Set aside by Appeal : Set aside by appeal on 15/12/00 CITATION: Western Aboriginal Legal Service Limited -v- Jones & anor [2000] NSWADT 102 DIVISION: Equal Opportunity Division APPLICANT Western Aboriginal Legal Service Limited PARTIES: FIRST RESPONDENT Alan Jones SECOND RESPONDENT Radio 2UE Sydney Pty Limited FILE NUMBER: 161 of 1996 HEARING DATES: 03/04/2000, 04/04/2000 SUBMISSIONS CLOSED: 04/04/2000 DATE OF DECISION: 07/31/2000 BEFORE: Rees N - Judicial Member at 1; Silva A - Member at 1; Luger M - Member at 166 APPLICATION: Racial - Vilification - Vilification - Racial MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Radio 2UE Sydney v Parker (1992) 29 NSWLR 449 Qantas Airways Ltd v Squires (1984) EOC 92-102 Pearce v Glebe Administration Board (1985) EOC 92-131 Australian Iron Steel Pty Ltd v Banovic (1989) 168 CLR 165 Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26 Boehringer Ingelheim Pty Ltd v Reddrop [1984]2 NSWLR 13 Leves v Haines (1986) EOC 92-176 Harou-Sourdon v TCN Channel Nine Pty Limited (1994) EOC 92-604 CASES CITED: Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701 R v Marinkovic and Marinkovic (1986) EOC 92-841 He Kaw Te v R (1985) 157 CLR 523 Waters v Public Transport Corporation (1993) 173 CLR 359 IW v City of Perth (1999) 91 ALJR 943 Farquhar v Bottom [1980] 2 NSWLR 380 Nealy v Johnston (1989) 10 CHRR 6450 Parmiter v Coupland (1840) 6 M.W 105 at 108; 151 ER 340 Bellino v Australian Broadcasting Commission (1996) 185 CLR 183 London Artists v Littler [1969] 2 QB 375 APPLICANT REPRESENTATION: D Black, barrister RESPONDENT R Campbell, barrister ORDERS: 1. Complaint substantiated against both respondents ; 2. The first and second respondents to broadcast an apology in the terms set out in Annexure A to these orders within 28 days of the date of these orders ; 3. The first respondent to send a letter of apology to the complainant in the terms set out in Annexure B to these orders within 28 days of the date of these orders ; 4. Liberty to apply in relation to the implementation of orders 2 and 3 and the question of costs. REASONS FOR DECISION OF PROFESSOR N REES AND MR A SILVA Introduction 1 In this case the complainant, Western Aboriginal Legal Service Limited, alleges that both the first respondent, Mr Alan Jones, and the second respondent, Radio 2UE Sydney Pty Limited, breached the racial vilification provisions of the Anti-Discrimination Act 1977 (the Act) in a broadcast on radio station 2UE on 28 November 1995. 2 The case was heard by the Tribunal in Sydney on 3 and 4 April 2000. All parties were represented by counsel: the complainant by Ms Black and both respondents by Mr Campbell. During the course of the hearing the Tribunal made a number of procedural rulings. In this statement of reasons we have set out those rulings, and the reasons for them, together with the Tribunal's reasons for concluding that the complaints of unlawful racial vilification against both respondents have been substantiated. 3 In the paragraphs which follow we have set out the history of these proceedings, the issues of procedure which arose for determination, the evidence adduced and the submissions made in relation to the complaints of unlawful racial vilification, as well as our reasons for deciding this matter in favour of the complainant and making consequential orders. History of the proceedings 4 This case has a long and complex procedural history. The summary which follows is drawn from the report of the President of the Anti-Discrimination Board (the President), which was tendered in evidence, the transcripts of the various directions hearings before this Tribunal (and the former Equal Opportunity Tribunal) and the 'pleadings' filed by the parties in compliance with the directions of the Tribunal (and the former Equal Opportunity Tribunal). 5 On 5 December 1995 a letter was sent to the President on the letterhead of the complainant alleging that comments made by the first respondent on radio station 2UE on 28 November 1995 had breached section 20C (1) of the Act. The letter, which was expressed in the third person, was signed by Noel Gillon above the title 'Co-ordinator, Western Aboriginal Legal Service Limited'. The letter commenced with the statement "It has come to our attention that the announcer for 2UE radio in Sydney, Mr Alan Jones, has made comments…" and concluded with the statement "We request the Board to investigate this matter further". 6 Annexed to the letter was a transcript of the remarks allegedly made by the first respondent on 28 November 1995 on 2UE. The transcript reads: Just before we go any further. Yesterday an Aboriginal women who went into a real estate agency in Dubbo last year, and wanted to rent a property, and was told there weren't any. And then the Aboriginal women sent a white friend of hers in to ask for a property, and she got one. So, the Aboriginal woman argued discrimination and she got an award of six thousand dollars. Now I think that's a joke. And I'll tell you why I think it is. If I owned the only property on the real estate agent's list, the only property for letting, and a bloke walked through the door, and I don't care what colour he is, looking like a skunk and smelling like a skunk, with a sardine can on one foot and sandshoe on the other, and a half drunk bottle of beer under the arm, and he wanted to rent the final property available and it was mine, I'd expect the agent to say no without giving reasons. What discrimination would the agent be guilty of then? 7 On 15 December 1995 the President wrote to the first respondent. Relevant portions of that letter are as follows: I have received a complaint under the NSW Anti-Discrimination Act 1977 from the Western Aboriginal Legal Service Ltd. The complaint alleges unlawful vilification on the grounds of race in relation to your public statements surrounding the Equal Opportunity Tribunal decision in Lamb v Samuel's Real Estate Agency Dubbo , broadcast on 2UE on 28 November 1995. The complaint has been lodged against yourself and the radio station 2UE. The Station Manager of 2UE has been notified directly…. The complainant's allegations are set out for your consideration in an attachment to this letter…. This complaint appears to involve section 20C of the NSW Anti-Discrimination Act 1977, which in brief state (sic) that 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 race of the person or group of persons. 8 The attachment to the President's letter which was headed, 'Complaint Summary – Western Aboriginal Legal Service Ltd', included the following statements: The complainant, Western Aboriginal Legal Service Ltd, a representative body for Aboriginal people, has alleged that the public announcements by Mr Alan Jones during his morning talk back programme on 28 November 1995 relating to the recent decision of the Equal Opportunity Tribunal in Jennifer Lamb v Samuels Real Estate Agency Pty Ltd were racial (sic) vilifying towards Aboriginal people. The complainant says that they believe that Mr Jones's introduction to the subject, as well as the comments made in relation to people calling him to comment on the programme, showed serious contempt towards Aboriginal people and severely ridiculed Aboriginal people… 9 The President also wrote a letter on 15 December 1995 to Mr Ian Wallace, who was described in that letter as 'Station Manager, 2UE Sydney'. The letter to Mr Wallace was substantially the same as the one sent by the President to the first respondent. In the first paragraph of the letter to Mr Wallace the President stated that "The complaint has been lodged against Mr Jones and the radio station 2UE". 10 The next step, which is of any relevance to these proceedings occurred on 21 August 1996 when the President wrote two letters to the Registrar of the Equal Opportunity Tribunal. The first letter, which is headed "Complaint of Western Aboriginal Legal Service Ltd on behalf of Noel Gillon against Alan Jones," reads as follows: On the 6th of December, 1995 I received a complaint under the NSW Anti-Discrimination Act 1977 from the Western Aboriginal Legal Service Ltd on behalf of Noel Gillon, alleging discrimination on the ground of racial vilification. The Board has attempted to resolve this complaint through conciliation, but has been unsuccessful. I am now referring the complaint to the Equal Opportunity Tribunal under section 94(1) of the Anti-Discrimination Act. A report of my investigation of the complaint is attached. 11 The President's second letter to the Registrar is headed "Complaint of Western Aboriginal Legal Service Ltd on behalf of Noel Gillon against Ian Wallace, 2UE Sydney". The contents of the second letter are precisely the same as the first letter to the Registrar. 12 On 26 August 1996 the Registrar wrote to Bush Burke and Company (who had been nominated in the President's report as the solicitors for both the first respondent and Mr Wallace) and to the complainant to advise them that the complaints had been listed for directions before the Equal Opportunity Tribunal on 5 September 1996. At that directions hearing the Equal Opportunity Tribunal's 'usual directions' were made which required the parties to file and serve 'pleadings' (Points of Claim and Points of Defence) and statements of witnesses. 13 Thereafter the progress of the matter was slow as neither the complainant nor the first respondent and Mr Wallace complied with the time lines in the 'usual directions'. However, Points of Claim and Points of Defence were filed and in May 1998 the Registrar listed the matter for hearing on 19, 20 and 21 August 1998. A directions hearing was conducted on 7 August 1998 as it seemed likely from the documents which had been filed that the matter would not be ready to proceed to hearing on 19 August 1998. As those concerns proved to be well founded the hearing dates were vacated and procedural directions were made on both 7 and 19 August 1998. Further directions were made on 18 December 1998, on which date the complainant filed a Notice of Discontinuance in relation to the complaint against Mr Wallace (No. 162 of 1996). As the Tribunal was constituted by a judicial member sitting alone on that date the complaint against Mr Wallace was not formally dismissed. This step was taken on 10 February 1999 when the Tribunal ordered that the question of costs in relation to that matter be reserved. 14 The matter next came before the Tribunal on 23 June 1999, upon the application of the complainant made pursuant to section 98 of the Act, to join the second respondent, Radio 2UE Sydney Pty Limited, as a respondent to this complaint (No. 161 of 1996). This application, which was opposed by the solicitor for the second respondent, was granted and consequential orders were made concerning the filing of amended 'pleadings'. 15 The final directions hearing occurred on 14 December 1999 when further orders were made concerning the filing of evidence and hearing dates were allocated to the case. 16 From the time this complaint was first referred to the Tribunal the complainant has filed three sets of Points of Claim. In the first document, dated 2 October 1996, the complainant is identified as Mr Noel Gillon. The Western Aboriginal Legal Service Limited is referred to as "a representative body that has a sufficient interest in the complaint as the conduct complained of is a matter of genuine concern to the body because of the way such conduct has the potential to adversely affect the interests and welfare of Aboriginal people". Points of Defence were filed in response to this document on 1 December 1997. 17 On 25 May 1999, following the formal dismissal of the complaint against Mr Wallace, a further document titled 'Amended Points of Claim' was filed. In this document the complainant was described as Western Aboriginal Legal Service Limited. In paragraph 1 of the document it was claimed that "The Complaint should be dealt with as a representative claim". 18 On 27 July 1999, following the direction that Radio 2UE Sydney Pty Limited be joined as a respondent, a document titled 'Further Amended Points of Claim' was filed. In this document the complainant was described as Western Aboriginal Legal Service Limited. It was described as "a representative body for Aboriginal Persons within New South Wales". Paragraph 2 stated that "The Complainant seeks to have the matter dealt with as a representative complaint". On 15 September 1999 both respondents filed a document titled 'Defence to Further Amended Points of Claim'. The respondents either denied or did not admit the complainant's claims and, whilst denying that there had been any breach of section 20C(1) of the Act, relied upon the matters set out in section 20C(2)(a) and (b) in the event that they were found to have breached section 20C(1). The documents referred to in this paragraph were the final 'pleadings' in this case. 19 In accordance with a direction made by the Tribunal Ms Black, for the complainant, filed written submissions on 28 March 2000. Mr Campbell responded with written submissions filed on 31 March 2000 and Ms Black filed submissions in reply on 3 April 2000. 20 During the course of the hearing the Tribunal gave rulings in relation to four procedural matters. They were: (1) The respondents' challenge to the validity of the complaint (2) The complainant's application that the complaint proceed as a representative complaint (3) The prohibition on publication, without the consent of the Tribunal, of the names of the parties and witnesses (4) Access by the media to the exhibits in the case. In the paragraphs which follow we have set out the background to these matters and the Tribunal's rulings. Procedural Issue (1) – Challenge to Validity of Complaint. 21 As we indicated in paragraph 18, the complainant sought to have this complaint dealt with as a representative complaint. Section 102 of the Act provides that: At an inquiry held in respect of a representative complaint, the Tribunal shall determine, as a preliminary matter, whether that complaint should be dealt with as a representative complaint. The Tribunal received evidence and heard submissions from the parties in relation to this issue. The evidence comprised two affidavits by Ms Elizabeth Shirlaw, a solicitor employed by the complainant, and the report of the President. Ms Shirlaw gave brief oral evidence in addition to her affidavits and she was cross-examined by Mr Campbell. 22 The relevant effect of Ms Shirlaw's first affidavit (Exhibit 1) was to place before the Tribunal the annexures to that document which were the Memorandum and Articles of Association of Western Aboriginal Legal Service Limited. Those documents revealed that the company was one limited by guarantee. Relevant objects of the company included providing legal services and assistance to Aboriginal and Islander persons and "to bring matters affecting the legal rights of Aboriginals before the public and to the attention of the appropriate authorities". The Articles of Association indicated that only Aboriginal persons could be voting members and directors of the company. We understood there to be no challenge to this evidence. 23 Ms Shirlaw's second affidavit (Exhibit 2) had the effect of placing before the Tribunal a tape recording of a radio broadcast made by the first respondent on the morning of 28 November 1995 on radio station 2UE. It was not disputed that the tape accurately recorded all relevant statements made by the first respondent in a radio broadcast on 2UE on the date in question. Also annexed to Ms Shirlaw's affidavit was a transcript of the tape recording. Mr Campbell objected to the admissibility of the transcript citing Radio 2UE Sydney v Parker (1992) 29 NSWLR 449 at 473 as authority for the proposition that a transcript of a broadcast should not be given to a jury in a defamation action. By analogy, it was argued that the transcript should not become evidence in this case because the tape was the best evidence and the transcript had the capacity to obscure or alter the way in which the ordinary listener would have heard the broadcast. The Tribunal decided to admit the transcript into evidence noting that whilst it was not bound by the rules of evidence it was mindful of the fact that the tape was clearly the best evidence of the broadcast. The transcript was simply an aid which should be used with great caution. 24 The relevant effect of the President's report was to place before the Tribunal the President's correspondence with the parties which has been described in paragraphs 5 - 9. The report also contained the President's letters referring the complaints to the Tribunal pursuant to section 94(1) of the Act. 25 Mr Campbell, for the respondents, opposed the application that the complaint be dealt with as a representative complaint. His primary submission, however, was that the complaint before the Tribunal was not valid thereby rendering it unnecessary to consider the representative complaint issue. Mr Campbell submitted that if the Tribunal did not have before it a valid complaint the proceedings should be terminated. 26 In order to describe Mr Campbell's submissions in relation to the invalidity of the complaint before the Tribunal it is necessary to make reference to parts of section 88 of the Act, which deals with making complaints to the President about alleged contradictions of the Act, and to the definitions of some key words in that section. Those definitions are found in section 87, which is the first section found in Part 9 of the Act which is titled 'The functions of the President, the Tribunal and the Board'. 27 Section 88(1), (1A), (1B), (1C) and (1D) of the Act read as follows: 88(1) Except as provided by this section, a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person (other than a contravention in respect of which a specific penalty is imposed) may be lodged with the President by: (a) a person on the person's own behalf, or (b) a person on the person's own behalf and on behalf of another person or other persons; or (c) 2 or more on their own behalf; or (d) 2 or more persons on their own behalf and on behalf of another person or other persons. 88(1A) A complaint may be lodged under subsection (1) by a representative body on behalf of a named person or named persons, but only if the representative body has satisfied the President that: (a) each person on whose behalf the complaint is lodged consents to the complaint being lodged by the body on his or her behalf; and (b) the body has a sufficient interest in the complaint. 88(1B) A representative body has a sufficient interest in a complaint only if the conduct that constitutes the alleged contravention concerned is a matter of genuine concern to the body because of the way conduct of that nature adversely affects or has potential to adversely affect the interests of the body or the interests or welfare of the group of people it represents. 