//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2002] NSWCA 87
appellant. Appeal allowed; the Tribunal’s decision below set aside; leave granted to hear the merits of the complaint; complaint dismissed: [36].
The Appeal Panel held that racial vilification under s 20C does not require proof of an intention to incite. It said the article had to be assessed from the standpoint of an ordinary reasonable reader, with relevant public debate and social and historical context in view. Applying that approach, the Panel understood the article’s references to “the Palestinians” as referring to political leadership and political conduct, not Palestinian people as a racial group. It therefore dismissed the complaint. It also held that the publisher’s broader publication of different perspectives on the relevant political events brought the article within the public-interest exception. The constitutional challenge was left undecided. Although the user’s heading names Lange v Australian Broadcasting Corporation, the supplied judgment text identifies the decision as John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,067 words · generated 01/10/2026
1 cited instrument linked from this judgment.
The supplied text is an appeal decision of the Appeal Panel of the New South Wales Administrative Decisions Tribunal. Its caption identifies the matter as John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35. Although the user’s introductory heading says “Lange v Australian Broadcasting Corporation”, Lange is cited within the supplied decision. It is not the judgment being analysed here.
John Fairfax Publications Pty Ltd appealed a finding that an article published in the Australian Financial Review on 23 December 1998 contravened s 20C of the Anti-Discrimination Act 1977 (NSW). The article was followed by an article in reply one week later. The Tribunal below had found that the first article incited hatred or serious contempt towards Palestinian people on the ground of race, and that no statutory exception applied [1].
The appeal raised questions about the meaning of “incite” in s 20C(1), the proper way to identify the ordinary reasonable reader, the operation of the public-interest exception in s 20C(2)(c), and the constitutional validity of s 20C [2], [27]. The Panel allowed the appeal, set aside the Tribunal’s decision and orders, and dismissed the complaint [36].
The Panel did not reproduce the article. It relied on the Tribunal’s summary, which it described as accurate [29]. Its analysis therefore turns on the text as summarised in the decision below, the article’s political setting, and the meaning that an ordinary reasonable reader would take from the repeated phrase “the Palestinians” [32]-[34].
The Panel first rejected the argument that a complainant had to prove an intention to incite. It accepted that the same statutory word appearing in different provisions may ordinarily be given a consistent meaning, but stressed that this presumption is weak and yields to context [6]. Section 20D, unlike s 20C, is a penal provision and includes an aggravating feature involving threats of physical harm. Section 20C appears among remedial anti-discrimination provisions [8]-[9]. In the Panel’s view, “incite” in ordinary usage can mean to prompt or provoke without necessarily involving a purpose to produce the result [10]. The Panel therefore concluded that intention was not an element of s 20C(1) [10]-[11].
The Panel next addressed the test for deciding whether the article was capable of inciting the prohibited states of mind. It adopted the ordinary reasonable reader as the objective lens. That reader is not an abstract or isolated person, but can read between the lines using general knowledge and experience of worldly affairs [14]. The Panel emphasised a distinction: the issue is what the reader could understand from the publication, not a conclusion reached only because the publication activates the reader’s own beliefs [15]-[16].
Context was important. The Panel held that relevant social and historical circumstances, and awareness of public debate and divergent views, may form part of the reasonable reader’s knowledge and experience [20]-[21]. It did not adopt a test based on a reader being more susceptible to vilification because the group concerned had experienced historical oppression. Rather, it treated such history as potentially relevant context, but only to the extent it could properly be attributed to the reasonable reader’s knowledge and experience [19]-[21].
Applying that approach, the Panel considered what “the Palestinians” meant in the article as a whole. Several statements related to political leadership, peace negotiations, the Gaza and West Bank territories, alleged terrorist attacks and compliance with agreements. The Panel found that those matters were more naturally read as criticism of political leadership and political conduct than as assertions about Palestinian people collectively [32]-[33]. It also considered the article’s setting: the aftermath of a visit by the US President to Palestinian-controlled Gaza and US strikes on military installations in Iraq [33]. The Panel concluded that the article was understood as an attack on political leadership for its conduct, rather than an attack on Palestinian people on the ground of race [34].
