Burns v Sunol [2014] – Burns WINS !!

http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=169348

Civil and Administrative TribunalNew South Wales

Medium Neutral Citation
Burns v Sunol [2014] NSWCATAD 2
Hearing Dates
5 July 2013
Decision Date
22/01/2014
Jurisdiction
Administrative and Equal Opportunity Division
Before
Magistrate N Hennessy, Deputy President
Ms J Newman, General Member
Mr N Hiffernan, General Member
Decision
1. The following complaints of homosexual vilification are substantiated: the first, second, third, fourth (paras 1 and 3), seventh, eighth (para 2), ninth and tenth publications.

2. The following complaints of homosexual vilification are not substantiated: the fourth (paras 2, 4 and 5), fifth, sixth, eighth (para 1) and eleventh publications.

3. The following complaints of victimisation are substantiated: the fourth (paras 2, 4 and 5), fifth (1st comment), sixth and seventh publication or comment.

4. The following complaint of victimisation is not substantiated: the fifth publication (2nd comment).

5. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect:

The first publication – set out at [30] above

The second publication – set out at [31] above

The third publication (YouTube clip) – set out at [32] above

The first and third paragraphs of the fourth publication – set out at [33] above

The seventh publication – set out at [37] above

The second passage in the eighth publication – set out at [38] above

The ninth publication – set out at [39] above

The tenth publication – set out at [40] above.

6. Mr Sunol is to refrain from publishing the material described in Order 5, or material to the same or similar effect, on any website, controlled by him.

7. Within 14 days of the date of this decision, Mr Sunol is to post the following apology on every website controlled by him:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT) made on 22/1/14.

On various dates between 9 November 2012 to 2 January 2013, I published statements on a website controlled by me: http://www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people.

On 22/1/14 NCAT held that my statements amounted to unlawful homosexual vilification. NCAT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

8. In default of compliance with Orders 5, 6 or 7, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

9. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,500 for the homosexual vilification.

10. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect:

The fourth publication (paras 2, 4 and 5) – set out at [33] above

The sixth publication – set out at [35] above

11. Mr Sunol is to refrain from publishing the material described in Order 10, or material to the same or similar effect, on any website, controlled by him.

12. Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns as follows:

Mr Gary Burns

PO Box 77

PADDINGTON NSW 2021

Dear Mr Burns

The NSW Civil and Administrative Tribunal, in a decision dated 22/1/14 and entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful.

I offer my apologies for that behaviour.

Yours faithfully

John Sunol

13. In default of compliance with Orders 10, 11 or 12, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

14. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $3,000 for the victimisation.

15. This matter is to be re-listed on 21 February 2014 at 9.30am to determine whether Mr Sunol has complied with these Orders.

Catchwords
ANTI-DISCRIMINATION – racial vilification and victimisation – meaning of incite
Legislation Cited
Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Racial and Religious Tolerance Act 2001 (Vic)
Cases Cited
Bogie v The University of Western Sydney (1990) EOC 92-313
Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42
Burns v Laws (No 2) [2007] NSWADT 47
Category
Principal judgment
Parties
Garry Burns (Applicant)
John Sunol (Respondent)
Representation
In person (Applicant)
In person (Respondent)
File Number(s)
131012

REASONS FOR DECISION

Introduction

1Mr Burns complains that Mr Sunol has vilified him and other homosexual men in breach of the Anti-Discrimination Act 1977 (AD Act). Most of the allegedly vilifying publications were on Mr Sunol’s blog – http://www.johnsunol.blogspot.com.au. Mr Burns also complains that Mr Sunol has victimised him in breach of the AD Act for complaining about him. The alleged victimisation is derogatory comments about Mr Burns on Mr Sunol’s website and in letters and emails.

2Mr Burns has made numerous complaints of vilification and victimisation against Mr Sunol. In 2012 the Administrative Decisions Tribunal (ADT), as it then was, determined eight complaints in two decisions: Burns v Sunol [2012] NSWADT 246 and Burns v Sunol (No 2) [2012] NSWADT 247. We will call the first of these decisions “the Tribunal’s 2012 decision”. In both those cases the ADT found parts of Mr Burns’ complaints to have been substantiated. Orders were made for Mr Sunol to apologise, remove the offending material from his website, refrain from publishing the same or similar material and to pay damages by way of compensation. Mr Burns says Mr Sunol has not complied with these orders.

3This decision relates to complaints which were heard on 5 July 2013. Since then three further matters involving the same parties and similar allegations of vilification and victimisation have been heard or listed for hearing.

4On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to hear complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal. In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, this complaint is a “part heard” proceeding. The provisions of the AD Act continue to apply.

Refusal of adjournment

5On the morning of the hearing on 5 July 2013, Mr Sunol faxed a “medical certificate” to the Tribunal from Dr N Humphreys stating that he had examined Mr Sunol on 4 July 2013. Dr Humphreys wrote that Mr Sunol had a “medical condition” and would be unfit for duty or court from 4-6 July 2013. A letter from Mr Sunol accompanying that certificate stated that, “I am not well enough to attend the Burns v Sunol hearing on July 5th 2013. I would like to apply for an adjournment of this case . . .” When Mr Sunol telephoned the Registry on the morning of the hearing, a staff member told him he would have to make his application for an adjournment to the Tribunal by phone. When we telephoned Mr Sunol at the beginning of the hearing he stated that he had a “bug in his throat” and that he had been in hospital. He told us that he was on the bus on the way to the hospital to get his “hospital discharge” document.

6Mr Burns opposed the adjournment application quoting a statement on Mr Sunol’s blog dated 30 June 2013 in which he said that he was going to apply for an adjournment.

7We refused Mr Sunol’s application for an adjournment because we were not satisfied that Mr Sunol was genuinely unable to participate in the hearing because of a medical condition. We offered Mr Sunol the opportunity to participate in the hearing by phone. He accepted that suggestion and participated with no sign of any physical incapacity.

Homosexual vilification provisions

8It is unlawful to publicly vilify a person on the ground of homosexuality. Section 49ZT of the AD Act states that:

(1) 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.

9A public act is defined in s 49ZS as follows:

“public act” includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.

10Certain exceptions are set out in s 49ZT(2):

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, 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.

11The party seeking to prove an exception has the onus of proof: AD Act, s 104. Mr Sunol did not rely on any of the provisions in s 49ZT(2) in this case.

12Mr Burns has standing to make a complaint of homosexual vilification because he is a homosexual person: AD Act, s 88.

Homosexual vilification – legal principles

Introduction

13In 2012 and 2013 the Court of Appeal interpreted the homosexual vilification provisions and relevantly identical provisions in relation to racial vilification.

