ACT Civil and Administrative Tribunal|2021-09-28|Before: Member Prof

FARAH v SANDILANDS (Discrimination) [2021] ACAT 92 (28 September 2021)

FARAH v SANDILANDS (Discrimination) [2021] ACAT 92

Catchwords: DISCRIMINATION - unlawful vilification - religious conviction - application to dismiss matter for lack of jurisdiction - whether material facts give rise to the 'other than in private act' by the respondent necessary to make out the elements of section 67A of the - audience - third-party acts - whether the alleged discriminatory act occurred within the geographical reach of - extraterritoriality - conduct and result statutory provisions - test for summary dismissal - whether claim bound to fail - Tribunal found to have jurisdiction

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 23

Civil Liability Act 2002 (NSW) s 5N

Court Procedures Act 2004 s 5A

Discrimination Act 1991 s 67A

Legislation Act 2001 ss 122, 139

Human Rights Act 2004 ss 14, 16, 21

Human Rights Commission Act 2005 s 53A

Racial and Religious Tolerance Act 2001 (Vic) s 8

Cases cited: Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161

Allatt & ACT Government Health Directorate [2012] ACAT 67

Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52

Bottrill v Sunol [2017] ACAT 81

Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78

Burns v Gaynor [2015] NSWCATAD 211

Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267

Burns v Sunol [2012] NSWADT 246

Catch the Fire Ministries Inc v Islamic Council of Victoria [2006] VSCA 284

Clinch v Rep [2020] ACAT 13

Clinch v Rep (No. 2) [2020] ACAT 68

Dempster v National Companies & Securities Commission (1993) 9 WAR 215

Dey v Victorian Railways Commissioners [1949] HCA 1

DLH v Nationwide News Pty Ltd (No 2) [2018] NSWCATAD 217

Dow Jones & Co Inc v Gutnick [2002] HCA 56

Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47

Ex parte Iskra; Ex parte Mercantile Transport Co Pty Ltd (1962) 5 FLR 219

Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27

Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143

Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69

Insight Vacations Pty Ltd trading as Insight Vacations v Young [2011] HCA 16

Jones v Trad [2013] NSWCA 389

Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95

Kay's Leasing Corporation Pty Ltd v Fletcher [1964] HCA 79

Kays Holdings Pty Ltd v Nassar [1968] 1 NSWR 497

Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173

Lipohar v R [1999] HCA 65

Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1

Margan v Manias [2015] NSWCA 388

Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] HCA 11; [1966] ALR 791

Momcilovic v The Queen [2011] HCA 34

Pearce v Florenca [1976] HCA 26

Re Application for Bail by Islam [2010] ACTSC 147

Seven Network Ltd v News Ltd (No 4) [2005] FCA 244

Sims v Wran [1984] 1 NSWLR 317

Spellson v George and Ors [1992] NSWCA 254

Stergiou & Ors v Citibank Savings Ltd [1998] ACTSC 134; (1998) 148 FLR 244

Sunol v Collier (No 2) [2012] NSWCA 44

Trinity Enterprises Pty Ltd v Drum Services (WA) Pty Ltd (1992) 7 WAR 587

Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

West & Anor v State of New South Wales & Anor [2007] ACTSC 43

List of

Texts/Papers cited: ACT Law Reform Advisory Council, Review of the Discrimination Act 1991 (ACT) Final Report (2015)

Stephen Colbran, et al, Civil Procedure: Commentary and Materials (LexisNexis Butterworths, 7th ed, 2019)

DC Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019)

Date of Reasons for Decision: 28 September 2021

1. The application by the respondent challenging the jurisdiction of the tribunal is dismissed.

2. The matter is to be listed for further directions on a date to be advised by the tribunal.

1. The reasons below explain why the Tribunal has made the orders set out above. In the reasons below, a reference to 'ACAT' or 'tribunal' refers to the ACT Civil and Administrative Tribunal generally, whereas 'Tribunal' refers to the current member.

2. This decision concerns a complaint filed by the applicant for religious vilification under section 67A of the Discrimination Act 1991 (Discrimination Act). The respondent filed an interlocutory application on 23 February 2021 to dismiss the application on the grounds that the tribunal lacked jurisdiction to deal with the application.

3. The Tribunal has decided that the respondent's interlocutory application to dismiss the application on the grounds that the tribunal lacks jurisdiction (both substantively and geographically) should be dismissed. The Tribunal has found that the challenges made by the respondent do not satisfy the Tribunal that the claim is bound to fail under the relevant tests for summary dismissal that apply under ACT law. The matter will be listed for further directions regarding the future conduct of the matter on a date to be advised by the tribunal.

4. As stated above, this decision concerns an interlocutory application filed by the respondent on 23 February 2021 seeking dismissal of the applicant's complaint on the ground that the tribunal lacked jurisdiction.

5. The applicant filed a complaint alleging unlawful vilification under section 67A of the Discrimination Act with the Human Rights Commission (HRC) on 16 October 2019. The complaint was referred to ACAT on 6 July 2020 in accordance with section 53A of the Human Rights Commission Act 2005.

6. The applicant filed and served a document on 2 October 2020 which set out each act, fact, matter, circumstance or thing which he said amounted to unlawful discrimination under the Discrimination Act which was the subject of the complaint to the HRC and the orders sought (Applicant's Particulars of Discrimination). Further and better particulars of the complaint were provided by the applicant during the period 18 November 2020 to 23 November 2020.

7. The jurisdictional objections were originally raised in the respondent's points of response to the Applicant's Particulars of Discrimination filed on 3 December 2020 (Points of Response). The applicant made submissions in response to the Points of Response on 25 January 2021 (Applicant's Submissions). Witness statements were filed by the parties in the proceedings that were admitted into evidence at the hearing of the interlocutory application. On 25 January 2021 the applicant filed the witness statements of Kahlil Farah (Farah Statement)[1] and Dany El Khoury (El Khoury Statement).[2] On 22 February 2021 the respondent filed the witness statement of Duncan Campbell (Campbell Statement).[3] On 23 March 2021 subpoenas were issued to the applicant, Ms Rahme and Mr El Khoury to produce material in relation to the events described below under the heading 'Events' but the recipients of the subpoenas advised that there was nothing to produce.[4]

8. A hearing was conducted on 13 April 2021. The respondent filed further detailed submissions on the day of the hearing on 13 April 2021 which elaborated the points of response (Respondent's Hearing Submissions). Pursuant to a timetable set at the hearing regarding the application of Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller[5] (Voller), the respondent filed submissions on 27 April 2021 and the applicant made further submissions on 11 May 2021.

9. The applicant, Mr Farah, has resided in the ACT since 1988.[6] Mr El Khoury has resided in the ACT for about 21 years.[7] The applicant and Mr El Khoury are members of the Maronite Catholic Community. The members of this community share information about issues concerning the community by "word of mouth", "social media chat rooms" and "social media pages".[8]

10. The respondent, Mr Sandilands, is the co-host of 'The Kyle & Jackie O Show' breakfast program on the commercial radio station known as KIIS106.5 (Breakfast Program).[9] The Breakfast Program is produced and broadcast by the Australian Radio Network Pty Limited (ARN) and/or one of its subsidiaries. The Breakfast Program commences at 6am on each weekday, and usually concludes at approximately 10am.[10]

11. The Breakfast Program is broadcast via its terrestrial signal live into Sydney. The Breakfast Program is not broadcast live into other capital cities, for reasons including ARN's limited licence area.[11] On the relevant date, the Breakfast Program was not broadcast into the ACT via live terrestrial signal.

