Pending Appeal : CITATION: Burns v Laws (No 2) [2007] NSWADT 47 DIVISION: Equal Opportunity Division APPLICANT Gary Burns PARTIES: RESPONDENT John Laws INTERVENOR Attorney General of New South Wales FILE NUMBER: 051044 HEARING DATES: 16/02/2007, 14-15/03/2006, 27/03/2006 & 10/10/2006 SUBMISSIONS CLOSED: 23 October 2006 DATE OF DECISION: 1 March 2007 BEFORE: Chesterman M - ADCJ (Deputy President); Mooney L - Non Judicial Member at 288; Quayle C - Non Judicial Member CATCHWORDS: Vilification - Homosexual MATTER FOR DECISION: Principal matter Anti-Discrimination Act 1977 Anti-Discrimination Act 1991 (Qld) LEGISLATION CITED : Commonwealth Constitution Racial and Religious Tolerance Act 2001 (Vic) Racial Discrimination Act 1975 (Cth) Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 Briginshaw v Briginshaw (1938) 60 CLR 336 Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005) Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 Brown v Classification Review Board (1998) 82 FCR 225 Bryl v Kovacevic & Ors [1999] HREOCA 11 Burns v Dye [2002] NSWADT 32 Burns v Laws [2005] NSWADT 229 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 Coco v The Queen (1994) 179 CLR 427 Collier v Sunol [2005] NSWADT 261 Craig Williamson Pty Ltd v Barrowcliff [1915] VR 450 Deen v Lamb [2001] QADT 20 Dimozantos v The Queen (No 2) (1993) 178 CLR 122 Handyside Case, European Court of Human Rights (1976) Ser A No 24) 1 EHRR 737 He Kaw Te v R (1985) 157 CLR 523 CASES CITED: Hellenic Council of NSW v Apoleski (No 1) [1995] NSWEOT (25/9/97) IW v The City of Perth (1997) EOC 92-892; (1999) 91 ALJR 943 John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 Jones v Scully [2002] FCA 1080 Jones v Toben [2002] FCA 1150 Jones & Anor v The Bible Believers' Church [2007] FCA 55 Jones & Anor v Western Aboriginal Legal Service [2000] NSWADTAP 28 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 London Artists v Littler [1969] 2 QB 375 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559 R v Central Independent Television plc [1994] 3 All ER 641 R v Keegstra (1990) 61 CCC (3d) 1 Sunol v Collier [2006] NSWADTAP 51 Toben v Jones [2003] FCAFC 137 Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701 Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 Waters v Public Transport Corporation (1993) 173 CLR 349 Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 Wheeler v Leicester City Council [1985] 1 AC 1054 APPLICANT D Rofe (16 February, 14, 15 and 27 March 2006) No appearance on 10 October 2006 REPRESENTATION: RESPONDENT G Reynolds SC P Hewitt, barrister ORDERS: 1. The complaint is dismissed.; 2. The question of costs is to be resolved in accordance with the directions given at paragraph [287] of these reasons. REASONS FOR DECISION Procedural history 1 In these proceedings, the Applicant, Gary Burns, alleged that the Respondent, John Laws, who is a high-profile radio commentator, had unlawfully vilified homosexual men while speaking on a radio talkback program, 'The John Laws Morning Show'. The relevant segments of the program were broadcast between 9 and 10 a.m. on 3 November 2004 by Radio 2UE, a Sydney radio station. 2 Mr Burns based his claim on s. 49ZT of the Anti-Discrimination Act 1977 ('the Act'). On 17 November 2004, he forwarded a complaint regarding the broadcast to the Anti-Discrimination Board. On 31 March 2005, the President of the Board, having determined that the matter could not be resolved through conciliation, referred the complaint to the Tribunal. 3 In Amended Points of Claim, filed on 10 June 2005, Mr Burns stated that he was a homosexual man and was entitled to bring these proceedings. He alleged that he had suffered distress, anger, insult and mental suffering in consequence of Mr Laws' statements. He sought from the Tribunal orders that Mr Laws should pay damages and his legal costs and should apologise for his statements, both in the radio session that he presented each morning on 2UE and in various newspapers. 4 During August 2005, a Tribunal Panel including two members of the present Panel heard an application by Mr Laws for an order that the complaint be summarily dismissed, on the ground that the predominant purpose of Mr Burns in instituting and maintaining these proceedings was an improper purpose, namely, obtaining publicity for himself. In a judgment delivered on 10 October 2005 (Burns v Laws [2005] NSWADT 229), the Panel dismissed this application. 5 The resolution of these proceedings was further delayed by a number of factors, including replacement of a member of the Panel and, on a separate occasion, the illness of a Panel member. 6 The most significant of these delaying factors was an indication from those representing Mr Laws that he wished to raise issues of federal constitutional law. Specifically, he wished to argue that s. 49ZT of the Act was either (a) wholly invalid, by virtue of conflict with the implied guarantee of freedom of political communication contained in the Commonwealth Constitution or (b) required to be interpreted with greater emphasis on free speech considerations than has been accorded in the case law so far, in order to make it compatible with this implied guarantee. It was made clear that the latter argument would be more strongly pressed than the former. 7 In consequence, the Attorney General of New South Wales, having been notified of this development, intervened in the proceedings. He indicated that if and when these issues came to be canvassed before us, he would wish to have the opportunity of making submissions. 8 We determined, however, that we should first hear and receive all the evidence and argument that the parties wished to put before us, except for submissions on these constitutional issues. In so deciding, we took account of the fact that in other Tribunal proceedings, also involving Mr Burns and Mr Laws, precisely the same issues had arisen for determination at appellate level. 9 Before 10 October 2006, the final day of hearing of the case as thus limited, the Tribunal received notification that both Mr Rofe QC, who had previously appeared for Mr Burns, and the solicitors instructing him were no longer retained by Mr Burns. In various communications to the Tribunal at about this time, Mr Burns expressed a desire that the case be decided by us without further delay. 10 Neither Mr Burns nor anyone on his behalf appeared at the final day of the hearing. By this time, however, all the evidence in the case had been received. In addition, Mr Rofe had filed written submissions (both in chief and in reply to submissions filed on behalf of Mr Laws) and had addressed us orally. The Registry, on our instructions, sent a transcript of the final day of hearing to Mr Burns. 11 Toward the end of proceedings on that day, Reynolds SC, who appeared for Mr Laws together with Mr Hewitt of counsel, indicated that his client might not wish after all to put arguments to us on the constitutional issues that we have identified. The reason, he said, was that the constitutional argument on which Mr Laws relied most strongly – namely, that s. 49ZT of the Act had to be interpreted with greater emphasis on free speech considerations than has been accorded in the case law so far, in order to make it compatible with the implied constitutional guarantee of freedom of political communication – would, if successful, produce outcomes that were in practical terms the same as followed from a number of submissions based on common law principles of free speech that Mr Reynolds had put to us. 12 In a letter received by the Registry on 23 October 2006, Mr Laws' solicitors confirmed that the foreshadowed constitutional arguments were no longer pressed and requested that we reach a decision without regard to these arguments. Among the reasons advanced was a desire to avoid further delay. The letter indicated, however, that Mr Laws reserved the right to raise these constitutional issues in any appeal from our decision. 13 We have determined that in these circumstances it is appropriate for us to reach a decision on Mr Burns' application without regard to these foreshadowed arguments on matters of constitutional law. 14 We have also determined that although there was no appearance by Mr Burns at the final day of hearing, his case was sufficiently presented to us to enable us to reach our decision without any denial of procedural fairness to him. In so ruling, we take account particularly of the fact that the written submissions in reply that Mr Rofe filed were prepared after he had both received the written submissions and heard a significant proportion of the oral submissions that were put before us on behalf of Mr Laws. Our decision 15 Our reasons are unusually lengthy. The main reasons are that we had to consider a number of difficult issues of interpretation of the relevant legislation, which were raised at length by counsel, and that a number of the significant questions that we had to resolve were finely balanced. 16 It is appropriate in these circumstances that we state at the outset what we have decided. It is as follows. We rule unanimously that the statements that Mr Laws made on the relevant broadcast constituted homosexual vilification, because they incited severe ridicule of homosexual men on the ground of their homosexuality. By majority, we rule further, however, that his publication of these statements on the radio fell within an 'exception' established by the Act that is designed, within appropriate limits, to preserve freedom of expression. Our majority decision is accordingly that the publication was lawful. Relevant legislation 17 The provisions of the Act making homosexual vilification unlawful are ss. 49ZT(1) and (2), in conjunction with s. 49ZS. At the time of the broadcast by Mr Laws, these were as follows:- 49ZT Homosexual 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 comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, 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. 49ZS Definition 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. 18 Reference should also be made to s. 104, which states:- 104 Proof of exceptions Where by any provision of this Act or the regulations conduct is excepted from conduct that unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent. The broadcast on Radio 2UE 19 In addition to receiving transcripts of the relevant segments of the broadcast, we heard a sound recording of them. The following transcript was tendered and admitted in Mr Laws' case. In the ensuing reproduction of it, paragraph numbers have been added:- Radio Transcript - 2UE John Laws Morning Show 3 November 2004 1) [9.15AM] - JOHN LAWS: This is a really serious thing. It is not often I get really worried about this country but I tell you what I had a sleepless night last night after watching the television that I saw in relation to the Melbourne Cup. Who is this pompous little pansy prig who is strutting around everywhere yesterday telling Australian blokes how to wear their pocket square as he called it - that's poof speak for handkerchief and he had it wrong when he did adjust it. Who is this - he might be famous in certain circles - circles being the operative word. We know where they are. I don't know much about other Australian blokes, but this fella didn't inspire me too much, who the hell was he? Apparently he works on a programme on Channel 10 but yesterday he seemed to be everywhere but Channel 10. He was on Channel 7 judging girls, now what the hell does a pillow biter know about judging girls? They should have had a few truckies down there or me or the co-driver even. Fair dinkum Aussie blokes judging fair dinkum Aussie girls. Not this pompous little pansy. I remember when Australia was a land of proud dedicated women and hard drinking hard talking men M-E-N -men. Why this sudden proliferation of pansies I don't know. It's a major issue. I mean it is all very good and well that Australia tolerates people with varied sexual leanings, but I don't know why we should be celebrating it. Anyway, the sooner this fairy flies out and let us judge our own women on own criteria the better, so on behalf of truck drivers, wharf labourers, free thinking red blooded Australian men and me, let's collectively say: "pi[bleep]ss off pansy [in other voice]". 2) I know what you would have like to have said, you would have liked to have said "pi[bleep]ss off poof [in other voice]" but you can't say because that's a derogatory word so we won't say that, we wouldn't stoop to that well well - we really want (sic) to stoop to anything would I? 3) [9.23AM] - MARION: Oh g'day how's it going. I have just been killing myself laughing here, that was the funniest thing I've heard in awhile. Although I must say, you do say a lot of funny things and that was about that -what did you say? Pillow biting pompous little prig. You just crack me. Because I think that's what he is -I don't know where they get these shows from but I watched it on the news -Melbourne Cup whatever and what he did to that poor reporter, why that reporter stood there and let him... 4) JOHN LAWS: Why he copped that -he was Martin King I think. 5) MARION: Yes 1 thought he's face was red -actually 1 think his whole body went red -he seemed to be so embarrassed. 6) JOHN LAWS: I mean all the precious little pansy wanted to do was humiliate him. 7) MARION: That's right, yes. 8) JOHN LAWS: And we've got fair dinkum Australian blokes giving into that sort of garbage. 9) MARION: Yeah. As you said, you know with the women saying who was the best and who was not. 10) JOHN LAWS: Oh he was judging the women. 11) MARION: Judging the women I thought oh my God what a twit. It is just sad. 12) JOHN LAWS: It really is. 13) MARION: Why does it have to be flaunted so much I do not know. 14) JOHN LAWS: Neither do 1- why were we celebrating him. What about that little jockey, was he great? 15) MARION: Oh I backed that. 16) JOHN LAWS: Did you? 17) MARION: Yes. 18) JOHN LAWS: Yes. So did the princess. 19) MARION: Oh good. 20) JOHN LAWS: Every year she gets it right. 21) MARION: How clever is that. 22) JOHN LAWS: The last four years, she has picked the winner. ' 23) MARION: Well I got first and third last year and I have put that [incomprehensible] on and I was listening to you talking to some poor fellow and said something about how sad it was that he got that because it was never going to win but oh no you cacked me up this morning you just -I was sort of wondering around here thinking what I am going to do with myself today and I just burst into laughter and I have just been laughing and laughing I think. 24) JOHN LAWS: If I've made you happy, that's the object of the operation. [Music] 25) Now the thing that annoyed me about that person was that he was tucking people's pocket handkerchief in, he called it your pocket square -it is not a bloody pocket square, it is a pocket handkerchief and the way you tucked it in, you clown, was wrong. I would rather listen to the likes of the people who dress people like Gary Cooper and Cary Grant and the way you tuck the pocket handkerchief in, is you put the points in first and you leave the fluffy soft bit sticking out. So if you want to do it, do it right at least but don't do it just go home you bother me. 26) [9.26AM] JOHN LAWS: Darren good morning. 29) DARREN: Yes good day John how are you going mate? 30) JOHN LAWS: I'm pretty good. 31) DARREN: Yes I just rang. 32) JOHN LAWS: I am a bit pi[bleep]ed off with the pansies but apart from that, I am in good shape. 33) DARREN: I have just been cracking up back here at work listening to you talking about him. I didn't see him much as the races yesterday, I saw him on Rove last night and sort of felt the same way as you did. 34) JOHN LAWS: Oh God was he on Rove too? 35) DARREN: Yes. 36) JOHN LAWS: Why are we making this sweet little pet a hero for God's sake? 37) DARREN: Yes that's what I would like to know. 38) JOHN LAWS: He is a raving old pansy and he comes out here and we make him a hero. 39) DARREN: Yes bloody oath. Yeah. I just rang up to say good on you mate. I was cracking up out loud. I listen to you everyday and [incomprehensible]. 40) JOHN LAWS: Good on you Darren. 41) DARREN: Thanks mate. Can I say hello to my brother Trent? 42) JOHN LAWS: Yes of course you can. 43) DARREN: Thanks. Keep the dream alive Lawsy. 44) JOHN LAWS: Good boy thanks for the call. 45) DARREN: No worries. Bye. 46) JOHN LAWS: Bye. 47) [9.50AM] - JOHN LAWS: Warren. Good morning. 48) WARREN: Morning John. How are you going? 49) JOHN LAWS: I'm okay, a bit worried about the co-driver but apart from that. 50) WARREN: Yeah mate. This has been the funniest morning on radio that you've done in a while. You are on fire today mate I'll tell you. 51) JOHN LAWS: [laughter] 52) WARREN: You are giving everyone heaps. Mate, I just wanted to ring up about that fairy bloke you were talking about before. Talk about laugh. I mean, I don't want to copy everyone else what they're saying, I've got the filthiest hang over today after yesterday. 53) JOHN LAWS: [laughter] 54) WARREN: As I do after every Anzac day, the two days of the year I write myself off. 55) JOHN LAWS: Did you pick a winner though? 56) WARREN: Oh mate. I was that gone by the time the Cup was on I didn't know what I was doing there for a while. 57) JOHN LAWS: [laughter] 58) WARREN: But anyway, I managed to sleep in the spare room last night so I must have had a good night. Um, yeah, I moved to Sydney about 17 years ago. 59) JOHN LAWS: Yeah. 60) WARREN: From the country and um, I'll tell you what, the fairy thing. My son said to me, he is. 8 years old, he said to me "Dad, why are those blokes kissin'?" you know, like, down the main street of Darlinghurst. 61) JOHN LAWS: Yeah. 62) WARREN: And if you did that in the country John, you know, you just don't see it because it doesn't happen. So. I understand that people have to have their own, like their own way of life or whatever, but I don't know about promoting it like that. I don't know. I'm probably a bit old school. I'm only 37 but I'm... I don't know. 63) JOHN LAWS: No, you're a fair dinkum Aussie. We tolerate a lot of things. But tolerance has got to be a two way street and I just thought what the hell are we doing? This is the great Australian race. 64) WARREN: I know. 65) JOHN LAWS: And we've got this imported pansy, poncing around the place, tucking people's handkerchiefs in, and judging our girls. Bugger that. 66) WARREN: I mean isn't it. Isn't the Melbourne Cup telecast across the world as well? I mean. 67) JOHN LAWS: Yeah. 68) WARREN: You know what I mean. So we've got that Queer Eye for the Straight Guy coming from America to here, so what are we sending back? Some gay bloke jumping around fixing someone's tie at our international horse race. 69) JOHN LAWS: Hey listen. Don't hold your breath. It won't be too long before we have Queer Eye for the Straight Guy with Australian Queer guys. 70) WARREN: Yeah, maybe. They need to get some like, hard core people on that show and see if they can really straighten them out you know. 71) JOHN LAWS: [laughter]. I don't want to straighten them out. I'm very happy for people to be homosexual if they want to be, that's fine. 72) WARREN: Same. I agree. 73) JOHN LAWS: I've got a lot of close friends that are homosexual, but they could not believe and I've talked to a couple of them this morning, who are dead set, 100% homosexual, and I talked to them and they said could you believe putting that clown on Australian television? You know, that's not representative of Australia. 74) WARREN: Yeah, I had a bit of a confronting thing with that. I was at a party once, and I had quite a few drinks again one night, and this homosexual guy came up to me, which is not a problem for me, and I was growing a beard at this stage, and he came up and he goes "Oh my god look at that on your face". And he grabbed my beard and he pulled it. And he goes "That's disgusting. Why don't you do it properly if you are going to do it". So I said mate, and I came up and grabbed him on the groin. 75) JOHN LAWS: Ohh. 76) WARREN: And I said "Mate, why don't you use this properly?" 77) JOHN LAWS: [laughter]. I think we better change the subject Warren. 78) [more laughter]. 79) 131332 is our telephone number. 80) Believe me I have nothing, absolutely nothing, against homosexuals. But I just couldn't stand that pansy that was running around. It's just overtly gay. 20 In our assessment, based on listening to the sound recording, a casual listener would obtain the impression that Mr Laws may have wanted his remarks to be interpreted as humorous. If in fact he wished to indicate clearly that his critical comments were not serious, he did not wholly succeed. He could not be said to have displayed a 'light touch'. He paused at times – for example, before the phrase 'circles being the operative word' in the first paragraph – seemingly to draw the listener's attention to secondary meanings. 21 It is useful to add here that the 'other voice' referred to in the first and second paragraphs of the transcript was in each case a chorus of male voices. In cross-examination, Mr Laws said that he had arranged for these interpolations to be prepared shortly before the program began. The evidence in Mr Burns' case 22 Mr Burns did not tender a written statement, nor did he give oral evidence. No other witness was called on his behalf. 23 In addition to a CD-Rom containing the above parts of the broadcast and a transcript of them (which was in fact incomplete), the evidence tendered and admitted in Mr Burns' case comprised four documents. 24 One of these was a printout, dated 13 March 2006, of material on Radio 2UE's web-site. Under the headings 'Presenters', 'John Laws' and 'John Laws Morning Show', it set out what purported to be a 'biography' of Mr Laws. This included descriptions of him as 'Australia's most successful and influential broadcaster' and 'the undisputed king of Australia's talk back airwaves'. It quoted a description of him by former Prime Minister Paul Keating as 'the broadcaster of the century' and by the Independent Monthly as a 'rare phenomenon, the voice of the masses'. It indicated that he had worked for 51 years in radio at a number of stations, including 2UE between 1979 and 1984, and that since his return to 2UE in 1988 both he and this station had been 'consistently at the top of the ratings ladder'. 25 This printout also stated that every day the broadcasts by Mr Laws were made on a network of over 60 stations, covering every State and Territory in Australia and reaching over 2 million people. 26 Also tendered in Mr Burns' case was a copy of an 'open letter' to Mr Laws, dated 10 November 2004 and signed by seven organisations representing homosexual people. The writers strongly criticised his broadcast of 3 November, claiming that it would lead to an increase in violence against gays and lesbians. They referred to research on the incidence of such violence, claiming that it was often perpetrated by men under the age of 25 who were 'strongly influenced by what they hear both from their peers and in the media'. The letter concluded as follows: 'Mr Laws, you should apologise for your offensive comments and retract them immediately.' 