14In March 2012, the Court of Appeal handed down a decision in Sunol v Collier (No 2) [2012] NSWCA 44. In that case Mr Sunol submitted that the provision making homosexual vilification unlawful was invalid under the Australian Constitution because it infringed the implied freedom of communication about governmental or political matters. In the course of rejecting that proposition, the Court of Appeal (Bathurst CJ, Allsop P and Basten JA) discussed the meaning of “incite” in s 49ZT.

15All 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.

16At [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?

17At [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.

18At [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.

19This 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.

20Allsop 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.

21As Allsop P was in the minority on this point, the views of Bathurst CJ and Basten JA prevail.

22In 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.”

23In 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?

24Another 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 possible effect. In the 2012 decision, the Tribunal highlighted the potential ambiguity of the terms “capable” and “capacity” but applied the test in the alternative. For example, at [42] the Tribunal concluded that each of the publications has the “capacity to incite” or the “effect of inciting” the relevant emotions.

Hatred, serious contempt and severe ridicule

25The words “hatred”, “contempt” and “ridicule” are to be given their ordinary English meaning, keeping in mind that the words “contempt” and “ridicule” are qualified by the adjectives “serious” and “severe” respectively. These adjectives call for an evaluative judgment on the part of the tribunal of fact: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs [1995] FCA 1653; (1995) 62 FCR 556.

Causation

26The phrase “on the ground of” does not require the homosexuality of the person or group in question to be the sole or a substantial reason for the incitement. It is sufficient if homosexuality is one of the real, genuine or true reasons: Jones v Trad supra at [98];Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37].

Conclusion

27Based on these decisions, as a general principle, vilification provisions should be interpreted conservatively in keeping with the high value that the common law places on freedom of expression: Sunol v Collier (No 2) [2012] NSWCA 44 at [59]; Jones v Trad [2013] NSWCA 389 at [27]. When considering whether a matter is in breach of s 49ZT(1), the following questions need to be addressed:

(1)What is the relevant act and is that act a “public act”?

(2)Does that act incite serious hatred towards, serious contempt for or severe ridicule of a person or group of people?

(3)Is the incitement on the ground of the homosexuality of the person or members of the group?

28In relation to the second question, the following principles of construction should be applied:

(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.

(3)It is not sufficient that the speech, conduct, or publication concerned conveys hatred towards, serious contempt for, or serious ridicule of homosexuals; it must have the capacity or effect of inciting such emotions in an ordinary member of the class to whom it is directed.

(4)If there is specific evidence about the audience, it will be necessary to make a finding of fact as to the nature of the audience to whom the public act is directed.

(5)It will also be necessary to consider whether the public act would reach the mind of an ordinary member of that audience as something that would encourage the requisite emotion.

Complaints of homosexual vilification

Introduction

29The period of the complaint is 9 November 2012 to 2 January 2013. Mr Burns complains that several publications on a blog – http://www.johnsunol.blogspot.com.au, and letters and emails Mr Sunol wrote, breach s 49ZT. We have set out the texts verbatim including all spelling and grammatical errors. In some cases we have included immediate context and bolded the relevant parts. As was said in the Tribunal’s 2012 decision at [32], the message that the publication conveys must be determined in isolation, without reference to the messages conveyed by any of the other publications. But each publication must be read in context.

Content of publications

30First publication – 9 November 2012, text on website:

Church cover up over child sex abuse in Newcastle Cathlic church and other places

Yes I do agree that some preisets have been in cover ups over child sex abuse and being aired lately but how much more those criminals that run that Sydney gay and Lesbian Mardi Gras have been in over drug dealing an sexually assualting young children in this Mardi Gras in Sydney in March each year.

Then the criminals that run this event get prosecuted for the intensive child abuse and drug dealing in this annual this event these form of accuasions are very serious and need to cover all walks of society and any child abuse anywhere needs to be prosecuted and broughth before the courts on criminal charges by the state police.

Then do a Royal commission on child sex abuse in all walks of society, starting with criminal checks on all Mardi Grass leaders and child abuse investigations by appropriate police into the Sydney gay and Lesbian Mardi Gras and child sex abuse. Not only the church – all pars of society need to be investigated and all purpentrators brought before the courts. On criminal charges. .

31Second publication – 10 November 2012, text on website:

I belieive that a child peeophile Royal commission should not only be on the catholic chucvh but also in other parts of society,including the Gay and Lesbian Mardi Gras and associated events namely the sleaze ball as this is where the real criminals in this area harbour themselves

32Third publication – 10 November 2012,YouTube video on website:

Hello All

. . .

Futhermore one very major important thing that came across the news. I’ll talk about that. I’ll be doing my you tube each week as well so I’ll talk about issues like this. The roman catholic church – they want to put a Royal Commission through for child sex paedophilia especially the church in Newcastle where I live. I say fair enough if catholic priests have done things like that they need to be brought in front of, to be brought, to be made accountable for it. Because anyone who does child paedophilia needs to be made accountable. But I’ll state right now we need a Royal Commission ight through the whole of society. I’ll tell you right now that Mardi Gras in Sydney each year is full of paedophiles that do wicked things., full of drug dealers that do wicked things. That also needs to be investigated. So lets just not do investigations across the church. Lets do an investigation right across the board. Anyone found to have sex with a kid with a child under the age of 18 whether or not they consent to it ought to be brought to account for what they’re doing. Anyone found to have molested anyone of any state any where should be brought to account. So lets just not have the paedophiles in the church. Maybe it has happened, yes, I’m not saying it hasn’t but also other places as well and especially the homosexual Mardi Gras that is full of paedophiles and drug dealers.

33Fourth publication – 5 December 2012, text on website under “Leave a message”:

Never put me in this child molestors and pedophiles event Sydney gay mardi Gras or all hell will break out as this is just a child molesters and paedophiles Happy parade with three quarter and half naked people appearing in this jeering and making fun at the nuclear family

F Gary Burns Rodney understand me now F Gary Burns that thieving rotten mongrel can go and whistle to the pinkies before I will take not of these orders understand me now! I have nothing else to say to you at all what so ever. .

Rod: I know who you are and you are only a dirty filthy lying cheating faggot as well and I will not be playing ball buster, now or ever I do not care

No Rodney not until I get material in the mail from the ADT and Gary Burns is plain rotten thief I will not apologize with out a court order come to me in person in the mail. I have nothing to remove and I might even fight him back yet with an appeal

I was set up by this thief of a Gary and that is all he is a liar cheat and thief!

34Fifth publication – 6 December 2012, 3 page handwritten letter from Mr Sunol to Mr Burns dated 4 December 2012 containing the following two sentences, one on the first page and one written in red ink at the end:

Buster – you are nothing but a thieving rotten piece of living crap who abuses the law and steals money off your victims by false accusations in civil tribunals.