12. ARN makes its programs, including the Breakfast Program, available in digital audio form as podcasts accessible from the websites of ARN's various radio broadcast brands. It also records audio-visual film footage of the Breakfast Program and uses some of this footage for publication to the station's related social media platforms (such as Instagram and Facebook). The respondent alleges that he does not control or get involved in the publishing of content on ARN's websites or social media.[12]

13. The live segment during which Mr Sandilands made comments that are the subject of the complaint (the Segment) was broadcast on the morning of 18 September 2019 at approximately 9:22am. Mr Sandilands was at ARN's studios in Sydney for the live broadcast.[13] A transcript of the relevant part of the Segment is reproduced below in Annexure A. Annexure A has extracted portions of the Segment where the respondent made the comments that are referred to in the Applicant's Particulars of Discrimination and witness statements,[14] together with the context of those statements. A longer transcript of the Segment was admitted into evidence during the interlocutory proceedings.[15]

14. On or about 3pm on 18 September 2019 the applicant heard about "Mr Sandilands' comments" "from a group of the staff at work" who were discussing "what Mr Sandilands said on the radio".[16]

15. At around 3pm on 18 September 2019, members of the Maronite Catholic Community began discussing in group conversations on WhatsApp what "had allegedly been said by Mr Sandilands on live radio that morning".[17]

16. At around 6pm on 18 September 2019, the applicant's wife, Ms Rahme, sent Mr El Khoury a "link by text message" to hear the words spoken by Mr Sandilands.[18]

17. The applicant arrived home at about 6:30pm on 18 September 2019 and learned that Ms Rahme had also learnt of "the words spoken by Mr Sandilands from members of the Maronite Catholic Community".[19] Several of Ms Rahme's friends had called her and "told her how horrible Mr Sandilands' attack was on the Virgin Mary" and they "sent her the link so we can hear it ourselves".[20]

18. At around 7pm on 18 September 2019, the applicant and Ms Rahme "looked at Facebook together to hear the words spoken by Mr Sandilands".[21]

19. At an unspecified time and date, a podcast which included the Segment was placed on the website of KIIS FM web site (the Podcast).

20. At approximately 4:30pm on 19 September 2019, audio-visual film footage from the previous day's Breakfast Program, which included footage of the Segment (the Social Media Material) was posted onto the following social media accounts:

21. A number of complaints were made about the Segment on 19 September 2019 and the Social Media Material was removed from the Social Platforms at approximately 7pm on 19 September 2019.[23] The Podcast was edited to remove the Segment during the morning of 20 September 2019.[24]

22. At the relevant time section 67A of the Discrimination Act stated as follows:

(1) It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

1 screening recorded material at an event that is open to the public, even if privately organised

2 writing a publicly viewable post on social media

3 speaking in an interview intended to be broadcast or published

5 wearing or displaying clothes, signs or flags observable by the public

Note Serious vilification is an offence under the Criminal Code, section 750. ...

(a) make a fair report about an act mentioned in subsection (1); or

(b) communicate, distribute or disseminate any matter consisting of a publication that is subject to a defence of absolute privilege in a proceeding for defamation; or

(c) do an act mentioned in subsection (1) reasonably and honestly, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter. ...

Particulars of discrimination alleged by the applicant

23. The applicant submitted that Mr Sandilands' comments broadcast on 18 September 2019 incited hatred toward, revulsion of, serious contempt for or severe ridicule of people of the Christian faith on the ground of their religious conviction.[25]

24. The applicant asserted that it is uncontroversial that the act was done "other than in private". Mr Sandilands' comments were broadcast on live FM radio, and the comments were later republished on publicly viewable posts on social media during the afternoon of 19 September 2019.[26]

25. The applicant pointed to the religious vilification provisions under Victorian legislation that were discussed in Catch the Fire Ministries Inc v Islamic Council of Victoria[27] (Catch the Fire) which provides guidance as to the operation of section 67A of the Discrimination Act. The provisions of both Acts follow the 'incitement model' and in particular that it is not necessary to prove that:

The effect of the conduct in question should generally be measured from the perspective of the ordinary member of the class of persons to whom it was directed. The conduct must do more than merely convey hatred, serious contempt, severe ridicule or revulsion; it must have the capacity to 'incite' this response in others. These phrases should be given their ordinary meaning, and the conduct need produce only one of the responses.[29]

27. The applicant further contended that both Nettle and Neave JJA in Catch the Fire emphasised that the identity of the people who were the audience for the respondent's conduct is significant when determining whether the conduct had the relevant effect. As stated by Nettle JA:

... a statement made about religious beliefs in the course of a talk-back radio broadcast could run foul of ... the Act while the same thing said as part of intellectual discourse within a seminary or faculty of theology would not have that effect..[30]

28. The applicant alleged that "Sandilands, throughout the broadcast of the Kyle and Jackie O program, made a number of derogatory, derisive and offensive comments directed at biblical miracles, the fidelity and honesty of the Virgin Mary, and the intelligence and gullibility of people of the Christian faith."[31] The following table is quoted from the Applicant's Particulars of Discrimination which alleged the following implications of the comments in the Segment.[32]

"some other bastard parted the ocean... that's bullshit too"

Attack on Moses as a 'bastard'; attack on the parting of the Red Sea by Moses as 'bullshit'

"and Jesus walked on water... because he's a magic man"

Comparison of Christ's mission and miracles with the analogy of "an old fake rubber thumb that used to pull off', implying Christ was a trickster or a cheat seeking to deceive those around him.

"You might believe everything that's written down 2000 years ago to be absolutely accurate, and good on you, you're dumb. That's all I'm saying. Dumb as dog-shit... if they're your beliefs, good on you"

Direct attack on Christians as 'dumb' for professing a belief in the Bible and scriptures. Use of phrase 'dumb as dog-shit' a sign of bad faith and an attempt to mock Christians as gullible, naive and stupid. Use of sarcasm in 'good on you' a further put-down of Christians and an invitation to the audience to share Sandilands' contempt for and ridicule of 'dumb' Christians

"Right ... and the mother, the mother lied obviously ... and told everyone 'no oh I got pregnant by a magical ghost'. The dumb husband believed that bullshit story, and then run around telling everyone 'my son is the son of God'. Bullshit. She got...someone chock-a-blocked her behind the camel shed. And' "she lied ... and everyone believed it! For thousands of years."

Attack on Mary, the mother of Jesus as a liar; denigration of the Immaculate Conception as founded on lies. Mary is attacked as being unfaithful, with an extremely crude, vulgar and malicious suggestion she was 'chock-a-blocked 'behind a camel shed'. Further reference to the naivety, gullibility and stupidity of those who profess a belief in the Immaculate Conception.

