Anti-Discrimination Decisions

[2009] TASADT 02

Catchwords:

Equal opportunity - Inciting hatred on the ground of sexual orientation - Whether a pamphlet distributed in an election campaign referring to same sex marriage as "socially destructive change" amounts to inciting hatred - Characterisation of the audience - Whether the test is the ordinary person or the ordinary and reasonable person: Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc & Another (2006) 15 VR 186 - Anti-Discrimination Act 1998 (Tas) ss3, 19, 55

Representation:

Reasons For Decision

1. In the lead up to the Tasmanian State Election held on 18 March 2006 the Liberal Party of Australia (Tasmanian Division) distributed 109,056 copies of a pamphlet to households in Tasmania. Ms Martine Delaney claims that the pamphlet breaches the Anti-Discrimination Act 1998 (Tas) and incites hatred towards people who are in same sex relationships and therefore, on the ground of sexual orientation. The Complainant relies on the wording, content and layout of the pamphlet with particular reliance on the statement that the Greens stand for "socially destructive change" referring to "Full access to marriage laws for same sex couples in Tasmania". A black and white copy of the pamphlet, smaller in size than the A4 original, is annexed to this decision.

2. The Complainant lodged a complaint with the Anti-Discrimination Commissioner on 13 March 2006 and after investigation and consideration by the Commissioner (and the determination by the Tribunal of two applications reviewing decisions of the Commissioner) it reached the Tribunal for Inquiry on 27 February 2008.

3. At the Inquiry the factual basis for the Complainant’s case was an agreed statement of facts and the Liberal Party case also relied on that agreed statement of facts as well as the evidence of Mr Damien Mantach, State Director of the Liberal Party, Tasmanian Division in 1996 and the person who authorised the pamphlet.

The issues arising from section 19 and section 55

4. The issues in the case spring from the relevant parts of the Act and in particular, s19 and s55 of the Act. Section 19 sets out the elements of inciting hatred and the essential matters that a complainant must prove. Section 55 is relied on by the Liberal Party as providing a defence if s19 is found to be breached so that if the particular conduct is covered by s55 it is not unlawful.

5. The terms of s19 are as follows:

"A person, by a public act, must not incite hatred towards, serious contempt for, or severe ridicule of, a person or a group of persons on the ground of -

(a) the race of the person or any member of the group; or
(b) any disability of the person or any member of the group; or
(c) the sexual orientation or lawful sexual activity of the person or any member of the group; or
(d) the religious belief or affiliation or religious activity of the person or any member of the group."

6. It is an agreed fact that the Liberal Party (Tasmanian Division) is a ‘person’ and that the conduct of distributing copies of the pamphlet amounts to a public act for the purpose of s19.

7. It is alleged that the pamphlet incited hatred towards individuals or a group of people on the grounds set out in subsection (c) of s19 namely, sexual orientation or lawful sexual activity. The complaint alleges a nexus with the ground of sexual orientation. ‘Sexual orientation’ is defined in s3 of the Act as follows:

"sexual orientation means -

(a) heterosexuality; or
(b) homosexuality; or
(c) bisexuality; or
(d) transsexuality"

8. The Tribunal readily concludes that a nexus between the conduct of the Liberal Party in distributing the pamphlet and the ground of sexual orientation is established in this case. The reference to same sex couples in the pamphlet is a clear reference to the ground of sexual orientation.

9. In considering s19, the outstanding issue for determination by the Tribunal is whether the pamphlet incited hatred towards people in same sex relationships.

10. The applicable parts of s55 are as follows:

"The provisions of section 19 do not apply if the person’s conduct is -

(c) a public act done in good faith for -

…

(ii) any purpose in the public interest".

11. The issues arising from s55 are whether the distribution of the pamphlet was done in good faith and for a purpose in the public interest. Matters raised in this context involve the implied constitutional immunity of freedom of speech and that the pamphlet was distributed for the purpose of informing the electorate about the policies of the Liberal Party and the public interest that the community has in receiving such information.

12. The issues under s55 only arise for consideration if the first issue is proved by the complainant and the dissemination of the pamphlet amounts to inciting hatred.

