Supreme Court New South Wales Medium Neutral Citation: Margan v Manias [2015] NSWSC 307 Hearing dates: 13 February 2015 Date of orders: 26 March 2015 Decision date: 26 March 2015 Jurisdiction: Common Law Before: Hall J Decision: Summons dismissed Catchwords: STATUTORY INTERPRETATION – Anti-Discrimination Act 1977, s 49ZT – identification of the audience to a "public act" that is alleged to have contravened s 49ZT(2) (homosexual vilification) – whether knowledge of two separate public acts must be established in one actual audience or whether knowledge of the facts of one is sufficient and, applying a test of a hypothetical ordinary member of the class to whom the public act was directed, knowledge of the facts of the first public act may be taken or assumed as being within the knowledge of the members of the audience present at the time of the second public act Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination (Homosexual Vilification) Amendment Bill Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Interpretation Act 1987 Supreme Court Act 1970 Cases Cited: Catch the Fire Ministries Inc [2006] VSCA 284 Jones v Trad (2013) 86 NSWLR 241 Margan v Manias [2013] NSWADT 177 Margan v Manias [2014] NSWCATAP 16 R v Massie [1998] VSCA 82; [1999] 1 VR 542 Sunol v Collier (No 2) [2012] NSWCA 44 Young v Cassalls (1914) 33 NZLR 852 Category: Principal judgment Parties: Simon Margan (Plaintiff) Danny Manias (Defendant) Representation: Counsel: G Curtin SC; J Mack (Plaintiff) No Appearance (Defendant) Solicitors: Self Represented (Plaintiff) No Appearance (Defendant) File Number(s): 2014/170411 Judgment 1. The plaintiff, Mr Margan, filed a Summons on 6 June 2014 seeking judicial review of a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal ("NCAT"). 2. The appeal is concerned with the application of s 49ZT of the Anti-Discrimination Act 1977 (NSW) ("the Act") which is contained within Part 4C of that Act entitled "Discrimination on the ground of homosexuality". 3. Section 49ZT, entitled "Homosexual vilification unlawful", makes it unlawful for a person to engage in a "public act" amounting to homosexual vilification within the meaning of that section. That section provides: (1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1); or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation; or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 1. The proceedings brought by the plaintiff seek judicial review of an administrative decision pursuant to s 65 and s 69 of the Supreme Court Act 1970 (NSW), namely, the decision made by an Appeal Panel of the New South Wales Civil and Administrative Tribunal in Margan v Manias [2014] NSWCATAP 16. That decision was itself an appeal from the earlier decision of the Administrative Decisions Tribunal ("the Tribunal") in Margan v Manias [2013] NSWADT 177. The latter decision dealt with a complaint made by the plaintiff to the Anti-Discrimination Board concerning conduct by the defendant which is alleged to have constituted both unlawful homosexual vilification and serious homosexual discrimination for the purposes of ss 49ZT and 49ZTA of the Anti-Discrimination Act respectively. Those sections make conduct of that kind unlawful. 2. Appeals to this Court from administrative decisions on questions of law can be brought with leave under s 83(1) Civil and Administrative Tribunal Act 2013 (NSW). That Act, which came into force on 4 March 2013, contains no provision for appeals as of right, that is, without leave. However, a right to appeal without leave was previously contained in s 119 Administrative Decisions Tribunal Act 1997 (NSW). Section 119 has now been repealed, though Clause 10 of Schedule 1 of the Civil and Administrative Tribunal Act provides for pre-existing appeal rights to be exercised where they have not yet been exercised. The effect of this is that if the plaintiff was able to appeal as of right under s 119 of the Administrative Decisions Tribunal Act that right would remain exercisable. 3. In the plaintiff's Written Submissions it was submitted that the plaintiff did have a right to appeal without leave due to the operation of Clause 10 of Schedule 1, which they submitted meant that s 119 continued in effect. In that respect I note that the decisions of the Tribunal and the Appeal Panel were handed down on 7 August 2013 and 9 May 2014 respectively. As such, both decisions were made after the commencement of the new Civil and Administrative Tribunal Act on 4 March 2013. In those circumstances it is doubtful as to whether the plaintiff did indeed have an unexercised right to appeal arising from the operation of Clause 10, Schedule 1 of the Act. 4. However, I consider that it is unnecessary to determine the question of whether the plaintiff had a pre-existing right to appeal, as I have determined that, given the potential significance of the issues raised in the proceedings by the appeal, leave should be granted in any event. 5. At the hearing in this Court, Mr G Curtin SC, with Mr J Mack of counsel, appeared on behalf of the plaintiff, Mr Margan. There was no appearance by or on behalf of the defendant, Mr Manias. 6. The plaintiff's complaint to the Anti-Discrimination Board, which was the subject of the proceedings heard and determined by the Tribunal and subsequently by the Appeal Panel, concerned two incidents which took place between himself and the defendant several days apart. The plaintiff, in his complaint to the Board, alleged that certain acts of the defendant constituted both unlawful homosexual vilification and serious homosexual discrimination for the purposes of ss 49ZT and 49ZTA of the Act respectively. The claim alleging serious homosexual discrimination under s 49ZTA was not pursued in this Court. The first incident the subject of the complaint occurred some days before 9 August 2010 (referred to in the Appeal Panel's decision as "the verbal conduct"). The second incident occurred on 9 August 2010 at about 10:30pm (referred to in the Appeal Panel's decision as "the physical conduct"). 