27 The third document tendered was a copy of a letter dated 24 June 2003 from Mr Ian Sheppard, the General Manager of Radio 2UE, to Mr Burns. Referring to an earlier broadcast by Mr Laws, regarding which Mr Burns had also made a complaint under the Act, Mr Sheppard stated that he considered it inappropriate for Mr Laws to use the word 'poof' on air and that he had 'raised this matter with him personally'. 28 Finally, a copy of a letter dated 22 March 2006 from Mr Laws' solicitors to the solicitors then retained by Mr Burns was tendered. Its topic was the geographical range of the broadcast by Radio 2UE of a statement by Mr Laws. This occurred on 15 March 2006, which was one of the days of hearing of this case. The framing of Mr Burns' case under s. 49ZT(1) of the Act 29 In this section and subsequently, we will use the term 'vilification' to describe material that falls within s. 49ZT(1) of the Act and the term 'unlawful vilification' to describe material of this nature which does not fall within the 'exception' in s. 49ZT(2). 30 It is convenient at this stage to deal with three aspects of the case that Mr Rofe put forward with a view to establishing that the relevant segments of Mr Laws' broadcast on 3 November 2004 amounted to vilification. 31 The relevant 'public act'. It was not disputed that a radio broadcast, such as this particular broadcast, is a species of 'public act' as defined in s. 49ZS of the Act. 32 A less straightforward question is whether the relevant segments of the broadcast by Mr Laws should properly be regarded as a single 'public act' or as two or more 'public acts'. The reason why the latter view might be preferable is that there were in fact four distinct segments. As appears above, an introductory monologue by Mr Laws (paras 1 – 2) commenced at 9.15 a.m. and was then followed by short conversations with three listeners: Marion, commencing at 9.23 (paras 3 – 25); Darren, commencing at 9.26 (paras 26 – 46); and Warren, commencing at 9.50 (paras 47 – 80). 33 It will be observed that the longest gap was between the penultimate and the final conversation. The starting time of the final conversation was in fact 24 minutes later than that of its predecessor and 35 minutes later than the time when Mr Laws first raised the topic of Mr Kressley's behaviour as shown on Channel 7. 34 Mr Rofe initially advanced his client's case on the basis that there was only one 'public act'. When we suggested that there were or might have been more than one, he agreed that this could be correct, but claimed that it made no difference to the result. He pointed out that the introductory monologue formed part of the context of the three subsequent conversations with listeners, none of which could be properly understood in isolation. Whichever approach to this issue was adopted, he said, the relevant parts of the broadcast contained material that breached s. 49ZT of the Act. 35 Mr Reynolds did not seek to dispute Mr Rofe's preference for characterising all four segments of the broadcast as one 'public act'. He suggested that many listeners to the John Laws Morning Show regularly heard all or most of the program. 36 As illustrated in Collier v Sunol [2005] NSWADT 261 at [36 – 38], there is scope for some degree of flexibility in applying the concept of 'public act' to the dissemination or broadcast of text or spoken words at different stages in a single electronically distributed document or radio program. While the gaps between the introductory monologue and the first two conversations were relatively short, we would comment that it might be stretching matters to treat the final conversation (with Warren) as forming part of a single 'public act' that commenced some 35 minutes earlier. 37 It was however Mr Rofe's preference that all four segments should be treated as constituting one 'public act'. Mr Reynolds did not oppose this. In reaching our conclusions, therefore, we will adopt this standpoint. 38 The question whether the alleged vilification was with respect only to homosexual men in general, or with respect to Mr Carlton Kressley as well. As stated above, s. 49ZT(1) of the Act renders it unlawful (subject to s. 49ZT(2)) 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'. As indicated by the words here emphasised, it may be sufficient under the subsection to show that the hatred, serious contempt or severe ridicule allegedly incited was directed towards a single person, not a group of persons. 39 In his complaint to the Anti-Discrimination Board and in the Amended Points of Claim filed in the Tribunal, Mr Burns asserted (a) that his case was based on the allegation that Mr Laws' broadcast incited hatred, serious contempt and/or severe ridicule directed at homosexual men generally, on the ground of their homosexuality, and (b) that he (Mr Burns) had standing to bring the proceedings framed in this way because he was a homosexual man. As Mr Rofe pointed out, the latter assertion was not disputed. 40 At one point in the hearing, however, it was suggested to us that Mr Burns' case might be based in the alternative on an allegation that the broadcast incited hatred, serious contempt and/or severe ridicule directed at Mr Kressley specifically, on the ground of Mr Kressley's homosexuality. 41 Mr Reynolds raised the following three objections to this additional way of framing the case against Mr Laws. First, there had been no prior notification that Mr Burns's claim might be enlarged in this way. Secondly, the Tribunal had no jurisdiction to entertain it because it formed no part of Mr Burns's complaint to the Anti-Discrimination Board. Thirdly, the provisions of the Act regulating standing to bring complaints of vilification (ss. 87A, 87B, 87C and 88), when read in conjunction with s. 49ZT(1), made it clear that a complainant could not rely on the alleged vilification of another person unless the complaint was made 'on behalf of' that person. In this event, certain requirements regarding the giving of consent or authorisation by the other person had to be satisfied. They had not been satisfied in the present case. 42 In his submissions in reply, however, Mr Rofe stated unequivocally that Mr Burns did not seek to sue on behalf, or as a representative, of Mr Kressley. He maintained that at all times Mr Burns had framed the complaint only as 'a complaint made on his own behalf as an admitted homosexual in relation to a public act of … vilification of homosexuals by the Respondent focussed upon and/or motivated by Mr Kressley's conduct at the 2004 Melbourne Cup'. 43 On the final day of hearing, Mr Reynolds submitted that this aspect of Mr Rofe's submissions in reply constituted a withdrawal of any earlier claim that Mr Burns' case could and should be based on an additional allegation of vilification of Mr Kressley individually. 44 We agree. It follows, as Mr Reynolds acknowledged, that the three objections that he had previously raised do not need to be considered in this judgment. 45 The specific reaction or reactions alleged to have been 'incited' by the broadcast. As just indicated, Mr Burns alleged, in his complaint to the Anti-Discrimination Board and in the Amended Points of Claim filed in the Tribunal, that the reactions that Mr Laws' broadcast incited amongst its audience were 'hatred for, serious contempt towards and/or severe ridicule of' homosexual men. This three-way formulation of the claim reproduces verbatim the wording of s. 49ZT(1). 46 While Mr Rofe appeared at times to adhere to this formulation, it increasingly became clear to us that the only allegation that he strongly pressed was that the broadcast had incited 'severe ridicule of' homosexual men. This was specifically confirmed in the latest of his submissions to be made, which were his written submissions in reply. 47 Although Mr Reynolds suggested during his oral submissions that a claim of incitement of hatred and/or serious contempt was also being pressed, we are satisfied that the case, as ultimately formulated by Mr Rofe, was based only on the alleged incitement of 'severe ridicule'. We would add that in our opinion there was clearly no incitement of 'hatred' and that a claim that 'serious contempt' was incited would be most unlikely to succeed. The evidence in Mr Laws' case 48 The most significant items of evidence tendered and admitted in Mr Laws' case were the transcript of the relevant parts of his broadcast (reproduced above), a transcript and videotape of the television program featuring Mr Kressley to which Mr Laws referred at the start of his broadcast, and a witness statement signed by Mr Laws during December 2005. He was cross-examined on this statement and in relation to other evidence before us. 49 The witness statement signed by Mr Laws. The salient parts of this statement, which was filed in the Tribunal on 20 December 2005, can be summarised as follows. During November 2004 and at the time of signing the statement Mr Laws hosted a daily radio program on Radio 2UE running between 9 a.m. and 12 noon. The aim of the program was to 'entertain' his audience with a 'lively and sometimes humorous discussion' of matters which he regarded as 'of interest to the public generally'. He understood that a large portion of his audience were 'country people and those who drive motor vehicles and trucks for a living including truck drivers, couriers, taxi drivers and the like'. He attempted to appeal to this audience in the way in which he discussed topical matters and through the humour that he employed for this purpose. 50 On 2 November 2004 he attended a Melbourne Cup lunch. While watching a Channel 7 broadcast of the Cup he noticed Mr Kressley's behaviour. That evening, in accordance with his usual practice, he watched news and current affairs programs on television, including 'A Current Affair' on Channel 9 at 6.30. This program included a segment featuring Mr Kressley. 51 While watching this segment of 'A Current Affair', he made a number of observations and subjective judgments. They included the following: (a) that Mr Kressley behaved in a manner that was 'in poor taste' and 'overtly sexual and in particular homosexual', and that seemed designed to draw attention to his homosexuality; (b) that he made a number of comments about the sexual attractiveness of some of the men whom he met; (c) that it seemed 'incongruous' that a homosexual American man should be 'criticising the dress sense of Australian men' and should be 'judging the fashion sense of Australian women, particularly at such an iconic Australian event as the Melbourne Cup'; (d) that Mr Kressley behaved inappropriately in purporting to undress a commentator appearing on the program; and (e) that Mr Kressley used expressions such as 'queer' and 'fag' in relation to himself. 52 Mr Laws then decided that he could appropriately discuss this matter on his program the next morning, since various aspects of the segment on 'A Current Affair' would be matters of interest to his audience that could be discussed 'in a humorous and not overly serious way'. The aspects that seemed particularly worth discussing included the 'appropriateness' of the following: having 'overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m.', having 'an American as a central figure on an iconic Australian day such as Melbourne Cup day' and having 'a gay man from the United States' both 'criticising the dress sense of Australian men' and 'judging the fashion sense of Australian women'. Mr Laws also wanted, as he said, 'to use the occasion to send up what I regarded (and still regard) as the overly politically correct regulation of discussion of homosexuality in the media'. Next morning, he accordingly prepared some observations regarding Mr Kressley for his morning show 53 His intention in broadcasting the material was primarily to entertain his audience with a humorous discussion of the matters that he had identified. His comments were not made out of malice towards Mr Kressley (whom he had never met) or homosexuals in general. They were intended to relate to Mr Kressley and his appearance on 'A Current Affair', not to homosexuals in general. He did not intend to incite hatred, contempt or ridicule of Mr Kressley or homosexuals in general. 54 His introductory words, such as 'this is a really serious thing', were intended to be tongue in cheek and would, he thought, be interpreted in this way by his audience. He chose to use words such as 'pansy', 'prig', 'poof' and 'pillow biter' primarily because of their alliterative quality. In addition, he had heard close friends of his who were homosexual use these expressions, without regarding them as likely to incite hatred, contempt or ridicule of homosexuals. He may also have been influenced by Mr Kressley's use of similar words. 55 During the broadcast, Mr Laws had in mind the impact that his comments would have on many of his listeners, which is why he mentioned 'truck drivers, wharf labourers and other "free thinking red blooded Australian men"'. 56 He honestly held the views that he expressed. He believed that Mr Kressley had invited comment and discussion by his overtly sexual behaviour and his attempts to be humorous through the use of sexual innuendo, double meanings and jokes about his own sexual behaviour. 57 Finally, Mr Laws' intentions and his honest belief in the opinions that he expressed extended to the comments that he made in response to the contributions by 'Marion', 'Darren' and 'Warren'. 58 The segment on 'A Current Affair'. It is not necessary to describe this segment in detail or to reproduce the transcript. It is sufficient to say that a number of Mr Laws's observations about it, as summarised above, were reasonably accurate. It was a lightweight and generally light-hearted program. At the beginning, Mr Kressley was introduced as 'an American Queer Eye'. His conduct thereafter seemed designed to draw attention regularly to his homosexuality. He was shown using expressions such as 'queen' and 'fag' in relation to himself, making comments about the sexual attractiveness of men whom he met and pretending both to flirt with and to undress a commentator, called Martin King, who was also appearing on the program. By way of example, he said at one point to Mr King: 'I had better see you in private backstage.' 59 Other evidence. The remaining evidence tendered and admitted in Mr Laws' case included the following items: (a) copies of correspondence, following the broadcast on 3 November 2004, between Mr Laws and representatives of the organisations which wrote the 'open letter' referred to at [26] above; (b) a copy of a statement headed 'A message from John Laws to the gay and lesbian community' (according to accompanying documentation, this was published in the Sydney Star Observer on 18 November 2004); and (c) a transcript of a statement, in virtually the same terms, that Mr Laws made on Radio 2UE on 15 March 2006. 60 The letter relating to this statement that Mr Burns tendered (see [28] above) indicated that it had not been broadcast throughout Australia or even New South Wales, The range of the broadcast was described as 'the Sydney Metropolitan Area …[and] also… a wider area, approximately to Wisemans Ferry in the north, Richmond in the north/west, Glenbrook in the west, Camden in the south/west and Waterfall in the south'. 61 In broad terms, this statement conveyed a recognition by Mr Laws (a) that his program on 3 November 2004, although intended to be humorous only, had caused offence and distress within homosexual communities, (b) that he wished to apologise for this, (c) that he had come to realise that his remarks might have been interpreted as condoning or encouraging discrimination or violence against homosexual people and (d) that to the extent that this had occurred, it was a matter of considerable regret to him. 62 Also tendered and admitted in Mr Laws' case were a recording and transcript of a discussion between him and Mr Steve Price, another radio commentator, broadcast on Radio 2UE on 2 June 2003. The discussion concerned a television program, 'The Block', relating to the renovation of residential apartments by four couples. One of the couples was homosexual. Mr Price, after raising this matter on air with Mr Laws, indicated his disapproval of depicting homosexual people on television at times when the audience would be expected to include children. When Mr Price suggested that the homosexual couple were 'renovating in their undies', Mr Laws replied: 'Oh God. Working on the ballroom.' Shortly after, he said: 'If Channel Nine thinks it's entertaining to have a couple of old poofs painting a room…' He made a couple more observations in similar vein. 63 This broadcast was the subject of earlier proceedings for unlawful homosexual vilification brought by Mr Burns against Mr Laws, Mr Price and Radio 2UE. The Tribunal decided these proceedings in Mr Burns' favour (Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267). This decision is under appeal. 64 The cross-examination of Mr Laws. Part of this cross-examination was devoted to eliciting from Mr Laws the meanings that he intended to convey by some of the phrases that he used in his broadcast and the meanings that, on his understanding, his listeners would have attributed to these phrases. Mr Laws did not deny that some of these phrases – for example, 'pillow biter' and 'circles being the operative word' – had sexual implications of particular relevance to homosexual men. He said that he had used such phrases in an attempt to be humorous and that he believed that his audience would view them similarly. With reference to his use of terms such as 'pompous', 'poof', 'pansy', prig' and 'pillow-biter' he said that he had a liking for alliteration. He referred also to the 'blokiness' of many of his listeners. More than once, he claimed to have intended epithets such as 'pansy' and 'prig' to refer to Mr Kressley only, not to homosexual men in general. 65 It was put to Mr Laws that, in view of what he said on air on 3 November 2004 and also in the earlier broadcast that prompted the proceedings in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, his attitude to homosexual people was one of hostility. He denied this. 66 Mr Laws agreed in general terms with the description of his activities and his reputation as a broadcaster contained in the print-out from Radio 2UE's web-site. He acknowledged, on being pressed, that his status as a broadcaster over 50 years tended to 'give weight' to views that he supported. 67 Another part of the cross-examination related to the matters which, according to Mr Laws' statement, he regarded as worthy of discussion in commenting on the program on 'A Current Affair' (see [52] above). When pressed on the question, he could not identify any part of the transcript of his broadcast in which he raised the first of these matters, namely, the appropriateness of having overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m. In re-examination, he pointed out that 6.30 p.m. fell within what he called 'children's viewing time'. 68 A further topic dealt with in the cross-examination comprised the events following the broadcast outlined above at [26] and [59 – 61]. The grounds of Mr Laws' defence 69 The primary contention on Mr Laws' behalf was that his statements did not amount to vilification. In the alternative, he maintained that if this question was determined against him, his statements fell within paragraph (c) of s. 49ZT(2) of the Act and therefore could not be held to be unlawful vilification. This was because they constituted a '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'. The interpretation of s. 49ZT(1) 70 The submissions of counsel were in conflict with each other over a number of questions arising in the interpretation and application of s. 49ZT(1). By way of generalisation, it may be said that Mr Rofe relied, on the whole, on the approach adopted in previous Tribunal decisions, notably in the prior case involving both his client and Mr Laws (Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267). Mr Reynolds challenged a number of these decisions. It is convenient to discuss each of these contested questions separately, alongside some further matters of interpretation that arise in this case. 71 The basic approach to interpreting vilification provisions. Mr Reynolds contended that in its decisions relating either to s. 49ZT or to a similar section of the Act (s. 20C) relating to racial vilification, the Tribunal had paid insufficient attention to fundamental common law principles governing the interpretation of statutory provisions that impose or appear to impose any restriction on fundamental rights, freedoms or immunities such as freedom of expression. These principles required, he said, that (a) where the wording of a provision is ambiguous as to whether any restriction of freedom of expression is intended, it must be interpreted as not imposing any restriction, and (b) where there are two or more possible interpretations of a provision that restricts freedom of expression, a court or tribunal should adopt the interpretation that is least restrictive of this freedom. 72 A further submission by Mr Reynolds, linked to the second of these propositions, was that the value sought to be served by s. 49ZT(1) – which can be summarised as the protection of homosexual people from being the targets of hatred, serious contempt or severe ridicule on account of their homosexuality – was not a fundamental value under the common law. It therefore could not be said that the weight to be given to it in interpreting s. 49ZT was the same as the weight to be given to freedom of expression. 73 The cases on which Mr Reynolds principally relied in advancing these propositions were Coco v The Queen (1994) 179 CLR 427 and Brown v Classification Review Board (1998) 82 FCR 225. In the former case, he referred us specifically to the following passage in the judgment of Mason CJ and Brennan, Gaudron and McHugh JJ at 437:- The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. 74 In Brown v Classification Review Board at 235, French J, having stated that the common law currently gave a 'high' value to freedom of expression, explained that, as a 'particular application' of this principle stated in Coco, it followed that 'a conservative approach must be adopted to the construction of statutes which would impair or abrogate it'. 75 Mr Reynolds also relied on passages to similar effect in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 at 182-183 (High Court), Wheeler v Leicester City Council [1985] 1 AC 1054 at 1065 (House of Lords) and R v Central Independent Television plc [1994] 3 All ER 641 at 652 (Court of Appeal, England). 76 We do not consider that the first of Mr Reynolds' propositions could be said to have direct application to either s. 49ZT or s. 20C of the Act. We agree with the observation of Mr Rofe, made in his submissions in reply, that these vilification provisions manifest a clear statutory intention to restrict the fundamental right of freedom of expression. 