15 All three Justices agreed on the following two propositions which are uncontroversial: (1) Incite means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement. (2) It is not necessary for a contravention that a person actually be incited. The test is an objective one. 16 At [30] Bathurst CJ (with whom Basten JA agreed) was also prepared to proceed on the basis that it is not necessary to establish an intention to incite. That issue was not finally determined. Ordinary or reasonable member of audience? 17 At [41] Bathurst CJ provided the following summary of the principle when determining whether the public act incites the relevant emotion: It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must be capable of inciting such emotions in an ordinary member of the class to whom it is directed. 18 At [34] Bathurst CJ explained his preference for the term "ordinary member" of the class, rather than an "ordinary reasonable" member or simply a "reasonable member": [T]o determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation. 19 This sentence generated further judicial comment both by Allsop P, another member of the Court in Sunol v Collier (No 2), and by Ward JA in Jones v Trad [2013] NSWCA 389. 20 Allsop P agreed with Bathurst CJ in relation to the construction of s 49ZT(1) but made the following observations about the relevant audience at [61]: The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider. 21 As Allsop P was in the minority on this point, the views of Bathurst CJ and Basten JA prevail.