FEDERAL COURT OF AUSTRALIA

Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16

CIVIL AND POLITICAL RIGHTS – Human Rights – Racial Vilification – artistic work – likely to offend – insult, humiliate or intimidate – whether published 'reasonably and in good faith' – onus of proof with respect to exemption –whether subjective or objective test or combination – 'reasonably' – 'good faith' – newspaper cartoon – satirising indigenous conflict with respect to return of 19^th century Aboriginal leader's head from England to Western Australia – whether covered by artistic work exemption – public discussion and comment exemptions

STATUTORY INTERPRETATION  - exemptions and provisos – burden of proof – relevance to exceptions or provisos involving characterisation or normative judgments

WORDS AND PHRASES -  'reasonably', 'good faith'

Racial Discrimination Act 1975  (Cth) s 18C, s 18B, s 18D

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ROBERT CHARLES BROPHO v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION and             WEST AUSTRALIAN NEWSPAPERS LTD

W355 OF 2002

FRENCH, LEE  AND CARR JJ

6 FEBRUARY 2004

PERTH

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondents’ costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

FRENCH J:

Introduction

1                     The story of the Western Australian Aboriginal leader, Yagan, and his death at the hands of two young settlers in 1833 is a tale of colonial tragedy.  It has sadly familiar overtones of mutual incomprehension, fear, prejudice and retribution.  The sequel to his death, the severing and smoking of his head and its removal to England for display in a museum, demonstrated a contempt for his humanity which is striking even at this historical remove.

2                     The recovery of Yagan’s head from a graveyard in Liverpool and its return to Australia with a group of Aboriginal elders in 1997 was accompanied by a degree of sometimes undignified acrimony over who had the appropriate cultural claims, by descent, to bring the remains back.  The conduct of those involved in the controversy was lampooned in a cartoon published in the Western Australian newspaper in September 1997.  The cartoon reflected upon the mixed ancestry of some of the Aboriginal people involved.  It implied an unseemly desire on the part of some of them to take advantage of public funding to travel to England and it suggested that their conduct had caused disunity amongst Nyoongar people in the Perth area.  It implied the frivolous use by an Aboriginal leader of the dreamtime serpent, the Wagyl, to frighten a child who was cynical about the publicly funded trip to England.  It also depicted the head of Yagan in a cardboard box expressing a desire to return to England. 

3                     The cartoon led to a complaint to the Human Rights and Equal Opportunity Commission that its distribution was conduct reasonably likely to offend, insult, humiliate or intimidate Nyoongar people and was done on account of their race.  The complaint alleged that the conduct was unlawful by virtue of s 18C of the Racial Discrimination Act 1975 (Cth).  It was dismissed by a Commissioner of the Human Rights Commission applying the ‘artistic works’ exemption under the Act.  A challenge to his decision by way of judicial review was dismissed by a judge of this Court.  One of the complainants, Mr Bropho, now appeals against that decision.  The appeal raises the question of the appropriate balance, in the Racial Discrimination Act, between the prohibition of racial vilification and the protection of freedom of expression and, in particular, the statutory requirement of reasonableness and good faith in the exercise of that freedom. 

4                     There are many ways of telling the story of Yagan and of the return of his remains to Western Australia.  The cartoon was one of them.  Another was the poem published by a West Australian poet of South African origin, John Mateer, in 2000.  One of its verses read:

‘Yagan,

your head, shipped to the Old World

exhibited as a trophy at which subjects could gawp

your demonised head unknowingly they buried

mistaking the skull for a time capsule, a mirror-sans-images

your buried head brought out into Westralian glare

enabled an alien to hymn you in nineteen ninety-nine’

John Mateer, loanwords, Fremantle Arts Centre Press 2000.

The cartoon and the poem illustrate the different ways in which the same story may be told in art and literature.

5                     The outcome of this appeal does not depend upon approval or disapproval of the cartoon by the Court.  For the freedom of expression which is protected by the Racial Discrimination Act extends to artistic works, genuine scientific and academic debate and discussion and fair comment on matters of public interest, even though they might insult, offend, humiliate or intimidate individuals or groups of people on account of their race, colour, national or ethnic origin.  The condition of that protection is that the freedom be exercised reasonably and in good faith.  Whether it was in this case is at the centre of this appeal.

The Yagan Story

6                     It is useful to begin by recounting in outline the story of Yagan as it appears from well-known historical records in Western Australia.  A coherent account of that history was not in the papers before the Commissioner or the primary judge.  Its recounting, beyond what was before his Honour, does not affect the outcome of this appeal.  It does, however, accord some respect to the indigenous perspective on the historical events which lie behind these proceedings.

7                     The history of the early settlement of the colony of Western Australia records a period of tension and some violent incidents between white settlers and Aboriginal people in the Perth area.  Prominent among the Aboriginal leaders of the time was Yagan who has been described as a man of ‘impressive physique’ and of ‘high degree in tribal law’ – N Green, ‘Aborigines and White Settlers in the 19^th Century’ in Stannage (ed) A New History of Western Australia (UWA Press 1981 at 82).

8                     Yagan was arrested in 1832 in connection with the killing of a white man and transported to Carnac Island off the West Australian coast.  Towards the end of 1832 he  escaped from Carnac and remained at liberty until his death in July 1833.  A number of stories about him appeared in the Perth Gazette and Western Australian Journal, a predecessor of the West Australian Newspaper.  While he was on Carnac Island he became known to Mr R Lyon, a settler who visited the Island to learn the language of the Aboriginal prisoners. Lyon, writing in the Perth Gazette in March 1833, referred to Yagan’s demeanour in the face of his guards while in captivity:

‘... erect in all the pride of his native independence determine (sic) to sell his life dearly rather than submit even to an insult.’

In the same newspaper there appeared a little later an account of a corroboree performed for the settlers at Perth at which Yagan, notwithstanding that he was an escaped prisoner:

‘... was the master of ceremonies and acquitted himself with infinite dignity and grace.’

9                     Tragedy was to follow within a matter of weeks of that corroboree.  In April 1833 an Aboriginal man called Domjum was shot while breaking into a building at Fremantle.  He died three days later –  he was evidently Yagan’s brother - Green op cit at 82.  Within a matter of two days or so, as appears from the Perth Gazette, two settlers, brothers by the name of Velvick were killed by Yagan who was in company with his father, Midgegooroo, a man called Munday and other Aborigines.  In writing of the killings the Perth Gazette referred to Yagan as ‘the daring villain we have too frequently had occasion to notice’.

10                  By a notice published in the Perth Gazette shortly afterwards, Lieutenant Governor Irwin declared Yagan:

‘To be an outlaw deprived of the protection of British laws.’

A reward of 30 pounds was offered for his capture, dead or alive.  A similar proclamation outlawed Midgegooroo and Munday. 

11                  Midgegooroo, who was an old man, was captured on 16 May 1833.  He was later executed by a firing squad.  Yagan remained at large.  A settler who encountered him after the execution and with whom he had a conversation reported, in a letter to the Perth Gazette, Yagan’s remonstrations about the death of Domjum and the execution of Midgegooroo.  The settler said that he took the purport of what Yagan was saying to him to be that:

‘You come to our country – you have driven us from our haunts and disturbed us in our occupations.  As we walk in our own country we are fired on by the white men, why should the white men treat us so.’

12                  The Perth Gazette carried stories about the Aborigines in the Perth area under the headlines ‘THE NATIVES!’ and ‘THE NATIVES AGAIN!’.  In June 1833, under the first of those headlines it said:

‘We have had occasion to notice Yagan’s sagacity and intelligence, and daily receive further confirmation of it.’

This observation was inspired by Yagan’s visit to the farm of a settler where he had a conversation with the settler’s family and told them they need not be concerned for their safety as he would spear ‘soldier men’ in response to the death of Midgegooroo. 

13                  In July 1833 Yagan was shot dead.  His death occurred in circumstances described by the Western Australian Historian, JS Battye thus:

   ‘The death of the formidable leader was finally encompassed by what was an undoubted act of treachery.  Two lads named Keats observed Yagan and some companions making their way to the house of Lieutenant Bull for flour; they fraternised with them, and then as soon as a favourable opportunity occurred the elder shot Yagan in cold blood.’

JS Battye, Western Australia – A History from its discovery to the Inauguration of the Commonwealth, Oxford Clarendon Press 1924 at 122

Yagan was killed by William Keats, one of two young men who had befriended him. Keats was in turn speared to death by other Aborigines at the scene.  The Perth Gazette reported a sentiment of ‘satisfaction and, with some, even of exaltation’, about Yagan’s death.  It also discerned some moral ambiguity in the manner of his passing:

‘We must remember Yagan was killed after spending the morning in company with the youth, who shot him, and when upon the point of taking his frugal repast, a portion of which he would not have withheld from the hand that slew him; we are not vindicating the outlaw, but we maintain it is revolting to our feelings to hear this lauded as a meretorious (sic) deed.’

14                  Yagan’s head was removed from his body and placed in the wedge of a smoking tree in order to preserve it.  It was later taken to England and until 1964 was on display at the Royal Institute in Liverpool.  Eventually it was buried in Everton Cemetery.  In  1990, the Western Australian Nyoongar community asked the British government to exhume the head.  Permission was finally granted.  It was brought back to Australia for burial according to Nyoongar custom.  

15                  The circumstances surrounding the return of Yagan’s head from the United Kingdom included publicly aired differences between members of the Nyoongar community  about who was entitled to retrieve and return the head.  One person, Mr Bodney, commenced litigation in the Supreme Court of Western Australia in an attempt to restrain the handover of the head by British authorities.  These events were the subject of reports in the West Australian newspaper, a successor to the Perth Gazette.  They inspired a cartoon which appeared in the newspaper in September 1997. It is that cartoon which has led to the present proceedings.  

A Yagan Cartoon is Published

16                  On 6 September 1997, the West Australian Newspaper published a cartoon strip entitled ‘Alas Poor Yagan’.  The cartoon comprised a panel of eight drawings of a bearded Aboriginal reading from a book and speaking to three Aboriginal children.  The bearded figure is referred to as ‘Uncle Colbung’ in one of the pictures and appears to be a depiction of Ken Colbung, an Aboriginal leader well known in the Perth community.

17                  The text for each of the drawings is as follows:

1.         Colbung            ‘This is a story from the dreamtime – the story of Yagan’s head returning home’.

2.         Colbung           ‘Once upon a time, not so long ago, some Nyoongar people got together.  There was me…

                                    Some of my ancestors were Danish … so I’m a Viking Nyoongar.'

                                    (correct spelling – Sven Colbung)

3.         Colbung           ‘And Corrie Bodney … his people were Jamaican

                                    … so he’s a Calypso Nyoongar’.

            Child               ‘Do steel drums go with the didgeridoo’

4.         Colbung          ‘And then there was Albert Corunna, a Pilbara Nyoongar’

            Child                ‘But … we thought the Nyoongars were from around here’

            Colbung           ‘Shut up, or the Wagyl will get you, boy’.

5.         Colbung           ‘And there was Richard Wilkes and Robert Bropho and Minga Wanjurri – Nungala and Leslie Eatts.

                                    And no one could decide who was going to go and bring back the head of Yagan.’

6.         Colbung           ‘So, four of ‘em took off while the going was good’.

            Child                ‘And while the grant money was good’.

            Colbung          ‘That Wagyl’s gettin’ closer to you, lad’.

7.         Colbung          ‘And they brought back Yagan’s head’.

            Child              ‘And did it unite all of the Nyoongars Uncle Colbung’.

8.         Colbung         ‘Well er..’

Yagan’s head in box –

‘Crikey … give me a warm beer in a quiet Pommy pub any day.’

18                  Following the publication of the cartoon Ms Hannah McGlade wrote to the Race Discrimination Commissioner of the Human Rights and Equal Opportunity Commission on 24 September 1997.  She wrote on behalf of a group of people called ‘the Nyungar Circle of Elders’ in the following terms:

‘The Nyungar Circle of Elders have asked me to make a complaint with you against the West Australian Newspaper and their cartoonist ‘Alston’ in relation to the cartoon ‘Alas Poor Yagan’ published on 6 September 1997.  Please find attached a copy of offending cartoon.

The complaint is made under s18C of the Racial Discrimination Act 1975 (Cth) which prohibits race hatred and acts which are likely to offend, insult humiliate or intimidate a group of people.’

The letter attached a copy of the cartoon.

19                  The Race Discrimination Commissioner, on 4 March 1998, declined to continue her inquiry into the complaint.  She did so on the basis that the cartoon fell within an exemption contained in s 18D of the Racial Discrimination Act  and that the matter complained of was not unlawful.  The complainants then required that the matter be referred to the Commission for public inquiry.  They subsequently sought the joinder of the cartoonist Dean Alston and that joinder was refused by a decision of Commissioner Johnston on 15 October 1998.

20                  On 29 April 1999, Commissioner Innes conducted a public hearing into the complaint.  On 12 April 2001, he decided that the publication of the cartoon was in breach of s 18C of the Racial Discrimination Act but fell within the exceptions in s 18D. The applicants in the Human Rights and Equal Opportunity Commission were named as Albert Corunna, Richard Wilkes, Violet Newman, Mingli Wanjurri, Leisha Eatts, Robert Bropho and Ken Colbung comprising ‘the Nyungar Circle of Elders’.  Mr Robert Bropho, one of the complainants, sought judicial review of the Commission’s decision.  However his application for judicial review was dismissed by RD Nicholson J on 4 December 2002.  Mr Bropho now appeals against that decision to this Court. 

The Statutory Framework

21                  Part IIA of the Racial Discrimination Act  was introduced into the Act by the Racial Hatred Act 1995 (Cth).  Section 18C provides:

‘18C(1)  It is unlawful for a person to do an act, otherwise than in private, if:

(a)       the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and

(b)       the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group.

    (2)  For the purposes of subsection (1), an act is taken not to be done in private if it:

(a)       causes words, sounds, images or writing to be communicated to the public; or

(b)       is done in a public place; or

(c)        is done in the sight or hearing of people who are in a public place.

    (3)  In this section:

“public place” includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.’

