Sun v Nationwide News Pty Limited

The Legislative Regime: Racial Vilification

1. Section 88 of the Act states: A vilification complaint cannot be made unless each person on whose behalf the complaint is made-- (a) has the characteristic that was the ground for the conduct which constitutes the alleged contravention, or (b) claims to have that characteristic and there is no sufficient reason to doubt that claim.
2. It is not in dispute that the Applicant is a member of the Chinese race. We find that the provisions of section 88 of the Act have been met.
3. In order for the Applicant to succeed, it must be found that the Respondent breached section 20C of the Act. Section 20C, under the heading 'Racial vilification unlawful', provides as follows: '20C Racial vilification unlawful (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or serious ridicule of, a person or group of persons on the ground of the race of the person or members of the group. (2) 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 on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) 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.'
4. For the purposes of section 20C, 'public act' is defined by section 20B of the Act which includes: '20B Definition of 'public act' 'Public act' includes-- (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or serious ridicule of, a group or group of persons on the ground of the race of the person or members of the group.'
5. It is not in dispute that the publication of The Daily Telegraph newspaper on 29 January 2020 was a 'public act' within the definition of s20B(a) of the Act. The Respondent in its written submissions concedes that this issue is not in dispute. However, it emphasises the importance of the full context of the relevant public act should be considered, and not merely the front-page headline, which is the Applicant's focus in her complaint and submissions.
6. The Respondent does not dispute the Applicant's contention that the relevant audience is akin to 'the public at large'. In the evidence of Mr English, he deposes that there is no typical reader of The Daily Telegraph. In Mr English's view, a reader of The Daily Telegraph is an informed resident of New South Wales with the desire to stay informed about the breaking issues of the day. We accept Mr English's evidence.
7. Principal Member Britton and General Member Newman in Burns v Sunol (2018) NSWCATOD 10 set out a useful discussion of the relevant principles to be applied when considering applications concerning vilification. We adopt their reasoning which is set out below: 38 The element of incitement in the unlawful vilification provisions of the Act has been the subject of extensive consideration by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following statement of principles may be distilled from those authorities: (1) An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction): Jones at [53] (2) The word "incite" in s 49ZT 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": Sunol at [41]; Margan at [11] (3) For a contravention of s 49ZT it is not necessary to establish that anyone was incited: Sunol at [41]), or there was an intention to incite (Sunol at [41]; Margan at [12] (4) It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons. It must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience: Sunol at [41] (5) The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs: Sunol at [61] (6) In making that assessment, the particular class to whom the act is directed, the audience or likely audience must be identified and considered: Sunol at [34]; [61]; Jones at [62], [63]. 39 NCAT and the ADT have consistently held that the words "hatred" and "serious contempt" in the vilification provisions of the Act are to be given their ordinary meaning and have applied the following definitions: 'hatred' means 'intense dislike; detestation' (Macquarie), 'a feeling of hostility or strong aversion towards a person or thing; active and violent dislike' (Oxford). 'serious' means 'important, grave' (Oxford); 'weighty, important' (Macquarie). 'contempt' means 'the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account'(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie). 40 See Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [40]; Burns v Sunol [2012] NSWADT 246 at [17].
8. The Court of Appeal in Jones v Trad (2013) 86 NSWLR 241, 252 to 253, has said that the same principles are applicable in the context of racial vilification under the Act as those which are set out above.

Issues for Determination 1. Whether the Front Page Article 'China Kids Stay Home' had the capacity to incite hatred towards, or serious contempt for, members of the Chinese race? 2. If the answer to question (1) is yes, whether one or more of those emotions was incited on 'the ground of' the race of the members of the group?

1. The Applicant bears the burden of proving, on the balance of probabilities, each of the matters above.
2. As set out above, there is no dispute that the audience of The Daily Telegraph is akin to an ordinary member of the public, otherwise, 'the public at large'.

Evidence

1. The Applicant filed two statements made on 24 June 2020 and 8 August 2020. The Respondent filed a statement from Mr Ben English dated 22 July 2020.
2. Written submissions were filed by each party.

