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Wednesday, 5 April 2017

Filthy Corrupt Lesbian & Gay Judges at @NCATNSW outed as gay bullies by Australian Legal Academia.

John Sunol owes nothing. The 55k the Great Boylover demands has been proven to be FRAUD due to Judaical Corruption. More to tell shortly.

When the Constitutional Freedom of Political Communication and State Anti-Discrimination Laws Collide – A Critical analysis of Gary Burns v. Tess Corbett

By A. Keith Thompson+ & Augusto Zimmermann*


In this article, we address the decision in ‘the Tess Corbett’ case in what is known as the NSW Civil and Administrative Tribunal (NCAT). We will explain why the law in relation to the implied freedom of political communication under the Australian Constitution was not well understood by the members of that Tribunal. The apparent misunderstanding relates to a senior citizen in rural Victoria who stood as a candidate in the 2013 federal election and was found to have committed a public act of unlawful homosexual vilification in breach of the New South Wales Anti-Discrimination Act 1977. 1 She was ordered to publish a public apology in the Sydney Morning Herald at her own expense.

In addition, when we read the report of her case and the unsuccessful appeal, we noted that not only did NCAT’s Appeals Panel dismiss her appeal, but it found that because she had not appeared at first instance, she was not entitled to be heard at all. Accordingly, neither the original tribunal nor the Appeals Panel thought there was a problem with finding her personally responsible for publications in NSW newspapers over which she had no control and which were not contemplated when she made her political statements in rural Victoria.

In this article, we discuss the question of whether anti-vilification provisions of NSW’s 1977 Anti-Discrimination Act may violate the freedom of political communication that the High Court has said is essential to the operation of the system of representative government to which Australia has committed since it was federated in 1901, especially at election time.2 We answer the question in three parts. In Part I, we set out the facts and the procedural history of the Corbett case.3 In Part II, we review what was said by the Tribunal about the implied freedom of political communication and how it interacts with the anti-homosexual vilification laws which were introduced into the NSW Anti-Discrimination Act 1977 in 1993.4

Because the original NCAT Tribunal consideration of Ms Corbett’s case5 relied on similar discussion of the interface between these two laws in the NSW Court of Appeal in Sunol v Collier (No 2) in 2013,6 we analyse those judgments in some detail. In that analysis, we note that some of the comments by those appellate judges which seem to have been intended to protect political discussion at election time reflecting previous High Court dicta, were omitted by the six NCAT members that considered what the judges in that case in the NSW Court of Appeal said. We then explain the jurisprudence with respect to implied freedom of political communication which the High Court has expounded since 1992 and the more general philosophy that sustains it.

In Part III, we review the reasons why the NCAT Appeals Panel and a further Tribunal Member sitting alone, said they would not hear Ms Corbett. The NCAT Appeals Panel gave three reasons and the NCAT Member sitting alone on a further misconceived procedural appeal, gave one. The Appeals Panel said that Ms Corbett’s naiveté in believing that a NSW Tribunal did not have jurisdiction over comments she made in Victoria did not justify her contempt in not coming before them before in the primary hearing. Second, the NCAT Appeals Panel said that the points she made on appeal had been properly considered in her absence even though they had not been the subject of a contest, and finally the NCAT Appeals Panel said that there was a public interest in bringing this litigation to an end. The further internal appeal application was dismissed because the Acting Deputy President of NCAT found that he had no jurisdiction to consider the application for an extension of the time within which to bring a further appeal and that it should have been brought in the Supreme Court of NSW. He also judged that Ms Corbett had been afforded procedural fairness, and that the substantive constitutional issues concerning freedom of political communication had been thoroughly aired at the original hearing and in the NCAT Appeals Panel hearing.

While we understand the result of the 2015 application to the Acting Deputy President of NCAT for more time to bring an appeal, the whole NCAT process in Ms Corbett’s case appears to violate her right to be heard. Moreover, her arguments about freedom of political communication at the intersection between the Australian Constitution and state anti-discrimination law were considered to be less important than the need to have this matter over and done with. While we accept that this was not a criminal matter7 and Ms Corbett’s life and limbs were not in jeopardy, she was still judged to have vilified Mr Burns without being heard and she was ordered to publicly apologise to him.

We have therefore analysed the authorities NCAT used to justify their decision not to hear Ms Corbett in detail. Our conclusion concerning the procedural arguments used by the Appeal Panel’s is that they are less than satisfactory. In particular, the Appeal Panel’s treatment of the High Court’s decision in the D’Orta-Ekenaike v Victoria Legal Aid case in 2005 is unsatisfactory because the Panel failed to consider the fact that Mr D’Orta-Ekenaike had been heard twice before the High Court rejected his further appeal seeking to overturn barrister and solicitor immunity from tort litigation in Australia. Ms Corbett had not been heard at all.

Our conclusion on substance is that Ms Corbett’s freedom of political communication as a Victorian candidate in an Australian federal election would not have been trumped by the New South Wales Anti-Discrimination law in this case if the High Court jurisprudence on that implied freedom was properly understood. The issues in Ms Corbett’s case concern controversial subject material at the grey boundary between political correctness and freedom of speech. While the doctrine of parliamentary sovereignty holds that a legislature may abridge even fundamental human rights with words that are sufficiently clear and unambiguous, freedom of political communication is an implied constitutional freedom and cannot be abrogated other than by referendum under s128 of the Australian Constitution.

Part I - The Facts, the Process and the Decision

In the 2013 federal election Ms Therese Corbett was the endorsed candidate for Katter’s Australia Party for the Victorian seat of Wannon. On 22 January 2013 the front page of a local newspaper from her electorate in rural Victoria, the Hamilton Spectator, published her comments to a local journalist: ‘I don’t want gays, lesbians or paedophiles working in my kindergarten. If you don’t like it, go to another kindergarten’. When asked if she considered homosexuals to be in the same category as paedophiles, Ms Corbett replied, ‘yes’.

A few weeks later Mr Garry Burns, a pro-homosexual activist who lives in Sydney,8 took legal action alleging homosexual vilification against Ms Corbett in the Equal Opportunity Division of NSW Administrative Decisions Tribunal (as it then was)9 under the Anti-Discrimination Act 1977 (NSW). While Ms Corbett did not appear at the hearing on 3 October 2013, Mr Burns appeared in person and presented further material to the Tribunal, notably, printouts of articles published in a number of news agencies, including the Sydney Morning Herald’s website on 23 January 2013, the Australian’s website on 24 January 2013, and on the ABC’s website on 24 January 2013. Each of these news agencies repeated Ms Corbett’s statements, which were originally published in the Hamilton Spectator, except that the article on the Australian’s website omitted the comment that homosexuals were ‘in the same category as paedophiles’, although it stated that Ms Corbett ‘refused to back away from’ her inflammatory comments and that she regarded homosexuality as ‘against the word of God’.

After ensuring that Ms Corbett had been property notified of the hearing, the Tribunal held that it was appropriate to hear and determine Mr Burns’ complaint in Ms Corbett’s absence.10 Thus, in a decision handed down on 15 October, 2013, Ms Corbett was found guilty of vilifying homosexuals under the Anti-Discrimination Act 1977 NSW. Section 49ZT(1) of the Act specifically makes homosexual vilification unlawful:
It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of homosexuality of the person or members of the group.