22                  The section is interpreted in the light of s 18B which provides:

‘18B.  If:

(a)       an act is done for 2 or more reasons; and

(b)       one of the reasons is the race, colour or national or ethnic origin of a person (whether or not it is the dominant reason or a substantial reason for doing the act);

then, for the purposes of this Part, the act is taken to be done because of the person’s race, colour or national or ethnic origin.’

23                  There are exemptions provided under s 18D:

‘18D.  Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)       in the performance, exhibition or distribution of an artistic work; or

(b)       in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)        in making or publishing:

            (i)         a fair and accurate report of any event or matter of public interest; or

            (ii)        a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.’

Section 18E provides for vicarious liability of persons for the acts of their employees or agents.  Section 18F provides that Part IIA is not intended to exclude or limit the concurrent operation of any law of a State or Territory.

24                  The application before the primary judge was an application for judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth).   As framed it appeared to invoke error of law only in each of the stated grounds.  His Honour treated the application as relying upon the grounds set out in s 5(1)(e), (f) and (h) of the Act.  Those grounds are:

‘(e)      that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f)        that the decision involved an error of law, whether or not the error appears on the record of the decision;

…

(h)       that there was no evidence or other material to justify the making of the decision;’

Paragraph (e), as elaborated in s 5(2), includes failing to take a relevant consideration into account in the exercise of the power. 

The Commissioner’s Reasons for Decision

25                  The Commissioner began his reasons with brief reference to the history of the complaint.  He identified the bases advanced by the complainants for saying that the cartoon breached s 18C.  These were summarised by him as follows:

1.         The cartoon presented a demeaning portrayal of Yagan, an ancestor of the complainants.

2.         The cartoon contained references to the Wagyl, a religious figure.

3.         It treated the issue of death in a manner which causes offence.

4.         It provided intimate details of the ancestry of individuals and offends them.

5.         It identified individuals not ordinarily in the public arena and draws them into the arena of public humiliation.

26                  After setting out the relevant statutory framework he rejected a further attempt to join Mr Alston as a respondent as that matter had been decided by Commissioner Johnston and there was no authority for him to revisit that decision.

27                  The Commissioner then summarised the evidence of the complainants’  witnesses.  That evidence was objected to in each case by counsel for the respondent on the basis that the test in s 18C was objective and evidence of subjective reactions was inappropriate and possibly misleading.  The Commissioner allowed the witnesses to be called taking the view that although the relevant test might be an objective one there was an argument that the views of the complainants might be relevant.  He did not want to deprive himself of those views by refusing to hear that evidence.

28                  The first witness was Mr Albert Corunna who had participated in discussions and legal proceedings concerning the return of Yagan’s head to Australia.  He did not go to London to collect it but he was involved in the organisation of its return.  He outlined his concerns about the cartoon.  The next witness, Mr Richard Wilkes, who had gone with the Nyoongar group to collect Yagan’s head from England, also gave evidence.  He too expressed his complaints about the cartoon.  Ms Mingli Nungala, another member of the group that went to the United Kingdom to recover the head, gave evidence of her attitude to the cartoon.  She described her visit to London to retrieve Yagan’s head as ‘one of the most important, spiritual and religious things she had ever done’.  A further witness, Ms Doolan Eatts, had not gone to England but had been involved in preparatory meetings. 

29                  Mr Ken Colbung who gave evidence, said his father was Danish and his mother Aboriginal.  He said he had heard about Yagan’s head in 1950 and had been trying to locate it.  He claimed to be ancestrally connected to Yagan in the tradition of Aboriginal law.  He described the history and organisation of the delegation to retrieve the head.  Mr Bropho, the present appellant, also gave evidence.  He too had been part of the delegation to England and had been involved in preparatory meetings.  He also gave evidence about his reaction to the cartoon. A further witness was Dr Stephen Mickler, a lecturer in the School of Communication and Cultural Studies at Curtin University of Technology.

30                  The reaction of the indigenous witnesses generally to the cartoon ranged from shock and distress to concern at the lack of respect displayed in what they saw as derogatory references to Aboriginal culture and history.  Dr Mickler referred to the findings of an Australian National Opinion Poll report entitled ‘Winning Middle Australia’ which was published in 1985 as informing his analysis.  These findings indicated an absence of any depth of understanding of Aboriginal culture, the perception of Aboriginal people as a privileged group suffering from a handout mentality, the lack of any widespread understanding of the special significance of land and sacred sites, and the lack of sympathy for Aboriginal people together with a lack of appreciation for their social problems.  The cartoon depicted people who would not ordinarily be depicted in a cartoon of that character.  It included people who would not constitute public figures.  He did not believe that a dispute between non-Aboriginal people would be treated in this way. 

31                  Evidence for the respondents was called from Mr Murray, the Editor of the West Australia.  He referred to a pre-publication discussion he had with Mr Alston about the proposed cartoon.  He looked at the draft sketches and had another discussion with Mr Alston.  He formed the view that there would be some ‘flak’ over the cartoon but that it was a valid comment on recent events.  When he was presented by Mr Alston with the final version he approved it for publication.  Mr Murray characterised the cartoon as offering comment about the undignified behaviour of the individuals concerned and suggesting that Yagan would not have approved of the kind of dispute that had erupted.  The trip was taxpayer funded.  The reference to  a ‘government grant’ justified the public interest in running the cartoon.  The cartoon also conveyed the message that the Elders had lost the significance of the return of Yagan’s head which was intended to unify, but which only caused division.

32                  The Commissioner made some findings of fact which he identified as such in his reasons for decision.  They were in substance as follows:

1.         The cartoon entitled ‘Alas Poor Yagan’ was published in the West Australian newspaper on 6 September 1997.  It was drawn and written by Dean Alston, an employee of the newspaper and published with the support of the editor.

2.         The journey to England and the return with Yagan’s head was a very spiritual experience for those Aboriginal people who were involved.  For them the cartoon would have been particularly distressing.  A number of witnesses both within and outside the delegation compared the return of Yagan’s head to the symbolic return to Australia of the body of the unknown soldier from Gallipoli.  The Commissioner found this to be a valid analogy.

3.         Much material relating to the return of Yagan’s head had been published in the West Australian in the few weeks prior to the publication of the cartoon.  The people referred to in the cartoon had been referred to in the newspaper on previous occasions.  Litigation had occurred regarding the matter and there had been much publicity attending the preparation for the journey and the journey itself.

33                  The Commissioner then turned to findings on the law and discussed his general approach to the interpretation of Pt IIA.  He referred to cases in the High Court concerning the implied freedom of political communication and then the debate surrounding the introduction of the amendments to the Racial Discrimination Act under which the present proceedings are brought.  In Pt IIA the Commonwealth Parliament appeared to have intended to strike a balance between the right to freely express or communicate certain matters and  ideas and the right to live free from vilification.  The Commissioner identified s 18C as conferring general protection on individuals or groups from harassment or fear because of race, colour, national or ethnic origin. 

34                  The Commissioner identified the complainants as the seven named Nyoongar Elders namely, Albert Corunna, Richard Wilkes, Ken Colbung, Robert Bropho, Leisha Eatts, Mingli Wanjurri and Violet Newman. 

35                  There was ‘an act’ within the meaning of s 18C(1), namely the act of publication of the cartoon.  This was not in dispute.  The Commissioner considered whether the act was reasonably likely to have the effects alleged.  He took into account, only to a limited extent, the evidence of the complainants and Dr Mickler.  He observed that the Racial Discrimination Act specifies an objective test and that case law supports that construction.  He referred to the decision of the Hon Ronald Wilson, then President of the Commission, in Bryant v Queensland Newspapers Pty Ltd  [1997] HREOCA 23.  He adopted what he called a ‘reasonable victim’ test.  This involves assessing the effects of the advertisement by reference to the victim’s perspective.  In that context he considered the evidence of the complainants, about their reactions, as relevant although not determinative of the reaction of a reasonable Nyoongar person to the cartoon.  He took into account Dr Mickler’s evidence in so far as it provided an analytical context for the understanding of communications with respect to indigenous persons in the West Australian media.  He also accepted the respondents’ submission that the context of the cartoon and, in particular, the preceding articles which had been published in the West Australian newspaper is relevant to the consideration of the questions before him.  He was satisfied that, based on the reasonable victim test, a reasonable Nyungar or Aboriginal person would have found the contents of the cartoon offensive, insulting, humiliating or intimidating.  A reasonable person not necessarily of Nyoongar or Aboriginal descent would have found the cartoon offensive or insulting. 

36                  In support of this conclusion the Commissioner relied upon the presentation by the cartoon  of ‘a demeaning portrayal of ancestor’ and particularly the reference to a ‘warm beer’ and a ‘quiet pommy pub’.  This was in the context, it was said, of wide-spread community views with respect to the relationship between alcohol and Aboriginal people. 

37                  Then the Commissioner said that the cartoon contained derogatory and demeaning references to the Wagyl which was a religious figure and that it treated the issue of death in a manner which caused offence to Aboriginal people.  It provided intimate details of the ancestry of individuals in circumstances where the intercourse was not a matter of choice for the Aboriginal women concerned and suggested a diminishing of the race by the resultant racial mix.  It also reinforced a misinformed and stereotypical view of the Aboriginal people as people who took advantage of government grants.

38                  Turning to the exemptions in s 18D, the Commissioner held that they should be read broadly rather than narrowly.  He said (at 46):

‘I am satisfied that, in this instance, the respondent acted reasonably and in good faith.  The cartoon concerned was published after a series of articles and editorial comments dealing with this issue.  It was an issue of importance for the West Australian community in general, as well as the Aboriginal community, and was treated as such by the newspaper.  In publishing the cartoon I am satisfied that the newspaper did not act outside Commissioner Johnson’s (sic) “margin of tolerance”.  Testing the cartoon against “moral and ethical considerations, expressive of community standards” I am satisfied that the newspaper acted reasonably.  While it may be argued that the cartoon could be characterised as “exaggerated” or “prejudiced”, I do not consider that it was sufficiently exaggerated or prejudiced (having regard to the surrounding circumstances) to breach the standard of reasonableness.  Paul Murray gave evidence that he had made a judgment call, knowing that the cartoon would receive some opposition, but forming the view that it was appropriate to represent an important community issue in this way.  My view in this area is strengthened by reading the other material in The West Australian published on this issue, which provided a balanced report of what took place, and an opinion which, in the main, encouraged unity in, and support of, the Aboriginal community.

There was no evidence before me which suggested that the conduct of the respondent smacked of “dishonesty or fraud” to follow Commissioner Johnston’s formulation for the good faith requirement.  Nor was there evidence of “malice” on the part of the respondent.’

The Commissioner  said he was therefore satisfied that the respondent was able to make out the first requirement of s 18D. 

39                  The complainants argued that although the drawings used in the cartoon could constitute ‘an artistic work’ for the purposes of s 18D(a), their publication in a newspaper did not constitute the exhibition or distribution of such a work.  In any event, it was submitted, the written words comprising the drawing were not an artistic work.  The newspaper argued that the cartoon, comprising both words and drawings, constituted an artistic work.  It was also submitted that the cartoon was published in the course of discussion or debate for a genuine purpose in the public interest.  On this basis it was said to fall within the exemption in s 18D(b).  It was further argued that the cartoon amounted to comment on a matter of public interest within s 18D(c)(ii). 

40                  In considering the application of the ‘artistic work’ exemption the Commissioner referred to the definition of ‘artistic work’ in s 10 of the Copyright Act 1968 (Cth).  He did not, in the end, apply that definition.  Nor did he essay any comprehensive discussion of the words ‘artistic work’.  He appeared to accept, however, that the term did not require a distinction to be made between ‘real’ and ‘pseudo’ artistic works.  He concluded:

‘… it seems to me that there is no doubt that a cartoon is an artistic work in the sense intended by the legislators.  Putting aside for the moment any views as to the content of the cartoon, the drawings and words relating to them are works of artistic merit … Cartoons, as with paintings, drawings and sculpture are widely accepted by society as works of art.’

The Commissioner rejected the argument that publication of the cartoons did not constitute their exhibition or distribution.  He also rejected the submission that the words were not part of the artistic work. 

41                  The Commissioner concluded, on the basis of the preceding findings, that the complaint should be dismissed. He also considered the application of the second and third paragraphs of s 18D.  He held that the cartoon would fall within the exemption in s 18D(b).  However the ‘fair report’ provision in s 18D(c)(i) did not apply because a cartoon is not a report.  As to s 18D(c)(ii) it required, so the Commissioner found, that the comment represented the ‘genuine belief’ of the person making the comment as opposed to the publisher.  No evidence had been led about the belief of the cartoonist or the comments made in the cartoon. 

42                  In the event, the Commissioner was satisfied that although the publication of the cartoon was in breach of s 18C it fell within the exemption in s 18D.  Accordingly he dismissed the complaint the subject of the inquiry.

The Application for Review

43                  On 9 May 2001, Mr Bropho filed an application in this Court for an order of review of the decision of the Human Rights and Equal Opportunity Commission.  The application alleged error of law on the part of the Commissioner in various respects.  The first was that the Commissioner found that, in order to negative the condition in s 18D that the respondent ‘acted reasonably and in good faith’ it was necessary to identify conduct that was dishonest or fraudulent or indicated deliberate intent to mislead or at least reckless or callous indifference. The Commissioner, it was said, should have found that the requirement for reasonable good faith action was a positive requirement not met by a finding of absence of bad faith. 

44                  A further ground was that the Commissioner erred in finding that the cartoon was published for a genuine purpose in the public interest in circumstances where he had failed to consider or take into account that matters of public interest in the cartoon did not extend to aspects of the cartoon that were offensive, insulting, humiliating or intimidating to Nyoongar or Aboriginal people. 

45                  It was further said that the Commissioner should have taken into account the fact that the content of the cartoon was severable into distinct parts some of which may have been for a genuine purpose in the public interest and others which were not and to which the exemption in s 18D did not apply.

46                  No issue was raised about the finding that the cartoon was an artistic work for the purposes of s 18D.

47                  I have attempted to encapsulate the grounds of the application.  Their drafting was clumsy and imprecise. 