88(1C) The President may require a representative body which has lodged a complaint to nominate a person to appear for the representative body in conciliation proceedings concerning the complaint before the President. 88(1D) A vilification complaint cannot be lodged under this section unless each person on whose behalf the complaint is lodged: (a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention concerned; or (b) claims to have the characteristic and there is no sufficient reason to doubt that claim. 28 Some of the key words and terms are defined in section 87 as follows: 87 In this Part – "complainant", in relation to a complaint, means the persons or each of the persons by whom that complaint is lodged. "complaint" means: (a) a complaint, not being a representative complaint, lodged under section 88, and (b) a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, and includes a representative complaint. "representative body" means a body (whether incorporated or unincorporated) which represents or purports to represent: (a) a group of people within New South Wales, or (b) a group of people within New South Wales on the basis of their homosexuality. (whether or not the body is authorised to do so by the group concerned) and which has as its primary object the promotion of the interests and welfare of the group. "representative complaint" means a complaint lodged under section 88 by a person on behalf of himself or herself and other persons, or two or more persons on behalf of themselves and other persons, and which is treated by the Tribunal as a representative complaint. "respondent", in relation to a complaint, means the person or each of the persons against whom that complaint is lodged. "vilification complaint" means a complaint in respect of a contravention of section 20C, 38S, 49ZT or 46ZXB. 29 As we understood Mr Campbell's submission it was that the complaint originally lodged with the President was one made pursuant to section 88(1A) by a representative body, Western Aboriginal Legal Service Limited, on behalf of a named person, Mr Noel Gillon. This complaint, according to Mr Campbell, was the complaint referred to the Tribunal by the President pursuant to section 94(1) and it is this complaint into which the Tribunal is required to conduct an inquiry pursuant to section 96 of the Act. As revealed in paragraph 18 of these reasons, the complaint has been 'pleaded' as one in which the Western Aboriginal Legal Service Ltd is the complainant, not as a representative of Mr Gillon, but as "a representative body for the Aboriginal Persons within New South Wales". The complainant has sought a determination from the Tribunal, pursuant to sections 102 and 103 of the Act, that the complaint be dealt with as a representative complaint. According to Mr Campbell the removal of Mr Gillon from these proceedings, in the sense that the Western Aboriginal Legal Service Ltd no longer seeks to represent him as a named person, is a fatal flaw which deprives the complaint of continuing validity. Thus, as we understand the submission, the Tribunal has no jurisdiction to conduct an inquiry because it no longer has before it a valid complaint within the meaning of the Act. Further, any defect in the complaint caused by the 'removal' of Mr Gillon from the proceedings cannot be remedied by characterising the complaint as one falling within section 88(1) of the Act because the Western Aboriginal Legal Service Limited is not a "person" within the meaning of that sub-section. According to Mr Campbell the reference in section 88(1) to a "person" who may lodge a complaint with the President is a reference to a natural person only. Consequently, a corporation, such as the Western Aboriginal Legal Service Limited, is incapable of lodging a valid complaint pursuant to section 88(1). 30 The Tribunal rejected Mr Campbell's application during the course of the hearing on 3 April 2000 and we now set out our reasons for that ruling. At the core of Mr Campbell's submissions is the assumption that a representative complaint and a complaint lodged by a representative body are one and the same thing and the contention that a corporation cannot be a "person" empowered to lodge a complaint pursuant to section 88(1). In our opinion both the assumption and the contention are incorrect. 31 Part 9 of the Act has not been drafted with great clarity. The definitions in section 87 add to the difficulties in interpretation. The only way in which any person, other than the relevant Minister (see section 95), may take any legal action in response to an alleged contravention of the substantive provisions of the Act is to lodge a "complaint" with the President pursuant to section 88 of the Act. In paragraph (a) of the definition of "complaint" that word is defined to mean a "complaint, not being a representative complaint, lodged under section 88" yet the last line of the definition states that it "includes a representative complaint". What does this mean? 32 Section 88(1), when in slightly different form, was considered by the Court of Appeal in Qantas Airways Ltd v Squires (1984) EOC 92-102 and by the former Equal Opportunity Tribunal in Pearce v Glebe Administration Board (1985) EOC 92-131. In Qantas Airways Ltd v Squires, Priestley JA stated (at p. 76, 017): Section 88 of the Act permits one person to lodge a complaint either solely on his own behalf or on his own behalf and on behalf of other persons. I will at times call these first and second category complaints….Section 88 appears to envisage that every complaint will at least be on behalf of the person lodging it whilst some will be so framed as to be capable of being said to be lodged on behalf of both the person lodging it and other persons as well. If a complaint of the latter kind reaches the Tribunal and the person lodging it wants it to be treated as a representative complaint in the sense defined in section 87, he must ask the Tribunal to determine that it be dealt with as a representative complaint in that sense; section 102. If the Tribunal so determines, the complaint, then, and only then, becomes a representative complaint as defined in section 87. In that case Hutley JA also expressed the opinion that a complaint may only become a representative complaint when the Tribunal has made a determination pursuant to section 102 of the Act. 33 In Pearce v Glebe Administration Board the Equal Opportunity Tribunal sought to summarise the operation of section 88 in cases where a complaint may ultimately become a representative complaint. In undertaking this summary that Tribunal had the benefit of the Court of Appeal decision in Qantas Airways Ltd v Squires. Whilst the Equal Opportunity Tribunal chose to employ different terminology to that used by Priestley JA - it referred to individual and class complaints rather than to first and second category complaints - its statement of the law is, in our opinion, an accurate summary of the views expressed by Hutley and Priestley JJA in Qantas Airways Ltd v Squires. It stated (at p. 76, 310): In my opinion the operations and effect of the representative complaint provisions of the Act may be summarised as follows: Section 88 of the Act contemplates two different kinds of complaint. A complaint of discrimination may be lodged by one person on his own behalf, or by two or more persons on their own behalf. Whatever the number of complainants may be it is convenient to describe this kind of complaint as an "individual" complaint. The Act also contemplates that a complaint of discrimination may be lodged by one person on behalf of himself and other persons, or by two or more persons on behalf of themselves and other persons. Whatever the number of complainants may be this kind of complaint may with respect to Priestley J.A. more conveniently be described as a "class" complaint. The words "individual" and "class" as descriptions of a complaint are not to be found in the statute. The expression "individual complaint" is in common use among those who work in the field of law as a description of the first kind of complaint. The expression "class complaint", although not in common use has been adopted so as to differentiate a complaint on behalf of one or more complainants and others at the lodgement stage from a "representative complaint", a term which is specially defined in sec. 87 so as to import two requirements: first, lodgement as a complaint on behalf of one or more complainants and others and secondly, treatment by the Tribunal as a representative complaint. A complaint of that kind can only mature into a representative complaint after it has been referred to the Tribunal and the Tribunal has determined, pursuant to sec. 102 and 103, that it should be dealt with as a representative complaint. It is better therefore to avoid confusion by adopting a different expression to describe such a complaint during the period from lodgement until the Tribunal makes its determination under sec. 102 and 103. 34 The statements of the law from these cases assist understanding of the definition of "complaint" in section 87. We have already noted, however, that whilst paragraph (a) of the definition of "complaint" defines that word to mean "a complaint, not being a representative complaint , lodged under section 88", the last line of the definition of "complaint" states that it "includes a representative complaint." There is an explanation. 35 It appears that the word "complaint" is capable of a slightly different meaning depending upon where it is used in Part 9 of the Act. For example, the word "complaint" is found in sections 106, 111, 112 and 113 which fall within Division 3 of Part 9. These sections deal with various aspects of proceedings before the Tribunal, including procedural matters and remedies. It seems clear that in each instance "complaint" is used in a generic sense; it includes a representative complaint as well as what the Equal Opportunity Tribunal called in Pearce 'an individual complaint' and a 'class complaint'. The word "complaint" is also found in sections 89, 89A, 89B, 90, 90A, 91, 92 and 94 which fall within Division 2 of Part 9. These sections deal with various responsibilities and functions of the President. Bearing in mind the Court of Appeal decision in Qantas Airlines Ltd v Squires, it seems clear that when the word "complaint" is used in these sections in Division 2 of Part 9 it is used in a narrower sense than the way in which it is used in Division 3, for whilst a complaint is still with the President it cannot be a representative complaint. A complaint may only become a representative complaint when the Tribunal has made a determination pursuant to section 102. The definition of "representative complaint" in section 87 is completely in keeping with this conclusion. 36 It appears that considerable confusion has been generated by amendments to the Act which expressly permitted a complaint to be lodged by a representative body and which added the definition of "representative body" to section 87. Section 88(1A), (1B) and (1C) were added to the Act by the Anti-Discrimination (Racial Vilification) Amendment Act 1989. Those provisions were subsequently amended by both the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 and the Anti-Discrimination (Amendment) Act 1994. Section 88(1D) was also added by the latter Act. We understood Mr Campbell's submission to be that the complaint before this Tribunal was one originally lodged pursuant to section 88(1A), being a complaint lodged by a representative body on behalf of a named person. There is nothing in the original complaint made to the President, which is referred to in paragraph 5, which indicates that it was made pursuant to section 88(1A). Certainly, the President's letter to the Registrar of the Equal Opportunity Tribunal, which is reproduced in paragraph 10, appears to indicate that the President had cast the complaint as one made pursuant to section 88(1A), even though there is no specific reference to that sub-section in his letter. Be that as it may we believe that the complainant is entitled to contend, as it has, that the original complaint was a 'class' complaint made pursuant to section 88(1) and to seek a determination from the Tribunal that the complaint proceed as a representative complaint. 37 An examination of section 113 of the Act, which sets out the relief which may be ordered if the Tribunal finds a complaint substantiated, reveals that there must be a distinction between a representative complaint and a complaint lodged by a representative body. That section states: (1) After holding an inquiry, the Tribunal may: (a) Dismiss the complaint the subject of that inquiry, or (b) Find the complaint substantiated and do any one or more of the following: (i) Except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to the section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, (ii) Make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, (iii) Except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant, (iiia) in respect of a vilification complaint, order the respondent to publish an apology in respect of the matter the subject of the complaint or order the respondent to publish a retraction in respect of the matter (or order both) and, as part of the order, give directions concerning the time, form, extent and matter (or order both) and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both), (iiib) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination, (iv) make an order declaring void in whole or in part and either ab initio or from such other time as is specified in the order any contract or agreement made in contravention of this Act or the regulations, or (v) decline to take any further action in the matter. (2) The power of the Tribunal to award damages to a complainant shall, in the case of a complaint lodged by a representative body, be taken to be a power to award damages to the person or persons on behalf of whom the complaint is lodged and not to include a power to award damages to the representative body. (3) In making an order for damages under this section concerning a complaint lodged on behalf of a person or persons, the Tribunal may make such order as it thinks fit as to the application of those damages for the benefit of the person or persons. (4) If 2 or more vilification complaints are made in respect of the same public act of the respondent and those complaints are found to be substantiated, the Tribunal must not make an order or orders for damages under this section that would cause the respondent to pay more than $40,000 in the aggregate in respect of that public act. 38 Section 113(1)(b)(i) makes it clear that damages may not be awarded in a representative complaint. However, it is also clear from reading section 113 (2) and (3) that damages may be awarded in the case of a complaint lodged by a representative body. The only way of making sense of these provisions is to conclude that a representative complaint and a complaint lodged by a representative body are different. A close reading of section 88(1A) supports this conclusion. Section 88(1A) either confirms or expands the operation of section 88(1)(b) by permitting a complaint to be lodged by a representative body on behalf of a named person or persons. It does not operate to preclude there being other types of complaints lodged pursuant to section 88(1)(b). The major practical consequence of a complaint being made pursuant to section 88(1A) is that if the case ultimately makes its way to the Tribunal the relief referred to in section 113(2) and (3) becomes available if the complaint is substantiated. As we have indicated earlier, a different procedural course must be followed and different relief is available in a representative complaint. In our opinion the law concerning representative complaints is still as it was stated in Qantas Airways Limited v Squires and Pearce v Glebe Administration Board . 39 Comments made by the Attorney General during the second reading speech for the Anti-Discrimination (Racial Vilification) Amendment Bill and statements contained in the NSW Law Reform Commission's recent review of the Act support the conclusion that there is a distinction between a representative complaint and a complaint lodged by a representative body. On 4 May 1989, the then Attorney General, Mr Dowd, stated in the Legislative Assembly: Item (3) of schedule 1 to the Bill will amend section 88 of the Act to allow a "representative body" to lodge a racial vilification complaint on behalf of an individual or individuals. Such a complaint may be lodged only with the consent of the person or persons on whose behalf the complaint is lodged. The Anti-Discrimination Board encounters many individuals who lack the confidence or ability, or who may be afraid, to approach the Board to complain directly. This is particularly so in relation to the ground of race. These potential complainants often need the assistance of their own community organisations or bodies to aid them in the complaint-making process. This provision does not relate to the representative complaint provisions of the Act , but allows the intervention of such groups or bodies on a "next friend" basis. (emphasis added) ( NSW Parliamentary Debates (Legislative Assembly) 4 May 1989 at 7490). 40 The NSW Law Reform Commission referred to three types of complaint in its report and described the history of the complaint by a representative body provisions. It stated: In addition to individual complaints and representative complaints, there is also express reference in the ADA to a complaint lodged "by a representative body on behalf of a named person or named persons"…. In 1989 the ADA was amended to provide that a racial vilification complaint could be made on behalf of a member of the racial group concerned or by a "representative body which represented or purported to represent a racial group". This provision was extended when homosexual vilification was proscribed. In 1994, the provision for a complaint to be lodged by a "representative body" was generalised, so as to apply to all forms of complaint under the ADA and without limitation on the nature of the body, other than to require that the body have as its primary object "the promotion of the interests and welfare of the group"….The purpose of this amendment is not fully revealed by the Second Reading Speech which accompanied the Bill. ( Review of the Anti-Discrimination Act 1977 (NSW Law Reform Commission, Sydney 1999 at 594-596)). 41 The original complaint in this case is correctly characterised, we believe, as one made pursuant to section 88(1)(b). To use the language from Pearce , it was a 'class' complaint which the complainant has subsequently sought to have styled as a representative complaint. Two questions arise for consideration at this stage. First, may a corporation lodge a complaint pursuant to section 88(1)(b) and, secondly, do any consequences flow from the fact that the President appears to have cast the complaint as one lodged by a representative body on behalf of a named person (a section 88(1A) complaint) when he referred the complaint to the Tribunal? 