7. The first act, "verbal conduct", is summarised in the plaintiff's Written Submissions as follows: "(1) In the week prior to 9 August 2010 (the precise day is unknown) Margan was in Oxford St, Darlinghurst, putting up same-sex marriage posters along Oxford St. (2) Manias appeared to be following Margan and appeared to be keeping pace with him. (3) Near the corner of Oxford and Brisbane Sts Manias yelled to the street in general, but no one particularly (the 'verbal conduct'): (a) 'I am going to eradicate all gays from Oxford St'; (b) 'Do not worry, I am doing good work'; and (c) 'There are wicked things taking place on Oxford St'." 1. The second act, the "physical conduct", involved an assault on the plaintiff by the defendant which occurred some days later on 9 August 2010. According to the plaintiff's submissions, the assault resulted in Mr Margan sustaining a fracture to his left interior medial orbit which has caused an ongoing loss of visual acuity, other facial fractures, cognitive problems, sleep disorders and stuttering. 2. In its decision dated 7 August 2013 the Tribunal found the verbal conduct to be unlawful homosexual vilification pursuant to s 49ZT. The Tribunal, however, rejected Mr Margan's contention that the physical conduct (the assault), considered in isolation, was unlawful vilification because there was no "incitement". The Tribunal also rejected the submission that the verbal conduct and the physical conduct should together be regarded as one public act for the purposes of the section. 3. The plaintiff, as noted above, then appealed to the Appeal Panel of NCAT. In its decision of 9 May 2014, the Appeal Panel upheld the Tribunal's decision. In particular, it rejected the plaintiff's contention that the Tribunal should have regarded the verbal and physical conduct as one public act. Additionally, the Appeal Panel rejected a contention that the Tribunal should have applied a test based upon a "hypothetical observer" of the physical conduct who ought to be assumed to have had knowledge of the verbal conduct. The Panel also found, like the Tribunal, that the physical conduct could not of itself amount to unlawful homosexual vilification. 4. The Appeal Panel's Decision 5. The Tribunal considered the submission for the plaintiff to the effect that although the verbal conduct and the physical conduct took place on different days, they constituted one public act: Margan v Manias [2014] NSWCATAP 16 at [10]. It noted that "a public act" is defined in the Act. In particular, reference was made to sub-paras (a) and (b) of the definition. (The provisions of s 49ZS(a), (b) and (c) are extracted in paragraph [52] below). 6. The Appeal Panel noted: "Mr Margan submitted that Mr Manias' verbal conduct and physical conduct should be regarded as 'combined' because: (a) these two instances of conduct occurred in the same location: Oxford St, Darlinghurst; (b) the Tribunal has taken judicial notice of the fact that this location is 'predominantly associated with the LGBTI community'; (c) the verbal conduct was a 'reinforcement of' the subsequent physical conduct. That submission was based on the definition of 'public act' which includes both speaking, in s 49ZS(a) and 'any conduct … observable by the public including actions and gestures' in 49ZS (b); (d) the test of whether unlawful vilification occurred under s 49ZT requires an assessment of the reactions of a hypothetical, not an actual, observer of the relevant conduct. It is irrelevant, therefore, to determine whether any one or more persons witnessed both the 'verbal' and the 'physical' conduct. What should be assessed instead is the reaction of a hypothetical observer of both these instances of conduct." (at [11]) 1. As the Appeal Panel observed, the Tribunal was not persuaded by the above arguments and found that the verbal conduct and the physical conduct were two separate acts which could not be analysed as one act. 2. In relation to the physical conduct, the Appeal Panel stated: "But in relation to the physical conduct, the Tribunal was not satisfied that there was any incitement of the relevant kind. The Tribunal's reasons for reaching that conclusion can be briefly summarised as follows: (1) At the time of the assault Mr Manias did not say anything that would have encouraged onlookers to have negative feelings about homosexuals. (2) Mr Manias assaulted five victims, seemingly at random, on the same evening. (3) There was no evidence to suggest that in the week before 9 August 2010 Mr Manias recognised Mr Margan as the person who had been putting up gay marriage posters a few days earlier. (4) The fact that Oxford St Darlinghurst is well known to be an area where homosexual people are to be found is not sufficient to suggest that the public act involved incitement on the ground of homosexuality. The attack on Mr Margan took place outside a convenience store and there was no evidence that such a store is frequented predominantly by homosexuals. (5) Any suggestion that the 'islander girls' (who saw some of Mr Manias' behaviour) might have been prompted by Mr Manias' assault to feel hatred or contempt is not relevant because what matters is the reaction of hypothetical, not actual observers." (at [15]) 1. The Appeal Panel in disposing of Ground 1 – under the subheading "One public act or two?" – observed: "In this case the verbal conduct and the physical conduct occurred several days apart although the exact period is unknown. The Tribunal did not err by regarding them as two separate public acts. We do not accept Mr Margan's submission that treating the two incidents as distinct is 'an overtly technical separation and defeats the legislation's intention.' There is no basis in the legislation for requiring 'one analysis' of these two acts. We also reject Mr Margan's submission that the events should be regarded as a 'course of conduct'. The 'public act' must be a 'communication to the public' including conduct observable by the public. While a communication may take place on more than one occasion, it is a question of fact to determine whether each occasion constitutes a separate public act. (at [21]) 1. In relation to Ground 2 – "Assumed knowledge of the audience" - the Appeal Panel noted: "23. The second ground, referred to as 'the theoretical test', was that the Tribunal erred when determining whether the physical conduct incited hatred because it excluded the hypothetical ordinary person's knowledge of both the prior verbal comments and Mr Margan's homosexuality. 