Case: Bropho v Human Rights and Equal Opportunity Commission and Anor (2004) 135 CLR 105
Outcome: referred to
The question as to the reasonableness or otherwise of conduct for the purposes of s 18D was explained by a Full Federal Court in Bropho v Human Rights and Equal Opportunity Commission and Anor (2004) 135 CLR 105 comprising French, Lee and Carr JJ. My attention was drawn by counsel for the applicant to the following passages in the reasons for decision, being pars [80]-[82], [96] and [102] in the reasons for judgment of French J, [141] and [144] in the reasons of Lee J and [178] in the reasons of Carr J. I would draw attention in particular to the formulation of the reasonableness requirement addressed by French J in those passages in his reasons, and in particular the following in [80]-[81] concerning 'the public interest': '80. An Act will be done reasonably in the performance, exhibition or distribution of an artistic work if it is done for the purpose and in a manner calculated to advance the purpose of the artistic expression in question. An act is done reasonably in relation to statements, publications, discussions or debates for genuine academic, artistic or scientific purposes, if it bears a rational relationship to those purposes. The publication of a genuine scientific paper on the topic of genetic differences between particular human populations might, for one reason or another, be insulting or offensive to a group of people. Its discussion at a scientific conference would no doubt be reasonable. Its presentation to a meeting convened by a racist organisation and its use to support a view that a particular group of persons is morally or otherwise "inferior" to another by reason of their race or ethnicity, may not be a thing reasonably done in relation to para (b) of s 18D. 81. The same kind of criterion may be applied to acts done in reports or comments on events or matters of public interest. A presentation of a report or comment which highlights, in a way that is gratuitously insulting or offensive, a matter that is irrelevant to the purported question of public interest under discussion may not be done "reasonably". A feature article on criminal activity said to be associated with a particular ethnic group would in the ordinary course be expected to fall within the protection of para (c). If it were written in a way that offered gratuitous insults by, for example, referring to members of the group in derogatory racist slang terms, then it would be unlikely that the comment would be offered "reasonably".' The second respondent Mr Grigor-Scott made the following assertion in his submission document bearing date 25 September 2005 ( ante ): 'Everything that has been said or done by the respondents, or either of them, about which complaint has been made in this matter, has been said or done reasonably and in good faith for the purpose of making a fair and accurate report of events or [sic] matters of public interest or had been the expression of a genuine belief about such events or matters held by the person making the comment'. 49 As to the statutory notion of 'good faith', I would draw attention to what was said by French J at [96] and [102] on that subject in his majority judgment: '96. It follows from the preceding discussion that good faith may be tested both subjectively and objectively. Want of subjective good faith, ie, seeking consciously to further an ulterior purpose of racial vilification may be sufficient to forfeit the protection of s 18D. But good faith requires more than subjective honesty and legitimate purposes. It requires, under the aegis of fidelity or loyalty to the relevant principles in the Act, a conscientious approach to the task of honouring the values asserted by the Act. This may be assessed objectively. 102. A person acting in the exercise of a protected freedom of speech or expression under 18D will act in good faith if he or she is subjectively honest, and objectively viewed, has taken a conscientious approach to advancing the exercising of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it. That is one way, not necessarily the only way, of acting in good faith for the purpose of s 18D. On the other hand, a person who exercises the freedom carelessly disregarding or willfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt may be found not to have been acting in good faith.' 50 What was next submitted to the Court on the occasion of Mr Grigor-Scott's attempted re-opening of the evidence in the case was a large bundle of documents. That course of re-opening was opposed by counsel for the applicant upon the basis that Mr Grigor-Scott's affidavits of 7 September 2006 and 11 October 2006 were in any event of no relevance to the defence by the respondents of the proceedings, and otherwise to any issue in the proceedings relevantly to the statutory scheme. Moreover it was emphasised that the respondents had already passed up ample opportunity to present any such material to the extent that it was relevant, and in any event, no relevance to the issues properly arising had been demonstrated by Mr Grigor-Scott. 51 By way of rejoinder, Mr Grigor-Scott pointed broadly to what appeared on the BBC's website and 'to ... what I have got on the computer here', that being however a response of no utility, much less an explanation as to how any specific instance of his website documentation bore upon the issues arising, or for what reason. It is convenient at this point that my impression was that Mr Grigor-Scott's purported unspecific tender of vast numbers of unidentified documents might operate to draw out the current proceedings indefinitely. Moreover Mr Grigor-Scott continued to repeat in the course of his purported address to the Court vaguely or at best broadly expressed criticisms of the applicant's case of obviously no assistance, such as that '[t]here were a whole series of implausible submissions ...', that 'they have no case', that there was 'no evidence of breach of the statute', that 'the applicant is misusing the Act in order to promote the objectives of the Anti-Defamation League of B'nai B'rith', that 'my church has done nothing wrong', and that the applicant's case was 'untruthful'. 61 I have recorded in some detail Mr Grigor-Scott's assertions and submissions, advanced as they were from the Bar Table and which were contained in written material which he sought to tender, inclusively of his short purported written submissions dated 25 September 2006. He maintained to the Court that all that he had done in the course of the proceedings the subject of complaint was undertaken ' .... to determine reasonableness and good faith', in line with the operation of s 18D of the RD Act upon which he repeatedly claimed reliance. I should further record additionally that on the concluding day's hearing, I rejected the admissibility of the remaining evidence of 7 September 2006 and 11 October 2006, which he sought to tender into evidence, as 'oppressive and irrelevant', though I nevertheless agreed to treat his relatively short two and a half page 'submission' of 25 September 2006 as having been placed before the Court for consideration. By that document, Mr Grigor-Scott asserted reliance upon what appeared in the judgments of the Full Federal Court in Bropho [2004] FCAFC 16 ; (2004) 135 FCR 105, and specifically at [79] and [101]-[102] in the case of French J and [178] in the case of Carr J, though I am unable to discern how those passages conceivably assisted his case. 62 As foreshadowed, counsel for the applicant placed reliance upon what appeared in the reasons for judgment in Bropho [2004] FCAFC 16 ; 135 FCR 105 of French J at [96] and [102], of Lee J (dissenting) at [141], and of Carr J at [178], and contrary to the submission of Mr Grigor-Scott, counsel for the applicant explained further by supplementary outline of written submissions the basis for his invocation of those principles enunciated in Bropho [2004] FCAFC 16 ; 135 FCR 105 which he thereupon cited. Those principles related to the statutory tests as to ' reasonableness', 'public interest' and 'good faith' , in relation to which tests it was submitted by counsel that Mr Grigor-Scott's case fell well short, being a submission which in my opinion, in the light of the matters I have recorded in these reason, was clearly correct. Mr Grigor-Scott's purported invocation of s 18D was made incidentally by way of a so-called written 'submission', and not by way of formal application for relief in the form prescribed by the Federal Court Rules . 63 I should record for completeness that Mr Grigor-Scott sought to contend in his belated 25 September 2006 document that '[t]he matters about which the complaints in this matter have been made do not relate to every "Jew", but are part of an academic or public interest discussion in relation to "Zionist" policies and practices'. I have not been able to identify, much less rationalise however, the existence of any such discussion in the context of the present proceedings and of the conduct complained of by the applicant which has led thereto. I agree with the response of counsel for the applicant that the submission is misconceived in its purported aspects. 64 I should acknowledge that by letter bearing date 1 August 2006 written very belatedly by Mr Grigor-Scott, there was sent, without prior approval of a direction or otherwise of the Court, a comprehensive five page closely typed letter. This document bore implicitly the fact of a likely receipt by him of legal assistance, by at least the latter stage of the proceedings. It included what may be described as an unfortunate hotchpot of repetition, abuse of the applicant's case, misstatements, and otherwise irrelevant material that constituted no sufficient basis for specific consideration in the course of these reasons.