42 Throughout section 88 the word "person" is used when referring to both the complainant and the respondent. Both terms are defined in section 87 (see paragraph 28) with "complainant" meaning "the person or each of the persons" who lodge a complaint and respondent meaning "the person or each of the persons" against whom a complaint is lodged. Mr Campbell submitted that only a natural person may lodge a complaint pursuant to section 88(1), whereas Ms Black submitted that a legal person may lodge a complaint. We believe that Ms Black is correct. It seems reasonable to proceed on the basis that the word "person" is used with a consistent meaning throughout sections 87 and 88. 43 For the past 23 years respondents to complaints made under the Act have included corporations as well as natural persons. Many complaints against corporate respondents have made their way to the High Court and to the Supreme Court (for example, Australian Iron Steel Pty Ltd v Banovic (1989) 168 CLR 165; Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26; Boehringer Ingelheim Pty Ltd v Reddrop [1984]2 NSWLR 13) without there being any suggestion that the original complaint was invalid because the respondent was a corporation. Indeed, the second respondent in this case is a corporation. Whilst the participation of the second respondent in these proceedings was challenged on other grounds by counsel for the respondent, there was no submission made that it could not be a respondent because it was a corporation. If a respondent may be a corporation then so may be a complainant. In our opinion the word "person" when used in sections 87 and 88 means a legal person. Section 8(d) of the Interpretation Act 1987 which states that in any Act "a reference to a person does not exclude a reference to a corporation merely because elsewhere in the Act…there is a particular reference to a corporation" supports this conclusion. 44 A further issue which arises tangentially is whether a corporation has the necessary standing to lodge a complaint pursuant to section 88. In the present case the complainant, which is a corporation established to further the interests and protect the rights of Aboriginal persons, could probably rightly claim that it is personally affected by the alleged act of racial vilification. Further, section 88 may be what the NSW Law Reform Commission has termed an 'open standing provision'. In the Review of the Anti-Discrimination Act 1977 (NSW Law Reform Commission, Sydney, 1999) the Commission stated (at pp 588-9): However, it is not clear that a complaint may only be lodged by or on behalf of a person personally affected by the conduct complained of. The terms of s 88 do not refer to "an aggrieved person" or a person who claims that another person has contravened a provision of the ADA "in relation to" the first person. In other words, s 88 is, arguably an open standing provision. So far as the Commission is aware it has, however, never been used as such and there does not appear to be any case which discusses this issue. Whilst it does not appear appropriate to conclusively decide this point in the absence of detailed argument, there appears to be merit in the suggestion that section 88 is an 'open standing provision'. 45 The second question raised in paragraph 33 is whether the Tribunal is obliged, or ought, to regard the complaint as one lodged pursuant to section 88(1A) because the President appeared to be of this view when he referred the complaint to the Tribunal pursuant to section 94(1) of the Act. Two separate matters arise for consideration. Did the President have any power to characterise the complaint in a particular way which may be binding upon the Tribunal and did the President's characterisation of the complaint and the complainant's subsequent application to have the complaint dealt with as a representative complaint, rather than as a complaint by a representative body, produce any unfairness to the respondent? 46 All of the relevant provisions in the Act lead to the conclusion that any characterisation of a complaint by the President, even though it may be useful for administrative purposes, cannot in any way legally bind the Tribunal. The Act does not give the President any express power to do so. Section 94(1) empowers the President to refer "a complaint" to the Tribunal in certain circumstances and section 96 obliges the Tribunal to conduct an inquiry into "each complaint" referred pursuant to section 94(1). As we have noted earlier, the word "complaint" is defined broadly in section 87. Consequently it is a matter for the Tribunal to determine how it will characterise a complaint, in accordance with the terms of the Act and any other relevant law, once it commences its inquiry. 47 It is difficult to see how the respondents are in any way prejudiced by the President's earlier apparent characterisation of the complaint as one lodged by a representative body on behalf of a named person. The President's original letters to the first respondent and to Mr Ian Wallace, a senior employee of the second respondent, sent less than a month after the broadcast in question, referred to the Western Aboriginal Legal Service Ltd as the complainant. The complaint summary attached to those letters described the Western Aboriginal Legal Service as "a representative body for Aboriginal people". Thus, from the outset, the respondents have been on notice that the complainant is a corporation which purports to represent Aboriginal people. 48 Certainly some of the earlier documents filed in this Tribunal (described at paragraphs 10, 11 and 16) informed the respondents that the complaint was being cast as one by a representative body on behalf of a named person, Mr Gillon. However, both the characterisation by the President and the needless complexities of Part 9 of the Act substantially contributed to the way in which the complaint was originally cast by the complainant. Section 73(1), (2), (3) and (4) of the Administrative Decisions Tribunal Act 1997 (the ADT Act) is of relevance when considering this broad issue of fairness. Those provisions are: (1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such a manner as it thinks fit, subject to the rules of natural justice. (3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (4) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and (b) if requested to do so – to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings. 49 Of most importance, for present purposes, are the requirements to comply with the rules of natural justice and to ensure that the respondents understand the assertions made against them and the legal consequences of those assertions, as well as the direction to the Tribunal that it act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal form". We cannot identify any rule of natural justice which is offended by the application that this matter proceed as a representative complaint rather than as a complaint by a representative body on behalf of a named person. Whether this complaint proceeds as a representative complaint or as a complaint by a representative body on behalf of a named person, the assertions made against the respondents are the same and the same legal person is making those assertions. Certainly, the legal consequences of the assertions are different, but those differences are to the benefit of the respondents for the remedies available to a successful representative complainant are far more limited than those available to a successful representative body proceeding on behalf of a named person. Most importantly, damages are not available in a representative complaint. 50 It is not easy to give legal substance to the direction that the Tribunal act "according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms," especially when the Tribunal is under a clear obligation to act according to law (see Qantas Airways Ltd v Gubbins [1992]28 NSWLR 26). Nevertheless, if that direction has any clear legal meaning, it must mean that the Tribunal should not render a complaint a nullity because of some procedural defect if no rule of natural justice has been breached and if no unfairness is caused to the respondents by any procedural defect. The complaint before the Tribunal is valid and the Tribunal should proceed to determine, pursuant to sections 102 and 103 of the Act, whether it will permit the complaint to proceed as a representative complaint. Procedural Issue (2) - Representative Complaint 51 As we indicated earlier, section 102 of the Act makes it clear that the Tribunal must determine whether a complaint should be permitted to proceed as a representative complaint before considering the substance of the complaint. The matters which the Tribunal must take into account when making that determination are set out in section 103 which states: 103(1) The Tribunal shall not permit a complaint to be dealt with as a representative complaint unless it is satisfied that the complaint is made bona fide and in good faith as a representative complaint. 103(2) In considering whether a complaint is made bona fide and in good faith as a representative complaint, the Tribunal shall satisfy itself: (a) that: (i) the complainant is a member of a class of persons, the members of which class have been affected, or may reasonably be likely to be affected, by the conduct of the respondent, (ii) the complainant has in fact been affected by the conduct of the respondent, (iii) the class is so numerous that joinder of all its members is impracticable, (iv) there are questions of law or fact common to all members of the class, (v) the claims of the complainant are typical of the claims of the class, (vi) multiple complaints would be likely to produce varying determinations which could have incompatible or inconsistent results for the individual members of the class, and (vii) the respondent has acted on grounds apparently applying to the class as a whole, thereby making relief appropriate for the class as a whole, or (b) that notwithstanding that the requirements of paragraph (a) have not been satisfied, the justice of the case demands that the matter be dealt with and a remedy provided by means of a representative complaint. 52 There are seven matters set out in section 103(2)(a) which must be considered by the Tribunal when determining whether a complaint is made bona fide and in good faith as a representative complaint. To the best of our knowledge there has never been a case in which the Tribunal has been satisfied of all seven matters. In the few cases which have proceeded as representative complaints the Tribunal has relied upon section 103(2)(b) which permits it to determine that a complaint is made bona fide and in good faith as a representative complaint when the justice of the case so demands ( see , for example, Pearce v Glebe Administrative Board (1985) EOC 92-131 and Leves v Haines (1986) EOC 92-167). The NSW Law Reform Commission in its Review provided a useful and simple explanation of the objective of a representative complaint or a class action. It is "to determine in a single action, the similar claims of a group of persons against the same respondent or defendant" (at p. 714). 53 It is necessary to consider whether the seven matters set out in section 103(2)(c) are satisfied in this case. Six of the seven sub-paragraphs in section 103(2)(a) make reference to "a class of persons", with sub-paragraph (i) requiring the Tribunal to consider whether the complainant is a member of "a class of persons", the members of which have been affected by the conduct of the respondent. What is the relevant class of persons in this case and is the complainant a member of that class? 54 There do not appear to be any cases in which the Tribunal or the Supreme Court have made definitive statements concerning the criteria to be employed, or the process to be undertaken, when determining the ambit of the 'class of persons' in section 103. There are, however, some useful statements by the former Equal Opportunity Tribunal in Leves v Haines (1986) EOC 92-176 at 76, 638: The requirements of section 103 of the Anti-Discrimination Act are largely modelled upon s 23 of the United States Federal Rules of Civil Procedure . The authorities in that jurisdiction clearly support the proposition that representation can be granted for a class which includes both present and future members. It has been said that the potential class members need not be immediately identifiable, so long as they are circumscribed by reference to some objective criteria…. One of the prime objects in granting representation is the protection of the class. Another is the avoiding of a multiplicity of similar claims. 55 In the Further Amended Points of Claim the complainant describes the class as "individual Aboriginal persons living in New South Wales and organisations such as the Complainant who are involved in a public way with the protection and promotion of the rights of Aboriginal persons". Mr Campbell opposed this characterisation of the class stating that the complainant is not a person and it is not a member of a class of persons as envisaged by section 103. In the alternative he submitted that if the complainant was a member of any class of persons it is the class of associations offering legal services to the Aboriginal community. 56 In view of the substance of the complaint in this case – an alleged act of racial vilification of Aboriginal persons generally – we believe that the relevant class of persons can be characterised in the way that it has been by the complainant. We have already found that the word "person", when used in other sections of Part 9 of the Act, refers to legal persons. There is no reason why that word should have a narrower meaning in section 103. Just because the complainant may be a member of a narrower class, namely associations providing legal services to Aboriginal persons, it does not follow that it cannot belong to the broader class described by the complainant. We have already referred to relevant parts of the complainant's Memorandum and Articles of Association, dealing with the objects of the company and the qualifications for membership (see paragraph 23), which clearly indicate that it is an organisation of Aboriginal persons which aims to protect and promote the rights of Aboriginal people. We also believe that the second element of section 103(2)(a)(i) is satisfied in this case. If the conduct of the respondents is ultimately found to constitute a breach of the racial vilification provisions of the Act it is likely that Aboriginal persons living in New South Wales and organisations involved with the protection and promotion of the rights of Aboriginal persons are likely to have been affected by this conduct. 57 There was no evidence before the Tribunal that the complainant has in fact been affected by the conduct of the respondents. Consequently we cannot be satisfied as to the matter set out in section 103(2)(a)(ii). 58 We believe it to be a matter of common knowledge that tens of thousands of Aboriginal persons live within New South Wales. Consequently, and even in the absence of any evidence or common knowledge concerning the number of organisations involved with the protection and promotion of the rights of Aboriginal persons in New South Wales, we are satisfied as to the matter set out in section 103(2)(a)(iii). The class is so large that joinder of all its members is impractical. 59 We are satisfied as to the matters set out in section 103(2)(b)(iv) and (v) because of the nature of the substance of the complaint in this case. Given the breadth of the class and the claim that Aboriginal persons generally have been racially vilified by the conduct of the respondents we believe that there are questions of law or fact common to all members of the class and that the claims made by the complainant are typical of the claims of the class. 60 We are not satisfied as to the matters set out in section 103(2)(a)(vi). There is no evidence that multiple complaints have been made under the Act and given the period of time since the broadcast in question was made and the time limit for lodging complaints with the President (see section 88(3) of the Act) it is highly unlikely that there could ever be multiple complaints. Further, given the relatively small size of the Equal Opportunity Division of this Tribunal it is difficult to imagine any circumstances in which the Tribunal could conclude that multiple complaints are likely to produce varying determinations with inconsistent results for the individual members of the class. The former Equal Opportunity Tribunal appeared to take the same view in Leves v Haines (1986) EOC 92-167 at 76, 637. 61 Finally, we are satisfied as to the matters set out in section 103(2)(a)(vii). As the complaint in this case is that the respondents committed an act which racially vilified Aboriginal persons generally, and as there is no dispute that the broadcast in question was actually made (though its unlawfulness is denied), it seems clear that the respondents acted on grounds apparently applying to the class, as we have described it, as a whole thereby making relief for the class as a whole appropriate. 62 It is clear, as Mr Campbell submitted and as Ms Black accepted, that the requirements of section 103(2)(a) are cumulative: the Tribunal must be satisfied of all seven matters set out in that paragraph before it can declare, relying upon that paragraph, that it is satisfied that the complaint is made bona fide and in good faith as a representative complaint. As we have not been satisfied as to the matters set out in sub-paragraphs (ii) and (vi) we cannot make the necessary declaration. However, even if section 103(2)(a) is not satisfied, section 103(2)(b) permits the Tribunal to declare that it is satisfied that the complaint is made bona fide and in good faith as a representative complaint if "the justice of the case demands that the matter be dealt with and a remedy provided by means of a representative complaint". 63 Again, as with section 103(2)(a), there are few decided cases to call upon for assistance in determining what factors should be taken into account when considering whether "the justice of the case" demands that the matter be dealt with as a representative complaint. However, remarks made by the former Equal Opportunity Tribunal in Pearce v Glebe Administration Board (1985) EOC 92-131 at 76, 313, when considering section 103(2)(b), are of assistance: …the justice of the case appears to us to demand that the matter be dealt with and a remedy provided by means of a representative complaint, and accordingly the requirements of sec. 103(2)(b) are made out to the Tribunal's satisfaction. Six of the seven requirements of para. (a) are made out, and they include the important criteria of numerosity, commonality and typicality. These are powerful indications in favour of a positive finding under sec. 103(2)(b). Furthermore, as Mr Buchanan points out in his written submissions, even though there is no specific requirement in the Act that the representative party will fairly and adequately represent the interests of the class, thus ensuring that the rights of the absent class members are protected, this is a factor which is relevant to the exercise of the discretionary judgment called for by sec. 103(2)(b). There is no doubt as to the complainant's sincerity and determination in pursuing the complaint, and a finding that he will adequately protect the interests of the class is clearly justified on the material before us. There appear to be no countervailing discretionary considerations. 