The Panel separately reasoned that, even if the article had otherwise met the s 20C(1) threshold, the exception in s 20C(2)(c) applied [35]. That exception concerns a public act done reasonably and in good faith for an academic, artistic, scientific, research or other public-interest purpose, including discussion or debate. The Panel distinguished the reasonableness of doing the act from the content of the act [25]. It also treated the publisher’s broader conduct as relevant: the article was one of several perspectives on Middle East events published between 23 December 1998 and 11 January 1999 [35]. The Panel regarded the publication of competing views as relevant to whether the publisher was providing a forum for debate in good faith [26], [35].
The judgment describes a disagreement in the Tribunal’s earlier decisions about whether s 20C(1) required an intention to incite. The Tribunal below had concluded that intention was not required, relying in part on the second-reading speech and the NSW Law Reform Commission report [5]. On appeal, the Panel affirmed that construction, but grounded its reasoning in statutory text, context and purpose, including the difference between the remedial provision in s 20C and the penal provision in s 20D [6]-[11].
The decision also refined how the reasonable-reader inquiry should be conducted in a racial-vilification complaint. The Panel accepted that the Tribunal had identified an objective reader, but found error in its treatment of social context and public debate. In the Panel’s view, an ordinary reasonable reader is not insulated from the political discussion or historical circumstances surrounding a public act [19]-[21]. Context is relevant, but it must be used as part of the objective assessment rather than as a proxy for the beliefs of a reader whose prejudice has been activated [15]-[16], [19].
The judgment did not resolve the constitutional question. The Tribunal below had upheld s 20C by reference to Lange v Australian Broadcasting Corporation [1]. The Appeal Panel noted that the appellant challenged the section’s compatibility with the implied freedom of political communication, but declined to express a view. It mentioned the possible need for s 78B notices and the absence of assistance from relevant law officers, then said the constitutional issue was unnecessary to decide [27]. The supplied text therefore records no appellate determination on that question.
At [10], the Panel said: “There is no necessary element of intention in the use of the term in everyday parlance.” In plain English, the provision may apply where a public act has the relevant inciting effect or capacity even if the publisher did not intend that result. The Panel did not treat ordinary meaning in isolation; it considered the different statutory settings of ss 20C and 20D [8]-[10].
At [16], the Panel framed the central question as whether an ordinary reasonable reader “could understand from the public act” that they were being incited to one of the specified states of mind. The focus is on what the communication conveys, not on an individual reader’s subjective response or beliefs.
At [21], the Panel said the social and historical context of a public act “must be relevant” to the inquiry, but only insofar as it may be presumed to form part of the ordinary reasonable reader’s knowledge and experience. This makes context relevant without turning the test into an assessment of a particular audience member’s personal views.
At [25], the Panel explained that s 20C(2)(c) requires attention to the doing of the public act, rather than simply whether the content itself is reasonable. In practical terms, the assessment may include why the publication occurred, the circumstances in which it was published, and its relationship to public debate.
At [34], the Panel concluded that the article was an attack on Palestinian political leadership based on alleged conduct, not on Palestinian people on the ground of race. It added that contempt or hatred directed at political leadership was insufficient for the complaint under s 20C(1) as framed in this case.
The decision is most directly relevant to complaints under s 20C involving a public communication about a racial, ethnic or national group where the meaning of the communication is disputed. It is particularly relevant where the communication uses a broad group label, but the publisher argues that the statements were directed at political leaders, an organisation, a government or conduct rather than people sharing a racial identity. The Panel’s method was to read the article as a whole and in context, rather than treating each reference to “the Palestinians” as necessarily describing every member of that group [32]-[34].
It also applies to arguments about whether a publisher must have intended the effect complained of. The Panel’s interpretation of s 20C(1) rejects intention as a necessary element [10]-[11]. That does not mean that every controversial or offensive public act meets the section. The act must still be capable, objectively assessed, of inciting one of the specified states of mind on the ground of race [16], [28].
The reasonable-reader reasoning is relevant where one side relies on the surrounding political discussion or historical events to explain how a publication would be understood. The Panel held that context may be included where it can be attributed to the ordinary reasonable reader’s knowledge and experience [20]-[21]. It cautioned against allowing a reader’s personal beliefs, activated by the communication, to replace the objective inquiry [15]-[16].
Finally, the exception reasoning is relevant where a publisher relies on public-interest discussion and points to a course of publication that includes competing views. The Panel considered that course of conduct relevant to reasonableness and good faith [26], [35]. The judgment does not establish that publication of a reply or competing perspective automatically satisfies the exception. It treats those circumstances as matters relevant to the assessment.