"Oh I got pregnated [sic] by a giant man in sandals"

Further attack on Mary as a liar; denigration of the Immaculate Conception

29. Taken collectively, said the applicant, the above comments of Mr Sandilands (among others) amount to unlawful discrimination under the Discrimination Act on the basis that they incite serious contempt and severe ridicule of Christians on the grounds of their religious conviction.[33]

30. The applicant alleged that the respondent's comments were directed at listeners of the Kyle and Jackie O program, "one of the most listened to programs broadcast in the FM market in Australia."[34] The applicant submitted that:

These listeners were not, by way of reference to the comments of Nettle JA, audience members in a faculty of theology, and nor were [Mr Sandilands'] derogatory comments delivered as part of any kind of intellectual discourse. His crude, crass demeanour was deployed to garner controversy, to mock Christians and Christian beliefs for the purpose of cheap humour, and to invite his audience to share in his ridicule of 'dumb as dog-shit' Christians.[35]

31. Relying on Burns v Radio 2UE Sydney Pty Ltd[36] (Burns v 2UE) the applicant asserted that the respondent's comments were capable of inciting an ordinary reasonable listener to hold feelings of serious contempt for or severe ridicule of Christians. Burns v 2UE dealt with derogatory comments made about a homosexual couple during radio broadcasts by presenters Steve Price and John Laws. Referring to the couple who were contestants on the television program The Block, Laws and Price complained about "gay blokes" taking over the show, labelled them as a "couple of poofs" and commented "I don't know what's happened to Kerry's taste" a reference to Channel 9 owner Kerry Packer. The NSW Administrative Decisions Tribunal (NSW ADT) held that the comments were capable of urging, spurring or stimulating an ordinary reasonable listener to ridicule homosexual men on the ground of their homosexuality. In Burns v Radio 2UE, the NSW ADT made the following comments:

... the conduct is that of people with a high profile in the community...

He [Price] is a nationally recognised broadcaster who was broadcasting at a prime time on one of Australia's most listened-to radio stations. His standing as a public figure and commentator, whose business was in part to propagate his opinion, gives his comments considerable weight in the minds of ordinary listeners.[37]

32. The applicant submitted that Mr Sandilands, similar to Price and Laws, is a nationally recognised broadcaster with significant influence. In Burns v 2UE, Price and Laws engaged in a similar form of ridicule as the respondent, seeking to mock the contestants, and by extension homosexual persons, for the purposes of humour. All three respondents in the case, being Radio 2UE Sydney, Laws and Price were found to have engaged in unlawful vilification.[38]

33. The Tribunal will quote from the Applicant's Particulars of Discrimination regarding the respondent's statements in the Segment and the potential application of section 67A.

12. Sandilands' comments themselves constitute severe ridicule, labelling Christians as being 'dumb as dog-shit' and implying the Virgin Mary was a lying, adulterous woman. More importantly, however, is the fact that his comments were capable of inciting others to 'more than mere mockery or derision, but to harsh or extreme mockery or derision: that is, severe ridicule'.[39] The nature and derisive tone of Sandilands comments, including his use of vulgar language and expressions, are capable of leading an ordinary listener to have understood that they were being incited to severe ridicule of Christians based on their religious beliefs. Sandilands' nature and tone are also demonstrative of the unreasonableness of his behaviour, in the sense that doubts in the veracity of biblical miracles can be expressed cogently without the need for recourse to offensive language and imagery. [footnote added]

13. The underlying theme that persists in Sandilands' comments is that Christians are naive, gullible and stupid for professing a belief in biblical miracles. Sandilands, in a derisory way, directly addresses and congratulates Christians for holding those beliefs, by stating 'good on you'. He uses what he deems to be the implausibility of biblical miracles and the Immaculate Conception as a vehicle by which he launches an attack on the intelligence of Christians, mocking them and holding them in contempt for expressing those beliefs.[40]

34. The applicant sought various orders in the proceedings including that the respondent:

(d) pay a nominated amount by way of compensation to the applicant.[41]

35. The respondent's jurisdictional objections were twofold:

(a) Substantive jurisdictional objection: The respondent argued that the applicant's complaint failed to allege any material facts giving rise to the 'other than in private act' by the respondent necessary to make out the elements of section 67A. Accordingly, there is no basis upon which the Tribunal can uphold the applicant's complaint even taking it at its highest.

(b) Geographical jurisdictional objection: Even if the applicant's complaint could be construed as extending to an 'other than in private' act of the respondent, the respondent did not perform that act in the ACT and his conduct is therefore beyond the geographical reach of section 67A properly construed. Accordingly, the Tribunal has no jurisdiction to determine the complaint.[42]

Respondent's contentions: the substantive jurisdictional objection

[t]he Breakfast Program is broadcast via its terrestrial signal live into Sydney only, and it is not broadcast live into any of the other capital cities, for reasons including its limited licence area.[43]

37. The respondent argued that the following must therefore be accepted:

The only alleged conduct of the [r]espondent is the making of comments about the Virgin Mary in a live radio broadcast of the Breakfast Program on the morning of 18 September 2019.
Neither the [a]pplicant nor Mr El Khoury (or apparently Ms Rahme) listened to the [r]espondent's live radio broadcast. There is no evidence that anyone in the ACT listened to the live radio broadcast.

The applicant may have 'heard about' the Segment from staff at work discussing it in the afternoon of 18 September 2019... Mr El Khoury may have heard about the Segment from members of the Maronite Catholic community in a WhatsApp conversation in the afternoon of 18 September 2019... Ms Rahme, was sent a link from her Maronite Catholic friends which apparently led to a Facebook post which the [a]pplicant and Ms Rahme were able to 'look at' to 'hear' the Segment. This same link, forwarded by Ms Rahme to Mr El Khoury, was also the way in which Mr El Khoury says he 'heard' the [r]espondent's comments.[44]

38. The respondent contended that the live radio broadcast of the Segment in NSW and the act by which the applicant and Mr El Khoury claim to have later heard the Segment in the ACT are two independent acts, the former being the only act for which the respondent was responsible but the latter being the subject of the applicant's complaint. The latter was described in the respondent's submissions as a "third party act".[45] The respondent argued that there is a distinction between the act of a radio presenter making comments on live radio (as was the case of the respondent and the Segment) and the active transmission of those comments later by someone other than the radio presenter. This was considered in the case of Jones v Trad[46] (Jones v Trad). In Jones v Trad both the relevant acts (which constituted a relevant public act for the purposes of the NSW racial vilification provision) consisted of a live radio program that both the presenter and the radio station knew would be transmitted immediately to their audience. As stated by Ward JA:

[E]ach case must be considered on its own facts. Here, Mr Jones spoke the words in question that were almost immediately broadcast to his radio audience by Harbour Radio. Such a communication is in my view a public act within s 20B(a).[47]

39. Emmett JA noted that it was relevant to the finding of 'public act' in that case that the radio presenter was aware that his words would be immediately broadcast by the station. Further, this conclusion might be different if the relevant act was a subsequent or retransmitted broadcast performed at the discretion of the radio station. His Honour stated:

Mr Jones engaged in a public act in compiling and speaking the content of the Broadcast, knowing that it was to be transmitted almost immediately in the performance by Harbour Radio of its contractual obligations to him and to Belford under the Service Agreement.

The position may be different if the compiling and speaking of the content of a program were intended for subsequent transmission at the discretion of a licensed broadcaster.[48]

40. The respondent argued that the situation in Jones v Trad was whether a distinction could be drawn between the acts of the presenter himself, Mr Jones, and the acts of the radio broadcaster, and whether these could be seen as independent acts. It was accepted in Jones v Trad that they were independent acts, but both of the respondents, i.e. both of the actors, were 'on the hook' for the conduct complained of there, which was the live broadcast because both of them were aware that their actions were immediately transmitted to their audiences. Here the applicant contends that he has been vilified by a separate communication from someone that we do not know the identity of. Unlike Jones v Trad we do not have all the actors in the proceedings, particularly the third-party actors.