Gary you are a wicked man and unless you give up your homosexuality and come to Christ for forgiveness you will rot in hell with all the other poofs.

35Sixth publication – 8 December 2012, on website under heading “Leave a message”:

Gary Burns did win yes but I am not going to pay him this money at all. He can not force me to as he is only a common their who manipulates the civil law to get money off people for telling lies.

36The ordinary member of the audience to whom this message is directed would understand the word “their” in context to be a typographical and/or spelling error and that Mr Sunol intended to write the word “thief”.

37Seventh publication – 9 December on website under the heading “Leave a message”:

Rodney; Shut you big trap buster as you do not know what your are on about.

One for a start the house in NOT in my name it is in a trust company and this needs to be broken

Two the sherrif can only take what is mine and Iput it all in my wifes name

. . and three Gary is a thieving rotten lying faggot who told lies in court to fasly obtain money and I don not recognisee him or Henry Colliers case . .

38Eighth publication – 14 December 2012, on website:

I will never settle the matters with Burns as he is loaded full of demon spirits and has no desire to settle with me no matter what I do. I need to have him foce to settle these matters and shut his big trap through the courrs.

Also Burns has no say over my life and he will be forced to shut his big trap, that dirty filthy faggot who is full of demon spirits from his homosexuality.

39Ninth publication – 1 January 2013, on website

Stuff the poofters and gay parasites like Gary Burns

40Tenth publication – 2 January 2013 on website under “Leave a message”:

I do not want to talk about Gary any more as he is a dirty filthy trouble making faggot and that is all he is. I will state no more but the cases are now finished and that is it.

41Eleventh publication – 1 January 2013, email to Tony under the subject heading: “You are a bunch of faggoty dirty fucken mongrel bastards”:

I will go you mob fromnow on. You have successfully taken down my twiter and facebook accounts through your lies

but

I will get up again and not stop

I declare full sale all out war with you idiots and fools andf you faggot lobers can go and fuck Gary Burns in the ass you filthy mongrels

yours

John

42Tony forwarded this email to Mr Burns.

What is the relevant act and is that act a “public act” of Mr Sunol’s?

43The relevant acts have been set out above. Each of the publications on Mr Sunol’s web page are public acts within the definition of that term in s 49ZS. They are communications to the public because any member of the public can access Mr Sunol’s blog and read text and view videos that are on that website: Jones v Toben [2002] FCA 1150 per Branson J at [73] – [75].

44Mr Sunol denies ever writing the word “faggot” (a highly pejorative term for a gay male) on his website. He says he only uses that word in emails and letters. Despite Mr Sunol’s denials, the word “faggot” appears on his blog in surrounding text which Mr Sunol does not deny writing. We are satisfied that he wrote that word wherever it appears.

45The eighth publication is partly a response to a post by “Rodney” saying, “Are the police wanting to talk to you about harassing Mr Burns? Mr Sunol if I was you I’d settle all matters with Burns and move on with your life. Burns is not going away.” We reject Mr Sunol’s submission in relation to the eighth publication that:

I was speaking to this man via email who was crating trouble and to stir me up. Yes I did say it but not to the public and it is only an private conversation and would hurt no one; I was angry with Gary who abuses the law and is out to take me to court to gain money unethically and through false accusations.

46Contrary to Mr Sunol’s assertion, we are satisfied that Mr Sunol wrote these words on his website. They constitute a public act.

47In relation to the ninth publication, this comment is part of a longer post to “John Ellis” apparently responding to a message that he sent via the website. Again Mr Sunol denies writing this comment on his website. In a letter to the President of the Anti-Discrimination Board he says:

Another private conversation with a person who put online what I wrote in reference to and it is being used to set me up and I believe that Gary is part of this.

48We are satisfied from the print out provided by Mr Burns that Mr Sunol published this comment on his publicly accessible website and that it is a public act.

49The fifth publication is a letter to Mr Burns. It is not a public act because it is a private letter addressed to Mr Burns. This part of Mr Burns’ complaint is not substantiated.

50In relation to the eleventh publication, this email was sent by Mr Sunol to Tony B who forwarded it to Mr Burns. Neither the sending of the email to Tony or the forwarding of that email to Mr Burns is a public act. Mr Burns says that the email was then “printed via a public act on zgeek’s.” It is clear from the print out that Tony, or some other person, has posted the content of the email on his blog. Under the heading “John Sunol is deranged”, the following text appears:

I promised John Sunol that I would not take his abuse and publish any threatening emails I get from this turd of a human being. I have not checked my account for a while and this was sitting in my inbox.

51The content of Mr Sunol’s email is then set out. We are not satisfied that the publication of the content of the email on http://www.zgeek.com was a public act of Mr Sunol. As he is the only respondent in these proceedings, Mr Burns’ complaint of homosexual vilification against him in relation to this publication is not substantiated.

52In summary, all the publications, apart from the fifth and the eleventh, are public acts of Mr Sunol.

Do the remaining acts incite serious hatred towards, serious contempt for or severe ridicule of a person or group of people on the ground of homosexuality?

Introduction

53Of the remaining publications, the first, second, third, fourth (paras 1 and 3), seventh, eighth (para 2), ninth and tenth publications constitute homosexual vilification. The fourth (paras 2, 4 and 5), sixth and eighth (para 1) are not substantiated.

54Mr Sunol submits that none of his publications incite hatred, serious contempt or severe ridicule against a person or group of people on the ground of their homosexuality. He says that was not his intention. He does not consider all members of the gay community to be paedophiles or drug dealers, but he says he knows “for a fact” that pedophiles “roam” at the Mardi Gras and that “drugs are heavy”. Mr Sunol says, “I was not vilifying but stating what I think of the event, not the gays, this has nothing to do with gays.”

55Mr Sunol’s understanding of what he said, or meant to say, is irrelevant. The words themselves are the public act, not what Mr Sunol intended to say or his subsequent interpretation of his words: Burns v Sunol (No 2) supra at [38] and [39].

56The publications on Mr Sunol’s website were directed to internet users. Anyone who uses the internet was able to access his website and read the text. Internet users are the class of persons to whom the text is directed. The Tribunal made the same finding in its 2012 decision:

We are treating internet users at large as ‘the class’ to which the publications were ‘directed’. It may well be that the people who log in to the websites where these publications occurred – being in the majority of instances the sites maintained by Mr Sunol – would be more responsive than ‘ordinary’ internet users to the statements attacking homosexual people. But we have no evidence on this question.

