FEDERAL COURT OF AUSTRALIA

Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510

HUMAN RIGHTS – application for review – publication of cartoon – uncontested findings of offensive behaviour – application of exemption – protecting certain forms of freedom of expression– no error of law in application of reasonableness and good faith test – no failure to take into account various matters

Acts Interpretation Act 1901 (Cth) s 15AB

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5, 5(1)(e), (f) and (h), 5(2), 5(3)

Racial Discrimination Act 1975 (Cth) ss 18B, 18C, 18C(2)(a), 18D, 18D(a), (b) and (c), 18D(c)(ii), 25X

Racial Hatred Bill 1994 (Parliament of Australia, Senate Hansard, 28 November 1994, 3277)

Bryl & Kovacevic v Nowra & Melbourne Theatre Company (1999) (Commissioner Johnston, 21 June 1999, Human Rights & Equal Opportunity Commission) referred to

Western Aboriginal Legal Services v Jones (2000) NSW ADT 102 referred to

Re Dalton [1963] 1 Ch 336 referred to

Australian Postal Corporation v Pac-Rim Printing Pty Ltd (1999) 163 ALR 372 referred to

Cannane v J Cannane Pty Ltd (in liquidation) (1998) 192 CLR 557 followed

Re Tabrisky; ex parte The Board of Trade [1947] Ch 565 referred to

Re Boyce and Registrar of Firearms (1999) 55 ALD 319 referred to

Jones v Scully [2002] FCA 1080 referred to

Vines v Djordjevitch (1955) 91 CLR 512 considered

ROBERT CHARLES BROPHO v HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION and WEST AUSTRALIAN NEWSPAPERS LIMITED

W163 of 2001

RD NICHOLSON J

4 DECEMBER 2002

PERTH

THE COURT ORDERS THAT:

1.                  The application for review of the decision of the first respondent constituted by Inquiry Commissioner G Innes made on 12 April 2001 be dismissed.

2.                  The applicant pay the second respondent’s costs of the review.

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

REASONS FOR JUDGMENT

1                     This is an application to review a decision of the first respondent (“the Commission”) constituted by Inquiry Commissioner G Innes (“the Commissioner”) made on 12 April 2001.  In that decision the Commission dismissed the complaint made by the applicant and others (constituting the Nyungah Circle of Elders) against the second respondent pursuant to the provisions of the Racial Discrimination Act 1975 (Cth) (“the RDA”).  The applicant claims to be aggrieved by the decision of the Commission because he has suffered distress and hurt by the publication of a cartoon which was the subject of the complaint in question and in relation to which the second respondent has not made any redress.  The cartoon was entitled “Alas Poor Yagan” and was published in the second respondent’s newspaper on 6 September 1997. 

Relevant statutory provisions

2                     The complaint brought to the Commission was that the cartoon was offensive to Aboriginal people because of their race and there was consequently a breach of s 18C of the RDA.  That section reads:

“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.”

3                     On 4 March 1998 the Commissioner formed the view that the cartoon fell within the exemptions in s 18D of the RDA and declined to continue to inquire into the complaint on the ground that the matter complained of was not unlawful.  That section reads:

“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.”

4                     The complainants required the matter to be referred to the Commission for public inquiry and the matter then came before Commissioner Innes. 

5                     It should be added that s 18B is relevant to the interpretation of s 18C.  It provides as follows:

“18B   If:

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

(b)               on 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.”

The complaint

6                     It was alleged in the complaint that there were breaches of s 18C for a number of reasons.  Firstly, it presented a demeaning portrayal of Yagan, an ancestor of the complainants.  Secondly, it contained references to the Waugyl, a religious figure.  Thirdly, it treated the issue of death in a manner which caused offence.  Fourthly, it provided intimate details of the ancestry of individuals and so offended them.  Fifthly, it identified individuals who are not ordinarily in the public arena and drew them into the arena of public humiliation. 

