Cases

UPDATE: This is a very belated decision of the former Discrimination Tribunal; The Tribunal President, Mr. Cahill had reserved his judgement in this matter in 2006. The Discrimination Tribunal is now a part of the ACT Civil and Administrative Tribunal.

Background

This case was heard on 11 July 2006 in the ACT Discrimination Tribunal before Tribunal President Ron Cahill. It involved a claim of discrimination and vilification against the Canberra Times, regarding messages posted on its website. The Canberra Times Editor in Chief Jack Waterford relied on the HRA in the Canberra Times’ defence, arguing that the Discrimination Act 1991 should be re-interpreted in the light of the right to freedom of speech in the HRA.

The Canberra Times website www.canberra.yourguide.com.au used to include an electronic ‘have your say’ forum, which was an online letters to the editor page which also functioned as a discussion board, with interactive message threads. The forum was moderated by Mr Waterford.

In June/July 2005 there was a debate on the forum about the proposed Civil Unions Bill. Some of the many posts on the site contained negative comments about gays and lesbians, including comments linking homosexuality and pedophilia and suggesting that gays and lesbians should be treated in mental health institutions. The posts were publicly available to anyone accessing the website.

The complainant, Mr Emlyn-Jones, regularly participated in the forum and was offended by these posts. In July 2005 he lodged a complaint about the comments in the have your say forum with the Human Rights and Discrimination Commissioner. He alleged discrimination and vilification by the Canberra Times and sought an apology.

The Discrimination Commissioner sought to investigate the complaint. In a letter of response to the Commissioner, the editor of the Canberra Times, on behalf of the respondent, denied any act of sexuality discrimination or vilification and claimed that its conduct was protected by free speech and freedom of political dissemination. The editor noted that moderation of the site included a high threshold of acceptable material, and the forum “barred no subject areas from discussion or even robust debate”. (at 9). In the same letter, the respondent also questioned the jurisdiction of the Human Rights Commissioner. Mr Waterford’s editorial of 24 September 2005 “Thinking Outside a Box of” states that:

The Commissioner made a prima facie finding that the Canberra Times had discriminated against the complainant, but did not initially consider that the posts amounted to vilification. As the Canberra Times did not wish to conciliate, the complainant decided to take the matter to the ACT Discrimination Tribunal.

Mr Waterford argued in an editorial (“In Freeze Speech”, Canberra Times 22 April 2006) that he had been denied natural justice by the Commissioner when she made an adverse finding without hearing his side of the story: “The complaint received a big tick from the Discrimination Commissioner without her bothering to hear submissions from me.”

The Hearing and Submissions

Mr Waterford represented the Canberra Times at the Tribunal, and filed submissions which focused on the right to freedom of speech. He argued that the vilification provisions in the Discrimination Act must be re-interpreted so as to be consistent with the right to freedom of speech which is protected under the HRA. He argued that the old precedents about vilification are no longer applicable, relying on both US and European jurisprudence. He submitted that there is a strong public interest in allowing open public debate on such issues, and that it was clear from the context of the different views expressed that the Canberra Times did not endorse any particular posts.

The complainant contended that the vilification provisions of the Discrimination Act, although introduced before the HRA, were drafted with a consciousness of the right to of freedom of speech, and with the intent to impinge as little as possible upon that right. The provisions include a number of specific defences to preserve this right as far as possible, while providing protection to vulnerable groups in society. Thus, he argued, the existing interpretation and jurisprudence regarding the vilification provisions is already consistent with the HRA, and that the limitation on the right to freedom of speech is a proportionate limitation under s28 HRA.

The Human Rights Commissioner also intervened in the case, and, while not getting involved in the merits of the case, provided submissions regarding the content of the right to freedom of speech and its limitations.

Decision

The Tribunal (Mr Cahill, President) found that the Canberra Times had unlawfully vilified homosexuals as a group (but not Mr Emlyn-Jones in particular), contrary to s66(1) of the Discrimination Act, but that it was not liable as the publications were made reasonably and honestly, for purposes in the public interest (s61(2) of the Discrimination Act).  He dismissed as unsubstantiated Mr Emlyn-Jones’ complaint of unlawful discrimination.

Reasoning

Unlawful vilification

Mr. Cahill considered that relevant test for establishing unlawful vilification was whether the online posts were capable of inciting an ordinary reasonable person in the contemporary society at the relevant time when the posts were published on the online forum.  An ‘ordinary reasonable person’ was “a reasonable person not immune from susceptibility to incitement, nor holding a prejudiced view about homosexuality” (at 181) (Burns v Dye [2002] NSWADT 47).

The respondent argued that this was the wrong test and that the ACT does not “have the power to make mere vilification illegal and that under the ACT [HRA], this is not an intended result” (at 152). However, Mr Cahill considered “mere vilification” not to be the issue, ‘unlawful vilification (per s 66 Discrimination Act) was the relevant consideration:

Mr. Cahill agreed with the Human Rights Commissioner’s submission that, consistent with Article 20(2) ICCPR, which provides that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”  (at 165) ,… anti-vilification provisions [such as s 66 of the Discrimination Act] that are limited to a strict test of “incitement” of hatred, serious contempt or severe ridicule satisfy the proportionality test in section 28 [HRA]. (at 165)

Mr Cahill also agreed with the Human Rights Commissioner that a high threshold was required for conduct to amount to incitement under s 66 for it to be a reasonable limitation on the right to freedom of expression, but he considered that it need not be to a criminal standard of proof (Briginshaw v Briginshaw [1938] HCA 34).