The Reasons for Judgment of the Primary Judge

48                  The learned primary judge reviewed the history of the proceedings and the reasons and findings of the Commission.  His Honour observed that the application for review was brought under the Administrative Decisions (Judicial Review) Act.  It appeared, although not specified in the original application for review, that reliance was placed upon the grounds for review set out in ss 5(1)(e), (f) and (h) of that Act.  His Honour then considered whether the Commissioner erred in law in the approach he took to the condition of the exemption provided by s 18D that the things said or done be said or done ‘reasonably and in good faith’.  He considered s 18D in its statutory setting and the criterion of reasonable and good faith action by reference to pars (a), (b) and (c) of s 18D.  He observed that (at [29]):

‘Expressed in a shorthand way those paragraphs refer to artistic work, public interest statements and fair reports or comments in the public interest.  Each of these paragraphs is concerned to protect aspects of freedom of speech.’

His Honour cited observations about s 18D in the Explanatory Memorandum to the Racial Hatred Bill.  He also referred to the Second Reading Speech for the Bill.  He concluded that there was nothing in either the Explanatory Memorandum or the Second Reading Speech to suggest that the exemption provisions in s 18D should be read other than in a way which gives full force and effect to them.  In this respect his Honour said that Commissioner Johnston did not err in favouring a broad approach.  This was evidently a reference to the decision of Commissioner Johnston in Bryl & Kovacevic v Nowra and Melbourne Theatre Company (1999) (Commissioner Johnston, 21 June 1999, Human Rights and Equal Opportunity Commission).  That decision had been relied upon by Commissioner Innes.  His Honour also thought it appropriate to have regard to the character of s 18D as an exempting provision and referred to Vines v Djordjevitch (1955) 91 CLR 512 at 519.

49                  His Honour held that the section required an objective finding on the evidence whether the conduct which would otherwise be unlawful pursuant to s 18C was said or done reasonably and in good faith in the circumstances referred to in pars (a), (b) or (c) of that section.  He referred to the judgment of Kirby J in Cannane v J Cannane Pty Ltd (In Liquidation) (1998) 192 CLR 557 at 596 where Kirby J observed, with respect to the terms ‘good faith’ and ‘acted in good faith’, that there are two divergent meanings given to them according to their statutory context:

‘The first is a broad or subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produce it.  The second involves the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence.  The particular interpretation apt to the use of the words in a given legislative context will depend on the decision-maker’s elucidation of the purpose of the legislature.’

He held that the good faith requirement in s 18D is to be construed in accordance with the second of the two categories referred to by Kirby J.  The Commissioner, applying s 18D, was not required to inquire into the actual state of mind of the person concerned.  Evidence of such state of mind could be relevant.

50                  His Honour then discussed the contextual considerations favouring that construction which also accorded with that adopted by Commissioner Johnston in Bryl.  His Honour said (at [36]):

‘Because the objective construction of the words is appropriate, the Commissioner deciding the issue of the application of s 18D is required to examine all of the evidence before the Court relevant to a determination of reasonableness and good faith.  If there were findings based on the evidence of “dishonesty or fraud” or “malice” that would preclude a finding of reasonableness and good faith and thus would preclude the application of the exemption in s 18D.’

 Absent evidence of such matters the Commissioner need not require the respondent to establish its state of mind as that would be an application of a subjective approach to good faith. His Honour said (at [37]):

‘It follows I do not consider that the Commissioner was in error of law in approaching the application of the requirement of reasonableness and good faith in the way in which he did.  He had regard to all the evidence, including the evidence from Mr Murray, and reached a conclusion as to reasonableness.  In the absence of evidence of lack of good faith he was not required to have evidence called in addition to that before him.’

51                  His Honour then dealt with the contention that it was not open to the Commissioner to conclude the cartoon was published reasonably and in good faith absent any finding or evidence to establish that those aspects of the cartoon found to be offensive, insulting, humiliating or intimidating were themselves said or done reasonably and in good faith.  He held that given the objective construction attaching to s 18D, this ground could not succeed.  There were findings of unlawfulness in relevant respects under s 18C.  It was a matter for consideration in each case whether in the case of findings establishing offensive behaviour within s 18C the thing said or done was done reasonably and in good faith.  In this case the relevant thing said or done was the publication of the cartoon.  There was no statutory foundation for applying the test of reasonableness and good faith to anything other than the thing said or done for the purposes of s 18C.

52                  The next ground which related to the failure to take into account the relevant consideration that the matters of public interest in the cartoon did not include those aspects that were offensive, insulting, humiliating or intimidating, was really just an aspect of the good faith argument previously addressed.  It was not separately developed in oral argument before his Honour.  In any event he did not accept that in the Commissioner’s reasons he failed to take into account that he had previously made findings that aspects of the cartoon fell within s 18C. 

53                  The last matter considered by his Honour was the contention that the content of the cartoon was severable into parts, some of which would be outside the exemption.  As to this his Honour said (at [45]):

‘The subparagraphs of s 18D are required to be applied in respect of the thing said or done.  It is all the circumstances in relation to that thing which are required to be taken into account in the application of the subparagraphs.  The findings of the Commissioner necessarily meant he had taken into account, in the course of this reasoning, the adverse findings following from the application of s 18C.  In the application of the subparagraphs of s 18D he was not required to separately isolate those findings to parts of the things said or done.’

54                  His Honour dismissed the application for review and ordered the applicant to pay the newspaper’s costs of the review.

Grounds of Appeal

55                  The appellant filed a notice of appeal against his Honour’s order on 24 December 2002.  The grounds of the appeal were as follows:

‘(1)      The learned Judge erred in law in locating an evidentiary burden in the complainant to negative the fact that an act was done reasonably and in good faith when that fact comprises an element of an exemption under s 18D of the Racial Discrimination Act 1975 to the commission of an unlawful act under s 18C of that Act.

(2)       The learned Judge erred in law by reversing the onus of proof in relation to the exemption under s 18D of the Racial Discrimination Act 1975.

(3)       The learned Judge erred in law by concluding that, in the absence of evidence of lack of good faith a presumption of good faith applied in favour of the Respondent, as the party relying upon the exemption under s 18D of the Racial Discrimination Act 1975.

(4)       The learned Judge erred in law in failing to find that the Respondent, in seeking to rely upon the exemption has an onus of positively establishing, in accordance with an objective standard that the act of publishing was done reasonably and in good faith.

(5)       The learned Judge erred in law by applying a subjective test to reach a conclusion as to the good faith and reasonableness of the act of publishing the cartoon, based upon the evidence of the Respondent’s editor.

(6)       The learned Judge erred in law by finding that the cartoon was published for a genuine purpose in the public interest in circumstances where a Commissioner failed to consider and/or failed to take into account the relevant consideration that the matters of public interest in the cartoon did not include the aspects of the cartoon that were offensive, insulting, humiliating or intimidating to Nyungah or Aboriginal people.

(7)       The learned judge erred in law by finding that the requirement on the Respondent to demonstrate that it “acted reasonably and in good faith” for the purposes of s 18D of the Racial Discrimination Act required the Commission to identify conduct that was dishonest or fraudulent or required deliberate intent to mislead or at least reckless or callous indifference.  The learned judge further erred in finding that mere indifference or a lack of concern about whether matters dealt with reflected a true situation were sufficient to amount to something said or done reasonably or in good faith for the purposes of s 18D.  The learned judge should have found that the requirement for something to be said or done reasonably and in good faith was a positive requirement and not equivalent to a lack of a finding of bad faith.’

The International Law Background to Sections 18C and 18D

56                  The preamble to the Racial Discrimination Act recites the entry into force of the Convention on the Elimination of all Forms of Racial Discrimination and the desirability of parliament making provisions contained in the Act for the prohibition of racial discrimination and certain other forms of discrimination and, in particular, making provision for giving effect to the Convention.  The external affairs power in s 51(xxix) of the Constitution, read in the light of the Convention, was held by the High Court in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 to support the validity of the Act.

57                  As originally enacted and when considered by the High Court in Koowarta, the Act made no express provision for the prohibition of racial vilification or ‘hate speech’ as it is sometimes called.  The Racial Hatred Act amended the Racial Discrimination Act  by inserting Pt IIA comprising ss 18B-18F.  The legislative history leading up to the enactment of those provisions and the enactment of similar provisions in the laws of the States and of the Australian Capital Territory are set out in detail in the judgment of Allsop J in Toben v Jones (2003) 199 ALR 1.  His Honour also makes exhaustive reference to the relevant international Conventions which will not be repeated in detail here.  It is useful however, for the purpose of considering the meaning of ‘reasonably and in good faith’ which qualifies exempted behaviour under s 18D, to refer specifically to some of the relevant international law.

58                  The post-war recognition of fundamental human rights and freedoms and associated with them a powerful norm of non-discrimination on grounds of race, national or ethnic origin, may be traced from the United Nations Charter, through the Universal Declaration of Human Rights to the International Covenant on Civil and Political Rights (ICCPR) and eventually the Convention on the Elimination of all Forms of Racial Discrimination (CERD).  There are numerous other international regional treaties which derive their content from these basic documents or contain similar provisions.   In Koowarta at 220, Stephen J found ‘much to be said’ for the submission that ‘… the norm of non-discrimination on the grounds of race, is now part of customary international law, as both created and evidenced by State practice and as expounded by jurists and eminent publicists’.

59                  By Art 2 of the ICCPR each State party undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant ‘.. without distinction of any kind such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.  Article 26 prohibits discrimination on those grounds. The same Covenant recognises freedom of expression in Art 19(2) which includes:

‘… freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of … choice.’

The exercise of that freedom is qualified in Art 19(3) by reference to the ‘special duties and responsibilities’ which accompany it.  It may therefore be subject to certain restrictions but only such as are provided by law and are necessary:

‘(a)      for respect of the rights or reputations of others;

(b)       for the protection of national security or of public order (ordre public), or of public health or morals.’

Article 20(2) mandates the prohibition by law of:

‘… any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence…’.

60                  In 1963, the United Nations Declaration on the Prohibition of all Forms of Racial Discrimination was proclaimed by the General Assembly.  The Convention on the Elimination of all Forms of Racial Discrimination was adopted on 21 December 1965 and entered into force on 4 January 1969.  Article 4 condemns racial vilification and requires its prohibition by States Parties in the following terms:

‘States Parties condemn all propaganda and all organizations which are based on ideas or theories of superiority of one race or group of persons of one colour or ethnic origin, or which attempt to justify or promote racial hatred and discrimination in any form, and undertake to adopt immediate and positive measures designed to eradicate all incitement to, or acts of, such discrimination and, to this end, with due regard to the principles embodied in the Universal Declaration of Human Rights and the rights expressly set forth in article 5 of this Convention, inter alia:

(a)       Shall declare an offence punishable by law all dissemination of ideas based on racial superiority or hatred, incitement to racial discrimination, as well as all acts of violence or incitement to such acts against any race or group of persons of another colour or ethnic origin, and also the provision of any assistance to racist activities, including the financing thereof;

(b)       Shall declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law;

(c)        Shall not permit public authorities or public institutions, national or local, to promote or incite racial discrimination.’

The range of conduct affected by Art 4 is clearly wider than that affected by Art 20(2) of the ICCPR. 

61                  The drafting of Art 4 was difficult and emerged from a lengthy process of discussion and compromise.  There is a tension between the obligation to prohibit racial vilification and racist organisation for which it provides and the requirements of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights for Freedom of Expression and Association.  The requirement that States pay ‘due regard to the principles embodied in the Universal Declaration of Human Rights’ reflect that tension.  It is a requirement intended to meet the objection that Art 4, expressed without qualification, could encroach upon freedom of speech and association.  The article was described by a representative of the United States speaking in the General Assembly as ‘… imposing no obligation on any party to take measures which are not fully consistent with its constitutional guarantees of freedom including freedom of speech and association’ – Statement in General Assembly by USA Representative, footnoted in Lerner, Group Rights and Discrimination in International Law (2^nd Edition) Martinus Nijhoff, 2003 p 57 fn 36.   The 'due regard' qualification did not dissuade some eighteen States Parties from entering reservations and/or interpretative reservations with respect to Art 4.  Interpretive declarations were lodged, inter alia, by Members of the Council of Europe.  This has been said to reflect 'the concern among a number of States that Article 4 was too sweeping' – Boyle and Baldaccini, 'A Critical Evaluation of International Human Rights Approaches to Racism'in Fredman (ed) Discrimination and Human Rights OUP (2001) at 161.

62                  The Convention article which underpins Pt IIA of the Racial Discrimination Act allows States to strike a balance between the need to prohibit the evil of racial vilification and hatred and the need to protect freedom of speech and association within their reasonable limits.  Part IIA reflects a like balance in the prohibitions imposed by s 18C and the exemptions it allows by s 18D. 

The Construction of Section 18C

63                  Section 18C renders unlawful any act which meets each of the following conditions:

1.         It is done otherwise than in private.

2.         It is reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group of people.

3.         It is done because of the race, colour or national or ethnic origin of the other person or some or all of the people in the group.

Subsections (2) and (3) read together specify circumstances in which an act is taken not to be done in private.  In the present case it was not in dispute that the relevant act was the distribution of the West Australian newspaper containing the cartoon, that it was an act done by West Australian Newspapers Limited and that it was done ‘otherwise than in private’.

64                  The condition that the act is ‘reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people’ does not require that the offence, insult, humiliation or intimidation which it occasions contain any reference to race, colour or national or ethnic origin.  An insult directed to a person or group of persons may not in terms be related to any relevant attribute yet may be done because of it.  Having said that, it is unlikely to be the case that the act will not involve some form of racial or other relevant slur. 

65                  The act must ‘be reasonably likely’ to have the prohibited effect.  Judicial decisions on s 18C(1)(a) do not appear to have determined whether the relevant likelihood is a greater than even probability or a finite probability in the sense of a ‘real chance’.  It might be thought that the threshold of unlawfulness should be defined by reference to the balance of probabilities rather than a lesser likelihood having regard to character of s 18C as an encroachment upon freedom of speech and expression.  However it is not necessary to resolve that question for present purposes as the application of s 18(1)(a) is not in dispute in that respect. 