41. The respondent pointed to Burns v Sunol[49] (Burns v Sunol) as authority for this proposition that the respondent's act in the present case was not an 'other than in public' act. In Burns v Sunol the NSW ADT made the findings regarding 15 passages of text which were allegedly communicated to the public. In respect of the 15th passage, which consisted of republication of part of an email composed by Mr Sunol in 2003 and appearing on a website, the NSW ADT held the following:

35. On the other hand, it is not clear from the evidence relating to publication no. 15 that any such invitation existed on a website maintained by Mr Sunol. Mr Sunol did not deny that he composed an email including the material in question, that this material was accessible on the internet on a website maintained by someone other than himself, or indeed that it was possible for internet users who had logged into his website to discover the link giving them access to the material. But we do not believe this to be enough to render Mr Sunol responsible for the 'public act' of communicating the material to the public by means of the internet.

36. Our overall conclusion, therefore, is that Mr Sunol was responsible, in the relevant sense, for the 'public act' whereby the first 14 of the 15 passages of text quoted above were communicated to the public. But he was not responsible for the publication of no.15.[50]

42. The respondent said that the circumstances surrounding the communication of the 15th passage of text in Burns v Sunol are analogous to the circumstances in the present case insofar as:

the [r]espondent ... is the author of the original impugned material; and
the material was posted by a third party to a third-party website separate to, and without any action from, the [r]espondent.[51]

43. Therefore, argued the respondent, he was not responsible for, and had no control over or knowledge of, the publication by the third party, and therefore cannot be liable for that publication as the relevant 'other than in private' act for the purposes of section 67A.[52]

44. The reason, said the respondent, that it is critical to accurately identify the relevant 'other than in private' act is because it is essential for determining who the intended audience of the act was, which in turn determines whether the act has the necessary quality of being able to 'incite'. This is explicitly recognised by Nettle JA in Catch the Fire, in Sunol v Collier (No 2)[53] (Sunol v Coller (No 2)) and more recently in Margan v Manias[54] where Gleeson JA stated as follows:

77. The question of whether conduct has the capacity to incite the requisite emotion is ultimately one of fact in the context in which the public act takes place. ... The particular class to whom the public act is directed may be taken to be aware of various matters which contextualise the public act. ... It is an assessment based upon the characteristics of the ordinary member of the particular audience to whom the public act is directed.

78. It is for this reason that the identification and nature of the audience are essential for the purpose of determining objectively whether an ordinary member of that audience would be likely to be incited ...[55]

45. Gleeson JA also commented that the cases emphasise the importance of the context in which a public act occurs when analysing whether multiple public acts should be treated separately or conjunctively. 'Context' includes temporal and geographical factors_._[56]

46. The respondent argued that there was insufficient evidence available to the Tribunal to conclude either that:

the Third Party Act had the relevant capacity to incite; or
the Third Party Act was done "other than in private" particularly as the Third Party Act is said to have consisted of a friend in the Maronite Catholic community forwarding a link to Ms Rahme and Ms Rahme forwarding the link via 'text' to miss to Mr El Khoury. Even if the evidence was sufficient to satisfy the tribunal of those elements that person is not been made respondent to the proceedings and there is nothing for the tribunal to determine as against them.[57]

Respondent's contentions: the geographical jurisdictional objection

47. As stated above, in summary, the respondent argued that even if the applicant's complaint could be construed as extending to an 'other than in private' act of the respondent, the respondent did not perform that act in the ACT and his conduct is therefore beyond the geographical reach of section 67A properly construed. Accordingly, the Tribunal has no jurisdiction to determine the complaint.[58]

48. The respondent contended that the geographical jurisdictional objection is an exercise in statutory interpretation, that is, construing whether the words of section 67A are intended to encapsulate conduct occurring outside the ACT or whether it only relates to conduct occurring inside the ACT. If the Tribunal determines that the 'other than in private act' complained about is the live radio broadcast by the respondent on the morning of 18 September 2019, the respondent did not perform that act in the ACT and his conduct is therefore beyond the geographical reach of s67A properly construed. The question arises as to whether section 67A has extraterritorial application sufficient to apply to conduct that occurred in NSW.[59]

49. There is a common law presumption against extraterritorial operation of statutes.[60] The respondent notes that the question of whether the presumption has been rebutted to give a provision extraterritorial operation is different from the question of whether or not a state or territory is able to legislate extraterritorially. The ability to legislate extraterritorially has been held to hinge upon the existence of a connection between the enacting state and the extraterritorial persons, things and events on which a state or territory law operates.[61] The presumption is said to be reflected in provisions of the various interpretation statutes in each State and Territory, including section 122 of the Legislation Act 2001 (Legislation Act). Being a presumption, it may be rebutted by express words or a contrary intention.[62]

50. The respondent noted that it is not doubted that the ACT Legislative Assembly has the ability to legislate extraterritorially if the requisite connection exists; but the question is rather whether it has done so in section 67A. That comes down to the question of the proper construction of section 67A according to the principles of statutory interpretation and whether there are express words or a contrary intention to rebut the presumption against extraterritoriality.

51. The respondent relied on the summary of the principles of statutory interpretation in the ACT set out by Murrell CJ in Legal Practitioner P1 v ACT Civil and Administrative Tribunal[63] as follows:

19. ... [T]he starting point is a consideration of the text of the legislation ...

20. In order to understand the meaning of statutory text it may be necessary to consider the context of the provision in question, including the legislative context and the general purpose and policy of the provision...

21. Chapter 14 of the Legislation Act ... provides guidance about the interpretation of Acts, but it is not intended to be a comprehensive statement of the law of interpretation as it affects ACT Acts and it assumes that the common law presumptions operate in conjunction with the Legislation Act: s 137. Section 139 of the Legislation Act reflects the common law and requires that, when resolving an ambiguous or obscure provision of an Act, preference be given to the interpretation that would best achieve the purpose of the relevant Act.[64] [emphasis added]

52. The respondent argued that section 67A is not a 'result' or 'effect' provision. Rather the provision is directed to conduct that 'incites' and quoted Nettle JA in Catch the Fire, who said of the term 'incite' in section 8 of the Racial and Religious Tolerance Act 2001 (Vic) (Racial and Religious Tolerance Act):

...incitive conduct is capable of contravening s.8 without necessarily causing hatred or serious contempt or revulsion or serious ridicule. As with the common law criminal offence of incitement, I view s.8 as directed to inchoate or preliminary conduct, whether or not it causes the kind of third party response it is calculated to encourage. In that sense, the section is prophylactic.[65]

53. In this sense, said the respondent, the unlawful vilification provisions in Victoria, NSW and the ACT are not what is commonly referred to as 'result' provisions (or 'result offences' in a criminal law context). As Nettle JA described, they are directed to "inchoate or preliminary conduct", or conduct that is anticipatory or preparatory, rather than conduct that provides an actual result. In this sense, as Nettle JA said, the provision is "prophylactic" in that it is focused on preventing or warding off conduct rather redressing its effects.[66]

