Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Sunol v Collier (No 2) [2012] NSWCA 44
• Hearing dates: 31 October 2011
• Decision date: 22 March 2012
• Before: Bathurst CJ at [1]; Allsop P at [55]; Basten JA at [75]

Decision

(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.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: STATUTORY INTERPRETATION - Anti-Discrimination Act 1977 s 49ZT - unlawful, by public act, to incite hatred - whether regard must be had to effect of act on class of persons to whom it is directed - whether ordinary or reasonable member of class considered; STATUTORY INTERPRETATION - Anti-Discrimination Act 1977 s 49ZT - whether defence of "good faith" requires objective assessment of defendant's intentions; STATUTORY INTERPRETATION - words and phrases - meaning of "incite" - Anti-Discrimination Act 1977 s 49ZT; CONSTITUTIONAL LAW - constitutional validity of legislation - unlawful to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of homosexuality - whether s 49ZT of the Anti-Discrimination Act 1977 (NSW) burdens implied freedom of political communication - whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth); CONSTITUTIONAL LAW - implied freedom of political communication - whether regard must be had to the content of prohibition said to burden the implied freedom
• Legislation Cited: Acts Interpretation Act 1901 (Cth), s 15A; Administrative Decisions Tribunal Act 1997, s 118; Anti-Discrimination Act 1977, s 20B, s 20C, s 49ZS, s 49ZT, s 49ZTA, s 91A, s 93A, s 93B, s 93C, s 108; Constitution, s 7, s 24, s 64, s 128; Interpretation Act 1987, s 31; Racial Discrimination Act (Cth), s18C, s 18D
• Cases Cited: Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; APLA v Legal Services Commission NSW [2005] HCA 44; (2005) 224 CLR 322; Attorney General (Canada) v Ward [1993] 2 SCR 689; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105; Brown v Classification Review Board (1998) 82 FCR 225; Burns v Cunningham [2011] NSWADT 240; Burns v Dye [2002] NSWADT 32; Burns v Laws (No 2) [2007] NSWADT 47; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207; Coco v The Queen [1994] HCA 15; 179 CLR 427; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272; Eatock v Bolt [2011] FCA 1103; 197 FCR 261; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532; Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398; Holland v The Queen [2005] WASCA 140; 30 WAR 231; John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35; Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243; Kazak v John Fairfax Publications Limited [2000] NSWADT 77; Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520; Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579; Monis v R; Droudis v R [2011] NSWCCA 231; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181; R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58; R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390; R v Keegstra [1990] 3 SCR 697; R v Massie [1998] VSCA 82; [1999] 1 VR 542; Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1; Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104; Toben v Jones [2003] FCAFC 137; 129 FCR 515; Veloskey v Karagiannakis [2002] NSWADTAP 18; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349; Wotton v The Queen [2012] HCA 2; Young v Cassells (1914) 33 NZLR 852
• Texts Cited: Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993, Second Reading Speech, New South Wales Legislative Assembly (11 March 1993); New South Wales, Anti-Discrimination Board, Discrimination and Homosexuality, (1982)
• Category: Principal judgment
• Parties: John Christopher Sunol (Applicant); Henry William Collier (Estate of the late Henry William Collier) (First Respondent); Administrative Decisions Tribunal, Appeal Panel (Second Respondent); Attorney General of New South Wales Intervening
• Representation: Counsel; Mr N J Owens (Applicant); Submitting appearance (First Respondent); Submitting appearance (Second Respondent); Dr J G Renwick SC / Ms S Cirillo on behalf of the Attorney General; Solicitors; AMC Lawyers (Applicant); Gilbert & Tobin Lawyers (First Respondent); Crown Solicitor (Second Respondent); Crown Solicitor (Attorney General)
• File Number(s): CA 2009/298492

Decision under appeal

• Citation: Sunol v Collier [2009] NSWADTAP 34
• Date of Decision: 2009-06-04 00:00:00
• Before: A Britton - Deputy President; G Furness - Judicial Member; M Gill - Non-Judicial Member
• File Number(s): ADT 081045

Judgment

1 BATHURST CJ: On 5 November 2009 the Administrative Decisions Tribunal Appeal Panel ("the Panel") filed a summons in this Court referring four questions of law to the Court pursuant to the provisions of s 118 of the Administrative Decisions Tribunal Act 1997 ("ADTA"). The questions were as follows:

"(i)Whether 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?

