Civil and Administrative Tribunal New South Wales
- Medium Neutral Citation:
- Burns v Smith  NSWCATAD 56
- Hearing dates:
- 30 January 2019
- Date of orders:
- 11 April 2019
- Decision date:
- 11 April 2019
- Administrative and Equal Opportunity Division
- M Tibbey Senior Legal Member
F Given, Community Member
1. The complaint alleging unlawful vilification is substantiated.
2. The Respondent is ordered to pay the sum of $10,000 to the Applicant within 28 days of the date of this decision.
- HUMAN RIGHTS – homosexual vilification – meaning of “public act” – whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual person.
- Legislation Cited:
- Anti-Discrimination Act 1977 (NSW)
- Cases Cited:
- Alexander v Home Office  1 WLR 968
Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns  HCA 15
Burns v Dye  NSWADT 32
Burns v Laws (No 2)  NSWADT 47
Burns v Radio 2UE Sydney Pty Ltd (No 2)  NSWADT 24
Burns v Sunol  NSWADT 246
Burns v Sunol  NSWCATAD 10
Carter v Brown  NSWADT 109
Cohen v Hargous  NSWADT 275
Collier v Sunol  NSWADT 261
Eatock v Bolt (No 2)  FCA 1180
Jones v Trad  NSWCA 389
Kazak v John Fairfax Publications Ltd  NSWADT 77; Western Aboriginal Legal Service Ltd v Jones 
Margan v Manias  NSWCA 288
Margan v Taufaao  NSWCATAD 216
Nicholls and Nicholls v Director General, Dept of Education and Training [No 2]  NSWADTAP 20
R v D & E Marinkovic  EOC 92
Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers  NSWADT 32
Sunol v Collier and Anor (No 2)  NSWCA 44
Western Aboriginal Legal Service v Jones  NSWADT 102
- Principal judgment
- Garry Burns (Applicant)
Blair Smith (Respondent)
- Applicant: Self Represented
Respondent: No appearance
- File Number(s):
- Publication restriction:
REASONS FOR DECISION
- This was a Complaint made by the Applicant, Mr Garry Burns, on 5 June 2018 to the Anti-Discrimination Board of NSW (‘the Board’) alleging homosexual vilification on a Facebook page.
- The Complaint was made in relation to a comment posted by Mr Blair Smith on Mr Bernard Gaynor’s Facebook page on 19 April 2018 as follows:
“The same Garry Burns who is on the record advocating for paedophile rights, and acceptance of their practices in the rainbow world. This sick filthy piece of human filth needs to be put down, just like we do to sick animals…After all…it would be the humane thing to do.”
- The comments were followed by a smiley face.
Surrounding Context for the Facebook Post
- A series of posts on the Facebook page form part of the Report of the President of the Board, indicating the context of the post. These posts show that the comment alleged to vilify Mr Burns was made in response to a post from one “Bernard Gaynor” that included the statement about the Applicant:
“He is nothing more than a rainbow bully. And like all good bullies, he needs to be beaten. “
- The Applicant does not complain about that comment. It is followed by a number of posts by different people supporting Mr Gaynor, some of which explicitly refer to ‘Garry Burns’. It is clear from the series of posts that the Facebook conversation is about Mr Garry Burns. There is also discussion about Israel Falou. Mr Burns joins the conversation to say: “That’s correct Norman Sim Elias. Mr Falou broke no anti-discrimination law with his statement.”
- A small photograph of the face of Mr Burns appeared with that post when he the conversation.
- Several posts later is the post that is the subject of these proceedings, as set out above.
- The post that follows the allegedly vilificatory post says:
“Struth Good to see a photo of this excrement.copy it and keep it folks – you can show your kids what such a person looks like…”
Conduct allegedly following the Complaint
- Mr Burns alleges that on 20 April 2018, after the post by Mr Smith, he reported the post to the NSW Police Force.