64 In this case Ms Black submitted that the complainant, as an Aboriginal legal service, is well placed to fairly and adequately represent the interests of the members of the class and that it is ideally placed to perform the educational objectives of the Act's racial vilification provisions. Mr Campbell's major objections to the use of the discretion in section 103(2)(b) appeared to be the inability of the complainant to satisfy the Tribunal of all of the matters set out in section 103(2)(a) and the different relief available in a representative complaint. 65 We are satisfied that the justice of this case demands that the matter be dealt with as a representative complaint and, if the complaint is substantiated, that a remedy be provided by means of a representative complaint. In this case five of the seven matters set out in section 103(2)(a) have been made out but, as in Pearce, the requirements of numerosity, commonality and typicality are among the matters about which we have been satisfied. We accept Ms Black's submission that the complainant is well placed to fairly and adequately represent the members of the class as we have described it. Indeed it is difficult to identify a legal person better placed than an Aboriginal legal service to represent Aboriginal persons and organisations established to promote the interests of Aboriginal persons in a complaint where the allegation is that Aboriginal persons generally have been subjected to racial vilification. Whilst in this case only five of the seven matters set out in section 103(2)(a) have been made out, the failure to satisfy the Tribunal as to the matter in sub-paragraph (ii) does not appear to be significant in a case of this nature. Further, as we have noted, it is difficult to imagine a case in which the requirements of sub-paragraph (vi) could ever be made out. 66 It is also significant that we cannot identify any unfairness or prejudice which will be occasioned to the respondents by permitting the complaint to proceed as a representative complaint. Mr Campbell identified the different remedies available in a representative complaint as a relevant consideration but, as our discussion at paragraph 38 indicates, the remedies available in a representative complaint are narrower than those available in other complaints. Most importantly, the remedy of damages is not available in a representative complaint. 67 To return to the language of section 103(1) the Tribunal is satisfied on the basis of the evidence before it that the complaint when originally lodged with the President was made bona fide and in good faith with the intention of it becoming a representative complaint and we are satisfied that it continues to be pressed by the complainant on this basis. Accordingly, the Tribunal has determined that the complaint should be dealt with as a representative complaint. Procedural Issue (3) – The prohibition on publication 68 Section 126 of the ADT Act makes it an offence for anyone to publish or broadcast the name of any party, witness or person mentioned in proceedings before the Tribunal without the consent of the Tribunal. This extraordinary provision, which has now been amended, (see clause 13, Schedule 1, Administrative Decisions Tribunal Legislation Amendment Act 2000 ) appears to have found its way into the ADT Act in error. Ms Black submitted that the Tribunal should give its consent pursuant to section 126 and Mr Campbell chose not to make any submissions in relation to this issue. As this case involves an allegation that a public act contravened the racial vilification provisions of the Act, and as the complainant supports lifting the prima facie ban on publication, the Tribunal determined that it should give its consent pursuant to section 126 of the ADT Act. Procedural Issue (4) – Access by the media to the exhibits 69 During the course of the hearing the Registrar of the Tribunal was approached by a journalist who sought access to an exhibit in the case which was the tape recording of the first respondent's radio program on 28 November 1995. That tape had earlier been played to the Tribunal when members of the public, and presumably journalists, were present in the hearing room. The Registrar drew this request to the attention of the Tribunal and we sought submissions from the parties. Ms Black supported media access to the tape because the original broadcast was a public act and the tape had been publicly played in the course of the hearing. Mr Campbell submitted that the Tribunal should not grant access to the tape to people who were not parties to the proceedings because of general rules concerning non- party access to a court file and because any further airing of the broadcast in question cast doubts upon the genuineness of the complainant's claim. 70 As there are no provisions in the ADT Act and the Rules made pursuant to that Act which govern this matter we believe that recourse to the practice followed in the Supreme Court is a useful guide for this Tribunal. Access to court files by non-parties is governed by Part 65 rule 7 of the Supreme Court Rules 1970 and Practice Note 97. Subject to some exceptions, Part 65 rule 7 merely provides that there may be no access without the leave of the Court. Practice Note 97 provides that access will normally be granted to non-parties in respect of (amongst other things) material that was admitted into evidence and information that would have been heard or seen by any person present in open court. As the tape had been admitted into evidence and had been played in the presence of the public in the course of the hearing the Tribunal directed that members of the media, upon application to the Registrar, could have access to the tape on terms to be determined by the Registrar. The Tribunal made this direction pursuant to section 73(1) of the ADT Act which provides that the Tribunal "may, subject to this Act and the rules of the Tribunal, determine its own procedure". 71 There is one further procedural matter which should be mentioned. Mr Campbell objected to the fact that the second respondent had been made a party to the proceedings on the grounds that it was not a party to the original complaint and that the order made joining it as a party was "out of time". As we noted in paragraph 14, the order joining the second respondent as a party was made on 23 June 1999. It was open to the second respondent to appeal against that decision pursuant to section 113 of the ADT Act. That step was not taken. Further, the second respondent appears to have been on notice from the outset that the President regarded the original complaint as having been made against it, as well as the first respondent, for, as we have noted in paragraph 9, the President wrote to Mr Wallace on 15 December 1995 informing him that a complaint "has been lodged against Mr Jones and the radio station 2UE". Whilst the President did not directly notify the second respondent we agree with Ms Black's submission that the relevant correspondence between the solicitors for the parties and the President reveals that the second respondent had notice that a racial vilification complaint had been made against it. Evidence in relation to the racial vilification complaint 72 The principal piece of evidence relied upon by the complainant was the tape of the broadcast made on radio station 2UE on the morning of 28 November 1995 to which reference has already been made. It was not in dispute that the tape was an accurate recording of the broadcast, that the broadcaster was the first respondent, that the broadcast was made over radio station 2UE and that the second respondent is the holder of the broadcasting licence for radio 2UE. The only additional evidence adduced by the complainant was a further affidavit by Ms Shirlaw (Exhibit 4). The effect of this affidavit was to place before the Tribunal correspondence which passed between the parties, the President and the Registrar of the Equal Opportunity Tribunal. Whilst this correspondence was of some relevance to the issue of whether the second respondent was properly joined as a party to the inquiry it had no bearing upon the substantive issue in the case. 73 The respondent called evidence from two people, Mr Michael Hibbard, the program director for the second respondent and Mr David Liddiard, the chief executive officer of the National Aboriginal Sports Corporation of Australia (NASCA). It is our understanding that the evidence of both men was not disputed. 74 We consider the following parts of Mr Hibbard's evidence to be material: (a) the management of the second respondent does not exercise any editorial control over the content of its broadcasters' programs. (b) the management of the second respondent did not know that the first respondent was going to make the remarks which are in question in this case. (c) radio station 2UE has been involved in various positive activities with Aboriginal people. (d) the first respondent is a member of the Board of Patrons of NASCA. (e) the first respondent has raised large sums of money for NASCA and he has supported financially, and otherwise, a number of Aboriginal sports people and performers. (f) when a broadcaster is conducting "talk back" radio there is a 7 second delay period during which objectionable calls may be prevented from being broadcast. 75 We consider the following parts of Mr Liddiard's evidence to be material: (a) he is an Aboriginal person. (b) he has known the first respondent for more than 10 years. (c) the first respondent has been directly responsible for raising sponsorship for NASCA in excess of $500,000. (d) the first respondent has devoted a considerable amount of time to supporting NASCA for which he has not charged any fee. (e) the first respondent has provided considerable financial and other assistance to individual Aboriginal people. The racial vilification provisions of the Act 76 Division 3A of Part 2 of the Act deals with racial vilification. We should set out that Division in its entirety: 20B Definition of a "public act" 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 race of the person or members of the group. 20C Racial 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 race of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 or 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, scientific or research purposes or for other purposes in the public interest, including discussion or debate about the expositions of any act or matter. 20D Offence of serious racial vilification (1) A person shall not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group by means which include: (a) threatening physical harm towards, or towards any property of, the person or group of persons, or (b) inciting others to threaten physical harm towards, or towards any property of, the person or group of persons. Maximum penalty: In the case of an individual – 50 penalty units or imprisonment for 6 months, or both. In the case of a corporation – 100 penalty units. (2) A person shall not be prosecuted for an offence under this section unless the Attorney General has consented to the prosecution. 77 It appears that there are five elements to a complaint that there has been a breach of section 20C(1). They are: (a) a public act (b) by a person (c) which incites (d) hatred towards, serious contempt for or severe ridicule of a person or group of persons (e) on the ground of their race. We propose to consider each of these elements in turn, with reference to the submissions made by counsel for the parties. Once we have determined what we consider to be the correct interpretation of section 20C(1) it will be necessary to apply the law to the facts of this case. 78 The term "public act" is comprehensively defined in section 20B of the Act. The only issue about which we need say anything is the difference between paragraphs (a) and (c) of section 20B which was raised in exchanges with counsel. These paragraphs are a little confusing for it would seem that a radio station could be said to fall within paragraph (a) because it engages in "broadcasting" but also paragraph (c) as well because its activities could be characterised as "the distribution or dissemination of any matter to the public". The distinction is important for any activity which falls within paragraph (c) is only a "public act" if done "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 race of the person or members of the group". It is quite apparent that the law of defamation has had some impact upon the content and wording of sections 20B and 20C of the Act. Whist we embark upon an examination of that area of law with some trepidation, given its notorious complexity, laws are not made in a vacuum and there is obvious advantage in looking to related fields of law for some guidance when interpreting relatively new laws. 79 Resort to defamation law is useful in giving meaning to the definition of "public act" in section 20B because all three paragraphs of that definition refer to the publication of information. As Professor Fleming states in The Law of Torts (9th Edition, Law Book Co. Sydney 1998) at p. 593: The essence of tortious defamation lies in the communication of the disparaging statement to someone other than the person defamed…This requirement is known by the name of "publication". Fleming goes on to state that "liability for publishing defamatory statements attaches without any showing of fault". He draws a distinction, however, between "primary participants in the publication" and "persons who do not authorise publication but play the more subordinate role of mere distributors". Of the distributors Fleming says (at p. 594): According to the most accepted view, these escape responsibility on proof that they neither knew nor had reason to know or suspect that they were handling defamatory material. Radio stations, according to Fleming, are not mere distributors. He states (at p. 599): Radio and television stations are original publishers, whether broadcasting their own or someone else's programmes and, as such, are not analogous to newsagents or video stores. Even in transmitting live programmes or simulcasts, which may make it more difficult to anticipate defamatory episodes, they play an active role in publishing to the world and must face corresponding responsibility. 80 It seems that these general principles concerning liability for publishing defamatory material explain the difference between paragraphs (a) and (c) in section 20B. Paragraph (a) refers to primary participants in the publication such as journalists, radio broadcasters, television presenters, newspaper publishers, radio stations and television stations, whereas paragraph (c) refers to mere distributors such as newsagents, libraries and commercial distributors of pamphlets. Given the express reference in paragraph (c) to the need for distributors to have knowledge of the content of the material distributed, and the lack of such a provision in paragraph (a) of section 20B, it appears that primary publishers who are not the actual authors of the material in question, such as radio and television stations, commit a "public act" for the purposes of section 20C(1) even when they are unaware of the content of the material they have broadcast or telecast. 81 The second element of section 20C(1) is that the "public act" be performed by a "person". We believe that this is a reference to a legal person; both a natural person and a corporation are capable of performing the public act referred to in section 20C(1). As in other parts of the Act, however, the same word may have been used with different meanings. The word "person" is also used in section 20C(1) to refer to the victim of the public act: "a person or group of persons on the ground of the race of the person or members of the group". It is difficult to see how these words can refer to anyone other than natural persons. This different use of language does not aid construction, especially as the provisions of section 8(d) and (e) of the Interpretation Act 1987 do not appear to resolve the inconsistency. 82 The third element of section 20(C)(1) is that of incitement. Mr Campbell submitted that there must be intention to incite. It was necessary for the complainant to prove, Mr Campbell argued, that the person who performed the public act intended to incite his or her audience to have hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of their race. This was the usual meaning of 'incite' according to Mr Campbell. He submitted, in the alternative, that if a contravention of section 20C could occur without proof of intention to incite then it was necessary for the members of the audience to have reasonably understood that they were being incited to have the requisite degree of ill-feeling on the ground of race. 83 Ms Black took a contrary view. In her submission the word 'incite' does not mean it is necessary to prove that the person who performs the public act intends to bring about the prescribed effect in his or her audience. Nor is it necessary to prove that there was incitement in fact, or that members of the audience would have reasonably understood that they were being incited to have the requisite degree of ill-feeling on the ground of race. 84 The meaning of the word "incite" in section 20C(1) was considered by the former Equal Opportunity Tribunal in Harou-Sourdon v TCN Channel Nine Pty Limited (1994) EOC 92-604 and in Wagga Wagga Aboriginal Action Group v Eldridge (1995) EOC 92-701. In Harou-Sourdon the Tribunal determined that the word should be given its plain meaning and quoted the Macquarie Dictionary definition which is "to urge on; stimulate or prompt to action". It is not clear from our reading of that case whether the Tribunal reached a conclusion about whether subjective intention, or to put it another way the intention of the maker of the statement, forms part of the plain meaning of the word "incite". 