(ii)Whether s. 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?

(iii)Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires?

(iv)Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters?"

2 By an amended summons filed on 15 August 2011 Mr John Christopher Sunol (the applicant) was substituted for the Panel as applicant.

3 The proceedings were heard on 31 October 2011. Neither the Panel (second respondent) nor the first respondent to the amended summons, described as Henry William Collier (Estate of the late Henry William Collier), took any active part. The applicant argued in favour of an affirmative answer to questions (i) and (ii), whilst the Attorney General intervening argued in favour of a negative answer to each of those questions. Neither party ultimately sought an answer to questions (iii) and (iv).

4 In a judgment of the Court delivered on 20 February 2012, it was decided for the reasons given by Basten JA that the procedure involving a referral of a question pursuant to s 118 of the ADTA was inappropriate and each of the questions should be answered "inappropriate to answer".

5 The applicant accepted an invitation of the Court to amend the summons to seek declaratory orders and an order restraining the Tribunal from further considering and determining the matter before it on the basis that s 49ZT of the Anti-Discrimination Act 1977 ("the Act") was invalid.

Factual Background

6 The factual background is set out in a Special Case filed in the s 118 proceedings. The applicant and the late Mr Henry Collier had entered into a conciliation agreement dated 15 November 2007 pursuant to s 91A(5) of the Act. The conciliation agreement arose out of a complaint made by Mr Collier to the Anti-Discrimination Board alleging that the applicant had vilified homosexuals by posting materials on internet websites in breach of s 49ZT of the Act.

7 The conciliation agreement contained the following provisions:

"Clause 3John Sunol agrees not to post any further material on any website whether controlled by him or not that refers to homosexual people or homosexuality in a manner which breaches the relevant clauses of the New South Wales Anti-Discrimination Act.

Clause 4John Sunol agrees not to pose any material on any website whether controlled by him or not that disparages Henry Collier ..."

8 Following the entry into the conciliation agreement the applicant between 13 February 2008 and 25 May 2008 published the following statements on various websites (the spelling and syntax being reproduced):

"jsut the same as Children should be banned from in that filthy gay and Lesbian Mardi Gras in Sydney, child paedophilia perverted show in the streets of Sydney"

"In setting pre-cedents I got 5,000 signatures back in 1990 to sign with me against the Mardi Gras which is very evil. full of corruption and Child pedeophilia, much like Orkopolos the member for Swansea who has just been convicted. I have a duty under God and the law to expose this and I shurly will do it. So I was the next best choice to set up and dmake a precedent with"

"go back to your faggot mate and shut your bloody big trouble making mouth"

"I dedicate myself to bring down this bloody faggots Parade"

"Mardi Gras is run by evil spirits and those who have an alterntive agenda to bring around destruction to Australian society. it is full of pedeophilia and other wickedness of such...but I dedicate my whole life to God to bring this piece of living shit down in full."

"Mardi Gras is a blot upon the Land and bringing a curse upon Sydney and its inhabitants which is going to lead onto all Australians and those who follow this event."

"I was able to be in the crowd and see what I need to see and gather information! to later use to turn people off this filthy, demonic and blasfoumous, pererted event run by drug lords and criminals."

"Sydney is wicked and Gods judgement is going to come upon this city, becauase of this sin from this event and other sins. If this event is not got ridden of emediataly without delay Sydney will find itself under attack by enemies and God will moove to punish the city and the people involved in such a wicked eveil blasfoumous event as the Mardi Gras"

"As for the discrimination laws and laws of villificastion. I am not willing to obey these and if I go to prison. I go to prison as a martyr for ! Jesus Christ and I use this to promote the truth of this event. i also st! r up those inside prison to break the faggots law as well without thinking and in complete and utter contempt of the law and those who prisoned me."

"This event is getting so big and unruly God will coem down on it and wipe it off the face of the earth...they need not know that if they catch my taxi they support anti gay mrdi gras groups as that is where my money will go and who they will be supporting by using my services"

"I will never apologize to sexuality fgor the sin that they are in. I refuse to do such Sin is wicked and this is agaisnt Gods holy order we must keep it this way."