- On 22 May 2018 Mr Burns sent a private Facebook message to Mr Smith stating that he intended to take legal action against him for defamation because:
“You published a comment on Mr Gaynor’s Facebook page that I am either a paedophile or condone or promote the criminal activity of raping children. I am not a paedophile. My little brother at age 8 was raped by a paedophile and committed suicide at age 17 when I was 19. I am seeking compensation. Your lawyers can contact me …..to offer to retract the comments.”
- He provided a telephone contact number.
- The Applicant states in his affidavit of 21 August 2018 that within about 30 minutes of his sending that message on 22 May 2018, with his telephone number, Mr Smith telephoned Mr Burns. There was a telephone conversation which Mr Burns alleged in his subsequent statement to the NSW Police Force was to the following effect:
“Mr Smith: Garry Burns?
Mr Burns: Yes
Mr Smith: It’s not defamation it’s got to be tagged.
Mr Burns: No it’s you published a comment that I either support or condone child molesting and I do not. I am taking legal action against you.
Mr Smith: You’ll get nothing from me.
Mr Burns: You cannot publish material like that about someone, it’s defamatory. I am not a paedophile at all. I have no sexual interest in children male or female.
Mr Smith: Well I’ll smash your fucking head in. I’ve spent years in jail and I don’t care.
Mr Burns: I am not a paedophile. You need to fix this up. I’ve reported this to the police.”
- The Applicant says that he then terminated the call and reported the contents of the call to the NSW police on the same day, 22 May 2018. As part of his statement to the NSW Police Service, Mr Burns states that:
“I am frightened that due to the above comments, that BLAIR will seek me out and carry out the threat to “smash my head in”. Due to the fact that BLAIR mentioned that he spent time in prison, I am fearful that he possesses the capacity and willingness to carry out his threat.”
- The Applicant states in his Affidavit that he understands that Tweed Police Command interviewed Mr Smith and told him not to contact Mr Burns against except through his lawyer.
- On or about 27 June 2018 the Respondent published three comments in relation to the Applicant. The first was:
“Yes Mr Burns is pursuing me now in the ADB…serial vexatious litigant with no case in my opinion”.
“Lol and have every lbgtqigsrfd (sic) activist knocking at your door. I have an argument that slap Mr Burns. Sooner or later he will be declared a vexatious litigant, Every mainstream gay activist organisation cant (sic) stand him. Every dog has their (sic) day.”
- The third comment was:
“Robert Smith and anyone else. What would be of assistance to me is if some people screenshot’d some of Mr Burns “vilification” against others from his Facebook Page and PM them to me. Lol..Ima (sic) blocked from his page.”
- When the Board wrote to the Respondent regarding the Complaint, on 3 July 2018 the Respondent denied that he vilified Mr Burns on the basis of his sexuality in the post alleged to constitute vilification.
- The Respondent submitted that he intended to write the name Garry Dowsett, however when he pressed the space bar, Facebook inserted Mr Burn’s name unbeknown to him at the time. By the time he became aware, Mr Gaynor had deleted the post for him.
- In his letter of 3 July 2018 to the Board, the Respondent submitted that naming Mr Burns was a mistake and conceded that nowhere on the pubic record does Mr Burns advocate for paedophiles to be accepted within the gay and lesbian community. In the letter, the Respondent apologises to the Applicant for any hurt caused as a result of his mistake.
- This matter was not resolved at conciliation before the Board. The Report of the President of the Anti-Discrimination Board indicates that the Respondent did not respond to the Applicant’s proposals to resolve the matter and the Applicant then sought that the matter be referred to the Tribunal.
- At the hearing, Mr Burns gave evidence on his own behalf for the Applicant. There was no appearance for the Respondent.
Statutory Framework: homosexual vilification
- Section 49ZT(1) of the Anti-Discrimination Act 1977 (NSW) (hereafter referred to as ‘the Act’) states as follows:
It is unlawful for a person, by a public act to incite hatred towards, serious contempt for, or severe ridicule of a person, or group of persons on the ground of the homosexuality of the person or members of the group.
- A “public act” is defined by s49ZS of the Act to include:
“Any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material.”
- Posting on Facebook is clearly a public act within the definition set out in s49ZS because it is a form of communication to the public, to anyone who cares to look at the Facebook page. Decisions in NSW over a lengthy period have consistently so held: see Collier v Sunol  NSWADT 261.