85 In Eldridge the Tribunal drew a distinction between conduct which incited the requisite degree of ill-feeling on the ground of race and conduct which expresses or conveys that degree of ill-feeling. Presumably it was the view of the Tribunal that it is conduct of greater intensity to "incite" than it is to "express" or "convey". We think that is right for conduct which incites must be reasonably likely to have an impact upon the audience, whereas conduct which merely expresses or conveys information to an audience may be received passively or without impact. In Eldridge, after considering extracts from the Attorney-General's second reading speech in relation to the Bill which (upon enactment) inserted Division 3A into Part 2 of the Act, and after juxtaposing section 20C with 20D (which introduced a criminal offence of serious racial vilification), the Tribunal concluded that (at p. 78, 265) "intent need not be proved under section 20C(1), nor is proof required that any person was incited". This conclusion was endorsed by the Tribunal in a later case, R v Marinkovic and Marinkovic (1996) EOC 92-841, which dealt with homosexual vilification. The sections of the Act which deal with homosexual vilification (Division 4 of Part 4C) employ the same general words as those found in the racial vilification provisions. 86 In seeking to deal with the conflicting submissions from counsel and to give proper meaning to the word "incite" it is appropriate to turn to first principles of statutory construction. Brutus v Cousens [1973] AC 854 is often cited as authority for the proposition that ordinary words, when used in a statute, should be given their ordinary and natural meaning. We don't believe that the word "incite" is used in section 20C(1) with any special legal meaning or with a non-legal technical meaning. Thus, the approach taken by the Tribunal in Harou-Sourdon to look at the dictionary meaning of the word seems correct. Unfortunately that dictionary meaning does not resolve the problem before us because part of the definition – "to urge on" - seems to suggest that intending to produce a result in the audience is a necessary part of inciting, whereas the second part of the definition – "stimulate or prompt to action" – appears to look to the effect upon the audience rather than to the intention of the person who incites. 87 Section 34(1)(b)(i) of the Interpretation Act 1987 provides that it is permissible to consider various extrinsic material to assist in determining the meaning of a provision in an Act when that provision is "ambiguous or obscure". One of the matters which can be considered is the second reading speech of the Minister who had carriage of the Bill in Parliament (section 34(2)(f)). That portion of the Attorney-General's speech which is of the most assistance is the part in which he contrasts section 20C with section 20D, which is a criminal offence. In both sections the word "incite" is used. In the absence of any good reason to the contrary it would be appropriate to conclude that the word has the same meaning in both sections. However, the Attorney-General's second reading speech demonstrates a contrary legislative intention and casts meaning upon the word "incite" in section 20C(1). He stated: The requirement for intention in the offence of serious racial vilification also sets it apart from section 20C and further ensures that prosecution and conviction will be limited to only very serious cases of racial vilification. (NSW Parliamentary Debates (Legislative Assembly) 4 May 1989 at 7490) 88 General principles of the criminal law also promote an interpretation of section 20D which requires intention to be an element of the offence in the absence of a legislative indication to the contrary ( see He Kaw Te v R (1985) 157 CLR 523). In contrast, we take the Attorney-General to be saying that intent is not a necessary part of section 20C. 89 The NSW Law Reform Commission acknowledged the difficulties in interpreting section 20C when making its recommendation that the Act be amended to "provide expressly that proof of specific intention to incite is not required for establishing vilification (Recommendation 93)". The Commission noted that this recommendation "is consistent with the view of the Attorney-General in introducing the prohibition" and "does not involve a change to the current law". (Review of the Anti-Discrimination Act 1977 at 543). 90 Support for the view that proof of intention to bring about the requisite degree of ill-feeling on the ground of race is not a necessary element of section 20C is also found in various statements by members of the High Court when discussing the general operation of anti-discrimination laws. In Waters v Public Transport Corporation (1993) 173 CLR 359 Mason CJ and Gaudron J discussed the suggestion that intention formed part of the definition of direct discrimination in the Victorian Equal Opportunity Act 1984. They stated: There is some force in the suggestion that the expressions "on the ground of the status" and "by reason of the private life" in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, "to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status". It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is relevant to the status or private life of the person less favourably treated. We note that the objects set out in the long title to the NSW Anti-Discrimination Act 1977 are expressed in almost identical terms to the objects of the Victorian Act referred to in this case. 91 Kirby J expressed a similar view in IW v City of Perth (1999) 91 ALJR 943 at 995 when discussing the concept of direct discrimination in the Western Australian Equal Opportunity Act 1984: "…it is unsurprising that the weight of authority supports the proposition that it is unnecessary for a complainant to show that the alleged discriminator intended to discriminate or set out with that motivation and purpose. Some doubts have been expressed concerning this opinion….But much discrimination occurs unconsciously, thoughtlessly or ignorantly. It would subvert the achievement of the purposes of the Act if it were necessary for a complainant to establish that the alleged discriminator intended, or had the motive, to discriminate." Kirby J. dissented in this case, but not on this point. 92 Whilst these statements were made about different provisions in the statutes of other states they do give an indication of the general approach which should be taken to the interpretation of legislation which enforces or promotes human rights when there is some ambiguity or uncertainty in the statutory language. In the case of racial vilification the human rights of members of the vilified racial group are diminished regardless of whether the maker of the statements which incites the requisite degree of ill-feeling intends to bring about that result or not. However, as Mr Campbell submitted, the free speech rights of others are curtailed if it is possible to be liable for racial vilification without intending to do so. 93 Bearing in mind all of the foregoing matters we believe that when considering section 20C(1) of the Act it is not necessary for the complainant to prove that the person who performed the public act intended to incite anyone and nor is it necessary to prove that anyone was in fact incited by the public act in question. It is the capacity of the public act performed by a person which is significant, rather than the intent of the person who performed that act. Further, it is the likely effect rather than the actual effect of the public act which is significant. In some instances evidence of actual effect may be of relevance when considering remedies. 94 This formulation of one of the elements of section 20C(1) raises the question of how does the Tribunal determine the capacity of the public act in question? Who must be incited and how does the Tribunal determine whether the public act in question had the capacity to incite those persons? Mr Campbell submitted that the complainant bears the burden of establishing that the words of the public act had a meaning which was capable of conveying to the ordinary, reasonable listener that he or she was being incited to hold the requisite degree of ill-feeling on the ground of race. We believe that submission to be correct. 95 This issue of the identity of the audience was considered in Harou-Sourdon (at p. 10) where the Equal Opportunity Tribunal quoted with approval a statement by the former Australian Broadcasting Tribunal in a case involving the racial vilification provisions in the Radio Program Standard. That Tribunal stated: The test to be applied is, in the Tribunal's view, an objective one. The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal's view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views. This person appears to have the characteristics possessed by the ordinary, reasonable listener described by Mr Campbell in his submissions. 96 Mr Campbell was clearly referring to the concept of the ordinary, reasonable listener as used in defamation law. The description of this person by Hunt J in Farquhar v Bottom [1980] 2 NSWLR 380 at 385-6 is often relied upon: In deciding whether the matter complained is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation…I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence….who is neither perverse….nor morbid or suspicious of mind….nor avid for scandal… This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs….It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer (case references deleted). 97 Professor Fleming ( The Law of Torts , 9th edition at 582-583) provides useful guidance in his overview of defamation law: The question of what standard to apply in determining whether a statement is defamatory has not been answered uniformly. The criterion commanding the widest verbal support seems to be the reaction aroused in citizens of "fair average intelligence" or "ordinary decent folk in the community, taken in general." The test is not identical with "reasonable", still less with "ideal"….The increasing diversity of beliefs and attitudes in modern (Australian) society precludes an appeal to a single standard of "right-thinking" people and suggests as sufficient that the allegation was calculated to stir up adverse feelings among a substantial and respectable group of the community, though not in other quarters….On the other hand, it is not sufficient that the words are regarded as prejudicial by only a small minority whose standards are so anti-social that it would not be proper for courts to recognise them. 98 A contrary view concerning the identity of the audience has been advanced by various commentators. Hennessy and Smith refer to a Canadian case ( Nealy v Johnston (1989) 10 CHRR 6450) in which an objective standard was rejected. The tribunal in that case determined that the impact of the statement in question should be viewed from the perspective of "anybody, even the most malevolent or unthinking person, who might be inspired to treat the targets with hatred or contempt" ( see N. Hennessy and P. Smith, "NSW Racial Vilification Laws Five Years On" (1994) 1(1) Australian Journal of Human Rights 249 at 253). Those authors describe this as "a more realistic test than the one quoted by the EOT in Harou-Sourdon because if a person does not hold racially prejudicial views, presumably he or she could not, in any circumstances, be incited to hate others on the ground of their race." Perhaps Hennessy and Smith expect too much of the ordinary, reasonable person. Whilst he or she may not hold racially prejudicial views that person is susceptible to being incited to adopt those views. It would, in our opinion, move the racial vilification provisions of the Act too far from the general body of law in which they have a place to assess the impact of any statement in question upon anyone other than the ordinary, reasonable person. 99 We believe that the description of the ordinary, reasonable person in Harou-Sourdon is the one which should be employed by the Tribunal. It is difficult to see any material differences between that person and the one described by Hunt J in Farquhar v Bottom. We are also mindful of the observation by Professor Fleming that because we live in a community where people hold a broad range of views and attitudes any suggestion that there is a single standard is untenable. Rather we should proceed on the basis that the ordinary, reasonable person is simply representative of "a substantial and respectable group of the community". 100 Having determined the question of who must be incited it is then necessary for the Tribunal to articulate how it should determine whether the public act in question has the capacity to incite the requisite degree of ill-feeling on the ground of race in the ordinary, reasonable person. Perhaps the NSW Law Reform Commission was correct when it said (at p. 545) that "there is little basis, other than intuition, for assessing whether particular words in a particular context are likely to induce others to feel hatred or serious contempt". Nevertheless this should not prevent us from seeking to fashion an approach which is as fair and transparent as possible. 101 Mr Campbell submitted that it was incumbent upon the complainant to state what it alleged was meant by the public act in question so that the respondent could fairly respond to this alleged meaning. There is, again, useful guidance to be drawn from defamation law. The processes for determining the meaning of words, or the imputations which arise from them, and for identifying the person or persons referred to in those words have received considerable attention in defamation cases. As Professor Fleming points out (at p. 586-587): Frequently words are ambiguous or capable of being understood in several senses, defamatory in one but not another….The words, for example, must have been published to someone capable of understanding them in a defamatory sense, not in a foreign language he could not comprehend. So also, if the words are not defamatory on their face but only with the aid of additional information, they must have been published to someone with that information. Otherwise, however, the quaint dogma prevails that the words must be understood in their "natural and ordinary" meaning, in defiance of the plain semantic truth that it is futile to look for any single meaning as being the "right" meaning. Thus, testimony as to how the words were actually understood is irrelevant, perhaps even inadmissible." Fleming also indicates (at p. 588) that in defamation law context is important: Meaning cannot be discovered without regard to the context of the expression. However disparaging at first blush, it may reveal its complete innocence if explained in the light of the circumstances attending its publication. The publication must be taken as a whole, not the offending passage isolated from the rest: the bane without the antidote. 102 The issue of identity has received considerable attention in defamation law. Gillooly states in The Law of Defamation in Australia and New Zealand (Federation Press, Sydney, 1998) at 59-60: The test for determining whether the plaintiff is sufficiently identified is: would ordinary, reasonable people understand the matter complained of and the imputations thereby conveyed to be directed at the plaintiff? Would such persons understand that it is the plaintiff that is being referred to? Two points should be noted with respect to this test. First, it is the effect of the material complained of on a hypothetical audience comprising average members of the community that determines whether this ingredient in the cause of action is made out. This hypothetical audience is the same as the one that determines what imputations are conveyed by a particular matter, and whether such imputations are defamatory. The second point to be noted about the test of identification is a corollary of the first - the intention of the defendant is irrelevant. It is not necessary to prove that the publisher actually intended to refer to the plaintiff….Thus, as with the test for determining what imputations are conveyed by a particular matter, the question is not "What did the defendant intend to say?" but "What was the defendant understood to say?" Professor Fleming also makes (at p. 596) some helpful comments about the issue of identity: Not only is the intention of the writer immaterial in considering whether the meaning of his statement is defamatory, but it is equally irrelevant that he did not mean to refer to the plaintiff at all. If the identification used is not specific but could refer to one of several individuals, the writer takes the risk that it will be understood as referring to someone other than the person he had in mind. "The question is not who was aimed at, but who was hit". 103 How then should we go about the task of determining whether the public act in question has the capacity to incite the ordinary, reasonable person to have the requisite degree of ill-feeling on the ground of race? It would seem that we should strive to identify the natural and ordinary meaning of the words used, but bear in mind that words are often capable of having more than one meaning. We should look at the words in the context in which they were used and, in the case of a broadcast, consider the broadcast as a whole. If questions of identity arise we must determine whether the ordinary, reasonable person would have understood the words used in the public act to be a reference to a member or members of a particular racial group. When considering the issue of identity, as well as the issue of the effect of the words used, the intention of the person who performed the public act is irrelevant. We must determine if anyone "was hit". 104 We earlier expressed our agreement with Mr Campbell's submission that the complainant bears the burden of establishing that the words of the public act had a meaning which was capable of conveying to the ordinary, reasonable listener that he or she was being incited to hold the requisite degree of ill-feeling on the ground of race. How is that alleged meaning to be conveyed to the respondent so that he or she is fairly informed of the case to be met? 105 It is instructive to look at the procedures followed in defamation actions. In New South Wales, in cases where damages are claimed, the jury determines whether the defendant published the matter in question, whether it conveyed the imputations pleaded by the defendant and whether those imputations are defamatory (see NSW Law Reform Commission, Defamation, Report 75, NSW Law Reform Commission, Sydney, 1995 at 9). Before these matters reach the jury it is necessary for the plaintiff to set out in the pleadings each imputation which is said to arise from the published material and "the judge decides whether the matter complained of is capable of carrying the imputation pleaded by the plaintiff, and, if it is, whether the imputation is capable of bearing a defamatory meaning" (NSW Law Reform Commission, Defamation at 41). It is only if the judge decides those threshold issues of capacity in favour of the plaintiff that the matter goes to the jury. 106 The procedure in New South Wales, which flows from the express requirements of the Defamation Act 1974, is different to that which applies in 'common law' jurisdictions such as Victoria and the Australian Capital Territory. In New South Wales each imputation is a separate cause of action, whereas in the 'common law' jurisdictions the publication of the defamatory matter as a whole gives rise to one cause of action. The NSW Law Reform Commission described (at p. 61) the procedure in the 'common law' jurisdictions: In those jurisdictions, if the meaning of the words is not clear, a plaintiff may plead the meanings which they are alleged to convey. However, the trier of fact is not restricted to those meanings and must decide for itself what meanings the words in fact convey. The defendant may allege that the words convey a different set of meanings from that pleaded by the plaintiff and may attempt to establish defences relevant to those meanings. The issues to be contested are thus not defined until after the trial has started. 