9 As a consequence the second respondent sought to register clauses 3 and 4 of the conciliation agreement under s 91A(6) of the Act. The effect of such registration is that the registered provisions are taken to be an order of the Administrative Decisions Tribunal (the Tribunal) and may be enforced accordingly (s 91A(9)).

10 The Tribunal registered clause 3 of the agreement but declined to register clause 4. The applicant appealed to the Panel. It was this appeal which resulted in the reference under s 118 of the ADTA.

11 Before giving consideration to the parties' submissions, it is convenient to set out s 49ZT:

"49ZTHomosexual vilification unlawful

(1)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 homosexuality 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, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter."

12 Although the conduct is described as unlawful it does not attract criminal sanctions. Rather, in circumstances where a complaint is referred to the Tribunal under s 93A, s 93B or s 93C of the Act, the Tribunal has power to make orders under s 108 of the Act including power to award damages and enjoin future similar conduct. In this regard it is to be contrasted with s 49ZTA of the Act which provides criminal sanctions for such conduct when it involves threat of physical harm or inciting others to threaten physical harm towards a person or towards the property of a person.

13 Having regard to the definition of "public act" in s 49ZS, the provisions of s 49ZT potentially have a very wide operation. Section 49ZS provides as follows:

"49ZSDefinition

In this Division:

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 severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group."

The Appellant's Submissions

14 The appellant submitted that unless read down s 49ZT is a law which infringes the implied freedom of communication about governmental or political matters having regard to the test stated in Lange v Australian Broadcasting Commission [1997] HCA 25; (1997) 189 CLR 520 at 567 as modified in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1. He submitted the eight communications in question were political matters as they concerned a matter of political controversy and debate in Australia.

15 The appellant submitted that a breach of s 49ZT could occur if a person made a statement:

"(a)not intending to incite hatred towards, contempt for or severe ridicule of a person on the grounds of that person's homosexuality;

(b)not in fact inciting hatred towards, contempt for or severe ridicule of a person on the grounds of that person's homosexuality;

(c)without in fact inciting even a hypothetical reasonable person to subject a person to severe ridicule on the grounds of the latter's homosexuality, but only eliciting an intention to do so should the opportunity arise;

(d)if the Tribunal determines by 'an evaluative judgment within a broad discretion' that the ridicule incited by the person is 'severe'; and

(e)that he or she is unable to persuade the Tribunal was 'reasonable' and 'not disproportionate' for the purpose of engaging in discussion or debate on the topic."

16 It was submitted that in that context the section went beyond what was reasonably appropriate and adapted to secure the legitimate end of the prevention of vilification of homosexual persons. So far as severe ridicule was concerned, the applicant referred to the broad discretion of the Tribunal in determining whether the ridicule was severe and submitted that this meant people would not know in advance whether a speech contravened the provision, thus exerting an unacceptable chilling effect on political speech. The applicant submitted a similar problem arose in respect of s 49ZT(2)(c) in that the lawfulness of speech potentially falling within that subsection depended on the Tribunal's assessment of the purpose of the speech or discussion and the proportionality of what was said to the discussion or debate.

17 During the course of the hearing of the proceedings, counsel for the applicant accepted that his submission was contrary to the conclusion reached by the Court of Appeal of Victoria in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; (2006) 15 VR 207 and Hely J in Jones v Scully [2002] FCA 1080; (2002) 120 FCR 243.

The Submissions of the Attorney General

18 The Attorney General submitted that s 49ZT read as a whole including the defence in subs 2(c) was valid as "it is appropriate and adapted to serve a legitimate end in a manner compatible with the maintenance of a constitutionally prescribed system of representative and responsible government, namely to prevent the social evil of vilification, which may lead to violence or other breaches of the peace, while also not making unlawful any 'public act done reasonably and in good faith ... [for] other purposes in the public interest, including discussion or debate about and expositions of any act or matter'".

19 The Attorney General submitted that one matter to which s 49ZT is directed is the risk of violence to homosexuals caused by vilifying speech. However, he accepted it was not a requirement of s 49ZT that there be an intention to incite violence.