The supplied judgment does not identify any later court or tribunal decision treating John Fairfax Publications Pty Ltd v Kazak itself. It therefore does not provide a basis for describing whether the decision was later followed, distinguished or otherwise applied.
The Panel did refer to Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87, saying that it approved the explanation of the ordinary reasonable reader in Amalgamated Television Services Pty Ltd v Marsden [1998] 43 NSWLR 158 [15]. That reference concerns Rivkin’s treatment of Marsden, not later treatment of the present appeal decision.
The judgment also cites earlier decisions concerning statutory interpretation, discrimination and racial vilification, including Clyne v Deputy Commissioner of Taxation, Project Blue Sky v ABA, Waters v Public Transport Corporation and Wagga Wagga Aboriginal Action Group v Eldridge [6], [9]-[10], [34]. Those citations show the authorities the Panel used or referred to. The supplied text does not establish any broader later history.
The constitutional validity of s 20C remained open in this appeal. The Panel did not decide whether the section impermissibly burdened the implied freedom of communication on government and political matters. It also did not decide whether s 78B notices were required for that issue to be argued [27].
The decision leaves room for difficult questions about what context may properly be attributed to an ordinary reasonable reader. The Panel stated that social and historical circumstances are relevant to the extent they can be presumed to be within the reader’s knowledge and experience [21]. It did not provide a complete method for determining which contextual facts meet that threshold in every case.
The boundary between criticism of political leadership and vilification of a racial group is also fact-sensitive. Here, the Panel relied on the article’s overall political subject matter and the references to negotiations, government actions and political conduct [32]-[34]. The decision does not mean that statements framed as political commentary can never fall within s 20C. The Panel expressly rejected the proposition that presentation as opinion necessarily removes a public act from the provision [31].
Finally, the judgment indicates that the s 20C(2)(c) inquiry may examine the publisher’s conduct over time and the publication of competing views [26], [35]. It does not set out a fixed rule about how much weight those matters carry, or what range of conduct is sufficient to establish reasonableness and good faith. Those questions would depend on the evidence and the circumstances considered under the provision.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
CITATION: John Fairfax Publications Pty Ltd -v- Kazak (EOD) [2002] NSWADTAP 35 APPELLANT PARTIES: John Fairfax Publications Pty Ltd RESPONDENT Ali Kazak FILE NUMBER: 009022 HEARING DATES: 08/02/2001 SUBMISSIONS CLOSED: 02/08/2001 DATE OF DECISION: 10/25/2002
[2000] NSWADT 77 DECISION UNDER APPEAL: BEFORE: Latham M - DCJ (Deputy President); Goode P - Judicial Member; Antonios Z - Member CATCHWORDS: leave to extend to the merits - no evidence - Racial vilification - statutory interpretation MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 991094 DATE OF DECISION UNDER APPEAL: 06/22/2000 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Interpretation Act 1987 Judiciary Act 1993 (Cth) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 Murphy v Farmer (1988) 79 ALR 1 Project Blue Sky v ABA (1998) 194 CLR 355 IW v The City of Perth (1997) 191 CLR 1 CASES CITED: Waters v Public Transport Corporation (1991) 173 CLR 349 Steel Pty Ltd v Banovic (1989) 168 CLR 165 Inquiry into Broadcasts by Ron Casey (1989) 3 BR 351 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 Malco & Ors. v Massaris & Ors [1998] NSWEOT (12/2/98) Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 APPELLANT REPRESENTATION: S Rares SC, barrister RESPONDENT In person ORDERS: 1. Appeal allowed; 2. Decision of Tribunal below set aside; 3. Complaint dismissed.