1. The subject of this ground was given emphasis in the present proceedings. The concept of what was referred to as "the hypothetical ordinary member of the public" and the assumed or "hypothetical" knowledge of events associated with the "verbal conduct" at the time of the later "physical conduct" was central to the line of argument in this Court. 2. The Appeal Panel in its decision stated: "24. This ground raises a question of law, or at least a mixed question of fact and law, because it asserts that the hypothetical ordinary member of the public who saw the physical conduct should be taken to have known about other events. According to Mr Margan, an ordinary member of that audience viewing the physical conduct would have known, firstly, about the earlier verbal conduct and, secondly, that Mr Margan is homosexual because he was putting up gay marriage posters at the time. … 27. Mr Margan accepted that the relevant test when considering incitement is whether the public act has the capacity or effect of inciting the ordinary member of the audience to whom the public act is directed, to hatred, serious contempt or severe ridicule of a person or group of people on the ground of their homosexuality. His point was that, in relation to the physical conduct, the ordinary member of that class would have been aware of the verbal conduct and would have known by the fact that Mr Margan was putting up gay marriage posters that he is homosexual. The basis for this view was threefold: (1) in cases of provocation, an ordinary person's sensitivity to sexual abuse is relevant: Green v R [1997] HCA 50 ; (1997) 191 CLR 334; (2) there was no doubt about the factual circumstances of the verbal conduct and the physical conduct and on both occasions the conduct took place in public; and (3) both parties had knowledge of each incident. … 29. This case [Green v R [1997] HCA 50] does not advance Mr Margan's submission that the "ordinary person" in relation to a complaint of homosexual vilification should be assumed to know about something that took place in the same vicinity days earlier. The issue is whether the particular public act has the capacity or effect of inciting ordinary members of the audience to which they were directed (that is the general public) to feel hatred and/or serious contempt for Mr Margan and for homosexual men generally on the ground of their homosexuality. 30. The audience in relation to any public act is the person or group of people to whom the public act is directed. That person in this case is a hypothetical member of the public who was a witness to the public act: Jones v Trad [2013] NSWCA 389 at [63]. That person may be taken to be aware of significant current affairs and events. But the hypothetical onlooker is not omniscient. He or she is not deemed to know about other events that have taken place between the same two people on another occasion even if those events took place in public. The Tribunal did not make an error of law in relation to what was in the mind of hypothetical members of the audience." 1. The Tribunal concluded at [35]: "The incitement must be 'on the ground of' homosexuality. Mr Margan needed to demonstrate a connection between the physical conduct and his homosexuality. The Tribunal did not err in finding that, in the circumstances of this case, there was insufficient evidence of such a connection." 1. In the course of dealing with an application by the plaintiff to adduce fresh evidence in relation to the attitude of ordinary members of the public to homosexuals before the Appeal Panel, the Panel observed: "54. Regardless of the particular demographic characteristics or attitudes of a hypothetical person in Oxford Street at the time, the words would have 'reached the mind' of an ordinary member of that audience as something which would encourage the requisite emotion. The question is not whether a person would have hated or had severe contempt for homosexuals after hearing those words. The question is whether the words would have the effect of inciting or encouraging the requisite emotion. 55 The Tribunal's decision in relation to the physical conduct was based on a finding at [55] that there was no incitement of the relevant kind. Regardless of the particular demographic characteristics or attitudes of a hypothetical person in Oxford Street at the time, the conduct would not have 'reached the mind' of an ordinary member of that audience as something which would encourage the requisite emotion. That is because of the context in which that conduct occurred. Mr Manias did not say anything about homosexuals at the time. He assaulted five victims on that night, seemingly at random and there was no evidence that Mr Manias recognised Mr Margan. Even if there had been evidence as to the demographic composition or attitudes of a hypothetical ordinary member of the audience, the Tribunal's decision would have been the same." The Grounds of Appeal and Issues Raised in this Court 1. In the Summons filed in this Court, two grounds are identified in the following terms: "1. The tribunal's emphasis on the need for the respondent to state their intention to vilify in order to establish the ground for the physical vilification is contrary to the rule that the intention of the respondent is irrelevant, reaffirmed in Sunol v Collier (No 2) [2012] NSWCA 44 at [30-31 (Bathurst CJ)]. 