20 The Attorney General submitted that the implied freedom does not extend to discussions that cannot illuminate the choice for electors at federal elections or in amending the Constitution, or to discussion or speech that cannot throw light on the administration of federal government. In particular he submitted that because the implied freedom is drawn from s 7, s 24, s 64 and s 128 and related sections of the Constitution, the implication can only extend so far as is necessary to give effect to these sections.

21 So far as the second question raised in Lange is concerned, the Attorney General emphasised that the question was not whether the choice made by Parliament was preferable or desirable, but whether the choice was reasonable in light of the burden placed on the constitutional freedom of communication. In considering this issue the Attorney General also emphasised the importance of distinguishing between laws that had as their purpose restriction of discussion on government or political matters and those it merely affected incidentally, submitting that in the latter case an affirmative answer to the second question posed in Lange is likely.

22 The Attorney General submitted that the Court should follow the approach taken by the Court of Appeal in Victoria in Catch the Fire Ministries supra, and by Hely J in Jones v Scully supra.

Consideration

23 The question of whether or not s 49ZT is invalid as infringing the implied freedom of communication about governmental or political matters falls to be determined by reference to the two questions posed by the High Court in Lange supra at 567-568, as modified in Coleman v Power supra, at [93]-[96], [196], [211]. The questions as modified are to the following effect:

"When a law of a State or federal Parliament or a Territory legislature is alleged to have infringed the requirement of freedom of communication imposed by ss 7, 24, 64 or 128 of the Constitution, two questions must be answered before the validity of the law can be determined. First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law 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 and the procedures prescribed by s 128 for submitting a proposed amendment of the Constitution to the informed decision of the people ... If the first question is answered 'yes' and the second is answered 'no', the law is invalid."

24 In their submissions concerning the first question posed by Lange, the parties focused in some detail on the publications said to constitute a contravention of s 49ZT. In my opinion, this is not the correct approach. Rather, in considering both of the posed questions it is necessary to look at the challenged legislation itself to determine, first, whether it does effectively burden freedom of communication about government or political matters and secondly, if it does, whether the second question posed can be answered in the affirmative. Although the acts complained of may be of assistance in identifying the type of publications or speech which would generally fall within the challenged sections, the question posed must be answered by reference to the legislation itself rather than the acts complained of. This also follows from the fact that the implied freedom is a limitation on legislative power not an individual right: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [65]; Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 at 150; Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181 at [180]; Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398 at [50]. The position was summarised by Hayne J in APLA v Legal Services Commission NSW [2005] HCA 44; (2005) 224 CLR 322 in the following terms at [381]:

"The implied freedom of political communication is a limitation on legislative power; it is not an individual right. It follows that, in deciding whether the freedom has been infringed, the central question is what the impugned law does, not how an individual might want to construct a particular communication or (in this case) advertisement."

The Construction of s 49ZT of the Act

25 The first step in considering the question of whether s 49ZT infringes the implied constitutional freedom is the construction of the provision itself: Coleman v Power supra at [3], [147]-[158]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [11].

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 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.

35 The final question of construction is what is involved in the context of reasonableness and good faith in s 49ZT(2)(c). In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105, French J as his Honour then was, in considering an equivalent provision (s 18D of the Racial Discrimination Act (Cth)) expressed the view that an act would be done reasonably in one of the protected activities in the section if it bore a rational relationship to that activity and was not disproportionate to carrying it out (at [79]). So far as good faith was concerned, French J took the view that it required more than subjective honestly and legitimate purpose but rather, under the aegis of loyalty to the relevant principles of the Act, a conscientious approach to the task of honouring the values asserted by the Act which are to be assessed objectively (at [96]).

36 Carr J who together with French J comprised the majority in Bropho, did not deal with the question. However Lee J, who dissented in the result, appeared to agree with French J on the issue of good faith, stating that it involved an objective determination having regard to the degree of harm likely to be caused and to the extent to which it may be destructive of the object of the Act (at [141]).

37 On the other hand, in Catch the Fire Ministries Inc supra, Nettle JA took a contrary view as to the meaning of good faith in the relevant equivalent section, stating (at [92]) that he saw no reason to "load objective criteria into the concept of good faith or otherwise to treat it as involving more than a 'broad subjective assessment' of the defendant's intentions". Neave JA agreed with Nettle JA (at [197]). Ashley JA did not deal with the issue.

