Laws appeal upheld

A 2007 decision of the NSW Administrative Decisions Tribunal (ADT) found that public broadcaster, John Laws, had not breached section 49ZT of the Anti-Discrimination Act 1997, which prohibits vilification on the basis of homosexuality. A recent decision of the Administrative Decisions Tribunal Appeal Panel of NSW overturned this previous finding.

The offending conduct occurred on the morning following the Melbourne Cup in 2004, when John Laws made disparaging comments about Carson Kressley (Queer Eye For The Straight Guy) describing him on air as a poof, pansy, pillow biter and fairy.

Although the ADT at first instance found that John Laws’s comments severely ridiculed homosexuals, Laws was able to demonstrate that his conduct was done reasonably and in good faith, and therefore did not contravene the Anti-Discrimination Act.

The vilification provisions allow a person to escape liability in circumstances where vilification is found to have occurred and it can be shown that their conduct falls within one of the exceptions (e.g. conduct where the person holds an honest belief that it was necessary to achieve a particular purpose).

The appeal decision turned on the meaning of reasonably and in good faith. The appeal panel found that even in circumstances where a person holds an honest subjective belief, it is also necessary that the person’s actions are found to be reasonable according to the standard of an objective bystander. In this case, the Appeal Panel held, John Laws’s conduct could not be said to be reasonable.

The precise meaning of reasonably and in good faith is important, because it has been utilised by many as a defence to a charge of vilification.

The appeal panel’s decision has certainly raised the bar to narrow the range of circumstances in which this defence can be used and ensured that the legislative intent behind the relevant provisions in the Anti-Discrimination Act -” to prevent the vilification of marginalised groups -” will be honoured.