Is s 49ZT Reasonably Appropriate and Adapted to Serve a Legitimate End in a Manner Compatible with the Maintenance of the System of Government Prescribed by the Constitution?
46In my opinion the answer to this question is yes.
47In considering this question there are a number of matters which need to be borne in mind. First, the freedom is not absolute. In Australian Capital Television Pty Limited v Commonwealth supra at 169, Deane and Toohey JJA emphasised that it was not an absolute and uncontrolled licence but an implication of freedom under the law of an ordered and democratic society: see also Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272 at 336-337. In Lange at 565-566 (citations omitted), the Court summarised the position as follows:
"Similarly, the content of the freedom to discuss government and political matters must be ascertained according to what is for the common convenience and welfare of society. That requires an examination of changing circumstances and the need to strike a balance in those circumstances between absolute freedom of discussion of government and politics and the reasonable protection of the persons who may be involved, directly or incidentally, in the activities of government or politics."
48Second, in determining whether a law is reasonably appropriate and adapted to a legitimate end, the question for the Court is not whether some choice other than that made by Parliament was preferable or desirable, but whether the parliamentary choice was reasonable in light of the burden placed on the constitutional freedom of communication. The role of the Court is to ask whether Parliament's enactment is a reasonable means of achieving its purpose, keeping in mind the importance of constitutional freedoms: Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579 at 598, 608, 614-615, 618-620, 627-628 and 647-648; Mulholland v Australian Electoral Commission supra at [32]-[33], [234]-[239], [256], [360]; Coleman v Power supra at [31], [100], [292] and [328].
49Third, the distinction has been drawn between legislation the direct purpose of which is to restrict political communications and that which only incidentally restrict such communication. The distinction was drawn by Gaudron J in Levy v The State of Victoria supra at 619 (citation omitted), in the following terms:
"If the direct purpose of the law is to restrict political communication, it is valid only if necessary for the attainment of some overriding public purpose. If, on the other hand, it has some other purpose, connected with a subject matter within power and only incidentally restricts political communication, it is valid if it is reasonably appropriate and adapted to that other purpose."
50Section 49ZT falls into the latter category.
51Although having regard to the construction of the Act to which I have referred above, it is true that the potential operation of the section is wide and can extend to public acts neither intended to incite hatred, serious contempt or severe ridicule or in fact having that effect, it must be remembered that public acts which express such emotions but which would not incite such emotions in an ordinary member of the class in question are not caught by the section. Further, such persons would generally be aware of the robust nature of political debate which takes place in this country. In addition, s 49ZT(2)(c) exempts from the operation of the section public acts done reasonably and in good faith concerning matters in the public interest, including discussion or debate about any act or matter.
52It seems to me plain that seeking to prevent homosexual vilification is a legitimate end of government. A law seeking to prevent the incitement of such conduct seems to me compatible with the maintenance of the constitutionally provided system of government. It does not seem to me that debate, however robust, needs to descend to public acts which incite hatred, serious contempt or severe ridicule of a particular group of persons. Further, to the extent that what is recognised as legitimate political debate would fall within s 49ZT the exemption in s 49ZT(2)(c) in my opinion provides adequate protection. In those circumstances the legislation provides the appropriate balance between the legitimate end of preventing homosexual vilification and the requirement of freedom to discuss and debate government or political matters, required by the Constitution: Cf Jones v Scully supra at [240].
53In these circumstances the second question posed by Lange should be answered in the affirmative.
54Orders
(1)Declare that s49ZT of the Anti-Discrimination Act 1977 (NSW) does not exceed the legislative power of the State, as confined by the implied constitutional protection of political discourse, and is not invalid on that ground.
(2)Summons otherwise dismissed.
(3)No order as to costs.
55ALLSOP P: I have read the reasons of the Chief Justice. Subject to that which follows, I agree with the reasons of and the orders proposed by the Chief Justice.
56The first task is to construe s 49ZT.
57The secondary material being the second reading speech of Clover Moore MP for the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (Legislative Assembly, 11 March 1993) and the report of the New South Wales Anti-Discrimination Board entitled "Discrimination and Homosexuality" published in 1982 identified the subject matter and mischief to which Pt 4C was directed. This subject matter included the way homosexuals were from time to time vilified in public, which was seen as capable of creating the conditions for violence against homosexual men and women. Violence was more directly addressed by s 49ZTA, but the incitement of hatred, serious contempt or severe ridicule can be seen to create the conditions for violent behaviour.