Findings and reasoning of the Commission

Commission’s findings in respect of ss 18B and 18C

7                     The Commission found as follows:

“I am 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.  In fact, although my findings above make it unnecessary to take the further step, I also find that a reasonable person, not necessarily of Nyungar or Aboriginal descent, would also have found the cartoon offensive or insulting.  Perhaps they would not have found it humiliating or intimidating if they were not of those races, but a finding on the first two would be enough to satisfy the statute.”

The Commissioner continued:

“I formed this view because-

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.”

8                     In response to s 18C(2)(a) the Commission concluded there was no doubt that the act was done otherwise than in private.

9                     In response to s 18B the Commissioner found 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.

Application of exemptions in s 18D

- whether act reasonable and in good faith

10                  The Commissioner commenced by examining the approach which it should take to the exemptions in s 18D.  It accepted that where a respondent to a complaint seeks to claim the benefit of the exemptions under s 18D they have to satisfy the Commission that each element necessary to succeed has been established:  Bryl & Kovacevic v Nowra & Melbourne Theatre Company (1999) (Commissioner Johnston, 21 June 1999, Human Rights & Equal Opportunity Commission) at p 15.  In reliance on the same reference the Commission said that in deciding whether those elements have been satisfied, the exemption should be read broadly rather than narrowly.  After referring to contrary opinion of commentators, the Commission said the exemptions are, however, to be read in conjunction with the overriding consideration as to whether the relevant act complained of was said or done “reasonably and in good faith”, which may, to some extent, confine the scope of the exemptions. 

11                  The Commissioner continued by stating, after reference to the explanatory memorandum, that a respondent to a complaint bears the onus of demonstrating that they acted reasonably and in good faith.  He then relied upon Bryl, noting that although dicta arose in the context of the consideration by a commissioner of a dismissal application pursuant to s 25X of the RDA, what was said was of more general application.  The Commissioner said:

“In Bryl and Kovacevic v Nowra and Melbourne Theatre Company Commissioner Johnston noted with respect to the requirement of reasonableness that “a margin of tolerance” should be exercised in deciding what is reasonable, and that the Commission should “not find the threshold of what is unreasonable conduct too readily crossed”.  He further stated that “moral and ethical considerations, expressive of community standards, are relevant in determining what is reasonable”. 

With respect to the requirement of good faith Commissioner Johnston stated that a finding that a respondent committed an act lacking good faith:

            “requires the Commissioner to identify conduct that smacks of dishonesty or fraud; in other words something approaching a deliberate intent to mislead or, if it is reasonably foreseeable that a particular racial or national group will be humiliated or denigrated by publication, at least a culpably reckless and callous indifference in that regard.  Mere indifference about, or careless lack of concern to ascertain whether the matters dealt with … reflect the true situation, is not capable of grounding an adverse finding of bad faith for the purposes of section 18D””

12                  Commissioner Johnston in Bryl also stated the following:

“In the first place, as I read it, the exemption should be read broadly rather than narrowly.  This is consistent with the presumption that a fundamental tenet of the common law is freedom of expression (Attorney-General v Guardian Newspapers Ltd [1990] 1 AC 109 at 283; Brown v Classification Review Board (1998) 154 ALR 67 at 76 – 77).  Incursions by statute into freedom of expression should not be lightly assumed.  A statutory provision that purports to have that effect should be strictly construed (Coco v R (1994) 179 CLR 427 at 437).  That approach is, when applied to section 18D, consistent with the explanatory memorandum mentioned earlier.  Freedom of expression is not, of course, absolute.  It is, when in relation to a provision like section 18D, a consideration to be taken into the balance when determining whether conduct is exempt even if it otherwise would contravene section 18C.  Section 18D is a corrective provision to prevent government from stifling non-conformity or ideas that may displease, or which some find offensive.”