107 In this Tribunal there are no formal procedural rules in relation to pleadings. There is a standard Practice Direction, which was issued and complied with in this case, which requires parties to file Points of Claim and Points of Defence. The Practice Direction does not specify the contents of the Points of Claim and the Points of Defence. Section 73 of the ADT Act contains broadly phrased provisions dealing with issues of procedural fairness (set out in full in paragraph 48). We consider the following parts of that section to be of particular relevance to the issue under consideration: (a) subject to the Act and the rules the Tribunal may determine its own procedure (section 73(1)) (b) the Tribunal must comply with the rules of natural justice (section 73(2)) (c) the Tribunal must take such measures as are reasonably practicable to ensure that the parties understand the nature of the assertions made against them and the legal implications of those assertions (section 73(4)). 108 In compliance with these provisions the Tribunal should ensure, in racial vilification cases, that the respondent is given fair and adequate notice of the relevant meanings which the complainant alleges were conveyed by the public act in question. How that is to be done may be dealt with on a case by case basis. In most cases it will be convenient to direct the complainant to set out the relevant meanings in his or her Points of Claim. That was not done in this case but we are satisfied that the respondents received fair and adequate notice of the relevant meanings alleged by the complainant for these were set out in counsel's written submissions which were filed and served before the hearing commenced. 109 In a jurisdiction such as this no useful purpose would be served by requiring the complainant to plead alleged meanings in the same way that imputations must be pleaded in defamation actions in this state where damages are sought. As with defamation actions in 'common law' jurisdictions, it is ultimately a matter for the Tribunal, as the trier of fact, to determine the meaning conveyed by the words used in the public act. However, in order to ensure procedural fairness, the Tribunal should ensure that the respondent is given fair and adequate notice of any meaning which has not been alleged by the complainant but which may commend itself to the Tribunal. 110 The fourth element of section 20C(1) is what we have described as the requisite degree of ill-feeling. The public act by a person must incite hatred towards, serious contempt for or severe ridicule of a person or group of persons. Again it is appropriate to consider first principles of statutory construction when seeking to give meaning to these words. The words "hatred", "contempt" and "ridicule" do not appear to have been employed in the Act to convey either a special legal meaning or a non-legal technical meaning. Accordingly they should be given their common or their ordinary and natural meaning. This approach was followed by the Equal Opportunity Tribunal in Harou-Sourdon. The Macquarie Dictionary definitions of these words are as follows: "Hatred" - the feeling of one who hates; intense dislike; detestation. "contempt" – 1. the act of scorning or despising. 2. the feeling with which one regards anything considered mean, vile, or worthless. 3. the state of being despised; dishonour; disgrace. "ridicule" – words or actions intended to excite contemptuous laughter at a person or thing; derision. As the words "contempt" and "ridicule" are preceded, respectively, in section 20C(1) by the adjectives "serious" and "severe" the intensifying effect of these adjectives must always be borne in mind. 111 The words "hatred", "contempt" and "ridicule" are drawn from the classic definition of defamation found in Parke B's judgment in Parmiter v Coupland (1840) 6 M.W 105 at 108; 151 ER 340 at 342. Whilst more modern formulations now seem to be preferred (see M. Gillooley, The Law of Defamation in Australia and New Zealand, Federation Press, Sydney 1998 at 44), there is a long history of defamation case law dealing with the meaning of "hatred", "contempt" and "ridicule". The review of these cases in Gatley suggests that the words have consistently been given their common meaning. (P Lewis, Gatley on Libel and Slander 8th edition, Sweet & Maxwell, London, 1981 at 16-21). 112 Consequently, when determining whether a person by a public act has incited the requisite degree of ill-feeling in an ordinary, reasonable person, the words "hatred", "contempt" and "ridicule" should be given their common meaning with the rider that the feeling of contempt must be serious and the feeling of ridicule severe. The terms "hatred", "serious contempt" and "severe ridicule" are clearly used as alternatives in section 20C(1); the complainant need satisfy the Tribunal of only one of these three matters in order to prove the requisite degree of ill-feeling. 113 The fifth element of section 20C(1) concerns the ground upon which the requisite degree of ill-feeling must be incited. The public act by a person must incite hatred towards, serious contempt for or severe ridicule of a person or a group of persons "on the ground of the race of the person or members of the group". As we have determined that it is not necessary to prove that the person who performed the public act intended to incite anyone it is clearly not relevant to look at his or her reasons or grounds for performing the public act in question. It seems that we must ask whether the ordinary, reasonable person would have been incited by the public act to have the requisite degree of ill-feeling on the ground of race. There must be a causal connection between the persons about whom the requisite degree of ill-feeling is held and the race of those persons which is produced by the public act in question. In other words, the reason or ground for the ordinary, reasonable person having the requisite degree of ill-feeling as a result of the public act must be the race of the person or group of persons about whom that requisite degree of ill-feeling is generated. 114 To employ a hypothetical example, this fifth element of section 20C(1) would not be satisfied if a radio broadcast did incite hatred towards or serious contempt for or severe ridicule of a man who happened to be an Aboriginal person if his Aboriginality was not the reason or ground for the requisite degree of ill-feeling being incited. Whether the race of the person or group of persons about whom the requisite degree of ill-feeling is generated has to be the ground or reason for the generation of ill-feeling, as opposed to a substantial ground or reason, is a matter which should not be decided without argument. The distinction was not raised in this case and we do not believe that it is necessary to determine this issue in order to reach a decision on the facts before us. We note that section 4A of the Act does not appear to apply to this issue because that section is concerned with those parts of the Act where the grounds or reasons for the respondent's actions are relevant. Here, in contrast, we are dealing with the reason or grounds for the ordinary, reasonable person holding certain views about others. 115 The word "race" is defined broadly in section 4 of the Act: "race includes colour, nationality, descent and ethnic, ethno-religious or national origin." As neither the definition of "race", nor its application to the facts were raised in this case this is not an issue about which we need say any more. 116 Section 20C(1) of the Act sets out a number of exceptions to the conduct which is rendered unlawful by section 20C(1). The exceptions are succinctly described by Hennessy and Smith: Fair Report of a Public Act This exception enables the media and others to convey the details of a public act of vilification to the general public without exposing themselves to the risk of breaching the ADA…. Absolute Privilege Defence The kinds of public acts which would attract this defence include parliamentary debate or testimony, parliamentary papers and certain matters relating to the Ombudsman, the Privacy Committee, the Law Reform Commission and the Anti-Discrimination Board. Purposes in the Public Interest This exception allows for freedom of expression where it involves discussion or debate about matters that are in the public interest (N Hennessy and P Smith, "NSW Racial Vilification Laws Five Years On" (1994) 1(1) Australian Journal of Human Rights 249 at 257). 117 Whilst the respondents in their 'Defence to Further Amended Points of Claim' sought to rely upon both section 20C(2)(a) and (c), the manner in which the case was conducted made it clear that only paragraph (c) was pressed as being of any relevance. There is little in the case law and published commentary to call upon for assistance in seeking to give meaning to this broadly phrased exception and we received few submissions from counsel in relation to this issue. Those parts of section 20C(2)(c) which appear to require consideration in this case are, first, whether any public act was "done reasonably and in good faith" and, secondly, whether any public act was "for other purposes in the public interest, including discussion or debate about and expositions of any act or matter". 118 As with other parts of section 20C the drafters of the legislation appear to have drawn upon concepts and principles of defamation law when formulating the exceptions found in section 20C(2). When dealing with paragraph (c) of that sub-section some useful guidance may be obtained by considering the defence of fair comment in defamation law for both section 20C(2)(c) and the defence of fair comment are attempts to strike a balance between the impact of injurious statements and freedom of expression. 119 The defence of fair comment, at common law, is limited to statements of opinion (as opposed to statements of fact); the comment must be on a matter of public interest and the comment must be fair (see M Gillooly, The Law of Defamation in Australia and New Zealand, Federation Press, Sydney, 1998 at 124-148). In New South Wales the common law defence of fair comment has been replaced by three statutory comment defences which are found in sections 32 to 34 of the Defamation Act 1974. For present purposes it is more instructive to focus upon the common law defence for useful insights may be gained by contrasting the concept of 'fairness' with the requirement of section 20C(2)(c) that the public act be done "reasonably and in good faith". There is also benefit to be gained from considering the manner in which the concept of "public interest" has been defined for the purposes of the common law and statutory defences of fair comment. 120 Gillooly describes the 'fairness' element of the defence of fair comment as follows (at 130-132): The requirement that the comment be "fair" is somewhat misleading. It may suggest to those unfamiliar with the law of defamation that the opinion stated must be one that an impartial, reasonable person would hold in the circumstances. However, nothing could be further from the truth, for the defence of fair comment protects biased and irrational opinions as well. "Fair" is a term of art. In order to be fair, a comment must satisfy the following criteria: + The factual matters on which the comment is based must be true or published under privilege; + The opinion expressed must be one that a fair minded person could honestly hold on the basis of the stated or indicated facts; and + The comment must not have been actuated or distorted by malice; Once the defendant has established that the first two criteria are satisfied, the comment is presumed fair unless the plaintiff proves that the defendant was actuated by malice… "Malice" here means spite, ill-will or other improper motive and is not to be confused with irrationality, stupidity or obstinacy…Malice is a state of mind and as such can only be inferred from what the defendant said, did or knew. Generally, the crucial factor in determining the presence or absence of malice is whether the commentator honestly believed in the truth of what he or she said…" 121 Thus, it is apparent that the common law defence of fair comment is broader or more liberal than the exception in section 20C(2)(c) that the public act be "done reasonably and in good faith". For a comment or statement to be "reasonable", as opposed to "fair", it must be one which the ordinary, reasonable person would consider to be reasonable in the circumstances of the case. In contrast, as Professor Fleming indicates (at 653), a comment which is fair "need not be reasonable…it may be exaggerated, obstinate or prejudicial, provided it is honestly held". It follows that a comment or statement which is exaggerated, obstinate or prejudiced is unlikely to be "reasonable'. 122 If a statement or comment is made in "good faith" that would appear to be the converse of acting with malice. "Good faith" appears to imply the absence of "spite, ill-will or other improper motive". As with malice, "good faith" appears to be a state of mind and the crucial factor in determining the presence of "good faith" would seem to be "whether the commentator honestly believed in the truth of what he or she said". 123 In order for the exception in section 20C(2)(c) to be made out the public act must be done reasonably and in good faith "for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter". We believe it necessary to consider the meaning of the italicized words only for there was no suggestion that the public act in issue in this case was done for academic, artistic, scientific or research purposes. This part of section 20C(2)(c) refers to the reason for doing the public act in question. 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 at 215 would not appear appropriate in the context of section 20C(2)(c). Gillooly (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. 125 The final matter to consider is the burden of proof in relation to any of the exceptions in section 20C(2) of the Act. Despite the fact that the Tribunal is directed to conduct "an inquiry into each complaint" (see section 96) it has long been accepted in cases involving allegations of unlawful discrimination that the complainant bears the burden of proof and that the standard is the Briginshaw test (C Ronalds, Discrimination Law and Practice , Federation Press, Sydney, 1998 at 182). 126 Section 109 of the Act reverses the burden of proof in relation to exceptions to conduct which would otherwise be unlawful. That section states: Where by any provision of this Act or the regulations, conduct is excepted from conduct that is 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 inquiry lies upon the respondent. It seems clear that the matters referred to in section 20C(2) are exceptions which fall within section 109. 127 The Attorney General referred to the contents of section 20C(2) as "exceptions" in his second reading speech: Proposed section 20C will also provide for exceptions relating to fair reports, publications currently attracting a defence of qualified privilege under the Defamation Act 1974 and acts done reasonably and in good faith for general artistic, scientific or research purposes or for purposes in the public interest. These exceptions have been included in the bill to achieve a balance between the right to free speech and the right to an existence free from racial vilification and its attendant harms. The Government is also mindful of the possibility of undue reliance by potential respondents on these exceptions and has therefore included the requirement that the act be done reasonably and in good faith. ( NSW Parliamentary Debates (Legislative Assembly) 4 May 1989 at 7490). Consequently we believe that the respondent bears the burden of proof in relation to any of the matters set out in section 20C(2) as they are "exceptions". The standard is the usual civil standard – the balance of probabilities. Reasons for Conclusions 128 We must apply the law, as we have determined it to be, to the facts of this case. As we have previously stated, we do not believe there is any dispute between the parties concerning the facts which we consider to be material when determining whether either or both respondents have breached section 20C(1) of the Act. Those facts are: (a) on 28 November 1995 the first respondent broadcast the material contained in the tape which was admitted into evidence in this case. (b) that material was broadcast on radio station 2UE (c) the second respondent holds and held on 28 November 1995 the broadcast licence for radio station 2UE. (d) the second respondent had no prior knowledge of the matters broadcast by the first respondent on 28 November 1995 and it exercised no editorial control over the content of his broadcast. 129 The tape contains excerpts from the first respondent's radio program on 2UE from 7.14 am to 8.58 am on 28 November 1995. The first part of the tape contains discussion by the first respondent about a particular issue and it then records various broadcast conversations between the first respondent and members of the public who had telephoned to make a contribution to the programme. The tape also contains commercials and comments by the first respondent (and discussion with callers) on matters which have no bearing on this case. The transcript of the relevant parts of the tape extends to 10 ½ pages. 