57Similarly, in this case, there is no evidence as to the nature of the particular audience to whom the publications were directed. We simply do not know whether those who actually read the text or viewed Mr Sunol’s YouTube clip were more or less responsive than ordinary internet users to his statements.

First publication

58In relation to the first publication, referring to people as “criminals”, and saying that they have been “drug dealing and sexually assaulting young children in the Mardi Gras” are extremely serious allegations. While Mr Sunol says that he knows such people are involved in these activities he has not provided any details about those allegations and has effectively accused all those running the Mardi Gras of these crimes. There is a very high level of social stigma attached to being accused of being a paedophile and/or a drug dealer. Mr Sunol goes on to urge that these people be prosecuted and subjected to criminal checks and investigations. Accusing people of such serious crimes and urging that action be taken against them, has the capacity or effect of inciting an ordinary internet user to hatred and/or serious contempt for those people.

59The publication relates to those who “run”‘ the Mardi Gras and the Mardi Gras “leaders”. We take judicial notice of the fact that the vast majority of people who organise and participate in the parade (and the Sleaze Ball) are homosexual. In Burns v Sunol [2012] NSWADT 246 at [57], the Tribunal held that such statements targetting “the leaders” or “those who run” the Mardi Gras do not incite hatred, serious contempt or severe ridicule “on the ground of homosexuality”. The Tribunal said:

We recognise that these rulings differ from the rulings given on broadly similar publications by the Tribunal in Collier v Sunol[2008] NSWADT 339. But it does seem to us that vilificatory statements referring specifically to the ‘leaders’ or ‘those who run’ the Mardi Gras should not be viewed as applying to everybody involved in the Mardi Gras. Equally, such statements do not necessarily imply that the ‘leaders’ or ‘those who run’ the Mardi Gras should be the objects of hatred and/or serious contempt solely or substantially on account of their homosexuality. This may in fact be Mr Sunol’s opinion, but his opinion is not the issue to be determined. What matters is the message that his words conveyed.

60The subsequent decision in Jones v Trad [2013] NSWCA 389 clarified the causation test. The test is not whether homosexuality was the sole or a substantial basis for the incitement. It is sufficient if homosexuality is one of the real, genuine or true reasons for the incitement: Jones v Trad supra at [98]; Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]. Applying that test, we have reached a different view from that reached by the Tribunal in relation to similar publications in the Tribunal’s 2012 decision.

61We accept that there is more than one reason for Mr Sunol making these comments. He has the unshakeable belief that the “leaders” of the Mardi Gras have engaged in criminal activities. The Mardi Gras is an event run by homosexuals and, although Mr Sunol denies it, that fact has contributed to his belief about their engagement in criminal activities. It is one of the real, genuine or true reasons for the incitement. He singles out Mardi Gras leaders as the place to start when investigating these alleged criminal activities and implies that they are even more culpable than some Catholic priests (“how much more these criminals that run that Sydney Gay and Lesbian Mardi Gras”).

62This publication constitutes homosexual vilification.

Second publication

63The second publication alleges that criminal activities are taking place “in the Gay and Lesbian Mardi Gras and associated events”. Mr Sunol does not single out the leaders of the Mardi Gras but makes more general allegations. Writing that “the real criminals” in the area of child paedophilia “harbour themselves” in the Mardi Gras and urging that a Royal Commission investigate potential child paedophilia in the Mardi Gras has the capacity or effect of inciting hatred or serious contempt in an ordinary internet user. The implication is that homosexuals are seeking refuge in the Mardi Gras and are free to commit the abhorrent criminal act of child paedophilia in that environment. Mr Sunol is again urging, not just an investigation, but a Royal Commission.

64These comments are directed to people participating in the Gay and Lesbian Mardi Gras and associated events, namely the Sleaze Ball. One of the real, true or genuine reasons for making these comments is the homosexuality of the people participating in these events.

65This publication constitutes homosexual vilification.

Third publication

66The third publication is a YouTube video of Mr Sunol engaging in a monologue expressing similar sentiments to those in the third publication. He states that the Mardi Gras is “full of paedophiles that do wicked things, full of drug dealers that do wicked things” and that these acts need to be investigated. Even without the adjective “wicked” in the second passage, the seriousness and abhorrence of the alleged crimes satisfies us that those words are capable or would have the effect of prompting the relevant emotion in the ordinary person who uses the internet. Again the reference to the Mardi Gras, an event celebrating homosexuality, satisfies us that the incitement was on that ground.

Fourth publication

67This text was posted on Mr Sunol’s website about a week after the publication of the Tribunal’s 2012 decisions on 28 November 2012. In those decisions the Tribunal ordered Mr Sunol to apologise, remove the offending material from his website, refrain from publishing the same or similar material and to pay damages to Mr Burns by way of compensation. We are satisfied that the orders referred to in the text are the orders made by the Tribunal on 28 November 2012.

68The fourth publication can be divided into three sections. The first paragraph is about those who take part in the Mardi Gras parade. The second, fourth and fifth paragraphs relate to Mr Burns and the third paragraph concerns a person called “Rod” or “Rodney”.

69In relation to the first paragraph, this text, ending with the words “Happy parade” is identical with text that Mr Sunol published on 3 March 2012. That publication was the subject of a decision in the Tribunal’s 2012 decision. The Tribunal concluded at [31] that the use of the words “child molestors and paedophiles” has the “capacity to incite” or the “effect of inciting” feelings of “hatred” and/or “serious contempt” for the persons to whom the phrases refer amongst “ordinary members” of the “class to which the publication is directed.” We make the same finding in this case.

70The Tribunal also concluded that these comments were directed towards a homosexual group (participants in the Mardi Gras). The “ground” on which the publication incited hatred and/or serious contempt was the homosexuality of the person or the group.

71Paragraph three relates to “Rod” who Mr Sunol refers to as “a dirty filthy lying cheating faggot”. Similar comments were held to constitute homosexual vilification in the Tribunal’s 2012 decision. In that case, the following publication was under consideration:

Dogwomble you are a trouble making bastard of a dirty and filthy minded faggot and poof.

72The Tribunal held at [44] to [47] that the words “dirty and filthy minded faggot and poof” is very strong and abusive language, inciting not just dislike, but hatred and/or serious contempt of homosexuals. Similarly, in this case, the words “dirty filthy lying cheating faggot” is very strong and abusive language inciting hatred and/or serious contempt. A real or genuine ground for that incitement is Rod’s homosexuality.

73Paragraphs 2, 4 and 5 of publication 4 relate to Mr Burns. This abusive and insulting language incites hatred or serious contempt against Mr Burns. But it does not do so on the ground of Mr Burns’ homosexuality. Mr Sunol is insulting and abusing Mr Burns because he has brought proceedings against him in the Tribunal. Homosexuality is not one of the real, genuine reasons for these words.