66                  The word ‘reasonably’ and the reference to ‘all the circumstances’ import an objective test of the likelihood unaffected by the intention of the person doing the act – Hagan v Trustee of Toowoomba Sportsground Trust [2000] FCA 1615 at [15] (Drummond J); Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 at [12] (Kiefel J).  That test is not in dispute in the present case.  In the Second Reading Speech the Attorney-General made its objective nature clear:

‘The Bill requires an objective test to be applied by the Commission so that community standards to behaviour rather than the subjective views of the complainant are taken into account.’ (sic)

(Parl Deb H of R 15/11/94 p 3341)

67                  The words ‘offend, insult, humiliate or intimidate’ are open textured.  They are sometimes used in ordinary parlance to describe a level of response to another person’s conduct which is relatively minor.  Their definitions in the Shorter Oxford English Dictionary include:

‘offend – to vex, annoy, displease, anger, now esp to excite personal annoyance, resentment, or disgust (in anyone) (Now the chief sense).’

‘insult – to assail with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage…’

‘humiliate – to make low or humble in position, condition or feeling, to humble… to subject to humiliation; to mortify.’

‘intimidate – to render timid, inspire with fear; to overawe, cow, now esp to force to or deter from some action by threats or violence.’

68                  The lower registers of the preceding definitions and in particular those of ‘offend’ and ‘insult’ seem a long way removed from the mischief to which Art 4 of CERD is directed.  They also seem a long way from some of the evils to which Pt IIA is directed as described in the Second Reading Speech.  But as Allsop J said in Toben v Jones (at [36]), Pt IIA encompasses conduct extending beyond expressions of ‘racial hatred’, and is ‘…intended to pursue a policy of eliminating race discrimination and promoting understanding among races’ – an objective to which States Parties to CERD are committed pursuant to Art 2(ii).  I acknowledge also his Honour’s observation that unlike the ‘offence’ contemplated by Art 4(iii)(a) the provisions of Pt IIA of the Act are ‘… set in a framework of conciliation in cognate legislation …’ (at [135]).  Those observations were made in relation to a submission that the provisions of Pt IIA were invalid as extending beyond the boundaries of the prohibitions contemplated by Art 4.  In dealing with that argument his Honour justified the coverage by Pt IIA of a wider range of conduct than is contemplated by the provisions of Art 4 which would mandate the creation of criminal offences.  All the members of the Full Court in Toben v Jones were of the view that s 18C did not have to be read down so that its application was limited to cases of ‘racial hatred’ – at [28] per Carr J, [50] per Kiefel J and [133]-[134] per Allsop J.  That justification for the validity of s 18C however did not determine the limits of Pt IIA.  It explained why a wide construction is consistent with constitutional validity.

69                  The criteria for determining the outer limits of the conduct caught by Pt IIA and the words ‘offend, insult, humiliate or intimidate’ must be judged according to their ordinary meaning, in their context, acknowledging their somewhat elastic content and having regard to the objectives of the legislation which are to be derived from its terms and from extraneous material including the Second Reading Speech and the Explanatory Memorandum.  As a general principle freedom of expression is not limited to speech or expression which is polite or inoffensive.  The European Court of Human Rights observed in the Handyside case that Art 19 of the ICCPR applies not only to information or ideas that are favourably received or regarded as inoffensive but, also subject to par 2:

‘those that offend, shock or disturb the State or any sector of the population.  Such are the demands of that pluralism, tolerance and broad mindedness without which there is no ‘democratic society’.’

Handyside Case European Court of Human Rights (1976 Ser A No 24) 1 EHRR 737

70                  The intention of the Racial Hatred Bill as explained by the Attorney-General in the Second Reading Speech was ‘… to close a gap in the legal protection available to the victims of extreme racist behaviour’ (Parl Deb H of R 15/11/94 p 3336).  He referred to reports of the National Inquiry into Racial Violence, the Australian Law Reform Commission Report into Multiculturalism and the Royal Commission into Aboriginal Deaths in Custody as arguing ‘… in favour of an extension of Australia’s human rights regime to explicitly protect the victims of extreme racism’.  The balance struck by the Bill was to be read in the light of that purpose as was made clear in the Second Reading Speech:

‘In this Bill, free speech has been balanced against the rights of Australians to live free of fear and racial harassment.  Surely the promotion of racial hatred and its inevitable link to violence is as damaging to our community as issuing a misleading prospectus, or breaching the Trade Practices Act.’

(Parl Deb H of R 15/11/94 at 3337)

That observation covered the civil provisions of the Bill reflected in Pt IIA and criminal provisions which were not ultimately enacted.  However, the Attorney-General said in reference to the civil provisions:

‘The requirement that the behaviour complained about should ‘offend, insult, humiliate or intimidate’ is the same as that used to establish sexual harassment in the Sex Discrimination Act.  The commission is familiar with the scope of such language and has applied it in a way that deals with serious incidents only.’

(Parl Deb H of R 15/11/94 at 3341)

In the light of the statutory policies so outlined the conduct caught by s 18C will be conduct which has, in the words of Kiefel J in the Cairns Post case at [16]:

‘Profound and serious effects not to be likened to mere slights.’

71                  An important question that arises in the application of s 18C(1)(b) is the question of causation.  What is required to demonstrate that an act is done ‘because of the race, colour, or national or ethnic origin’ of the person or group of persons affected by it.  In the Cairns Post case at [23] Kiefel J, in construing this paragraph, adopted the approach to the construction of s 9 of the Racial Discrimination Act taken by McHugh J in Waters v Public Transport Corporation (1991) 173 CLR 349 at 401 where his Honour said:

‘The words “on the ground of” and “by reason of” require a causal connexion between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (“the victim”).  The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did.’

In Toben v Jones, Carr J said (at [31]):

‘The authorities on the issue of causation in the context of discrimination legislation were reviewed by Kiefel J in Cairns Post at [19] – [27].  It seems clear from what her Honour said at [22] that she regarded the assessment of a reason as being an objective one, but not one which excluded any evidence of the relevant person’s intention or motive.  Regard was to be had to all the circumstances.  I respectfully agree with that approach.’

Kiefel J in Toben at [61] reiterated her adoption of the approach taken by McHugh J in Waters.  Importantly her Honour drew a distinction between the inquiry made by s 18(1)(a) and that required by s 18C(1)(b).   As appears from s 18B the relevant causal connexion may be established if the act is done for reasons one of which is the race, colour, or national or ethnic origin of the person or group of persons concerned.  It may be however that the existence of other purposes is relevant to whether the act complained of falls within s 18D.

The Construction of Section 18D – Exemption Upon Exception and the Onus of Proof

72                  Section 18D places certain classes of acts outside the reach of s 18C.  The broad class of acts covered is ‘anything said or done reasonably and in good faith’ in the circumstances described in paras (a), (b) and (c) of that section.  The immunities created by s 18D were described in the Second Reading Speech and in the Explanatory Memorandum as ‘exemptions’.  It is important however to avoid using a simplistic taxonomy to read down s 18D.  The proscription in s 18C itself creates an exception to the general principle that people should enjoy freedom of speech and expression.  That general principle is reflected in the recognition of that freedom as fundamental in a number of international instruments and in national constitutions.  It has also long been recognised in the common law albeit subject to statutory and other exceptions.  So in Bonnard v Perryman [1891] 2 Ch 269 at 284 Lord Coleridge CJ said:

‘The right of free speech is one which it is for the public interest that individuals should possess, and, indeed, that they should exercise without impediment so long as no wrongful act is done …’.  (Lord Esher MR and Lindley, Bowen and Lopes LJJ concurring)

See also R v Metropolitan Police Commissioner; Ex parte Blackburn (No 2) (1968) 2 All ER 319 at 320; Wheeler v Leicester City Council (1985) 2 All ER 151 at 158;  Attorney General v Guardian Newspapers Ltd  [1990) 1 AC 109 at 203 and see generally Brown v Classification Review Board (1998 ) 82 FCR 225 at 234-239.  TRS Allan has written:

‘… the English Courts no longer view individual liberty (if indeed strictly speaking they ever have) as solely residual.  Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled by the courts.  The traditional civil and political liberties, like liberty of the person and freedom of speech have independent and intrinsic weight; their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction.  The common law, then, has its own set of constitutional rights, even if these are not formally entrenched against legislative repeal.’

TRS Allan, ‘The Common Law as Constitution: Fundamental Rights and First Principles’ in Saunders (ed) Courts of Final Jurisdiction – The Mason Court in Australia, Federation Press (1996) at p 148.

The efficacy of the general principle so stated is demonstrated by approaches to statutory interpretation in relation to common law rights and freedoms set out in such decisions as Potter v Minahan (1908) 7 CLR 277 at 304; Bropho v Western Australia (1990) 171 CLR 1 at 18 and Coco v R (1994) 179 CLR 427 at 437.  More recently in the United Kingdom it has been exemplified by application of the so called ‘principle of legality’ in R v Secretary of State for Home Department; Ex parte Simms (2000) 2 AC 115 at 131.

73                  Against that background s 18D may be seen as defining the limits of the proscription in s 18C and not as a free speech exception to it.  It is appropriate therefore that s 18D be construed broadly rather than narrowly.  The Minister described the exemptions in his Second Reading Speech as ‘broad’.  That was the approach to their construction taken by Commissioner Johnston in Bryl.  It was the approach relied upon by the Commissioner in the present case and approved by the learned primary judge.  His Honour observed, correctly in my respectful opinion (at [31]):

‘There is consequently nothing in either the Explanatory Memorandum or second reading speech, reference to which is permissible under the provisions of s 15AB of the Acts Interpretation Act 1901(Cth) to suggest that the exemption provisions in s 18D should be read other than in a way which gives full force and effect to them.’

74                  It is said to be the case that once an act is found to fall within the terms of s 18C, it is for the respondent to a complaint to show that it is exempted by the operation of s 18D.  This was common ground between the parties before the learned primary judge and on the appeal.  His Honour referred to the passage in the judgment of the High Court in Vines v Djordjevitch (at 519):

‘But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter…’.

His Honour held that the Commissioner was required to find as a fact whether the application of the exemptions under s 18D was established.

75                  While the incidence of the burden of proof of the exemption was not contested on the appeal it is not, in my opinion, a question that should be regarded as settled.  Whether an exemption from a statutory liability is to be demonstrated by the person upon whom it is sought to impose the liability is a matter of substantive statutory construction not a mere matter of form.  The constructional choice which typically arises in such cases was identified long ago by Lord Mansfield in R v Jarvis (1756) 1 EAST 643; 102 ER 247:

‘… it is a known distinction that what arises by way of proviso in a statute must be insisted upon by way of defence by the party accused; but, where exceptions are in the enacting part of the law, it must appear in the charge that the defendant does not fall within any of them.’

Professor Julius Stone observed that in the case of a statutory cause of action ‘… it is frequently a matter of some refinement to decide where the burden is placed’ -  J Stone and WAN Wells, Evidence – Its History and Policies, Butterworths (1991) p 699.  The substantive rather than the formal nature of that distinction was referred to in Dowling v Bowie (1952) 86 CLR 136 and also in Vines v Djordjevitch, where it was said (at 519):

‘… whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies.’

See also Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 285 and Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257 where Dawson, Toohey and Gaudron JJ said:

‘The distinction does not depend on the rules of formal logic: Dowling v Bowie.  Rather, the categorization of a provision as part of the statement of a general rule or as a statement of exception reflects its meaning as ascertained by the process of statutory construction.’

In Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR  88 at 119, McHugh J observed that:

‘Whatever form the statute takes, the question has to be determined as one of substance.’

76                  In considering the approach to s 18D which supports its broad construction, reference has already been made to matters which would also support the view that it is not in substance an exemption but rather defines areas of freedom of speech and expression not subject to the proscription imposed by s 18C.  To some extent however the question of burden may be academic for the judgment which the Court is called upon to make in deciding whether an act falls within s 18D has the character of judicial opinion and assessment in the application of legal standards of ill-defined content.  In difficult or borderline cases judicial opinions may differ. That is not to deny that, traditionally, judgments as to reasonableness and good faith have been classed as matters of fact.  But it may be that this does no more than mark them off from matters of law.  As Julius Stone wrote in 1961:

‘In all legal orders, legal standards or models such as “good faith”, “fair dealing”, “the reasonable man”, or “the conscionable man” play an important role.  They provide by their vagueness and indeterminacy legal norms tolerant of conflicting solutions in broad penumbral areas, even while in the core area they admit into the law the more coherent insights of the society’s widely shared convictions.  In the former areas they cover over conflicting judgments; in the latter they promote coherence of the law with the contemporary mores.’

J Stone, Legal Systems and Lawyers Reasonings, Maitland Publications (1968) at 21-22

77                  If the burden of proof does rest upon the person invoking the benefit of s 18D, then that burden would plainly cover the proof of primary facts from which assessments of reasonableness and good faith are to be made.  But the process of making such assessments is not so readily compatible with the notion of the burden of proof.   

The Construction of Section 18D - Reasonableness

78                  There is a number of definitions of ‘reasonable’ in the Shorter Oxford English Dictionary.  The relevant ones are:

‘3.  Agreeable to reason; not irrational, absurd or ridiculous.

4.  Not going beyond the limit assigned by reason; not extravagant or excessive; moderate.’

The adverb ‘reasonably’ is defined as ‘in a reasonable manner; sufficiently, fairly’.

79                  There are elements of rationality and proportionality in the relevant definitions of reasonably.  A thing is done ‘reasonably’ in one of the protected activities in par (a), (b) and (c) of s 18D if it bears a rational relationship to that activity and is not disproportionate to  what is necessary to carry it out.  It imports an objective judgment.  In this context that means a judgment independent of that which the actor thinks is reasonable.  It does allow the possibility that there may be more than one way of doing things ‘reasonably’.  The judgment required in applying the section, is whether the thing done was done ‘reasonably’ not whether it could have been done more reasonably or in a different way more acceptable to the court. The judgment will necessarily be informed by the normative elements of ss 18C and 18D and a recognition of the two competing values that are protected by those sections. 

80                  An act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question.  An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes.  The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people.  Its discussion at a scientific conference would no doubt be reasonable.  Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise ‘inferior’ to another  by reason of their race or ethnicity, may not be a thing reasonably done in relation to par (b) of s 18D. 

