Discussion
31A single 'public act'? A significant component of Mr Margan's argument at the hearing and in his supplementary submissions was the proposition that, although the verbal conduct and the physical conduct of Mr Manias took place on different days, they should be held to constitute a single 'public act' for the purposes of determining Mr Margan's complaint of unlawful homosexual vilification.
32In seeking to establish this proposition, Mr Margan pointed out first that the definition of 'public act' in section 49ZS of the Act includes both 'speaking', in paragraph (a), and 'any conduct... observable by the public, including actions and gestures...' in paragraph (b).
33He submitted further that Mr Manias's verbal conduct and physical conduct should be regarded as interrelated or 'combined', for the following reasons:-
(a) These two instances of conduct occurred in the same location: Oxford Street, Darlinghurst.
(b) The Tribunal has taken judicial notice of the fact that this location is 'predominantly associated with the LGBTI community'.
(c) The verbal conduct was a 'reinforcement of' the subsequent physical conduct.
(d) The test of whether unlawful vilification occurred under section 49ZT requires an assessment of the reactions of a hypothetical, not an actual, observer of the relevant conduct. It is irrelevant, therefore, to determine whether any one or more persons witnessed both the 'verbal' and the 'physical' conduct. What should be assessed instead is the reaction of a hypothetical observer of both these instances of conduct.
34Mr Margan acknowledged, however, that in a recent homosexual vilification case, JM & JN v QL & QM [2010] NSWADT 66, the Tribunal treated as separate 'public acts' each of a series of alleged incidents in which the two respondents (or, in some instances, one of them) made loud derogatory comments about the applicants, referring to their homosexuality, in a public place. Although an underlying factor throughout was a substantial degree of hostility between the applicants and the respondents, the Tribunal did not find - nor, it seems, was it argued - that all of these incidents, or indeed any group of them, should be regarded as a single 'public act'.
35We indicated to Mr Margan at the hearing that we were not inclined to accept his proposition. We remain of that view.
36We indicated also that we had no doubts that the verbal conduct of Mr Manias and his physical conduct, considered separately, each constituted a 'public act' within the definition in section 49ZS.
37The 'public acts' considered separately. In the remainder of his submissions, Mr Margan accordingly urged us to make a finding of unlawful homosexual vilification in relation to each of these 'public acts', treating them as independent of each other.
38His claim was each of them fell within the terms of section 49ZT(1) because Mr Manias's conduct was such so as to 'incite' feelings of 'hatred towards' or 'serious contempt for' a 'person' (himself) or a 'group of persons' (homosexual men generally) 'on the ground of the homosexuality of the person or members of the group'.
39We accept Mr Margan's statement, made more than once in his evidence, that he is a homosexual man.
40In his supplementary submissions, Mr Margan placed significant reliance, as we suggested that he should, on the Court of Appeal's decision in Sunol v Collier (No 2) [2013] NSWCA 196. This is the leading authority on the interpretation of section 49ZT of the Act. The judgments of the three members of the Court contain pronouncements of direct relevance to these proceedings.
41At [26 - 34] and [41], Bathurst CJ said:-
26 I have set out the section above. The first question raised is what is meant by the word "incite". The meaning of the word has been considered both in the context of anti-discrimination legislation and in the context of criminal offences involving incitement. In Young v Cassells (1914) 33 NZLR 852, a case concerning the charge of inciting persons to resist constables, Stout CJ described the word as meaning "to rouse, to stimulate, to urge, to spur on, to stir up, to animate" (at 854). In R v Massie [1998] VSCA 82; [1999] 1 VR 542, Brooking JA, with whom Winneke P and Batt JA agreed, said at 555 that the word covered words which command, request, propose, advise or encourage. In R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390, Smart AJ (at [59]) cited what was said by both Stout CJ and Brooking JA with approval.
27 The word has received a similar construction in the context of anti-discrimination legislation: Catch the Fire Ministries supra [Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207] at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102].
28 Although it is clear from this review of the authorities that the word "incite" can cover a wide variety of conduct, it must be borne in mind that it is not sufficient to attract the operation of s 49ZT that the words simply express hatred, serious contempt for, or severe ridicule of a person on the grounds of homosexuality; the relevant public act must be one which could encourage or spur others to harbour such emotions: Burns v Dye supra at [20]; Burns v Laws (No 2) supra at [113].
29 It is also well established, both in the area of criminal law and in the context of anti-discrimination legislation, that it is not necessary for a person in fact to be incited by the words or publication: R v Eade supra at [60]; R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62; Veloskey v Karagiannakis supra at [25]; Catch the Fire Ministries Inc supra at [14].
30 The next issue is whether an intention to incite is required for a contravention of s 49ZT. The Tribunal has consistently held that intention is not an element of a contravention of this or related sections: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69].