130 As there was considerable dispute between the parties concerning the proper characterisation of the issue raised by the first respondent at 7.14 am it is best to set out his words in full: "Fourteen after seven. Just before we go any further. Yesterday an Aboriginal woman who went into a real estate agency in Dubbo last year, and wanted to rent a property and was told there weren't any. And then the Aboriginal woman sent a white friend of hers in to ask for a property and she got one. So the Aboriginal women argued discrimination and she got an award of six thousand dollars. Now I think that's a joke. And I'll tell you why I think it is. If I owned the property on the Real Estate Agent's list, the only property for letting and a bloke walk through the door I don't care what colour he is, looking like a skunk and smelling like a skunk, with a sardine can on one foot and sandshoe on the other and a half drunk bottle of beer under the arm, and he wanted to rent the final property available and it was mine, I'd expect the Agent to say no without giving reasons. What discrimination would the Agent be guilty of then?" 131 Later in the program the first respondent returned to this issue when he said: I talked to you early this morning about that Aboriginal Woman who received six thousand dollars for being discriminated against by a Real Estate Agent. I mean basically she had rung up in Dubbo looking for a flat and was told when she rang up four were available. When she fronted up she was told they had nothing. So she sent her white friend into the same Real Estate Agent. No problem, there was accommodation available. So the Aboriginal Women said she'd been discriminated against because of her Aboriginality and she got six thousand dollars. But I just want to make this point. If I own a unit, do I have the right to say who can and can't live in them, doesn't matter if they're Aboriginal. I'm not talking about Aboriginality. I mentioned the point early this morning, supposing mine was the last on stock, the last on the books, and the Agent is representing my interest and in walks a bloke who looks absolutely dishevelled, smells like a skunk and looks like skunk and he's got a sandshoe on one foot and a sardine tin on the other and a half empty bottle of beer under the arm, and he wants a flat. I would expect the agent to say no I am sorry we don't have anything. And I wouldn't expect if it was my flat that the agent would give any reasons. What then would the agent be guilty of? What discrimination would the agent be guilty of? I own the joint do I have the right or should I have the right to decide who should and shouldn't be allowed to rent it. Nothing to do with colour or whatever. That's the first basic question, do I have the right or don't I? What do you think? Give us a call. The first respondent then had a number of conversations with people who telephoned the radio station in response to his invitation to comment upon the issue he had raised. 132 It is necessary to determine, in relation to both respondents, whether the complainant has satisfied us on the balance of probabilities (to the Briginshaw standard) that the five elements of section 20C have been made out in this case. If we are satisfied that all of the five elements have been made out in relation to either or both respondents then (and only then) we must consider whether the respondents have satisfied us on the balance of probabilities that either or both of them fall within one (or more) of the exceptions set out in section 20C(2) of the Act. 133 We are satisfied that the first and second elements of section 20C(1) are made out in relation to both respondents. On the morning of 28 November 1995 the first respondent, who is a natural person, performed a "public act" as defined in section 20B (a) by communicating to the public, via the medium of broadcasting, on radio station 2UE. The second respondent, which is a corporation, also performed a "public act" at the same time as the first respondent because it, through the radio station for which it holds the broadcast licence, also engaged in broadcasting. For the reasons given in paragraphs 78 to 80 the second respondent falls within paragraph (a), and not paragraph (c), of the definition of "public act" in section 20B. As a primary publisher the second respondent committed a "public act" even though it had no prior knowledge of the statements made by the first respondent on the morning of 28 November 1995. For the reasons given in paragraph 81 we believe that the reference to "person" in section 20C(1) includes a reference to a corporation. Thus the second respondent is a person within the meaning of section 20C(1). 134 In order to properly determine whether we are satisfied that third, fourth and fifth elements of section 20C(1) are made out we believe it necessary to pose and answer two questions concerning the public act performed by both respondents on the morning of 28 November 1995. For the reasons given in paragraphs 82 - 103 we believe that it is necessary for the Tribunal to determine whether all or part of the public act in question would have incited the ordinary, reasonable listener to feel hatred towards, serious contempt for, or severe ridicule for a group of Aboriginal persons on the grounds of their race. To make this determination we must first consider the meaning of the language used in the public act performed by both respondents and then decide whether that meaning had the capacity to incite the proscribed effect within the ordinary, reasonable listener. 135 In posing the first question we should look to the meaning attributed to the public act by the complainant. This step ensures fairness to the respondents who may then argue, as they have done in this case, that the meaning alleged by the complainant is incorrect. In paragraphs 26 and 27 of her written submissions Ms Black set out what we understood to be the complainant's primary allegation concerning the meaning of the public act: 26. The repeated references to aboriginal or aboriginality on the first page [of the transcript] are juxtaposed with a highly charged description of a notional prospective tenant which appears twice in slightly different forms: "in walks a bloke who is absolutely dishevelled smells like a skunk and looks like a skunk and he's got a sandshoe on one foot and a sardine tin on the other and a half empty bottle of beer on the other…." 27. In other words the notional aboriginal person/prospective tenant is offensive to look at, offensive to smell, drunken, and best compared with that hated black animal a skunk. Chambers Dictionary gives as a secondary meaning to skunk: 'a despised person'. 136 Mr Campbell submitted that the ordinary, reasonable listener would not have drawn this meaning from the broadcast. In his written submissions he stated: …on any fair understanding of the broadcast Mr Jones was raising the finding of liability against a real estate agent for discrimination to raise a significantly wider subject for public discussion namely, the right of landlord to discriminate against unsatisfactory tenants and the obligation of his fiduciary ie. the agent, to protect the principal. In his oral submissions to the Tribunal Mr Campbell directly confronted the issue of the prospective tenant referred to twice by the first respondent in his broadcast and raised by Ms Black in her primary allegation. Mr Campbell said that unless the ordinary, reasonable listener understood the first respondent to be referring to an Aboriginal tenant nothing which the first respondent said could be taken as a reflection on any Aboriginal person. Mr Campbell referred to the disclaimers employed by the first respondent – "I don't care what colour he is" and "I'm not talking about Aboriginality" – in developing his argument that the hypothetical prospective tenant was not an Aboriginal person. 137 Identity is clearly an issue in this case. We refer to our comments in paragraph 103 concerning the approach which the Tribunal should take when determining this matter. In effect, liability under section 20C(1) turns, largely, on the racial identity, if any, of the hypothetical prospective tenant. 138 Bearing in mind this identification of the relevant issues and our determination concerning the applicable law we believe the following questions should be answered: 1. Would the ordinary, reasonable listener have understood the first respondent to be referring to an Aboriginal person when he described a hypothetical, prospective tenant in his radio broadcast by the second respondent on 28 November 1995? 2. If 'Yes' to Question 1, would the first respondent's description of the hypothetical, prospective tenant have incited the ordinary, reasonable listener to feel hatred towards or serious contempt for or severe ridicule for Aboriginal people in NSW on the ground of their race? Because of the view which we have taken in relation to the second respondent's responsibility for the public act in question and the lack of need to prove intention or knowledge when considering the element of incitement, the answers to both questions determine the issue of liability in relation to both respondents. If the answer to either Question 1 or 2 is 'No', we believe that the Tribunal must conclude that it is not satisfied that all of the elements of section 20C(1) have been made out and therefore dismiss the complaint against both respondents. If the answer to both Questions 1 and 2 is 'Yes', the elements of section 20C(1) are satisfied and we must then proceed to determine whether the respondents have satisfied us of any of the exceptions in section 20C(2). 139 We are satisfied that the first question should be answered in the affirmative. Because the first respondent, in his introductory comments concerning the case in Dubbo, made three references to an "Aboriginal woman" and contrasted this "Aboriginal woman" with "a white friend of hers" we believe that the ordinary, reasonable listener would have been acutely aware of the Aboriginality of the person who "argued discrimination" and "got an award of six thousand dollars". The bridge or link between the reference to the Dubbo case and the description of the hypothetical potential tenant which follows is the statement by the first respondent "Now I think that's a joke. And I'll tell you why I think it is". The first respondent then proceeded to describe a hypothetical potential tenant in outrageous and offensive terms. We believe that despite the use of the disclaimer, "I don't care what colour he is", but because of the reference to the Dubbo case involving the Aboriginal woman being "a joke", the ordinary, reasonable listener would have understood the hypothetical potential tenant described by the first respondent to be an Aboriginal person. The ordinary, reasonable listener would have been led to this understanding because there can be no other reason why he or she has been told that the result in the Dubbo case involving the Aboriginal woman is "a joke". We also believe that the ordinary, reasonable listener would have understood the disclaimer to be mere artifice: a shield behind which the broadcaster could say what he really felt about some potential Aboriginal tenants. It is common knowledge that such a disclaimer is often used by many people to "shield" the full force of their remarks in the event that they are called upon to account for them. 140 There was a second reference by the first respondent to the same case and the same hypothetical potential tenant later in the program. We do not believe that the ordinary, reasonable listener, who had not heard the earlier segment, would have necessarily understood the first respondent to be referring to an Aboriginal person when he described the hypothetical potential tenant. The juxtaposition of the reference to the Dubbo case with the description of the hypothetical potential tenant may have lead some listeners to conclude that the hypothetical potential tenant was an Aboriginal person. However, bearing in mind our discussion of the relevant legal principles at paragraphs 94-103, we are not satisfied, to the Briginshaw standard, that a "substantial and respectable group of the community"who heard the second segment alone would have considered the hypothetical potential tenant to be an Aboriginal person. 141 The difference between the two segments in the program is the language used to link the description of the Dubbo case with the reference to the hypothetical potential tenant. In the second segment, instead of referring to the result in the Dubbo case as "a joke", the first respondent merely said "I just want to make this point". He then proceeded, with a disclaimer about Aboriginality, to describe a hypothetical potential tenant in similar outrageous and offensive terms before proceeding to raise the issue of the right of an owner of property, and his or her agent, to take into account the attributes of the hypothetical potential tenant when deciding whether to lease a property to that person. Without the reference to the Dubbo case being "a joke" it is not sufficiently clear that the hypothetical potential tenant is an Aboriginal person. The language which links the Dubbo case with the description of the hypothetical potential tenant is decisive. 142 This lack of clarity, in our view, would not have changed the understanding of an ordinary, reasonable person who had heard both segments. The damage had already been done in the first segment and the first respondent did nothing in the second segment to rectify that damage. He simply chose his words more carefully with the result that the ordinary, reasonable listener who heard the second segment alone would not necessarily have understood the hypothetical prospective tenant to be an Aboriginal person. This analysis does not change our answer to the first question. We have provided it because we believe that we should attempt to describe as clearly as we can the reasoning which has lead us to answer this question in the affirmative. 143 We are satisfied that the answer to the second question is 'Yes'. In some instances a question like the second one should probably be divided into two because it could be necessary to separately identify the meaning of the language before proceeding to determine whether that meaning had the proscribed effect. However, in this case, the description of the hypothetical potential tenant is so outrageous and offensive that this step seems unnecessary. This is in keeping with the approach in defamation cases at common law as described by Gatley: In determining whether words are defamatory there are two stages, first to decide what they mean, and then to decide whether their meaning is defamatory. In practice, however, these two stages are dealt with together, and the jury is asked whether the words complained of are defamatory of the plaintiff (P. Lewis, Gatley on Libel and Slander , 8th edition, Sweet & Maxwell, London, 1981 at 20) As Ms Black argued, the hypothetical potential tenant is "offensive to look at, offensive to smell, drunken and best compared with that hated black animal a skunk". If the ordinary, reasonable listener understood this hypothetical potential tenant to be an Aboriginal person, as we have decided is the case, it follows, in our opinion, that the ordinary, reasonable listener would have been incited to have feelings of serious contempt for and severe ridicule of Aboriginal people in New South Wales on the ground of their race. 144 We do not believe that the ordinary, reasonable listener would have been incited to hatred because the description of the hypothetical potential tenant does not tend to stimulate feelings of intense dislike or detestation. The description, however, does stimulate a significant degree of scorn, disgrace, contemptuous laughter and derision amongst other responses. As we indicated at paragraph 109 those words are the ordinary meaning of contempt and ridicule. Because the description of the hypothetical potential Aboriginal tenant was so outrageous and offensive we believe that the ordinary, reasonable listener would have been incited to have feelings of serious contempt for, and severe ridicule of Aboriginal persons in New South Wales on the ground of their race. Whilst the first respondent described only one hypothetical potential Aboriginal tenant we believe that the ordinary, reasonable listener would have been incited to have the requisite degree of ill-feeling for Aboriginal persons generally on the ground of their race because the listener was presented with a description of a stereotypical potential Aboriginal tenant. The ordinary, reasonable listener would have been led to this understanding because of the reference to the Dubbo case involving the Aboriginal woman being "a joke". The result in that case was only "a joke" if the hypothetical potential tenant described by the first respondent was a stereotypical Aboriginal tenant. 145 Having answered both questions posed in paragraph 138 in the affirmative it follows that we are satisfied of all of the elements of section 20C(1) in relation to both respondents. The complainant has satisfied its burden of proof and we must proceed to determine whether either or both respondents have satisfied us of any of the exceptions in section 20C(2). 146 The respondents relied upon the 'public interest' exception in section 20C(2)(c). Bearing in mind our discussion of the applicable law at paragraphs 115 to 116 and the relevant facts of this case we believe that the following question should be answered: Was the public act by the respondents, which has been found to contravene section 20C(1) of the Act, done reasonably and in good faith for any purpose in the public interest? If the answer to this question is 'Yes' there has not been a breach of section 20C(1) and the complaint must be dismissed. If the answer to this question is 'No' there has been a breach and the complaint must be substantiated. As we indicated at paragraphs 126 and 127 the respondents bear the burden of proof in relation to this exception. 147 In some cases it will be possible to objectively determine, by looking at the content of the public act, whether it was performed in the public interest. If, in a particular case, it is difficult to make that characterisation by an objective evaluation of the public act, evidence from the person who performed the public act concerning his or her purposes may be determinative. In this case, even in the absence of any evidence from the first respondent, we believe it is appropriate to conclude that the public act was performed in the public interest, as defined in section 20C(2)(c). Mr Campbell submitted that the first respondent used the finding in the Dubbo case "to raise a significantly wider subject for public discussion namely, the right of a landlord to discriminate against unsatisfactory tenants and the obligation of his fiduciary, ie, the agent, to protect the principal". We consider that to be a fair and reasonable characterisation of the purpose of the broadcast in question which clearly brings it within the extremely broad concept of public interest in section 20C(2)(c). 