1 The Appellant appeals against the substantiation of a complaint of racial vilification brought by the Respondent to this appeal. The complaint arose out of an article published by the Appellant in the Australian Financial Review on 23 December 1998. The text of that article and the text of an article in reply, published one week later on the same opinion page of the newspaper, are set out in full in the Tribunal's decision below at paras 7 and 9 respectively. The Tribunal found that the article of 23 December 1998 infringed s 20C of the Anti Discrimination Act (the AD Act), in that it incited hatred towards the Palestinian people or serious contempt for them, on the ground of their race, and did not fall within any of the exceptions provided for by that Act. The Tribunal also upheld the constitutional validity of s 20C, according to the test prescribed by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. 2 The Notice of Appeal filed by the Appellants on 20 July 2000 raised three alleged errors of law on the part of the Tribunal, namely that it had misconstrued s 20C(1), that it had erred in its construction of s 20C(2)(c), and that it had erred in its application of the test laid down in Lange. This Notice of Appeal was filed within 28 days of the Tribunal's decision. An Amended Notice of Appeal was filed on 1 February 2001, which added a further ground, namely that the Tribunal erred in not dismissing the complaint in the absence of any evidence capable of establishing the ingredients of s 20C(1), according to the construction contended for by the Appellants. The Appellant's written submissions were filed and served by facsimile on the Respondent that same day. On the hearing of the appeal, the Respondent objected to the Amended Notice of Appeal on the basis that the additional ground was available as at 20 July 2000. The Respondent argued that, in effect, the Appellant required leave to rely upon the "fresh" ground and that leave should be refused. 3 This leave point may be dealt with briefly. The requirement under s 113(3) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to lodge an appeal within 28 days of notification to a party of the Tribunal's written reasons is directed to preservation of an appellant's right of appeal. It is common practice in the Administrative Decisions Tribunal to allow an appellant to file a Notice of Appeal without detailed, or indeed any, reference to the grounds of the appeal, save that the grounds are "to be advised". Such a practice is consistent with the terms of s 113, it is consistent with the need to ensure that appellants, whether legally represented below or not, are not prejudiced in the exercise of their appeal rights and it is consistent with the duty of the Tribunal to act without undue formality and technicality (s 73(3) of ADT Act). In the instant matter, the additional ground arises out of the Appellant's construction point, that is, if the Panel were to accede to the construction of s 20C(1) contended for by the Appellant, it is submitted that the complaint could not be upheld on the evidence before the Tribunal. In these circumstances, the Panel is of the view that leave is not required to argue the additional ground. If we are wrong in that regard, we would nonetheless have granted leave to the Appellant to argue the additional ground. The Construction of s 20C of the AD Act 4 Section 20C(1) provides :- It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of the race of the person or members of the group. 5 The Appellants contended on the appeal for a construction of s 20C(1) which imports an intention, on the part of the respondent to a complaint, to incite one of the three states of mind in the audience. This issue was canvassed by the Tribunal below at paras 25 to 28 inclusive. It determined that, having regard to the Second Reading Speech of the then Attorney General when introducing the racial vilification provisions, and the recommendations of the NSW Law Reform Commission (Report 92), and in spite of conflicting decisions by the Tribunal in the past, intention to incite was not a prerequisite to the substantiation of a complaint. 6 The Appellant's argument turns primarily on the use of the word "incite" in s 20D(1), which creates the offence of serious racial vilification. It is submitted that the use of the same term in both provisions demands a consistent construction, that is, if it is accepted that s 20D requires an intention to incite (a proposition which is unarguably established by authority, with respect to criminal offences relating to incitement), then "incite" in s 20C must be similarly construed. Whilst it is a principle of statutory construction that the same word appearing in a statute should be consistently construed, the Appellant's argument discounts the context within which the word "incite" appears in a number of provisions in the AD Act. The presumption that, where the same word is used on more than one occasion in a provision, it is intended to have the same meaning in each case, is one of little weight which "readily yields" to the statutory context : Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 15 ; see also Murphy v Farmer (1988) 79 ALR 1 at 7. 7 Section 20D(1) provides :- A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include [threatening or inciting others to threaten physical harm]. 