needs to be assessed on its terms. Unmeritorious cases will fail. There is no evidence to support the suggestion that Pt IIA has the effect of curtailing communications that are not proscribed simply because of the fear of an unmeritorious complaint–the relatively few cases over the years, most of which have been successful, suggest the opposite. If the argument was good, it would be good even for a far more narrowly tailored proscription which would otherwise easily pass constitutional muster.
336 Also, before complaints can get to a court they have to go through the processes set out in Pt IIB Div 1 of the AHRC Act in which at least some unmeritorious cases are likely to be weeded out. The effect of ss 46PH and 46PO(3A) is that only certain claims, being those identified by the President of the Commission as involving an issue of public importance that should be considered by a court (s 46PH(1)(h)) or in respect of which there is no reasonable prospect of settlement by conciliation (s 46PH(1B)(b)), that will not require the leave of the court in order for the complaint to be pursued in court.
337 Lastly, in the case of criminal provisions, if a prosecutor declines to prosecute, then a private prosecution can be pursued, so the comparison with criminal provisions in inapt.
338 In short, Pt IIA effectively burdens political speech within the confines of the appropriate analysis, but only slightly.
Question 2: is the purpose of Pt IIA of the RDA legitimate?
339 The purpose of the impugned provisions is the "mischief" to which they are directed: Brown at [101], [208]–[209], [321]. Identified at the appropriate level of generality, "the purpose is that which the law is designed to achieve in fact": NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 97 ALJR 1005 at [40]. It is discerned through ordinary processes of statutory construction, having regard to text, context and, if relevant, historical background.
340 That purpose must be compatible with the system of representative and responsible government, in the sense that it "does not impede the functioning of that system and all that it entails": McCloy at [31]; Farm Transparency at [29].
341 Justice Hely in Jones v Scully (at [239]) held that "a 'legitimate end' of the RDA includes the fulfilment of Australia's obligations under CERD'. Stated more broadly, the legitimate end sought to be obtained by the RDA is the elimination of racial discrimination."