77 We recognise, however, the importance of Mr Reynolds' second proposition when interpreting and applying s. 49ZT. But we would point out that the legislature itself, in enacting the 'exception' set out in s. 49ZT(2), has provided explicit guidance as to how the values sought to be served by s. 49ZT(1) should be balanced against freedom of expression. 78 It would not be appropriate in these circumstances to read down s. 49ZT(1) unduly (out of a concern to give proper scope for freedom of expression), then to narrow its scope of operation even further in order to take account of the express words of s. 49ZT(2). Instead, the enactment of these two subsections side by side requires that they should be interpreted in a manner that provides scope for both of them to operate. To put this point in another way, if the task of proving vilification under s. 49ZT(1) is made too difficult, s. 49ZT(2) will in practice have little or no work to do. 79 These observations receive support from the Tribunal's judgment in Kazak v John Fairfax Publications Ltd [2000] NSWADT 77 at [22]. After referring to the Coco and the Brown decisions, the Tribunal observed that the Attorney General, in the Second Reading Speech relating to the amending legislation inserting s. 20C (from which the Tribunal had quoted at [17]), made it 'perfectly clear that the balance between the right to be free from racial vilification and free speech principles has been carefully struck in the legislative provisions'. The Tribunal continued:- Moreover, an abundance of authority exists that anti-discrimination legislation should be regarded as beneficial and remedial legislation and should be given a liberal construction, as long as that construction is not unreasonable or unnatural. ( IW v The City of Perth (1997) EOC 92-892 at 77,288-77,289 per Brennan CJ and McHugh J). 80 We agree with Mr Reynolds that earlier Tribunal decisions interpreting ss. 20C or 49ZT have not regularly referred to these basic issues of interpretation. But as we have just illustrated, they have not gone unnoticed. 81 In this connection, we refer also to a recent decision in the Court of Appeal of Victoria, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284. This decision, which was delivered on 14 December 2006, dealt with ss. 8 and 11 of the Racial and Religious Tolerance Act 2001 (Vic) ('the RRT Act'). These provisions, so far as relevant, are as follows:- 8 (1) A person must not, on the ground of the religious belief or activity of another person or class of persons, engage in conduct that incites hatred against, serious contempt for, or revulsion or severe ridicule of, that other person or class of persons…. 11 A person does not contravene section 7 or 8 if the person establishes that the person's conduct was engaged in reasonably and in good faith– (a) ... (b) in the course of any statement, publication, discussion or debate made or held, or any other conduct engaged in, for- (i) any genuine academic, artistic, religious or scientific purpose; or (ii) any purpose that is in the public interest;… 82 At [173 – 174], Neave JA said:- 173 The legislation aims to strike a balance between protecting freedom of speech and protecting people from vilification on the grounds of their race and religious belief. It would be inconsistent with this aim to interpret the legislation so as to make it impossible for people to proselytise for their own faith or to criticise the religious beliefs of others. 174 There are two main ways in which this balance is struck. First, as Nettle, J.A. points out at [34], s.8 is concerned with the incitement of extreme responses. The words or conduct alleged to be unlawful must incite "hatred or severe contempt or revulsion or serious ridicule." Secondly, s.11 exempts behaviour which would otherwise be unlawful, if it is engaged in reasonably and in good faith for a genuine religious purpose. 83 We treat these observations as relevant to the interpretation of s. 49ZT of the Act. Further aspects of this case are considered below. 84 Whether an intention to incite must be proved. Relying in particular on two Appeal Panel decisions relating to s. 20C of the Act – John Fairfax Publications Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10], Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [24] – Mr Rofe submitted that it was not necessary under s. 49ZT(1) to prove that the respondent intended to incite hatred, serious contempt or severe ridicule. 85 Mr Reynolds argued that this view of the Appeal Panel, which had not in fact been adopted in some earlier decisions of the Equal Opportunity Tribunal (see eg Hellenic Council of NSW v Apoleski (No 1) [1995] NSWEOT (25/9/97) at 17) was incorrect, principally for two reasons. 86 First, it contravened the general principle, already outlined, that where there are two or more possible interpretations of a provision that restricts freedom of expression, a court or tribunal should adopt the interpretation that is least restrictive of this freedom. In this instance, ambiguity arose because the statute was silent on the matter of intention. 87 Secondly, it contravened the well-established principle, illustrated in the Victorian case of Craig Williamson Pty Ltd v Barrowcliff [1915] VR 450 at 452, that where the same provision appears in two parts of a statute, there is a presumption that they should be interpreted in the same way. In the Act with which this case is concerned, s. 49ZT(1) and s. 20C(1) are accompanied by provisions (s. 49ZTA and s. 20D respectively) rendering 'serious vilification' a criminal offence in certain narrowly defined situations. These accompanying provisions use the same term – 'incite' – as their counterparts which establish civil liability only. They also do not state expressly that intention must be proved. Yet since they create criminal offences, it is beyond doubt, by virtue of leading authorities such as He Kaw Te v R (1985) 157 CLR 523, that proof of intention is required. It follows, Mr Reynolds argued, that the same requirement applies under s. 49ZT(1) and s. 20C(1). 88 These arguments do not persuade us that we should depart from the view that the Appeal Panel has consistently adopted. As was said by Barrett J in the Supreme Court in NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559 at [47], there are 'cogent reasons why members of the Tribunal should in general follow decisions of the Appeal Panel even though no principle of stare decisis requires them to do so'. 89 Furthermore, we think that while the two arguments advanced by Mr Reynolds undoubtedly deserve careful consideration, they are outweighed by the competing contentions set out in detailed discussions of this issue in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [83 – 92] and in John Fairfax Publications Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [6 – 11]. (The former decision was reversed by an Appeal Panel in Jones & Anor v Western Aboriginal Legal Service [2000] NSWADTAP 28, but not on grounds relating to any matter dealt with in the present judgment.) Two matters mentioned in those discussions are in our opinion particularly compelling. 90 The first is that in the Second Reading Speech that we have already mentioned, the Attorney General made the following observation which is directly in point:- The requirement for intention in the offence of serious racial vilification sets it apart from section 20C and further ensures that prosecution and conviction will be limited to only very serious cases of racial vilification. 91 Secondly, the High Court, in discussing provisions of anti-discrimination legislation in other States that also, like s. 20C and s. 49ZT, impose civil liability on discriminators, has expressed the opinion that the attainment of the objects of such legislation would be significantly impeded if a complainant was required to prove intention or motive on their part. At [90 – 91], the Tribunal quoted passages to this effect from the judgment of Mason CJ and Gaudron J in Waters v Public Transport Corporation (1993) 173 CLR 349 at 359 and from the judgment of Kirby J (dissenting, though not on this issue) in IW v The City of Perth (1999) 91 ALJR 943 at 995. 92 For these reasons, we do not think that proof of liability under s. 49ZT of the Act requires proof of an intention to incite. 93 Whether 'actual' incitement must be proved. Both in written submissions and orally it was argued on Mr Laws' behalf that a complainant must prove under s. 49ZT(1) that the relevant 'public act' had the effect of actually inciting, in the sense of generating in at least one other person, one or more of what we will call 'the relevant reactions': i.e., hatred, serious contempt and/or severe ridicule. In so far as the Tribunal, in a number of decisions, had held instead that what must be established is that the public act had a 'capacity' or 'tendency' to incite one or more of these reactions within 'the ordinary reasonable person', the argument put to us was that it had interpreted the subsection incorrectly. 94 Mr Reynolds sought to support this argument by pointing out that there was an ambiguity in s. 49ZT(1) as to whether actual incitement, or simply a tendency or capacity to incite, must be proved. In this event, he said, the Tribunal was bound to prefer the former alternative since it gave greater leeway for freedom of expression. 95 Mr Reynolds also argued that the terms 'capacity' and 'capable', as used for instance in Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 at [93] and Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [13], [31] and [33], were clearly incorrect. By rephrasing the question to be decided as whether the relevant 'public act' was merely 'capable' of inciting one or more of the relevant reactions, as opposed to whether it actually incited such a reaction, the Tribunal, he said, was effectively rewriting the section. 96 Mr Rofe's response to these contentions was principally to rely on relevant rulings in Tribunal decisions, notably the Appeal Panel decision in Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [25]. It is convenient to add here that these rulings were recently reaffirmed by the Appeal Panel in Sunol v Collier [2006] NSWADTAP 51 at [8 – 13]. 97 Subject to two qualifications, outlined below, we are again not disposed to depart from the principles that have been stated and applied by the Tribunal both at first instance and on appeal. 98 In addition to the reasons given in support of these principles by the Tribunal, we would add three observations. 99 The first is that in a recent case that we have already mentioned, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284, Nettle JA made the following observations at [14] regarding the term 'incite' in s. 8 of the RRT Act (footnote omitted):- 14 … I accept that "incites" in s.8 means "urge[s], spur[s] on...stir[s] up animates[s] or stimulate[s]". That accords with the plain and ordinary meaning of the word and also with the criminal law's conception of incitement, upon which s.8 appears loosely to be based. I also allow that incitive conduct is capable of contravening s.8 without necessarily causing hatred or serious contempt or revulsion or serious ridicule. As with the common law criminal offence of incitement, I view s.8 as directed to inchoate or preliminary conduct, whether or not it causes the kind of third party response it is calculated to encourage. In that sense, the section is prophylactic…. 100 At [154], Neave JA expressed her agreement with Nettle JA, adding that in her opinion s. 8 of the RRT Act 'covers conduct which is capable of causing hatred of or other relevant emotion towards a person or class of person on the ground of their religious belief, even if it does not actually succeed in provoking that emotion'. 101 With regard to Nettle JA's reference to the criminal offence of incitement, we note that in Dimozantos v The Queen (No 2) (1993) 178 CLR 122 at 131 the High Court observed that 'a person can be convicted of the offence of incitement to murder notwithstanding that there has been no murder'. 102 Secondly, in resolving this issue, it is important to bear in mind the normal meaning of the term 'incite'. As pointed out on a number of occasions by the Tribunal (see for instance Burns v Dye [2002] NSWADT 32 at [19]), the ordinary natural meaning of 'incite' is to 'urge, spur on,… stir up, animate; stimulate to do something' (New Shorter Oxford English Dictionary, 1993) or to 'urge on; stimulate or prompt to action' (Macquarie English Dictionary, third edition, 1997). In our opinion, if A 'urges', 'spurs on', 'stimulates' or 'prompts' B to do X, the use of any one of these terms to describe A's conduct is not dependent on B deciding that she will do X as result of that conduct. One can 'urge' unsuccessfully just as one can do so successfully. Without wanting to appear to trivialise the matter, it is the task of opposing barristers, such as Mr Rofe and Mr Reynolds in this case, to 'urge' courts and tribunals to reach decisions favourable to their clients even though in the nature of things they will succeed only some of the time. 103 To put this point shortly, to require that 'actual incitement' must be proved under s. 49ZT(1) is tantamount to requiring not only that there was 'incitement', in the sense of urging, spurring or prompting those who saw and/or heard the relevant 'public act', but that the incitement achieved the desired result. It must have persuaded or induced one or more of those people to experience one or more of the relevant reactions This appears to us to involve a departure from the text of the subsection. 104 Thirdly, we see at least one major dilemma that would arise if s. 49ZT(1) was held to require proof of 'actual' – or, as we would describe it, 'successful' – incitement. If the view adopted was that evidence of successful incitement of a single person was sufficient, that might well – contrary to Mr Reynolds's general arguments regarding freedom of expression – make it unduly easy for a complainant to succeed on this issue. Testimony from just one witness – in the present case, it could be the person called Warren who spoke on air to Mr Laws on 3 November 2004 (see paras 47-77 of the transcript at [19] above) – that in consequence of hearing and/or seeing the relevant 'public act' he or she experienced one or more of the relevant reactions vis-à-vis homosexual people would be sufficient. 105 If it were claimed in response to this suggestion that the witness in question would also have to be shown to be previously free from such reactions and/or not unduly susceptible to be persuaded to harbour them, the apparently necessary probing of the witness's past sentiments towards homosexual people and, indeed, his or her general psychological make-up could become interminable and the determination on these matters would be highly artificial and speculative. If the response was that more than one witness claiming to have been 'actually incited' would have to be called, the question then arising is: how many? Would five be sufficient, for instance, or need it be fifty? 106 Concerns such as these have brought about the development of principles in defamation law (which shares a number of features with vilification law) whereby the court makes findings as to the objective effect of the allegedly defamatory material upon the hypothetical 'ordinary reasonable person'. This exercise has of course its artificial aspects, but a less artificial approach is difficult to envisage. 107 These issues were discussed at some length in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (see Nettle JA at [14 – 19], Neave JA at [155 – 159, 181 – 183]). But in the present judgment, we do not need to examine what their Honours said. 108 In defamation law, evidence from people who were exposed to the allegedly defamatory material regarding its effect on their opinion of the plaintiff is generally treated as irrelevant and therefore inadmissible in determining whether the material was in fact defamatory. In the Tribunal decisions interpreting ss. 49ZT(1) and 20C(1), the opposite view has been taken in ruling on 'incitement': see eg Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [25]. 109 While generally bound, as already stated, to follow Appeal Panel decisions, we would observe in this instance that we have doubts about this particular view. Testimony from one witness that he/she experienced one or more of the relevant reactions in response to the relevant 'public act' is all too easily countered by diametrically opposing testimony from another witness. If such evidence is to be admitted, it should, in our opinion, be given little weight. This constitutes the first of the two qualifications to the Tribunal's prior rulings that we foreshadowed above (at [97]). 110 The second qualification relates to the Tribunal's use of the terms 'capacity' and 'capable'. We agree with Mr Reynolds that these terms have the potential to understate what must be proved. In defamation law, they bear upon what is in essence a threshold question only. An allegedly defamatory imputation is judicially determined to be 'capable of defaming' the person to whom it refers if there are sufficient grounds to warrant referring to a jury the quite distinct question of whether it actually did defame this person. 111 In our opinion, the issue to be resolved under s. 49ZT(1) is better framed as follows: would the relevant 'public act' have had the 'effect' of inciting, in the sense of urging or prompting, a hypothetical 'ordinary reasonable person' to experience one or more of the relevant reactions towards one or more homosexual people (as identified by the complainant), on the ground of their homosexuality? If terms such as 'capacity' or 'tendency' (this word appears in Neave JA's judgment in Catch the Fire Ministries at [161]) are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or possible effect. 112 This point is important if, as previous authorities have made clear, the term 'incite' is to be interpreted as meaning merely 'urge', not 'successfully urge' or 'induce'. A test that required no more than proof that the relevant public act had the potential or possible effect of urging an ordinary reasonable person to experience one or more of the relevant reactions would in our view be unduly broad. 113 Before leaving the issue of what constitutes 'incitement' under s. 49ZT(1), it is also worth pointing out that inciting hatred, serious contempt or severe ridicule vis-à-vis homosexual people is quite distinct from actually conveying or expressing hatred, serious contempt or severe ridicule. This well recognised distinction was made in the submissions on behalf of Mr Laws and was not contested by Mr Rofe. 114 The meaning of 'ridicule'. The discussion in this section leaves to one side the significance of the requirement in s. 49ZT(1) that such ridicule as is claimed to be incited must be 'severe'. It focuses on the word 'ridicule' in isolation. 115 In oral submissions, Mr Reynolds argued that the phrase 'ridicule of ', as it appears in s. 49ZT(1), is to be distinguished from 'hatred towards' and 'contempt for' in that it implies the incitement of not merely an emotional response but also of some form of conduct on the part of the person being incited. The course of action being 'incited' must, he submitted, be that of 'mocking' or 'deriding' one or more homosexual persons, on the ground of their homosexuality. In that sense, he argued that 'ridicule' should be treated as an active measure directed at the person(s) targeted. 116 This way of conceiving 'ridicule' was not addressed in Mr Rofe's submissions. He relied on Tribunal decisions – for example, Burns v Dye [2002] NSWADT 32 at [23]; Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [29] – that referred to synonyms for 'ridicule' as a noun or as a verb. These synonyms include 'mockery', 'derision', 'make fun of' and 'laugh at'. 117 We agree with Mr Reynolds that these particular synonyms imply activity – not merely an emotional reaction – on the part of the person who 'mocks', 'derides', 'makes fun of' or 'laughs at' the person being ridiculed. But we did not understand Mr Reynolds to have argued that the conduct being incited or urged must be to take immediate steps, to the exclusion of all other activities, to locate a homosexual person and subject him or her to ridicule. If he did, we are inclined to disagree. If his submission was just that the reactions incited in ordinary reasonable people must be those of (a) treating a homosexual person as an object of derision (both in their own minds and, conceivably, in conversations with heterosexual people) and (b) intending, if the opportunity occurs, to engage in mockery of a homosexual person, we have no difficulty with it. 118 The significance of the word 'severe'. In relation to this issue, Mr Rofe relied on the following passage in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [36 – 42]:- 36 In the second reading debate in relation to the homosexual vilification provision the term "severe ridicule" was described as "very interesting", and a concern was expressed that it covered "very wide territory" (Hansard, Legislative Assembly, 29 April 1993, pp1825, 6). It was pointed out that the provision "does not define the term and how it is applied" (p1829), and that "[i]t could be said that those words mean what they say [and] if a prosecution [sic] occurs the courts will have to give an interpretation of the words" (p1834). The NSW Law Reform Commission has pointed out that this 'interpretation' approach is taken in most jurisdictions, and it "accepts that the common meanings of the terms are intended, and provide appropriate guidance to the public and to courts and tribunals" (Report 92, 1999 at 7.128). 37 Nevertheless, in the debate, members of Parliament were concerned to illustrate the type of conduct not caught by the term "severe ridicule", saying "[it] does not mean a comment cannot be made in the newspaper about homosexuals, that there cannot be a cartoon in the newspaper about homosexuals, that there cannot be a comedy skit about homosexuals, or that one cannot put on a shirt an emblem referring to gay or lesbian homosexuals. The bill provides that by any of those processes one cannot incite someone else to vilify, physically abuse or ridicule those people on the basis of their homosexuality" (p1829). An example was given of a short person, standing to speak, then being called on to 'stand up': "[t]hat is ridicule but it is mild. Plenty of people receive that sort of ridicule" (p1832). 38 It was pointed out, the homosexual vilification provision that was being debated "is absolutely identical to that in the racial vilification legislation" (p2047). In the second reading debate of the racial vilification provision the then Attorney General said "[i]t is not the intention of the Government to cover matters of a trivial nature", and he dismissed suggestions that the vilification laws would "stop the telling of Irish or Hungarian jokes" (Hansard, Legislative Assembly, 10 May 1989, p7489-90). 