The Tribunal then ordered Ms Corbett to apologise to Mr Burns in writing and to publish an apology in a prominent position in the Sydney Morning Herald at her own expense. The apology to be published in the Sydney Morning Herald was required to inform the readers that the Tribunal had found that Ms Corbett words “vilified homosexual people”, and that such words amounted to “unlawful homosexual vilification”.

The Tribunal sentenced Ms Corbett in absentia despite the fact that her derogatory statements were made in a different state and jurisdiction even though the comments were made in the context of a federal electoral campaign. Ms Corbett lodged an appeal with the Appeals Panel of the New South Wales Civil and Administrative Tribunal (NSWCAT). On 14 August 2014 the NSWCAT dismissed her appeal application on grounds that the original decision did not contain any errors.11 A further application to extend the time within which an appeal might be brought was also dismissed on 17 August 2015.12

Part II - The case in light of the implied freedom of political communication

Neither the report of the original Tribunal or the Appellate Panel refer to evidence confirming that Ms Corbett knew or intended that her comments to a local journalist in Hamilton, Victoria, would be republished by newspapers and other forms of media in New South Wales. Nor is there any suggestion in those reports that the independent republication decisions of media organisations in New South Wales were reviewed to see if those decisions might have been the moving cause of any discrimination found to have taken place in NSW. No media organisation was joined in the proceedings by the applicant Mr Burns, by the absent Ms Corbett, or by the independent direction of the Tribunal.

Ms Corbett did not attend the first hearing because she did not believe that a statement directed to a local newspaper in the electorate of Wannon in Western Victoria could be grounds for a finding that she had breached the anti-discrimination legislation out of another State. She believed that the Equal Opportunity Division of the NSW Civil and Administrative Tribunal did not have jurisdiction over statements she made in Victoria.13

One of her rejected grounds of appeal was “that the Tribunal erred when it failed to turn its mind to the High Court authorities on the implied right to freedom of political communication”.14 The NSW Tribunal which originally decided that Ms Corbett had vilified Mr Burns,15 discussed the implied freedom of political communication by reference to Bathurst CJ’s decision in Sunol v Collier (No 2), which discussed whether s49ZT of the Anti-Discrimination Act 1977 (NSW) imposed a burden on freedom of communication about governmental and political matters either in its terms, operation or effect.16 That Court had found that s49ZT of the NSW Act was valid and did not generally offend the constitutionally implied freedom of political communication in Australia because its second subsection protected “a public act, done reasonably and in good faith,.…for other purposes in the public interest including discussion or debate about and expositions of any act or matter.”17

However, the Tribunal failed to acknowledge that the Sunol case did not arise in an electoral context whereby political communication must be protected, and the Tribunal’s judgment quoted only para [41] from Bathurst CJ’s judgment where he explained the operation of s49ZT but not its second subsection. A person would offend the first subsection of 49 ZT if the conduct complained of could have incited hatred on the grounds of sexual orientation whether it did so or not and even if that was not the intention of the speaker. The Tribunal’s extract would have been more complete had it noted that the Chief Justice had also favoured the view of Nettle JA in the Catch the Fires Ministry case18 that the concept of good faith which protected political communications on controversial topics involved nothing more than a “broad subjective assessment of the defendant’s intentions”19 and that Allsop P had said “the words ‘reasonably’ and ‘in good faith’ and ‘other purposes in the public interest’ should take into account the important Constitutional freedom to discuss matters of wide public interest that may be related to political and governmental matters.”20

To be fair, the Appeals Panel did refer to these last quoted words from Allsop P, noting that “human sexuality” was one of these “matters of wide public interest” of which the implied freedom of political communication was supposed to enable discussion. And yet, it omitted Allsop P’s succeeding statement quoting from various of the judgments in Coleman v Power21 to effect that “insult, emotion, calumny and invective [we]re part of the ‘armoury’ of political persuasion and struggle for ideas”22 in Australia. The Appeals Panel then concluded that because the original Tribunal in Burns v Corbett had considered whether the conduct came within section 49ZT(1) and whether that conduct was nonetheless protected by the “reasonable” and “good faith” clarifications in s49ZT(2), the Tribunal had done its job. The Appeals Panel did not separately consider whether the original Tribunal had applied the section correctly or whether the electoral context made any difference. There was no consideration of the fact that the Sunol v Collier (No 2) case did not concern comments made during an election campaign that might have informed voters as to whether they should vote for the ‘offender’ or her political party. Allsop P had noted that point in the Sunol case. At paragraph 67 of the judgement, he asked whether
a law that banned communications of a racially abusive character underpinning a contemporary National Socialist doctrine [was] a law that burdened in a real way the freedom to communicate about matters of political doctrine espoused by people who stood for election and campaigned on race, religion and racial superiority?

He answered that this was an important point “but was not the subject of argument” in the Sunol case. He surmised that “eliminating racism” might be so important that a “reasonably appropriate and adapted” law might “serve [that] end”, but again such a decision was not called for on the facts of Sunol v Collier (No 2). His qualified reasoning about the different nature of the implied freedom of political communication in an electoral context was an allusion to the High Court’s original establishment of the doctrine in Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106. There Mason CJ had connected the implied freedom of political communication doctrine to the doctrine of responsible government.
Only by exercising that freedom can the citizen communicate his or her views on the wide range of matters that may call for, or are relevant to, political action or decision. Only by exercising that freedom can the citizen criticize government decisions and actions…Communication in the exercise of the freedom is by no means a one-way traffic, for the elected representatives have a responsibility not only to ascertain the views of the electorate but also to explain and account.23

McHugh J wrote of “constitutional rights of participation, association and communication in relation to federal elections”.24 He continued and said

the business of government must be examinable and the subject of scrutiny, debate and ultimate accountability at the ballot box….Before they can cast an effective vote at election time, they must have access to the information…necessary to make an informed judgment..It follows that the electors must be able to communicate with the candidates…concerning election issues…Only by the spread of information, opinions and arguments can electors make an effective and responsible choice.25

McHugh J was not one of the first to accept that implied freedom of political communication was a broad constitutional right affecting even the common law of defamation.26 But from the very beginning, even he was emphatic that freedom of political communication was essential if Australian elections were to be meaningful and free.

Allsop P’s comments in Sunol v Collier (No. 2) on the need for the courts to interpret the legislation in light of the “Constitutional freedom to discuss matters of wide public interest that may be related to political and governmental matters”,27 also captures the essence of the High Court of Australia’s decision in Coleman v Power, and reflects the understanding of international constitutional law theorists such as Ronald Dworkin. When asked why one could not just work their criticism of values or ideas politely and respectfully, avoiding scorn, mockery and ridicule, Dworkin replied:

We can’t do that because scorn, mockery and ridicule are specific modes of expression, which present their content in such a way that it cannot be duplicated less offensively without that content being changed…We cannot force some other taste on people, or some different standard as to how they should voice their opinions in the public debate, at the same time as we ask them to accept the decisions of the majority. 28