74This part of the complaint of homosexual vilification is not substantiated.

Sixth publication

75This comment, which appears to be in response to a comment made by someone else, does not constitute homosexual vilification because it was not made on the ground of homosexuality. There is no direct or indirect reference to Mr Burns’ homosexuality. This part of Mr Burns’ complaint is not substantiated.

Seventh, ninth and tenth publications

76These publications use the words “faggot”, “poofter” or “parasite” and “demon spirits” as well as derogatory adjectives such as “dirty” and “filthy”. This highly insulting and abusive language has the capacity or effect of inciting hatred and/or serious contempt against Mr Burns on the ground of his homosexuality.

Eighth publication

77The first comment does not refer directly or indirectly to Mr Burns’ homosexuality and is not made on the ground of homosexuality. This part of the complaint is not substantiated.

78The second comment is substantiated. The use of the word “faggot” and abusive and derogatory terms such as “dirty”, “filthy” and “demon spirits” means that this publication has the capacity or effect of inciting hatred or serious contempt in the mind of the ordinary internet user.

Victimisation – legal principles

79It is unlawful for a person to victimise (or punish) another person because he or she has complained of discrimination or done certain other things listed in s 50 of the AD Act:

(1) It is unlawful for a person (“the discriminator”) to subject another person (“the person victimised” ) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

80To prove victimisation, Mr Burns must establish the following:

(a)he did one of the things referred to in sub-paras (a) to (d);

(b)Mr Sunol caused him to undergo or experience something;

(c)he suffered some consequential detriment; and

(d)that detriment occurred on one of the grounds set out in sub-paras (a) to (d): Carter v Brown [2010] NSWADT 109 at [131] – [133].

81The concept of “detriment” was discussed in detail in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity Tribunal, as it then was, held that “… all that is required to constitute a ‘detriment’ in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter.” The Tribunal went on to say that a broad interpretation of the word detriment is “consistent with the evident legislative intention to protect those who use the processes of the Act, or contemplate such use or assist in relevant ways in such use.” The Tribunal adopted this construction of the word “detriment” in Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [41], Borg v Commissioner, Department of Corrective Services [2002] NSWADT 42, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [244] and Carter v Brown [2010] NSWADT 109 at [145]. This test has also been applied by the Federal Magistrates Court, as it then was, in Damiano v Wilkinson [2004] FMCA 891.

82In the Tribunal’s 2012 decisions some complaints of victimisation were dismissed because the detriment inflicted by the publications was “trivial”. The Tribunal explained that each of the non-victimising publications contained “no more than a single derogatory imputation about Mr Burns’ character or conduct.” The Tribunal went on to say that:

In each case, the underlying motivation – that Mr Sunol was angry about being made the respondent in legal proceedings instituted by Mr Burns – was immediately apparent to readers, many of whom would therefore be unlikely to pay much attention to the imputation. Accordingly, there was in our judgment no sufficient ‘detriment’ to support a claim of victimisation.

83The finding that many readers would be unlikely to pay much attention to the imputation is relevant when assessing whether Mr Burns suffered any damage to his reputation. He makes no such claim in this case.

84In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40], the Tribunal held that the word “detriment” should be given its ordinary English meaning of “loss, damage or injury”. The statement in Bogie that the complainant must be placed under a disadvantage as to a matter of substance as distinct from a trivial matter, is no more than an attempt to define detriment. If the disadvantage is trivial it will not constitute a detriment. Section 50 speaks of “any detriment in any circumstances”. Regardless of the circumstances, any detriment is sufficient. Depending on the circumstances, that detriment may include the humiliation and stress which the comments engender and/or, as was suggested by the Tribunal in its 2012 decision, the damage to a person’s reputation.

85Whether a detriment has been suffered is to be determined objectively. In Sivananthan at [41], the Tribunal stated that “it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment.” In summary, in our view a detriment is any objective disadvantage in any circumstance, but a person will not have suffered a detriment if a reasonable person would not regard the matter as a detriment because it is trivial.

86In determining whether the detriment occurred “on the ground of” one of the matters set out in sub-paras (a) to (d), the question is whether “one of the things listed in s 50(1)(a) to (d) was at least one of the ‘real’, ‘genuine’ or ‘true’ reasons for being subjected to a detriment”: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.

Complaints of victimisation

87Mr Burns complained that the fourth (paras 2, 4 and 5), fifth, sixth and seventh publications constitute victimisation. In relation to all the victimisation complaints, it is not disputed that Mr Burns did one of the things referred to in paras (a) to (d) of s 50. He brought proceedings against Mr Sunol under the AD Act.

88In paragraphs 2, 4 and 5 of the fourth publication, Mr Sunol calls Mr Burns a “thieving rotten mongrel”, a “plain rotten thief”, and “a liar cheat and thief”. He says “this thief of a Gary” set him up. Making these comments constitutes a detriment to Mr Burns. The intensity and repetition of this derogatory language satisfied us that, objectively, Mr Burns suffered a detriment which is not trivial. We accept that, subjectively, he was humiliated and distressed by being called these names.

89These comments were made because Mr Burns brought proceedings against him and the Tribunal made orders in relation to those proceedings.

90This complaint of victimisation is substantiated.

91The comments on the first page of the fifth publication (the letter to Mr Burns) resemble those made by Mr Sunol in the fourth publication. It is clear from the comments themselves that Mr Sunol abused Mr Burns on the first page of this letter because he had brought proceedings against him. The repeated use of strong and derogatory language would have caused Mr Burns a detriment, namely humiliation and distress. This part of Mr Burns’ complaint of victimisation is substantiated.

92The comment at the end of the letter does not constitute victimisation because it was not made on the ground that Mr Burns had brought proceedings under the AD Act. There is no link in that sentence between Mr Burns having done anything referred to in paras (a) to (d) of s 50 and any detriment he may have suffered. This part of Mr Burns’ complaint of victimisation is not substantiated.

93In relation to the sixth and seventh publications, these comments were made because Mr Burns brought proceedings against Mr Sunol under the AD Act. Calling Mr Burns “a thief and a liar who manipulates the law to get money off people” and a “thieving rotten lying faggot who lies in court” is a detriment to Mr Burns. All the comments were made on the ground that Mr Burns had brought proceedings against him. These parts of Mr Burns’ complaint of victimisation are substantiated.

Remedies

Background

94Section 108(1) of the AD Act provides that:

(1) In proceedings relating to a complaint, the Tribunal may:

(a) dismiss the complaint in whole or in part, or

(b) find the complaint substantiated in whole or in part.