13                  It was these considerations relating to freedom of expression which then led Commissioner Johnston in Bryl to proceed to state the following as to the way in which he considered s 18D should be approached:

“In consequence, when evaluating whether the respondents can satisfy me that the joint requirements of reasonableness and good faith have been met (each must be present to avoid a finding of unlawful conduct) the Commission should not apply an automatic presumption that the conduct of the respondents was unreasonable and not done in good faith, and hence demand that they prove the contrary on the balance of probabilities.  Rather, in the context of an application to dismiss under section 25X of the RDA, the issue, as I understand it, is whether there is anything evident on the face of the materials before the Commission, or to which the complainants can point, which suggests the respondents might have been (not were) acting unreasonably or in bad faith.  If it is the case that a possible finding of unreasonableness or bad faith could reasonably be made, I should not grant the application on the ground that the conduct was not unlawful by virtue of section 18D.  It is in that regard that the Commission should examine their conduct with an open mind to see if it considers whether there is any aspect of the conduct which might be viewed as unreasonable or not done in good faith.  Thus, in identifying elements of conduct that might require justification (in the sense of satisfying the Commission that their acts could not be considered unreasonable or mala fide), the Commission should have regard to matters which the complainants allege demonstrate unreasonableness or lack of good faith.  But in indicating any matter that they say could be regarded as evidence of unreasonableness or bad faith the complainants do not have to satisfy me that it was.  The test at this preliminary stage is whether it could reasonably be so regarded.”

14                  The reasons of the Commissioner here under review continued, after examination of reasoning in Western Aboriginal Legal Services v Jones (2000) NSW ADT 102, by making the following findings:

“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 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 requirement of s 18D.”

-whether act in the performance, exhibition or distribution of an artistic work

15                  After examination of the content of the description “artistic work” the Commissioner found there was no doubt that the cartoon was an artistic work in the sense intended by the legislators.  (There is no challenge to this finding).  He rejected an argument that publication in the newspaper of the cartoon did not constitute exhibition or distribution.  He rejected a further contention on behalf of the complainant that the words in the cartoon did not constitute an artistic work, finding the words and drawings together constituted the cartoon.

-public interest statement

16                  The Commissioner began from the viewpoint that the public interest aspect of the exemptions in the RDA should be read more narrowly by taking into account the public interest of the racial group in question when considering the general public interest.  In relation to public interest statements, the Commissioner concluded:

“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 to 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 the 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”.

-fair and accurate reports in the public interest

17                  The Commissioner considered that the concept of a report would not include a cartoon so that this exemption would not apply.  In the absence of any evidence in relation to the maker of the cartoon, no consideration was given to the application of the exemption contained in s 18D(c)(ii).  He nevertheless set out views concerning his interpretation of the subsection. 

Commissioner’s conclusion

18                  The Commissioner concluded that whilst he was satisfied that the publication of the cartoon was in breach of s 18C of the RDA the complaint was not made out because of his findings in relation to the application to some of the exemptions set out in s 18D.  Accordingly he dismissed the complaint.

Evidence of Mr Murray

19                  The “Mr Murray” referred to in the reasons of the Commissioner was at the time of the publication of the cartoon the editor of the newspaper of the second respondent with responsibility for all editorial content in the newspaper (so found by the Commissioner). 

20                  From among the paragraphs descriptive of his evidence in the Commissioner’s reasons the following too require repetition here:

“He gave evidence that the newspaper had published articles on Yagan’s head prior to the publication of the articles referred to in the proceedings.  He said that he intended the paper to look deeply into the divisions in the Aboriginal community, an issue in which he had background knowledge.  He wanted to pursue the various associations claimed with Yagan.  He co-wrote the editorial of 27 August 1997 and it expressed his views.  His view was that the return of Yagan’s head was a crucial issue for Aboriginal people and for all West Australians.  Mr Murray said that the disputation within the Aboriginal community in WA was damaging to the prospects of its return.