38 In Burns v Laws (No 2) supra, the Tribunal expressed a preference for the views of Nettle JA to those of French J (at [191]).

39 Once again the parties did not address this issue. Indeed, although both cases were cited on different issues, the Court's attention was not drawn to the difference of opinion of two appellate courts as to the meaning of the provision. However, Mr Sunol in his written submissions (at [28]) seemed to suggest that the construction placed on s 49ZT(2)(c) in Burns v Laws (No 2) was correct. As I indicated, the Tribunal in that case preferred the view of Nettle JA to those of French J. This approach was not disputed by the Attorney General.

40 In these circumstances I propose to proceed on the basis that the later decision of the Court of Appeal of Victoria on this issue is correct. There was a clear majority on the issue in that case and it has not been shown to be plainly wrong.

Conclusion on Construction

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.

(e)For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out.

(f)For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose.

Does s 49ZT of the Act Effectively Burden Freedom of Communication about Governmental or Political Matters Either in its Terms, Operation or Effect?

42 In my opinion the answer to this question is yes. Although it is correct, as the Attorney General submitted, that the implied freedom is an implication drawn from s 24, s 64 and s 128 and related sections of the Constitution, the potential scope of such communication is wide. In Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 at 124, Mason CJ, Toohey and Gaudron JJ stated 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". In Hogan v Hinch supra at [49], French CJ stated that the "range of matters that may be characterised as 'governmental and political matters' for the purpose of the implied freedom is broad" and "arguably include social and economic features of Australian society". See also Wotton v The Queen [2012] HCA 2 at [25]-[26].

43 Discussion of the position of minority groups in society and the extent to which their position should be enhanced or protected by legislation, including but not limited to anti-discrimination legislation, forms part of the fabric of political debate in this country at the present time and, in my opinion, is a matter which bears on the choice people have to make at federal elections or their evaluation of the performance of federal ministers or their departments. It has been recognised that political debate in this country takes place in a fashion that is generally robust, frequently insulting and sometimes acrimonious: Coleman v Power supra at [105], [237]-[239]. A law of the nature of the one in question can, in these circumstances, effectively burden freedom of communication about government or political matters.

44 The conclusion I have reached is consistent with that reached by Hely J in Jones v Scully supra at [239]. The potential liability to damages and injunctions which arises by virtue of s 108 of the Act could effectively burden such communication.

45 I appreciate that a different view was taken in Catch the Fire Ministries supra by Nettle JA at [113] (tentatively) and Neave JA at [203]: The legislation under consideration in that case related to incitement to hatred, serious contempt, revulsion or severe ridicule on the grounds of religious belief or activity. Whether or not that view is correct in relation to the conduct considered in Catch the Fire Ministries, for the reasons given above it does not seem to me that the same conclusion should be reached in relation to s 49ZT of the Act.

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?

46 In my opinion the answer to this question is yes.

47 In 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."

48 Second, 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].

49 Third, 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."

50 Section 49ZT falls into the latter category.

51 Although 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.

52 It 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].

53 In these circumstances the second question posed by Lange should be answered in the affirmative.

54 Orders

(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.

55 ALLSOP 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.

56 The first task is to construe s 49ZT.

57 The 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.

58 The 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).

59 Thus, 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].

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.

63 Section 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).

64 The 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.

65 One 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.

66 The 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.

67 That 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.

68 Recognising 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.

69 The 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.

70 The 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.

71 The 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.

72 That 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.

73 Notwithstanding 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.

74 Thus, 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.

75 BASTEN 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.

76 An 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).

77 The 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.

78 Despite 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).

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.

80 Steps (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).

81 There 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).

82 There 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.

83 The 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.

84 Differing 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.

85 It 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.)

86 The 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.)

87 It 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).

88 If 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.

89 The 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.

90 The 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".

91 Secondly, 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.

92 If 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].

93 In 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.

94 If, 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.

95 Following 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."

96 On 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.

97 Having 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.

98 There should be no order as to the costs of the proceedings in this Court.

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Decision last updated: 22 March 2012