The factual and legal questions that need to be decided relating to s19

13. The Tribunal will focus first on the application of s19. There are legal issues for the Tribunal to consider relating to the approach that the Tribunal should take in determining whether the conduct has the effect of ‘inciting hatred’. While to a large extent, the legal principles governing determination of this matter are well-established, there remain three issues for the Tribunal to decide. Two issues arise from the Victorian decision of Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc & Another (2006) 15 VR 186 and concern the characterisation of the audience and the factors that may be taken into account in assessing the social and historical context. The third legal issue is whether the reasons for the conduct is relevant.

14. There are also factual issues for the Tribunal to consider relating to the correct interpretation of the brochure and the meaning to be given to the words used and also identifying the social and historical context of the brochure. Once these issues have been determined the issue of whether the emotion that is incited by the pamphlet amounts to hatred can be decided.

The approach to be taken by the Tribunal in determining whether the conduct incites hatred

15. As already noted, there are well-established legal principles assisting the Tribunal in the assessment of whether conduct incites hatred. These principles were considered by the Tribunal in Delaney, Martine (review of rejection decision delivered 10 January 2007 para 23) and Brinkley v Davies Bros Ltd (delivered 4 September 2008 para 207) and are recited here:

"(i) The word "incite" should be given its ordinary and plain meaning, namely, to urge, spur on, stir up, animate, stimulate or prompt to action.

(ii) It is not necessary to prove that there was an intention to "incite" or that people were actually incited to hatred, serious contempt or severe ridicule. Rather the test is whether the public act was capable of inciting others to feel hatred or serious contempt or severe ridicule. Merely engaging in conduct that conveys hatred or expresses serious contempt or severe ridicule is not unlawful.

(iii) The words "hatred", "contempt" and "ridicule" are to be given their ordinary meaning noting that the latter two are qualified by the adjectives "serious" and "severe" respectively. Thus the public act must be capable of inciting intense dislike or hostility towards a person or group of persons or grave scorn for a person or extreme derision of a person or group of persons. The conduct must be capable of arousing reactions at the extreme end of the scale.

(iv) The aspect of the conduct complained of must be assessed within the context of the entire statement or publication.

…

(vi) It must be established that the offending public act must incite hatred towards, serious contempt for or severe ridicule of a person or a group of persons on the ground of one of the attributes listed in sub-paragraphs (a) - (d) of s19 of the Act. The phrase "on the ground of" means a "significant factor", "a substantially contributing factor" and "a causally operative effect" or "an operative ground". There must be a causal connection between the attribute and the feelings of hatred, serious contempt or severe ridicule that are incited by the public act."

(para 209 Brinkley v Davies Bros Ltd (4 September 2008)

In the case of Burns v Laws (No 2) (2007) NSWADT 47 there was some refinement of the principle set out at paragraph (ii) above. The Administrative Decisions Tribunal framed the issue as whether the relevant "public act" had the "effect" of inciting, in the sense of urging or prompting, a hypothetical "ordinary reasonable person" to experience one or more of the relevant reactions towards one or more homosexual people, on the ground of their homosexuality (para 111). (see para 210 Brinkley v Davies Bros Ltd).

16. The approach of focussing on the "effect" of the conduct was considered and developed in the case of Catch the Fire Ministries Inc. The Victorian Court of Appeal took the approach of questioning whether having regard to the content of the statements and the nature of the audience, the natural and ordinary effect of what was stated was to incite hatred or other relevant emotion in the circumstances of the case (Nettle J.A. para 19, 30, and Neave J.A. at para 158). The Court emphasised that the section was concerned with the effect of the words on those exposed to the behaviour or the class to which it was directed (Neave J.A. para 157). The circumstances of the case include the characteristics of the audience to which the words or conduct was directed and the social and historical context in which the conduct occurred (Neave J.A. 159).

17. In this regard the Court of Appeal’s approach is consistent with previous authority and it is common ground that the approach set out by the Victorian Appeal Court is correct.

18. In determining whether the public act is capable of inciting others to feel hatred, legal questions arise as to the characterisation of the audience and factors that can be taken into account as part of the social and historical context.

Whether the Tribunal ought to follow Catch the Fire Ministries Inc. as to characterisation of the audience and the social and historical context

19. The approach adopted by the cases until recently is that the impact of the conduct is to be ascertained from the perspective of the ordinary, reasonable member of the community. The courts have drawn the reasonableness test from defamation cases. The New South Wales Administrative Decisions Tribunal Appeal Panel in John Fairfax Publications Pty Ltd v Kazak (EOD) (2002) NSWADTAP 35 adopted an objective test of the "ordinary reasonable reader" derived from the defamation case of Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.