2. The tribunal's decision to make inadmissible the background incidents and comment prior to the physical assault was incongruous to the ordinary 'reasonable person' test being a hypothetical, not a practical test, therefore contrary to the rule allowing the inclusion of all of an incident's relevant history in consideration of the hypothetical reasonable person's reactions, mandated in Green v R [1997] HCA 50." 1. The plaintiff did not challenge the Panel's finding that the physical conduct did not constitute unlawful homosexual vilification in this Court: Written Submissions at [15]. The plaintiff submitted however that the Appeal Panel erred in rejecting the two other grounds of appeal before the Panel, namely, that "the Tribunal erred in failing to find that the verbal and physical conduct were one public act" and that "the Tribunal erred in failing to find that the hypothetical observer of the physical conduct ought be assumed to have had knowledge of the verbal conduct (and thus have linked the physical conduct to the verbal conduct)": Plaintiff's Written Submissions at [13]-[15]. 2. The grounds of appeal identified in the Summons, particularly Ground 2, as well as the Written Submissions, focussed upon whether the Tribunal appropriately applied the provisions of s 49ZT in a manner consistent with principles of statutory interpretation. In particular, the plaintiff submitted that the provisions of ss 8(b) and 33 of the Interpretation Act 1987 should have been applied to s 49ZT. Plaintiff's Submissions The First Point: Section 8(b) Interpretation Act 1987 1. The plaintiff submitted that the Tribunal should have applied s 8(b) of the Interpretation Act 1987 to the term "public act" in s 49ZT so as to include and give effect to "public act" in its plural form when applying the provisions of that section. 2. Section 8(b) states, inter alia: "In any Act or instrument; … (b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form." 1. In his supplementary oral submissions, Mr Curtin SC submitted that both the Tribunal and the Appeal Panel erred in determining the application of the meaning of "public act" adopted in this case, namely, by failing to apply the meaning of that expression in its plural form. The Act was said to be "beneficial" legislation calling for a broad interpretation and there was nothing in it to displace the plural meaning of "public act": T 14. 2. The effect of s 8(b) in the context or circumstances of the present case, it was argued, would be that the verbal conduct and the physical conduct, despite being two separate "public acts" could be seen to combine and to constitute a single act of vilification under s 49ZT. If this interpretation was accepted, so the argument ran, the physical conduct could be viewed as an extension of the incitement contained in the verbal conduct. The plaintiff's submissions noted that the provisions of s 8(b) can be displaced if it is apparent that the drafters of the legislation had not intended it to apply. However, it was submitted that the present is not a case where the presumption under s 8(b) must yield, there being nothing in the Act to displace the presumption. The Second Point: The Purpose and Objects of the Act 1. Reliance was also placed upon s 33 of the Interpretation Act which provides: "Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object." 1. In applying the provisions of s 33, it is of course relevant to have regard to the purpose or object of the Act. To this end, the plaintiff relied heavily on references to violence in the Second Reading speech to the Anti-Discrimination (Homosexual Vilification) Amendment Bill which introduced the provisions currently under consideration. 2. In Sunol v Collier (No 2) [2012] NSWCA 44, Allsop P (as his Honour then was) observed: "The secondary material being the second reading speech of Clover Moore MP for the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (Legislative Assembly, 11 March 1993) and the report of the New South Wales Anti-Discrimination Board entitled "Discrimination and Homosexuality" published in 1982 identified the subject matter and mischief to which Pt 4C was directed. This subject matter included the way homosexuals were from time to time vilified in public, which was seen as capable of creating the conditions for violence against homosexual men and women. Violence was more directly addressed by s 49ZTA, but the incitement of hatred, serious contempt or severe ridicule can be seen to create the conditions for violent behaviour." (at [57]) 1. The argument for the plaintiff accordingly asserted error by the Tribunal in its approach to construing the provisions of ss 49ZS and 49ZT. The error was said to have resulted in an unduly narrow construction of the latter provision and the introduction of restrictions that do not exist in the Act. The result, so it was argued, was that an incorrect test had been applied by the Tribunal to the facts of the case. 2. Specifically it was argued that the Tribunal and the Review Panel did not properly construe and apply the definition of "public act" in s 49ZS to the facts of this case. That in turn is said to have resulted in an error of law. The Issue of the "Hypothetical Ordinary Person" Test 1. The plaintiff's further submissions were based on the application of what was referred to as the "hypothetical ordinary person" test. Implicit to the plaintiff's submissions was the contention that this test was the correct one to be applied to s 49ZT in light of the principles of statutory interpretation referred to above. The "hypothetical ordinary person" test proceeded on the premise that members of the relevant class to whom the impugned public act or conduct is directed are to be assumed to have knowledge of both events (that is, the "verbal conduct" as well as the "physical conduct"). 