31 Neither party at the hearing suggested that that approach was incorrect. I am prepared to proceed on this basis without finally deciding the issue. It is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments:
"However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, 'to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status'. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations." (at 359)
Deane J agreeing at 382; but see McHugh J at 401.
32 The next issue of construction raised by the section is whether the public act required for a contravention of s 49ZT is one which would incite hatred, serious contempt for or severe ridicule in an "ordinary reasonable reader" or in a reasonable member, or an ordinary member, of the class to which the public act was directed. The first of the three alternatives is the one which has been consistently adopted by the Tribunal, following the test set out by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that "the ordinary reasonable reader ... 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": John Fairfax Publications Pty Ltd v Kazak supra at [13]-[14]; Veloskey v Karagiannakis supra at [26]; Burns v Cunningham supra at [69].
33 A different approach to the question was taken by the Court of Appeal of Victoria in Catch the Fire Ministries Inc supra. In that case Nettle JA took the view that for conduct to incite hatred it must reach a relevant audience. In those circumstances he said the question is to be answered having regard to the effect of the conduct on a reasonable member of the class of persons to whom it is directed (at [16]-[18]). Ashley JA and Neave JA on the other hand suggested the question should be decided by reference to an ordinary member of the class rather than a reasonable member (at [132], [157]-[158]).
34 I prefer the view of Ashley and Neave JJA. This is because the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals. That, of my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation.
41 In these circumstances, s 49ZT should be construed as follows:
(a) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement.
(b) It is not necessary for a contravention that a person actually be incited.
(c) It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed.
(d) It is not necessary to establish an intention to incite....
42Allsop P said (at [60 - 62]):
60 The text of s 49ZT reflects an attempt by Parliament to weigh the policies of preventing vilification and permitting appropriate avenues of free speech. Subsections (1) and (2) should be read together as a coherent provision that makes certain public acts unlawful. Subsection (2) is not a defence; it is a provision which assists in the defining of what is unlawful. It attempts to ensure that certain conduct is not rendered unlawful by the operation of subsection (1).
61 Subject to the following comments, I agree with the Chief Justice as to the construction of subsection (1). The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider.
62 Further, satisfaction of s 49ZT(1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience
43At [79], Basten JA said:-
79 Applying this approach, I agree with the construction of s 49ZT of the Anti-Discrimination Act 1977 (NSW) outlined by Bathurst CJ. The critical aspect of s 49ZT for present purposes is the requirement that to be unlawful the conduct must incite "hatred towards, serious contempt for, or severe ridicule of" persons within the protected class. Mere insults, invective or abuse will not engage the prohibition.
44A somewhat different approach to the term 'incite' was taken in a Tribunal decision, Burns v Laws (No 2) [2007] NSWADT 47, to which the Chief Justice referred. At [110 - 112], the Tribunal said:-
110 The second qualification [to the principles stated in previous Tribunal decisions on section 49ZT(1)] relates to the Tribunal's use of the terms 'capacity' and 'capable'. We agree with Mr Reynolds [counsel for the respondent] that these terms have the potential to understate what must be proved. In defamation law, they bear upon what is in essence a threshold question only. An allegedly defamatory imputation is judicially determined to be 'capable of defaming' the person to whom it refers if there are sufficient grounds to warrant referring to a jury the quite distinct question of whether it actually did defame this person.
111 In our opinion, the issue to be resolved under s. 49ZT(1) is better framed as follows: would the relevant 'public act' have had the 'effect' of inciting, in the sense of urging or prompting, a hypothetical 'ordinary reasonable person' to experience one or more of the relevant reactions towards one or more homosexual people (as identified by the complainant), on the ground of their homosexuality? If terms such as 'capacity' or 'tendency' (this word appears in Neave JA's judgment in Catch the Fire Ministries at [161]) are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or possible effect.
[112] This point is important if, as previous authorities have made clear, the term 'incite' is to be interpreted as meaning merely 'urge', not 'successfully urge' or 'induce'. A test that required no more than proof that the relevant public act had the potential or possible effect of urging an ordinary reasonable person to experience one or more of the relevant reactions would in our view be unduly broad.
45The Tribunal's reference here to the reactions of an 'ordinary reasonable person' must now be considered incorrect in the light of the different pronouncements on this question by Bathurst CJ (with the concurrence of Basten JA) and Allsop P in Sunol v Collier (No 2). But the Tribunal's observations as to the potential ambiguity of the terms 'capable' and 'capacity' in this particular context should, we think, be borne in mind.
46In view of the authoritative status of the Court of Appeal's judgments in Sunol v Collier (No 2), we do not think it necessary to refer to a number of earlier Tribunal decisions on section 49ZT to which Mr Margan referred us.
47The verbal conduct of Mr Manias. Mr Margan submitted that the three derogatory comments uttered loudly by Mr Manias while he (Mr Margan) was putting up same-sex marriage posters in Oxford Street constituted unlawful homosexual vilification directed both at him and at homosexuals generally.