95We have found 9 separate publications on Mr Sunol’s blog site to constitute homosexual vilification. (Publications 1, 2, 3, 4 (paras 1 and 3) 7, 8 (second passage), 9 and 10.) We have also found four instances of victimisation in publications 4 (paras 2, 4 and 5), 5, 6 and 7. Notably publication 7 constitutes both homosexual vilification and victimisation.

96Having found some of the complaints substantiated, we may make certain orders in relation to those complaints: s 108(2). Those orders include damages by way of compensation for any loss or damage suffered by reason of Mr Sunol’s conduct, an order enjoining Mr Sunol from continuing or repeating any unlawful conduct and an order to publish an apology or retraction. In addition, if the Tribunal orders an apology or enjoins a respondent from continuing or repeating certain conduct it may also order that, in default of compliance with the order, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order: s 108(7).

97Mr Burns sought an order for damages, an order that Mr Sunol write an apology and an order enjoining Mr Sunol from continuing or repeating any unlawful conduct. At the hearing, Mr Burns said that he does not want Mr Sunol to use his name on the internet or to identify him as gay, corrupt, a thief or a liar. We explained that we can only make orders stopping Mr Sunol from publishing comments that it is unlawful for him to make.

98In the Tribunal’s 2012 decision it found some aspects of Mr Burns’ complaints of homosexual vilification and victimisation substantiated and ordered Mr Sunol to:

(1)remove certain material from every website controlled by him;

(2)refrain from publishing that material again;

(3)post a specified apology on every website controlled by him with 14 days;

(4)pay to Mr Burns $3,000 as compensation for the harm caused to him by the publications which were found to constitute homosexual vilification;

(5)pay to Mr Burns $3,500 as compensation for the harm caused to him by the publications which constitute victimisation; and

(6)write a letter of apology in specified terms to Mr Burns.

99The Tribunal determined several other complaints of homosexual vilification and victimisation involving the same parties in Burns v Sunol (No 2) [2012] NSWADT 247. The orders in that matter were in similar terms to those summarised above except that Mr Sunol was ordered to pay Mr Burns $2,000 as compensation for the harm caused to him by the publications which constituted homosexual vilification and $2,500 as compensation for the harm caused to him by the publication, amounting to victimisation. In total, Mr Sunol was ordered to pay Mr Burns $11,000.

100According to Mr Burns, Mr Sunol has not complied with any of these orders.

Evidence relating to remedies

101Mr Burns provided medical evidence from his treating psychologist. We made a suppression order in relation to the report prepared and the evidence given by Mr Burns’ psychologist. The publication of that evidence dated 19 February 2013, is prohibited in accordance with s 75(2)(c) of the Administrative Decisions Tribunal Act 1997. We made that order because of Mr Burns’ understandable concern that Mr Sunol would publish that highly sensitive and personal information and make comments about it on his website. While we will not outline the evidence in detail in these reasons, much of the information about Mr Burns’ history and his sensitivity to Mr Sunol’s comments about him and homosexuals in general, was set out in the Tribunal’s 2012 decision at [98].

102Mr Burns gave evidence that he fears becoming a victim of gay hate crime because there is a particular disdain in the community for people who are thought to be paedophiles.

103Mr Sunol was given the opportunity to cross examine the psychologist. He asked whether Mr Burns’ existing condition could have been caused or re-activated by something other than his publications. While the psychologist conceded that that was technically possible, she said she had no reason to suspect that that was the case because Mr Burns did not mention anything else that was causing his current symptoms.

104Mr Sunol also questioned the psychologist about whether Mr Burns’ involvement in other litigation may be a cause for his symptoms. Again the psychologist said that she was aware of other litigation but she understood that the parties to those proceedings had responded professionally and had not made personal comments about Mr Burns.

105We accept the psychologist’s evidence.

106We are satisfied that Mr Burns is suffering from complex Post Traumatic Stress Disorder. He was the victim of a number of violent gay hate crimes during the period 1989-1993. He suffered severe physical injuries and Post Traumatic Stress Disorder. Mr Sunol’s repeated verbal attacks have caused him to be re-traumatised.

Remedies for vilification complaints

107It is appropriate to order Mr Sunol to remove from his website all the material which we have found to constitute homosexual vilification and any material to the same or similar effect. Mr Sunol should also refrain from publishing such material on any website, controlled by him, in the future.

108It is also appropriate for Mr Sunol to publish an apology for the vilifying conduct on his website in the terms set out in the orders. Because Mr Sunol has a history of non-compliance with Tribunal orders, and has publicly flouted those orders, if he does not remove all the offending material and any material to the same or similar effect, refrain from publishing similar material and publish the apology within 14 days of the date of these reasons, he is to pay Mr Burns damages of $2,500 by way of compensation for failure to comply with any of those orders. The Tribunal will re-list this matter in 3 weeks to hear evidence as to whether Mr Sunol has complied with these orders.

109In addition, Mr Sunol should pay Mr Burns damages for the pain and suffering he has endured as a result of the vilifying statements. The principles in relation to damages for vilification were set out in the Tribunal’s 2012 decision at [112] to [123]. In this case, all the vilifying publications were on Mr Sunol’s website. Prior to the Tribunal’s 2012 decision, there had been no awards of damages for vilification published on the internet. We agree with the conclusion in the Tribunal’s 2012 decision that damages for publications on Mr Sunol’s website would be much less than for a publication by a high profile person such as Alan Jones. As in the 2012 decision, Mr Sunol’s publications were relatively inconspicuous.

110We accept Mr Burns’ evidence about his special sensitivity to all the material, some of which related specifically to him. While the first, second and third publications related to Mardi Gras organisers and participants, parts of the fourth, all of the sixth and seventh, and parts of the eighth publications, relate solely to Mr Burns. But none of this material was “thrust upon” him. Mr Burns chose to read it, knowing Mr Sunol’s reputation for publishing vilifying material.

111In the Tribunal’s 2012 decision at [126] and [127] the Tribunal made the point that Mr Burns has a duty to take reasonable steps to mitigate the damage or loss caused by the conduct. The duty to mitigate may be applicable in assessing damages under the AD Act, but there is no hard and fast rule. While the Tribunal in that case did not consider it appropriate to deny Mr Burns’ damages on the basis that he had failed to mitigate his loss, it did consider it relevant that Mr Burns could choose whether or not to visit Mr Sunol’s website and run the known risk of encountering hurtful material.

112We accept Mr Burns’ evidence and that of his psychologist about his special sensitivity to the vilification of homosexuals including himself. But these publications were all on Mr Sunol’s website. They were not sent directly to Mr Burns or said in his presence. Mr Burns either accessed the website himself or, in some cases, was provided with the information by a friend. He says that one reason he did so was to check whether or not Mr Sunol had complied with the Tribunal’s 2012 orders.