8 Not only does s 20D contain the aggravating factor constituted by the threat of physical harm, but a further distinction between s 20C and s 20D resides in the opening words of the respective provisions. The opening words of s 20C (and, for that matter, the balance of the section) are consistent with every other provision in the AD Act, which proscribes discrimination on the grounds of race, disability, sex, transgender, marital status, homosexuality, carer's responsibilities, or age. It is also a formulation which has been mirrored in other vilification provisions in the Act, namely sections 38S, 49ZT and 49ZXB. By way of contrast, the opening words of s 20D signal the creation of a penal provision, mirrored in sections 38T, 49ZTA and 49ZXC. 9 In determining the construction of "incite" in s 20C, both the context of the word within the provision itself, and within the Act as a whole, are of primary importance : Project Blue Sky v ABA (1998) 194 CLR 355 at 381. As noted above, s 20C appears as one of many provisions in the AD Act which are intended to operate beneficially and should therefore be given a liberal construction, provided that such a construction is not unreasonable or unnatural : IW v The City of Perth (1997) 191 CLR 1. The quite different context within which "incite" appears in s 20D, that is, penal as opposed to remedial, allows for a differential construction. 10 The ordinary meaning of "incite" is to spur on, stir up, prompt, provoke, urge, or stimulate. There is no necessary element of intention in the use of the term in everyday parlance, for example, a letter published in a newspaper may provoke a response from the readership without the author of the letter, or the publisher, intending that consequence. It is the contents of the public act which prompt others to action, albeit the acts of writing and publishing are intentional. Admittedly, the contents of the publication may be of such a nature that an inference of an intention to incite hatred or serious contempt is warranted and, when that is effected by means of the threat of physical harm or inciting others to threaten physical harm, on the ground of race, the elements of s 20D may be satisfied. Be that as it may, there is nothing unnatural or unreasonable in a construction of "incite ... on the ground of race" in s 20C which eschews an intention to incite, any more than it is unnatural or unreasonable to construe "discriminate ... on the ground of race" as not requiring an intention to discriminate : Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ, Gaudron J, Deane J : and see Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 per Gaudron and Deane JJ : IW v City of Perth per Kirby J. 11 Section 34(1) of the Interpretation Act 1987 allows consideration of extrinsic material in the interpretation of a provision in order to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context and the purpose or object of the Act). That confirmation arises from the Second Reading Speech of the then Attorney General, as noted by the Tribunal below at para 25. 12 A further submission by the Appellant took issue with the Tribunal's treatment of the notion of the ordinary reasonable reader, for the purpose of determining whether the public act was capable of inciting any of the relevant states of mind. Following a review of various decisions in defamation law and anti discrimination law, and taking into account the conclusion of the NSW Law Reform Commission on this issue (Report 92), the Tribunal determined that "the objective test which must be applied is the ordinary reasonable reader of the Australian Financial Review who is not malevolently inclined nor free from susceptibility to prejudice." (para 38) The reference to prejudice must be, in the context of racial vilification provisions, racial prejudice. That much appears clear from the Tribunal's apparent adoption of the remarks cited in para 32 of the decision from Inquiry into Broadcasts by Ron Casey (1989) 3 BR 351 at 357. 13 In determining whether the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race, the approach taken to the characterisation of the audience for these purposes is crucial. Common to the authorities in defamation, media and anti discrimination law is the "ordinary, reasonable person", but slight variations exist in the use of descriptors, depending on the jurisdiction. In all these jurisdictions, the descriptors set the outer limits of the spectrum, within which the ordinary reasonable person may be found. 14 The Court of Appeal has confirmed the test for the purposes of defamation law as "the ordinary reasonable reader (or listener or viewer) [who] is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs." : Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. The latter part of this exposition of the "ordinary reasonable reader" represents an important qualification, which should, in our view, apply in any consideration of alleged unlawful conduct pursuant to s 20C(1) of the AD Act. It lies at the heart of the concept of the reasonable reader, because it encapsulates the objective filter through which the publication is assessed. 15 The practical application of this objective test was explained by Hunt CJ at CL, as he then was, in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 :- "What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken." (approved in Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87) 16 Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race ? The question is not, could the ordinary reasonable reader reach such a conclusion only after his/her own beliefs have been brought into play by the public act ? 