20. The New South Wales decision of Kazak applied the ordinary reasonable reader test as follows:

"16 Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race? The question is not, could the ordinary reasonable reader reach such a conclusion only after his/her own beliefs have been brought into play by the public act?"

21. The Appeal Panel noted the test derived from defamation law as "the ordinary reasonable reader of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person’s general knowledge" para 14 of Kazak.

22. The decision of Kazak makes it clear that a reader’s beliefs tending to dispose him or her to incitement towards historically oppressed minority groups should be ignored (para 19). However, the Tribunal may take into account the social and historical context in the limited sense of an awareness of public debate and the existence of divergent views (para 20).

23. The characterisation of the audience as the "ordinary reasonable reader or listener" was endorsed in Veloskey v Karagiannakis (2002) NSWADTAP 18 para’s 26–28. The Appeal Panel in that case noted that the social and historical context of a public act may be relevant to the limited extent that they are part of the ordinary reasonable reader’s knowledge and experience of human affairs. Beliefs that predispose a person to incitement must be ignored as stated in Kazak (para 34 of Veloskey).

24. In the case of Burns v Radio 2UE Sydney Pty Ltd and Ors (2004) NSWADT 267 the test adopted by the Tribunal endorsed the test of the ordinary reasonable person and hypothesised as to the likely effect of the comments on the ordinary, reasonable listener (para 14); whether the "ordinary reasonable listener, drawing on their own knowledge and experience of worldly affairs, could have understood from the broadcast that they were being incited to hatred towards, serious contempt for, or severe ridicule of homosexual men".

25. Departing from the well settled test of the ordinary, reasonable member of the audience is the approach of the Victorian Court of Appeal in Catch the Fire Ministries Inc. in which the Court of Appeal preferred a test of an ‘ordinary’ member of the audience to which the words or conduct were directed (para 160 of Neave J.A., Ashley J.A. para 132 and the post script to the judgment of Nettle J.A. at para 115). It was held that the appropriate measure is the perspective of the ordinary or reasonable listener or reader.

26. The judgment of Neave J.A. provided reasons for this approach indicating that the concept of "a reasonable member of the class" may be inappropriate in certain circumstances involving the context of racial or religious vilification where the audience involves a group such as neo-Nazis and in which case it would be "both absurd and offensive to consider the effect of those words on a "reasonable" neo-Nazi" (para 158). Thus Neave J.A. went on to say:

"For that reason it may be more appropriate to consider the effect of the words or conduct on an "ordinary" member of the class to which it is directed, taking into account of the circumstances in which the conduct occurs" (para 158).

27. The judgment of Neave J.A. applied the test of "whether the natural or ordinary effect of the conduct is to incite hatred or other relevant emotion in the circumstances of the case" noting that the circumstances include the characteristics of the audience and the historical and social context in which the words are spoken or the conduct occurs (para 158 and 159).

28. The judgment of Neave J.A. noted that changes in social context alter the effect of words directed against members of a particular racial or religious group comparing the hypothetical situation in Australia when at war with a country from which members of that group originally came and a peace-time situation.

29. This case also departs from the approach of previous cases which was that the effect of words uttered on those who hold unreasonable beliefs should be ignored. Indeed the previous approach is that if beliefs of the audience regarding historically oppressed minority groups predisposed the audience to feelings of hatred then that cannot be taken into account (Veloskey para 19). Furthermore, the social and historical context is only relevant as part of the ordinary reasonable reader’s knowledge and experience of human affairs (Veloskey para 21).

30. The submissions made on behalf of the Liberal Party did not urge the Tribunal to reject this approach. Indeed, the submissions made by Mr O’Farrell accepted that the approach of Neave J.A. is correct. Nonetheless, the Tribunal must still decide whether to follow this approach. The approach of Neave J.A. is not binding on the Tribunal and it would be open to the Tribunal to prefer the approach taken in the earlier cases.

31. It is noted that the legislation considered by the Victorian Court of Appeal is similar to the legislation considered by the Tribunal in this case. The Tribunal found the reasoning given for the approach to the characterisation of the audience and the relevant factors regarding the social and historical context to be compelling.

