purposes": Bropho at [96]. Conduct lacks subjective good faith if, for example, the respondent sought "consciously to further an ulterior purpose of racial vilification", "dishonesty or the knowing pursuit of an improper purpose": Bropho at [96], [101]. Objective good faith requires "a conscientious approach to the task of honouring the values asserted by the Act … assessed objectively": Bropho at [96], [101]-[102]. For example, taking a "conscientious approach to advancing the exercise of that freedom in a way that is designed to minimise the offence or insult, humiliation or intimidation suffered by people affected by it" may be objectively in good faith, whereas acting "carelessly disregarding or wilfully blind to its effect upon people who will be hurt by it or in such a way as to enhance that hurt" may lack objective good faith: Bropho at [102].
297 It is formally submitted on behalf of Senator Hanson that the concept of good faith is directed to subjective considerations, focussing on the honesty of the views expressed. It is submitted that that is because the terms of s 18C are unconstrained as to the circumstances of publication, other than that they be "otherwise than in private." However, it is accepted on behalf of Senator Hanson that Toben v Jones, insofar as the judgments of Kiefel and Allsop JJ are concerned, is against that submission.
298 Senator Hanson relies on the judgment of Carr J, in particular (at [44]) where his Honour said:
In the context of knowing that Australian Jewish people would be offended by the challenge which the appellant sought to make, a reasonable person acting in good faith would have made every effort to express the challenge and his views with as much restraint as was consistent with the communication of those views.
299 The "challenge which the appellant sought to make" referred to in that paragraph is the challenge posed to those who support a conventional view of the Holocaust (ie that Nazi Germany systematically killed six million Jews) to provide further evidence in support of it (at [40]). There is nothing in his Honour's quoted statement to support the submission that the requirement of good faith is only subjective. In any event, I am bound to reject the submission and apply the characterisation of good faith adopted in the judgments of Kiefel and Allsop JJ.
300 The "fair comment" exemption in s 18D(c)(ii) on which Senator Hanson specifically relies upon applies to comments, not statements of fact: Eatock v Bolt at [355]. To be "fair" the comment must be "based upon true facts": Creek v Cairns Post at [32]; Eatock v Bolt at [354]. Those facts must be "expressly stated, referred to or notorious", and can be implicit: Eatock v Bolt at [355]. The view expressed must also be genuinely held. That will not be so if the