2. It was submitted that the Appeal Panel, in holding that one does not make that assumption, was in error. The Panel's finding in that respect in this case, was said to have introduced "… a requirement for 'actual observation' of two events before the two events can be examined to determine whether they, conjunctively, incited hatred": Plaintiff's Written Submissions at [39]. 3. The plaintiff's Written Submissions at [43]-[45] continued: "Our point is that in those respects the provisions do not rely upon proving what any 'actual' observer felt in response to observing a public act. Why then, particularly when the provisions are silent, is there a requirement for actual observation of two events. It is important to observe, we suggest with respect, that subsections (a) and (b) of s 49ZS, the definition of 'public act', do not include any requirement that the writing or actions (as examples) are in fact observed. The conduct in sub-section (b) must be observable (by the public), but arguably is not require to be observed. The same would seem to apply to sub-section (a) although the word 'observable' does not appear in that sub-section." 1. The submissions were developed by reference to a "common audience" where there was one audience to two events and also to a case where there were two separate audiences. Members of a common audience, it was noted, may have been present at both events. In a case such as the present, it was submitted, knowledge of the "verbal conduct" would "contextualise" the "physical conduct". 2. Whilst in this case there were two audiences to the two events, it was submitted that "the existence … of a common audience is not required by the legislation… and this is at the heart of the legal error into which the Appeal Panel, with great respect, fell": T 15:41-45. 3. The argument developed by Mr Curtin in his oral submissions then moved to the concept of what was termed "the hypothetical member of the public", and it was contended that such a "hypothetical" person: "… does consider the two separated events … it is then open to the Tribunal to find that the hypothetical ordinary member of the public would link the two, find them conjunctively in the sense I have mentioned, then it is open to the Tribunal to treat the two events as public acts which incite others to harbour hatred, etc …": T 16:10-15. 1. It was acknowledged that in determining factual and other issues it would also in such a case, be open as a question of fact to the Tribunal not to "link [the] two events". However, the Tribunal, it was argued, was required at least to consider that question: T 16:25 2. In the present case, it was contended that there was a strong argument in favour of Mr Margan that "the hypothetical member of the public considering these two conducts, conjunctively, would link the two …": T 16-7. Specific factual matters were specified as supporting that submission. 3. The argument for the plaintiff accordingly was that: "The hypothetical ordinary member of the public, if we assume they knew of this verbal conduct, Manias walking up Oxford Street, (saying) 'I am going to eradicate all gays from Oxford Street', and a week later bashes five males in Oxford Street. Then an ordinary member of the public might say, irrespective of whether the victims were gay or not … the saying of the words … the ordinary member of the public might link the two …": (T 17:37-47) 1. Mr Curtin provided hypothetical examples to support the argument that the Act does not contain a restriction and does not prevent conduct occurring on different occasions from being taken into account for the purpose of determining whether there had been "relevant incitement": T 19:15-25. 2. In his later submissions, Mr Curtin argued that: "… the error in the Appeal Panel was for actual audience considerations to intrude into the test to the hypothetical side .. and that's why when the Appeal Panel says would the hypothetical member of the public know of … actual knowledge of the earlier event that's the, we say, legally erroneous introduction of actual into a hypothetical test … … there is no warrant in the legislation on the test side of the equation, on the hypothetical ordinary person of the equation, to introduce elements of actual audience knowledge …": T 21:15-30. 1. Mr Curtin argued that there were no express terms in the legislation (and none arose by implication) requiring that, if there is more than one public act, the multiple acts have to be observed by the same audience or, alternatively, that there be one person who observed both: T 22:5-35. 2. Mr Curtin submitted that there was no requirement for a "common observer". Such a limitation, it was submitted, does not exist. The Act does not require the same public audience. 3. Towards the conclusion of his oral submissions, Mr Curtin contended that there was no room in s 49ZT for: "… actual audience considerations. It's simply a qualitative test to determine whether one has already been found to be public and observed by actual people, one then ignores every single one of those actual people and only addresses the question of what the ordinary member of this class how, this act would have operated on their state of mind": (T 24:35-40). 1. The "49ZT test" did not, it was submitted, introduce "questions of actuality". It was argued that if there was no question of "the actual observer for a single event observed by members of the public, there is no element of 'actual observer' when considering two separated events": T 25:10-25. Consideration The Definition of "Public Acts" 1. Section 49ZT(1) renders unlawful a public act (or acts) that incites hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group. 