54. The respondent further argued that the nature of section 67A as a conduct provision means that its focus may be distinguished from the unlawful discrimination provisions of the Discrimination Act. Unlike section 67A, the unlawful discrimination provisions are focused on results insofar as there can be no discrimination without a particular person sustaining or being proposed to sustain the unfavourable treatment (in the case of direct discrimination) or the disadvantageous effect (in the case of indirect discrimination).[67] This argument is reinforced by the structure of the Discrimination Act as a whole, which separates unlawful discrimination (contained in Part 3, with exceptions in Part 4) from other unlawful acts including vilification (contained in Part 7).[68]

55. Importantly, the respondent further contended that this means that unlawful vilification under section 67A is relevantly different from the tort of defamation which is directed to the results of conduct, namely the damage to the reputation of the defamed person. The respondent said that the High Court's decision in Dow Jones & Co Inc v Gutnick[69] (Gutnick) made this abundantly clear[70] as follows:

The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputation. ... But it is a tort concerned with damage to reputation and it is that damage which founds the cause of action.[71]

56. In relation to the application of defamation law, the respondent invited the tribunal to disregard all defamation law because that area focuses upon publications causing damage to reputation and damage to reputation is not only the result of the conduct, it is also the gist of the cause of action.[72] The respondent further relied the High Court's comments in Gutnick about identifying the relevant place where damage to reputation occurs.[73]

57. However, argued the respondent, the same rationale cannot be used to dispense with a similar concern in relation to religious vilification under section 67A because the conduct under section 67A does not identify any particular person and need not cause any actual incitement. As in the current case, the conduct may refer to an entire religious group. In that sense there is no ability to "limit the scale of the problem" in the same way that exists in respect of defamation where there must be damage to the reputation of an individual. Therefore, the Tribunal should be extremely cautious about adopting concepts derived from the law of defamation to the interpretation of section 67A.[74]

58. In interpreting legislative provisions to examine the operation of the presumption against extraterritoriality, the respondent argued that the question is where the provision focuses its attention.[75] This was recognised by the High Court Insight Vacations Pty Ltd trading as Insight Vacations v Young[76] (Insight Vacations) which considered section 5N of the Civil Liability Act 2002 (NSW) (Civil Liability Act). This case is discussed in more detail below.

59. In this sense, said the respondent, there is no reason to conclude that the presumption against extraterritoriality must be rebutted in order for section 67A to achieve its purpose, as might be required if section 67A had been a "result provision" concerned with the effects of the alleged vilifier's conduct. It is not a situation akin to that in Brownlie v State Pollution Control Commission[77] (Brownlie) where the release of a pollutant by a farmer in Queensland that flowed into the waters of NSW was held to breach the law of NSW notwithstanding the fact that the polluter was a resident of Queensland and had not committed an offence in that state. The Court reasoned that the NSW law extended to acts done in Queensland because the NSW law was a "result offence" and concerned with the results in NSW waters.

60. Therefore applying both Insight Vacations and Brownlie and considering the text of section 67A, the respondent posed the question: what does the provision focus attention on?[78] The respondent said that the provision focusses attention on the conduct of the alleged vilifier and not on the result because the result does not have to happen. Section 67A directs attention to the quality of conduct of the alleged vilifier: where is that relevant conduct to occur? Once section 67A is read as hinged on the conduct of the alleged vilifier, there is no basis for construing the provision as applying to conduct outside of ACT (even if the effects of that conduct might extend that far).[79] Accordingly, there is no basis in the text for concluding that the presumption against extraterritoriality has been rebutted in order to extend the operation of section 67A to conduct of the alleged vilifier occurring outside the ACT.[80]

61. As regards the legislative purpose, when applying section 139 of the Legislation Act and Re Application for Bail by Islam[81] (Islam) there was no reason to limit consideration of purpose to the purpose of the Act as a whole: the purpose of "the Act" may therefore be read as referring not just to the purpose of the Act as a whole but also to the purpose of the provision itself.[82] In ascertaining the purpose of section 67A, the respondent argued that assistance may be gained from resorting to extrinsic materials which describe the mischief that the provision was concerned to address. In addressing this, the respondent took the Tribunal to the parliamentary debates that accompanied the passage of the provision, arguing that the concerns motivating the insertion of the new provision were clearly concerns to regulate the conduct of people in the ACT, and indeed to prevent people in the ACT from engaging in conduct that followed the conduct of 'far right' adherents that had occurred in Western Australia and NSW.[83]

62. Accordingly, the legislative history of the insertion of unlawful vilification into the Discrimination Act supports the narrower construction of section 67A favoured by the respondent.[84] Further, there is an added layer to consider in the ACT in light of sections 28 and 30 of the Human Rights Act 2004 (Human Rights Act). Following the steps set out by Penfold J in Islam, the respondent argued that the interpretation which has the least impact on freedom of expression is one which confines its reach to people who vilify in the ACT rather than one which extends the reach of section 67A to people who vilify anywhere.[85]

63. An earlier decision of ACAT in Bottrill v Sunol[86] (Bottrill No 1) is directly relevant to the present proceedings. In that case, the tribunal found that section 67A extended to acts that had occurred outside the ACT where the material was posted on a website of a NSW resident and downloaded in the ACT. Bottrill No 1 decided that a religious vilification claim by an ACT resident against a NSW resident "is within the ACT jurisdiction so long as it vilifies ACT residents".[87]

64. The respondent contended that aspects of the tribunal's decision in Bottrill No 1 are erroneous. In particular, the respondent disagreed with the tribunal's assessment of the purpose of the Discrimination Act and the reasoning that such purpose means that section 67A is primarily concerned with the result of conduct and the protection of those impacted by such result.[88]

65. The respondent argued that tribunal's analysis in Bottrill No 1 does not accord with the text of section 67A, which is clearly directed to conduct and not results, as explained above. Ultimately, said the respondent, the analysis in Bottrill No 1 gives section 67A extraterritorial operation in respect of the very thing to which the provision is directed, and which must be presumed to be within territorial limits, in the absence of any textual or purposive reason to do so, contrary to the High Court's approach in Insight Vacations.[89]

66. The respondent argued that tribunal's examples in Bottrill No 1, which were drawn to illustrate the correctness of its construction, are also misplaced. The tribunal stated in Bottrill No 1 as follows:

An example that illustrates the mischief being addressed is where a NSW resident in NSW stands near the border of the ACT, and yells into a loudspeaker - so that it can be heard in the ACT - vilifying remarks about classes of people that reside in the ACT or, as here, the complainant. This conduct would surely be proscribed by section 67A. The internet is the equivalent of the loudspeaker.[90]

67. The respondent commented that where the provision is a 'result provision' (as in Brownlie), it may well be readily inferred that extraterritorial conduct is intended to be captured (and the presumption against extraterritoriality rebutted) so as to achieve the purpose of addressing the results of such conduct that occur within territorial limits. But not all provisions are 'result provisions' (and section 67A is not one) and that explains why not all conduct occurring on a 'border' will be subject to the laws of the neighbouring jurisdiction across the border.[91]

68. The tribunal in Bottrill No 1 generally accepted the construction preferred by the ACT Human Rights Commissioner (Commissioner) (intervening as amicus curiae) which concluded that section 67A extended to conduct performed outside the ACT. However, argued the respondent in the present case, the Commissioner's approach was described in several ways which were not entirely consistent with one another.[92] Further, in Bottrill No 1, the ACT Attorney-General argued for a preferred construction of section 67A that aligns with that contended for by the respondent in this case.[93]