The cartoon was the regular Saturday cartoon of Dean Alston.  Mr Alston rang the witness on the Thursday night prior to publication and discussed the idea for the cartoon.  Mr Murray said that he told Mr Alston that it would be “very controversial” and asked him to discuss it again the following day.  On Friday, Mr Murray looked at the draft sketches and had another discussion with Mr Alston.  He told the Commission that he said to Mr Alston that there would be some “flak” over the cartoon.  However, he formed a view that the cartoon was a valid comment on recent events and when he was presented by Mr Alston with the final version, he approved it for publication.”

In making findings of fact the Commissioner said in respect of Mr Murray’s evidence:

“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.”

Grounds of review

21                  The first ground of review is directed to the finding by the Commissioner that the second respondent “acted reasonably and in good faith”.  The thrust of the ground is that the Commissioner 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 finding of bad faith.  Furthermore it is contended there was a failure to make findings or an absence of evidence to establish that those aspects of the cartoon which were offensive, insulting, humiliating or intimidating were said or done reasonably and in good faith. 

22                  The second alleged error of law is in the Commissioner’s conclusion that the cartoon was published for a genuine purpose in the public interest.  It is said that the Commissioner failed to take into account the relevant consideration that the matters of public interest did not include the aspects of the cartoon that were offensive, insulting, humiliating or intimidating. 

23                  The third ground of review is that the Commissioner erred in law when he failed to consider and failed to take into account the relevant consideration that the content of the cartoon was severable into parts. 

24                  The application for review is brought in reliance upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the grounds of review there provided in s 5.  It would appear that the grounds of review are advanced in reliance upon s 5(1)(e), (f) and (h).  The former paragraph provides as a ground of review 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 and, by application of s 5(2), that relevantly includes failing to take a relevant consideration into account in the exercise of the power.  The second paragraph refers to error of law.  The third paragraph provides a ground of review that there was no evidence or other material to justify the making of the decision.  However, that ground may only be made out in accordance with the provisions of s 5(3) which reads:

“(3)     The ground specified in paragraph (1)(h) shall not be taken to be made out unless:

(a)    the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or

(b)    the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

Error of law:  approach to reasonableness and good faith

Applicant’s contentions

25                  The case for the applicant contends that the Commissioner was in error of law in the approach which he took to the application of the requirement in s 18D of the RDA in finding whether the contraventions of s 18C were “done reasonably and in good faith”.  It is acknowledged it is a matter of statutory construction as to what meaning those words should have.  However, it is said that, properly construing the words in their context, they cannot be understood as meaning a finding of good faith would be open in the absence of proof of bad faith or in the absence of malice, spite or ill-will.  Reference is made to the consideration of the phrase “good faith” in other legislative contexts as discussed in Re Dalton [1963] 1 Ch 336; Australian Postal Corporation v Pac-Rim Printing Pty Ltd (1999) 163 ALR 372; Cannane v J Cannane Pty Ltd (in liquidation) (1998) 192 CLR 557 at 596.  Further it is said that s 18D being an exemption clause should not be given an extended meaning and should be construed narrowly in the context of the beneficial legislation which it appears:  see Re Tabrisky; ex parte The Board of Trade [1947] Ch 565 and Re Boyce and Registrar of Firearms (1999) 55 ALD 319.  The contentions therefore challenge the correctness in law of the test formulated by Commission Johnston in Bryl, applied in Western Aboriginal Legal Service and followed in the decision under review.

Submissions for second respondent

26                  The contentions for the second respondent assert that the exemptions contained in s 18D should be read “very broadly indeed”.  Support for this is sought by examination of the explanatory memorandum to the Racial Hatred Bill 1994 and the Minister’s Second Reading speech.  It is said that the reasoning of Commissioner Johnston and of the Commissioner is demonstrably consistent with the express provisions of the RDA.  It was submitted the decision the subject of the application for review is plainly right in its application of the exemptions. 