Consideration

1. The applicant contends that the Front Page Article main headline 'CHINA KIDS STAY HOME', borders on hysterical. She refers to the font size of the main headline being 'overwhelmingly large' and takes up almost half a page, with the use of all capitals. She submits that the directive conveyed by the main headline is 'forceful and unequivocal, leaving no room for readers to consider that a 'China Kid' could have any legitimate reason to be out of their 'home'. Taken together, the Applicant contends that the Respondent's public act was patently capable of inciting hatred.
2. The Applicant goes further to assert that the nature of the Respondent's publication renders it unavoidable, and exposure may be incidental, unintended, and may not allow the reader to view the full context of the public act engaged in. She proposes examples of a reader waiting for a breakfast order and reading the main headline only, or a socially distanced ferry commuter who would be able to view and read the main headline without having the opportunity or the inclination to pursue a larger part of the article in greater detail. The Applicant emphasises in her written submissions in reply that the crux of her argument is that the publication of a widely circulated newspaper at a time of heightened anxiety during the COVID-19 pandemic, when considering the context of the Front Page Article, both literal and historical, would lead a member of the general public, to feel hate towards, serious contempt for and severe ridicule of members of the Chinese race because of their race.
3. The Respondent submits that the Tribunal when considering the meaning and effect of the 'public act' must look further than the words 'CHINA KIDS STAY HOME'. The Tribunal should consider its meaning by having regard to the context of the expression. In doing, the Respondent draws our attention to Western Aboriginal Legal Service Limited v Jones (2000) NSWADT 102 at [103], where the then Administrative Decisions Tribunal in deciding that matter referred to defamation law, and extracted a portion of Professor Fleming's text on defamation citing: 'Meaning cannot be discovered without regard to the context of the expression. However disparaging at first blush, it may reveal its complete innocence if explained in the light of the circumstances attending its publication. The publication must be taken as a whole, not the offending passage isolated from the rest; the bane without the antidote.'
4. This passage was cited with approval and applied by the Court of Appeal in Jones v Trad at [52] per Ward JA. '[52] There is no dispute between the parties that the above analysis is equally applicable to the racial vilification provisions here under consideration. Further, both parties accept (Orange 16X, 34X) that when construing whether words incite or have the capacity to incite the requisite emotion one should look at the context in which those words were used and that, in the case of a broadcast such as the Schedule A broadcast, one should consider the words in the context of the entire broadcast (Western Aboriginal Legal Service v Jones [2000] NSWADT 102 at [103]).'
5. The Respondent has also referred to a decision of Senior Member Magay in Australian Macedonian Advisory Council Inc v Livv Pty Limited (2011) VCAT 1647, where the Victorian Civil and Administrative Tribunal found: 'It is abundantly clear that it is necessary to construe the article as a whole and not to take individual phrases in a piecemeal fashion and construe the effect of each individual phrase.'
6. The decision in Australian Macedonian Advisory Council Inc related to a complaint of racial vilification under s7 of the Racial and Religious Tolerance Act 2001 (Vic).
7. The Respondent contends that the Tribunal should consider the meaning and effect of both the Front Page Article, and the Main Article in determining this application. It submits that the Tribunal can take guidance from other areas of the law, such as defamation in similar circumstances to the way in which the Administrative Decisions Tribunal considered similar principles in Western Aboriginal Legal Service Limited v Jones. We accept these submissions.
8. In Australian Broadcasting Corporation v Obeid (2006) NSWCA 231; 66 NSWLR 605 at [2], which was applied in Hayson v Nationwide News Pty Limited (2019) FCA 81 (at 9), the New South Wales Supreme Court of Appeal said in Australian Broadcasting Corporation v Obeid at [69]: 'A plaintiff will only be required to plead more than has been forensically chosen if the only reasonable view that is open is that the selection did not provide the 'whole of the context' from which the Tribunal of fact, considering the matter from the perspective of an ordinary reasonable reader, would be concerned to determine the meaning of what was published.'
9. We do not accept Ms Sun's contention that the words 'CHINA KIDS STAY HOME' can be read in isolation. In adopting the reasoning as set out above, we find that the only proper consideration is that upon any reasonable assessment, the Main Article and the Front Page Article (including the main headline) must be regarded as one publication and taken as individual phrases in a piecemeal fashion. The effect of the Main Article Headline should not in our view be construed as an individual phrase.
10. The reader is directed to the words in capitals 'FULL REPORT PAGES 6-7'. Likewise, with respect to each of the other news articles on the front page of the paper, the reader is referred to a 'full report' on various pages of the newspaper. Readers of the article, whether in detail or glancing, were in our view on notice that the Front Page Article and the main headline did not comprise the whole context of the article. Readers were invited to go further than the main headline of the Front Page Article and the Front Page Article must be read in that context.