69. In any event, even if the Commissioner's preferred approach in Bottrill No 1 were correct, as explained in the discussion of the substantive jurisdictional objection above, there is no evidence of any "facts and circumstances" in this case that would "connect" the respondent's act (i.e. the Segment) with the ACT.[94]

70. The respondent argued that the approach taken by the NCAT Appeal Tribunal in Burns v Gaynor (Burns v Gaynor),[95] should be preferred. In that case, there was a posting in Queensland of vilification material made by the respondent about the complainant who was in NSW. The tribunal member stated:

_In my opinion, there was no relevant public act by Mr Gaynor in NSW. His acts of posting material on his computer were public acts but they took place in Queensland. It was the separate act of Mr Burns himself, not of Mr Gaynor, which caused the material to be downloaded in NSW. As it happened Mr Gaynor lived in Queensland not far from the NSW border. However, if Mr Burns' argument is correct, a person who never leaves a country which permits (or even encourages) the publication of material vilifying homosexuals and who uploads vilifying material on his computer could be held liable to pay damages under the Act to a complainant if such complainant, or someone else, downloads the material in NSW. This would be so even though the complainant was not known to the uploader and was identified only by reference to a very large class of persons to which the complainant claimed to be a member. In my opinion, such a circumstance is beyond the reach of the NSW Parliamen_t.[96]

71. For these reasons, in the respondent's submission, the tribunal should depart from the reasoning in Bottrill No 1 to the extent that it requires section 67A be given extraterritorial operation covering the alleged 'other than in private act' of the respondent occurring wholly outside the ACT.[97]

72. In summary, the respondent submitted that in the absence of:

the [a]pplicant alleging the requisite material facts to satisfy the elements of s[ection] 67A; and
any extraterritorial reach of s[ection] 67A to encompass the acts of the [r]espondent done outside the ACT,

there is no basis on which the Tribunal can uphold the [a]pplicant's complaint and it must therefore be dismissed.[98]

73. In his written submissions filed on 25 January 2021, the applicant made the following arguments. These arguments were elaborated during the interlocutory hearing (as discussed below) by reference to the evidence that had been filed and the inferences that the applicant argued are available in the context of the relevant standard that applies to an application for summary dismissal.

74. The applicant rejected the respondent's jurisdictional objections and relied upon analogous ACAT discrimination decisions such as Bottrill No 1 and Clinch v Rep[99] (Clinch No 1) to support this position. The applicant said that several propositions put by the respondent are contrary to High Court authority in Gutnick on the issue of republication and Momcilovic v The Queen (Momcilovic)[100] regarding statutory interpretation. Regarding the interpretation of section 67A, the applicant contended that the respondent's arguments about its purpose and the tribunal's jurisdiction are entirely inconsistent with the decisions by ACAT to date in Bottrill No 1 and Allatt & ACT Government Health Directorate (Allatt).[101]

75. The applicant said that Bottrill No 1 is "apt" in the current circumstances.[102] That case decided (as stated above) that a religious vilification claim by an ACT resident against a NSW resident "is within the ACT jurisdiction so long as it vilifies ACT residents".[103] Therefore, the tribunal decided it had jurisdiction under section 67A to the extent the applicant suffered the effect of the religious vilification in the ACT. Bottrill No 1 applies here to ground ACAT's jurisdiction for an alleged breach of section 67A by the respondent in NSW because the applicant felt the effect of the breach in the ACT.

76. The applicant also supported the statement of statutory purpose in Bottrill No 1: "to protect the persons that have the attributes that should not be vilified or be the subject of the discrimination".[104] Further, in Clinch No 1, the tribunal decided that witness statements that show the material was accessed in the ACT was sufficient to overcome jurisdictional objections by the respondent.[105]

77. The applicant argued that statements had been filed by witnesses in the present case that established an "irrefutable connection of the matter with the ACT" because the witnesses heard the respondent's words within the ACT and felt the effects of the religious vilification in the ACT, including ridicule and hatred.[106] The alleged unlawful act is constituted by the words spoken by the respondent which were reproduced in the original particulars filed by the applicant on 2 October 2020. These words are an identical account of the respondent's words spoken on live radio as evidenced by the official transcript supplied in the respondent's letter dated 2 December 2020. The words spoken by the respondent are thus uncontentious.[107]

78. In the alternative, the applicant disagreed with the proposition that a republication of the respondent's words shifts liability away from the respondent for his unlawful act. As stated in Gutnick, a publisher may be liable for any subsequent republication of unlawful material where that is the "intended or natural and probable consequence of its acts".[108] Further, the High Court in Gutnick approved the NSW Supreme Court's decision in Sims v Wran (Sims)[109] on this point. In Sims Hunt J noted that the 'prominent' position of the defendant (as a publicly known figure) made it natural and probable that other persons would republish the unlawful material.[110] The applicant contended that Sims is apt in the current circumstances given the similarly prominent status of the respondent as a publicly known figure with a large audience and reach. It follows, argued the applicant, that the original publisher may be liable for the subsequent republications of the unlawful material, notwithstanding what form it later took (e.g. from radio to Facebook post). The liability for the unlawful act under section 67A was submitted to remain with the respondent.[111] Further, the tribunal in Bottrill No 1 also accepted this reasoning in the context of section 67A, noting the internet acts as a "loudspeaker".[112] The words spoken by the respondent are what breached the Act and caused the effects of religious vilification among ACT residents. The republication of the respondent's words through social media channels, including by the respondent's employers, does not shift liability away from this unlawful act.

Applicant's contentions: elaboration during the hearing

79. The applicant's primary submission was that, applying the high test for summary dismissal, there is evidence before the tribunal that meets this standard at this stage and therefore the tribunal should let it go through to final hearing. The applicant should not be denied his rights to final hearing in light of there being evidence at least from which inferences are available that ground the elements of section 67A.

80. The applicant argued that from the moment Mr Sandilands spoke into a microphone on the morning of 18 September 2019 it was inevitable that he would incite people in the ACT. Relying on Gutnick, the applicant said that 'inevitable' here means that it was the natural and ordinary consequence of the act of speaking into that microphone that he would incite people in the ACT in the way described or in the way complained of. Here the natural and probable consequence of his act was that people in the ACT would hear and it transpired that it was so heard. Although the respondent argued that the microphone was somehow limited to Sydney because the radio broadcast only went out to Sydney, the contrary inference is available - inferentially he was speaking to the whole of the country - and that is what the Tribunal should rely on at this stage.

81. The evidence establishes that the relevant statements were republished by ARN[113] but it was heard in the ACT before and after that republication. The Campbell statement states that the programs are ordinarily made available in digital form as podcasts and other material from the websites of their various platforms.[114] The respondent must have known that dissemination of the material would happen or that it was likely or probable that it would happen because segments of his program are regularly put on social media platforms such as Instagram and Facebook.[115] It means that from the very moment he spoke into that microphone he must have known that there was a good chance it was going to go online or at least be available in the ACT. The respondent has not denied that it was his intention that it be heard in the ACT.