Reasoning

27                  In Cannane at 596 Kirby J in his dissenting reasons for judgment said that “many cases emphasise this rudimentary proposition that the meaning of a slippery phrase such as “acted in good faith” depends almost entirely on its particular statutory setting.”

It is necessary then to first examine s 18D in its statutory setting.

28                  Section 18D in which the words “reasonably and in good faith” appear is contained in Pt IIA – prohibition of offensive behaviour based on racial hatred.  The effect of s 18C is to create offences – that is, it is to make conduct which falls within the ambit of that section unlawful.  The purpose of s 18D is to render “anything said or done reasonably and in good faith” within the subpars (a), (b) or (c) of that section free of the application and the imputation of unlawfulness imposed by s 18C. 

29                  The phrase “said or done reasonably and in good faith” addresses the particular items referred to in pars (a), (b) and (c) of s 18D.  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. 

30                  Precisely that point was made in the explanatory memorandum to the Racial Hatred Bill which made the following observations in relation to the proposed s 18D (pp 10 - 11):

"Proposed section 18D provides a number of very important exemptions to the civil prohibition created by proposed section 18C. The exemptions are needed to ensure that debate can occur freely and without restriction in respect of matters of legitimate public interest.

However, the operation of proposed section 18D is governed by the requirement that to be exempt, anything said or done must be said or done reasonably and in good faith. It is not the intention of that provision to prohibit a person from stating in public what may be considered generally to be an extreme view, so long as the person making the statement does so reasonably and in good faith and genuinely believes in what he or she is saying.

...

It is for the complainant, in relation to the civil prohibitions, to establish that the respondent´s act was reasonably likely in all the circumstances to offend, insult, humiliate or intimidate another person or group, and that the act was done because of the race, colour, or national or ethnic origin of the complainant or group of people of which the complainant is a member. However, if so established, the onus then rests on the respondent to show, on the balance of probabilities, that his or her action falls within one of the exemptions in section 18D."

This memorandum was cited and relied upon in Jones v Scully [2002] FCA 1080. 

31                  In the course of the Second Reading speech of the Racial Hatred Bill 1994 (Parliament of Australia, Senate, Hansard, 28 November 1994, 3277) the Minister said:

“The bill places no new limits on genuine public debate.  Australians must be free to speak their minds, to criticise actions and policies of others and to share a joke.  The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people.  The law has no application to private conversations.

Nothing which is said or done reasonably and in good faith in the course of any statement, publication, discussion or debate made or held for an academic, artist, or scientific purpose, or any other purpose in the public interest will be prohibited by the law.”

There is consequently nothing in either the explanatory memorandum or second reading speech reference to which is permissible within 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.  Commissioner Johnston did not therefore err in favouring a broad approach.

32                  It is appropriate also to have regard to the character of s 18D as an exempting provision.  In Vines v Djordjevitch (1955) 91 CLR 512 at 519 the High Court said:

“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 evidence 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…”

I do not understand that proposition to be controverted in the submissions for the applicant or the reasoning of Commissioner Johnston.

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 pars (a), (b) or (c) of s 18D.  In Cannane at 596 Kirby J said:

“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”: (Siano v Helvering (1996) 13 F Supp 776, cited in Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993)44 FCR 290 at 298.  See also South Australia v Clark (1996) 66 SASR 199 at 230; Municipality of Bhiwardi v Kailash Sizing Works (1974) 2 SCC 596 at 599).  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.”

In my view the good faith requirement in s 18D is in the character of the second of the two categories referred to by Kirby J.  Therefore, I do not consider that a commissioner applying s 18D is required to inquire into the actual state of mind of the person concerned.  That is not to say evidence of such state of mind may not be relevant.  It is to say that 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.