32. In the Tribunal’s respectful view the approach taken by Neave J.A. in the case of Catch the Fire Ministries Inc. is correct and further, it is apposite in the context of allegations of sexual orientation or lawful sexual activity based discrimination. The ‘ordinary’ member of the audience is the correct focus and the Tribunal may take into account the social and historical context as a factor shaping the beliefs and attitudes of the audience. The Tribunal will elaborate further on these conclusions.

33. As noted by Neave J.A. the test of the ‘ordinary’ member of the audience as opposed to the ‘reasonable’ member allows the legislation to capture the scenario of an audience drawn together by their extreme views and with bigoted attitudes towards a particular minority group.

34. There is another reason why this approach should be preferred. It acknowledges that ordinary people are not immune from biases, stereotypical views and false assumptions regarding individuals from different backgrounds. While these ordinary attitudes and views may well be at the low end of the spectrum not approaching dislike towards a particular minority group let alone hatred they can nonetheless predispose people to be swayed by prejudicial views expressed by others. The fact that no-one is immune from some degree of sub-conscious prejudice and bias has been the subject of a lot of attention in the context of judicial education noting that even fair and tolerant people hold sub-conscious biases, and false assumptions about some individuals to some extent and these biases and assumptions can colour the way people and their conduct is viewed. Judicial education has emphasised that once these biases and stereotypical views are drawn to our attention we can then be vigilant about those biases and set about countering those attitudes (see for example, Equality before the Law Benchbook Judicial Commission of New South Wales 2006). The approach taken by Neave J.A. acknowledges the ordinary biases of the ordinary member of the audience. By contrast, the ‘reasonable’ member test creates a tension with the concept that members of the audience would be biased or prejudiced in any way.

35. In viewing the conduct in the social and historical context in which it occurred, the Catch the Fire Ministries case permits the Tribunal to take into account changes in societal attitudes and changes in the tolerance and acceptance that society has for minority groups. This means that, in circumstances of conduct directed towards homosexuals and other minority groups, the Tribunal can take into account relevant developments and changes in society. For example, the circumstances might be at a time when there was legislation criminalising sexual practices between homosexuals or to take another example, the time at the beginning of the AIDS epidemic when public fear and misconception about the epidemic prevailed. Such circumstances affect the tolerance that society has for minority groups and must affect the natural and ordinary effect of inflammatory conduct. The Tribunal considers that such circumstances should be taken into account in assessing whether the effect of such conduct is to incite hatred.

36. It was submitted on behalf of the Liberal Party that in considering the ordinary person, the Tribunal was required to ascertain the attributes of an ordinary person in the electorate such as level of intelligence, attributing an ordinary level of common sense, judgment and degree of knowledge about relevant issues and then having ascertained the qualities of an ordinary elector the question may then be posed how would such a person react to the pamphlet.

37. The Tribunal adopts the approach taken in Catch the Fire Ministries Inc. where rather than focus on defining the attributes of an ordinary person and assessing how such a notional person may react, the focus is on the expected responses of ordinary members of the audience. As submitted by Mr Tree SC this approach acknowledges a range of reactions and responses as ordinary.

Whether the reasons for the conduct is relevant

38. A legal question arose as to what extent the reasons or justification for the conduct is relevant to the enquiry of the likely response of the audience. The Tribunal notes as a point of clarification that s19 refers to the ground on which the audience was incited to hatred or other relevant emotion and not the ground actuating the alleged inciter: Catch the Fires Ministries Inc. para’s 30, 160-162. The Tribunal considers some factual circumstances are relevant to the enquiry. The context for the conduct, the medium of the message and matters such as the standing of the speaker or writer or others endorsing the message are relevant as matters that are conveyed to the audience and capable of affecting the impact of the words spoken or written.

39. However a speaker or writer’s private reasons for the conduct or words uttered are not part of the enquiry in relation to s19. It may be noted that such reasons would arise for consideration in relation to s55 of the Act. Adopting this distinction, the fact that the words were written in a brochure promoting an election campaign by a conservative political party is to be taken into account as information conveyed to the audience.