82. Relying on the language that was used in Bottrill No 1 and according to the evidence in the Campbell statement, the applicant asserted that the act of the respondent was as if he was standing at the border with a microphone so loud that it could be heard in California.[116] The applicant quoted the Campbell statement as follows: "Mr Sandilands is one of Australia's best known and most successful radio personalities."[117] The applicant noted the geographical ambit of this observation: "it says Australia, not NSW and not Sydney".[118] Further, the applicant noted Mr Campbell had deposed that "[p]art of [the respondent's] success is his on-air persona in which he 'pushes the envelope' or sometimes says outlandish things".[119] The applicant alleges that the reason the respondent is heard all around Australia is because he engages in precisely the impugned speech or conduct that is complained of here.

83. The applicant alleged it was also the respondent's intention to do the acts that are complained of and there is evidence before the Tribunal taken at its highest that can ground this, so the question about which particular publications were heard, what times things were put up and references to apparent third-party acts is really just a "fob" which hides the central question demanded by the legislation which is incitement.[120]

84. So, said the applicant, what the Tribunal is left with at this early stage, taking the inferences and evidence at their highest, is the proposition that the respondent knew that his statements were going to reach the ACT.

85. The applicant argued that the respondent had mischaracterised the relevance of the NSW case law to the present case because the legislation in NSW deals with public acts. This is very different to section 67A of the Discrimination Act. The NSW cases turn on factual propositions about what the acts were and where they occurred. All the NSW cases that discuss public acts are limited in their applicability. All that needs to be established in the ACT is that it was an 'other than in private' act. The 'other than in private' test is self-evidently wider than the 'public act' test in NSW. This widens the ambit of what may be regarded as vilification in ACT.[121] In this case, one cannot compare the acts of the respondent to someone having a spoken conversation with another person in their house. What happened here was something that was done other than in private, in circumstances where it was inevitable that it would be heard in the ACT.

86. The applicant argued that it is the respondent's words that are complained of, not some reframing of them: "[t]here is no need to reframe them, they're all themselves deeply troubling".[122] The current state of the evidence is that the respondent's words were published before the first time that the applicant heard them. That is a scenario that is specifically covered by section 67A. The applicant argued that the Tribunal does not need to descend into the details of the communication because the question for section 67A is did he incite people in the ACT? As stated by counsel for the applicant:

... [D]id he incite people in the ACT? No doubt about it. And as I said, it's like he's standing at the border with a huge microphone. There's no need to decide what mountain it bounced off. It was loud enough to be heard in Los Angeles.[123]

87. To exemplify this point, the applicant referred to the respondent's arguments about substantive jurisdiction and compared the present circumstances to the 15th extract in Burns v Sunol where the NSW ADT found that the relevant publication was not a public act because of the circumstances of the publication. The applicant noted that that communication in that case was put online by someone on an 'obscure' website. In Burns v Sunol, the respondent had no control over the republication on a third-party site and no expectation of [re]publication or repetition of his statements. However, the conduct of the respondent in the present case is comparable to the interview given by the respondent in Burns v Sunol to the Newcastle Herald. That act was held by the NSW ADT to be a public act.[124] In this case, the respondent must have known that it would be republished because this is his way of communicating with the whole of Australia. And that republication had occurred in a manner and ways that were a verbatim account of what he said; the actual words were broadcast.

88. The applicant emphasised that the presumption of non-extraterritoriality would not be as strong with respect to interstate matters, as opposed to international matters. Regarding the respondent's arguments that section 67A is a conduct provision, the applicant argued that the facts in the present case cover both conduct and effects: if the respondent was always going to speak across Australia and the communication is always going to be heard, then the conduct is inciting in the ACT. So one has both the conduct and the result or effects.

89. Regarding the application of Bottrill No 1, the applicant argued that the present Tribunal should not lightly depart from the decision in Bottrill No 1 because it could not be satisfied that it is plainly wrong. Bottrill No 1 was thoroughly argued and involved interveners including the Attorney-General and the Commissioner. Further, the applicant recognises the need for an ACT connection, but this may be established in multiple ways. One way is the questionnaire administered by the HRC.[125] Another way may be that it is a natural and ordinary consequence of inciting conduct in the ACT that occurs due to the act of speaking in NSW. However, as stated in Bottrill No 1, this may not address all the ways that there is an ACT connection.[126]

90. The applicant argued that one can see a statement in Bottrill No 1 that the clear statutory purpose is to protect persons that have the relevant attributes[127] and those persons are ACT residents.[128] It is not appropriate to rely on the parliamentary debates to establish a jurisdictional limitation in section 67A as the respondent has done here. It is one thing to rely on a second reading speech if there is a major ambiguity but it is unsafe to rely on the parliamentary debates: it amounts to guesswork about Parliament's intention.

91. For both the substantive and the geographical objections, the applicant pointed to the evidence that had been led by the respondent, particularly the Campbell statement, about the respondent's audience. The applicant invited the Tribunal to distinguish between what is described as the 'audience' in that evidence[129] and the people that the respondent was seeking to communicate with. As stated above, the applicant said that the respondent's success as a persona involves pushing the envelope and saying outlandish things that are not politically correct. In doing that, he is communicating with people beyond his 'audience'. There is a danger in focussing on the idea of the audience that is set out in the Campbell statement. In the applicant's submission, the idea that the respondent thought he was only speaking to some defined number of people is an absurdity. The contrary inference is available and that is what the Tribunal should rely on at this stage.

92. The Tribunal should not decide at this stage that the audience definitively did not include people in the ACT, because there is an available inference in favour of the applicant, and there is evidence that supports this inference. There may be further examination of the facts in the final hearing for example, by cross-examination. But at this stage, the utility of the evidence in support of the applicant's case is clear.

The general requirements that must be established by the respondent for summary dismissal**

93. President Neate expounded the principles relevant to an interlocutory application of this kind, that is, an application for summary dismissal, in Errington & Anor v ACT Planning and Land Authority (Errington).[130]

94. In Errington the President stated:[131]

The tribunal should not lightly strike out any application. Counsel for the ACT Planning and Land Authority ... acknowledged that his client accepted the high onus and that orders of this kind are made sparingly. He referred the tribunal to the judgments of the High Court of Australia in General Steel Industries Inc v Commissioner for Railways (NSW)[132] (General Steel) and the ACT Supreme Court in Galovac Pty Ltd v Australian Capital Territory[133] (Galovac).

95. Jagot J stated the relevant principles succinctly in Galovac as follows:

(1) The party seeking summary judgment faces a "very high threshold" (Financial Integrity Group Pty Limited v Scott Farmer & Anor [2009] ACTSC 143 at 12). [Financial Integrity]

(2) The lack of a cause of action must be "clearly demonstrated" (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129).

(3) The procedure calls for "exceptional caution" (General Steel at 129).