148 When considering whether the public act was done reasonably and in good faith it is far more difficult to rely upon an objective evaluation of the public act alone. As we stated at paragraph 122 "good faith" is a state of mind and the crucial factor in determining its presence appears to be whether the person who performed the public act honestly believed in the truth of what he said. We had no direct evidence of this matter for the first respondent did not give evidence and it was the second respondent's case that it did not know what he was going to say and that it exercised no editorial control over the first respondent's program. There was evidence of a general nature from both Mr Hibbard and Mr Liddiard that the first respondent had done many positive things for the Aboriginal organisation, NASCA, and that he had provided considerable financial and other assistance to individual Aboriginal people. This evidence was not contested and we accept that it demonstrates that the first respondent has undertaken good deeds for Aboriginal persons and organisations. This evidence alone, however, does not permit us to determine that the first respondent acted in good faith when he performed the public act in question on 28 November 1995. 149 There is insufficient evidence for us to conclude that the first respondent acted in good faith; the law places the onus upon him to satisfy the Tribunal that he honestly believed in the truth of what he said. He has not discharged that onus and consequently we cannot be satisfied that the first respondent acted in good faith when he performed the public act in question. Because of the view which we have taken about the second respondent's responsibility for the public act in question it follows that we cannot be satisfied that it acted in good faith. 150 Our conclusion in relation to this issue renders it unnecessary for us to say a great deal about what is undoubtedly the most challenging aspect of the exceptions to the racial vilification provisions of the Act: whether a public act performed for a purpose in the public interest was reasonable. We said at paragraph 121 that in order for a public act to be reasonable it must be one which an ordinary, reasonable person would consider to be reasonable in the circumstances of the case and we suggested that a statement which is exaggerated, obstinate or prejudiced is unlikely to be reasonable. It does not follow that a statement must be true or even-handed to be reasonable. For instance, much of the discussion which took place between the first respondent and the callers to his program was an inaccurate depiction of the law. It is quite lawful for a property owner, or his or her agent, to refuse to rent premises to a person because of a reasonable belief that the person will be an unsuitable tenant due to lack of cleanliness or lack of ability to care for the premises. In reaching this decision the race of the prospective tenant is irrelevant. A person of any race who is not permitted to rent premises because he or she is judged to be an unsuitable tenant cannot succeed in a complaint of race discrimination if race was not a factor which influenced the decision by the owner or the agent. It is, however, unlawful to refuse to rent premises to a person because of stereotypical assumptions based on the race of that person. But, as we have noted, lack of accuracy does not render a statement unreasonable. 151 It seems that the ultimate effect of the reasonableness requirement in section 20C(2)(c) is to call upon a person who has been found to have performed a public act which contravenes section 20C(1) to explain his or her behaviour. This appears to have been the balance struck by the legislature between the need to protect the interests of people who are injured by racially vilifying statements and the free speech rights of those people who choose to make potentially injurious statements. No doubt in those cases where respondents choose to avail themselves of the opportunity to explain their behaviour the reasonabless requirement will be interpreted quite broadly. We do not have evidence in this case which explains the remarks in question from the perspective of the respondents. 152 An objective analysis of the remarks made by the first respondent, which is the only course available to us in the absence of any evidence from him, suggests that those remarks were exaggerated and unreasonable in the circumstances. We believe we can take notice of the fact that the Dubbo case referred to in the first respondent's program was the case of Lamb v Samuels Real Estate Pty Ltd in which judgment was delivered by the former Equal Opportunity Tribunal on 27 November 1995. The statement of reasons in that case ((1996) EOC 92-790) and the judgment in the unsuccessful appeal to the Supreme Court (James J, unreported, 17 February 1998; [1998] NSWSC 35) reveal that the "Aboriginal woman's" (Ms Lamb's) suitability as a tenant was not an issue in the case. Consequently, it seems extraordinary and unreasonable, for a broadcaster, when discussing and criticising a decision of a tribunal, which he is quite entitled to do, to link in exaggerated terms a matter which had nothing to do with that particular case (i.e. the suitability of Aboriginal persons as tenants), with his broader topic which was the right of a landlord to discriminate against unsatisfactory tenants and the obligation of agents to protect principals. The first respondent embarked upon this course at his own risk and, on the basis of the evidence before us, the respondents have not satisfied us that their public act in question was reasonable. 153 We have reached this conclusion without in any way referring to the impact of the first respondent's remarks upon Aboriginal people in New South Wales. In the absence of detailed argument we should not proceed beyond tentative views but it seems that in many cases a factor to be taken into account when determining whether a public act performed for a purpose in the public act interest was "reasonable" will be the impact of that public 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. Whilst we heard no evidence about this matter, and it is not a factor which influenced any conclusions in this case, we believe that any Aboriginal people who heard the broadcast in question would have been deeply offended by what we have found to be was a description of a potential Aboriginal tenant. 154 In view of the foregoing analysis our answer to the question posed in paragraph 145 must be 'No'. Consequently the complaint must be substantiated against both respondents and we must determine what relief, if any, should be ordered. Remedies 155 The remedies which the Tribunal may order are set out in section 113 of the Act which is reproduced at paragraph 37. As the Tribunal determined that this matter should proceed as a representative complaint, damages cannot be awarded (section113(1)(b)(i)) and nor can we order the respondents to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant (section 113(1)(b)(iii)). As this is a vilification complaint we may order the respondents to publish an apology (section 113(1)(b)(iiia)) and we may order the respondents to develop and implement a program or policy aimed at eliminating unlawful discrimination. 156 In its 'Further Amended Points of Claim' the complainant sought the following remedies: (a) a declaration that the respondents acted in contravention of section 20C of the Act (b) an order that the respondents publish an apology to Aboriginal people "as Radio 2UE's…editorial comment throughout a full day directly following each news bulletin over a twenty four hour period". The terms of the proposed apology were set out in the 'Further Amended Points of Claim' and in Ms Black's written submissions. (c) an order that the first respondent publish an apology to Aboriginal people by way of a letter to the complainant in the same terms as the broadcast apology (d) an order that the second respondent implement a program aimed at eliminating unlawful vilification by employing as a researcher or program assistant for a minimum period of one year, at a salary of not less than $30,000 per annum, a person of Aboriginal descent who has lived for a period of more than two years in the central western region of NSW (e) in the alternative to (d), an order that both respondents pay to the Special Broadcasting Service Corporation the sum of $40,000 for use in the production of the television program known as 'Indigenous Cultural Affairs Magazine' or, if that program is no longer in production, for use in the production of a television or radio program concerned with issues pertaining to indigenous people and specifically Aboriginal persons. 157 We should deal with each of these matters in turn. As Mr Campbell submitted, the Tribunal does not have the power to make a declaration. It does, however, have the power to find a complaint substantiated and we understood this finding to be to the same effect as the declaration sought by the complainant. We have already indicated that we do find the complaint substantiated against both respondents. 158 Ms Black submitted that because the racial vilification provisions of the Act have objectives which are clearly educational and because the public act in question was broadcast to a large audience the apologies sought by the complainant were appropriate. Mr Campbell submitted that the claimed apologies should not be ordered because there could only be a finding against the respondents, on the facts of this case, if the Tribunal were to conclude that intention is not a necessary part of incitement, because of the fact that the public act in question was a radio broadcast made over four years ago (which has "gone into the ether") and because the complainant perpetuated the broadcast by supporting the application that the media have access to the tape of the excerpts from the first respondent's program. 159 In the circumstances we believe it appropriate to order both respondents to publish an apology on radio station 2UE and to order the first respondent to forward a letter of apology to the complainant. Just because the Tribunal has determined that a person may breach section 20C(1) by a public act which incites others to have the requisite degree of ill-feeling for a group of people on the ground of their race, without intending to produce that response in his or her audience, it does not follow that the person who performed the public act should not be held responsible for his or her actions. We have accepted the evidence that the first respondent has made a very positive contribution to an Aboriginal organisation and that he has provided financial and other assistance to individual Aboriginal people. Ms Black made it clear that her client made no allegation that the first respondent was a "racist", whatever that term may mean. But thoughtless or careless statements can stir up others and can cause considerable pain to those people who are vilified by the statements. 160 No doubt it is not easy to conduct an unscripted current affairs radio program. Perhaps it is tempting to be outrageous and controversial; to give the audience something which the broadcaster believes a portion of them may wish to hear in order to reinforce stereotypical views held by many in the community. That was certainly the result in this case for a number of callers to the program made comments, based upon stereotypes, about people of various races and national backgrounds being unsuitable tenants. 161 It does not follow, in our opinion, that because the public act was a radio broadcast which no longer exists that a published apology would be inappropriate. The apology which both respondents will be directed to make will be in the same format as the public act which generated this complaint. We have no idea about the on-going impact of the first respondent's remarks upon his audience. The apology may redress any lingering impact and, as Ms Black submitted, it should have an educative effect. The complainant was entitled, we believe, to view this complaint as one which may inform a broad audience about the racial vilification provisions of the Act. Consequently, we cannot accept Mr Campbell's submission that the remedy of an apology is unsuitable in this case. The first respondent will be directed to read the apology and the second respondent will be directed to permit its airwaves to be used for this purpose in the same way that its airwaves were used when the public act in question was performed. 162 The apologies which are set out in Annexures A and B to these reasons are in slightly different terms to the apologies sought by the complainant. We have determined that it is unnecessary to recall the parties for submissions in relation to the changed wording because we have not made any material changes and hence there can be no unfairness to either party in ordering apologies which do not contain the precise form of words set out in the 'Further Amended Points of Claim'. The changes we have made simply render the wording of the apologies a little more formal than that proposed by the complainant. We propose to grant liberty to apply in relation to the implementation of these orders because it is difficult to anticipate all of the matters which could influence the capacity of the respondents to comply with the orders over the next 28 days. In our opinion it is appropriate to order that the broadcast apology be made once. 163 Whilst Ms Black did not formally abandon the application for the orders set out at (d) and (e) in paragraph 155 she made it clear that the primary relief sought by the complainant was the apologies. 164 In view of the educative nature of these proceedings, the evidence concerning the first respondent's association with the Aboriginal community and the evidence from Mr Hibbard concerning radio station 2UE's various positive activities with Aboriginal people, we are not persuaded that it is appropriate to make an order pursuant to section 113(1)(b)(iiib) of the Act. 165 We do not propose to make any orders concerning costs. The complainant did not make an application for costs but, as we noted in paragraph 13, the Tribunal ordered that the question of costs be reserved when it dismissed the complaint against Mr Wallace. In the circumstances it is appropriate to grant all parties liberty to apply in relation to the question of costs. REASONS FOR DECISION OF MR M LUGER 166 Whilst my colleagues and I have agreed in relation to most issues in this case I disagree with the conclusion reached by them in relation to one important question of fact. 167 Two questions are posed in paragraph 138. My answer to the first question is 'Yes', but to the second question my answer is 'No'. 168 I do believe that the ordinary, reasonable listener would have understood the first respondent to be referring to an Aboriginal person when he described a hypothetical potential tenant in his radio broadcast on 28 November 1995. I do not believe, however, that this understanding would have incited the ordinary, reasonable listener to have held the requisite degree of ill-feeling for Aboriginal people in NSW on the ground of their race, because that listener would have felt scorn only for those people, who had the obnoxious characteristics of the hypothetical potential tenant. 169 I believe that the first respondent was reckless and somewhat ill informed when he voiced his strong objections to the anti-discrimination laws and processes in place to protect individuals against unfair and unjust rental regulations. The "joke" alluded to in the first respondent's statements was the anti-discrimination law, which he believed did not protect owners and realtors from prospective, obnoxious, destructive tenants. 170 I believe all the portions of the first respondent's broadcast on 28 November 1995 which related to the rental rights of owners, realtors and tenants must be considered in total as one entity. His utilisation of a hypothetical, obnoxious individual as a potential renter did not vilify Aboriginals in general. He made it clear that he was not commenting on or objecting to the colour or Aboriginality of the prospective, hypothetical tenant but to that individual's characteristics and demeanour. 171 Even if a reasonable listener concluded that the first respondent was describing an Aboriginal person, would the listener be incited to feel hatred, serious contempt, or ridicule towards Aboriginal people in general on the grounds of their race or would the listener experience scorn towards those with the obnoxious characteristics described by the first respondent? I believe only the latter. 172 Because my answer to the second question posed in paragraph 138 is 'No', I would dismiss the complaint. ORDERS 173 The orders of the Tribunal are as follows: 1. Complaint substantiated against both respondents. 2. The first and second respondents to broadcast an apology in the terms set out in Annexure A to these orders within 28 days of the date of these orders. 3. The first respondent to send a letter of apology to the complainant in the terms set out in Annexure B to these orders within 28 days of the date of these orders. 4. Liberty to apply in relation to the implementation of orders 2 and 3 and the question of costs. ANNEXURE A The first respondent is to broadcast the apology which appears below during his radio program on radio station 2UE within 28 days of the date of these orders. The second respondent is to permit the first respondent to broadcast the apology on radio station 2UE within 28 days of the date of these orders. On 28 November 1995, on my breakfast program, I commented on a case in which the Equal Opportunity Tribunal awarded an Aboriginal person $6,000 in respect of a complaint of racial discrimination against a real estate agent. During the course of that program I broadcast remarks which have been found by the Equal Opportunity Division of the Administrative Decisions Tribunal to be in breach of the racial vilification provisions of the Anti-Discrimination Act. I apologise to the Aboriginal people of New South Wales for those remarks. It is unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or a group of persons on the ground of their race. ANNEXURE B The first respondent is to forward a signed letter of apology, in the terms which appear below, to the complainant by ordinary post within 28 days of the date of these orders. The Co-ordinator Western Aboriginal Legal Service Ltd Stephen Fitzpatrick House 23-25 Carrington Avenue DUBBO NSW Dear Sir/Madam On 28 November 1995, on my breakfast program, I commented on a case in which the Equal Opportunity Tribunal awarded an Aboriginal person $6,000 in respect of a complaint of racial discrimination against a real estate agent. During the course of that program I broadcast remarks which have been found by the Equal Opportunity Division of the Administrative Decisions Tribunal to be in breach of the racial vilification provisions of the Anti-Discrimination Act. I apologise to the Aboriginal people of New South Wales for those remarks. It is unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person or a group of persons on the ground of their race. Yours sincerely Alan Jones DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.