- Bathurst CJ, Presiding in the Court of Appeal in Sunol v Collier and Anor (No 2)  NSWCA 44 stated at :
“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.:
It is not necessary for a contravention that a person actually be incited.
It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons. It must be capable of inciting those reactions in an ordinary member of the class to whom it is directed.
It is not necessary to establish an intention to incite.
- See also Margan v Manias  NSWCA 288.
- Thus, the particular class to whom the act is directed, the audience or likely audience must be identified and considered: Sunol v Collier and Anor (No 2) NSWCA 44 at ; ; Jones v Trad  NSWCA 389 at , .
- In Jones v Trad  NSWCA 389 at , Ward JA (as she then was) stated, citing Burns v Laws (No 2)  NSWADT 47 at  that an objective test must be used to determine whether a public act had the capacity to incite the requisite emotion in an ordinary person in the class of persons in the audience or likely audience is an objective test.
- An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction): Jones v Trad  NSWCA 389 at .
- As stated in Burns v Sunol  NSWCATAD at  – :
“NCAT and the ADT have consistently held that the words “hatred” and “serious contempt” in the vilification provisions of the Act are to be given their ordinary meaning and have applied the following definitions:
‘hatred’ means ‘intense dislike; detestation’ (Macquarie), ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford).‘serious’ means ‘important, grave’ (Oxford); ‘weighty, important’ (Macquarie).‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).
See also Burns v Dye  NSWADT 32 at [2 3]; Kazak v John Fairfax Publications Limited [2 000] NSWADT 77 at [4 0]; Burns v Sunol [20 12] NSWADT 246 at [1 7].”
- This Tribunal accepts those definitions.
- The Tribunal finds that, on the evidence before the Tribunal, both the Applicant and Respondent resided in New South Wales at the time of the Complaint and the Tribunal therefore has jurisdiction to determine the Complaint.
Application of the Law to the Facts
Was there a public act?
- There is little available information as to the likely audience for this Facebook page. Mr Burns was able to access it and contributed to the discussion prior to the allegedly vilificatory post, as set out above. A range of other people posted their views on the Facebook page. This suggests that it was a publicly accessible Facebook page, open to contributions from anyone who had access to Facebook. Even if it were less fully available (which is unlikely, given that Mr Burns accessed it), the Facebook page was being read by a number of people.
- Thus, the Tribunal finds that that posting of the post in issue on the Facebook page is a ‘public act’ within the meaning of s49ZT(1) of the Act.
Are the words used likely to ‘incite’ hatred, serious contempt or severe ridicule?
- In this case, the words in issue are words likely to stir up, rouse, stimulate, and or urge others to action. They are words proposing an action. They suggest that: “This sick filthy piece of human filth needs to be put down, just like we do to sick animals. After all…it would be the humane thing to do”. Those words are words to encourage others to action, saying, in effect that it would be legitimate to “humanely” kill Mr Burns. Whether meant seriously or not, they contain a very serious suggestion that Mr Burns should be killed as “the humane thing to do”. This suggestion is one that dehumanises the Applicant and legitimizes possible violence against him. It incites and proposes an action. Coupled with the earlier words and description “sick filthy piece of human filth” the post is capable of suggesting that the Applicant does not deserve to live.
- In a world where hate crimes do occur, it is suggested that Mr Burns should be euthanized and that it would be a ‘humane’ action if this occurred. The words in question are words that incite hatred and serious contempt for Mr Burns amongst ordinary readers of the Facebook page.
- In the wake of the Royal Commission into Institutional Responses to Child Sexual Abuse, the Australian populace has become very much aware of the suffering that paedophilic behaviour can cause to victims/survivors. Thus, to be said to be a person who supports or condones the behaviour of paedophiles is to be reviled and hated in the community at large.
- The post following the post alleged to constitute vilification says:
“Struth. Good to see a photo of this excrement…copy it and keep it folks – you can show your kids what such a person looks like”.