34                  There are two particular contextual considerations which favour the second objective construction.  The first is that s 18D refers to anything “said or done” so that there is a requirement to demonstrate some conduct which is coloured by the requisite “good faith”:  Cf Cannane at 596.  Equally the context of the legislation requires an objective rather than a purely subjective meaning because subjective intentions cannot properly be the basis of applying an exemption of conduct from the realm of unlawfulness proscribed by s 18C.

35                  I therefore agree with the formulation of Commissioner Johnston so far as it excludes the first of the divergent meanings referred to by Kirby J in Cannane at 596 namely, the subjective view which requires inquiry into the actual state of mind of the person concerned, irrespective of the causes which produced it.  I am, however, unable to agree precisely with his formulation that a possible finding of satisfaction of the terms of s 18D would be an adequate basis on which to decide the matter.  What is required is a finding in terms of the second divergent meaning and the terms of the section on the evidence.

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.  If there were no evidence of such matters it would not be necessary for the Commissioner to require the respondent to positively establish its state of mind, for that would be to revert to the subjective use of the phrase.  The characterisation of the use of the good faith requirement in conjunction with the reasonableness requirement as requiring the objective approach precludes the possibility of the application of the requirement for a respondent to a complaint to positively establish its state of mind in that respect as a necessary part of the evidence.

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.

38                  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 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.”  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.

Error of law: absence of finding or evidence of reasonableness and good faith

39                  The next aspect of the first ground of review contends that it was open to the Commissioner to conclude the cartoon was published reasonably and in good faith in circumstances where 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.

40                  In my view this ground cannot succeed when it is understood that a commissioner in applying s 18D in that respect is required to approach it as a matter of objective construction on all the evidence before him or her.  That evidence included the findings of unlawfulness in the stated respects under s 18C.  It included other evidence not of that character.  It is a matter for consideration in each case whether in the case of findings establishing the existence of offensive behaviour falling within the proscriptions of s 18C the thing said or done was, on the basis of objective construction with regard to all the evidence, done reasonably and in good faith.  It could hardly ever be the case that acts found to constitute offensive behaviour could be found to have been done reasonably and in good faith, so that to adopt the approach urged for the applicant in this ground would not be consistent with the statutory provisions.

41                  In any event, the requirement to apply s 18D relates to the thing said or done which is rendered unlawful pursuant to s 18C.  The thing said or done to which the complaint related was the publication of the cartoon.  There is no statutory foundation for applying the test of reasonableness and good faith to anything other than the thing said or done which, without the application of the exemption in s 18D, would be unlawful conduct within s 18C. 

Improper exercise of power:  failure to take relevant consideration into account

42                  The next ground contends there was error in law by the Commissioner in finding the cartoon was published for a genuine purpose in the public interest where he 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. 

43                  In the course of oral argument it was accepted by counsel for the applicant that this aspect was really part of the good faith argument previously addressed.  Furthermore, it was not separately developed in oral argument.  Additionally, I do not accept that in the Commissioner’s reasoning in relation to par (b) of s 18D he failed to take into account that he had previously made findings that aspects of the cartoon were unlawful within the proscriptions of s 18C.  He related the view he reached to his consideration of the requirement of reasonableness and good faith in which those considerations had played a part. 

Improper exercise of power:  failure to take into account relevant consideration

44                  Finally it is contended in the grounds that the relevant consideration not taken into account by the Commissioner was that the content of the cartoon was severable into parts some of which may have been for a genuine purpose in the public interest and parts which were not and that if there were parts which were not for a genuine purpose in the public interest, the exemption in s 18D did not apply. 

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 thing said or done.  He was required to take into account those adverse findings and it is clear that he did so.  The whole purpose of his consideration of the public interest issue was to consider whether the particular subparagraphs of s 18D involving that test were satisfied so that an exemption in respect of such conduct would be applicable. 

Conclusion

46                  For these reasons I consider that none of the grounds of the application have been made out and the application should be dismissed.

Associate:

Dated:              4 December 2002