39 It is clear from the debates in relation to both the racial vilification and homosexual vilification provisions that the Parliament was concerned to "achieve a balance between the right to free speech and the right to an existence free from . . . vilification and its attendant harms" (Hansard, Legislative Assembly, 10 May 1989, p7489-90; and see McNamara L, Regulating Racism Sydney Institute of Criminology, 2002, at 127-130). We must have that consideration in mind when deciding where the line is to be drawn for purposes of characterising conduct as vilification. 40 We consider the ordinary meaning of the term "severe ridicule" having regard to the guidance given by the parliamentary debates, by common dictionary definitions (se eg Burns v Dye; John Fairfax Publications Limited v Kazak), and by our own understanding of the ordinary meaning of the words. A distinction can be drawn between 'mild ridicule, mere mockery or derision', and 'harsh or extreme mockery derision' (see eg Burns v Dye at [23]). The Appeal Panel in Veloskey & Anor v Karagiannis & Ors at [29] said that 'severe ridicule' equates with "extreme derision". But while these views refine the meaning of 'severe ridicule' by describing different degrees of severity, they do not greatly assist in being able to say when conduct has crossed the 'severe ridicule' line. 41 Qualifiers such as 'mild' and 'harsh' are relative measures of degree, and cannot be understood in the abstract any more than the wrong that parliament means to address through this legislation exists in the abstract. The parliamentary debates make clear that that wrong is the causing of, at worst, physical harm, and, at least, offence and distress, to people on the ground of a characteristic, in this case homosexuality. To identify ridicule that is 'mild' on the one hand and 'harsh' on the other could involve a judgment as to the possible impact of the ridicule on the type of person to whom it is directed. An indicator that conduct is "severe ridicule" could therefore be an assessment that it could reasonably cause distress or offence to a person with that characteristic. But conduct can be severe ridicule without that assessment being made. 42 We understand 'severe ridicule' to be 'harsh or extreme mockery or derision'. As a tribunal of fact, we make an evaluative judgment within a broad discretion as to whether the conduct amounts to "severe ridicule" (see Veloskey & Anor v Karagiannis & Ors at [29]). 119 Mr Reynolds did not contest this account of the matter. He emphasised the considerable significance of 'severe' as a qualifier, arguing that it clearly excluded mere jokes directed at homosexuals from the notion of vilification. He did not rule out the possibility, however, that what a respondent might seek to pass off as no more than humour at the expense of homosexuals might, in an extreme case, constitute incitement to severe ridicule of them. 120 We recognise, as the Tribunal did in Burns v Radio 2UE Sydney, that there is no sharp dividing line between 'ridicule' and 'severe ridicule'. In any case where the issue arises, a value judgment must be made. 121 The capacity of a respondent to exert influence. Mr Rofe submitted that where the respondent in proceedings such as these enjoys a position of influence in the community, this is a relevant factor in determining whether statements made by him or her would have the effect of inciting one of the relevant reactions. Mr Reynolds did not appear to dispute this proposition. It is supported by authority: see for example Burns v Dye [2002] NSWADT 32 at [65]. 122 In so far as this factor provides grounds for thinking that the respondent's statements would be likely to be taken seriously by his audience and would therefore be interpreted as genuinely seeking to induce the reactions suggested by their content, we agree that it is relevant. But consistently with the principle that what must be proved to establish 'incitement' is that an ordinary reasonable person is 'urged' or 'prompted' to experience one of the relevant reactions – not that he or she is actually induced to do so – we do not believe that this factor should be treated as relevant in any other way in vilification proceedings under the Act. If a respondent in such proceedings is not a person of influence, and indeed wholly lacks credibility, it does not follow that his or her statements will not be held to have 'urged' or 'prompted' reactions falling within the scope of s. 49ZT(1) or s. 20C(1). This is illustrated in a number of Tribunal decisions: see for example Burns v Dye and Sunol v Collier [2006] NSWADTAP 51. 123 As indicated below, we do consider however that the influence exerted by a respondent in vilification proceedings under the Act may be relevant in another context, namely, if the issue of 'reasonableness' falls to be determined under s. 49ZT(2) or s. 20C(2). 124 The phrase 'on the ground of the homosexuality of'. In the written submissions filed on Mr Laws' behalf, it was argued that this phrase in s. 49ZT(1) required proof of two matters: (a) that the respondent intended to incite one or more of the relevant reactions on the ground of the homosexuality of the relevant person or persons; and (b) that the 'public act' objectively conveyed the 'message' that the homosexuality of the relevant person or persons was the true basis for the reaction(s) being incited. 125 In view of our ruling that an intention to incite need not be proved, we consider that the first of these matters need not be proved. In our opinion, it is sufficient only to establish the second matter, with the additional element that it is the reaction of the 'ordinary reasonable person' that must be assessed. 126 It was also argued in these submissions that where one or more of the relevant reactions is incited towards a person or group of persons on a number of grounds, including the ground of homosexuality, it must be shown that the ground of homosexuality is a 'substantially contributing factor' to the incitement. The judgment in Collier v Sunol [2005] NSWADT 261 at [64] was cited in support. We agree with this proposition, which is in fact to be found in the Appeal Panel's judgment in Veloskey & Ors v Karagiannis & Ors [2002] NSWADTAP 18 at [30]. 127 The onus of proof. It was not disputed that Mr Burns bore the onus of proving the matters required to be shown under s. 49ZT(1). Mr Reynolds submitted, citing Briginshaw v Briginshaw (1938) 60 CLR 336, that since a finding of unlawful vilification was a serious matter, we should not make such a finding unless we were 'comfortably satisfied' of the relevant factual matters. We agree with this submission. But we would add, contrary to a further submission that he made, that on our understanding of the Briginshaw principle it applies to primary facts rather than to assessment or value-judgments that must be made on the basis of such facts. This view receives support in the judgment of French J (on which Mr Reynolds relied in other ways) in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [77]. General aspects of the interpretation of s. 49ZT(2) 128 In this and the ensuing two sections, we review at some length various issues of interpretation arising under subsection (2) of s. 49ZT. Many of them arise because the subsection is far from easy to interpret. 129 Onus of proof. This was a contested issue. Mr Rofe argued that by virtue of s 104 of the Act (this is reproduced at [18] above), a respondent who sought to rely on any of the grounds of exoneration from liability set out in this subsection bore the onus of proving any relevant factual matters. 130 In the written submissions filed in Mr Laws' case, it was contended that s. 104 did not apply to s. 49ZT(2). Reliance was placed on a passage in Director of Public Prosecutions v United Telecasters Sydney Ltd (1990) 168 CLR 594 at 611-612. Here the High Court held that where a 'qualification, exception or proviso' to a statutory obligation constituted part of the 'total statement' or definition of the obligation, the onus in respect of this 'qualification, exception or proviso' lay on the party asserting a breach of the obligation. Only where this was not the case did the onus lie on the party wishing to have the benefit of the 'qualification, exception or proviso'. 131 In oral submissions, this contention was developed briefly. The only authority cited was the judgment, already mentioned, of French J in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16. 132 This case concerned the racial vilification provisions (ss. 18C and 18D) of the Racial Discrimination Act 1975 (Cth) ('the RD Act'). Section 18C is akin to s. 20C(1) of the New South Wales Act in so far as it establishes liability for racial vilification (though the definition of what constitutes vilification differs significantly). Section 18D states as follows:- 18D Exemptions Section 18C does not render unlawful anything said or done reasonably and in good faith: (a) in the performance, exhibition or distribution of an artistic work; or (b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or (c) in making or publishing: (i) a fair and accurate report of any event or matter of a public interest; or (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment. 133 In Bropho, French J pointed out that pre-existing rulings of the Federal Court (an example is Jones v Toben [2002] FCA 1150 at [101]) placing upon the respondent the onus of establishing one of the exceptions contained in s. 18D had not been contested in the proceedings before him. He said, however, at [75] that this was 'not… a question that should be regarded as settled'. At [75 – 76], he advanced reasons for entertaining doubts on this matter. These reasons were in substance based on the principles stated by the High Court in Director of Public Prosecutions v United Telecasters Sydney Ltd. 134 The Tribunal has however held in a number of decisions that the predecessor to s. 104 (s. 109) in the New South Wales Act applies to comparable provisions in the sections dealing with other forms of vilification in the Act. Examples are Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [125 – 127] and John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [22]. In the former decision, the Tribunal referred to a passage in the Second Reading Speech for the Act, in which the Attorney General described s. 20C(2) of the Act as a provision creating 'exceptions' to liability. Section 20C(2) is the provision, drafted in identical terms to s. 49ZT(2), that exonerates a respondent who would otherwise be liable for racial vilification under s. 20C(1). 135 In Bropho v Human Rights & Equal Opportunity Commission, both Lee and Carr JJ, in contrast to French J, showed no inclination to question the proposition that under s. 18D of the RD Act the onus lies on the respondent: see their judgments at [141], [170 – 172] respectively. 136 In our opinion, Mr Rofe was correct in arguing that s. 49ZT(2) of the New South Wales Act establishes an 'exception', in the sense in which that concept is used in s. 104, and that accordingly the onus of proving any factual matters that might bring the case within s. 49ZT(2) lies on Mr Laws. 137 General approach to interpretation. It is clear from a number of authorities (see for example Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [69]) that ss. 49ZT(2) and 20C(2) were not enacted solely to give guidance as to how the key elements within s. 49ZT(1) and s. 20C(1) respectively should be interpreted. They are intended instead to create genuine exceptions to liability that would otherwise arise. Conduct that constitutes vilification under s. 49ZT(1) may also fall within s. 49ZT(2), and for that reason may be held not to amount to unlawful vilification. The same point has been made with regard to ss. 18C and 18D of the RD Act (see e.g. Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [133] per Lee J, dissenting). 138 In support of this proposition, it may be pointed out that the two associated provisions of the Act that create offences of 'serious vilification' (ss. 49ZTA and 20D) do not have exonerating provisions comparable to s. 49ZT(2) and s. 20C(2). This is the case even though the phrase 'incite hatred towards, serious contempt for, or severe ridicule of' appears in both of the 'serious vilification' sections. If the purpose of s. 49ZT(2) and s. 20C(2) was merely to give guidance as to how the subsections preceding them should be interpreted, one would expect to find similar provisions within s. 49ZTA and s. 20D. 139 The provisions of s. 49ZT establishing civil remedies for homosexual vilification accordingly contain what at first sight may appear to be a contradiction. They state that specified conduct which the law deems to be harmful to homosexuals – i.e. vilification as defined in s. 49ZT(1) – may nonetheless be lawful. The reason is that within the range of circumstances defined in s. 49ZT(2), the countervailing benefit of freedom of expression for society and its members is deemed to be sufficient to outweigh such harm as is inflicted. 140 With reference to the racial vilification provisions of the RD Act, French J explained this aspect of the notion of free speech in Bropho v Human Rights & Equal Opportunity Commission at [69]:- As a general principle freedom of expression is not limited to speech or expression which is polite or inoffensive. The European Court of Human Rights observed in the Handyside case that Art 19 of the [International Covenant on Civil and Political Rights] applies not only to information and ideas that are favourably received or regarded as inoffensive but, also subject to par 2: 'those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society".' Handyside Case , European Court of Human Rights (1976) Ser A No 24) 1 EHRR 737 141 This point has been expressed in more philosophical terms as follows (see for example Frederick F Schauer, Free Speech: A Philosophical Enquiry, Cambridge Univ Press, 1982, 4-12). A truly 'independent' principle of freedom of speech only exists when rules (legal or non-legal) that govern human conduct allow greater leeway for conduct that falls within the category 'speech' for the reason that it is 'speech', rather than some other form of conduct (i.e. 'non-speech'). 142 The grounds advanced for 'privileging' speech as against 'non-speech' in this way are many and varied (for a useful outline, see Tom Campbell, 'Rationales for Freedom of Communication', in T Campbell and W Sadurski (eds), Freedom of Communication, Dartmouth, 1994, 17). They need not be fully elaborated here. It is sufficient to refer to the perceived advantages of free and robust debate on all matters affecting the community at large (including the manner in which it should be governed pursuant to democratic principles) and to the important consideration that if such debate is to occur there must be leeway or 'breathing space' within the law for the expression of views that may be harmful or hurtful to specific individuals or groups. If such 'breathing space' is not afforded, the danger of undue 'self-censorship' arises (the so-called 'chilling effect'). The expression of opinions that are of value in the desired free and robust debate will be stifled out of concern that the boundaries of permitted speech – which are inherently incapable of precise definition – might be transgressed. 143 In accordance with the general tenor of these observations, it was submitted to us by Mr Reynolds that s. 49ZT(2), being a provision designed to protect freedom of expression, should be given a broad interpretation. He referred us to observations of Commissioner Johnston in Bryl v Kovacevic & Ors [1999] HREOCA 11 (which in turn relied on two cases cited earlier in this judgment, Coco v The Queen (1994) 179 CLR 427 and Brown v Classification Review Board (1998) 82 FCR 225) and to the judgment of French J in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [73]. 144 We accept this submission by Mr Reynolds, subject to the important caveat that the interpretation given to subsection (2) of s. 49ZT must not be so broad and generous as effectively to nullify subsection (1). Given the range of situations potentially covered by the broad terms of subsection (2), this is not an entirely fanciful concern. 145 We turn now to consider the interpretation of specific phrases within paragraph (c) of subsection (2), since this was the provision on which Mr Laws sought to rely. The phrase 'reasonably and in good faith' in s. 49ZT(2)(c) 146 The parties' submissions. It was argued in the written submissions filed on Mr Laws' behalf that the expression 'reasonably… for [a relevant purpose]' meant that to some extent the 'public act' in question 'must have a degree of objective connexion with the relevant purpose'. It did not mean that the public act 'as a whole' must be reasonable or that 'the respondent's conduct in publishing the material must be reasonable or appropriate in all the circumstances'. 147 It was further argued that the phrase 'in good faith' imported 'a subjective test, namely, whether the respondent in his own mind had the relevant purpose in publishing the relevant material'. 148 During oral submissions, Mr Reynolds referred us also to sustained discussion of the phrase 'reasonably and in good faith', as used in s. 18D of the RD Act, in the judgment of French J in Bropho v Human Rights & Equal Opportunity Commission. He contended that we should apply to s. 49ZT(2)(c) the approach adopted by his Honour. 149 The submissions on Mr Burns' behalf did not address in detail the approach to be taken in interpreting this phrase as used in s. 49ZT(2)(c). 150 In order to determine how this phrase should be interpreted – this being an issue which is far from straightforward – it is necessary, we think, to review a number of other cases, decided either in this State or elsewhere in Australia. We will begin by considering the New South Wales cases. 151 New South Wales decisions. This phrase has attracted significant discussion in four Tribunal decisions dealing with s. 20C(2)(c) or s. 49ZT(2)(c) of the Act. These decisions are Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102, Kazak v John Fairfax Publications Ltd [2000] NSWADT 77, John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 and Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267. We will consider them first, before then discussing the approaches adopted or suggested in Bropho and in other relevant authorities. 152 In Western Aboriginal Legal Service Ltd v Jones, the Tribunal suggested at [118 – 121] that in framing paragraph (c) of s. 20C(2) the draftsman appeared to have drawn upon concepts and principles underlying the defence of 'fair comment' (or, in its statutory form in New South Wales 'comment') in the law of defamation. that the common law defence of fair comment was 'broader or more liberal' than the requirement in paragraph (c) that the relevant 'public act' be 'done reasonably and in good faith'. The reason, it said, was that an opinion, if 'honestly held', may provide the content of a comment which is deemed 'fair' in defamation law even though it is 'exaggerated, obstinate or prejudiced'. By contrast, such an opinion could not be held 'reasonable' under s. 20C(2)(c). What was required instead was that 'the ordinary reasonable person' would consider it 'reasonable in the circumstances of the case'. 153 As to the phrase 'good faith', the Tribunal held at [122] that it 'would appear to be the converse of acting with malice'. It implied the absence of 'spite, ill-will or other improper motive'. It appeared, the Tribunal said, to be 'a state of mind' and the crucial factor was 'whether the commentator honestly believed in the truth of what he or she said'. 154 Later in its judgment, the Tribunal held, at [148 – 149], that in the case before it the respondents had not discharged the onus upon them to establish 'good faith'. The principal reason for this was that the respondent (a high-profile radio commentator) who had made the broadcast statements that had been held to constitute racial vilification under s. 20C(1) had not given evidence. There was accordingly insufficient evidence to satisfy the Tribunal that he 'honestly believed in the truth of what he said'. 155 At [150 – 152], the Tribunal offered some further observations about the requirement of 'reasonableness', which it described as 'the most challenging aspect' of the exceptions in s. 20C(2). It suggested that 'the ultimate effect' of this requirement was 'to call upon' a person who had engaged in vilification to 'explain his or her behaviour' and that when this was done the requirement would 'no doubt… be interpreted quite broadly'. But it did not, in the case before it, have evidence that explained the offending remarks 'from the perspective of the respondents'. On conducting its own 'objective analysis' of these remarks, it found them to be 'exaggerated and unreasonable in the circumstances', with the consequence that the respondents had not discharged their onus on this issue. 156 Finally, at [153] the Tribunal put forward the following 'tentative' views:- … in many cases a factor to be taken into account in determining whether a public act performed for a purpose in the public interest was "reasonable" will be the impact of that act upon those members of the racial group who have been vilified. Perhaps it will be necessary to undertake a balancing act with the guiding principle being the greater the impact the more difficult it will be to establish that the public act was reasonable. 157 In Kazak v John Fairfax Publications Ltd, an article published in the respondent's newspaper, the Australian Financial Review, contained statements which the Tribunal found to have constituted vilification of Palestinians under s. 20C(1) of the Act. The respondent sought to rely on s. 20C(2)(c), but did not lead any evidence designed to show that this publication was made reasonably and in good faith. It relied instead on (a) the fact that the article appeared on the opinion page of the newspaper, implying that the views expressed were those of the author only; (b) the fact that these views were contested in articles and letters published subsequently in the newspaper; and (c) the contention that it was not unreasonable for the Australian Financial Review to provide a forum for vigorous opinions about an important issue in international politics and Australian foreign affairs. 158 At [88 – 91], the Tribunal held that these matters were insufficient to show that the publication was reasonable. While agreeing that it was 'not unreasonable' for a newspaper to provide a forum for discussion of an important issue in international politics, it held that this of itself did not render 'reasonable' the publication of an article that expressed an extreme view. It stated also, at [90], that the later publication of articles and letters expressing contrary views was not relevant, since 'Reasonableness must be assessed at the time of publication, not at some unstated future time, depending on what else appears in the paper'. 