Facts to be taken into account as social and historical context

40. Having adopted the approach taken by Neave J.A. in Catch the Fire Ministries Inc., the Tribunal considers that there are various factors that should be taken into account as social and historical context. These factors are the legal status quo in relation to marriage, the recent history of reform of the law in relation to same sex couples and the extensive changes to legislation supporting same sex couples passed by the Tasmanian Parliament and that there is a diversity of views within society and expressed by politicians about whether reform should extend to permitting same sex couples to marry. The social and historical context includes the obvious fact that homosexuals and same sex couples experience higher rates of social inequity, discrimination and disadvantage than heterosexuals. While the Tribunal did not receive evidence about incidence of homophobia and bigotry in our community, a general consideration that can be taken into account is that homosexuals do experience discrimination and intolerance due to their sexual orientation. This is all part of the broad social context that should be considered.

The concerns about the pamphlet

41. The submission made by Mr Tree S.C. is that the content of the pamphlet uses extreme language targeting same sex couples and the layout and design all underscore the message that permitting same sex couples to marry is socially destructive and harmful to our society. It is submitted that the pamphlet harnesses dislike for same sex couples and that it is capable of inciting hatred. In particular, Mr Tree draws attention to the following:

• The danger sign on page 1 and 3
• The use of the word ‘risk’ on page 2 and the foot of page 3 and page 4
• The heading "socially destructive change" and the reference to same sex couples on page 3 and the reference to "socially destructive changes" on page 1
• The colour scheme used of red, black and white reinforcing the message of danger and harm
• The design and style of the pamphlet with prominence given to the words "danger" and "socially destructive change"
• The only social groups criticised for the purpose of garnering political support are same sex couples, recreational drug users and the unemployed not actively seeking work

The Tribunal’s assessment of the pamphlet

42. The pamphlet will be read by the audience as a political document seeking to influence voters and promote the cause of the Liberal Party by undermining the Greens’ policies. Overstatement and hyperbole is a typical feature of election campaigning by all political parties particularly, when reference is made to the consequences of policies held by competing political parties.

43. The phrase "socially destructive change" has a ring of overstatement about it. It is unlikely that when the document is read in its entirety this phrase would be taken literally as change capable of ‘destroying’ society. It conveys the notion of change that is potentially destructive or damaging to our society rather than capable of destroying our society. The phrase refers to five policies. Alongside the reference to same sex marriage laws is reduction of car parking spaces. The meaning of the phrase is coloured by the context and it is apparent from the context that the change is at worst damaging to the interests of our society rather than destructive in a large scale sense. Once the list under the phrase "socially destructive change" is read through, the list appears to be a grab bag of policies that the proponents maintain is detrimental change or at worst change that is potentially damaging to our society.

44. There was debate in this case about who was under attack whether it was the Greens or same sex couples. Certainly, an attack on the Greens is the major theme of the pamphlet. However, the reference to the Greens policy in relation to same sex marriage carries a clear and unequivocally negative message about change permitting same sex marriage.

45. To note some obvious points, the pamphlet does not go so far as to state that same sex relationships are socially destructive. Rather it is clear that it is permitting homosexuals to marry that is characterised as socially destructive. Further, it is noted that the policy itself is not articulated in mocking or derogatory language. The pamphlet reiterates the Greens policy in neutral language and then labels it as "socially destructive change".

46. Reform of the law permitting same sex couples to marry would amount to a fundamental and significant change to our society whether it is seen as negative change or positive change for individuals affected and our society. A traditional social institution, marriage is steeped in law and religion. Change to this institution permitting same sex couples to marry would have significant legal, religious and historical significance. To describe this change as contentious is an understatement. There is a substantial divide between the protagonists in this debate. Opponents of change see it as axiomatic that marriage involves a man and woman and to include same sex couples alters the fundamental notion of marriage. Proponents of change see the extension of marriage laws to same sex couples as equal treatment and as legal acknowledgment of their relationship by a fair and tolerant society. As noted in submissions on behalf of the Liberal Party, the political debate regarding this issue turns on law reform and both the Liberal Party and Labor Party opposed reform. It is a topic that attracts heated debate and it is of interest and concern to a broad cross section of the community.