- It is not necessary in a claim of vilification to show that a person has actually been incited to hatred or serious contempt, as the test is an objective one. Nevertheless, this post indicates that at least one person has been so incited, referring to the Applicant as “excrement” and suggesting that his photograph should be used to show children someone who should be feared, reviled and/or hated.
- To refer to a person as “excrement” is an expression of at least serious contempt, if not hatred. It suggests that a person is vile and detestable in the extreme.
- The Tribunal finds that the ordinary visitor to a Facebook page such as this would be incited to hatred and serious contempt of the Applicant by the comment posted on the website because the post indicates that the Applicant, a known homosexual, supports and advocates in favour of paedophilia and provides opinions about him on that basis.
Is this hatred and/or serious contempt “on the ground of” Mr Burns’ homosexuality?
- In order to succeed under s49ZT(1) of the Act, the public act to incite hatred must have occurred on the ground of the Applicant’s homosexuality or imputed homosexuality (Jones v Trad  NSWCA 389 at ; Nicholls and Nicholls v Director General, Dept of Education and Training [No 2]  NSWADTAP 20 at ; and Burns v Sunol (No 2)  NSWCATAD 120 at  – ; Kazak v John Fairfax Publications Ltd  NSWADT 77; Western Aboriginal Legal Service Ltd v Jones  NSWADT 102; Burns v Dye  NSWADT32). Other formulations of that statutory requirement that the act occurred “on the ground of” the homosexuality of the Applicant are that the public act occurred “by reason of” or “because” Mr Burns is, or is thought to be, a homosexual.
- The Tribunal finds that the post was made “on the ground of” Mr Burns’ homosexuality because the context for it was a Facebook exchange that occurred due to Mr Burns, a publicly avowed homosexual, engaging in litigation regarding vilification of himself on the grounds of homosexuality.
- On 18 April 2018, the High Court made a decision in Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns  HCA 15, finding that NCAT does not have jurisdiction to determine a claim of vilification on the grounds of homosexuality where two opposing parties are residents of two different states. That litigation began with an application to NCAT by Mr Burns regarding vilification on the grounds of homosexuality. Thus, the homosexuality of the Applicant is central to the discussion on the Facebook page that includes the post in issue.
- On 19 April 2018, the post of Mr Bernard Gaynor that begins the Facebook exchange, prior to the post in issue, states:
“I am going to briefly mention Garry Burns today…. He is nothing but a rainbow bully. And like all good bullies, he needs to be beaten. I am happy this has happened. His ‘hard work’ as he describes it, has ‘come to nothing’.
- The term “rainbow” is commonly understood within the Australian community as referring to the “LGBTQI community” or the “lesbian, gay, bisexual, transgender, queer, intersex community”. As a homosexual, Mr Burns is identified in the post by Mr Gaynor as a member of the “rainbow community,” through being said to be a “rainbow bully”.
- The Tribunal finds that the reference to being “beaten” refers to the decision of the High Court of Australia handed down on 18 April 2018 in the case involving Mr Burns and Mr Gaynor. It is reasonable to draw that inference because both Mr Burns and Mr Gaynor were involved in the case and the decision, covered in the mainstream media, was announced the previous day.
- A later post, subsequent to the post in issue in this Complaint, states: “Right on. Stuff the Rainbow Bullies. So glad Justice prevailed!!!” (sic).
- This post confirms that the subject of the Facebook discussion is the High Court of Australia’s decision of the previous day in a matter involving homosexual vilification of Mr Burns.
- The first part of the post in question here alleges that the Applicant “advocates for paedophile rights and acceptance of their practices with the rainbow world”. Use of the term “rainbow world” indicates that the Respondent situates the Applicant as someone who “advocates” “with the rainbow world” that is, with the LGBTQI community (referred to in an earlier post by another person as “the alphabet lobby”).
- Discussion around a decision of the High Court of Australia in a case brought by the Applicant on the basis of his homosexuality, is linked, by this post, to the allegation that he “advocates for paedophile rights and acceptance of their practices with the rainbow world” (a charge that the Applicant emphatically denies). See also Burns v Corbett (2013) NSWADT 227 at .