48These comments, it will be recalled, were 'I am going to eradicate all gays from Oxford Street', 'Do not worry I am doing good work' and 'There are wicked things taking place on Oxford Street'.
49We agree with this submission. Taken in conjunction, these comments were not merely insults. They had the capacity to incite, or the effect of inciting, ordinary members of the audience at which they were directed - i.e., the general public - to experience hatred and/or serious contempt for Mr Margan, and for homosexual men generally, on the ground of his or their homosexuality. Members of the public hearing them would have been 'prompted' or 'spurred on' to harbour these feelings.
50In addition, the first and third of these comments, considered in isolation, would, we think, satisfy these criteria.
51Past Tribunal decisions on similar facts can never be regarded as binding. They can only provide guidance, at most. But it is worth noting that in Collier v Sunol [2005] NSWADT 261 the Tribunal held that each of two similarly brief statements, published separately on the internet, involved incitement falling within section 49ZT(1). These statements (with spelling corrected) were (a) 'I hope and pray that God moves and brings more of the religious right into Australia to keep the poofs and fags kept held down' and (b) 'faggots are all wicked evil people'.
52The first of these statements, urging its readers to think that homosexual people should be 'held down', is not too remote in substance from Mr Manias's claims that he wishes to 'eradicate all gays from Oxford Street' and that this is 'good work'. The substance of the second is akin to that of Mr Manias's assertion that 'wicked things' take place in Oxford Street.
53There are no grounds for believing that the defence, or ground of exemption, created by section 49ZT(2) might be available in the present case. In particular, we find that Mr Manias's statements were not published reasonably and in good faith for purposes in the public interest, within the meaning of paragraph (c) of that provision.
54We accordingly uphold Mr Margan's complaint in so far as it is based on the verbal conduct of Mr Manias in Oxford Street during the week before 9 August 2010.
55The physical conduct of Mr Manias. In our opinion, the complaint based on Mr Manias's assault on Mr Margan must be rejected, because there was no 'incitement' of the relevant kind. Our reasons for reaching this conclusion are as follows.
56Most importantly, at the time when he committed the five assaults for which he was convicted on his plea of guilty, Mr Manias said nothing that might have encouraged onlookers to view favourably what he was doing or that might in any other way prompt them to have negative feelings towards homosexual people. He said nothing, indeed, to indicate that he believed his victims to have been homosexual, or that it was on account of their homosexuality that he attacked them. The only victim to have testified to hearing Mr Manias say anything at all - the taxi driver - stated only that Mr Manias 'swore very loudly' at him.
57It is also significant that the assault on Mr Margan was one of a string of assaults on five victims seemingly chosen at random in the course of an outburst of violent aggression. The evidence strongly suggests that this is the way in which onlookers would have interpreted Mr Manias' behaviour.
58In addition, the evidence provides no basis for a finding that Mr Manias recognised Mr Margan as a person whom he had seen putting up same-sex marriage posters during the previous week. Even if Mr Manias did recognise Mr Margan, no-one observing the assault would know or believe that they had recently encountered each other in these circumstances.
59In his submissions, Mr Margan placed strong reliance on his contention that Oxford Street, Darlinghurst - in particular, the section of this street where the assaults occurred - was well known to be an area where homosexual people were often to be found. He maintained that this was a fact of which the Tribunal had taken judicial notice in the past. He also emphasised that the Tum Nak Thia Restaurant, where the first assault occurred, was well known to be frequently visited by homosexuals.
60It is significant, however, that the next assault, on Mr Margan himself, took place outside a convenience store. There is no immediate reason to believe (and no evidence) that the customers of this store would solely or predominantly constitute homosexuals. The same observation may be made about the location of the three subsequent assaults. We can accept that each of these assaults occurred in a street where homosexuals are often found, but not (in the absence of evidence) where they predominate to such an extent that any victim of an assault taking place there would be assumed to be homosexual.
61A proposition on which Mr Margan's argument depends is that 'ordinary' members of the public who witness a serious assault on a person will feel 'prompted' or 'spurred on' by what they see to feel 'hatred' or 'serious contempt' for the victim. We cannot subscribe to this proposition, even if the circumstances are such that onlookers might believe that the victim belongs to a group within society (such as homosexual people) that has often been the target of public hostility. It would mean that any assault on a person occurring in a public place where homosexual people are often found would constitute an act of unlawful homosexual vilification, unless the evidence suggests that onlookers would discern a motivation other than homophobia for the assault.
62Finally, the evidence in this case suggesting that the 'islander girls' might actually have been 'prompted' by Mr Manias's assault on Mr Margan to feel hatred or contempt towards homosexual men is not relevant because, as Mr Margan himself argued, what matters is the reaction of hypothetical, not actual, observers.