342 The Attorney-General submits that the purpose of Pt IIA is to deter and eliminate, and thus protect members of the public from, racial hatred and discrimination. That purpose is readily discernible from the history of the inclusion of Pt IIA in the RDA canvassed at the outset (at [15]–[20] above), and it is supported by discussions of that history and legislative purpose in Toben v Jones at [19] and [136], Bropho at [70] and Kaplan at [105].
343 The purpose is identified slightly differently on behalf of Senator Faruqi, namely to vindicate the legitimate claims of persons bearing the attributes protected by Pt IIA to live with dignity, free from unwanted or offensive communication and to promote equality of opportunity of such persons to participate in public life. It is submitted on behalf of Senator Hanson that that purpose is stated too broadly, Senator Hanson's "primary position" on the purpose being that it is "the prevention of public conduct causing offence based on a person's race, colour or national or ethnic origin, or more shortly, the prevention of racially offensive conduct."
344 The purpose as stated on behalf of Senator Faruqi identifies it at too high a level of generality, and is therefore too broadly stated. The purpose as stated on behalf of Senator Hanson is identified at too low a level of generality and makes the error of limiting the purpose to the meaning of the words of the relevant provisions: Unions NSW v New South Wales (Unions No 2) [2019] HCA 1; 264 CLR 595 at [171]; Brown at [208].
345 I am persuaded that the Attorney-General's identified statutory purpose is at the appropriate level of generality. It is also consistent with the purpose as identified in Jones v Scully. I adopt it.
346 I do not understand there to be any serious dispute that that purpose is 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. It is obviously compatible. That is what was held to be the case in Jones v Scully.
Question 3: is Pt IIA reasonably appropriate and adapted to advance that legitimate object?
347 On this question, the reasoning in Jones v Scully was the following (at [240]):
[B]earing in mind the exemptions available under s 18D, Pt IIA of the RDA is reasonably appropriate and adapted to serve the legitimate end of eliminating racial discrimination. Section 18D, by its terms, does not render unlawful anything that is said or done "reasonably and in good faith" providing that it falls within the criteria set out in pars (a)–(c). I consider that those exemptions provide an appropriate balance between the legitimate end of eliminating racial discrimination and the requirement of