81                  The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest.  A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done ‘reasonably’.  A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of (c).  If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered ‘reasonably’.

82                  The ways in which the concept of reasonableness is brought to bear in the context of s 18D are no doubt as numerous in their variety as are the circumstances in which alleged racial vilification may arise.  The preceding comments do not purport to offer an exhaustive account of the concept of reasonableness nor a definitive view about the examples offered.  Rather, they are intended to illustrate the kind of task that faces a court applying s 18D.

The Construction of Section 18D – Good Faith as Honesty and Fidelity to Obligation

83                  The requirement in s 18D that the protected conduct be done in ‘good faith’ raises the definitional question – what is meant by ‘good faith’ in this context?  Associated with that is the question whether good faith is to be assessed subjectively or objectively, or by some combination of subjective and objective factors and whether, and to what extent, it overlaps the requirement of reasonableness.

84                  The term ‘good faith’ has been described as ‘protean’ in character with ‘long standing usage in a variety of statutory and … common law contexts’ – Secretary, Department of Education, Employment, Training and Youth Affairs v Prince (1997) 152 ALR 127 at 130 (Finn J).  A search of Commonwealth statutes discloses 154 Acts in which the term is used. Its applications are diverse and reflected in a variety of constructions according to its particular applications.  Since 1999 it has defined a central duty of company directors and other officers of corporations who must act in good faith in the best interests of their corporations and for proper purposes (s 181 Corporations Act 2001 (Cth)) – recently discussed in Australian Securities and Investments Commission v Adler (No 3) (2002)  30 ACLC 576 at [735] (Santow J).  It is a requirement of governments and other parties negotiating with respect to future acts affecting native title – s 31 Native Title Act 1994 (Cth) – considered in Strickland v Minister for Lands for Western Australia (1998) 85 FCR 303; Walley v Western Australia (1999) 87 FCR 565 and Brownley v Western Australia (No 1) (1999) 95 FCR 152. It is a condition of the protection of antecedent transactions from avoidance by a trustee in bankruptcy – s 123 Bankruptcy Act 1966 (Cth). In industrial law it supports the validation of things done by a collective body that would otherwise be invalid – s 225 Workplace Relations Act 1996 (Cth). 

85                  The valid exercise of statutory powers is conditional upon their exercise in good faith.  That is so notwithstanding their protection by the most robust of privative clauses – R v Hickman; Ex parte Fox and Clinton  (1945) 70 CLR 598.  The content of good faith in that context has been the subject of considerable attention in this Court in connection with the scope of s 474 of the Migration Act 1958 (Cth), a privative clause framed in very wide terms.  It is not necessary here to revisit the review of the authorities undertaken in WAFV v Refugee Review Tribunal (2003) 125 FCR 351.  But for the reasons there expressed, absence of good faith which will amount to jurisdictional error, vitiating the exercise of a statutory power, is not limited to cases of dishonesty or malice or personal interest.  It may be found in a reckless or capricious approach to the decision-maker’s task.  The exercise of a power in good faith requires an honest and conscientious approach.  The latter aspect accords with the requirement of fidelity to the obligation cast upon the decision-maker.

86                  The duty to act in good faith defines, at equity, the content of various classes of obligation which are described as fiduciary – Finn, Fiduciary Duties, Law Book Co, (1976) at 78-81.   There is authority for the existence in Australia of an implied duty at common law to act in good faith in the performance of contracts, albeit it has been much debated – see eg Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234; Alcatel Australia Ltd v Scarcelli (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Air Services Australia (1997) 76 FCR 151 and Burger King Corporation v Hungry Jacks Pty Ltd [2001] NSWCA 187 and various commentaries in Mason, Contract, Good Faith and Equitable Standards in Fair Dealing (2000) 116 LQR 66; Carlin, The Rise and Rise (And Fall?) of Implied Duties of Good Faith in Contractual Performance in Australia (2002) 25 NSW Law Journal 99;  Peden, The Meaning of Contractual ‘Good Faith’ (2002) 22 Australian Bar Review 225; Carter and Peden, Good Faith in Australian Contract Law (2003) 19 Journal of Contract Law 155.

87                  These are examples of the range of circumstances in which the words ‘good faith’ are to be applied.  They are not exhaustive of those circumstances.  For each example there is a body of judicial decisions construing and applying the words.  The particular construction will be adapted to the particular statute or rule of law in which the words are used.  In some cases there will be a statutory definition which will confine their meaning.  For example, in Sale of Goods legislation there is a provision that a thing is deemed to be done in ‘good faith’ within the meaning of the Act when it is done ‘honestly whether it be done negligently or not’. 

88                  The variety of particular applications of ‘good faith’ does not deny the conclusion that the words have a core meaning which is of general application manifested in different ways according to the environment in which they must be applied.  Its content is found in the ordinary English meaning of the words.  That, in accordance with established principle, is the starting point of all statutory construction. 

89                  It has been implied in some commentary that the search for meaning is fruitless.  Professor Roy Goode said of English jurists, ‘…we do not know quite what [good faith] means’ - EA Farnsworth, ‘Good Faith in Contract Performance’, Beatson and Friedmann (eds) Good Faith and Fault in Contract Law, Clarendon Press Oxford (1995) at 157 n 13.  Nevertheless the occurrence of the words in a multiplicity of statutes suggests they bear meaning to those who draft the laws and to at least some of the legislators who vote for them.  And it is not unreasonable to expect that those bound by them have a sense of their meaning which can be derived from their ordinary usage.

90                  The ordinary English meaning of the word ‘faith’ as defined in the Shorter Oxford English Dictionary includes the following:

‘1.  The duty of fulfilling one’s trust; fealty; the obligation of a promise or engagement.

2.  The quality of fulfilling one’s trust, fidelity, loyalty.’

The term ‘good faith’ is noted against the second meaning as reflecting fidelity and loyalty and is contrasted with bad faith meaning faithlessness or having an intent to deceive. In Black’s Law Dictionary, 7^th Edition, West Group (1999) at 701, ‘good faith’ is defined thus:

‘A state of mind consisting in (1) honesty in belief or purpose, (2) faithfulness to one’s duty or obligation, (3) observance of reasonable commercial standards of fair dealing in a given trade or business, or (4) absence of intent to defraud or to seek unconscionable advantage. – Also termed bona fides.’

91                  Honesty is an element embedded in the ordinary meaning of good faith.  It is the antithesis of bad faith.  The idea of fidelity or loyalty goes beyond honesty.  It is a relational concept. It involves adherence to a commitment or an obligation or a principle.  Because it is relational it is ambulatory and because it is ambulatory so too is the concept of ‘good faith’ as a whole.   In a less direct sense so too is honesty.  In the context of an implied term of good faith in the performance of a contract, Sir Anthony Mason used the words ‘mainly in the sense of loyalty to the promise itself and as excluding bad faith behaviour’ – AF Mason op cit at 69.  These elements are not contingent upon context.  They emerge from the ordinary meaning of the words although, like ‘fairness’ in administrative justice, they take their content from the particular circumstances in which it is sought to apply them. 

92                  In the United States Second Restatement of Contracts par 205, it was said:

‘The phrase ‘good faith’ is used in a variety of contexts and its meaning varies somewhat with the context.  Good faith performance or enforcement of a contract emphasizes faithfulness to an agreed common purpose and consistency with the justified expectations of the other party; it excludes a variety of types of conduct characterized as involving ‘bad faith’ because they violate community standards of decency, fairness or reasonableness.’

93                  In a statutory setting a requirement to act in good faith, absent any contrary intention express or implied, will require honest action and fidelity to whatever norm, or rule or obligation the statute prescribes as attracting the requirement of good faith observance.  That fidelity may extend beyond compliance with the black letter of the law absent the good faith requirement.  In ordinary parlance it may require adherence to the ‘spirit’ of the law.  This may attract the kind of penumbral judgments by courts of which Professor Stone wrote.  That is not necessarily a matter for concern in the case of civil proscriptions.  They are evaluative judgments which the courts are authorised and required by the legislature to make.  A good faith provision offers a warning that game playing at the margins of a statutory proscription or obligation may attract a finding of liability. There is nothing in principle to prevent the legislature protecting a rule by attaching an uncertain risk of liability to conduct in the shadow of the rule.

94                  In my opinion, the balance struck in ss 18C and 18D between proscription and freedom requires more in the exercise of the protected freedom than honesty.  Section 18D assumes that the conduct it covers would otherwise be unlawful under s 18C.  The freedom it protects is broadly construed.  But, given that its exercise is assumed to insult, offend, humiliate or intimidate a person or group of persons on the grounds of race, colour or national or ethnic origin, there is no legislative policy which would support reading ‘good faith’ more narrowly than its ordinary meaning. 

95                  How does this approach operate in the context of s 18D?  It requires a recognition that the law condemns racial vilification of the defined kind but protects freedom of speech and expression in the areas defined in pars (a), (b) and (c) of the section.  The good faith exercise of that freedom will, so far as practicable, seek to be faithful to the norms implicit in its protection and to the negative obligations implied by s 18C.  It will honestly and conscientiously endeavour to have regard to and minimise the harm it will, by definition, inflict.  It will not use those freedoms as a ‘cover’ to offend, insult, humiliate or intimidate people by reason of their race or colour or ethnic or national origin.  

The Construction of Section 18D – Good Faith – Subjective and Objective

96                  It follows from the preceding discussion that good faith may be tested both subjectively  and objectively.  Want of subjective good faith, ie seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s 18D.  But good faith requires more than subjective honesty and legitimate purposes.  It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act.   This may be assessed objectively.

97                  Constructional choices between subjective and objective approaches to good faith have been considered in a number of different statutory contexts.  Cannane v J Cannane Pty Ltd, was a case arising under s 121 of the Bankruptcy Act 1966 (Cth) involving a disposition with intent to defraud creditors, not being for valuable consideration, in favour of a person who acted in good faith.  Kirby J in a part of his dissenting judgment which did not conflict with the majority judgments, said (at 596):

‘The words “good faith” and “acted in good faith” appear in many statutes in virtually all countries of the common law.  It would be erroneous to suggest that a single meaning could be adopted, indifferent to the particular statutory context.  It has been remarked that, putting it broadly, the words “good faith”, or their Latin equivalents, have received “two divergent meanings”… The first is a broad or subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produce it.  The second involves the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence.  The particular interpretation apt to the use of the words in a given legislative context will depend on the decision-maker’s elucidation of the purpose of the legislature.’

98                  In Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 the Full Court considered the expression ‘anything done or omitted to be done in good faith’ in a New South Wales planning statute dealing with the liability of a planning authority for the supply of incorrect information.  The provisions were described by the Court as designed to strike a balance between the interests of the publicly funded authority which provides the information and the interests of the recipients of the information where, in the ordinary course, such people might be expected to incur substantial liability in reliance upon it.

99                  The Court posed the question, (at 299):

‘Is the individual interest to yield to what might be called the wider public interest unless the conduct of the authority may be stigmatised as dishonest?’

The answer was in the negative:

‘In our view, the statutes do not bring about that result’.

The Court said further (at 300):

‘The statutory concept of “good faith” with which the legislation in this case is concerned calls for more than honest ineptitude.  There must be a real attempt by the authority to answer the request for information at least by recourse to the materials available to the authority.  In this case there was a failure to meet that standard.’

100               Tony J Boulos v BP Australia Ltd (1999) 88 FCR 282 concerned a good faith exemption from a price discrimination prohibition in the Petroleum Retail Marketing Franchise Act 1980 (Cth).  The Full Court there quoted the passage set out above from the judgment of Kirby J, with apparent approval, (at [47]) and said (at 293 [49]):

‘Clearly, it is not possible to describe definitively the considerations which may lead to the more objective, rather than the more subjective approach.  However, we suggest that they would include the context of the transaction (for example, domestic or commercial), the importance of the matter, possible adverse effects upon others and the likely expectations of others.’

Their Honours referred to the earlier decision of the Full Court in Mid Density Developments.  They allowed that there might be circumstances in which an absence of reasonable caution and diligence could constitute a want of good faith for the purposes of the section of the legislation which they had under consideration.  However, the case at trial had been fought upon the basis that it was subjective good faith, not diligence, which was in issue.

101               Generally speaking the absence of subjective good faith, eg dishonesty or the knowing pursuit of an improper purpose, should be sufficient to establish want of good faith for most purposes.  But it may not be necessary where objective good faith, in the sense of a conscientious approach to the relevant obligation, is required.  In my opinion, having regard to the public mischief to which s 18C is directed, both subjective and objective good faith is required by s 18D in the doing of the free speech and expression activities protected by that section.  

102               A person acting in the exercise of a protected freedom of speech or expression under s 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it.  That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D.  On the other hand, a person who exercises the freedom carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith. 

The Construction of Section 18D – Good Faith and Reasonableness

103               It may be that there will be an overlap between the assessment of reasonableness and of good faith.  This does not necessarily mean that they overlap conceptually.  It just means that there may be common factual elements underpinning them in a particular case.  In Burger King Corporation v Hungry Jacks Pty Ltd, the New South Wales Court of Appeal, in dealing with the implied obligation of good faith in the performance of contracts, said ( at [169]-[170]):

‘...it is worth noting that the Australian cases make no distinction of substance between the implied term of reasonableness and that of good faith.  As Priestley JA said in [Renard Constructions (NE) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 at 263] “the kind of reasonableness I have been discussing seems to me to have much in common with the notions of good faith”.  Priestley JA commented further at 265 that “… in ordinary English usage there has been constant association between the words fair and reasonable.  Similarly there is a close association of ideas between the terms unreasonableness, lack of good faith and unconscionability”.’

Peden op cit at 242 criticised this approach:

‘… as more courts are incorporating good faith obligations into contracts, the meaning of ‘good faith’ must be given a much more precise meaning than ‘fairness’, ‘justice’, or even ‘reasonableness’.’

Beyond the practical interaction which will occur because they involve consideration of common facts, it is not necessary here to search for any conceptual overlap between reasonableness and good faith nor to be too concerned if on the constructional approaches so far adopted such an overlap exists. 