- But for his publicly avowed homosexuality, the discussion of the Applicant’s alleged advocacy of paedophilia in the “rainbow world” would not be being discussed in the post.
- An ordinary person accessing the Facebook page would have understood that the Facebook discussion arose from the decision of the High Court of Australia’s decision and been aware of the Applicant as being a homosexual who is involved in litigation arising from that.
- The Tribunal finds that the words in question were posted “on the ground of” “by reason of,” “due to,” and “because of” the homosexuality of the Applicant for the purposes of s49ZT(1) of the Act.
Do any of the exceptions apply?
- Section 49ZT(2)(c) of the Act provides an exception to a claim of vilification where a public act is done:
“reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.”
- In this case, as there is no foundation for the post in question and the Respondent admitted by letter of 3 July 2018 to the Board of NSW that there is no foundation, it could not be said that posting the item was done “reasonably” or “in good faith”.
- The ordinary reasonable person would not consider that a statement making a linkage of the Applicant to advocacy of paedophilia without any foundation for such an allegation was “reasonable,” or “in good faith” in the course of discussion or debate about a topic. The words “reasonably” and “in good faith” qualify the exception: Sunol v Collier (No 2)  NSWCA 44; Western Aboriginal Legal Service v Jones  NSWADT 102 at ).
- The burden of proving that the exemption should be applied lies on the party claiming the exemption and that party has not attempted to rely on the exemption: Western Aboriginal Legal Service v Jones  NSWADT 102.
- For the reasons set out above, the Tribunal is not satisfied that the exceptions to s49ZT(2)(c) of the Act apply.
- In determining the amount of any compensation to the Applicant for the vilification of Mr Burns on Facebook, the Tribunal may consider the question of whether the explanation of Mr Smith for the post should be accepted and how likely it is that there was a genuine apology from Mr Smith for the comments made by him.
- Just as in a discrimination Complaint, conduct subsequent to the alleged discrimination may be relevant to a determination as to remedy. In this case, the subsequent conduct of the Respondent is relevant to the Tribunal’s assessment of the loss and damage suffered by the Applicant and discretion as to an appropriate remedy.
- The Tribunal notes that, on the basis of the evidence before the Tribunal, nowhere in posts prior to the post in question was Mr Garry Dowsett referred to. The only person named “Garry” referred to in previous posts is Mr Garry Burns. This suggests that it is unlikely that, as claimed, Mr Smith accidentally allowed the name of Mr Burns to appear when he intended the name ‘Garry Dowsett’ to appear.
- Additionally, in the telephone conversation between the Applicant and Respondent on 22 May 2018 (the content of which the Respondent has not disputed in these proceedings) and which the Tribunal accepts occurred as claimed, nowhere does Mr Smith advance that explanation of confusing “Garry Burns” with “Garry Dowsett”. That was the first opportunity to do so. If it were genuinely the case that the Respondent had made a mistake, he could reasonably have been expected to say so in that conversation. He did not do so. Indeed the conversation finished with a threat of violence against the Applicant. Nor did the Respondent subsequently post any apology to the Applicant or correction on Facebook.
- In addition, the posts of 27 June 2018 by the Respondent (set out at the beginning of this decision) were hostile in tone. This also suggests that the ‘mistake’ explanation is implausible.
- In these circumstances, the Tribunal finds that the explanation of the Respondent on 3 July 2018 that the post in question was a ‘mistake’ is implausible.
- The telephone conversation between the Applicant and Respondent of 22 May 2018 is also relevant to the proper exercise of the discretion of the Tribunal as to an appropriate remedy. The Respondent allegedly said that he had previously spent time in jail and “didn’t care” and threatened that “I’ll smash your fucking head in.” The Tribunal accepts the evidence of the Applicant that the Respondent made a threat of violence towards him in that telephone conversation, leading to the Applicant reporting the threat to the NSW Police Force.
- The Applicant’s evidence is that he saw the post in question on or around 19 April 2018. There is independent evidence of that, namely his police statement, indicating that he initially reported it to police on 20 April 2018. His evidence is, and the Tribunal accepts, that it was removed sometime between 7 and 22 May 2018 (22 May 2018 being the second date on which the Applicant made a report to the NSW Police Force). The Tribunal finds that the post remained on the Facebook page for somewhere between almost three to almost five weeks.
- The Applicant submits that the post was “designed to cause harm to my public interest work”. He also gave evidence that, the post caused him to be “shocked, humiliated and angry”.
- The Applicant gave evidence that his brother was raped as a child and suicided in 1975 at the age of 17, causing considerable trauma to Mr Burns and to his family. This made it particularly distressing for the Applicant to be bracketed and linked with paedophile behaviour, without any foundation for that linkage and to have been alleged to be supportive of paedophilia and advocating for it.
- The Applicant stated that he has seen a psychologist in the past due to trauma related to his brother’s rape and subsequent suicide. He says that he was diagnosed with depression and post- traumatic stress disorder. He stated that a post such as this reactivates such trauma.
- He also gave evidence that he had once been severely assaulted because he is a homosexual. The threat implied in the post, that he should be “humanely killed” or “put down” like an animal and that this would be a “humane thing to do,” reminds him of the assault that he says occurred because he was a homosexual man. His evidence is to the effect that he is aware, from his previous experience, that threats of violence can be carried out.
- The Applicant reported this matter to the police after the telephone call from the Respondent on 22 May 2018. This is consistent with the Applicant being fearful for his safety, as he states in his police statement.
- The fact that the Applicant’s photograph was attached to his own post earlier in the conversation thread on 19 April 2018 also made the subsequent threat of the Respondent by telephone and the threat implicit in the post a matter for distress and fear for the Applicant, fear of the hatred engendered by the post.
- The Applicant described the experience of his brother’s rape, the previous assault on him and this post as having a “cumulative effect, like pancakes on top of each other”. He stated that he remembers his brother every day and it is a matter of extreme distress to him to think that he could be alleged to support paedophilia when, in his view, his brother’s rape as a child ultimately led to his brother’s suicide and enormous family trauma. He emphatically rejects any such association.
- The Applicant became visibly distressed during the hearing when recounting these events and in explaining the effects on him of the vilification contained in the post. Thus, the Tribunal finds that his distress regarding the post in question continues.
- The Applicant did not claim that he had received psychological counselling due to this post and there was no medical evidence before the Tribunal. Nevertheless, on the basis of the evidence before the Tribunal, the Tribunal finds that this post was extremely distressing and offensive to the Applicant in a very personal way, as a result of his own previous life experiences. The post caused him serious grief, humiliation, shame, anger and distress in a way that takes this Complaint beyond advocacy in the public interest.
- The Respondent chose not to participate in the proceedings before the Tribunal and therefore presented no argument in relation to the question of compensation.
- The Applicant sought compensation in the sum of $10,000 and a published apology. He also sought that if an apology were ordered and not published as ordered, that the monetary compensation awarded be increased (a course that was followed in Cohen v Hargous  NSWADT 275.
- There have been instances where ‘corrective notices’ or apologies have been published after findings of unlawful vilification (as in Burns v Radio 2UE Sydney Pty Ltd (No 2)  NSWADT 24 in NSW).
- The Tribunal accepts that, as set out by Bromberg J in Eatock v Bolt (No 2)  FCA 1180 at  that there can be good reasons to order a person who engages in unlawful vilification to publish a corrective notice but is of the view that this is not a suitable case in which to make such an order.
- The Tribunal is not minded to order a corrective notice or apology as the website where the vilifying post was published is not the website of the Respondent and no claim was brought against the publisher of the website.
- The Tribunal may award compensation in appropriate cases pursuant to s108(2) of the Act and is obliged to avoid making an award that, by being excessively low in monetary terms, would tend to trivialise or diminish respect for public policy, as stated in Alexander v Home Office  1 WLR 968 at 975 and frequently referred to and applied in this Division of NCAT and its predecessor, the Administrative Decision Tribunal.
- In R v D & E Marinkovic  EOC 92-841 two awards of $25,000 each were made in relation to vilification. Since then other cases such as Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers  NSWADT 32 an award of $15,000 for racial vilification was made as well as an award of $15,000 in relation to racial discrimination. These awards were not disturbed upon appeal. In Carter v Brown  NSWADT 109 orders was made for compensation of $20,000 by one Respondent and $15,000 by another arising from homosexual vilification and victimisation, which consisted of a number of incidents. In Margan v Taufaao  NSWCATAD 216 an award of $10,000 was made in relation to homosexual vilification consisting of words and a vicious assault. In Burns v Sunol (No 2) 2018 NSWCATAD 120 this Tribunal made an award of $2,500.00 in relation to homosexual vilification suffered by the Applicant. Thus, awards in vilification matters have varied, depending on the circumstances of the case.
- Compensation pursuant to the Anti-Discrimination Act is sui generis. Awards in one case do not bind a later Tribunal, which must make a decision based on the facts before it.
- Each case must be assessed in light of its own circumstances. One of those circumstances to be considered in this case is the failure to lead medical or up to date psychological evidence, which would have greatly assisted the Tribunal to determine the severity of the impact of this post and the conduct which followed on the Applicant.
- Nevertheless, the Tribunal finds that even almost one year after the post, the effect of the vilification upon the Applicant still appears to be considerable. It is clear from his oral evidence that it continues to be very distressing and upsetting to the Applicant.
- There was no contradiction of the Applicant’s claims as to the effect upon him of this post. The Tribunal accepts his evidence as to the trauma and distress caused to him by this post, which was an exacerbation of his pre-existing trauma.
- The Tribunal finds that the vilificatory post remained on the Facebook page of Mr Gaynor from 19 April 2018 until a date between 7-22 May 2018, that is almost three to almost five weeks.
- The Tribunal also finds that the telephone conversation alleged to have occurred on 22 May 2018 between the Applicant and Respondent did in fact occur. It contained a threat of violence against the Applicant and was concerning enough for the Applicant to have reported it to the NSW Police Force on the same day. This threatening conduct marks this complaint out from that involved in Burns v Sunol  NSWCATAD 10.
- The Tribunal takes into account the nature of the offending post, particularly that the post suggests that he ought to be killed “humanely”. That is a very serious proposition that could arguably put the life of the Applicant at risk or cause him to be otherwise at risk if a person were incited to act upon it.
- The assertion that the Applicant advocates or condones paedophilia is also a very serious allegation that could lead to violence against the Applicant.
Summary and Conclusions
Finding of Vilification on ground of homosexuality
- Pursuant to s108(1)(a) of the Act, the Tribunal finds the Complaint substantiated in whole. To suggest, without any foundation, that the Applicant “advocates for paedophile rights and acceptance of their practices with the rainbow world” is to suggest that the Applicant, a homosexual man, supports behaviour that is both criminal and abhorrent to most Australians and advocates paedophilia in the “rainbow community”, which includes the homosexual community. This incites hatred and serious contempt of Mr Burns on the ground of his homosexuality.
- To follow those words with the words: “This sick filthy piece of human filth needs to be put down, just like we do to sick animals…After all…it would be the humane thing to do” also incites hatred and serious contempt for the Applicant.
- The Tribunal finds that the post in question contravenes s49ZT(1) of the Act as it incites hatred towards and serious contempt for Mr Burns on the ground of the homosexuality of Mr Burns.
- The Tribunal determines, pursuant to s49TZ(2)(a) that it is appropriate to order the payment of a lump sum as compensation for loss and damage suffered by the Applicant.
- In determining the appropriate award of compensation, the Tribunal takes into account the distressing effects of the post on the Applicant, the gross and repulsive character of the vilification in question and the violent action it promoted, namely that the Applicant should be “humanely put down”; the length of time the post was on the internet; subsequent conduct of the Respondent in threatening violence against the Applicant and the fact that although the Respondent claimed that the post was a “mistake” he did not convey in any subsequent post that the earlier post was a mistake.
- Taking these matters into account, the Tribunal awards the sum of $10,000 to the Applicant as compensation for loss and damage suffered by him, to be paid by the Respondent within 28 days of the date of this decision.
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 11 April 2019