159 In John Fairfax Publications Ltd v Kazak, however, the Appeal Panel reversed the Tribunal's decision relating to s. 20C(2)(c). Having pointed out at [24] that the Tribunal's approach involved linking the requirement of reasonableness with 'the content of the article', the Panel stated as follows at [25]:- A potential error arises from this approach. If no distinction is drawn between the reasonableness of the public act itself, as opposed to the content of the public act, the proviso may be misapplied. On a proper construction of s. 20C(2)(c), it is clearly the doing of the public act which must be reasonable and in good faith. A number of considerations, independently of the content of the public act, come into play at this stage of the enquiry, including the historical and social context of the public act. 160 At [26], the Appeal Panel said:- … it also appears to the Panel that the publication of letters and competing views, reasonably contemporaneously with the publication of the offending article, is relevant to an assessment of whether the public act is both reasonable and in good faith. The bona fides of the publisher, that is, the desire to legitimately provide a forum for political debate as opposed to a forum for the incitement of racial hatred, must be capable of being determined by reference to a course of conduct, not by confining the publisher to one moment in the life of the publication. 161 At [35], in holding that the terms of s. 20C(2)(c) had been satisfied, the Panel stated that what was relevant was 'the rationale behind the decision to publish', not 'the author's motives in choosing the terminology, or in casting the article in certain language'. That rationale, it said, was 'exposed by the actions of the publisher over a period of time, during which both sides of the debate on a given topic may, or may not, be given a voice'. 162 In the fourth of the Tribunal decisions now being discussed, Burns v Radio 2UE Sydney Pty Ltd, the broadcast material held to constitute homosexual vilification under s. 49ZT(1) included, but was not limited to, statements by Mr Laws that are outlined above at [62]. In addition to Mr Laws, the respondents were Radio 2UE and Mr Ray Price, another high-profile radio commentator. The Tribunal rejected the respondent's contention that the requirements of s. 49ZT(2)(c) had been satisfied. As already mentioned, its decision is under appeal. 163 At [77 – 78], the Tribunal held that since neither Mr Price nor Mr Laws had given evidence and no other evidence relevant to the issue of good faith had been led, no finding of good faith could be made. The onus, it said, lay on the respondents to establish the various elements of s. 49ZT(2)(c) and in the absence of any relevant evidence the Tribunal could not 'simply presume' that their comments were made in good faith. 164 In discussing the question of 'reasonableness', the Tribunal indicated at [71 – 72] its acceptance of a submission by the respondents that some of Mr Price's comments related to an issue of public interest. This was the appropriateness of depicting a male homosexual relationship in a specified program on public television at a time when the viewers were likely to include children. 165 At [73] and in a later passage of the judgment ([79 – 93]), the Tribunal held however that the comments by Mr Price and Mr Laws were not 'reasonable'. The grounds that it advanced for this ruling included the following: (a) that these comments were concerned to only a limited extent with the issue of public interest on which the respondents relied; (b) that Mr Price had viewed only part of the television program to which his comments related, and Mr Laws had not seen any of this program; and (c) that both Mr Price and Mr Laws were highly experienced and nationally recognised broadcasters, who should be expected to be aware of, and to comply with, provisions of the Commercial Radio Codes of Practice and Guidelines that are in similar terms to s. 49ZT of the Act. 166 It should be added here that other decisions relating to s. 20C(2) of the Act have been reached by the Equal Opportunity Tribunal, which is the predecessor to the Equal Opportunity Division of this Tribunal. They include in particular Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701 (see at 78,267-78,268). There is however no sustained discussion in these cases regarding the interpretation of the phrase 'reasonably and in good faith'. 167 Other relevant case law. Two cases dealing with legislative provisions that are comparable to s. 49ZT(2) of the Act require extended discussion here. They are Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 and Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284. They have both been mentioned already in this judgment. 168 The former case, Bropho, was concerned with ss. 18C and 18D of the RD Act. The terms of these sections have already been set out (see [132] above). The background to the case comprised the steps taken in 1997 by Aboriginal people to secure the return to Australia from a museum in England of the head of a Western Australian Aboriginal leader, Yagan, who had been killed by white settlers in 1833. There was acrimony amongst Aboriginal people as to who had the appropriate cultural claims, by descent, to retrieve Yagan's remains. The controversy on this matter was lampooned in a satirical cartoon strip published in a newspaper, the Western Australian. In his judgment at [2], French J described it as follows:- The cartoon reflected upon the mixed ancestry of some of the Aboriginal people involved. It implied an unseemly desire on the part of some of them to take advantage of public funding to travel to England and it suggested that their conduct had caused disunity amongst Nyoongar people in the Perth area. It implied the frivolous use by an Aboriginal leader of the dreamtime serpent, the Wagyl, to frighten a child who was cynical about the publicly funded trip to England. It also depicted the head of Yagan in a cardboard box expressing a desire to return to England. 169 The complainant, Mr Robert Bropho, was an Aboriginal man. He complained to the Human Rights and Equal Opportunity Commission ('HREOC') that the publication of this cartoon infringed s. 18C. A Commissioner of HREOC held that s. 18C had indeed been infringed, but dismissed the complaint, primarily on the ground that the cartoon was an 'artistic work' protected by s. 18D(a). A challenge to this decision by way of judicial review was dismissed by a single judge of the Federal Court. Mr Bropho then appealed to the Full Court of the Federal Court. By majority (French and Carr JJ, with Lee J dissenting), his appeal was dismissed. An application by Mr Bropho for leave to appeal to the High Court was also dismissed by majority (Gleeson CJ and Hayne J, with Kirby J dissenting): see Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005). 170 In the Full Federal Court, all of the seven grounds of appeal related to the construction and application of s. 18D. It was in this context that each of the three judges gave consideration to the meaning of the phrase 'reasonably and in good faith'. 171 A lengthy and illuminating discussion of this matter by French J commenced with the following passage at [78 – 82], dealing specifically with 'reasonableness':- 78 There is a number of definitions of 'reasonable' in the Shorter Oxford English Dictionary. The relevant ones are: '3. Agreeable to reason; not irrational, absurd or ridiculous. 4. Not going beyond the limit assigned by reason; not extravagant or excessive; moderate.' The adverb 'reasonably' is defined as 'in a reasonable manner; sufficiently, fairly'. 79 There are elements of rationality and proportionality in the relevant definitions of reasonably. A thing is done 'reasonably' in one of the protected activities in par (a), (b) and (c) of s. 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out. It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things 'reasonably'. The judgment required in applying the section, is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss. 18C and 18D and a recognition of the two competing values that are protected by those sections. 80 An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question. An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise 'inferior' to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to par (b) of s. 18D. 81 The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done 'reasonably'. A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered 'reasonably'. 82 The ways in which the concept of reasonableness is brought to bear in the context of s. 18D are no doubt as numerous in their variety as are the circumstances in which alleged racial vilification may arise. The preceding comments do not purport to offer an exhaustive account of the concept of reasonableness nor a definitive view about the examples offered. Rather, they are intended to illustrate the kind of task that faces a court applying s. 18D. 172 In the course of his discussion of 'good faith' (at paras [82] to [102]), his Honour again referred to dictionary definitions (at [90]):- 90 The ordinary English meaning of the word 'faith' as defined in the Shorter Oxford English Dictionary includes the following: '1. The duty of fulfilling one's trust; fealty; the obligation of a promise or engagement. 2. The quality of fulfilling one's trust, fidelity, loyalty.' The term 'good faith' is noted against the second meaning as reflecting fidelity and loyalty and is contrasted with bad faith meaning faithlessness or having an intent to deceive. In Black's Law Dictionary, 7th Edition, West Group (1999) at 701, 'good faith' is defined thus: 'A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one's duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage. – Also termed bona fides .' 173 Having taken account also of the meanings given by the case law to 'good faith' in a variety of contexts, his Honour reached the conclusion that there were both subjective and objective aspects of 'good faith', as used in s. 18D. At [95 – 96] and [101 – 102], he elaborated on this conclusion as follows:- 95 How does this approach operate in the context of s. 18D? It requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section. The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s. 18C. It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict. It will not use those freedoms as a 'cover' to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin…. 96 It follows from the preceding discussion that good faith may be tested both subjectively and objectively. Want of subjective good faith, ie seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s. 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively. 101 Generally speaking the absence of subjective good faith, eg dishonesty or the knowing pursuit of an improper purpose, should be sufficient to establish want of good faith for most purposes. But it may not be necessary where objective good faith, in the sense of a conscientious approach to the relevant obligation, is required. In my opinion, having regard to the public mischief to which s. 18C is directed, both subjective and objective good faith is required by s. 18D in the doing of the free speech and expression activities protected by that section. 102 A person acting in the exercise of a protected freedom of speech or expression under s. 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s. 18D. On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith. 174 At [103], French J observed that a consequence of this approach might be that there would be 'an overlap between the assessment of reasonableness and of good faith'. But he suggested that this would not necessarily mean that they overlapped conceptually. It would mean only that 'there may be common factual elements underpinning them in a particular case'. 175 As indicated earlier, the specific paragraph of s. 18D which the Commissioner found to be applicable was paragraph (a), relating to artistic works. But the grounds of appeal also challenged an alternative finding by the Commissioner that the cartoon was published 'for a genuine purpose within the public interest' and was therefore protected by paragraph (b) and/or (c)(ii). In this connection, French J made the following observations at [116] and [119] regarding the requirements of reasonableness and good faith:- 116 It may well be correct to say that, in considering the application of the exemptions in pars (c) and (d) it is relevant and necessary to consider the inclusion of material which is calculated simply to insult, offend, humiliate or intimidate persons of a particular race and has no bearing upon any genuine academic, artistic or scientific purpose or any event or matter of public interest. The inclusion of such material may go to the question of reasonableness and good faith in relation to those exemptions and alternatively, or in addition, to the question whether there are elements of the statement, publication, discussion, debate, report or comment that are severable acts unlawful for the purposes of s. 18C and not protected by s. 18D. 119 … There is certainly a powerful argument for saying that the cartoon included elements of an offensive and insulting nature which were irrelevant to any public interest issue. However the question of public interest and the application of the criterion of reasonableness and good faith in s. 18D(b) and (c) involve holistic judgments. Courts should be reluctant to engage in the process of subdividing, in judicial review proceedings, the materials before an administrative decision-maker who has formed an overall view of the publication. Having said that, it is not necessary to finally dispose of this ground of appeal because the Commissioner's decision is sustainable by reference to the primary basis upon which he made it, namely the exemption under s. 18D(a). 176 When discussing the phrase 'reasonably and in good faith', Carr J, who with French J comprised the majority in Bropho, focused chiefly on the terms employed by the Commissioner in holding that this element of s. 18D had been satisfied. At [173], he pointed out that the Commissioner had drawn guidance from this Tribunal's interpretation of this phrase in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102, adding that he did not see 'any reviewable error' in the approach adopted by the Commissioner. At [178], he expressed the opinion that in considering this element of s. 18D, 'the focus of the inquiry is an objective consideration of all the evidence, but that the evidence of a person's state of mind may also be relevant'. 177 The dissenting judge, Lee J, held at [136] that the 'reasonableness' of the publication of the cartoon 'could only be judged against the possible degree of harm it may cause'. He continued as follows:- Such harm, in the context of the Act, would be the extent to which that part of the community which consisted of persons who held racially-based views destructive of social cohesion, or persons susceptible to the formation of such opinions, may be reinforced, encouraged or emboldened in such attitudes by the publication, on the ground of race, of a cartoon which, irrespective of the intent of the artist and of the purpose of the publisher, was capable of being seen by such persons as providing support or justification from an authoritative source for views grounded on racial antipathy. 178 At [139 –140], he expressed his agreement with the approach to interpreting 'reasonably and in good faith' that had been adopted by this Tribunal in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 and John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35. He specifically drew attention to the ruling in the former case that the phrase 'imported a requirement for proportionality to be demonstrated in the conduct engaged in having regard to the degree of harm inflicted'. In this connection, he quoted from para [153] of the Tribunal's decision (this paragraph is reproduced above at [156]). 179 At [141] and [144], Lee J held, more or less as French J had done, that 'good faith' had to be assessed objectively as well as subjectively. In the latter paragraph, he said that this concept imported 'a requirement that the person doing the act exercise prudence, caution and diligence, which in the context of the Act would mean due care to avoid or minimize consequences identified by s. 18C' 180 In concluding that the Commissioner's decision should be set aside, Lee J referred specifically (at [142]) to two matters. First, he said, the Commissioner 'failed to consider the extent to which the publication infringed the terms of s. 18C in assessing whether, for the purposes of the Act, publication of the cartoon could be said to have been done reasonably and in good faith'. Secondly, the Commissioner appeared to have been of the view that 'the proven vice in the act of publication, namely, the reasonably likely consequence that Aboriginal persons would be offended, insulted, humiliated or intimidated, was redressed in some manner by prior articles and editorial comment published by WA Newspapers'. With reference to this second matter, Lee J added the following comment:- Contemporaneous, or prior, publication of anodyne material would not, in itself, make an act of publication done because of race and involving racially offensive material, an act done reasonably and in good faith. 181 During the hearing of Mr Bropho's application for leave to appeal to the High Court (Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005)), two Justices of the Court made observations which are of value in the present discussion. Gleeson CJ (at pages 4-5) referred to the difficulty of applying the concept of 'reasonableness' to a cartoon 'which of its nature is intended to lampoon or ridicule'. He described ridicule as 'an appropriate and very common form of political commentary' and asked: 'How do you in practice decide whether some ridicule is reasonable and some ridicule is unreasonable?' He added that he had 'some sympathy with people on both sides of this argument who are endeavouring to deal with the practical problem of applying a concept of "reasonableness" to conduct which sets out to ridicule somebody or something'. Kirby J asked (at page 11) whether in s. 18D good faith was the 'subjective element' and reasonableness was the 'objective element'. 182 It should be added here that other decisions have been reached, both by the Federal Court and by Commissioners of HREOC, relating to the phrase 'reasonably and in good faith' in s. 18D of the RD Act. The Federal Court decisions include Jones v Scully [2002] FCA 1080, Toben v Jones [2003] FCAFC 137 (in this judgment, see in particular paras [43 – 47], [78] and [159 – 170]) and, very recently, Jones & Anor v The Bible Believers' Church [2007] FCA 55 (see [61 – 63]). But in view of the extended discussion appearing in Bropho, it is not necessary in this judgment to review these other authorities. 183 We turn now to the second case from outside NSW which in our view requires extended consideration. This is Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284. The statutory provisions with which it dealt, namely ss. 8 and 11 of the RRT Act, are set out above at [81]. 184 The case arose out of statements published by three respondents, at a seminar, in a newsletter and on a web-site respectively. Two of the respondents were Christian pastors and the third was an incorporated association which carried on Christian ministry in Australia. The complainant was an incorporated association which represented Muslims and Islamic societies in Victoria. The Victorian Civil and Administrative Tribunal upheld the complaint, on the ground that these publications infringed s. 8 of the RRT Act and were not protected by s. 11. The respondents appealed successfully to the Victorian Court of Appeal, which held that the Tribunal's orders should be set aside and that the matter should be remitted to the Tribunal for rehearing. 185 With reference to s. 11, Nettle JA made the following observations at [89 – 98] (footnotes are omitted):- 89… Contrary to the approach of the Tribunal, I do not accept that the test of bona fide and reasonably for the purposes of s.11 is the same as the test laid down by French, J. in Bropho for the purposes of s.18D of the Racial Discrimination Act 1975 (C'th). Under s.11, the question is whether the conduct in which a person ("the defendant") has engaged should be seen as having been engaged in reasonably and in good faith for a genuine academic artistic religious or scientific purpose. In my view it follows that, assuming no lack of honesty, one should ordinarily start with the identification of the purpose for which the defendant is said to have engaged in the conduct and determine whether it answers the description of an academic artistic religious or scientific purpose. 90 Plainly enough, comparative religion and proselytism are both "religious purposes"… 91 Having come to that point, I consider that one should next inquire as to whether the defendant's alleged purpose was a "genuine religious purpose"…. 92 Having reached that point, I think that one should move next to the question of whether the defendant had engaged in the conduct reasonably and in good faith for the genuine religious purpose. According to ordinary acceptation, to engage in conduct bona fide for a specified purpose is to engage in it honestly and conscientiously for that purpose. In my view that appears to be the intent of s.11. The legislative requirement that the conduct be engaged in not only in good faith but also reasonably means that objective standards will be brought to bear in determining what is reasonable. Despite what has been held under s.18D of the Racial Discrimination Act, I see no reason to load objective criteria into the conception of good faith in s.11, or otherwise to treat it as involving more than a "broad subjective assessment" of the defendant's intentions. In my view, the requirement that conduct have been engaged in bona fide for a genuine religious purpose within the meaning of s.11 will be established if it is shown that the defendant engaged in the conduct with the subjectively honest belief that it was necessary or desirable to achieve the genuine religious purpose. 93 That then leaves the question of whether the conduct was engaged in reasonably for the genuine religious purpose, and plainly as I see it that does involve an objective analysis of what is reasonable and therefore calls for a determination according to the standards of the hypothetical reasonable person. 94 Therein, however, is a further complication. It is not all that long ago that the standards of the hypothetical reasonable person were spoken of in terms of the man on the Clapham omnibus. So long as the population of this country was of predominantly Anglo-Celtic extraction, that was perhaps as apposite here as it was in United Kingdom. But today, as in the United Kingdom, our society is different. It is now a polytopic multicultural society and we recognise, and indeed the Preamble to the Act makes clear, that the standards of reasonable persons are the standards of an open and just multicultural society. Accordingly, where as here the conduct in question consists in the making of statements for a religious purpose, the question of whether it was engaged in reasonably for that purpose must be decided according to whether it would be so regarded by reasonable persons in general judged by the standards of an open and just multicultural society. 95 Such an assessment may not always be easy. A society which consists of varied cultural groups necessarily has the benefit, and bears the burden, of a plurality of standards. Hence, in this society, to speak of persons in general is to speak of persons who in large part have different standards. And to speak of what is reasonable among them it is to invoke an idea which as between them is to a considerable extent informed by different standards. Nevertheless, experience has taught us that reasonable members of an open and just multicultural society are inclined to agree on the basics. 96 In my view one is entitled to assume that a fair and just multicultural society is a moderately intelligent society. Its members allow for the possibility that others may be right. Equally, I think, one is entitled to assume that it is a tolerant society. Its members acknowledge that what appears to some as ignorant, misguided or bigoted may sometimes appear to others as inspired. Above all, however, one is entitled to assume that it is a free society and so, therefore, one which insists upon the right of each of its members to seek to persuade others to his or her point of view, even if it is anathema to them. But of course there are limits. Tolerance cuts both ways. Members of a tolerant society are as much entitled to expect tolerance as they are bound to extend it to each other. And, in the scheme of human affairs, tolerance can extend each way only so far. When something goes beyond that boundary an open and just multicultural society will perceive it to be intolerable despite its apparent purpose, and so judge it to be unreasonable for the purpose for which it was said. 97 In Bropho, French, J. made the point that the question of whether something is said bona fide and reasonably for a genuine purpose may depend as much on the place where it is said and by whom it is said as it does upon its content. So, to adopt and adapt his Honour's example, what is said at a religious seminar by a true believer in one religious faith concerning the perceived inadequacies of the tenets of another might be regarded as said bona fide and reasonably for a genuine religious purpose of "witnessing" to adherents of the other persuasion, even though, if the same thing were said on talk-back radio by a person who had no religious beliefs and no interest in "witnessing" to those who do, it would be totally unacceptable. 98 Of necessity, the standards of an open and just multicultural society allow for differences in views about religions. They acknowledge that there will be differences in views about other peoples' religions. To a very considerable extent, therefore, they tolerate criticism by the adherents of one religion of the tenets of another religion; even though to some and perhaps to most in society such criticisms may appear ill-informed or misconceived or ignorant or otherwise hurtful to adherents of the latter faith. It is only when what is said is so ill-informed or misconceived or ignorant and so hurtful as to go beyond the bounds of what tolerance should accommodate that it may be regarded as unreasonable. 186 At [197], Neave JA said (footnotes are again omitted):- 197… I agree with [Nettle JA's] view as to the process a court or tribunal should follow in deciding whether the requirements of s.11 are satisfied. I also agree with him that the question whether words or conduct is engaged in reasonably for a religious purpose must be judged by the standards of reasonable persons who are members of an open and just multicultural society. The Racial and Religious Tolerance Act reflects the policy judgment that those who derive benefits from living in a society in which they can express their own views about religion must also accept some limits on that freedom. Fixing the standard by reference to the standards of reasonable members of an open and just multicultural society protects the freedom of minorities to express religious views which may be regarded by the majority as foolish or abhorrent, but it also imposes limits on that freedom, in order to foster the tolerance which is necessary to prevent the undermining of the values on which the society is based. As the Canadian Supreme Court has commented in the context of anti-Semitic vilification in R. v. Keegstra [(1990) 61 CCC (3d) 1 at 49], such racist or religious propaganda "...can undermine the very values which free speech is said to protect." 187 At [119], the third member of the Court, Ashley JA, expressed his agreement with the conclusions reached by Nettle and Neave JJA. In his ensuing observations he did not comment on their views regarding s. 11. 188 A further Australian decision on a provision comparable to s. 49ZT(2) of the Act should be noted. This is Deen v Lamb [2001] QADT 20, decided by the Anti-Discrimination Tribunal of Queensland with reference to s. 124A of the Anti-Discrimination Act 1991 (Qld). The two subsections of this section replicate precisely the terms of s. 49ZT(1) and (2) of the New South Wales Act, except that in s. 124A(1), in place of homosexuality, the specified grounds on which vilification may occur are race, religion, sexuality or gender identity. 189 The case concerned a pamphlet distributed by a candidate for election to the Commonwealth Parliament during the period immediately preceding the election of November 2001. It contained a number of statements that were derogatory towards people who held the Koran to be authoritative in all matters. The complainant, a Muslim, applied for an injunction prohibiting further distribution of the pamphlet. In an ex tempore judgment, the Tribunal, constitute by Mr Walter Sofronoff QC, held that statements in the pamphlet incited hatred and serious contempt towards Muslims under s. 124A(1) of the Queensland Act, but that they also fell within s. 124A(2). It therefore dismissed the application. 190 In reaching these conclusions, the Tribunal expressed the opinion that since the pamphlet was designed to communicate to electors the views of a parliamentary candidate, the implied constitutional freedom of political communication (to which we referred at the beginning of this judgment) placed limits on the extent to which a legislature could regulate its contents on the ground of vilification. Citing in this context the High Court's decision in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, it said that 'the public has an interest in knowing the opinions of candidates, even when these views are unreasonable, unsupportable, one sided or even plainly wrong; and perhaps particularly when they are of that character'. In holding that the respondent had acted in good faith in distributing the pamphlet, the criterion that the Tribunal applied was whether his genuine purpose was that of fulfilling one or more of the purposes defined in s. 124A(2). Finally, in a brief discussion of the issue of reasonableness, the Tribunal stated (at page 8):- It is enough for this case to observe that the pamphlet has been written in moderate language. It is concise and there is no suggestion that it has been published or disseminated other then in the electorate. I would not be prepared to conclude that the respondent has not acted reasonably. 191 Discussion and conclusions: 'good faith'. Our treatment of this issue may be relatively brief. With due respect to French J's elaboration of this concept in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, we are inclined to agree with the view expressed by Nettle JA in Catch the Fire Ministries (at [92]). In the special leave application in Bropho, Kirby J seemed sympathetic to that view. What Nettle JA said was that there was 'no reason to load objective criteria into the conception of good faith …, or otherwise to treat it as involving more than a "broad subjective assessment" of the defendant's intentions'. 192 Adapting to the present context what Nettle JA then went on to say (referring to s. 11 of the RRT Act), we arrive at the following formulation. The requirement under s. 49ZT(2)(c) of the NSW Act that the relevant 'public act' should have been 'done… in good faith' for one or more of the purposes listed in this paragraph will be established if it is shown that the defendant acted with 'the subjectively honest belief that it was necessary or desirable to achieve' the purpose or purposes in question. A finding that the respondent acted dishonestly or in the knowing pursuit of an improper purpose will be sufficient to rule out good faith. 193 Our principal reason for preferring the opinion of Nettle JA to that of French J on this issue stems from the fact that, as French J acknowledged, the determination of 'reasonableness' involves the consideration of objective factors. The application of the composite criterion 'reasonably and in good faith' becomes unnecessarily complex if objective factors are deemed also relevant in assessing 'good faith'. If the term 'good faith' stood alone, French J's elaboration of it would seem distinctly more appropriate. 194 The Appeal Panel decision in John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 illustrates (at [35]) that a respondent may succeed in establishing 'good faith' without having giving evidence on the matter. The respondent in that case was however a company that published the relevant material, not the person who wrote the article which contained it. Having regard to other Tribunal decisions (see for example Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [148 – 149]; Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [77 – 78]), we believe that it will generally be difficult for a respondent who has actually written or uttered vilifying material to prove 'good faith' without giving evidence as his or her state of mind. But we do not need to pursue this issue further as in this case Mr Laws did give such evidence. 195 This same paragraph in Kazak also provides authority for the proposition that in determining whether 'good faith' is present account may be taken of relevant conduct of the respondent following publication of the vilifying material. 196 Discussion and conclusions: 'reasonableness'. This review of case law dealing with the phrase 'reasonably and in good faith' within provisions such as s. 49ZT(2) has highlighted the significant problems of interpretation that the phrase generates. These problems are, as the Tribunal said in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102, particularly 'challenging' so far as the term 'reasonably' is concerned. 197 Within the authorities just outlined, the approach adopted to the term 'reasonably' varies widely. In Deen v Lamb [2001] QADT 20, for instance, the Queensland Anti-Discrimination Tribunal was prepared to regard distribution of the pamphlet as 'reasonable' because its language was moderate and concise and the range of distribution was not excessive. It did so after having stated in its judgment that, at least where dissemination of the views of parliamentary candidates to electors was concerned, the public had an interest in knowing such views even, and perhaps particularly, when they were 'unreasonable, unsupportable, one sided or even plainly wrong'. On the other hand, in Western Aboriginal Legal Service Ltd v Jones, this Tribunal, having conducted its own 'objective analysis' of the broadcast material, found it to be 'exaggerated and unreasonable in the circumstances'. It suggested also that a relevant consideration might be the impact of the vilifying statements upon those members of the group who have been vilified. To further illustrate the divergence of views, it is sufficient to compare the judgments of the Tribunal at first instance and of the Appeal Panel in the Kazak case. 198 In a valuable article entitled 'So far so good? A critical evaluation of racial vilification laws in Australia' (2004) 32 Federal Law Review 225, Dan Meagher suggested (at 247-248) that in the decisions then reached (which did not include Bropho in the Full Federal Court), two approaches to 'reasonableness' could be discerned. In one set of decisions, which in the author's view included Western Aboriginal Legal Service Ltd v Jones and the first instance decision in Kazak, the focus of inquiry was the reasonableness of the 'message' that the respondent's conduct had conveyed. In another set of decisions, including Hellenic Council of NSW v Apoleski (No 1) [1995] NSWEOT (25/9/97) and Deen v Lamb, the focus was on the 'method' or 'manner' used to convey the message. 199 Meagher expressed the view that the term 'reasonably' should be approached in the latter way, i.e. that it should be taken to refer to the 'method' by which the message is conveyed rather than the content of the 'message'. He argued that this interpretation receives support from extrinsic parliamentary materials relating to the enactment of s. 18D of the RD Act and s. 11 of the RRT Act. He also contended that it follows inevitably from the terms of the legislation:- Moreover, it is submitted that an extreme racist message is necessarily unreasonable if it is the content of the message that is being assessed as to its reasonableness. Therefore, for better or worse, if the purpose of the 'free speech/public interest defence' is to protect in certain circumstances even unpopular and racist messages, the provisions would come to naught if the message must be reasonable rather than the method of conveying that message. 200 In broad terms, we agree with this proposition, though we think that the phrase 'method of conveying the message' could usefully be replaced by a phrase such as 'circumstances in which the message is conveyed'. In our opinion, the proposition well represents the views of the Appeal Panel decision in Kazak and (with some qualifications) those of French J in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16. We would refer here particularly to the statement by French J (at [79]) that 'a thing is done 'reasonably' in one of the protected activities in par (a), (b) and (c) of s. 18D if it bears a rational relationship to that activity and is not disproportionate to what is necessary to carry it out'. Appropriately adapted to reflect the language of s. 49ZT(2)(c) of the NSW Act, this statement appears to us to summarise the correct approach to be adopted in interpreting the word 'reasonably'. 201 It is true that in their judgments in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284, Nettle and Neave JJA were principally concerned to decide whether the content of the various publications by the respondents was 'so ill-informed or misconceived or ignorant and so hurtful as to go beyond the bounds of what tolerance should accommodate' (see Nettle JA at [98]). But they did not ignore what Meagher would label the 'method' of conveying this content. This was apparent from their insistence that before assessing reasonableness or good faith, 'one should ordinarily start with the identification of the purpose for which the defendant is said to have engaged in the conduct' and that only after this has been done can an inquiry be launched into 'whether the defendant had engaged in the conduct reasonably and in good faith for the… purpose' (see Nettle JA at [89] and [92]; Neave JA at [197]). Nettle JA also said at [97] that 'the question of whether something is said bona fide and reasonably for a genuine purpose may depend as much on the place where it is said and by whom it is said as it does upon its content'. 202 As Gleeson CJ pointed out in the course of the application for special leave in Bropho (see [169] above), drawing meaningful distinctions between 'reasonable' ridicule and 'unreasonable' ridicule seems an impossible task. At that stage of the hearing he was evidently treating 'reasonableness' as a matter to be determined with reference to the content of the cartoon, though when ruling that the application must be rejected (see page 12) he referred to 'the issue of whether the conduct in question in this case [emphasis added] was reasonable and in good faith'. 203 This conclusion that in applying the criterion of 'reasonableness' the focus should primarily be on the circumstances surrounding the communication of the 'message' rather than the content of this 'message' does not imply that the content is wholly irrelevant. In our opinion, there are at least four ways in which the requirement that the relevant public act should not be 'disproportionate' calls for this content should be taken into account. 204 First, it may be apparent that while some elements of the 'message' that has been held to constitute vilification bear a 'rational relationship' to one or more of the purposes described in s. 49ZT(2)(c), other elements do not. As French J suggested in Bropho at [81] and [117], this is a relevant consideration in deciding whether an overall claim of 'reasonableness' can be sustained. As we understand the Tribunal's ruling on this issue in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 (see [162 – 165] above), it placed significant weight on its finding that the comments by Mr Price and Mr Laws that were held to constitute homosexual vilification related only to a limited extent to the issue of public interest on which they relied in claiming the protection of s. 49ZT(2). 205 Secondly, we draw attention to French J's statement (at [79]) to the effect that the content of the relevant communication must not be 'disproportionate to what is necessary to carry… out' what he described as 'the protected activity'. We understand him to have illustrated this proposition at [81] in discussing the hypothetical example of 'a feature article on criminal activity said to be associated with a particular ethnic group'. He said that if such an article 'were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered 'reasonably'. 206 Thirdly, we agree with the suggestion in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [153] that 'a factor to be taken into account in determining whether a public act performed for a purpose in the public interest was "reasonable" will be the impact of that act upon those members of the… group who have been vilified'. We see this as an issue of clear relevance in any determination of 'proportionality'. While it is evidently a difficult task, involving a fair amount of speculation, to quantify the impact of published material that incites hatred, serious contempt or severe ridicule against a large group within society (such as homosexual men, or all the members of a particular race), it is nonetheless a task that a court or tribunal must perform when deciding what remedy or remedies should be granted following a finding of unlawful vilification. 207 Fourthly, in taking account of the factor just outlined it will be relevant to consider the extent to which the material held to have constituted vilification has been disseminated and the degree to which it is likely to be influential on account of the status and credibility of the person publishing it. 208 In so far as these last matters are treated as relevant, they may to some degree meet a concern expressed by Meagher (at 248-249). This is that an interpretation of the concept of 'reasonableness' which, to use his terminology, focuses on 'method' rather than 'message' will have the unfortunate effect of conferring protection on 'vile and hateful acts' of vilification so long as they are communicated 'articulately, using scholarly language or socially acceptable conventions'. Meagher quoted here a telling comment in Nicholas Wolfson, Hate Speech, Sex Speech, Free Speech (1997) at 48: 'if we limit censorship to the epithet, we create a two-tier approach: chilling of blue-collar muck and preservation of upper-crust mud'. The suggestion that we have just made will, however, permit the persuasive potential of vilifying statements that are made 'articulately' to be treated as a factor suggesting that their publication was not 'reasonable'. 209 For the foregoing reasons, we conclude (with some diffidence, since the issue is far from easy) that the correct approach to interpreting 'reasonably' in s. 49ZT(2)(c) is to ask, following French J in Bropho, whether the relevant 'public act' (a) bears 'a rational relationship' to one or more of the purposes set out in this provision and (b) is 'not disproportionate to what is necessary' to carry out such purposes. We interpret 'not disproportionate to' in accordance with one of the dictionary definitions of 'reasonable': namely, 'not going beyond the limit assigned by reason'. In applying this test, the matters to be taken into account should include the four factors that we have just identified. In summary form, they are as follows: (i) the extent to which the vilifying material cannot be related to any of the relevant purposes; (ii) whether this material is composed in such a way as to include 'gratuitous insults'; (iii) the degree of harm inflicted on those members of the relevant group who have been vilified; and (iv) (as an element of (iii)) the range of dissemination of this material and the degree to which it is likely to be influential. The phrase 'other purposes in the public interest' in s. 49ZT(2)(c) 210 It will be recalled that the range of purposes permitted in the 'exception' to liability created in s. 49ZT(2)(c) of the Act is defined in the following terms: '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'. It was submitted on behalf of Mr Laws that the purposes for which he made the statements at issue in this case were all encompassed by the phrase 'other purposes in the public interest'. 211 In developing this submission, Mr Reynolds argued that this phrase should be given its natural meaning. We should, he said, reject any notion that it should be interpreted eiusdem generis with (i.e., as falling within the same general category as) the other kinds of purposes designated within the provision (academic, artistic etc). In support of these propositions he cited two Tribunal decisions dealing with s. 20C(2)(c) of the Act. 212 The submissions on Mr Burns's behalf did not address in detail the approach to be taken in interpreting this phrase as used in s. 49ZT(2)(c). 