Professor Dworkin also explained that
[t]he democratic process is founded on the idea of freedom of speech. In a democracy we discuss things and then vote, and we expect those who lose the discussion and the vote to accept the decision of the majority and uphold the laws it has adopted. That’s quite an extraordinary thing to ask of people. My conviction is that the only way we can ask that is if everyone in the democratic process has had the chance to put forward their arguments in exactly the way they wish. If we suppose one group has the special right not be ridiculed, what that automatically entails is that others are deprived of their right to voice their opinions about that group.29
Despite Adrienne Stone’s criticism that the High Court’s proportionality reasoning in Lange v Australian Broadcasting Corporation30 “rest[ed] on [value] judgments that are not revealed in the reasoning”,31 in Coleman v Power the High Court is generally considered to have confirmed that the Australian political tradition does not require reverence or civility.32 The tests for the invalidity of a state or federal law which unreasonably interferes with the implied freedom of political communication established in Lange, were refined in Coleman v Power, but the jurisprudence surrounding the application of the second test has not been fully worked out yet and will be discussed below.
The problem with the NSWCAT reasoning in Corbett v Burns is that the federal electoral context was not considered as a factor though the electoral context was the original and enduring setting for the recognition of the implied freedom of political communication in all the subsequent High Court jurisprudence. But though freedom of political communication has only come to Australian jurisprudence in recent years, it is not a philosophical novelty.
The citizens’ right to express freely their opinions and aspirations has long been recognised as a fundamental condition of democracy. In a democracy, the fact that political communication is not censored is the best way to ensure the free flow of information to citizens, which they can analyse independently.33 To restrict citizens from expressing their convictions on the basis of content alone is to deprive them of the authority to make their own political choices. For “[i]n a democracy”, as Dworkin reminds,
no one, however powerful or impotent, no citizen should have the right not to be insulted or offended. That principle is of particular importance in a country that strives for racial and ethnic fairness.34

Free speech is an integral aspect of the democratic right to freedom of political communication. Accordingly, restricting ‘undesirable’ speech dangerously diminishes political participation. It amounts to a particular brand of prejudice with the alleged “bigot” being a person guilty of discrimination based on whatever views the self-appointed censor finds abhorrent.35 As much as we may loathe intolerant citizens, the democratic answer is not to ban controversial political speech, for such a response itself may comprise another form of intolerance, one that is all the more dangerous and insidious for it threatens to undermine an essential element of the fabric of every democratic society, free speech.36
Since the urge to ban ‘hate speech’ is motivated primarily by hatred towards those espousing ‘politically incorrect’ views, and a desire to exercise power over those who express such views, a democratic society must instead protect free speech in a practical sense by giving special constitutional protection to freedom of political communication. Indeed, any attempt to impose statutory ‘political correctness’ violates the freedom of political communication, which is designed to constitutionally safeguard the free expression of political values, political ideas, and the exposure of these values and ideas to other citizens. Conversely, intolerance to ‘politically incorrect’ speech—as well as to speech that expresses political values and ideas that the political-intellectual elite rejected—unavoidably violates the freedom of political communication as a fundamental right of the citizen.
Although the Australian Constitution does not explicitly contain a declaration of rights,37 the High Court has found that the Australian Constitution contains the implied right to communicate freely on political matters. This implied right derives from and is required by the very system of representative government, which the Constitution established. The High Court’s explanation and development of this understanding began in 1992 in Nationwide News Pty Ltd v Wills.38 In this case, the majority of the Court (Brennan, Deane, Toohey and Gaudron JJ) relied on this right to strike down a federal law that made it an offence to make statements calculated to bring the Industrial Relations Commission or any of its members into disrepute. Brennan J stated that such a provision was constitutionally invalid because

[the] freedom of public discussion of political and economic matters is essential: it would be a parody of democracy to confer on the people a power to choose their Parliament but to deny the freedom of public discussion from which the people derive their political judgments.39

Nationwide must be read in conjunction with Australian Capital Television v Commonwealth40—which has been referred to above. In Australian Capital Television the Court confirmed that the implied freedom of political communication derived from our system of representative government and was essential to its existence and operation. The Australian Capital Television case involved a challenge to the validity of the Political Broadcasts and Political Disclosures Act 1991 (Cth), which prohibited political advertisements on radio and television during election periods.41 The matter before the Court was whether the Act was invalid for contravening the implied guarantee of freedom of political communication. The majority (Mason CJ, Deane, Toohey, Gaudron and McHugh JJ) held that the Act did contravene the implied guarantee, at least in relation to public and political discussions.42 Gaudron J, for instance, defined representative government as an essential element of the Australian Constitution which included “freedom of political discourse” as communication not only between candidates and electors, but also between the members of society generally.43 Likewise, Mason CJ argued that the “indivisibility” of freedom of communication means that “freedom of communication in relation to public affairs and political discussion cannot be confined to communications between elected representatives”. 44

In Theophanous v Herald & Weekly Times Ltd45 the majority of the High Court held that that implied freedom of political communication allowed a defense to defamatory statements about individuals engaged in public activity. The implied right was said in this case to create a substantive defense in defamation proceedings. In brief, the case involved a statement that was deemed defamatory to a member of federal Parliament, a former chairman of the Parliamentary Committee on Migration. He sued the newspaper for defamation because they published a letter to the editor that attacked his immigration policies and accused him of bias arising from his own ethnic background. The majority held that because the plaintiff was involved in public life, it was a defense to the tort of defamation to demonstrate that the letter had not been published recklessly, and that the defendant did not know the statement was false.46 Further, the Court held that the implied freedom of political communication operates not only to invalidate federal statutes insofar as they unreasonably impair that freedom, but that it also imposes a similar limit on the law whether embodied in the common law or in the statute law of the States.47

The High Court’s finding that the implied freedom of political communication explained in Theophanous applied to the States was confirmed in Stephens v West Australian Newspapers Ltd. 48 That case involved an article in the West Australian newspaper claiming that six members of the State Legislative Council had wasted taxpayers’ money on an overseas trip to investigate matters that could easily have been investigated at home in Western Australia. The trip was described as “a junket of mammoth proportions”.49 The six parliamentarians sued the newspaper for defamation, with the defendants pleading that their expression was protected by the implied freedom of political communication. This confirmation that the implied right extended also to political discussions involving state affairs,50 prefigured an even stronger explanation of the reach of the implied freedom of political communication involving a non-Australian politician.

In Lange v Australian Broadcasting Corporation,51 the Court had to decide whether the implied right encompassed information, opinions, and arguments that concerned government and political matters that directly affected the people of Australia. The case concerned comments made by the ABC’s Four Corners television program about the plaintiff, a former Prime Minister of New Zealand. The Court held that the implied right required the common law of defamation to concede an exception which enabled the free and frank discussion of political and public affairs. The same principle also prevented the Commonwealth, States and Territories from introducing legislation that restricted communication on political matters, thus confirming its original position that that the Constitution effectively prescribes a system of representative government that implies a “freedom of communication on matters of government and politics.”52

Similar reasoning was applied in an election case in the Queensland Anti-Discrimination Tribunal in 2001. The Chairman of the Islamic Council of Queensland applied to the Tribunal for an injunction preventing further publication of an election brochure said to be religiously offensive because it unfavourably compared the Bible to the Qur’an.53 However, the President of the Tribunal, Walter Sofronoff QC, referred to the High Court’s decision in the Australian Capital Television case and the good faith exceptions in the relevant Queensland legislation and dismissed the application. While it was possible to infer a lack of good faith from the lack of internal logic in the brochure, it had been written in moderate language and
[o]ne result of acceding to the complainant’s application to restrain further publication of the pamphlet would be to deny the voters of Moreton any further knowledge that Mr. Lamb holds views of this character. Although his holding those views may persuade some to vote for him, it is equally likely that this may persuade others to deny him their vote’.54

Sofronoff P concluded that “it [wa]s manifestly in the public interest that candidates’ views on issues affecting the electorate be known”.55