2. The expression "public act" is defined as an act that involves a specific form of communication or conduct. In Division 4 of Part 4C, s 49ZS defines "public act" as including: "(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group." 1. In relation to ss 49ZS and 49ZT, Bathurst CJ in Sunol v Collier (No 2) [2012] NSWCA 44 observed: "Although the conduct is described as unlawful it does not attract criminal sanctions. Rather, in circumstances where a complaint is referred to the Tribunal under s 93A, s 93B or s 93C of the Act, the Tribunal has power to make orders under s 108 of the Act including power to award damages and enjoin future similar conduct. In this regard it is to be contrasted with s 49ZTA of the Act which provides criminal sanctions for such conduct when it involves threat of physical harm or inciting others to threaten physical harm towards a person or towards the property of a person. Having regard to the definition of 'public act' in s 49ZS, the provisions of s 49ZT potentially have a very wide operation. …" (at [12]-[13]) 1. I accept the plaintiff's submission that the term "public act" in the relevant provisions includes that expression in its plural form in accordance with s 8(b) Interpretation Act 1987. However, it does not, in my opinion, follow that in every case where there is evidence of multiple public acts that they must be considered or analysed conjunctively for the purposes of determining whether unlawful homosexual vilification has occurred. In other words, the potential for the term "public act" to, in fact, refer to "public acts" by reason of s 8(b) is not, in my opinion, of itself sufficient to warrant such an approach. In a particular case, other matters may require examination including temporal and geographic factors relevant to such public acts and their occurrence and whether one or more of the public acts in question were communicated to or observable by a particular audience. Statutory Concepts and Relevant Principles 1. Bathurst CJ observed in Sunol, at [26]-[29], that the word "incite" had been considered both in the context of anti-discrimination legislation and in the context of criminal offences involving incitement. Bathurst CJ noted that it has been held to mean: "to rouse, to stimulate, to urge, to spur on, to stir up, to animate": Young v Cassalls (1914) 33 NZLR 852, 854. The word has been held to cover words which command, request, propose, advise or encourage: R v Massie [1998] VSCA 82; [1999] 1 VR 542 per Brooking JA at 555. 2. In Sunol, supra, Bathurst CJ at [41] stated: "(a) incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement." 1. It is not necessary for a person in fact to be incited by the words or publication or conduct under consideration: Sunol, supra per Bathurst CJ at [29] and [41]. 2. There is also some authority for the proposition that an intention to incite is not required for a contravention of s 49ZT: Sunol, supra per Bathurst CJ at [30] and [31]. 3. In determining whether, in a particular case, there has been a contravention of s 49ZT, the relevant case law has also established the following matters: 1. It is not sufficient that the speech, conduct or publication in question conveys hatred towards, serious contempt for, or serious ridicule of homosexuals. It must be speech, conduct etc (a "public act") that is capable of inciting such emotions in an ordinary member of the class to whom it is directed: Sunol, supra, per Bathurst CJ at [41](c). 2. There must be an audience to the public act. For conduct to incite hatred etc, the conduct must "reach a relevant audience": per Nettle JA in Catch the Fire Ministries Inc [2006] VSCA 284 at [16] referred to by Bathurst CJ in Sunol, supra, at [33]. 3. The determination as to whether a public act is one that is capable of inciting hatred etc, is to be measured by the effect of the conduct on an ordinary member of the class to whom the public act is directed: Sunol, supra at [34] per Bathurst CJ. 1. The concepts of (a) the "audience" to whom a public act is directed and (b) the effect which such an act is capable of producing are fundamental to the application of s 49ZT(1). Allsop P observed in Sunol, supra, at [61]: "The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider." 1. Subsequently, his Honour observed, at [62]: "… The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience …" (emphasis added) 1. In the present case, a central matter for determination was whether the relevant "public act(s)", in particular, the assault committed on the plaintiff on 9 August 2010, had the relevant capacity to incite etc. In that respect there is a need to consider the factual context of the assault and whether there was a particular person or class of persons to whom that public act was directed. 2. In Catch the Fire Ministries Inc, supra, at [16], Nettle JA observed: "Evidently, there can be no incitement in the absence of an audience. It is not a contravention of s 8 to utter exhortations to religious hatred in the isolation of an empty room. If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience." (emphasis added) 1. In summary, in determining the application of s 49ZT(1) it is necessary for findings to be made as to whether there was any incitement of the relevant kind. An aspect of that question required a "determination" as to what the relevant audience comprised: Jones v Trad (2013) 86 NSWLR 241 at [62]. Decision 1. The issue arising in this appeal involves a question of statutory construction in light of relevant principles that have been enunciated at the appellate level in particular, in Sunol and Catch the Fire Ministries Inc. 2. Before the provisions of s 49ZT attach to a "public act" as defined in s 49ZS (or to public acts), the "conduct" in question must fall within either sub‑paras (a), (b) or (c) of the statutory definition in s 49ZS. In the present case, the verbal conduct was within the definition in sub-para (a). Conduct falling within sub-para (a) of the definition of "public act" involves "a communication to the public". In the case of an act within sub‑para (b), the conduct is one that is "observable by the public" including actions and other matters specified in that sub‑paragraph. 