The Cartoon as an Artistic Work

104               The Commissioner in the present case regarded the Yagan cartoon as falling within the description of a ‘artistic work’ for the purposes of s 18D(a).  The term does seem to be used broadly in s 18D.  The collocation ‘performance, exhibition or distribution’ used in conjunction with it seems to contemplate works in both the visual and performing arts.  If it does extend that far it seems unlikely, having regard to the evident policy of the exemption, that literary works are excluded.  It is not necessary for present purposes to determine the full range of things to which the artistic works exemption applies.  The Commissioner’s finding was not in dispute either before the primary judge or on the appeal.  Whether or not that finding is correct, is not canvassed in these reasons.  Nor is the general question whether works involving comment or matters of public interest may at some point cease for that reason to be able to be characterised as artistic works.   It is, however, useful to point to some attributes of artistic works which mark them off from the matters covered by the remaining exemptions.  

105               Paragraph (a) of s 18D imports no requirement that the artistic works to which it applies be concerned with academic or scientific purposes or otherwise with the matters of public interest covered in the succeeding paragraphs.  Artistic works necessarily transcend such boundaries although they may also involve comments or statements on such matters.  The question whether such comments or statements are fair or accurate or reflective of genuinely held belief or about matters of public interest, is not relevant to the characterisation of the particular work as artistic.  But to attract the application of s 18D the things done in their performance, exhibition or distribution must be done ‘reasonably and in good faith’. 

106               It must be accepted that artistic works cover an infinite variety of expressions of human creativity.  Some such expressions will shock and confront particular elements of society.  Some may satirise or lampoon aspects of human behaviour including the behaviour of particular individuals and groups. Their performance, exhibition or distribution may offend or insult or even humiliate and intimidate some.  And such acts may have that effect in relation to people of a particular race, colour or national or ethnic origin.  This does not mean that the performance, exhibition or distribution of such a work is done ‘because of the race, colour or national or ethnic origin’ of the people to whom it relates.  It may be a work about particular people or use the circumstances of particular people as a vehicle of artistic expression with universal themes.  This is not to undercut the objective test of causal connexion in the application of s 18C(a) and (b) but to recognise its limits in the case of artistic works. 

107               The question whether an artistic work is performed, exhibited or distributed reasonably and in good faith is a question posed on the assumption that the relevant conduct would otherwise be unlawful by reason of s 18C. On that hypothesis the impugned act in relation to the work is reasonably likely to offend, insult, humiliate or intimidate a person or people of a particular race, colour or national or ethnic origin and is done because of one or more of those attributes of that person or those people.  That alone cannot constitute want of reasonableness or lack of good faith.  If it did, s 18D would have no application.  On the other hand, the circumstances which support the inferences necessary to attract the application of s 18C may also be relevant to determining questions of reasonableness and good faith under s 18D.

Whether the Burden of Proof was Wrongly Applied – Appeal Grounds 1 to 4

108               The Commissioner said that when a respondent claims the benefit of the exemption under s 18D it has to ‘satisfy the Commission that each element necessary to succeed has been established’.  The test having been thus stated, the Commissioner found positively that the cartoon was an artistic work and that the newspaper acted reasonably and in good faith in its distribution.  He so concluded having regard to the articles and editorial comments previously published in the newspaper about the return of Yagan’s head.  He made a positive judgment that the cartoon could not be described as ‘exaggerated’ or ‘prejudiced’.  He made reference to, and evidently accepted, Mr Murray’s evidence that he had made a ‘judgment call’ knowing that the cartoon would attract criticism.  He also considered the cartoon in the context of other material which had been published in the newspaper on the issue.  These aspects of the Commissioner’s reasons make clear that he was approaching the application of the exemption upon the basis that he had to be positively satisfied of its application.  His references to the absence of evidence of ‘dishonesty or fraud’ or ‘malice’ did not involve any reversal of that onus.  Rather it indicated that there was nothing to detract from the positive views he had formed on the material before him.

109               The primary judge, correctly in my opinion, accepted that the exemption under s 18D is to be broadly construed.  He regarded it as an exception to be established by the person invoking it and referred to Vines v Djordjevitch.  This was not in dispute before his Honour although, as previously discussed, I do not accept that evaluative criteria of the kind set out in s 18D readily lend themselves to burden of proof analysis.

110               His Honour, having adopted an objective construction of the requirement for reasonableness and good faith in s 18D, observed that (at [36]):

‘If there were findings based on the evidence of “dishonesty or fraud” or “malice” that would preclude a finding of reasonableness and good faith and thus would preclude the application of the exemption in s 18D.’

It is in this sense, discussed earlier in these reasons, that the absence of subjective good faith can be sufficient to negative good faith for the purposes of s 18D.  But the absence of dishonesty or malice is not sufficient to establish good faith.

111               The primary judge concluded (at [37]):

‘It follows I do not consider that the Commissioner was in error of law in approaching the application of the requirement of reasonableness and good faith in the way in which he did.  He had regard to all the evidence, including the evidence from Mr Murray, and reached a conclusion as to reasonableness.  In the absence of evidence of lack of good faith he was not required to have evidence called in addition to that before him.  In my view he did not err in applying s 18D in taking that approach.’

In my opinion, it is clear that both the Commissioner and the primary judge treated the burden of establishing the exemption under s 18D as resting upon the respondent.  Nothing in what they said can be construed as having imposed upon the complainants the burden of negativing the exemption of s 18D.  On the assumption, which is not in dispute for the purpose of these proceedings, that the onus of proof lay upon the newspaper, appellant’s contention is not made out.  The first four grounds of appeal therefore fail.

The ‘Reasonably and in Good Faith’ Criterion – Grounds 5 and 6

112               The fifth ground of appeal raised the contention that his Honour had wrongly applied a subjective test to reach a conclusion about the reasonableness and good faith of the publication of the cartoon.  His Honour was said to have based his conclusion upon the evidence of the newspaper’s editor.

113               His Honour, it will be recalled, was engaged in the process of judicial review of the Commissioner’s decision.  He was not purporting to make his own assessment of the reasonableness and good faith of the publication.  This seems to have been overlooked in the formulation of appeal ground 5.  In any event, his Honour did not give his approval to a subjective test.  He said at [33]:

‘The Commissioner was required to find as a fact whether the application of the exemptions was established.  That required him to consider whether, on the evidence and findings, the elements of the section were established. That involved him in applying as one of the elements of the section the concept of reasonableness and good faith in respect of the act found to contravene s 18C.  What was required in those circumstances was an objective finding on the evidence whether the conduct which would otherwise be unlawful pursuant to s 18C was “said or done reasonably and in good faith” in the circumstances referred to in pars (a), (b) or (c) of s 18D.’

He then referred to the passage quoted earlier in these reasons from the dissenting judgment of Kirby J in Cannane and as earlier noted, held that the good faith requirement was to be construed in accordance with the second of the two categories referred to in that passage.  In the present context that involved ‘… the objective construction of the words by the introduction of such concepts as an absence of reasonable caution and diligence’.  Consistently with the view already expressed in these reasons, his Honour allowed that evidence of state of mind could be relevant but that (at [33]):

‘… the focus of inquiry dictated by the words involves an objective consideration of all the evidence and not solely a focus on the subjective state of mind of the person doing the act or making the statement in question.’

It is plain from these passages and from the outline of his Honour’s reasons set out earlier that he did not adopt or approve a subjective test of reasonableness and good faith.  Ground 5 therefore fails.

114               Ground 6 attacks an alleged finding by the primary judge ‘that the cartoon was published for a genuine purpose in the public interest’ and attacks it by reference to the circumstance that the Commissioner failed to take into account that the matters of public interest in the cartoon did not include aspects of the cartoon that were offensive, insulting, humiliating or intimidating to Nyoongar or Aboriginal people.  This oddly worded ground attacks an alleged finding of fact by the trial judge on the basis of a failure by the Commissioner to take into account some relevant considerations in his decision.  It appears to refer back to ground 2 of the original application which stated:

‘The Commissioner further erred in law by finding that the cartoon was published for a genuine purpose in the public interest in circumstances where a commissioner failed to consider and/or failed to take into account the relevant consideration that the matters of public interest in the cartoon did not include the aspects of the cartoon that were offensive, insulting, humiliating or intimidating to Nyoongar or Aboriginal people.’

115               The written submissions on this ground focussed entirely upon the exemptions in s 18D(b) and (c).  In each case, it was said, before applying the exemption the Commissioner was required to find that the cartoon was in the public interest.  He had failed to take into account the relevant consideration that there were aspects of the cartoon which had nothing to do with the public interest that were offensive, insulting, humiliating or intimidating to Nyoongar or Aboriginal people.  So it was said, if there are parts of the work which are not for a public purpose those parts cannot be published with impunity just because they are attached to another part with a purpose which is genuine and in the public interest.  A sarcastic or mocking comment accompanying an otherwise fair comment could not be protected by its publication with a fair comment.  That was particularly so in this case where the mockery of the ancestor Yagan, the religious figure the Wagyl and the ancestry of the complaints was not connected in reasonably necessary way to the topic of public interest.

116               It may well be correct to say that, in considering the application of the exemptions in pars (c) and (d) it is relevant and necessary to consider the inclusion of material which is calculated simply to insult, offend, humiliate or intimidate persons of a particular race and has no bearing upon any genuine academic, artistic or scientific purpose or any event or matter of public interest.  The inclusion of such material may go to the question of reasonableness and good faith in relation to those exemptions and alternatively, or in addition, to the question whether there are elements of the statement, publication, discussion, debate, report or comment that are severable acts unlawful for the purposes of s 18C and not protected by s 18D. 

117               His Honour rejected the contention in relation to s 18D(b) the Commissioner had failed to take into account the offensive, insulting, humiliating or intimidating aspects of the cartoon. 

118               It is notable that the Commissioner in dealing with the public interest considerations generally in his reasons accepted that the public interest for the purpose of the exemptions should ‘… be read more narrowly and the public interests of the racial group in question should be taken into account when considering the general public interest’.  The Commissioner said (at 51):

‘The respondent argues that this cartoon was published in the course of encouraging public discussion or debate about the return of Yagan’s head to Australia.  Mr Murray gave evidence to the effect that that was his purpose in publishing the cartoon and it was not suggested to him that he was pursuing some other purpose.  It was further asserted by the respondent that such a purpose could be characterised as a “genuine purpose in the public interest”.  I accept those arguments, taking into account my view that one adopts a narrow interpretation of what is in the public interest in the context of the RDA.  As indicated in my consideration of the “reasonable” and “good faith” provisions I have come to this view considering the cartoon in the context of other material published in The West Australian on this issue.’

119               There is a real question whether the ground of review on this issue before his Honour was really seeking to trespass into the field of merits review.  There is certainly a powerful argument for saying that the cartoon included elements of an offensive and insulting nature which were irrelevant to any public interest issue.  However the question of public interest and the application of the criterion of reasonableness and good faith in s 18D(b) and (c) involve holistic judgments.  Courts should be reluctant to engage in the process of subdividing, in judicial review proceedings, the materials before an administrative decision-maker who has formed an overall view of the publication.  Having said that, it is not necessary to finally dispose of this ground of appeal because the Commissioner’s decision is sustainable by reference to the primary basis upon which he made it, namely the exemption under s 18D(a). 

Onus Revisited – Ground 7

120               The seventh ground of appeal really revisited the onus argument in another guise.  It is simply incorrect to state, as asserted in ground 7, that the primary judge held s 18D required the Commissioner to identify conduct that was dishonest or fraudulent or required deliberate intent to mislead or was at least reckless or callously indifferent.  In my opinion therefore, ground 7 also fails. 

Conclusion

121               For the preceding reasons, in my opinion, the appeal should be dismissed.  The appellant should be required to pay the costs of the second respondent.

Associate:

Dated:              6 February 2004

ON APPEAL FROM A JUDGE OF  THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

LEE J:

122               This is an appeal from a judgment of a Judge of this Court which dismissed an application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision of the first respondent (“the Commission”).  On 12 April 2001 the Commission dismissed a complaint by the appellant, and others, that contrary to s 18C of the Racial Discrimination Act 1975 (Cth) (“the Act”) the second respondent (“WA Newspapers”) had done an act reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person, or a group of people, the act having been done because of the race or colour of the other person, or of some or all of the people in the group.

123               The act the subject of the complaint was the publication by WA Newspapers of a cartoon in “The West Australian”newspaper on 6 September 1997.  The cartoon lampooned the involvement of Aboriginal persons, including the appellant, in, and the connection to and the significance to them of, the return from the United Kingdom of the skull of Yagan, a prominent Aboriginal figure in the history of the colonial settlement in the State after 1829. Yagan was killed in 1833 in the course of conflict between Aboriginal inhabitants and colonial settlers.

124               The Commission found that any reasonable Aboriginal person, or person within the Nyungar group of Aboriginal persons, would have found the cartoon offensive, insulting, humiliating or intimidating.

125               The reasons provided by the Commission for the foregoing conclusion were comprehensive and read as follows:

“Firstly, the cartoon presents a demeaning portrayal of Yagan, an ancestor of the complainants – particularly the reference to a warm beer and a quiet pommie pub in the context of the widespread community view regarding the relationship between alcohol and Aboriginal people.

Secondly, the cartoon contains derogatory and demeaning references to the Waugyl, a religious figure.

Thirdly, it treats the issue of death in a manner which causes offence to Aboriginal people.

Fourthly, it provides intimate details of the ancestry of individuals in circumstances where the intercourse was not a matter of choice for the Aboriginal women concerned, and suggests a diminishing of the race by the resultant racial mix.

Fifthly, it reinforces a misinformed and stereotypical view of Aboriginal people of taking advantage of government grants.”

126               On the Commission’s view the cartoon was a serious slur on Aboriginal people, likely to raise and reinforce within the community adverse stereotypical perceptions in respect of those people.  The essence of the Commission’s finding was that the cartoon belittled the spiritual beliefs of the Aboriginal race and implied that the offspring of European settlers and Aboriginal inhabitants were not “real” Aboriginals.  The cartoon suggested that the return of Yagan’s skull was not as important to the Aboriginal people depicted as the opportunity that arose from it to use public funds for personal pleasure.