However the nature of what can actually be said in the context of political discussions and deliberations has not been fully worked out. That process continued in Coleman v Power56 where a majority of the High Court decided that a law could not prohibit speech of an insulting nature without significant qualifications. McHugh J stated that when insulting words are used in the course of political discussion, “an unqualified prohibition on their use cannot be justified as compatible with the implied freedom”.57 He also held that
[t]he use of insulting words is a common enough technique in political discussion and debates. No doubt speakers and writers sometimes use them as weapons of intimidation. And whether insulting words are or are not used for the purpose of intimidation, fear or insult may have a chilling effect on political debate. However, as I have indicated, insults are a legitimate part of the political discussion protected by the Constitution. An unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. Such prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted to maintaining the system of representative government.58
In other words McHugh J recognised that “insults are a legitimate part of the political discussion protected by the Constitution”.59 It seems Gummow and Hayne JJ agreed because they also reminded that “insult and invective have been employed in political communication since the time of Demosthenes”.60 Kirby J concurred, adding that Australia’s politics has regularly included “insult and emotion, calumny and invective” and that these are legally acceptable forms of political expression in accordance with the implied right to freedom of political communication61

The High Court has thus confirmed that political speech is constitutionally protected if there is a sufficient connection with ‘politics’. Any law that prohibits the manifestation of political ideas, particularly when expressed by candidates standing for election to political institutions such as Parliament, will inevitably infringe the implied freedom of political communication.62 That freedom even provides protection when those ideas are expressed as insults, abuse, and ridicule provided those ideas were not expressed with an expectation or the likelihood that actual violence might follow.63 The High Court accepts these forms of expression and communication as “legitimate parts of political discussion”.64

In other words it has already been decided that it is in the best interest of Australia’s democracy that political candidates are entitled to manifest their opinions freely and openly. This freedom operates to restrict both federal and state legislative powers, thus creating a corresponding immunity from every form of legislative control.65 As the Australian constitutional law academics Hanks, Gordon and Hill all point out,

the Court has been prepared to take a relatively broad view of what constitutes protected political communication, given the origins of the freedom in the constitutional provisions pertaining to…representative and responsible government. The argument that the communication in question is far removed from federal politics rarely seems to interest the Court.66

However, the constitutionality of anti-discrimination laws has received very little scholarly attention. Rees, Rice and Allen for example, observe in their 2014 book, Australian Anti-Discrimination law,67 that this issue has only been considered “by a single judge of the Federal Court”68 and in the “Courts of Appeal in three different States”69 and they observe that the anti-discrimination laws in each case were upheld against the constitutional challenge.

It is submitted that the Rees, Rice and Allen treatment is thin since those authors do not acknowledge the electoral context in which the implied right to freedom of political communication originated and they only refer to Sofronoff P’s decision in the election case in the Queensland Anti-Discrimination Tribunal cited above in their section concerning Religious Vilification Legislation.70 That treatment is the more unfortunate since they then observe only that
[t]he application for an interim order was dismissed because the Anti-Discrimination Tribunal was satisfied that the pamphlet fell within the exemption in s124A(2)(c) of the Anti-Discrimination Act.

A more careful reading of Sofronoff P’s judgment suggests that he was almost persuaded that despite its moderate language, the contested pamphlet was not written in good faith since it included “an impermissible leap of logic from his chosen passages from the Koran, to the actions of Osama Bin Laden, to a judgment about Muslims.”71 As observed above, a significant part of the reason why the interim order sought was not granted was because “it [wa]s manifestly in the public interest that candidates’ views on issues affecting the electorate be known”.72

In fact, the scope of the implied right of freedom of political communication has been found to protect hateful speech, in so far as the “context, emphasis or content” is sufficiently political and the purported limitations would burden the implied freedom itself.73 Citizens do have a right to know what candidates for election think and candidates for election have an implied right to express their political opinions without risk of legal prosecution, no matter how undesirable such opinions might be to a given person or minority group.74

The essence of the implied freedom of political communication in an electoral context is that no statute can interfere with the citizen’s right to know and the candidate’s right to communicate unless those parties knew or ought to have anticipated that violence was likely to follow. Three statements from the majority High Court in Coleman v Power and some additional comment from late High Court judges are appropriately quoted to conclude this part of our consideration. McHugh J said:
However in the case of insulting words, great care has to be taken in designing the means of achieving that end if infringement of the constitutional freedom is to be avoided. In so far as insulting words are used in the course of political discussion, an unqualified prohibition on their use cannot be justified as compatible with the constitutional freedom. An unqualified prohibition goes beyond anything that could be regarded as reasonably appropriate and adapted for preventing breaches of the peace in a manner compatible with the prescribed system. Without seeking to state exhaustively the qualifications needed to prevent an infringement of the freedom of communication, the law would have to make proof of a breach of the peace and the intention to commit the breach elements of the offence. It may well be the case that, in the context of political communications, further qualifications would be required before a law making it an offence to utter insulting words would be valid. 75
Gummow and Hayne JJ added:
Where, as here, the words were used to a police officer, then unless more is shown, it can be expected that the police officer will not physically retaliate. It follows that unless there is something in the surrounding circumstances (as, for example, the presence of other civilians who are affected by what is said) the bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament police officers must be expected to resist the sting of insults directed to them. The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation.
The appellant's conviction should therefore be set aside. There was no evidence before the Magistrate which would show that the words used by the appellant were intended or were reasonably likely to provoke physical retaliation.76
And Kirby J said the Queensland Act was valid only because it could be interpretively limited to criminalise words
intended, or reasonably likely, to provoke unlawful physical retaliation. They are words prone to arouse a physical response, or a risk thereof. They are not words uttered in the course of communication about governmental or political matters, however emotional, upsetting or affronting those words might be when used in such a context.
In such communication, unless the words rise to the level of provoking or arousing physical retaliation or the risk of such (and then invite the application of the second limb of the Lange test) a measure of robust, ardent language and "insult" must be tolerated by the recipient. In Australia, it must be borne for the greater good of free political communication in the representative democracy established by the Constitution.77
Likewise, in Monis,78 Hayne J stated:
History, not only recent history, teaches that abuse and invective are an inevitable part of political discourse. Abuse and invective are designed to drive a point home by inflicting the pain of humiliation and insult. And the greater the humiliation, the greater the insult, the more effective the attack may be.79
In Attorney-General (SA) v Corporation of the City of Adelaide French CJ stated:
Freedom of speech is a long-established common law freedom…linked to the proper functioning of representative democracies and on that basis has informed the application of public interest considerations to claimed restraints upon publication of information.80

In Wotton, a majority of the High Court81 described the constitutionally prescribed system of government with reference to the following quote from Aid/Watch Incorporated v Federal Commissioner v Taxation:82
The provisions of the Constitution mandate a system of representative and responsible government with a universal adult franchise, and s 128 establishes a system for amendment of the Constitution in which the proposed law to effect the amendment is to be submitted to the electors. Communication between electors and legislators and the officers of the executive, and between electors themselves, on matters of government and politics is ‘an indispensable incident’ of that constitutional system.83
The core message is that in Australia, no law subordinate to the Constitution may impose limits or restrictions on political communication unless that political communication is intended or likely to incite violence. Under the Australian Constitution, sovereignty ultimately resides in the people.84 It follows that the Australian people, particularly those standing for parliament, must be able to fully, frankly and robustly discuss controversial political matters, including those involving sexual orientation. Such discussion may involve employing language that some (or even most) may find offensive, insulting or even humiliating.
In this sense, the nature of the implied right must be applied not only to statements that are politically correct but also to controversial statements based on ideas that might be considered deeply annoying or offensive to some—as political statements often are. Therefore, if political speech involves what one might call political abuse (i.e.; serious contempt, revulsion, severe ridicule and even hatred on political grounds), the speech that vilifies on the grounds of ‘politics’, or political discussion, constitutes, by its very definition, speech that might be politically relevant. If so, it follows that a law that prohibits such speech can, in at least some of its applications, constitute a relevant burden on the implied freedom of political communication.
If properly construed, anti-discrimination laws can be applied to political discussion but only if they leave sufficient room for the relevantly political values and ideas to be manifest. Australia’s implied freedom of political communication means that any statutory prohibition must always be interpreted narrowly, and the exceptions construed widely, so as to leave enough room for proper political communication. If any legal provision cannot be interpreted so as to accommodate free political communication, then it will be constitutionally invalid.