17 The Tribunal below held that the context of the public act (including the social and historical context) is relevant in determining whether the act incites hatred, and when determining the historical and social context of the public act, the identity and history of the group concerned and the degree to which they have been subjected to racism in the past are relevant factors. (para 71) 18 There is some difficulty with this proposition. It appears to have its origins in the notion that "communications about an historically oppressed minority group are far more likely to cause harm to that group than communications which relate to the dominant majority". This is clarified further in the same paragraph, where the Tribunal says "the identity of the racial group being targeted may mean that similar acts in respect of one group are less likely to incite hatred etc than the same acts in respect of another racial group." (para 66) 19 The fact that historically oppressed minority groups may be more sensitive to public acts concerning them, is an irrelevant consideration on the question of the objective meaning of the public act. We do not understand the Tribunal to be asserting otherwise. However, if the Tribunal meant to convey that the reasonable reader of the publication may be more disposed to feelings of hatred, or serious contempt or severe ridicule, in respect of historically oppressed minority groups, it raises the question, does such a disposition arise from the reader's beliefs or from the reader's knowledge and experience of human affairs? If it were the latter, it is arguably equally likely that the ordinary reasonable reader is less disposed to incitement, rather than more ; the public acts in question may be seen simply as an unjustifiable continuation of that historical oppression. If it were the former, it suffers from the confusion identified by Hunt CJ at CL (as he then was) in Amalgamated Television Services Pty Ltd v Marsden referred to above. If one has regard to the beliefs of the reasonable reader, and how those beliefs may be excited by the public act, one is deflected from the primary focus, that is, what the public act is reasonably capable of conveying. 20 Moreover, the Tribunal found that the existence of intense discussion or public debate about an issue, and the fact that an ordinary person to whom the public act is communicated would be aware of divergent and extreme views on that issue, were not relevant factors in determining the social context of a public act (para71). It would appear that the Tribunal was discounting these factors when determining what was reasonably capable of being conveyed by the public act, that is, in the application of the objective test. In the light of the discussion above, this approach constitutes error on the part of the Tribunal. Inherent in the notion that the ordinary reasonable reader does not live in an ivory tower is that reader's awareness of public debate and the existence of divergent views. 21 The Appellant's submission on this aspect of the construction of s 20C(1) is, in our view, correct. The social and historical context of a public act, including all the factors referred to by the Tribunal in that regard, must be relevant at this stage of the inquiry, albeit only to the extent that they may be presumed to be part of the ordinary reasonable reader's knowledge and experience of human affairs. 22 As will become apparent from the discussion below, the Panel is also of the view that the Tribunal fell into error when considering whether the Appellant below discharged its obligation under s 20C(2)(c) to prove that the public act was done reasonably and in good faith for purposes in the public interest, including discussion or debate about and expositions of any act or matter. It is sufficient to note at this stage that the factors identified at para 71 of the Tribunal's decision are also relevant under s 20C(2)(c) of the AD Act. The error constituted by the failure to correctly apply the objective test with respect to the ordinary reasonable reader warrants the setting aside of the Tribunal's decision and a grant of leave to consider the merits of the complaint. However, it is appropriate that the Panel also deal with the Appellant's submission on the Tribunal's approach to the construction of s 20C(2)(c). 23 Section 20C(2) provides :- Nothing in this section renders unlawful: (a) A fair report of a public act referred to in subsection (1), or (b) A communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or (c) A public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 24 The Tribunal dealt with the pleaded exception to s 20C(1) at paras 84 to 92 of the decision. It was not in dispute that the public act concerned debate about, and exposition of, an act or matter. The Tribunal focussed upon the requirement that the act be carried out reasonably and in good faith. In response to the Appellant's submission that the exception was made out on three bases, namely (1) that the publication of the article was on the opinion page, (2) that there was a publication of articles and letters in response and (3) that the newspaper was acting reasonably in providing a forum for vigorous debate on an important international issue, the Tribunal held that (1) and (3) were relevant to the proviso but that (2) was not relevant. As for (3), the Tribunal determined that publication of the article in question could not be considered reasonable merely because it expressed an extreme view on a matter of international politics. The opinion or view was thought to be extreme because the facts upon which the opinion was based were one-sided and the opinion presented "a consistently negative and derogatory picture of the Palestinian people as a whole." It will be observed that this rationale links the requirement of reasonableness with the content of the article. As for (1), the Tribunal rejected the contention that it was necessarily reasonable to publish an opinion piece. 