127               By reason of the foregoing the Commission was satisfied that publication of the cartoon was an act reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate any Aboriginal person, and, in particular, a Nyungar Aboriginal person. 

128               The Commission was also satisfied that the act was done because of the Aboriginality of the persons reasonably likely, in all the circumstances, to be offended, insulted, humiliated or intimidated.  In that regard the Commission said as follows:

“There is no doubt in my mind that one of the reasons for the publication of the cartoon was the race of the persons referred to in the cartoon, and of the complainants.  Yagan is a well-recognised and highly regarded ancestor of the Nyungar people.  The cartoon was an attempt to laughingly and mockingly represent the issues around the return of Yagan’s head to Perth.  Whilst it was dealing with this as an issue important to all members of the Western Australian community, there was a clear causal connection between this and Aboriginality.

Further, there are numerous allusions in the cartoon to traits or sectors of Aboriginal people and society – elders, the Waugyl, and Yagan himself.

Finally, all of the people referred to in the cartoon are involved with the issue because of their Aboriginality.”

129               At that point the reasoning of the Commission would have required the Commission to find that the act done by WA Newspapers was an unlawful act unless it was satisfied that one of the exemptions set out in s 18D applied to the act.

130               Section 18D provides as follows:

“Section 18C does not render unlawful anything said or done reasonably and in good faith:

(a)       in the performance, exhibition or distribution of an artistic work; or

(b)        in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

(c)        in making or publishing:

(i)        a fair and accurate report of any event or matter of public interest; or

(ii)       a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.”

131               The Commission stated that WA Newspapers bore the onus of showing that the act of publication was done reasonably and in good faith.  The Commission appeared to treat that requirement as a threshold issue to be determined before considering other requirements of s 18D.  In that regard the Commission said as follows:

“I am satisfied that, in this instance, the respondent acted reasonably and in good faith.  The cartoon concerned was published after a series of articles and editorial comments dealing with this issue.  It was an issue of importance for the West Australian community in general, as well as to the Aboriginal community, and was treated as such by the newspaper.  In publishing the cartoon I am satisfied that the newspaper did not act outside Commissioner Johnson’s ‘Margin of tolerance’.  Testing the cartoon against ‘moral and ethical considerations, expressive of community standards’ I am satisfied that the newspaper acted reasonably.  While it may be argued that the cartoon could be characterised as ‘exaggerated’ or ‘prejudiced’, I do not consider that it was sufficiently exaggerated or prejudiced (having regard to the surrounding circumstances) to breach the standard of reasonableness.  Paul Murray gave evidence that he had made a judgment call, knowing that the cartoon would receive some opposition, but forming the view that it was appropriate to represent an important community issue in this way.  My view in this area is strengthened by reading the other material in The West Australian published on this issue, which provided a balance report of what took place, and an opinion which, in the main, encouraged unity in, and support of, the Aboriginal community.

There was no evidence before me which suggested that the conduct of the respondent smacked of ‘dishonesty or fraud’ to follow Commissioner Johnston’s formulation for the good faith requirement.  Nor was there evidence of ‘malice’ on the part of the respondent.  I am therefore satisfied that the respondent is able to make out the first requirements of s 18D.”

132               Counsel for the appellant submitted that the Commission erred in its understanding of the meaning of the words “reasonably and in good faith” as used in s 18D. 

133               Obviously s 18D must be read as applying to an act that would, but for s 18D, be an act described in s 18C, being an act reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate a person, and being an act done because of race, colour or national or ethnic origin of that person.  Thus to be an act which s 18D excludes from the application of s 18C it must be done reasonably and in good faith having regard to the inherent unlawfulness of the act.  Section 18D operates by setting a condition that must be satisfied before an act to which the section applies may be said to be lawful. 

134               The Commission found the cartoon to be an artistic work and accepted that the cartoon had been published to “encourage public discussion or debate about the return of Yagan’s head to Australia” and that this was a “genuine purpose in the public interest”.  The Commission found that the act done, whether the distribution of an artistic work (s 18D(a)), or publication made for a genuine purpose in the public interest (s 18D(b)) was an act done reasonably and in good faith and, therefore, the foregoing provisions of s 18D applied to exclude the operation of s 18C upon the act of distribution, or publication, of the cartoon. 

135               It may be that in respect of an act done because of the race or colour of a person, being the distribution of an artistic work that is reasonably likely to offend but not insult, humiliate or intimidate that person, or others, the task of showing that the act of distribution was, nonetheless, done reasonably and in good faith would be less onerous than for the distribution of a work that is reasonably likely to do more than offend, namely, to insult, humiliate and intimidate that person, or others.

136               In the instant case the Commission found that the cartoon was reasonably likely to offend, insult, humiliate or intimidate an Aboriginal person.  Therefore, the act of distribution that was the subject of complaint, was at the most serious end of the spectrum with a corresponding onus on WA Newspapers to show that in those circumstances the act had been done reasonably and in good faith.  The reasonableness of the act could only be judged against the possible degree of harm it may cause.  Such harm, in the context of the Act, would be the extent to which that part of the community which consisted of persons who held racially-based views destructive of social cohesion, or persons susceptible to the formation of such opinions, may be reinforced, encouraged or emboldened in such attitudes by the publication, on the ground of race, of a cartoon which, irrespective of the intent of the artist and of the purpose of the publisher, was capable of being seen by such persons as providing support or justification from an authoritative source for views grounded on racial antipathy.

137               The Act is a statement, first, that acts done because of race promote a significant mischief in the community, sufficient to require intervention by statutory prohibition, and second, unless good cause is shown for the conduct concerned, it is in the greater public interest that the right of free expression be controlled by removing from public discourse racially based acts that offend, insult, humiliate or intimidate members of a race within the community thereby tending to set one part of the community against another. 

138               The act of publication was not an act of offensive behaviour in a minor degree in respect of a limited group of people.  It was found to be an act reasonably likely to offend, insult, humiliate or intimidate any Aboriginal person.  Humiliation or intimidation involves more than destruction of self-perception or self-esteem of a person.  It affects others in the community by lowering their regard for, and demeaning the worthiness of, the person, or persons, subjected to that conduct.  It stimulates contempt or hostility between groups of people within the community and it is the intent of the Act that such socially corrosive conduct be controlled.

139               I note that in Western Aboriginal Legal Service Limited v Jones [2000] NSWADT 102, a decision referred to by the Tribunal, the Tribunal in that case considered that the construction of the words “reasonably and in good faith” imported a requirement for proportionality to be demonstrated in the conduct engaged in having regard to the degree of harm inflicted.  At [153] the Tribunal said as follows:

“…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…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.”

140               Although the statutory provision under consideration in that case differed in significant respects from the Act,  the words “reasonably and in good faith” served a similar purpose and the issue of construction of that phrase was correctly approached by the Tribunal.  (See also:  Kazak v John Fairfax Publications Ltd (2000) NSWADT 77 at [84]‑[92]).

141               The requirement that an act to which s 18D applies must be shown to have been done in good faith as well as reasonably, will not be met by the publisher asserting that there is an absence of evidence that it acted in bad faith, fraudulently, or with malice.  The question whether publication was an act done in good faith must be assessed, in part, by having regard to the subjective purpose of the publisher but overall it is an objective determination as to whether the act may be said to have been done in good faith, having due regard to the degree of harm likely to be caused and to the extent to which the act may be destructive of the object of the Act.  (See:  Cannane v J Cannane Pty Ltd (In liq) (1998) 192 CLR 557 per Kirby J at 596-597.)

142               The reasons of the Commission, set out above, reveal that the Commission did not ask itself, nor answer, the correct question in that regard.  The Commission failed to consider the extent to which the publication infringed the terms of s 18C in assessing whether, for the purposes of the Act, publication of the cartoon could be said to have been done reasonably and in good faith.  In stating that it did not consider that the cartoon was sufficiently “exaggerated” or “prejudiced” to breach a standard of reasonableness that had regard to “surrounding circumstances” the Commission seems to have been of the opinion that the “surrounding circumstances” consisted of the opinion of the editor and of anterior material published by WA Newspapers.  The Commission appears to have been of the view that the proven vice in the act of publication, namely, the reasonably likely consequence that Aboriginal persons would be offended, insulted, humiliated or intimidated, was redressed in some manner by prior articles and editorial comment published by WA Newspapers.  If that were so, the Commission misdirected itself in a serious respect.  Contemporaneous, or prior, publication of anodyne material would not, in itself, make an act of publication done because of race and involving racially offensive material, an act done reasonably and in good faith.  A publisher of a catholic range of opinions could not rely upon past publication of diverse material to show that it acted reasonably and in good faith by publishing, because of race, a work or material that is offensive, insulting, humiliating or intimidating to persons of that race, if it acts without regard to whether the act of publication would cause the harm the Act seeks to prevent, and does not attempt to show how the risk of harm from the otherwise prohibited act, was counterbalanced, or outweighed, by matters showing the act to have been done reasonably and in good faith.

143               The evidence of the editor, “that he had made a judgment call, knowing that the cartoon would receive some opposition” did not show that the racially offensive consequences of the act of publication, an act done because of race, had been duly considered and on its own that evidence was incapable of satisfying the onus on WA Newspapers to show that the act of publication had been done reasonably and in good faith. 

144               It also follows from the foregoing that the Commission misdirected itself in accepting that the onus on WA Newspapers to show that the act of publication was done in good faith would be satisfied unless there was evidence that there had been “dishonesty or fraud” or “malice” on its part.  (See:  Wilde v Spratt (1986) 13 FCR 284 per Lockhart J at 292).  The words “good faith” as used in s 18D involve more than the absence of bad faith, dishonesty, fraud or malice.  Having regard to the context provided by the Act, the requirement to act in good faith imposes a duty on a person who does an act because of race, an act reasonably likely to inflict the harm referred to in s 18C, to show that before so acting that person considered the likelihood of the occurrence of that harm and the degree of harm reasonably likely to result.  In short the risk of harm from the act of publication must be shown to have been balanced by other considerations.  The words “in good faith” as used in s 18D import a requirement that the person doing the act exercise prudence, caution and diligence, which, in the context of the Act would mean due care to avoid or minimize consequences identified by s 18C.  (See:  Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290 per Gummow, Hill, Drummond JJ at 298). 

145               The reasons of the Commission disclose that the Commission failed to address the correct question and misunderstood, and failed to apply, the proper construction of the Act.  The decision should be set aside and the matter remitted to the Commission for determination according to law.  (See:  Minister for Immigration & Multicultural & Indigenous Affairs Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [83]).

Associate:

Dated:              6 February 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

CARR J:

INTRODUCTION

146               This is an appeal from orders made by RD Nicholson J, on 4 December 2002, to dismiss an application for review of a decision of the first respondent, the Human Rights and Equal Opportunity Commission (“the Commission”).  The Commission’s decision, made on 12 April 2001, was to dismiss a complaint made by the appellant and others that the second respondent had contravened s 18C of the Racial Discrimination Act 1975 (Cth) (“the RDA”).  The act alleged to have constituted such contravention was the publication, in the 6 September 1997 issue of “The West Australian” newspaper, of a cartoon which the complainants claimed was offensive to Aboriginal people.  A copy of that cartoon is annexed to these reasons.  The cartoon is concerned mainly with events relating to the return from England to Perth of the severed head of Yagan, an Aboriginal leader and warrior who was killed in 1833. 

the relevant legislation

147               Section 18C of the RDA provides that it is unlawful for a person to do an act, otherwise than in private, if the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people, and the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. 

148               Section 18D, which is headed “Exemptions” is in the following terms:

‘Section 18C does not render unlawful anything said or done reasonably and in good faith:

  (a)     in the performance, exhibition or distribution of an artistic work; or

  (b)     in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or

  (c)      in making or publishing:

            (i)      a fair and accurate report of any event or matter of public interest; or

            (ii)     a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.’ 

procedural background

149               On 24 September 1997, Ms Hannah McGlade, a lecturer at the School of Law at Murdoch University wrote to the Commission stating that the Nyungar Circle of Elders had asked her to make a complaint to it against the second respondent and its cartoonist Mr Dean Alston in relation to the cartoon under s 18C of the RDA. 

150               The Commission decided to conduct an inquiry.  On 4 March 1998a commissioner (probably Commissioner Johnston, but it is not clear from the papers) formed the view that the cartoon fell within the exemptions in s 18D and declined to continue the inquiry into the complaint, on the ground that the matter complained of was not unlawful.  The complainants required the matter to be referred to the Commission for public inquiry and the matter was so referred by the Commissioner. 

151               During the course of the inquiry, the complainants made application for Mr Alston to be joined as a respondent.  On 15 October 1998, Commissioner Johnston declined to grant that application for reasons which were published on 17 November 1998.  On 29 April 1999, Commissioner Innes conducted a public hearing into the complaint at which counsel appeared for the complainants and the second respondent.  By this stage the complainants were described as seven named persons, including the appellant, “comprising the Nyungar Circle of Elders”. 

152               The Commission heard evidence from six of the complainants, including the appellant, and from Dr Stephen Mickler, a lecturer in the School of Communication and Cultural Studies at Curtin University of Technology.  Dr Mickler gave evidence about public perceptions of Aboriginal culture and Aboriginal people as being relevant in the assessment of the cartoon. 

153               The editor of “The West Australian” (Mr Paul Murray) gave evidence on behalf of the second respondent explaining how the cartoon came to be published.  

154               The Commission accepted the evidence of those of the complainants who were members of a delegation who travelled to England to bring back Yagan’s head, to the effect that that was a very spiritual experience for them and that the cartoon was particularly distressing.  However, it also accepted Mr Murray’s evidence.  The Commission said:  

‘I accept the evidence of Paul Murray, confirmed by the complainants, that much material relating to the return of Yagan’s head had been published in The West Australian in the few weeks prior to the publication of the cartoon.  The people referred to in the cartoon had been referred to on previous occasions.  Some litigation had occurred regarding the matter, and the preparations for and trip of the delegation had received much publicity.  The West Australian had, editorially, recognised the importance of the return of Yagan’s head as a means of unifying the Aboriginal community, and had been critical that its return had become the subject of further division.’