Did the main headline in the Front Page Article incite?

1. The meaning of the term 'incite' has on a number of occasions been the subject of judicial review and has found to be given its ordinary English meaning; to urge, spur on, stir up, animate, stimulate or prompt to action.
2. The Applicant has referred to a decision of the then Administrative Decisions Tribunal in Ahmed v Macquarie Radio Network (Radio Station 2GB) [2006] NSWADT 89. In that decision, a complaint of racial vilification was dismissed on the basis that listeners to the radio broadcast which was the subject of the application had not been incited because the caller spoke in a measured tone and called in aid an encyclopaedia. The Applicant says that this decision can be contrasted to the approach adopted by the Respondent in this application in that its public act 'borders on hysterical'. Reference is made by the Applicant to the words chosen and the overwhelmingly large text and use of capitals demanding attention. The Applicant says that the reader was given no room for any other interpretation other than to consider that a 'China kid' could have no legitimate reason for being out of their 'home'. These factors when taken together mean that the Respondent's public act was patently capable of inciting hatred.
3. The Applicant seeks that the Tribunal makes similarities with individuals' actions in loudly insulting an ethnic group in a public place which would stimulate or animate their audience to accept their views to denounce or to denigrate that group as the same result occurring with the main headline of the Front Page Article.
4. The Respondent rejects that the main headline of the Front Page Article had the requisite quality to 'incite'. It submits that the main headline summarised the most important aspect of the story - that on the first day of school for many NSW students, some were being urged to 'stay home' by the New South Wales Health Minister. Those children, as the first two paragraphs of the Front Page Article make clear, were any children who had recently travelled to China. The Respondent submits that the use of the word 'China' was clearly a reference to the Country, and not race or background.
5. The Respondent submits that the reference cited by the Applicant in Sunol v Collier of Allsop P can be distinguished in relation to the Respondent's 'public act' which is before us to determine. The Respondent submits that the main headline of the Front Page Article 'CHINA KIDS STAY HOME' cannot be read in isolation for the reasons as set out above and to do so would misconstrue the task at hand, which requires, as we have found above, to give full consideration to the Front Page Article as a whole, together with the Main Article.
6. The Tribunal has on a number of occasions and most recently in Burns v Sunol [2018] NSWCATAD 10 at [39] consistently held that the words 'hatred' and 'serious contempt' in the vilification provisions of the Act are to be given their ordinary meaning and have applied the following definitions: 'Hatred' means 'intense dislike; detestation' (Macquarie), 'a feeling of hostility or strong aversion towards a person or thing; active and violent dislike' (Oxford). 'Serious' means 'important, grave' (Oxford); 'weighty, important' (Macquarie). 'Contempt' means 'the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account' (Oxford); 'the feeling with which one regards anything considered mean, vile, or worthless' (Macquarie).'
7. Having considered both the Front Page Article and the Main Article, we are satisfied that the context read as a whole would not incite hatred towards, serious contempt for or serious ridicule of the Chinese people by the audience of The Daily Telegraph being the 'public at large'. It is clear in our minds that when one reads the main headline of the Front Page Article, the text which follows and the Main Article, the purpose, amongst other things, was to inform the general public of a decision made by the New South Wales Health Minister that children who had recently been to China were told to stay home in light of the COVID-19 pandemic. It is possible that some of these recently arrived children may not have been of the Chinese race, yet had also travelled from China. China in this context refers to the child traveller's departure site rather than their ethnic background. We find that the words China Kids Stay Home, when read in the context of the Articles, do not convey hatred, or serious contempt for members of the Chinese race.
8. We find that the article when read as a whole by the audience would have conveyed a request of concern for those children's welfare in the context of the potential spread of COVID-19 within a school environment.
9. At the beginning of the COVID-19 pandemic the Australian and New South Wales Governments ordered many people to stay at home or isolate. Indeed people around the world were instructed by their respective governments to do so. We are not satisfied that the main headline, nor the Articles, incited the requisite emotions against those children whom the Government had instructed not to attend schools having recently travelled from China.
10. The Applicant has not discharged her onus in proving, on the balance of probabilities, that 'CHINA KIDS STAY HOME' incited hatred towards, serious contempt for or serious ridicule of Chinese people in the terms required of section 20C of the Act.
11. Given our findings, we have not addressed the matters in s20C(2)(c).
12. It follows that the application is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 June 2021