47. Understandably the proponents of change and people affected by the policy would be offended and disturbed by the reference to reform as ‘socially destructive change’. This is especially so when the statement is made in a vacuum without some explanation of the reasons for regarding same sex marriage as destructive. The statement tends to suggest an opposition to same sex relationships. Such a suggestion is at odds with Liberal Party policy on same sex relationships (see the statement of Mr Mantach R1). For this reason the statement made in a political campaign seems opportunistic in that it appeals to people who hold homophobic or bigoted views about homosexuals. For many people including the Complainant the brochure must seem divisive and it would understandably contribute to a sense of marginalisation. While making this observation, the Tribunal accepts Mr Mantach’s evidence (pp44-45, p49 transcript) that the Liberal Party did not intend to appeal to people who hold bigoted views and did not intend to contribute to any disadvantage experienced by homosexuals.

48. Returning to the question at hand which is how the pamphlet would be read by the intended audience, the following observations are made. First, the audience was very large: 109,056 copies of the pamphlet were distributed to households when 341,481 people were enrolled to vote.

49. It must be emphasised that the whole pamphlet must be read and the words relied on must be considered in the context of the whole document: Catch the Fire Ministries Inc. para 117.

50. The style of the pamphlet is attention-grabbing and alarmist. It is aggressive marketing of Liberal Party policy. The style of the pamphlet is obviously more dramatic than it needs to be in order to highlight the policy issue at stake (see by comparison another pamphlet (C3) prepared by the Liberal Party for the same election). As a pamphlet highlighting the policies of a conservative and mainstream political party it speaks with a voice of authority and it would have had sway and influence.

51. Mr Tree S.C. submitted that the pamphlet treats same sex couples and two other social groups, recreational drug users and the unemployed not seeking work, negatively and a negative message reflects on same sex couples because dislike attaching to the two other social groups attaches to same sex couples. While it may be expected that there may be a lack of sympathy for the other groups and policies that benefit them, a reading of the pamphlet does not indicate that there is a linking of these groups by the reader or that any negativity felt for other social groups reflects on same sex couples.

52. The words "danger" and "risk" are obviously alarmist terms. The colour scheme and the danger logo or sign contribute to the theme of concern and danger. It is noted that the words ‘danger" and "risk" attach to all the policies referred to in the pamphlet being 19 separate and diverse policies. Because of this, the impact of these words in the context of one of these 19 policies, same sex marriage, is rather diluted.

53. It is the Tribunal’s assessment that the alarmist style of the pamphlet, the theme of danger and concern and the language employed in the pamphlet combine to support or underscore the negative reference to same sex marriage as socially destructive change.

Does the pamphlet harness hatred?

54. The meaning of the reference in the pamphlet to same sex marriage and "socially destructive change" is that the policy of permitting same sex couples to marry represents a drastic change to our society and that such change is potentially damaging to our society. It is one of a list of such changes - some trivial some more significant. Read in the context of the whole brochure it carries a suggestion of opposition to same sex relationships. However, this is not expressly stated and, as observed by the Tribunal, it was not intended by the Liberal Party to convey such opposition.

55. While the pamphlet may harness or draw out a dislike for homosexuals in some quarters of our society, they would be people prone to such feelings. The pamphlet may trigger such a response in people holding homophobic views and attitudes. The Tribunal does not consider that that would be the response of an ordinary member of the electorate reading this pamphlet.

56. The natural and ordinary effect of the pamphlet is not to incite feelings at the extreme end of the spectrum. Feelings of hatred towards homosexuals or people in same sex relationships are not a natural, ordinary response to this pamphlet.

57. Having determined that s19 does not apply to this conduct there is no need to consider s55. It might be thought useful, in the event of an appeal, for the Tribunal to proceed to consider the application of s55 in this case. However, s55 operates as an exception to a contravention of the Act and the considerations that apply to s55 presuppose that there has been a breach of s19. The question that arises under s55 is whether the conduct inciting hatred, or severe ridicule or serious contempt, was an act done in good faith for any purpose in the public interest. The balancing act involved in a consideration of s55 cannot sensibly be considered when there is no finding of a breach of s19.

Order

58. The Tribunal is not satisfied that the Liberal Party (Tasmanian Division) has breached s19 of the Act and accordingly, finds that the complaint is unsubstantiated. The complaint is dismissed pursuant to s99(1) of the Act.

ANNEXURE

The pamphlet is a tri-fold brochure and the front page is as follows:

When the brochure is opened the content and layout presents as follows:

The brochure then opens out to an A4 sheet as follows:

When the brochure is refolded, as designed, the back page of the brochure then reads: