race, colour or national or ethnic origin. It follows that in order to establish that a particular act is unlawful, the requirement in s 18C(1)(b) will be satisfied if it is established that the act was done at least in part because of the race, colour or national or ethnic origin of the relevant person or group of people.
23 Section 18D sets out exemptions from the proscription in s 18C, including the "fair comment" exemption in subs (c)(ii) on which Senator Hanson relies. The section as a whole is in the following terms:
18D Exemptions
Section 18C does not render unlawful anything said or done reasonably and in good faith:
(a) in the performance, exhibition or distribution of an artistic work; or
(b) in the course of any statement, publication, discussion or debate made or held for any genuine academic, artistic or scientific purpose or any other genuine purpose in the public interest; or
(c) in making or publishing:
- (i) a fair and accurate report of any event or matter of public interest; or
- (ii) a fair comment on any event or matter of public interest if the comment is an expression of a genuine belief held by the person making the comment.
24 The remaining sections in Pt IIA, ss 18E and 18F, deal with vicarious liability and State and Territory laws being unaffected. Those sections do not call for consideration in this case.
25 A contravention of s 18C(1) has three elements: (1) the relevant act must be done "otherwise than in private", (2) the act must be "reasonably likely" to "offend, insult, humiliate or intimidate" and (3) the act must be done "because of" the race, colour or national or ethnic origin of a person or group of people. See Jones v Scully [2002] FCA 1080; 120 FCR 243 at [95] per Hely J; Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; 135 FCR 105 at [63] per French J; Bharatiya v Antonio [2022] FCA 428 at [16]–[18] per Colvin J.
26 As mentioned above, there is no dispute in this case that the relevant act was done in public, so that aspect need not be considered any further. Senator Hanson submits, however, that neither the requirements of s 18C(1)(a) (para (a)) nor s 18C(1)(b) (para (b)) are met. She also submits that in any event the requirements for the operation of the exemption in s 18D(c)(ii) are met.