To conclude, since 1992, the High Court has emphasised that the implied right of political communication lies at the foundation of the country’s democratic system. It is a right of citizens—and political candidates in particular—to speak freely on political matters. The High Court has held that this right means that political speech can only be limited if it is intended to or likely to cause immediate violence.

Ms Corbett was a political candidate who was running an active electoral campaign in Victoria. The NSW Tribunal panels which considered her case failed to recognise and uphold her constitutional right to express her views as a candidate so long as she did not say anything that was likely to incite violence.85 It is hard to see that anything she said in Hamilton Victoria was intended to or was likely to bring violence upon Mr Burns. If s 49ZT of the Anti-Discrimination Act 1977 (NSW) could not be interpreted in such a manner as to allow Ms Corbett to legally say what she said during her part in the 2013 Australian federal election campaign, it burdened her freedom of political communication in a constitutionally invalid manner. This constitutionally guaranteed freedom has been recognised by the High Court as a bulwark of representative government, in Australia and in every functional democracy.

Part III - The application for a rehearing on the merits
Ms Corbett’s application to have the Appellate Tribunal rehear the matter on the merits was also dismissed. Essentially, that was because she had not attended the first hearing and made no submissions at all. One senses that Ms Corbett’s failure to attend was treated by the Tribunal as a species of contempt that saw her treated as having made the merits application with ‘unclean hands’. Her barrister’s plea on appeal, that she was a pensioner, lived in Victoria and found it difficult to understand how NSW legislation could apply to her,86 received short shrift from the Appellate Tribunal. Though she claimed she would suffer substantial injustice because she had never been heard, the Appellate Tribunal ruled that substantial injustice was only claimed to arise from coercing someone to make a public apology for statements “she considered religiously and morally correct…without exhausting the avenues for receiving her explanation”.87 The Appellate Tribunal dismissed this ground by saying that it did not “consider having to comply with an order of the Tribunal to apologise as amounting to ‘substantial injustice’”.88

The Appellate Tribunal further explained its decision not to allow a rehearing on the merits because “[t]here [wa]s no broad question of administration or policy which [the case raised and which] needed to be resolved”,89 nor “any suggestion of fraud or mistake”.90 Ms Corbett had been “given notice of the hearing and chose not to attend”.91 “[H]er reasons for not participating”92 did not make it “unjust that she must now comply with the orders the Tribunal made.”93

The Appellate Tribunal agreed that it had jurisdiction to hear “the merits of [an] appealable decision”94 under section 113(2) of the Administrative Decisions Tribunal Act 1997 (NSW). Section 113 provides:
113 Right to appeal against appealable decisions of the Tribunal
  1. A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.
  2. An appeal under this Part
  1. may be made on any question of law, and
  2. with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision.
(2A) Despite subsections (1) and (2), an appeal does not lie to an Appeal Panel of the Tribunal against the exercise of an interlocutory function (within the meaning of section 24A) by of [sic] the Tribunal except by leave of the Appeal Panel.95
But the Appeal Panel observed that the Administrative Decisions Tribunal Act did “not contain any guidance as to the factors that should be taken into account in determining whether leave should be granted.”96 Nevertheless, the Appeal Panel sought guidance from Young J in K v K [2000] NSWSC 1052, from two NSWADT decisions in 200697 and from the High Court’s decision in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at 17-18.98
The Appeal Panel did not find Young J’s guidance helpful because it did not consider that the “broad questions of administration and policy”99 which he felt would justify a merits review, arose in this case.100 The ADT decisions did not help because “there…would not be a substantial injustice to the appellant…assessed objectively by reference to the standards of the legal system”.101 For these reasons, the High Court’s principle, “that controversies, once resolved, are not to be re-opened except in a few, narrowly defined circumstances”,102 was decisive. The Appeal Panel also cited the High Court’s decision in Metwally (No. 2) v University of Wollongong103 in support of its proposition that the public interest favoured the finality of litigation, though noting “exceptions to this principle”104 in cases of mistake, fraud or cases “in which by some accident a party…was not heard”.105 The Appeal Panel acknowledged from Metwally that there were also broader circumstances where leave might be granted but the general finality principle must still “be borne in mind”.106