The relevant threshold in this case was (at 206-207)

…the objective standard of whether an ordinary reasonable person would have been incited to hatred, contempt or ridicule when the person read the relevant words in the posts.  … The ordinary reasonable person test applied by me meets the balance between the right to privacy and reputation and the right to freedom of expression and is the appropriate restriction on the right to freedom of expression in the context of this case.

On that basis, Mr Cahill found that (at 196):

… the alleged posts, when they were read by an ordinary reasonable person in the society at the relevant time, were capable of inciting such a person to hatred towards, serious contempt for, or severe ridicule of, homosexuals, the group of people of whom the Applicant is a member. Incitement relating to any one of these specified mental attitudes is enough to meet the existence of unlawful vilification within the meaning of section 66 of the Discrimination Act. In this case, I am satisfied that the posts were capable of inciting an ordinary reasonable person to any of those attitudes.

Having established that unlawful vilification had occurred, Mr. Cahill then went on to consider the respondent’s defence under s 66(2)(c) of the Discrimination Act. Section 66(2)(c) provides that a defence to the unlawful vilification is made out where the public act is:

…done reasonably and honestly for…purposes in the public interest, including discussion or debate about and presentation of any matter.

Mr. Cahill considered that the defence involved “the balancing of rights, in particular the right to freedom of expression and the rights to reputation and privacy” (at 215):

235. The right to freedom of expression that enlivens the defence in section 66(2)(c) places restriction on the right to reputation.  A similar restriction is seen operating in the sphere of law relating to defences to defamation involving political matters.  The effect of which is, using the terms in section 28 of the Human Rights Act, a reasonable limit demonstrably justified in a free and democratic society.  This is so in relation to the defence under section 66(2)(c) which will require a lower threshold than the qualified privilege in relation to “reasonableness”.

According to Mr Cahill (at 235):

This lower threshold is commensurate with the gravity of vilification which is comparatively lesser in gravity than defamation.

He disagreed with the Human Rights Commissioner’s submission that the defence in s 66(2) should be interpreted narrowly:

265. With regard to the defence in section 66(2)(c) of the Discrimination Act, the Human Rights Commissioner submits that it is “relevantly identical” to section 18D(b) of the Racial Discrimination Act 1975 (Cth) and, hence, the interpretation of the latter section by the Full Federal Court in Toben v Jones [2003] FCAFC 137 applies. This case concerned the publication of material on the internet, which the Human Rights and Equal Opportunity found to be “racially vilificatory of Jewish people”. The Human Rights Commissioner argues that “The Full Court construed the defence narrowly, requiring an analysis of the nature and purpose of the material actually published”, and that that interpretation is “entirely consistent with the application of the principle of proportionality”.

Distinguishing Toben v Jones, Mr Cahill suggested that (at 276):

…unlike sexuality vilification, racial vilification is readily identifiable and will have more serious impact on those whose race is affected, as is shown in the history. In the face of racial vilification, it may be possible that the scope for the defence would become narrowed, calling for a strict interpretation. …

He considered that the defence should not be strictly construed in this case (at 274):

Even though by way of the act of unlawful vilification the right to reputation restricted the Respondent’s right to freedom of expression, yet, the right to freedom of expression still has a significant role in relation to the defence. In particular, the element of ‘reasonableness and honesty” would be enlivened by that right, particularly so, when the defence provision expressly includes the purpose of public interest and “discussion or debate about and presentations of any matter”. Strict construction of the right to freedom of expression in relation to section 66(2)(c) would not give full force and effect to the defence.

Ultimately, Mr Cahill was satisfied that the respondent had “acted reasonably and honestly in publishing the vilifying posts”, having taken into account (at 237):

(a) the nature of the forum where people feel free to use colloquial terms,

(b) the policy that the Respondent considered appropriate and applied in the belief that it complies with law, and

(c) the Respondent’s subsequent conduct of ceasing the operation of the forum pending the outcome of this case.

Mr. Cahill considered that “there is no doubt that the [r]espondent had no intention to vilify homosexuals” (at 236) – the absence of intention being the relevant factor to establishing the s 66(2)(c) defence.

He however stated that the respondent’s defence would not have been established had the vilifying conduct targeted the applicant individually as opposed to homosexuals generally (at 245):

246. Had vilification was [sic] against the Applicant … the evidence presented by the Respondent would not amount to making its conduct a public act done reasonably and honestly in the public interest. Incitement of hatred towards, serious contempt for, or severe ridicule of, the Applicant in his personal capacity as a homosexual would call for a higher threshold for the Respondent to meet in proving its defence. …

Unlawful discrimination

Mr Cahill dismissed the applicant’s claim that the respondent had unlawfully discriminated against him (at 77):

I do not believe providing such a service to the community in general, albeit with offensive elements published in it being directed at homosexuality, could amount to discrimination of the Applicant.  To constitute discrimination, an act should be directed against an individual because of the individual’s attribute.

Discrimination Commissioner’s jurisdiction

Mr Cahill also dismissed the respondent’s contention that the Discrimination Commissioner did not properly consider whether she was able to investigate the complaint. Mr. Cahill concluded that the Commissioner was not obliged to consider her jurisdiction: “There is no statutory basis for a ‘jurisdictional decision’ by the Discrimination Commissioner of the type asserted by the [r]espondent”. (at 293)

The Decision