213 In the earlier of the two Tribunal decisions cited by Mr Reynolds, Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102, the Tribunal made the following observations at [124]:- The language in question is extremely broad because the term "public interest" is qualified by the inclusive rather than exclusive description of "discussion or debate about and expositions of any act or matter". It is difficult to conceive of any reason for doing a public act which could fall outside the "public interest" as described in section 20C(2)(c). Certainly the reasonably narrow definition of "public interest" advanced by the High Court in Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 would not appear appropriate in the context of s. 20C(2)(c). Gillooly [M Gillooly, The Law of Defamation in Australia and New Zealand , Federation Press, Sydney, 1998] (at 128) refers to comments by Lord Denning in London Artists v Littler [1969] 2 QB 375 at 391 which appear suitably broad: Whenever a matter is such as to affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others; then it is a matter of public interest on which everyone is entitled to make fair comment. 214 As elsewhere in its discussion of s. 20C(2)(c) in this case, the Tribunal here was treating the provision as comparable with the defence of fair comment on a matter of public interest within defamation law. In the passage in Bellino to which the Tribunal referred, the definition of 'a matter of public interest' that the High Court held to be correct in the context of this defence was as follows: 'the actions or omissions of a person or institution engaged in activities that either inherently, expressly or inferentially invited public criticism or discussion'. 215 In the later of the two Tribunal decisions, John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35, the Appeal Panel simply stated at [35] that 'discussion or debate about any matter is within the public interest'. 216 We are inclined to disagree with the Tribunal's suggestion in the former case that 'it is difficult to conceive of any reason for doing a public act which could fall outside the "public interest" as described in section 20C(2)(c)'. The concept of 'public act' is very broad indeed (see [17] above), and there have been a number of Tribunal cases in which a 'public act' held to have constituted unlawful vilification could not sensibly have been claimed to have been done for a purpose in the public interest. A good example is Burns v Dye [2002] NSWADT 32, where the 'public act' took the form of writing highly offensive and inflammatory words, accompanied by an offensive drawing, on the front door of the complainant's residence. 217 Equally, we do not think that the statement of the Appeal Panel in Kazak was intended to cover all instances of 'debate or discussion', without exception. Having regard to the terms of s. 49ZT(1), a 'discussion' on radio between two commentators, for instance, as to what constituted the most effective forms of incitement of hatred of homosexual people on the ground of their homosexuality could hardly be characterised as 'in the public interest' if it chiefly comprised patently vilifying statements. 218 Subject to these minor qualifications, we accept Mr Reynolds' submission that 'other purposes in the public interest' means, in broad terms, purposes that (to quote Lord Denning) 'affect people at large, so that they may be legitimately interested in, or concerned at, what is going on; or what may happen to them or others'. Furthermore, when the purpose, or one of the purposes, for which the relevant 'public act' has been 'done' can be characterised as 'discussion', 'debate' or 'exposition', that is at least a pointer towards its being a purpose 'in the public interest'. 219 It is important also to note that in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, when considering the applicability of s. 18D(b) of the RD Act, neither French J (see [118 – 119]) nor Carr J (see [183]) expressed any concern at the proposition that publication of the cartoon in that case could be held to be act done for a 'genuine purpose in the public interest' even though it sought to convey opinions through humour and, indeed, sharp and biting satire. Carr J ruled that s. 18D(b) was applicable, whereas French J left this point open. Did Mr Laws' broadcast constitute vilification under s. 49ZT(1)? 220 In this section, we review counsel's arguments and set out our conclusions on the question whether, putting s. 49ZT(2) to one side for the time being, the relevant segments of Mr Laws' broadcast on 3 November 2004 constituted vilification under s. 49ZT(1). The transcript of the broadcast is reproduced at [19] above. 221 Submissions on Mr Burns' behalf. Mr Rofe's submissions relating to the content of the broadcast included placing emphasis on the number of occasions – he identified 15 – on which Mr Laws used epithets that encouraged listeners to mock or deride Mr Kressley on account of his homosexuality and drawing our attention to two occasions on which Mr Laws expressly applied these epithets to homosexual men generally. These two occasions are to be found in paragraphs 1 ('Why this sudden proliferation of pansies I don't know') and 32 ('I am a bit pi[bleep]ed off with the pansies…'). 222 Mr Rofe argued that it was important that Mr Laws' first references to Mr Kressley's homosexuality (using the phrase 'pompous little pansy prig') occurred right at the beginning of the broadcast. Several more words and phrases that were insulting to homosexuals – 'poof speak', 'pillow biter', 'circles being the operative word' and 'fairy' – followed soon after (these are all in para 1). They were explicitly contrasted with 'hard drinking hard talking men M-E-N' and 'free thinking red blooded men'. 223 Mr Rofe submitted further that while in private conversations terms like these might not be regarded as offensive, they undoubtedly were offensive when used on public radio. 224 He also pointed out that it was only at the end of the broadcast (see paras 71, 73 and 80) that Mr Laws maintained that the target of his criticism was not Mr Kressley's homosexuality, but his effeminate manners (or, to quote from para 65, his conduct in 'poncing around the place'). According to Mr Rofe, Mr Laws was by this stage in 'damage control mode', notably because of the aggressive nature of some of the comments made by the listener ('Warren') with whom he was conversing. 225 Mr Rofe also placed significant emphasis on the evidence showing Mr Laws to have attained a very high status and reputation as a broadcaster. 226 In arguing that we should find the broadcast to fall within s. 49ZT(1), having regard to the proper interpretation of this provision, Mr Rofe relied chiefly on the Tribunal's decision in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267. He argued that the attack on homosexual men made by Mr Laws in the present case was 'far worse' than the attack that the Tribunal in the earlier case had held to amount to unlawful homosexual vilification. 227 Submissions on Mr Laws' behalf. A major plank of the argument on Mr Laws' behalf regarding the content of the broadcast was the fact that, on Mr Rofe's own showing, there were only two occasions on which Mr Laws referred to homosexual people in general terms, but there were many more occasions on which epithets were directed at Mr Kressley. This meant, it was claimed, that if Mr Laws incited ridicule at all, it was ridicule of Mr Kressley, not of homosexual men generally. (In circumstances outlined earlier in this judgment (see [38 – 44] above), a case based on incitement to severe ridicule of Mr Kressley had in fact been contemplated by Mr Burns and those representing him in the course of the present proceedings, but had been abandoned.) 228 In response to a question from us, Mr Reynolds offered some comments on the following sentence in para 1 of the broadcast: 'I mean it is all very good and well that Australia tolerates people with varied sexual leanings, but I don't know why we should be celebrating it.' His submission was that in this sentence Mr Laws expressed the opinions that (a) tolerance of homosexual people in Australia was a good thing, but (b) the 'celebration' of homosexuality that occurred in events involving 'overt display', such as the Mardi Gras, was not necessarily a good thing. He did not agree with a suggestion from us that the phrase 'all very good and well' might be understood as conveying less than wholesale approbation. 229 Mr Reynolds also responded to a question about the following passage in para 1: 'Who is this - he might be famous in certain circles - circles being the operative word. We know where they are.' He argued that this should not be interpreted as casting aspersions on homosexual men generally. Instead, he said, it simply created a humorous double entendre (as Mr Laws had acknowledged in cross-examination) and indicated that Mr Kressley was 'famous' among homosexual men. 230 An associated submission of importance was that the critical comments made by Mr Laws about Mr Kressley focused on his overtly gay mannerisms, not his homosexuality. As Mr Laws made clear near the end of the broadcast, he was 'very happy for people to be homosexual' (para 71) and had 'nothing, absolutely nothing, against homosexuals' (para 80). In these circumstances, it could not be held that any incitement to ridicule of homosexuals generally, or even of Mr Kressley specifically, was 'on the ground of' their or his homosexuality. 231 As to the specific epithets for homosexual men used by Mr Laws, such as 'poof' or 'pansy' or indeed 'pillow biter', Mr Reynolds submitted that these were often used in a wide range of contexts in a joking manner, and were not considered insulting. It was relevant here, he said, that in the footage shown on 'A Current Affair', Mr Kressley had described himself as a 'fag'. 232 With particular reference to the concept of 'severe ridicule' as used in s. 49ZT(1), Mr Reynolds stressed that from the outset the broadcast was presented as no more than a humorous commentary on a recent television program. Even if the humour deployed had the effect of encouraging listeners to regard Mr Kressley, or even homosexuals generally, as worthy of ridicule, it could never be said to have encouraged 'severe' or 'extreme' mockery or derision. The response of the three listeners, all of whom indicated that they had found the broadcast to be funny, further contributed to the light-hearted nature of the program. 233 Finally, Mr Reynolds made two points of general significance. One was to remind us that the onus of proof under s. 49ZT(1) lay on Mr Burns. The other was to caution us against unduly close analysis of the text of the broadcast. This was inappropriate, he said, because the issue of incitement should be determined on the basis that the listeners, actual or hypothetical, whose reactions to the broadcast were relevant would have heard it, or should be deemed to have heard it, on one occasion only. Our task, in his submission, was to put ourselves in the position of casual listeners. 234 Our conclusions. In our judgment, three matters raised in the foregoing outline of the submissions by counsel are of particular significance in determining whether the broadcast fell within s. 49ZT(1). The first is that, as Mr Reynolds argued, we should indeed try to put ourselves in the position of casual listeners. Secondly, as Mr Rofe pointed out, the identification of Mr Kressley as a homosexual, involving the use of labels such as 'pansy', 'poof' and 'pillow biter', occurred very early in the broadcast and continued throughout the initial monologue by Mr Laws (paras 1 and 2). At the conclusion of this monologue, the invitation to Mr Kressley to 'piss off' was accompanied by the labels 'pansy' and 'poof', and by the sardonic comment that 'you can't say' the latter word because it is 'derogatory'. Thirdly, this monologue contained two explicit references to homosexuals generally, of which one was clearly derogatory ('proliferation of pansies') and the other (the comments about 'people with varied sexual leanings') would in our view be understood in its context to convey a negative message. Homosexual men were explicitly said to differ from 'free thinking red blooded men'. 235 In our opinion, these features of the initial monologue set the tone for both the monologue itself and the subsequent conversations between Mr Laws and the three members of his audience who telephoned the radio station. The casual listener was invited to treat Mr Kressley's homosexuality as one of the key aspects of his character that warranted his being considered worthy of ridicule. Although near the end of the broadcast Mr Laws sought to distinguish between homosexuals generally and those who, like Mr Kressley, indulged in 'poncing about the place', that distinction was not drawn at all at the beginning. What occurred at the end was, to use a metaphor sometimes employed in defamation cases, the application of an 'antidote' that was insufficient to cure the 'bane' already brought about by the initial monologue. Even if Mr Laws did not actually intend to do so, he invited casual listeners in this monologue to accept the proposition that a homosexual man would inevitably, or at least in the normal course, be 'pompous' and a 'prig' and would regularly engage in 'strutting about the place'. This association of homosexuality with effeminate mannerisms was sustained through repeated use of the term 'pansy'. Furthermore, it was implied throughout that the behaviour of 'hard drinking hard talking men M-E-N', who implicitly were heterosexual, was entirely different. 236 The labels used by Mr Laws that unambiguously drew attention to Mr Kressley's homosexuality – 'poof', 'pansy', 'pillow biter' and 'fairy' – were colourful was well as alliterative and were therefore apt to remain in the mind. The same can be said of the double entendre in the remarks about 'circles'. There was, as we have said, a distinctly sardonic edge to the comment that 'you can't say' the word 'poof' because 'that's a derogatory word'. These elements of the broadcast, all occurring near the beginning, focused on homosexuality as a key theme. They did so in a manner that cannot be characterised as mere 'joking' and 'humour', because in so far there was humour at all, it had a sharp mocking edge. The tone of voice adopted by Mr Laws (see [20] above) contributed to this outcome. 237 These matters are in our opinion distinctly more important in assessing the overall impact on the casual listener than the fact – on which Mr Reynolds placed significant emphasis – that Mr Laws referred a good deal less frequently to homosexual men generally than to Mr Kressley specifically. 238 Underlying this finding is a proposition regarding the sharp distinction that Mr Reynolds sought to draw between incitement of severe ridicule of a single homosexual man, such as Mr Kressley, and incitement of severe ridicule of homosexual men generally. In our judgment, this distinction is less sharp than might initially appear when account is taken of the fact that if the relevant material is to constitute vilification the incitement must in either case be 'on the ground of' homosexuality. 239 The point that we are making can be briefly expressed as follows. To the extent that in a case such as the present, severe ridicule of an individual homosexual man is incited on the ground of his homosexuality, the viewer, reader or listener is encouraged to believe, unless otherwise persuaded, that other homosexual men are equally deserving of severe ridicule on the ground of their homosexuality. Even if, as in the present case, this process of generalisation is only made explicit on a couple of occasions, the implicit invitation is always present. 240 This is not to say that the distinction drawn by Mr Reynolds is illusory. It is expressly drawn in s. 49ZT(1). But its significance appears us to operate principally at the level of remedy. If Mr Kressley had successfully instituted vilification proceedings, he could have argued that any damages awarded to him should significantly exceed the damages (if any) that would be awarded to another complainant suing on the basis that there had been vilification of homosexual men generally. 241 We were urged to take account of the evidence regarding Mr Laws' high status and reputation as a broadcaster. In so far as this provides grounds for thinking that his statements would be likely to be taken seriously by his audience and would therefore be interpreted as genuinely seeking to induce the reactions suggested by their content, we agree that it is a relevant consideration. 242 As stated earlier, a determination as to whether 'mere' ridicule or 'severe' ridicule is incited by a 'public act' necessarily calls for a value judgment. Our judgment, taking all the foregoing considerations into account, is that the material complained of, when broadcast by Mr Laws in the manner and the circumstances outlined above, had the effect of inciting (in the sense of urging or prompting) a hypothetical 'ordinary reasonable person' in the position of a casual listener to the broadcast to treat homosexual men as objects of 'severe ridicule' (in the sense of extreme derision or mockery). The relevant segments of the broadcast accordingly fell within s. 49ZT(1) of the Act. Did Mr Laws' broadcast fall within the terms of s. 49ZT(2)(c)? 243 Since we have concluded that the relevant statements within Mr Laws' broadcast on Radio 2UE constituted homosexual vilification, we must now determine whether they fell within the exception to liability set out in s. 49ZT(2)(c). 244 As stated earlier, we accept as appropriate the methodology explained by Nettle JA in Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 at [89 – 92]. The first step in the process of determination is accordingly to identify the purpose or purposes for which Mr Laws made the statements. We must then decide whether any one or more of the identified purposes were 'purposes in the public interest' and, if so, whether the requirements of 'reasonableness' and 'good faith' were satisfied. 245 What purpose or purposes did Mr Laws have? In his affidavit, as outlined above at [51 – 53], Mr Laws described his purposes as follows. He aimed to entertain his audience by discussing, 'in a humorous and not overly serious way', various matters relating to the segment on Mr Kressley in the previous evening's program, 'A Current Affair'. These matters would, in his opinion, be of interest to his audience. 246 In summary form, they comprised (a) the depiction on television of Mr Kressley's behaviour, notably in so far as it was 'overtly sexual and in particular homosexual', it seemed to be designed to draw attention to his homosexuality and it included both a series of comments about the sexual attractiveness of some of the men whom he met and a pretended undressing of a commentator appearing on the program; (b) the appropriateness of having 'overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m.'; (c) the appropriateness of having 'an American as a central figure on an iconic Australian day such as Melbourne Cup day'; (d) the appropriateness of 'a gay man from the United States' publicly 'criticising the dress sense of Australian men' and 'judging the fashion sense of Australian women'; and (e) what Mr Laws regarded (and still regards) as 'the overly politically correct regulation of discussion of homosexuality in the media' (this being a matter that he wanted to 'send up'). 247 In cross-examination, Mr Laws effectively conceded (see [67] above) that in the broadcast he did not in fact raise the second of these matters: namely, the 'appropriateness' of having 'overtly sexual behaviour (relevantly homosexual behaviour) and sexual innuendo on television at 6.30 p.m.'. Accordingly, this alleged purpose must be left out of account in our consideration of whether s. 49ZT(2)(c) applies. 248 The claim by Mr Laws to have made the relevant statements for the purpose of entertaining his audience through discussing the remaining matters set out in his affidavit was not challenged in cross-examination. Having regard both to the content of these statements and what was depicted in the segment on 'A Current Affair', we do not regard any of these purposes as inherently implausible. We therefore accept the submission made on his behalf that they were indeed his purposes. 249 Should these purposes be held to be 'purposes in the public interest'? In arguing that these purposes were indisputably within the broad range of 'purposes in the public interest', Mr Reynolds emphasised in particular the following factors: (a) that the comments by Mr Laws related to the contents of a program that had been shown to the public at large on television; (b) that they related also to what both Mr Reynolds and Mr Laws described as an 'iconic' Australian sporting event; and (c) that they involved both 'discussion' and 'exposition'. He maintained that the matters discussed by Mr Laws undoubtedly would be characterised in the law of defamation as 'matters of public interest', within the context of the defence of fair comment. In this context, he cited Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43, in which the conduct of greyhound racing was held to be a matter of public interest. It followed, he said, that Mr Laws' purpose in engaging in this discussion must inevitably be held, having regard to the Tribunal's observations in Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 and John Fairfax Publications v Kazak [2002] NSWADTAP 35, to have constituted a purpose 'in the public interest'. 250 We realise that many people might consider the issues discussed by Mr Laws to be trivial. They were certainly not issues of major importance for the material welfare of the community or for its welfare in any other well-recognised sense. But we agree with Mr Reynolds that the phrase 'matters of public interest' in defamation law extends to many issues that are likewise not of major importance. We agree also that the contents of public television programs and the conduct of a major sporting event such as the Melbourne Cup would qualify as 'matters of public interest'. The two Tribunal cases on which Mr Reynolds relied indicate, in different ways, that the range of purposes covered in s. 49ZT(2)(c) of the Act includes, and indeed is not limited to, 'discussion', 'debate' or 'exposition' relating to 'matters of public interest'. We would add that the judgments of French and Carr JJ in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 indicate that an opinion may be held to have been published for a purpose 'in the public interest' even though it is expressed in humorous or satirical terms. 251 The outcome of these considerations is, in our judgment, that the purposes for which Mr Laws made the statements on Radio 2UE with which these proceedings are concerned were 'purposes in the public interest', within the meaning of s. 49ZT(2)(c) of the Act. 252 Were the statements by Mr Laws broadcast 'in good faith'? In cross-examination, it was put to Mr Laws that his attitude to homosexuals, as demonstrated in the broadcast at issue in this case and in the earlier broadcast that prompted the proceedings in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, was one of hostility. We were invited to make a finding to this effect. 