These two High Court authorities should not have been decisive against Ms Corbett as the Appeal Panel decided.
In the first in time, Metwally (No. 2) v University of Wollongong, Mr Metwally had lodged two complaints with the Counsellor of Equal Opportunity appointed under the Anti-Discrimination Act 1977 (NSW) in 1981 and 1982. The first complaint alleged discrimination by the University of Wollongong on the grounds of his race and the second on grounds that he had complained to the Counsellor. The Counsellor found in his favour in 1983 but the University appealed including on grounds that an amendment to the Racial Discrimination Act 1975 (Cth) which allowed NSW and Commonwealth legislation to exist side-by-side, was invalid on grounds of its retrospective effect. The point of the University’s argument was that the legislation which enabled the finding against the University should have been found invalid. The Commonwealth’s Racial Discrimination Amendment Act had been passed in 1983 in an effort to undo the finding in Viskausas v Niland107 that Part II of the NSW Anti-Discrimination Act 1977 was invalid because it was unintentionally inconsistent with the Commonwealth Act. The High Court was demonstrably anxious that this invalidity saga not continue. In their 6-0 decision they said in respect of the ‘finality of litigation’ principle:
[If] the [High] Court has power to vacate [its previous order, which may be assumed without deciding], it must be exercised with very great caution, after weighing what might be irremediable injustice against the public interest in the finality of litigation…The present is not a case in which an order was made by mistake, or as a result of fraud, or a case in which by some accident an order has been made against a party who has not been heard. Mr Metwally was represented – and competently represented – in the argument before this court….The parties were given an opportunity to argue th[e] questions [before this court] but declined it….Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument, which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.108
The ‘finality of litigation’ point was decided against Mr Metwally because when competently represented in the earlier proceedings, he had declined to take the point now argued when it was raised. While the court was not called upon to decide what circumstances might justify the further hearing of a matter that had already been heard with competent counsel present, their obiter statement was that such hearing would be justified where “an order was made by mistake”,109 “as a result of fraud”110 or in “a case in which by some accident an order ha[d] been made against a party who [w]as not…heard”.111 While the Appeal Tribunal considered that Ms Corbett had made a choice not to be heard, she explained why she believed she did not need to appear and she had not been heard. Metwally had not only been heard. He had been represented by competent counsel at all times and had participated in all of the tactical decisions made during the trial process.
In the D’Orta-Ekenaike v Victoria Legal Aid case in 2005, the High Court was asked to overrule its own decision in Giannarelli v Wraith112 which had affirmed barristerial immunity, and to additionally decide whether the instructing solicitor was similarly immune. The High Court decided 6-1 (Kirby J dissenting) that both were immune in this case but that the finding in Giannarelli v Wraith should stand. The ‘finality of litigation’ issue arose because Mr D’Orta-Ekenaike had been advised by his barrister and solicitor to plead guilty on arraignment to a rape charge but had been acquitted in a retrial ordered by the Victorian Court of Appeal. The Court of Appeal ruled that the original “trial judge had failed to give sufficient directions about the use that might be made of plea”113 at the arraignment and the “guilty plea at committal was not admitted”114 at the second trial.
In their joint judgment, Gleeson CJ, Gummow, Hayne and Heydon JJ said the following about finality:
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances…Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law. Restraints on the nature and availability of appeals, rules about what points may be taken on appeal and rules about when further evidence may be called in an appeal (in particular, the socalled "fresh evidence rule") are all rules based on the need for finality. As was said in the joint reasons in Coulton v Holcombe: "[i]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial".115
McHugh J wrote separately but affirmed what his colleagues in the majority had said about the public interest in “avoiding re-litigation and preserving finality”116 and Callinan J simply denied that recent decisions in the United Kingdom and in New Zealand justified the Court in overruling the barristerial immunity which had been accepted for more than 200 years.117
Kirby J considered that the Giannarelli decision contained no clear ratio, was not binding upon the High Court and accordingly the statements relied on as precedent amounted only to obiter dicta.118 He considered that the 1891 rules which had set the standard, preceded the development of the law of negligence and that it was time for the outdated barristerial immunity to go – the public interest in personal justice for an applicant like Mr D’Orta-Ekenaike outweighed the public interest in the finality of criminal litigation in particular and it also outweighed the law’s “special solicitude for its own practitioners”.119 He also observed quoting Lord Hoffman in Arthur JS Hall120 that the preservation of the immunity amounted to “burning down the house to roast the pig”.121 “The fears of floods of litigation”122 if finality was undermined by abolition of absolute privilege for barristers and solicitors could not be sustained by experience in the US or the demands of justice for individuals.
But even laying aside Kirby J’s colourful critique of the finality justification for retaining doctrines which denied justice to unsuccessful litigants, the Appeals Panel in Corbett appear to have studiously ignored the High Court’s exceptions for established appellate processes and cases where a party had not been heard.

Certainly the Appeals Panel addressed those issues. They acknowledged that they had discretion to hear Ms Corbett if injustice had been done, but they ruled that even though she had not been present to put her case, the Tribunal had done that for her and she could not therefore complain that her arguments had not been heard.
In the Metwally case, the discretion to hear Mr Metwally’s argument was exercised against him because he had been competently represented throughout and had earlier declined to take the point he now sought to pursue. The High Court also said specifically that they would have exercised their discretion to rehear if an order had been made by accident against a party who had not been heard.123 While the order made against Tess Corbett was not made ‘by accident’, there was no suggestion that she had representation before the appeal. The reason that both the original Tribunal and Appeals Panel said they had exercised their discretion against Ms Corbett was because the original tribunal had gone to some trouble to make certain she knew that a case was to be heard against her and she chose not to attend the court.124 When she finally came before the Appeals Panel, they did not credit her counsel’s explanation that his client “lives in Victoria, receives the age pension and does not understand how NSW legislation could apply to her”.125 They said simply that she “had been given notice of the proceedings and of the date, time and place of the hearing and it was not a breach of procedural fairness to hear the complaint in her absence”.126 The Appeal Panel further explained their reason for not reconsidering the merits by saying “that the Tribunal had [not] made an error of law in making [its] findings or that there was anything unfair or unorthodox in] the way it went about its fact finding”.127
With respect, while it may not have been a breach of procedural fairness for the original Tribunal to hear the complaint in Ms Corbett’s absence, the Appeals Panel was not justified in resting on the original Tribunal’s justification when she appeared for the appeal. The point of justice in such circumstances as was most famously stated in England by Lord Chief Justice Hewart is that “justice must not only be done, but should manifestly and undoubtedly be seen to be done”.128 Lord Chief Justice Hewart’s point was not that there was a real suggestion that the possible bias of the clerk to the justices who decided that 1924 case had influenced their decision. Indeed he specifically said that he did not believe there had been any influence.129 But he wanted to avoid even the suggestion that justice might have been interfered with. And because there was the suggestion that proper procedure had not been “scrupulously”130 adhered to, he quashed that decision.
The Appeals Panel in Corbett v Burns were not as scrupulous as they should have been which leaves open “the suspicion”131 that Ms Corbett was not treated fairly by this NSW Tribunal. Nor does “the finality of litigation” principle in D’Orta-Ekenaike v Victoria Legal Aid from which the Appeals Panel sought support in dismissing Ms Corbett’s late request to be heard, justify dismissing her request over the justice principle made famous in Sussex Justices. Mr D’Orta-Ekenaike had already been heard twice (and acquitted the second time) but wanted to sue his lawyers in the first case because he alleged they had given him poor advice. The High Court thought two or three actual hearings was enough.132 The Appeals Panel which eventually saw Ms Corbett, would not allow her to be heard even once.
In this article, we have not addressed the question of how both the original NCAT Tribunal and the Appeals Panel decided they had jurisdiction in NSW to hear this complaint against Ms Corbett in respect of things she did in Victoria in the first place. She was not involved in nor did she anticipate the decisions which saw her words to a journalist in her electorate in Victoria republished by news media organisations in other places. Likewise, we have not discussed why the media organisations which exercised editorial discretion and re-published her comments without her knowledge, were not made party to the litigation though it seems fair to observe that it was open both to the original Tribunal and to the Appeals Panel to join those media organisations in the proceeding since they arguably bore some responsibility for the decisions for the public acts which were found to have vilified the Plaintiff.
What we have done is revisit NCAT’s treatment of freedom of political communication in Australia and its exercise of its discretion not to hear Ms Corbett on the merits on the appeal though she had not been previously represented or heard in the matter. We have found NCAT’s judgment wanting on both counts. First, its treatment of freedom of political communication in Australia was unsatisfactory because it selectively referred to just one authority on that subject and the authority it chose was not current High Court authority. Second, the decision did not consider the many authoritative statements from the High Court which confirm that laws which circumscribe political communication, especially during election campaigns, are constitutionally invalid unless the communication was intended or likely to cause actual violence.
Certainly, the NSW Court of Appeal authority that NCAT chose to follow was relevant since it considered the interaction between constitutional freedom of political communication in Australia and the anti-homosexual vilification provisions of NSW’s Anti-Discrimination Act 1977 raised by the complaint. But that case did not arise in an electoral context and neither panel at NCAT gave any consideration to what the High Court has said about insult, emotion, calumny and invective at election time on a number of occasions. There was thus no reference to the High Court’s finding that freedom of political communication at election time is critical if voters are to know who to vote for and who not to vote for.
Furthermore, the NCAT Appeals Panel that considered Ms Corbett’s case and request to be heard when she did appear also erred in deciding that she was not entitled to be heard. Once again, the Tribunal fell into error because of its selective choice and application of authorities. While neither Tribunal considered it had been misled in its decision making by factual mistake or fraud the suggestion that both Panels had adequately protected Ms Corbett’s interests when she had been neither represented nor heard, misunderstands the nature of audi alteram partem as the bedrock of natural justice.
In this sense, we observe that although Deputy President Boland ADCJ, indicated that s32(3)(a) of the Civil and Administrative Tribunal Act 2014 (NSW) “precludes the bringing of any internal appeal against any decision of the appeals panel”,133 he did observe citing s82, that “an appeal against a decision of an internal panel lies to the Supreme Court or to the District Court of NSW”.134 Though Boland ADCJ did not consider there were exceptional circumstances, within the meaning of that phrase as defined by the High Court in the Metwally case referred to above, such as would justify a “second appeal”,
The applicant does have a remedy if she wishes to agitate it by seeking an extension of time to seek leave to appeal the appeal panel’s decision to the Supreme Court of NSW on a question of law.135
While there is no question that Ms Corbett has authored her own misfortune during this saga in a number of ways, it is no less unfortunate that NCAT’s errors in respect of both the nature of the implied freedom of political communication at election time in Australia, and the basis upon which judicial discretion to rehear a matter may be exercised, seem unlikely to be remedied and a result that does not accord with Australian law remains unchallenged.

++ LLB (Hons), M Jur, PhD (Murdoch), Associate Dean, The University of Notre Dame Australia, Sydney School of Law.
** LL.B, LL.M. cum laude, Ph.D (Mon.), Law Reform Commissioner, Law Reform Commission of Western Australia; President, Western Australian Legal Theory Association (WALTA); Director of Postgraduate Research and Senior Lecturer in Constitutional Law and Legal Theory, Murdoch Law School; President, Western Australian Legal Theory Association (WALTA)
1 Some readers may object to our use of the language of criminal law in this article. While we accept that anti-discrimination norms are not part of the criminal law statutes and codes of the relevant Australian polities, we consider the criminal law terminology fits the intent of the Australian legislatures which have passed anti-discrimination statutes. The intent is to mandate a societal standard and to shame and punish those who are found to have committed these civil wrongs. We therefore consider the use of the language used in the context of criminal law is appropriate in discussing Australian anti-discrimination law. It is beyond the scope of this article to further engage in the debate as to whether the law follows or informs societal norms,
2 See for example Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, Coleman v Power (2004) 220 CLR 1 and in the discussion that follows.
3 Burns v Corbett [2013] NSWADT 227; Corbett v Burns [2014] NSWCATAP 42.
4 Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 (NSW).
5 Burns v Corbett [2013] NSWADT 227.
6 Sunol v Collier (No 2) [2013] NSWCA 196.
7 See also comment above at n1.
8 The Weekend Australian reported in its 28-29 November 2015 issue that Mr Burns has brought 28 separate complaints to the NSW Discrimination Board against ‘hardline Catholic conservative Bernie Gaynor’ (Ibid 19-20).
9 On 1 January 2014, the Civil and Administrative Tribunal of New South Wales came into existence by operation of s 7(1) of the Civil and Administrative Tribunal Act 201 3(NSW)…[and took over] the work…of 22 previous tribunals or bodies” including the Equal Opportunity Division of the Administrative Decisions Tribunal < http://www.ncat.nsw.gov.au/Documents/speech_overview_of_nsw_civil_and_administrative_tribunal.pdf>.
10 Burns v Corbett [2013] NSWADT 227. Though the Tribunal noted that Ms Corbett had initially not been properly served with notice of the proceedings (ibid [7]), the Tribunal Registrar had subsequently sent Ms Corbett a registered letter advising of the time and place of hearing and that had been returned confirming delivery to Ms Corbett on 27 August 2013 and appeared to have been signed by her (ibid [11-12]).
11 Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [64].
12 Corbett v Burns [2015] NSWCATAP 172 (17 August 2015). Boland J, the Acting Deputy President of the Tribunal found that Ms Corbett “had a right to seek leave to appeal the internal appeal panel decision to the Supreme Court…[but appeared to have] chose[n] not to do so” (ibid [50]). That remedy was still open to her (ibid [51]).
13 Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [49].
14 Ibid [17].
15 Burns v Corbett [2013] NSWADT 227, [46].
16 Sunol v Collier (No 2) [2013] NSWCA 196.
17 Ibid per Bathurst CJ [34] – [41].; per Allsop P [60], [63]-[67] and [72], and per Basten JA [81]-[82], and [87]
18 Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284.
19 Sunol v Collier (No 2) [2013] NSWCA 196 [37] quoting Nettle JA in Catch the Fires Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 [92].
20 Ibid [64].
21 Coleman v Power (2004) 220 CLR 1.
22 Sunol v Collier (No 2) [2013] NSWCA 196 per Allsop P at [66] citing Gummow, Hayne and Kirby JJ in Coleman v Power.
23 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 138-139.
24 Ibid 227.
25 Ibid 231.
26 That is, until a clear majority of the High Court accepted that the implied freedom of political communication influenced how common law cases concerning the tort of defamation were concerned, McHugh J would have limited the new implied freedom of political communication to the electoral context. See for example in Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 198-202 and in McGinty v Western Australia (1996) 186 CLR 140, 231-234 where as Blackshield and Williams have said, he “emphatically disassociated himself from any conception of ‘a free-standing principle’ of representative democracy to be discerned in the Constitution” (George Williams, Sean Brennan and Andrew Lynch, Blackshield & Williams Australian Constitutional Law & Theory, 6th ed., The Federation Press, 2013, 1283).
27 Sunol v Collier [2012] NSWCA 44, [64].
28 Flemming Rose, Amerikanske Stemmer (Viby: Indsigt, 2006), 117-27. Quoted from Flemming Rose, The Tyranny of Silence: How One Cartoon Ignited a Global Debate on the Future of Free Speech (Washington/DC: Cato Institute), 117.
29 Flemming Rose, Amerikanske Stemmer (Viby: Indsigt, 2006), 117-27. Quoted from Flemming Rose, The Tyranny of Silence: How One Cartoon Ignited a Global Debate on the Future of Free Speech (Washington/DC: Cato Institute), 117.
30 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.
31 Adrienne Stone, “’Insult and Emotion, Calumny and Invective’: Twenty Years of Freedom of Political Communication”, (2011) 30 University of Queensland Law Journal 79, 91.
32 For example, ibid 97.
33 Martin H. Redish, ‘The Value of Free Speech’, (1982) 130 University of Pennsylvania Law Review 591, 616-619.
34 Ronald Dworkin, ‘The Right to Ridicule’, New York Review of Books, March 23, 2006. Dworkin here alludes to the well known statement of Justice Robert Jackson of the US Supreme Court in West Virginia Board of Education v Barnette 319 US 624 (1943) at 642
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
35 Pauline Abou Jaoude, ‘Racist Speech – The Ultimate Challenge for Toleration? A Philosophical Exploration of Justifications for Hate Speech Protection’, in Christopher Campbell-Holt (ed.), UCL Jurisprudence Review 2003 (London/UK: University College London, 2003), 363.
36 Pauline Abou Jaoude, ‘Racist Speech – The Ultimate Challenge for Toleration? A Philosophical Exploration of Justifications for Hate Speech Protection’, in Christopher Campbell-Holt (ed.), UCL Jurisprudence Review 2003 (London/UK: University College London, 2003), 365.
37 Likewise, each Australian State has its own constitutional document, entitled a Constitution Act. These documents define the formal institutions of government and, in some instances, the State Supreme Courts. The legislation authority of the State Parliaments is defined in broad terms and not by reference to a constitutionally entrenched declaration of rights.
38 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (Austl).
39 Ibid 47 (Brennan J).
40 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (Austl).
41 The Political Broadcasts and Political Disclosures Act 1991 (Cth) (Austl). Added Part IIID to the Broadcasting Act 1942 (Cth) (Austl). Section 95(a) prohibited political advertisements on radio or television during federal election periods. There were similar bans for Territory elections under s 95(c) and for State and local government elections under s 95(d).
42 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 1, 133-146 (Mason CJ), 75-6 (Deane and Toohey JJ), 217 (Gaudron J), 229-235 (McHugh J).
43 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 1, 210 (Gaudron J).
44 Ibid 138–42.
45 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104.
46 Theophanous v Herald &Weekly Times Ltd (1994) 182 CLR 104, 137 (Mason, CJ, Toohey and Gaudron, JJ).
47 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 165 (Deane J).
48 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 21.
49 Ibid.
50 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 21, 232 (Mason, CJ, Toohey and Gaudron, JJ).
51 Lange v Australian Broad. Corp. (1997) 189 CLR 520.
52 Ibid 558–59.
53 Dean v Lamb [2001] QADT 20 (8 Nov. 2001) (Austl.), available at <http://www.austlii.edu.au/au/cases/qld/QADT/2001/20.html>.
54 Ibid 11.
55 . Ibid.
56 Coleman v Power (2004) 220 CLR 1.
57 Coleman v Power (2004) 220 CLR 1, 54.
58 Ibid 54.
59 Ibid.
60 Ibid 78.
61 Ibid 91.
62 Nicholas Aroney, ‘The Constitutional (In)validity of Religious Vilification Laws: Implications for their Interpretation’ (2006) 34 Federal Law Review 288, 313. See also: Neil Foster, ‘Anti-Vilification Laws and Freedom of Religion in Australia – Is Defamation Enough?’ Paper presented at the conference ‘Justice, Mercy and Conviction: Perspectives on Law, Religion and Ethics’, University of Adelaide School of Law, 7-9 June, 2013, 14.
63 Coleman v Power (2004) 220 CLR 1, 53-4 (McHugh J), 77 (Hayne and Gummow JJ) and 97-8 (Kirby J).
64 Coleman v Power (2004) 220 CLR 1, 54, 78, 91. See also: Roberts v Bass [2002] HCA 1, 62-63; see also: Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, 43.
65 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Austl).
66 Peter Hanks, Frances Gordon and Graeme Hill, Constitutional Law in Australia 625 (2012). See, for example, Hogan v Hinch (2011) 275 ALR 408, [48] (French CJ), [95], [99] (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (Austl).
67 Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination Law, 2nd ed., The Federation Press, 2014.
68 Ibid [3.6.3].
69 Ibid [3.6.4].
70 Ibid [10.5].
71 Dean v Lamb [2001] QADT 20 (8 Nov. 2001) 12
72 Ibid 11.
73 Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 124 (Austl).
74 Fletcher v Salvation Army [2005] VCAT 1523 (Unreported, Morris P, Aug. 1, 2005) ¶7 (Austl).
75 Coleman v Power (2004) 220 CLR 1 [102].
76 Ibid [200]-[201].
77 Ibid [254]-[255].
78 Monis is a rare case as it was a 3-3 decision in a 6 judge High Court. Three judges (French CJ, Hayne J and Heydon J) held that prohibiting offence was not an end compatible with the constitutionally-prescribed system of representative and responsible government. Three judges (Crennan, Kiefel and Bell JJ) held that it was. The result was governed by the Judiciary Act 1903 (Cth) s 23(2)(a), which provides that in such cases, the decision of the court appealed from is affirmed. In Monis, the Queensland Court of Appeal held that prohibiting offence was a compatible end. Hence, Monis has a result but no binding ratio decidendi.
79 Monis [2013] HCA 4; (2013) 249 CLR 92, 136-7 [85]-[86] (Hayne J).
80 Attorney-General (SA) v Corporation of the City of Adelaide [2013] HCA 3, 43.
81 Wotton [2012] HCA 2; (2012) 246 CLR 1, 13 [20] (French CJ, Gummow, Hayne, Crennan and Bell JJ).
82 [2010] HCA 42; (2010) 241 CLR 539 (‘Aid/Watch’).
83 Aid/Watch [2010] HCA 42; (2010) 241 CLR 539, 556 [44] (emphasis and citations omitted).
84 Unions NSW [2013] HCA 58 [17] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
85 Kent Greenawalt, ‘Free Speech in the United States and Canada’ (1992) 55 (1) Law and Contemporary Problems 5, 19.
86 Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [49].
87 Ibid [54].
88 Ibid.
89 Ibid [55].
90 Ibid.
91 Ibid.
92 Ibid.
93 Ibid.
94 Ibid [3].
95 < http://www.legislation.nsw.gov.au/inforcepdf/1997-76.pdf?id=b8360454-ed0c-ea37-f56a-a3c2a90ca7d2>.
96 Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [45].
97 Hinton v Commissioner of Fair Trading [2006] NSW 257 and Obradovic v Commissioner of Fair Trading, Office of Fair Trading (No. 2) [2006] NSWADT 45 (15 August 2006).
98 Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [47].
99 Ibid quoting Young J at [15] in K v K [2000] NSWSC 1052.
100 Ibid.
101 Ibid [46] referring to Hinton v Commissioner for Fair Trading [2006] NSWADT 257 at [85] and Obradovic v Commissioner for Fair Trading, Office of Fair Trading (No 2) [2006] NSWADTAP 45 (15 August 2006) at [12] to [13].
102 Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [47] citing D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12: (2005) 223 CLR 1 at 17-18.
103 Metwally (No. 2) v University of Wollongong [1985] HCA 28 (17 April 1985) cited at [52] of the judgement in Corbett v Burns.
104 Ibid.
105 Ibid.
106 Ibid.
107 [1983] HCA 15; (1983) 57 AJLR 414; 47 ALR 32.
108 Metwally (No. 2) v University of Wollongong (1985) 60 ALR 68 at [5] and [7].
109 Ibid [5].
110 Ibid.
111 Ibid.
112 (1988) 165 CLR 543.
113 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12, [7].
114 Ibid [8].
115 Ibid [34-35].
116 Ibid [201].
117 Ibid [378] and [381].
118 Ibid [242-250].
119 Ibid [314].
120 Arthur JS Hall v Simons and Barratt v Ansell and others v Schofield Roberts and Hill [2000] UKHL 38; [2000] 3 All ER 673 where the House of Lords decided that the historic immunity of barristers in England was anomalous on public policy grounds.
121 D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12 [328].
122 Ibid.
123 Metwally (No. 2) v University of Wollongong (1985) 60 ALR 68 at [5].
124 Burns v Corbett [2013] NSWADT 227 at [12]; Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [55].
125 Corbett v Burns [2014] NSWCATAP 42 (14 August 2014) [49].
126 Ibid [50].
127 Ibid [51].
128 R v Sussex Justices, ex parte McCarthy (1924) 1 KB 256; [1923] All ER 233.
129 Ibid.
130 Ibid.
131 Ibid.
132 Three hearings if one counts the report we are considering in the High Court.
133 Corbett v Burns [2015] NSWCATAP 172 (17 August 2015) [12].
134 Ibid [13].
135 Ibid [44].
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