113Mr Burns was impliedly on notice following the Tribunal’s 2012 decision that his damages could be affected if he continued to choose to access Mr Sunol’s website himself or read the content forwarded by someone else. While he chose to rely on others to forward him information from that website, he nevertheless read it. We appreciate that Mr Burns wanted to see whether Mr Sunol had complied with the Tribunal’s orders but he could have delegated that task to a friend and advised him or her not to disclose the content of any further breaches. Because he chose not to take this course, Mr Burns’ damages should be even less than the $3,000 awarded by the Tribunal in the 2012 proceedings. We assess Mr Burns’ damages at $1,500.

Remedies for victimisation

114The victimising conduct was insulting and defamatory words on Mr Sunol’s website and in a letter written directly to Mr Burns. While Mr Burns could have avoided reading the victimising material on the website, he could not avoid reading the letter addressed personally to him. That letter contained extremely insulting and defamatory language.

115We assess his damages overall for victimisation to be $3,000.

116We also consider it appropriate for Mr Sunol to apologise personally to Mr Burns for the victimising conduct in the terms set out below, to remove the offending material from his website and to refrain from publishing similar material in future. Again, in default of compliance with any of those orders Mr Sunol should pay Mr Burns $2,500.

Orders

1. The following complaints of homosexual vilification are substantiated: the first, second, third, fourth (paras 1 and 3), seventh, eighth (para 2), ninth and tenth publications.

2. The following complaints of homosexual vilification are not substantiated: the fourth (paras 2, 4 and 5), fifth, sixth, eighth (para 1) and eleventh publications.

3. The following complaints of victimisation are substantiated: the fourth (paras 2, 4 and 5), fifth (1st comment), sixth and seventh publication or comment.

4. The following complaint of victimisation is not substantiated: the fifth publication (2nd comment).

5. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect:

The first publication – set out at [30] above

The second publication – set out at [31] above

The third publication (YouTube clip) – set out at [32] above

The first and third paragraphs of the fourth publication – set out at [33] above

The seventh publication – set out at [37] above

The second passage in the eighth publication – set out at [38] above

The ninth publication – set out at [39] above

The tenth publication – set out at [40] above.

6. Mr Sunol is to refrain from publishing the material described in Order 5, or material to the same or similar effect, on any website, controlled by him.

7. Within 14 days of the date of this decision, Mr Sunol is to post the following apology on every website controlled by him:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT) made on 22/1/14.

On various dates between 9 November 2012 to 2 January 2013, I published statements on a website controlled by me:www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people.

On 22/1/14 NCAT held that my statements amounted to unlawful homosexual vilification. NCAT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the ground of their homosexuality.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexuals in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

8. In default of compliance with Orders 5, 6 or 7, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

9. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $1,500 for the homosexual vilification.

10. Within 14 days of the date of this decision, Mr Sunol is to remove the following material from every website controlled by him and all material to the same or similar effect:

The fourth publication (paras 2, 4 and 5) – set out at [33] above

The sixth publication – set out at [35] above

11. Mr Sunol is to refrain from publishing the material described in Order 10, or material to the same or similar effect, on any website, controlled by him.

12. Within 14 days of the date of this decision Mr Sunol is to post a signed letter of apology in the terms set out below to Mr Burns as follows:

Mr Gary Burns

PO Box 77

PADDINGTON NSW 2021

Dear Mr Burns

The NSW Civil and Administrative Tribunal, in a decision dated 22/1/14 and entitled Burns v Sunol, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that victimisation, as defined in those provisions, is unlawful.

I offer my apologies for that behaviour.

Yours faithfully

John Sunol

13. In default of compliance with Orders 10, 11 or 12, within the specified time, Mr Sunol is to pay Mr Burns damages of $2,500 for breach of any of those Orders.

14. Within 28 days Mr Sunol is to pay Mr Burns damages in the sum of $3,000 for the victimisation.

15. This matter is to be re-listed on 21 February 2014 at 9.30am to determine whether Mr Sunol has complied with these Orders.

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.
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Apology as per the Burns vs Sunol case on July 5 2014 decisions from NCAT

Wednesday, 22 January 2014

Apology as per the Burns vs Sunol case on July 5 2014 decisions from NCAT

 
This is my apology persuant to the case Burns vs Sunol July 5th 2014

_________________________
 
This apology is made pursuant to an order by the NSW Civil and Administrative tribunal (NCAT) made on the 22/1/14
 
On Various dates between 9 November 2012 to 2 January 2013, I published statements on a web site controlled by me. http://www.johnsunol.blogspot.com.au several comments concerning homosexuality and homosexual people. 
 
On 22/1/14 NCAT held that my statements amounted to unlawful homosexual vilification, NCAT found that they were capable, or had the effect, of inciting hatred or serious contempt of one or more homosexual people on the grounds of homosexuality.
 
I apologise for publishing these statements. I acknowledge that the worlds that I used vilified homosexuals in breach of the New South Wales Anti-Dicrimiantion Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public. 
 
_____________________________

 This is my apology as to what was ordered from the NCAT and I want it to go world wide for all to read and you can comment on my web page if you like.
 
This is also posted on the other back up web page as a second for all to see
 
Yours 
 
John Christopher Sunol


NB:  this is the apology as was ordered by the NCAT tribunal in a burns vs sunol case of July 5th as of the decision on the 
22nd January 2014
 
 


 
Statistical progress on the blog:
 
 
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0468 309 091

 

– FACEBOOK PAGE THAT INCITE ” HATRED ” & “SERIOUS CONTEMPT ” AGAINST HOMOSEXUALS

MEDIA RELEASE

RADIO 2SM ALLOW THE PUBLISHING OF STATEMENT’S ON THE JOHN LAWS MORNING SHOW FACEBOOK PAGE THAT INCITE ” HATRED ” & “SERIOUS CONTEMPT ” AGAINST HOMOSEXUALS LIKE :

Mr.Laws is a defendant of homosexuality vilification
Mr.Laws is a defendant of homosexuality vilification
 