3. For the provisions of s 49ZT, the plaintiff was required to establish in relation to the "physical conduct": 1. That it was a "public act" as defined in sub‑para (b) of the definition of that expression, being conduct (not a form of communication etc), which is "observable by the public"; 2. That there was an audience to whom the public act (the assault upon the plaintiff) was directed; 3. That it was a public act that was capable of encouraging or spurring members of the relevant audience to specified feelings or thoughts of hatred, serious contempt etc. 1. The lastmentioned matter in (3) above required a determination to be made as to the capacity of the public act to incite hatred etc. That is to be measured by reference "to an ordinary member of the class to whom the public act is directed": Sunol, supra at [34]. 2. At this point it is necessary to examine the basis for the "theoretical" or "hypothetical" "test" central to the plaintiff's submissions before the Tribunal, the Appeal Panel and in this Court. 3. Firstly, there is no "hypothetical ordinary member of the public" in the words of the Act. Nor does the relevant case law support such a test for the purpose of making a finding as to the assumed or hypothetical knowledge of events of such a hypothetical person. 4. In Sunol the Chief Justice considered a specific question of construction concerning s 49ZT(1), namely, whether a public act said to be a contravention of that section is one which would incite hatred, serious contempt for, or severe ridicule, in an "ordinary reasonable member, or an ordinary member, of that class to which the public act was directed": supra at [32]. 5. That approach to construction as enunciated by the Chief Justice was therefore relevant to, and only relevant to, the issue under s 49ZT(1) of determining whether particular conduct was capable of inciting hatred etc. It was not an approach that provides support for the much broader proposition or "test" argued in this case, namely, the concept of a hypothetical ordinary member of the public can be taken and assumed for the purposes of s 49ZT to have knowledge of two separate episodes of conduct even though he or she was not present and did not observe one of the two episodes. 6. This approach or line of argument pursued by the plaintiff seeks to apply the "ordinary member of the class test" referred to in the observations of Bathurst CJ in Sunol (extracted above), for an entirely different purpose than that which was the subject of the Chief Justice's observations. The plaintiff seeks to use it, with respect in my view wrongly, to substitute the imputed knowledge of members of a hypothetical audience for the knowledge of an ordinary member of an actual audience as to both episodes of the conduct referred to above. 7. The plaintiff acknowledged that in the present case there was no actual (common) audience to both the "verbal conduct" and the "physical conduct". 8. The argument for the plaintiff proceeds upon a basis that effectively takes the actual audience out of play or out of consideration: see Plaintiff's Written Submissions at [39]-[45]. At [50] of the submissions it was stated: "… In our submission the focus of the provisions is on the content and the quality of the public act or acts, not on the actual observance and actual effect. Thus, when considering a number of public acts, it was an error for the Appeal Panel to introduce a requirement for actual observation by the hypothetical ordinary person." See also [54] of the Plaintiff's Written Submissions. (emphasis added) 1. The line of argument pursued on behalf of the plaintiff accordingly invoked the introduction of a "hypothetical ordinary person test" as the basis for identifying knowledge not in the members of the actual audience but assumed knowledge in a hypothetical observer of both the verbal and physical conduct in this case: Plaintiff's Submissions at [34]. 2. This line of argument was accordingly the basis for establishing the asserted error in the Appeal Panel's approach which specified a requirement for "actual observation" of two events before they could be examined to determine whether they, conjunctively, incited hatred: Plaintiff's Submissions at [39]. 3. The Tribunal and the Appeal Panel, in my opinion, were correct in proceeding in the present case upon the basis that there needed to be an actual observation of the earlier verbal conduct of the defendant by persons who constituted an audience to and witnessed the physical conduct before the verbal and physical conduct could be considered conjunctively. This was consistent with the observation in Sunol at [34] that incitement is to be measured "only by reference to an ordinary member of the class to whom the public act is directed" (emphasis added). 4. The Appeal Panel held, in my opinion correctly, that the Tribunal had not erred by regarding the two events (the verbal and physical conduct) as separate public acts. The Panel, in my opinion, also correctly observed that there is no basis in legislation requiring "one analysis" of the two acts: Margan v Manias [2014] NSWCATAP 16 at [21]. There was no error of law in relation to these two aspects. The observations of the Tribunal at [21] of its Reasons for Decision, with respect, correctly identify the matters that established that the physical and verbal conduct were separate public acts. 5. In dealing with Ground 2 – Assumed knowledge of the audience - in their decision, the Appeal Panel noted at [23] that the plaintiff sought to rely upon "the theoretical test" to establish error in the Tribunal's approach excluding the hypothetical or ordinary person's knowledge of both the prior verbal comments and the plaintiff's homosexuality. 