(4) The necessity for argument, even extensive argument, is no bar. However, as soon as it appears that there is a "real question" to be determined on which relief depends, the summary judgment procedure is not available (General Steel at 130 citing Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91). [Dey]

(5) Mere implausibility of the claim or improbability of success is insufficient; there must clearly be no real question to be tried in the sense that the claim is bound to fail (Seven Network Ltd v News Ltd (No 4) (2005) 214 ALR 686; [2005] FCA 244 at [14] citing Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1 (Ch D) at 5; [1991] 4 All ER 961 at 965).[134]

(6) The application is to be assessed on the assumption that every fact pleaded by the plaintiff is true (West & Anor v State of New South Wales & Anor [2007] ACTSC 43 at [9]). [West]

(7) The application must be determined on the substance, not the mere form or expression, of the claim (Financial Integrity Group at [15]).[135]

96. This may be described as the 'traditional approach' to the summary jurisdiction where the court finds that actions and defences should not be permitted in the ordinary way because it is apparent that they must fail.[136] The present Tribunal notes criteria 1 to 5 of Jagot J's principles, in particular the very high threshold that must be achieved by the applicant for summary dismissal. Further statements in the case law emphasise the need for "exceptional caution" and there must be no real question to be tried in the sense that the claim is bound to fail. In relation to criteria 1 to 5, the Tribunal extracts a portion of Refshauge J's judgment in Financial Integrity which emphasises these elements:

12. The principles on which such applications are determined are generally not in doubt... The test to be applied was expressed by Dixon J in Dey v Victorian Railways Commissioners... as being reserved for "exercise as to actions that are absolutely hopeless".

13. In General Steel Industries Inc v Commissioner for Railways (NSW), Barwick CJ said (at 129-30) in a passage since quoted many times:

... It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action ... is clearly demonstrated. The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so as to speak apparent at a glance". ...

... Dixon J (as he then was) sums up a number of authorities in Dey v Victorian Railways Commissioners where he says: "A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court ... in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiffs so clearly untenable that it cannot possibly succeed. [footnotes omitted] [137]

97. Regarding the procedural aspects of this application, the Tribunal notes criterion 6 of Galovac, where Jagot J stated that the application is to be assessed on the assumption that every fact pleaded by the plaintiff is true. In this respect, the Tribunal quotes from West as follows:

In an application to strike out a pleading on the ground that it discloses no reasonable cause of action, it is not appropriate to consider at all the strength of the evidence that may be presented at any future trial. The application is to be dealt with on the assumption that every fact pleaded by the plaintiffs is true (and capable at the end of the day of being supported by credible and admissible evidence), and the Court should only strike out the pleading if it is bound to fail even if all the allegations are proved. Thus, it is no part of this proceeding to determine the strength of the evidence or whether the allegations made in the plaintiffs' statement of claim are true and able to be proved.[138]

98. The Tribunal notes that the necessity for argument, even extensive argument, is no bar and Refshauge J in Financial Integrity commented that arguments of law might be raised in applications for summary dismissal.[139] However, the role of the decision-maker in an application for summary dismissal is carefully delineated. Traditionally the courts relied upon the pleadings filed in the proceedings, supplemented by affidavits.[140] This enabled the court to address the substance of the claim and not the mere expression of it.[141] However, as Refshauge J warns in Financial Integrity the use of affidavits "is not designed to encourage, or perhaps even permit, the court to adjudicate on matters of fact".[142] His Honour noted:

The rules themselves do not permit the deponents of affidavits to be cross-examined without leave[143] and such leave will not readily be granted: Trinity Enterprises Pty Ltd v Drum Services (WA) Pty Ltd.[144] No deponent of any affidavit received by me in this application was cross-examined.[145] [footnotes added]

99. The reason for this approach is that it is inappropriate to proceed to summary dismissal where there is a conflict on matters of fact.[146] Doyle J of the Supreme Court of South Australia in Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd[147] (Adelaide Brighton) recently explained that the exercise of the power requires a "practical assessment"[148] and that the court should not embark upon a "mini trial" of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court's decision must be based.[149] His Honour differentiated between the exercise of the Court's power to strike out and summarily dismiss, noting that the:

difference between the two mechanisms for challenging an applicant's claim lies in the nature and focus of the challenge. The power to strike out ... is directed to the applicant's Claim or pleading ... whereas the power to dismiss is directed to the applicant's action ... The focus of the former is ... upon the articulation of the applicant's case in the relevant document, usually a pleading. And the focus of the latter is upon the applicants case itself.[150]

100. Connolly J in West commented that the cautious 'traditional approach' to summary judgment is consistent with the statutory recognition of the right to fair trial in section 21 of the Human Rights Act, notwithstanding the new approach to case management and the overriding purpose of achieving a just resolution of disputes as quickly, inexpensively and efficiently as possible which is now set out in section 5A of the Court Procedures Act 2004 and section 7 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act).

It seems to me that the plaintiffs' asserted claim ... is not a claim which can be said to be unreasonable or unarguable. There is no binding High Court authority either way, but that of itself clearly should not preclude the matter going to trial. Indeed, the common law can only develop by way of novel cases going to trial and eventual appellate determination.[151]

102. The approach taken by the courts to summary dismissal must necessarily be adapted to the procedural context of the tribunal. Accepting that ACT law, as expressed by Errington, Galovac and Financial Integrity, maintains the traditional approach to summary dismissal,[152] the Tribunal's task in determining the interlocutory application is to assess whether there is no real question to be tried in the sense that the claim is bound to fail taking into the material provided by both parties at this stage of the proceedings on the assumption that every fact 'pleaded' by the applicant is true. This is discussed in more detail below.

What must be established by the applicant to show a breach of section 67A?

103. The relevant portions of section 67A(1) are underlined below. There is no argument at this stage of the proceedings that the exception in section 67A(2) operates:

1 screening recorded material at an event that is open to the public, even if privately organised

2 writing a publicly viewable post on social media

3 speaking in an interview intended to be broadcast or published

5 wearing or displaying clothes, signs or flags observable by the public

Note Serious vilification is an offence under the Criminal Code, s 750. ...

104. Section 67A has been described as being akin to a 'statutory cause of action'.[153] This description allows the provision to operate by analogy with the general law causes of action that formed the subject matter of cases such as General Steel and Dey. However, the Tribunal does not need to draw too laboriously on this analogy because the question is whether the applicant has provided sufficient material to continue with his claim and resist the application for summary dismissal. The applicant must provide sufficient evidence to establish the 'material facts' which in turn establishes the elements of section 67A. What are the elements of section 67A that need to be established at this threshold? They may be gleaned from the Applicant's Particulars of Discrimination filed on 6 October 2020 and the witness statements filed in the proceedings to date.

105. The tribunal provided a summary of the principles governing vilification in Clinch v Rep (No. 2)[154] (Clinch No 2). These are useful to guide the application of the elements of section 67A:

(b) '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".[155]

(c) It is not necessary to establish any one was incited or an intention to incite.

(d) The act must be capable of inciting the prescribed reactions in an ordinary member of the class to whom the act is directed/the audience or likely audience.

(e) The context in which the act occurred must be used to assess the capacity of the public to incite the relevant reaction.

(f) The persons to who the act is directed, the audience or likely audience must be identified and considered.

(g) The assessment must be made by reference to the 'ordinary' member of the relevant audience.[156] [footnote added]

106. In the present case, the 'material facts' of a section 67A 'cause of action' are as follows:

(a) Person - we have at least one person who is alleged to have performed the acts under section 67A, that is the respondent.

(b) Incite hatred toward, revulsion of, serious contempt for or serious ridicule (this will be described below as incite hatred etc.). The formulation used in Clinch No 2 is "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".[157]

FARAH v SANDILANDS

At a glance

Court

Decision date

Before

Source

Judgment (444 paragraphs)

FARAH v SANDILANDS (Discrimination) [2021] ACAT 92 (28 September 2021)

Parties

Legislation Cited (8)

Cases Cited (27)

Cited By (1)