dealt with the proportionality analysis applicable to question 3 and was not part of the reasoning with regard to effective burden.
327 That notwithstanding, the reasoning of Kirby J was referenced by Basten JA in Sunol v Collier (No 2) [2012] NSWCA 44; 260 FLR 414 at [86] on the question of effective burden where his Honour explained that "[c]onduct by which one faction monopolises a debate or, by rowdy behaviour, prevents the other faction being heard, burdens political discourse as effectively as a statutory prohibition on speaking. A law which prohibits such conduct may constrain the behaviour of the first faction, but not effectively burden political discourse; on the contrary, it may promote such discourse." His Honour concluded that the provision in question (s 49ZT of the Anti-Discrimination Act 1977 (NSW)) did not impose an effective burden on the implied freedom. However, Bathurst CJ (at [42]–[45]) and Allsop P (at [68]) held that it did.
328 The point is that a law can both burden the implied freedom and ultimately serve to enhance the freedom of political communication; such enhancement being relevant to the question whether the legislation is reasonably appropriate and adapted to serve a legitimate end. So the points that are made on behalf of Senator Faruqi about how making racist speech unlawful can serve to promote free political communication are well made, but they are misplaced – their proper place is in the justification inquiry to come and not in the threshold inquiry in relation to effective burden. Senator Faruqi also refers to Catch the Fire Ministries Inc v Islamic Council of Victoria [2006] VSCA 284; 15 VR 207 at [34] per Nettle JA (and see also [113] per Nettle JA and [208] per Neave JA), but that does not alter the analysis.
329 As identified by the Attorney-General, the class of communications rendered unlawful by s 18C and not exempted by s 18D is very small because such communications must satisfy all of the following criteria:
- (1) the communication must have been in public;
- (2) the communication must have been reasonably likely to offend, insult, humiliate or intimidate another person or group (to the requisite degree of seriousness);
- (3) the communication must have been made because of the race, colour or national or ethnic origin of that person or group;
- (4) the communication must not have been made reasonably and in good faith in the performance, exhibition or distribution of an artistic work;
