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

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

The application failed because the Commissioner did not err in law or improperly exercise power in applying s 18D. The phrase "reasonably and in good faith" in s 18D required an objective assessment of the publication of the cartoon as the thing said or done, on all the evidence, and did not require separate proof of the second respondent's subjective good faith or separate application of the test to severed offensive parts of the cartoon. The Commissioner had regard to the findings under s 18C, the evidence including Mr Murray's evidence, the surrounding publications, and the public interest context, and there was no evidence requiring a contrary finding of lack of reasonableness or good...

Jurisdiction
Australia
Judgment Date
04 December 2002
Procedural Posture
Application for Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of a Human Rights & Equal Opportunity Commission Decision Dismissing a Racial Discrimination Complaint / Final Judgment
Outcome
Application dismissed.
Legal Topics
['racial Discrimination Act 1975 (cth) S 18 C' 'racial Discrimination Act 1975 (cth) S 18 D Exemptions' 'offensive Behaviour Based on Racial Hatred' 'freedom of Expression' 'judicial Review' 'reasonableness and Good Faith']
['human Rights' 'administrative Law' 'racial Discrimination'] ['racial Discrimination Act 1975 (cth) S 18 C' 'racial Discrimination Act 1975 (cth) S 18 D Exemptions' 'offensive Behaviour Based on Racial Hatred' 'freedom of Expression' 'judicial Review' 'reasonableness and Good Faith']

Case Brief

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Procedural Posture

Application for Review Under the Administrative Decisions (judicial Review) Act 1977 (cth) of a Human Rights & Equal Opportunity Commission Decision Dismissing a Racial Discrimination Complaint / Final Judgment

Legal Issues

  1. 1 ['Whether the Commissioner erred in law in finding that publication of the cartoon was done reasonably and in good faith for the purposes of s 18D of the Racial Discrimination Act 1975 (Cth).' 'Whether there was no finding or evidence to establish that the offensive, insulting, humiliating or intimidating aspects of the cartoon were themselves said or done reasonably and in good faith.' 'Whether the Commissioner failed to take into account that the matters of public interest did not include the aspects of the cartoon found offensive, insulting, humiliating or intimidating.' 'Whether the Commissioner failed to take into account that the cartoon was severable into parts, some of which may not have been for a genuine purpose in the public interest.']

Ratio Decidendi

The application failed because the Commissioner did not err in law or improperly exercise power in applying s 18D. The phrase "reasonably and in good faith" in s 18D required an objective assessment of the publication of the cartoon as the thing said or done, on all the evidence, and did not require separate proof of the second respondent's subjective good faith or separate application of the test to severed offensive parts of the cartoon. The Commissioner had regard to the findings under s 18C, the evidence including Mr Murray's evidence, the surrounding publications, and the public interest context, and there was no evidence requiring a contrary finding of lack of reasonableness or good...

Court Disposition

Application dismissed.

Orders

  • ['The application for review of the decision of the first respondent constituted by Inquiry Commissioner G Innes made on 12 April 2001 be dismissed.' "The applicant pay the second respondent's costs of the review."]