hurt, offend, insult and humiliate Jews". It was the content and the nature of the material itself which led to this conclusion.
8. In my view, similar considerations apply to the circumstances of this case. The nature and tenor of the material demonstrates, among other things, an intention to specifically target and ostracise persons on the basis of a particular attribute, their sexual orientation. As I explained in earlier comments, s 55 would protect robust debate about homosexuality, and the expression of views in respect of such matters, if it occurs in a way which is respectful of the dignity and individual rights of others, and a conscientious effort is made to avoid offence, humiliation, intimidation, insult or ridicule, and incitement of others of the type referred to in s 19. The nature and tenor of the material in question and the circumstances of its dissemination, demonstrates conduct which is well outside that boundary. I refer in particular to the following features of the conduct:

(a) The pamphlet was arbitrarily disseminated by being placed in homes without any regard to the identity or attitudes of the recipients.

(b) The language used was inflammatory and not typical of respectful debate. For example "homosexuality should not be tolerated" and "Scripture rejects homosexuality as utterly abominable".

(c) The statistical material, such as it is, focuses on susceptibility of persons living a homosexual or lesbian lifestyle to die prematurely. There is no real attempt to present these matters in a balanced way.

(d) The overall tenor of the material is in the nature of a direct attack on the lifestyle of persons with a particular sexual orientation, and therefore on the human dignity and social legitimacy of such persons. It seeks to separate those persons out from the rest of society, in a demeaning and offensive way. It is disingenuous in the extreme to claim that the material was only revealing facts that might generally assist the public. It clearly constitutes a direct and intentional public attack on members of a group sharing the relevant attribute. The claim of public interest is not a genuine explanation for this conduct.

1. In my judgment, the dissemination of this material, at least on the material available to the Tribunal, would not establish that it was a "public act done in good faith for ... any purpose in the public interest". The Tribunal reached the correct conclusion as to the applicability of s 55 and the outcome of the complaint generally.

1. It follows that error has not been established on the basis of the grounds of appeal, nor can I detect any other error in the learned Tribunal member's reasoning. I am satisfied that the decision reached by the Tribunal was correct.
2. The appeal is dismissed.