25 A potential error arises from this approach. If no distinction is drawn between the reasonableness of the public act itself, as opposed to the content of the public act, the proviso may be misapplied. On the proper construction of s 20C(2)(c), it is clearly the doing of the public act which must be reasonable and in good faith. A number of considerations, independently of the content of the public act, come into play at this stage of the enquiry, including the historical and social context of the public act. To take an example away from the circumstances of this matter, one could only assess the reasonableness and good faith of the publication of an editorial piece in 2001 supporting the Australian Government's policy on the detention of asylum seekers who have entered Australia illegally, after taking into account the social and historical context, that is, the war in Afghanistan and other parts of the Middle East, Australia's immigration policy in the past and in the present, the alleged method of entry and point of origin of the asylum seekers, and the extent to which Australia is obliged to comply with the United Nations covenants on the treatment of refugees. In the absence of the present social, political and historical context, the publication of an article, say in 1955, applauding the indefinite mandatory detention of all refugees from the Middle East might well be considered a racist act without any justification. The act of publication may not be reasonable or in good faith if it does not bear any relationship to the political events of 1955 and how those events may have shaped public opinion. 26 Whilst the Tribunal did canvass these issues at para 71 when interpreting s 20C(1), it did not expressly refer to them at this stage of the matter. In the absence of a clear indication from the reasons of the Tribunal that it did have regard to factors external to the content of the article, it is the view of the Panel that the Appellant has established this ground of the appeal. Before leaving this topic, it also appears to the Panel that the publication of letters and competing views, reasonably contemporaneously with the publication of the offending article, is relevant to an assessment of whether the public act is both reasonable and in good faith. The bona fides of the publisher, that is, the desire to legitimately provide a forum for political debate as opposed to a forum for the incitement of racial hatred, must be capable of being determined by reference to a course of conduct, not by confining the publisher to one moment in the life of the publication. If it were otherwise, it is conceivable that letters or opinion pages would not exist, because no publisher would risk liability under s 20C for every such act of publication, in the knowledge that giving equal space to the contrary opinion on another occasion was of no account. 27 Before turning to the merits of the complaint, it should be noted that the Appellant submitted that s 20C of the AD Act offends against the implied constitutional freedom of communication on government and political matters. This point was argued and resolved by the Tribunal in the absence of assistance from a representative of the NSW Attorney General, or the representatives of the first law officers of any other State or the Commonwealth. Similarly, we were not assisted by those who may have wished to be heard, if the appropriate notices had issued. It is arguable that s 78B notices under the Judiciary Act 1993 (Clth) were required to issue in order to allow this point to be taken, both before the Tribunal and before the Panel. In the absence of argument before us and in the absence of a binding decision on that question, the Panel does not express a view on the constitutional issue. It is not necessary to do so in order to dispose of this appeal. The Merits Issue 28 Turning then to the merits of the complaint, the Panel approaches this question according to the construction of s 20C(1) canvassed above, that is, consistent with the construction adopted by the Tribunal at first instance, but for the characterisation of the "ordinary reasonable person". The meaning conveyed by the subject article is to be determined after taking into account all the factors bearing upon the social and historical context of the public act, in so far as they are presumed to be within the ordinary reasonable person's knowledge and experience of human affairs. 29 The full text of the article, the subject of the complaint, is set out at para 7 of the Tribunal's decision and we do not repeat it here. The summary appearing at paras 73 to 75 of the Tribunal's decision is an accurate one with which we agree. As already noted, it was never disputed that the publication was a public act. What remains in dispute is whether it was capable of inciting hatred and serious contempt and whether, if it was so capable, that incitement was on the ground of race. 30 The Appellant submits that the ordinary reasonable reader, armed with knowledge of the Middle East peace process and its tortuous history, and aware that s/he was reading an opinion piece, would not be incited to hatred towards, or serious contempt for, anyone. As one, obviously partisan, view of the interpretation to be placed upon particular political events of the week before the opinion was published, it could not convey anything more than the author's assessment of the Palestinian leadership (not the Palestinian people) as untrustworthy, hypocritical and violent. However strident the language, it was clearly marked as someone's opinion and as such, it could not stimulate or urge the ordinary reasonable reader to feel the requisite states of mind. 31 As to this latter submission, the Panel is not prepared to embrace the proposition that every public act presented as an expression of opinion necessarily removes itself from the ambit of vilification provisions. Such a submission may be consistent with the Appellant's contention that s 20C(1) requires proof of an intention to incite, but it cannot be accepted at face value, given the construction of s 20C(1) which we have affirmed. But that is not to say that the fact that it is marked as an opinion is not relevant to the impact of the article upon the ordinary reasonable reader. Some analysis of the language of the article must be undertaken to test the Appellant's argument that it is not capable of inciting hatred or serious contempt. 