253 In support of this claim, Mr Rofe submitted that when towards the end of the broadcast (see paras 71, 73 and 80 of the transcript at [19] above) Mr Laws said that he was 'very happy for people to be homosexual', that he had friends who were homosexuals and that he 'had nothing, absolutely nothing, homosexuals', he was in 'damage control mode'. Mr Rofe maintained that these assertions of a tolerant attitude towards homosexuals were insincere and should not be taken into account in Mr Laws' favour. 254 Mr Rofe also contended that in so far as conduct by Mr Laws after the broadcast might appear to be conflict with the indications that he was hostile towards homosexuals, it should be disregarded. Such conduct was, in Mr Rofe's submission, no more than an ex post facto attempt to excuse his contravention of the Act. 255 The evidence tendered by Mr Burns included a copy of a letter dated 24 June 2003 in which Mr Ian Sheppard, the General Manager of Radio 2UE, stated that he considered it inappropriate for Mr Laws to use the word 'poof' on air and that he had 'raised this matter with him personally' (see [27] above). It may be argued (though the point was not made by Mr Rofe) that this prior conversation between Mr Sheppard and Mr Laws provides grounds for inferring that when during his broadcast Mr Laws observed that 'you can't say' the word 'poof' because 'that's a derogatory word' (see para 2 of the transcript at [19] above), he was displaying a degree of resentment towards homosexuals. 256 On Mr Laws' behalf, the responses to these contentions included the following. First, during cross-examination Mr Laws denied the allegation of hostility towards homosexuals. Secondly, his statements towards the end of the broadcast were quite sincere, and formed part of an attempt to make it clear to his audience that his criticisms were of 'overtly gay' behaviour only, not of homosexuals generally. Thirdly, the apologies conveyed by him to the homosexual community, notably in the course of meetings with representatives of that community and in publishing a statement in an appropriate newspaper about a fortnight after the broadcast (see [59 – 61] above), further illustrated that he maintained sentiments of good will towards homosexuals. (As noted above at [195], the Appeal Panel held in John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [35] that in determining 'good faith', account may be taken of relevant conduct of the respondent following publication of the vilifying material.) Fourthly, his comments about the use of the word 'poof' on air were attributable to his avowed aim, in making the broadcast, to 'send up' what he regarded as 'the overly politically correct regulation of discussion of homosexuality in the media'. Fifthly, with one exception, already noted (see [247] above), nothing was put to Mr Laws in cross-examination to suggest that the various purposes for which he claimed to have made the broadcast were not his genuine purposes. 257 In our opinion, the third and the fifth of these arguments are compelling. As to the third argument, we would observe that the point made by Mr Rofe is clearly relevant, but that in all the circumstances we think that the steps taken by Mr Laws to apologise to the homosexual community should in this particular context be taken into account in his favour, as evidence supporting his claim that his general attitude to homosexual people is not one of hostility. 258 Even though we have found that the effect of some of the statements in the broadcast was to incite severe ridicule of homosexual men on the ground of their homosexuality, we are satisfied that the broadcast, as a whole, was not motivated by hostility towards homosexuals and that Mr Laws' claim to have made it for purposes that we have found to be 'in the public interest' must be accepted. 259 For these reasons, Mr Laws has sufficiently established 'good faith' under s. 49ZT(2), in accordance with the test that we stated above (at [192]). In including the vilifying statements within his broadcast, he acted in 'the subjectively honest belief' that they were 'necessary or desirable' to achieve the purposes that he had in mind in making the broadcast. He did not act 'dishonestly' or 'in the knowing pursuit of an improper purpose'. 260 (Majority opinion of Deputy President Chesterman and Member Quayle) Were the statements by Mr Laws broadcast 'reasonably'? We have found this to be the most difficult question to have arisen in this case. 261 To a substantial degree, the difficulty arises from the language of s. 49ZT of the Act. For reasons that have already been explained, it must be treated as envisaging what appears at first sight to be an outright contradiction. This is that a 'public act' – such as in this case a radio broadcast – which has the effect of inciting severe ridicule of homosexual men on the ground of their homosexuality may also be found to have been carried out 'reasonably' for one or more 'purposes in the public interest'. What follows from this is that a court or tribunal applying the section may be required – as we are now required – to distinguish (adapting the words of Gleeson CJ in Bropho v HREOC & Anor [2005] HCA Trans 9 (4 February 2005)) between incitement to severe ridicule that is 'reasonable' and incitement to severe ridicule that is 'unreasonable'. 262 The apparent difficulty of this exercise is mitigated by the interpretation of 'reasonably' that we have found to be appropriate. As formulated above at [209], the requirement of reasonableness is satisfied if the relevant 'public act' (a) bears 'a rational relationship' to one or more of the purposes for which it was carried out and (b) is 'not disproportionate to what is necessary' to carry out such purposes. The phrase 'not disproportionate to' is be interpreted in accordance with one of the dictionary definitions of 'reasonable': namely, 'not going beyond the limit assigned by reason'. In resolving the latter question, the matters to be considered include, but are not limited to, the following: (i) the degree to which the vilifying material within the 'public act' cannot be related to any of the relevant purposes; (ii) whether this material is composed in such a way as to include 'gratuitous insults'; (iii) the degree of harm inflicted on those members of the relevant group who have been vilified; and (iv) (as an element of (iii)) the range of dissemination of this material and the degree to which it is likely to be influential.. 263 The submissions made on Mr Burns's behalf did not address in any detail the question whether the requirement of 'reasonableness' was satisfied. 264 Mr Reynolds argued that this requirement was clearly satisfied. Basing himself on the approach to the phrase 'reasonably and in good faith' adopted by French J in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, he argued first that if we found Mr Laws to have acted in good faith, it followed more or less automatically that he must have acted reasonably. 265 For reasons that we explained above at [193], however, we would draw a sharper distinction between 'good faith' and 'reasonableness' than French J did. As we see it, these two concepts depend respectively on subjective and objective factors. We therefore do not accept this submission by Mr Reynolds. 266 He argued also that since Mr Laws was not cross-examined on 'reasonableness' it was not open to us to make an adverse finding on this issue. We do not agree. Since 'reasonableness' is to be resolved objectively, we do not see why we are precluded from making a finding contrary to Mr Laws simply because his evidence and opinion relating to the issue was not challenged. But we do take account of observations, mentioned above, in Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102 at [151]. The Tribunal suggested that 'the ultimate effect of the reasonableness requirement' was, it seemed, 'to call upon' a person who had engaged in vilification to 'explain his or her behaviour' and that when this was done the requirement would 'no doubt… be interpreted quite broadly'. 267 An element of Mr Reynolds' argument on 'good faith' was his demonstration, referring to passages in the relevant transcripts, that there were clear links between substantial portions of Mr Laws' broadcast and both (a) the events depicted on the relevant segment of 'A Current Affair' and (b) the purposes for which Mr Laws made the broadcast. There was, he pointed out, little in the broadcast that did not have these links to the earlier television program and/or to one or more of the purposes envisaged by Mr Laws. 268 This submission is in our opinion more properly directed to the question of reasonableness. As a description of the evidence in this case it is broadly accurate. In our judgment, it sufficiently establishes the first of the two components of the test of 'reasonableness' that we have formulated: that is, that the statements made by Mr Laws during his broadcast did bear a 'rational relationship' to the purposes for which he made the broadcast. 269 It is the second component that to our minds presents the greatest difficulty. Can it be said that Mr Laws' statements were 'not disproportionate to' what was 'necessary' to carry out his purposes? 270 If this question is to be answered in Mr Laws' favour, it must, as we see it, be principally on account of three aspects of his broadcast which we have mentioned previously but have not emphasised. 271 The first is that one of the features of Mr Kressley's conduct as depicted on 'A Current Affair' – being a feature to which Mr Laws expressly referred in his elaboration of the purposes underlying his broadcast – was its 'overtly gay' nature. It would not be overstating matters to say that Mr Kressley engaged consistently in mannerisms that are stereotypically associated with homosexual men and, indeed, flaunted his homosexuality. He portrayed it as an integral part of his public image, as did the presenter who introduced him as 'an American Queer Eye'. 272 Secondly, at the end of the broadcast Mr Laws did explain that his critical comments about Mr Kressley were not intended to reflect on homosexual men generally but only on those homosexual men whose behaviour was 'overtly gay'. Although, as we have said above, this explanation was an insufficient 'antidote' to the vilificatory nature of his earlier comments, it should in our opinion be taken into account in characterising the overall subject matter of his broadcast and the links between this subject matter and the purposes of the broadcast. 273 Thirdly, one of the aims that Mr Laws pursued – as indeed did the program on 'A Current Affair' – was to entertain his audience through dealing with issues 'in a humorous and not overly serious way'. Opinions may differ as to the extent to which he succeeded in being, or indeed appearing to be, humorous. It is sufficient for present purposes to note that this was his purpose. 274 In these circumstances, it can be argued that in presenting a half-serious critical commentary focusing on Mr Kressley's mannerisms, on his self-proclaimed homosexuality and on the depiction of these matters on a television program, it was not 'disproportionate' for Mr Laws to refer to Mr Kressley's homosexuality, to express opinions about his mannerisms as depicted on 'A Current Affair' and to employ colourful epithets which homosexual men sometimes use for each other. By contrast, if Mr Kressley, while using effeminate mannerisms, had not consistently drawn attention to his homosexuality, it would clearly have been 'disproportionate' for Mr Laws to draw attention to this matter to the extent and in the manner that he did. 275 In our opinion, these considerations warrant a finding that all of the vilifying material within the broadcast was related, indeed closely related, to one or more of the purposes underlying the broadcast. It also indicates that the epithets for homosexual men that Mr Laws used cannot be regarded as wholly 'gratuitous'. These are factors suggesting that the vilifying material was not 'disproportionate', in the sense explained above 276 On the other hand, we are satisfied, as indeed Mr Laws appeared to be after taking account of the reaction that his broadcast prompted, that his statements were harmful, to a significant extent, to homosexual people. Among the reasons for this were the considerable size of his nationwide audience and his acknowledged status and influence as an eminent broadcaster. Although his statements were in one sense ephemeral, like anything said on radio, they had considerable resonance within Australia. 277 We should make it clear at this point, however, that in assessing 'reasonableness' we do not take into account the steps taken subsequently by Mr Laws by way of conveying an apology to homosexual people. It appears to us that the 'reasonableness' of a public act must be assessed as at the time when it was 'done'. Although observations by the Appeal Panel in John Fairfax Publications v Kazak [2002] NSWADTAP 35 at [35] may appear at first sight to be in conflict with this view, we believe that they are in fact consistent with it. 278 The extent of the harm caused by Mr Laws' statements, having regard particularly to the size of his audience and his status and influence as a broadcaster, must be weighed against the factors, identified earlier, that in our judgment point towards a finding that the 'public act' constituted by the broadcast was carried out 'reasonably'. As was the case in arriving at our conclusion under s. 49ZT(1), our task in this context necessarily calls for a value judgment. 279 Our decision as to 'reasonableness', after careful consideration, is that Mr Laws has succeeded in establishing the necessary ingredients. He has provided an explanation for his behaviour in making the vilifying statements. They had a 'rational relationship' to the purposes for which he made the broadcast during which they occurred and in all the circumstances were not 'disproportionate' to what was 'necessary' to carry out those purposes. 280 In consequence of this ruling, the complaint by Mr Burns falls within the exception in s. 49ZT(2)(c) of the Act. Concluding observations 281 In very broad terms the resulting decision may be characterised as follows. 282 We have decided first that the statements made by Mr Laws caused harm to homosexual men in a way that s. 49ZT(1) seeks to prevent. This conduct on his part does him no credit. As an experienced and reputable commentator, he should have been aware – and indeed he subsequently stated that he had become aware – that his statements were pernicious in this respect. 283 We have also decided, by majority, that the provisions of s. 49ZT(2), implementing as they do a broad policy of preserving freedom of expression within acceptable limits, establish a ground of defence for Mr Laws. On applying these provisions, we conclude that he is not to be held liable under the Act for a misguided and unfortunate commentary on issues that, within a wide range permitted by this subsection, are to be regarded as matters of public interest. 284 With regard to two crucial elements of s. 49ZT(2) – 'reasonably' and 'purposes… in the public interest' – we have found the subsection particularly difficult to interpret and apply. The only solution to these difficulties is, we think, legislative amendment. 285 Our decision, by majority, is that the complaint by Mr Burns must be dismissed. 286 The parties foreshadowed that after our decision was published they would wish to be heard on the question of costs, in relation to both the substantive hearing of the complaint and the preceding application by Mr Laws for it to be summarily dismissed. This question is to be determined under s. 110 of the Act, which provides for the parties to pay their own costs unless in the Tribunal's opinion there are 'circumstances that justify' a costs order. 287 We direct as follows:- (a) Any application for costs in relation to these proceedings, together with supporting submissions, must be filed and served within 28 days of the date of these reasons. (b) Within a further 28 days, the opposing party is to file and serve submissions in reply. (c) The matter of costs is to be resolved 'on the papers', under s. 76 of the Administrative Decisions Tribunal Act 1997, unless either party applies, giving reasons, for a hearing to take place. 288 (Minority opinion of Member Mooney) Were the statements by Mr Laws broadcast 'reasonably'? I agree with the decision of the Tribunal except as to the final issue of whether it could be said that the respondent, Mr Laws, acted reasonably. 289 As set out above at [262], this issue involves consideration of the questions of whether Mr Laws' action bore a sufficient relationship to his purposes and whether his action could be characterised as 'disproportionate' to his purposes. I agree with the ruling at [279] that Mr Laws was able to show the necessary 'rational relationship' of the material to his purpose. However, I disagree that he has succeeded in establishing the necessary proportionality between his statements and the purposes that the Tribunal, at [248], accepts he had in making them. 290 The Tribunal states that the issue of proportionality involves consideration of a number of matters, including the degree to which the material relates to the relevant purposes, whether the material could be said to include gratuitous insults and the degree of harm inflicted on the relevant persons vilified by the material. The Tribunal has found, at [242] and [282] above, that the material did have the effect of vilifying homosexual men. 291 In considering the broadcast Mr Rofe submitted that the Tribunal ought to be careful not to limit itself to the words of the transcript but to have regard to the tone. Mr Reynolds also submitted it was important that the Tribunal not over examine individual words and phrases but bear in mind that a listener would be hearing the broadcast only once and as a whole. 292 In considering the issue of proportionality I have been particularly influenced by the tone of the broadcast. It is useful, in considering the first two matters set out at [286] above, to compare the tone used by Mr Kressley in the television program with the tone used by Mr Laws in his broadcast. 293 Mr Kressley's tone as evidenced by the segment of 'A Current Affair' was light-hearted, frivolous and flirtatious. Although perhaps exaggeratedly fluffy, it was not wholly unsuited to the context of the 'Fashions On The Field' and the setting of a race day marquis where elaborately dressed guests were drinking champagne and eating canapés. 294 Mr Laws' tone, in contrast, despite his tongue-in-cheek opening is, in the main, quite serious. In spite of the humour, the tone flavours the broadcast in such a way as to make his remarks sound unnecessarily vindictive. This tone, in combination with the language of smutty sexual innuendo, contributes to an overall effect that could be described as 'gratuitously insulting' to Mr Kressley and, for the reasons set out above at [239], to homosexual men generally. 295 The final matter to be considered in weighing up the question of proportionality is the possible degree of harm the material may cause. 296 Following the wording of Lee J, dissenting, in Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 (quoted above at [177]), such harm in this case would be the extent to which persons who held homophobic views, or persons susceptible to the formation of such opinions, may be reinforced, encouraged or emboldened in such attitudes by the broadcast of the material which, irrespective of the intent and purpose of Mr Laws, was capable of being seen by such persons as providing support or justification from an authoritative source for views grounded on antipathy to homosexuality. 297 The reaction of the third caller to Mr Laws' comments was such that he could conceivably be characterised as a person falling within the above description, namely a person encouraged or emboldened in his attitudes by Mr Laws' views, to the extent that his motivation in calling was primarily to identify himself as someone who had, on an occasion in the past, subjected a homosexual man to ridicule, involving, on his own account of the incident, a minor assault. 298 At paragraph [55] of this decision the Tribunal noted that Mr Laws, in discussing his audience, had in mind the impact his comments would have on, among others, 'red-blooded Australian men'. In his broadcast he refers specifically to 'hard drinking hard talking men'. It is noteworthy that the third caller, Warren, was keen to identify as a heavy drinker and that he also, in discussing the Queer Eye show referred to the need to get 'some like, hard core' people on the show 'and see if they can't really straighten them out'. 299 That Mr Laws knows his audience well is not to be doubted and that his audience would include persons, such as 'red-blooded', 'hard drinking hard talking' men who held, or would be susceptible to forming, homophobic opinions is also likely. 300 Whether or not Mr Laws' views would be perceived as 'authoritative' is discussed earlier in this decision in terms of his influence and reputation. A further consideration in assessing possible harm is the range of dissemination of the material. 301 As discussed earlier, it was not in dispute that Mr Laws was influential and that his program was broadcast widely across Australia. The representatives for Mr Burns drew the Tribunal's attention to a description of Mr Laws by Radio 2UE as 'Australia's most successful and influential broadcaster' and as reaching over 2 million people. At [66] the Tribunal refers to Mr Laws' concession that his status tended to 'give weight' to his views. 302 The evidence in the open letter described above at [26] was that seven organisations representing homosexual people were strongly critical of the comments made by Mr Laws for the reason that they believed it would lead to an increase in violence against gays and lesbians. This fear of the harm that would flow from the broadcast was based partly on research that the perpetrators of such violence were men who were, inter alia, 'strongly influenced by what they hear from both their peers and in the media'. For the reasons set out above, it seems likely there was justification for that fear. 303 From his own testimony, when approached by the representatives of the gay and lesbian community, Mr Laws was genuinely surprised at their perception of the degree of harm that would flow from his comments and sincere in his regret for any consequences that he did not intend. His actions in restitution are outlined earlier in this decision. 304 In conclusion, for the reasons of its gratuitously insulting tone and the degree of harm that it may cause, I have decided that the vilifying comments made by the respondent in his broadcast were sufficiently disproportionate to his purposes in making it that, although he acted in good faith, he cannot be said to have acted reasonably. Accordingly, I find that he has failed to establish the defence contained in the homosexual vilification provisions of the Act. 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