22 In November 2013, the Court of Appeal considered the meaning of the word "incite" in relation to s 20C(1), the relevantly identical racial vilification provision: Jones v Trad [2013] NSWCA 389. The appeal related to comments and quotes the broadcaster Alan Jones had made on radio station 2GB in relation to a group of Lebanese men. Ward JA, with whom Emmett JA and Gleeson JA agreed on this point, did not consider that anything turned on the distinction between the "ordinary" member of the audience and the "ordinary reasonable" member of the audience in the circumstances of that case. Rather, Ward JA considered at [53] that the "nub of the dispute in the present case goes to the identification, or more precisely the contended absence thereof, of the relevant audience to which the . . . broadcast was directed." 23 In Jones v Trad supra at [77], there was evidence as to the likely demographic composition of Alan Jones' audience at the time of the relevant broadcast. Ward JA concluded at [61] to [63] that the Tribunal at first instance had erred in law by firstly, failing to make a finding identifying the audience in relation to which the likely effect of the public act could be assessed and secondly, by failing to consider whether the broadcast would reach the mind of an ordinary (or ordinary reasonable) member of that audience as something which would encourage the requisite emotion. Her Honour quoted Bathurst CJ's view in Sunol v Collier (No 2) that the decision maker should consider the particular class to whom the speech or other public act is directed. Her Honour also relied on the following passage from Nettle JA's judgment in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284 at [16]. In that case the Supreme Court of Victoria was interpreting s 8 of the Racial and Religious Tolerance Act 2001 (Vic), which also prohibits certain conduct which "incites hatred against" a person or group of people: If conduct is to incite a reaction, it must reach the mind of the audience. And if conduct is to be perceived as inciting a particular reaction, it must reach the mind of an audience as something which encourages that reaction. So, for conduct to incite hatred or other relevant emotion it must reach the mind of an audience as something which encourages those emotions. So, therefore, the question of whether it has that effect will depend upon the perception of the audience. Capacity or effect? 24 Another issue which arises when interpreting vilification provisions is whether the focus should be on the capacity of the public act to incite the relevant emotion or the objective effect of the public act on the audience. In the Tribunal's 2012 decision (Burns v Sunol [2012] NSWADT 246) at [15] the Tribunal quoted passages from Burns v Laws (No 2) [2007] NSWADT 47. In that case the Tribunal suggested that the appropriate test was whether the public act would have had the "effect" of inciting a person to experience one of the relevant reactions. The Tribunal went on to make the point that if terms such as "capacity" or "tendency" are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or