58The secondary material also demonstrates a keen awareness of the effect of a provision such as s 49ZT on freedom of speech and of the need to balance such freedom with the desired aim of the legislation - to make unlawful public acts which incite the emotions and conditions to which I have referred. That attempted balance can be seen from the text employed by Parliament in subsections (1) and (2).
59Thus, one comes to the task of construing s 49ZT recognising the high value that the common law (and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that restrict it. This approach is reinforced by the recognition of the limitation on Commonwealth, State and Territory legislative power by the implied Constitutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[45] and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton v The Queen [2012] HCA 2 at [32].
60The 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).
61Subject 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.
62Further, 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.
63Section 49ZT(2), and in particular paragraph (c), is to be read against the background of the Constitutional implied political freedom. That said, the careful crafting of the language of subsection (2) makes it difficult simply to read down the language used. In circumstances where Parliament has used a wide relative descriptor (such as "offensive"), its meaning can be taken from its context and read down, if necessary, to a core meaning consistent with that context, including the implied political freedom. Here, Parliament has used precise language that makes it more difficult to read down, by an operation, for instance, of the Interpretation Act, s 31, the words of s 49ZT(2).
64The recognition of the implied Constitutional freedom does mean, however, that the words "reasonably", "in good faith" and "other purposes in the public interest" should take into account the important Constitutional freedom to discuss matters of wide public interest that may be related to political and governmental matters.
65One of those subject matters for discussion in our society, potentially affecting the workings of the Commonwealth Parliament, is human sexuality and the rights of people in Australia connected therewith. Topics such as marriage, adoption and superannuation readily come to mind. Some of the debate that surrounds these issues contains expressed or unexpressed assumptions or predicates about the rightness or wrongness of certain sexual orientations. That these assumptions or predicates may have been settled for many, if not most, in our community some years ago, cannot deny the existence of social and political debate about these issues.
66The implied freedom recognised in Lange and as modified in Coleman v Power does not limit its protection to rational, reasoned and civil debate. In Coleman, McHugh J said at 54 [105]:
"The use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation. And whether insulting words are or are not used for the purpose of intimidation, fear of insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of the political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. Such prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of representative government."
Whether or not Gummow J and Hayne J agreed with this paragraph at 77 [195], they themselves said at 78 [197] that insult and invective were well-known forms of political communication. Kirby J at 91 [239] said that insult, emotion, calumny and invective are part of the "armoury" of political persuasion and the struggle for ideas. Thus, the sphere of political discourse amenable to coverage by the implied immunity on the subject of sexuality (including homosexuality) can be seen to include the kinds of topics that I have identified and in a manner that can use insulting words, words as verbal weapons of intimidation, words of invective that are emotional and containing calumny. These are communications that can overlap with or be touched by the proscribed public acts in s 49ZT. This was no doubt why the concession was made in argument as to the satisfaction of the first limb of the test.
67That said, it can be argued with force that public acts as defined by s 49ZT (by reference to both subsections (1) and (2)) could or should never be the subject of political debate such that they cannot or should not be covered by the implied immunity as being outside the legitimate scope for political discourse. On one view, that argument may fail to give full effect to the views of McHugh J, Gummow J, Kirby J and Hayne J in Coleman. Alternatively, even if the argument is not prevented by considerations of manner and tone of discourse, there may be another, and more profound point to be made. Take race and racial discrimination. Would a law that banned communications of a racially abusive character underpinning a contemporary National Socialist doctrine be a law that burdened in a real way the freedom to communicate about matters of political doctrine espoused by people who stood for election and campaigned on race, religion and racial superiority? If not, that can only be because the character of the political communication sought to be proscribed and sought to be engaged in is so foreign, inimical and offensive to our Constitution and the political and legal theories that underpin it as not to attract any Constitutional protection. If so, the law would have to be reasonably appropriate and adapted to serve a legitimate end (of eliminating racism) in a manner that was compatible with the maintenance of the Constitutionally prescribed system of representative government. One could readily understand how this requirement could be seen to be satisfied. The point is an important one, but was not the subject of argument.
68Recognising the scope of the protection referred to by McHugh J, Gummow J, Kirby J and Hayne J, and approaching the matter as argued by the parties, s 49ZT should be taken as burdening in a real way the freedom to communicate about matters of homosexuality.
69The question which then has to be asked is whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.
70The end which s 49ZT is adapted to serve is the discouragement of (by making unlawful) public acts that vilify members of the community because of their homosexuality. This is in order to reduce or remove the instances of public acts that may foster a climate or atmosphere in which violence may arise; and in order to promote tolerance and harmony in a society in which human rights, including those concerning sexuality, are respected. The balance struck in subsections (1) and (2) is one that is reasonably appropriate and adapted to further this end.
71The section operates in a manner that for an act that falls within subsection (1) not to be unlawful it must fall within subsection (2). Paragraph (2)(c) is centrally relevant. It is difficult to see how reading down to conform with the implied Constitutional freedom would permit all the types and kinds of acts and communications referred to by McHugh J to be encompassed within "reasonably and in good faith ... for ... purposes in the public interest". Undoubtedly a "purpose in the public interest" is wide enough to include communication in political and governmental matters and issues related thereto, here, sexuality and homosexuality. Further, one can accept that "reasonably and in good faith" are sufficiently elastic to encompass "trenchant, robust, passionate, indecorous even rancorous" communications: cf Coleman at 125 [330] (Heydon J), if one appreciates that the public act as defined in s 49ZS must be understood against the background of the implied freedom.
72That said, there could be public acts that are communications of a political or governmental character that will not be reasonably expressed or in good faith which will be laden with emotion, calumny or invective. If these concern homosexuality and fall within s 49ZT(1) and do not fall within s 49ZT(2) a distinct type of communication capable of falling within the Constitutional protection (leaving to one side the point earlier made about communications foreign, inimical or offensive to the system of government protected) will be made unlawful.
73Notwithstanding this affectation, the provision remains compatible with the maintenance of the prescribed system of government. The degree to which a Parliament is entitled to entrench upon communications of a political or governmental character must depend, in part, upon the nature and importance of the end to which the law must be reasonably adapted. Certain subject matters are of a character that care needs to be taken in discussion of them in order that forces of anger, violence, alienation and discord are not fostered. Race, religion and sexuality may be seen as examples of such. Racial vilification of the kind with which the Federal Court dealt in Toben v Jones [2003] FCAFC 137; 129 FCR 515 is capable of arousing the most violent and disturbing passions in people. If it were to be carried on for political purposes it would make the effect on people no less drastic. Similar types of vilification can be contemplated directed to other racial groups, other religious groups or groups having different sexual orientations than what might be said to be "usual". A diverse society that seeks to maintain respectful and harmonious relations between racial and religious groups and that seeks to minimise violence and contemptuous behaviour directed towards minorities, including those based on sexual orientation, is entitled to require civility or reason and good faith in the discussion of certain topics. Those topics are, at least in the first instance, for Parliament to choose, although it will always be for the courts to apply the laws and the Constitution.
74Thus, whilst the provision here (s 49ZT) may not have been compatible with the maintenance of the system of representative government if it was directed to vilification of politicians, or judges, or public servants, or political parties, or people in general, the limitation of its operation on the grounds of homosexuality enables the compatibility conclusion to be drawn.
75BASTEN JA: The authorities establish that where a challenge is raised to the constitutional validity of a law which may have the effect of burdening communications in relation to political or governmental matters (political discourse) a court should undertake a staged approach in the following manner:
(a)construe the impugned law;
(b)determine whether, properly construed, it effectively burdens political discourse;
(c)if so, determine whether it is nevertheless reasonably appropriate and adapted to serve a legitimate end in a manner compatible with the system of representative and responsible government prescribed by the Constitution, and
(d)if it fails the foregoing test, whether it can be severed or read down in a manner which preserves validity of the law in part.
76An example of such a staged approach may be found in the judgment of McHugh J in Coleman v Power [2004] HCA 39; 220 CLR 1. (No other member of the Court reached the stage (c).) Gleeson CJ suggested that stage (c) may have two limbs, namely whether (i) the object of the impugned law is compatible with the maintenance of the constitutional system of representative and responsible government, and (ii) the law is reasonably appropriate and adapted to achieving its object: at [26], see also Gummow and Hayne JJ at [198]. There would seem to be value in separating these elements: see also Wotton v State of Queensland [2012] HCA 2 at [83] (Kiefel J).
77The purpose in identifying at the outset the proper construction of the impugned law is to identify the scope of its operation, so as to determine whether it impinges in any way on discourse within the protected area. That exercise will need to allow for a possible "chilling effect" near the boundaries, even where there is no actual overlap.
78Despite the logical nature of this structure, it can only be applied with a degree of flexibility. For example, when construing State legislation, step (a), this Court must have regard to provisions of the Interpretation Act 1987 (NSW), s 31(1), which requires that a statute be construed "as operating to the full extent of, but so as not to exceed, the legislative power of Parliament". So much was recognised in Coleman v Power: in construing the impugned law, Gummow and Hayne JJ reached a preferred construction, without regard to the constitutional considerations, although those were said to "reinforce" the construction otherwise preferred: at [183] and [184]. See also Monis v R; Droudis v R [2011] NSWCCA 231 at [25] (Bathurst CJ) and [76]-[77] (Allsop P) and Wotton at [9] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
79Applying 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.
80Steps (b) and (c) involve the application of the constitutional limitation on legislative power, enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, adapted in Coleman v Power and reaffirmed in Hogan v Hinch [2011] HCA 4; 85 ALJR 398. The first question posed by the implied constitutional limitation is "Does the law ... effectively burden freedom of communication about government or political matters in its terms, operation or effect?" - Hogan v Hinch at [47] (French CJ) and [94] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
81There are a number of appellate decisions in Australia which address the first question. In some cases, the discussion was abbreviated, because the issue did not need to be determined: see, eg, Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; 15 VR 207 at [113] (Nettle JA), [208] (Neave JA). In other cases the analysis was undertaken by reference to the publication, rather than the law which supported its suppression: see, eg, Brown v Classification Review Board (1998) 82 FCR 225 at 238 (French J), 246 (Heerey J) and 258 (Sundberg J); Holland v The Queen [2005] WASCA 140; 30 WAR 231 at [93]-[100] (Malcolm CJ), [235] (Roberts-Smith JA), [297]-[298] (McLure JA). Focus on the specific conduct in question is appropriate where the conduct may fall outside the statutory prohibition, properly construed, as in Coleman v Power. Otherwise, the constitutional validity of a law must be assessed by reference to the scope of its operation and possible points of intersection with constitutionally protected political discourse: Wotton at [80] (Kiefel J); Monis at [46]-[47] (Bathurst CJ).
82There being no guarantee of individual freedom of expression, regard must be had to the content of the prohibition, in order to determine whether it is capable of falling within the area of protected discourse. The historical importance of the distinction, in a country having a similar political heritage, was explored by the Canadian Supreme Court in R v Keegstra [1990] 3 SCR 697 at 726-730 (Dickson CJ) and 802 (McLachlin J). Laws which seek to control the manner of communication will readily burden political discourse: Coleman v Power at [27] (Gleeson CJ). Prohibitions on communications, limited by reference to their content, may also be liable to infringe on the protected area, depending on the breadth of the content covered.
83The applicant contended and the State accepted that the impugned law, s 49ZT, could, at least in some circumstances, burden political discourse. Such concessions are common, Coleman v Power being an example, as was emphasised by Gummow and Hayne JJ at [197]. However, to accept the common ground without exploration is unsatisfactory. If this course were adopted on a regular basis, the presumed reach of the implied immunity will tend to expand, with a correlative restriction on the extent of legislative power: Wotton at [41] (Heydon J). More importantly for the individual case, failure to identify the precise scope of the burden on political discourse will render it difficult to apply interpretative provisions such as s 31, on the one hand, and, on the other, to carry out the assessment demanded by the second limb of the Lange test - (c) above.
84Differing views have been expressed over time as to the scope of the protected area of political discourse. As the Chief Justice notes at [42] above, some statements of the coverage are expressed in wider language than others. In particular, it may be doubted whether the description in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; 182 CLR 104 at 124, that the implied freedom covers "all speech relevant to the development of public opinion on the whole range of issues which an intelligent citizen should think about", accurately reflects an immunity limited to that which is necessarily implied from the text and structure of the Constitution. The requirement that the implication be so confined was not clearly established until Lange in 1997, three years after the decision in Theophanous.
85It is not sufficient (nor probably necessary) to identify a head of Commonwealth legislative power to which homosexuality may be relevant, although absence of any such power might be significant. Issues relating to the social and legal status of homosexuals will undoubtedly arise in relation to proposals to permit marriage between persons who are homosexuals or lesbians. Marriage is a matter for Commonwealth legislation: Constitution, s 51(xxi). It is not, however, sufficient to identify a general topic, such as homosexuality, as a legitimate topic of political discourse; the operation of s 49ZT is far more limited. It is necessary to ask whether speech which is prohibited by s 49ZT falls within the area of the constitutional protection. That is why it is necessary first to construe the impugned law. (In this respect, the approach adopted by Hely J in Jones v Scully [2002] FCA 1080; 120 FCR 243 at [239] appears to be too general, although s 18C of the Racial Discrimination Act 1975 (Cth), even as qualified by s 18D, entails a far broader operation than, for example, s 49ZT.)
86The joint judgment in Hogan v Hinch affirmed the need to distinguish between burdens which were "direct" and those which were "incidental": at [95]. As will be noted shortly, that distinction has relevance for the level of scrutiny to be applied in answering the second question, if the first question is answered in the affirmative. With respect to the first question, the test is whether there is an "effective burden" on political discourse. That requires the court to ask to what extent, as a matter of practical reality, compliance with the impugned law will constrain political discourse. Thus, it is necessary to inquire whether prohibition of the conduct covered by s 49ZT, to the extent that it falls within the area of political discourse, will burden, rather than enhance, that discourse. Such a question does not relate to the effectiveness of political advocacy, nor to elements of civility; rather, it seeks to distinguish a rule which, by regulating the manner or content of communications diminishes, rather than enhances, participation and the free exchange of ideas. Conduct by which one faction monopolises a debate or, by rowdy behaviour, prevents the other faction being heard, burdens political discourse as effectively as a statutory prohibition on speaking. A law which prohibits such conduct may constrain the behaviour of the first faction, but not effectively burden political discourse; on the contrary, it may promote such discourse: see Coleman v Power at [256] (Kirby J). (A different analysis may be required where individuals enjoy a guarantee of freedom of speech.)
87It should be accepted that discussion regarding sexual preference may legitimately arise in the course of political discourse, whether it be concerned with the character, status or conduct of individuals or of groups. It may also be accepted that insult and invective are a legitimate part of political debate: Coleman v Power at [105] (McHugh J), [197] (Gummow and Hayne JJ) and [239] (Kirby J). However, to concede that protected political speech may permit hostility, abuse and invective does not require a constitutionally demanded tolerance of speech capable of inciting hatred, serious contempt or severe ridicule. Particularly is that so with respect to speech directed to persons who face rejection, intimidation and discrimination in public life on the basis of a characteristic properly protected as a fundamental human right or freedom: see, Attorney General (Canada) v Ward [1993] 2 SCR 689 at 737, referring, in the context of refugee claims, to characteristics that persons "either cannot change, or should not be required to change because ... fundamental to their individual identities or consciences" (La Forest J).
88If homosexual vilification laws burden protected discourse, it seems likely that racial vilification laws, adopting similar language, would also have that effect: Anti-Discrimination Act, ss 20B and 20C. That might mean, depending upon the uncertain test of justification, that the Commonwealth could not fully implement the International Convention on the Elimination of all Forms of Racial Discrimination, which requires States Parties to prohibit dissemination of ideas "based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race": Art 4. (For the history of Art 4 and its reflections in domestic Australian law, see Toben v Jones [2003] FCAFC 137; 129 FCR 515 at [92]-[113] and [114]-[129] (Allsop J).) A constitutional protection of speech which allowed vilification of Aboriginal people, Jews, Arabs and other racially identified minorities is not readily to be contemplated, even subject to a compelling justification test, of as yet "indeterminate" scope: Wotton at [53] (Heydon J). It would require an understanding of the essential constitutionally protected characteristics of representative and responsible government in Australia and an articulated justification, which were not assayed in the present case.