32 Central to the meaning objectively conveyed by the article, and to the question whether any incitement is substantially or predominantly on the ground of race, is the meaning of "the Palestinians" in the context of the article as a whole. This generic term is used a number of times, namely, (i) The Palestinians responded by embracing President Clinton and rejecting passages in their charter calling for Israel's destruction. (ii) The Palestinians responded "death to Clinton" and "death to America" while burning American flags. (iii) The Palestinians cannot be trusted in the peace process. (iv) The Palestinians are the true culprits in derailing efforts to reach an agreement over Gaza and the West Bank. (v) The Palestinians have pursued over 300 terrorist attacks against innocent Israeli civilians (whereas "the Israelis" have been willing to offer land for peace since 1993). (vi) The Palestinians remain vicious thugs who show no serious willingness to comply with agreements (relying in part on the fact that Western aid is misapplied by Yasser Arafat). (vii) Mr Clinton is inducing, placating, offering all sorts of concessions to the Palestinians. 33 Whilst all of the above are consistent with "the Palestinians" being a reference to the political leadership of Palestine, only (ii) can sensibly be interpreted as capable of also applying to Palestinian citizens. Some of the Palestinian people were no doubt involved in anti American demonstrations of the kind referred to in (ii), but does that warrant every reference in the article to "the Palestinians" being understood as the Palestinian people ? The combined weight of the remainder of the references when placed in context would suggest not. The context of the article is a particular week in international politics, specifically the aftermath to a visit by the US President to Palestinian controlled Gaza and US strikes on military installations in Iraq. The author concludes (rightly or wrongly) from these events that the peace process in the Middle East is being, and will continue to be, undermined by the treachery of one party to that political process. It is straining the meaning of the words in their context to attribute to the Palestinian people, as a whole, a direct role in rejecting passages from their charter, or negotiating the peace process, or derailing efforts to reach agreement over Gaza and the West Bank, or committing terrorist attacks against Israeli civilians, or showing no willingness to comply with agreements, or being offered concessions by the US President. Moreover, in the context of the juxtaposition of "the Palestinians" and "the Israelis" in (v), any ambiguity would appear to be resolved in favour of the use of generic terms to signify the political leadership of the day. 34 In the view of the Panel, an ordinary reasonable reader of the Australian Financial Review, in December 1998, would be acutely aware of the interplay between US foreign policy and the Middle East peace process. He or she would also be acutely aware of the vicissitudes of Middle East politics. Against that background, it is difficult to accept that the ordinary reasonable reader would understand the article as an attack on the Palestinian people on the ground of their race. Rather, it would be understood as an attack on the political leadership of Palestine on the ground of their intransigence and inconsistency in international politics, that is, on the ground of their conduct. The article may be said to express serious contempt for, and even hatred towards, that leadership, but that is insufficient for the purposes of s 20C(1) : Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 ; Malco & Ors. v Massaris & Ors [1998] NSWEOT (12/2/98) ; Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102. 35 The complaint is not substantiated. However, even if the Panel were inclined to the view that the article incited hatred towards, or serious contempt for, the Palestinian people on the ground of race, the proviso under s 20C(2)(c) applies. The proviso requires an objective assessment of the motives of the Appellant in deciding to publish the subject article, provided the act of publication is carried out for a purpose in the public interest. Discussion or debate about any matter is within the public interest. It is not the author's motives in choosing the terminology, or in casting the article in certain language, which is relevant to this issue ; it is the rationale behind the decision to publish. That rationale is exposed by the actions of the publisher over a period of time, during which both sides of the debate on a given topic may, or may not, be given a voice. The Appellant's argument that the publication was done reasonably and in good faith is well founded, in that the article was but one of a number of perspectives of the events in the Middle East in December 1998, which the Appellant published between 23 December 1998 and 11 January 1999. 36 The appeal is allowed. The findings and orders of the Tribunal below are set aside. Leave is granted to hear the merits of the complaint. The complaint is dismissed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Lange
Australian Broadcasting Corporation
(1997) 189 CLR 520
(1981) 150 CLR 1
(1988) 79 ALR 1
(1998) 194 CLR 355
(1997) 191 CLR 1
(1991) 173 CLR 349
(1989) 168 CLR 165
(1998) 43 NSWLR 158
Appeal allowed; the Tribunal’s decision below set aside; leave granted to hear the merits of the complaint; complaint dismissed: [36].