155               The Commission applied an objective test to ascertain whether publication of the cartoon was reasonably likely to offend, insult, humiliate or intimidate a group of people.  It applied what it described as “the reasonable victim test”.  The Commission found that a reasonable Nyungar or Aboriginal person would have found the contents of the cartoon offensive, insulting, humiliating or intimidating.  It went further.  It held that a reasonable person, not necessarily of Nyungar or Aboriginal descent, would also have found the cartoon offensive or insulting.  It gave its reasons for that view.  The second respondent has not challenged this finding.

156               The Commission then stated that there was no doubt in its mind that one of the reasons for the publication of the cartoon was the race of the persons referred to in it and the race of the complainants.  The second respondent has also not challenged this finding. 

157               As a matter of form, the Commission found that publication of the cartoon was an act done otherwise than in private.  That was not in issue. 

158               The Commission then turned to consider whether any of the exemptions provided by s 18D applied. 

159               The Commission acknowledged that the second respondent had the onus of satisfying it that each element of an exemption had been established, including the onus of demonstrating that the second respondent acted reasonably and in good faith.  At p 46 of its reasons, in two paragraphs which I think are central to this appeal, the Commission said this:

‘I am satisfied that, in this instance, the respondent acted reasonably and in good faith.  The cartoon concerned was published after a series of articles and editorial comments dealing with this issue.  It was an issue of importance for the West Australian community in general, as well as to the Aboriginal community, and was treated as such by the newspaper.  In publishing the cartoon I am satisfied that the newspaper did not act outside Commissioner Johnston’s “margin of tolerance” [a reference to Commissioner Johnston’s decision in Bryl and Kovacevic v Nowra and Melbourne Theatre Company (1999) Human Rights & Equal Opportunity Commission, 21 June 1999].  Testing the cartoon against “moral and ethical considerations, expressive of community standards” I am satisfied that the newspaper acted reasonably.  While it may be argued that the cartoon could be characterised as “exaggerated” or “prejudiced”, I do not consider that it was sufficiently exaggerated or prejudiced (having regard to the surrounding circumstances) to breach the standard of reasonableness.  Paul Murray gave evidence that he had made a judgement call, knowing that the cartoon would receive some opposition, but forming the view that it was appropriate to represent an important community issue in this way.  My view in this area is strengthened by reading the other material in The West Australian published on this issue, which provided a balanced report of what took place, and an opinion which, in the main, encouraged unity in, and support of, the Aboriginal community.

There was no evidence before me which suggested that the conduct of the respondent smacked of “dishonesty or fraud” to follow Commissioner Johnston’s formulation for the good faith requirement.  Nor was there evidence of “malice” on the part of the respondent.  I am therefore satisfied that the respondent is able to make out the first requirements of s 18D.’

[As a matter of convenience, I shall refer to these two paragraphs as “the two core paragraphs”].

160               The Commission held that the cartoon was an artistic work which had been distributed or exhibited within the meaning of s 18D(a).  There was no challenge to this finding, at first instance or on appeal. 

161               Having made those findings, it was not strictly necessary for the Commission to consider the other exemptions provided in s 18D.  But it did so.  As to whether publication of the cartoon was made for “… any other genuine purpose in the public interest …” within s 18D(b) the Commission found as follows: 

‘The respondent argues that this cartoon was published in the course of encouraging public discussion or debate about the return of Yagan’s head to Australia.  Mr Murray gave evidence to the effect that that was his purpose in publishing the cartoon and it was not suggested to him that he was pursuing some other purpose.  It was further asserted by the respondent that such a purpose could be characterised as a “genuine purpose in the public interest”.  I accept those arguments, taking into account my view that one adopts a narrow interpretation of what is in the public interest in the context of the RDA.  As indicated in my consideration of the “reasonable” and “good faith” provisions I have come to this view considering the cartoon in the context of other material published in The West Australian on this issue.

Therefore, this second subparagraph would also exempt the cartoon from the application of s 18C.’

162               The Commission held that a cartoon was not a “report” within the meaning of the exemption provided by s 18D(c)(i).  Finally, it held that as there was no evidence of Mr Alston’s beliefs, it did not need to consider the application of s 18D(c)(ii), although it did set out some of its views about the interpretation of that sub-paragraph.  The Commission then proceeded to dismiss the complaint, in the course of which it said this:

‘In so doing I am conscious of the distress caused by this cartoon to the complainants, and I am satisfied that their evidence was a genuine expression of that hurt.  I am also cognisant of the commitment of the editor of the respondent, Mr Murray, to fairly report and comment on Aboriginal issues, and his genuine belief that the return of Yagan’s head should have been a unifying rather than a divisive process.’  

the decision at first instance

163               The appellant applied under the Administrative Decisions (Judicial Review) Act 1977 (“the ADJR Act”) for review of the Commission’s decision to dismiss the abovementioned complaint.  He relied on three grounds, namely, improper exercise of power, error of law and that there was no evidence or other material to justify the making of the decision. 

164               The appellant contended that the Commission erred in law in finding whether publication of the cartoon was done reasonably and in good faith.  The learned primary judge held that the Commission was obliged to make an objective finding on the evidence whether the conduct was done reasonably and in good faith, and had not erred in law in the manner contended.  His Honour said this, at [37]: 

 ‘He [a reference to the Commissioner] had regard to all the evidence, including the evidence from Mr Murray, and reached a conclusion as to reasonableness.  In the absence of evidence of lack of good faith he was not required to have evidence called in addition to that before him.  In my view he did not err in applying s 18D in taking that approach.

I add in relation to the evidence of Mr Murray that in the critical passage in his reasoning Commissioner Innes said “Paul Murray gave evidence that he had made a judgment call, knowing that the cartoon would receive some opposition, but forming the view that it was appropriate to represent an important community issue in this way”.

It was accepted in the course of argument that this was in effect the Commissioner’s finding on the evidence of Mr Murray.  Given that finding, the Commissioner clearly took Mr Murray’s evidence into account together with the other evidence which he then referred to.  Importantly, however, there was nothing arising from the evidence of Mr Murray as so found which would support a finding of absence of reasonableness and good faith.’

165               His Honour rejected the appellant’s further submission that there was no finding or evidence to establish that those aspects of the cartoon which had been found to be offensive, insulting, humiliating or intimidating were themselves said or done reasonably and in good faith.  Part of his Honour’s reasons was that s 18D should be applied to the act done, in this case the publication of the cartoon. 

166               His Honour applied similar reasoning to that summarised above in rejecting the appellant’s submissions that the Commission had failed to take relevant considerations into account when it concluded that the cartoon was published for a genuine purpose in the public interest.  His Honour dismissed the application with costs. 

the appeal

167               The notice of appeal contained seven numbered grounds.  Although the grounds were expressed in terms of alleged errors of law on the primary judge’s part, it is convenient to consider whether there was reviewable error on the Commission’s part.  In essence those grounds raised three questions. 

168               The three questions are as follows.  First, whether the Commission erred by placing the onus of proof on the appellant in relation to its finding that the second respondent’s act had been done reasonably and in good faith?  Secondly, did the Commission err in law by holding that an absence of good faith required it to identify conduct that was dishonest or fraudulent or deliberately intended to mislead or at least engaged in with reckless or callous indifference to foreseeable humiliation or denigration to a particular racial or national group by the relevant act?  The third question was whether the Commission, in finding that the cartoon was published for a genuine purpose in the public interest, erred in law by failing to take into account, as a relevant consideration, that the matters of public interest in the cartoon did not include those aspects of the cartoon which were offensive, insulting, humiliating or intimidating to Nyungar or Aboriginal people? 

169               The appellant’s contentions were set out at some length (22 pages) in its written submissions and developed in oral argument.  I do not find it necessary to attempt to summarise those contentions. 

my reasoning

Onus of Proof

170               I do not think that the Commission reversed the onus of proof, as the appellant asserts.  At p 43 of its reasons the Commission noted that where a respondent seeks to claim the benefit of the exemptions under s 18D, it has to satisfy the Commission that each element necessary to succeed has been established. 

171               In particular, in relation to the specific matter of reasonableness and good faith, the Commission said this (at p 44 of its reasons):

‘The respondent bears the onus of demonstrating that they acted reasonably and in good faith.’ 

172              At p 46 of its reasons the Commission referred to its satisfaction that the second respondent was “able to make out” these requirements.  In my view, it is quite clear from the Commission’s reasons that it well understood that the second respondent had the burden of establishing the exemption and approached the matter on that basis.

Good Faith

173               The next question is whether the Commission misdirected itself about the requirement of good faith.  It is true that at p 45 of its reasons the Commission referred to Commissioner Johnston’s statement in Bryl to the effect that a finding that a respondent committed an act lacking good faith requires the Commission to identify conduct that smacks of dishonesty or fraud, something approaching a deliberate intent to mislead or at least a culpably reckless and callous indifference to reasonably foreseeable humiliation or denigration of a particular racial or national group.  The Commission expressed the view that those comments had more general application than in the context of s 25X of the RDA (being the context in Bryl).  But the Commission drew guidance on the meaning of the composite expression “reasonably and in good faith” from at least one other source, namely, Western Aboriginal Legal Service v Jones (2000) NSW ADT 102, and a quotation from Professor Fleming referred to in that decision.  I do not see any reviewable error in the manner in which the Commission approached the question whether the second respondent’s act was done in good faith. 

174               If the two core paragraphs (as I have identified them above) appeared in reasons for a judgment, it might, with a degree of artificiality, be justifiable to regard the first paragraph as dealing with the question of whether the act was done reasonably, and the second paragraph as dealing with the matter of good faith. 

175               But the Commission’s reasons are entitled to a beneficial construction.  They are not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Collector of Customs v Pozzolanic (1993) 43 FCR 280, cited with approval by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272. 

176               A fair reading of the two core paragraphs is that both of the paragraphs deal with both aspects i.e. reasonableness and good faith.  The reasoning proceeds as follows.  First, the Commission expressed its satisfaction that the second respondent acted reasonably and in good faith.  Then it placed the cartoon into context.  It assessed the cartoon in the context of having been published after a series of articles and editorial comments dealing with the issue of the return of Yagan’s head and the disunity it had generated.  Next the Commission observed that the issue was treated as one which was important for the West Australian community in general, as well as to the Aboriginal community, and had been treated as such by the second respondent.  There was then a reference to Commissioner Johnston’s “margin of tolerance”.  When one turns to the source of that quotation (p 16 of Commissioner Johnston’s reasons for decision in Bryl) one can see that Commissioner Johnston himself was also treating reasonableness and good faith together.  When (in the next sentences) the Commission tested the cartoon against “moral and ethical considerations, expressive of community standards”, I do not think that it is to be taken as focussing on reasonableness to the exclusion of good faith, simply because it only referred to the standard of reasonableness.  The Commission was not obliged, in my view, to repeat the words “and in good faith” every time it used the word “reasonably”.  Questions of moral and ethical considerations would, of course, relate to good faith as well as reasonableness.  The same can be applied to the balance of the first of the two core paragraphs.  There the Commission referred to Mr Murray’s “judgement call” that it was appropriate to represent an important community issue in this way (i.e. in the manner represented in the cartoon).  The Commission went on to say that its “view in this area” (which I take to be its view that the second respondent acted reasonably and in good faith) was strengthened by reading other material published on this issue in “The West Australian” which provided a balanced report of what took place, and an opinion which, in the main, encouraged unity in, and support of, the Aboriginal community.  All of this evidence, and the Commission’s acceptance and assessment of it, in my opinion, goes to both reasonableness and good faith. 

177               I would reject any suggestion that in the second of the two core paragraphs the Commission can be seen to be turning to a new subject i.e. good faith.  Rather, in my opinion, it was looking to see whether there was anything on the other scale of the balance.  As there was no evidence on the other scale, the Commission did not err in finding that the second respondent was “able to make out the first requirements of s 18D”.  That last sentence is of significance not only as a further recognition that the second respondent had the burden of proof, but also, by referring to “the first requirements” as indicating that the Commission was addressing both reasonableness and good faith.  Those are the two requirements which first appear in s 18D. 

178               The appellant complained that the primary judge (and by implication the Commission) erred in law by applying a subjective test for the conclusion of reasonableness and good faith.  In my view, the Commission applied an entirely appropriate test.  It took an objective approach, but without excluding evidence of Mr Murray’s actual state of mind.  I respectfully agree with the primary judge when he expressed the view, at [33] of his reasons, that the focus of the inquiry is an objective consideration of all the evidence, but that the evidence of a person’s state of mind may also be relevant. 

The Second Basis for Exemption

179               The remaining question, relevant to the second exemption found by the Commission, was whether the Commission erred in law by failing to take into account what was said to be the offensive, insulting, humiliating or intimidating aspects of the cartoon when it found that the cartoon was published for a genuine purpose in the public interest. 

180               In oral argument counsel for the appellant sought to develop the point somewhat by arguing that the Commission had taken into account irrelevant considerations. 

181               In my view, there is no substance in either point. 

182               The Commission quite clearly took into account the negative aspects of the second respondent’s act (i.e. publication of the cartoon) when it found that, but for the application of s 18D, it was in contravention to s 18C of the RDA. 

183               The Commission was not obliged, in my view, to divide the cartoon into various parts (as the appellant submitted) and distinguish those which were for a genuine purpose from the parts which were not.  Its task was to assess the act of publication of the cartoon.  That was the relevant “act” for the purpose of applying ss 18C and 18D of the RDA.  In relation to s 18C(b), the question for the Commission was: Was that publication made for any genuine purpose in the public interest?  The Commission formed the view that it was published in the course of encouraging public discussion or debate about the return of Yagan’s head to Australia, and that that was a genuine purpose in the public interest (see the passage reproduced above at [16]).  In my opinion it did not fall into any reviewable error in reaching that essentially factual conclusion. 

Conclusion

184               In my view, no grounds of appeal have been made out.  As a reading of the appellant’s written submissions tends to confirm, we were invited to revisit factual matters and the merits of the Commission’s decision, which, of course, is impermissible. 

185               For the foregoing reasons I would dismiss the appeal with costs.

Associate:

Dated:                   6 February 2004