6. In my opinion, the Appeal Panel, with respect, was correct in focussing upon the actual audience at whom a public act is directed, and that there is no basis in the Act for "deeming" knowledge of events in "the hypothetical onlooker": Appeal Panel's Reasons at [30] – extracted in paragraph [21] above. 7. Inherent in this conclusion is, in my opinion, the distinction to be maintained between (i) identifying the audience, that is the actual audience to which the public act is directed on the one hand, and (ii) determining the effect upon an ordinary member within that audience who witnessed the public act, that is, the capability of the public act to incite emotions in such a member, such as hatred etc, of the kind referred to in s 49ZT(1). 8. The Act does not expressly state nor, in my opinion, is there any implication to the effect that there is any permissible approach of statutory construction that requires an ordinary member of an audience to a public act to be deemed or taken as possessing knowledge of events that such a person does not or could not possess. There is, in my opinion, no process of statutory construction available in relation to s 49ZT(1) which is capable of supporting the imputation or imposition of constructive knowledge of the events associated with the "physical conduct" in a hypothetical person or a hypothetical member of an audience. 9. The provisions of s 49ZT(1) are to take into account the knowledge of the "public act" by the ordinary member of the audience to whom the conduct was directed, not the deemed knowledge of a hypothetical person or member of a hypothetical audience. 10. The objective facts in this case associated with the "physical conduct", the assault upon the plaintiff, do not, of course, in any way suggest incitement of the relevant kind referred to in s 49ZT(1). In this respect the Tribunal's reasons for reaching its conclusion are summarised in the Appeal Panel's Decision at [15] (see at [17] above). 11. The Appeal Panel noted at [34] of its Reasons that the Tribunal had identified a number of matters in concluding that there was no incitement in relation to the physical conduct: Tribunal's Reasons at [59]-[62]. 12. I have concluded that no error has been established in the Reasons of the Appeal Panel. The approach taken by the Panel is, as earlier indicated, in accordance with the approach to construction and operation of the provisions as enunciated by the Court of Appeal in Sunol. The approach urged on behalf of the plaintiff, on the other hand, lacks support in the relevant provisions of the Act and conflicts with the principles of construction enunciated in Sunol. 13. Finally, in the plaintiff's Written Submissions it was argued, in the alternative, that there were, in fact, two common observers – Mr Margan and Mr Manias – and that this was a fact ignored by the Appeal Panel: Plaintiff's Written Submissions at [56]. 14. The argument was developed by an observation that one does not need a crowd of people in order for the section to apply. One observer of a public act, it was argued, would be sufficient for the purposes of the provision. Mr Margan, in this respect was said to be as much a member of the public as other persons: Plaintiff's Written Submissions at [57]. 15. It was submitted: "58. Thus a proper identification, in this case, of the audience to whom the public acts were directed would include Margan." 1. It was submitted that even if the Appeal Panel was correct at [30] then Mr Margan was an "audience" and a witness to both public acts. Therefore, on the Appeal Panel's own reasoning, it was submitted, it ought to have then considered: "… whether an ordinary gay man, considering the public acts conjunctively, would have considered those acts to incite hatred, serious contempt for, or severe ridicule of Margan or gay men or both, on the grounds of their homosexuality." Plaintiff's Written Submissions at [60]. 1. It was observed that the Appeal Panel had failed to considered this and that it fell into error in the application of the test to the facts of the case: Plaintiff's Written Submissions: at [61]. 2. It does not appear that an argument along these lines was relied upon before the Tribunal or the Appeal Panel. However, notwithstanding, I do not consider, with respect, that there is merit to the alternative argument summarised above. Mr Manias, as the perpetrator of the unlawful act (the assault) was not an audience, or a member of an audience to whom the public act committed at his hands was directed. Further, his own act was not one that could, in the circumstances of the present case, in my opinion, be taken as one inciting hatred etc, in him of the kind to which the section is directed. 3. Equally, on the facts of the physical assault, the plaintiff was the victim of the assault but not the audience or a member of an audience for the purposes of s 49ZT. Insofar as it was submitted that he was an "observer" he was not, in my opinion, a member of an audience to the events in a sense capable of instilling in him responses of the kind to which s 49ZT is directed. 4. On the evidence in these proceedings, the plaintiff was undoubtedly the unfortunate victim of a serious assault. The Appeal Panel noted in its Reasons for Decision, at [8], that Mr Manias had been convicted of various assault offences relating to this and other incidents which occurred on the same night, and that he was sentenced to imprisonment for 18 months. The circumstances surrounding the physical conduct, however, do not fall within the provisions of s 49ZT of the Act. Orders 1. Accordingly, the appeal by way of Summons filed on 6 June 2014, is dismissed. 2. As earlier noted, there was no appearance at the hearing in this Court by or on behalf of the defendant. In those circumstances I note no order is made in respect of costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 March 2015