89The case proceeded on the assumption that s 49ZT was capable of burdening political discourse protected by the implied immunity flowing from the constitutional provisions providing for representative and responsible government. In my view, that assumption should not be accepted. The purpose and likely effect of s 49ZT is to promote essential elements of the Constitutional system of government. These elements include the maintenance of a society in which all persons may participate as equals and express their views publicly, as well as at the ballot box, without fear of being the subject of public utterances inciting hatred towards, or serious contempt for, or severe ridicule of them as homosexuals: see Eatock v Bolt [2011] FCA 1103; 197 FCR 261 at [225]-[228] and [239] (Bromberg J). Such persons may need to endure hostility, abuse and insult, so long as it does not rise to the proscribed level. Such constraints as s 49ZT imposes on political discourse do not effectively burden, but rather promote such discourse.
90The approach to the first question adopted above involves assumptions which should be articulated. First, the use of the adverb "effectively" is intended to refer to a real or significant burden, rather than a law having a particular effect. The question, as formulated in Hogan v Hinch, additionally refers to whether the burden results from the "terms, operation or effect" of the impugned law. Further, the adverb is placed so as to qualify the verb "burden".
91Secondly, the approach set out above involves an evaluative judgment, which may well reflect the kind of evaluative judgment required in answering the second question. That is because the first limb of the second question, referring to the "legitimate end" or purpose of the impugned law, will rarely be answered in the negative: most laws will have a legitimate purpose. The second limb of the second question asks whether the legitimate purpose is pursued in a manner "compatible with" the maintenance of the constitutionally prescribed form of government. It is understandable that the process of considering that factor will be similar to the approach to the first question adopted above. Nevertheless, that does not mean that the questions cover the same ground, nor that the first question should be approached as if it did not involve an evaluative judgment. However, it does mean that if the first question is answered in the negative, but it is nevertheless thought necessary to proceed to the second question, the latter is likely to be answered in the affirmative - that is, to the same effect.
92If the foregoing approach to s 49ZT be erroneous and the second question is engaged, it is necessary to distinguish a law the purpose of which is to burden political discourse directly from one which has a different purpose, acting on political discourse only incidentally. The former will be subject to more intense scrutiny than the latter: Cunliffe v The Commonwealth [1994] HCA 44; 182 CLR 272 at 339 (Deane J); Levy v Victoria [1997] HCA 31; 189 CLR 579 at 618 (Gaudron J); Coleman v Power at [30]-[33] (Gleeson CJ); Hogan v Hinch at [94].
93In Coleman at [105], set out by the President at [66] above, McHugh J elided the two parts of the second question so as to ask whether the impugned law "could be regarded as reasonably appropriate and adapted to maintaining the system of representative government". It does not appear that any departure from the principle stated in Lange was intended. In any event, the current test is that enunciated in Hogan v Hinch.
94If, the first question not having been argued, it is inappropriate to approach this case on the basis set out above, I accept the reasoning of Bathurst CJ and Allsop P that the second limb of the Lange test is satisfied. For reasons discussed in answering the first question, s 49ZT is not in any sense incompatible with the system of representative government in this country. Indeed, the manner in which s 49ZT pursues its purpose is appropriate and well adapted to that system and in conformity with, if it does not actually promote, freedom of political discourse.
95Following the judgment in this matter with respect to the power of the Administrative Decisions Tribunal to refer to this Court questions of law, pursuant to s 118 of the Administrative Decisions Tribunal Act 1997 (NSW) - Sunol v Collier [2012] NSWCA 14 - the applicant filed an amended summons claiming the following relief:
"1.A declaration that the eight communications or public acts identified in [13] of the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters.
2.A declaration that s 49ZT of the Anti-Discrimination Act 1977 (NSW) is invalid."
96On either basis set out above, the declarations sought by the applicant should be refused. It is, however, appropriate for this Court to declare that s 49ZT of the Anti-Discrimination Act 1977 (NSW) does not exceed the legislative power of the State, as confined by the implied Constitutional protection of political discourse, and is not invalid on that ground.
97Having regard to the terms of the first declaration sought, it is desirable to emphasise that nothing set out above is intended to convey any view as to whether or not the publications underlying this proceeding contravene s 49ZT of the Anti-Discrimination Act.
98There should be no order as to the costs of the proceedings in this Court.