” GO SUCK SOME DICK FOR DRUGS , POOFTER AND THAT HOMOSEXUAL MEN ARE ” FARTING CUM “.
17 November 2013.
Respected Anti-Discrimination Campaigner Gary Burns , the man famous for suing radio broadcaster John Laws under the Anti-Discrimination Act 1977 for calling gay men ” pillow biters ” lodged a complaint with the President of the Anti-Discrimination Board of NSW on the 25 September 2012 over statement’s published on the John Laws Morning Show Facebook Page referring to Mr.Burns as a “faggot” and further statement’s published that Mr.Burns was harmful to homosexual people.
” I cant (sic) believe this man he is more harmful to homosexuals than anyone !!! If I had a gay child I would never ask for his advice what a moron “.
“John is it a full moon ? What a looser (sic) , faggots like that give the whole gay community a bad name”.
” What happened to the comment about Gary Burns faggot ???? Not one person has called or emailed the show to support you mr Burns …. what does that tell you ?
The complaint was unable to reach conciliation.
On the 18 June 2012 statement’s were published on the John Laws Morning Show Facebook Page in relation to a debate on gay marriage harmful to homosexuals and were left there by the John Laws Morning Show staff until the 29 October 2013. ( over 12 months later ) Some of the statement’s are cited below (fully sic).
Joel Richards said, ” GO SUCK SOME DICK FOR DRUGS, POOFTER.
Nathan James Mulholand responded with , ” Wow ….The intellect sure has picked up a notch in here. I’m sure sorry I was being ” uncivilized and intolerant”….but it’s cool to use expressions like ” FARTING CUM ” and ” GO SUCK SOME DICK FOR DRUGS , POOFTER. You guys are really winning the argument based simply on your civility and intolerance”.
Robert Nicholson said , ” No it’s disgusting why we panda (sic) to these minority people who let them out of the closet”.
Joel Richards said , ” Where’s Nathan ? I spose he’s either docked his boyfriend or still coming up with something intellectual”.
Talene Zammit said , ” I just want to marry my cat , is that so much to ask”?
Megan Micallef said , ” If I wanna (sic) rub peanut butter on my knob end and get my dog to run his sexy long tongue around the tip as he tries to slurp it off then what’s the problem ? We are in love. I can see its real when he looks at me. DON’T JUDGE ME”.
Mr.Burns said , ” I don’t have sex with animals. I love my cats EMTU & IVORY . My homosexuality is not a perversion or a diabolical sickness. The published statement’s by RADIO 2SM and and those statement’s left there by Mr.Laws’ staff for over 12 long months condone , support and portray that the homosexual characteristic is a depravity and debauchery or is it simply the case that RADIO 2SM / JOHN LAWS agreeing with the statement’s that’s why they weren’t removed” ?
Two unsworn Affidavits signed by employees of Radio 2SM  state that no language stronger than the word ” bloody” is published on the John Laws Morning Show Facebook Page”.
The Affidavits state, ” Whilst the John Laws Morning Show is on air , posting on the John Laws Page are constantly monitored and removed by staff sitting outside the studio”.
 ” Perhaps these incongruous halfwitted imbeciles working for Radio 2SM & the John Laws Morning Show think pernicious statement’s published about homosexuals on their stations facebook page like ‘ GO SUCK SOME DICK FOR DRUGS ,POOFTER  or suggesting that homosexual men have SEX WITH DOGS ‘  or ‘ FART CUM ‘ is tamer than the word ‘ BLOODY ‘ but I don’t think it is” , said Mr.Burns.
The Application is listed for hearing on Friday 22 November 2013 at 10 a m.
In the Administrative Decisions Tribunal (ADT)
Level 10 , John Maddison Tower
86 Goulburn Street
Sydney , 2000.
Mr.Laws is a defendant of homosexuality vilification ( See Burns v Radio 2UE Sydney Pty Ltd (2004) NSWADT 267).
Radio 2UE , Mr.Laws and his stablemate Mr.Price had to make groveling apologies “on air” and publish an apology on the 2UE Website for two weeks and also in the Sydney Morning Herald.
Mr.Burns is running his matter in the “public interest” and is seeking the maximum aggregate damages under the Application of $100, 000. ( One Hundred Thousand Dollars ).
Mr.Bill Caralis , Managing Director of Sydney Radio Network (Radio 2SM ) said ” under no circumstances will Radio 2SM settle with Mr.Burns”.
” These dangerous halfwitted boofheads need to understand that they are people in powerful positions who have responsibilities and must not use their powerful position to breach the Anti-Discrimination Act 1977 by allowing the publishing of statement’s that incite ” serious contempt ” and ” hatred” against those of the homosexuality characteristic”, concluded Burns.
ENDS
MEDIA ENQUIRIES
Gary Burns
0407-910-309.

 

2SM AND JOHN LAWS PUBLISH GAY HATE COMMENTS

MEDIA RELEASE

2SM AND JOHN LAWS PUBLISH GAY HATE COMMENTS
 
29 October 2013
 
 

Image

Noted anti-discrimination campaigner Gary Burns , the man famous for suing radio broadcaster John Laws under the anti-discrimination act 1977 in 2004 and again in 2006 over his supporting of public statement’s that homosexuals
shouldn’t be allowed on television because of their characteristic and for calling gay men “pillow biters” was outraged to learn of statement’s published on the
 John
Laws Morning Show Facebook Page in June 2012 in relation to a debate on gay marriage harmful to homosexual men.
 
These are some of the statement’s published and backed up by the facebook attachment.
 
“Go suck some dick for drugs. POOFTER“.
 
” Where’s Nathan ? I suppose he’s either docked his boyfriend or still coming up with something ” intellectual”
 
If I want to rub peanut butter on my knob end and get my dog to run his sexy long tongue around the tip as he tries to slurp off then what’s the problem ? We are in love. I can see it’s real when he looks at me. Don’t judge me ” .
 
” I just want to marry my cat , is that so much to ask ?
 
These statement’s are all in relation to homosexuals.
 
Gary Burns said , ” I’ve never had S.E.X with my white pussy Ivory or my black and white Tomcat Emu (see picture below).

Image

and I’m offended that Radio 2SM or Mr.Laws promote that I do via the Facebook Page of the John Laws Morning Show. I’m not a pervert. I love my pussy’s Ivory and Emu and I’d never do anything that’s perverted or sinister causing harm to them “.
 
Mr.Burns has a complaint under the Anti-Discrimination Act 1977 coming up for a hearing in the NSW Administrative Decisions Tribunal on Friday the 22 November 2013 at 10 am over statement’s published on the John Laws Morning Show Facebook Page referring to him as a “faggot and poofter”.
 
Both Radio 2SM and Mr.Laws are respondent’s to the proceedings.
 
Managing Director of Super Radio Network (SRN) the owner of Radio 2SM Mr.Bill Caralis in a letter to the President of the Anti-Discrimination Board of NSW described the public vilification of Mr.Burns and homosexual men as only being potentially “offensive tweets”.
 
 
” No you boofhead Bill Caralis these are not potentially “offensive tweets”. When you are getting bashed by a gang of gay bashers shouting out we are going to kill you faggot you realise just how dangerous the word “faggot and poofter” really is”. Imagine if I’d published statement’s on my blog referring to Mr.Caralis is an unwashed , unkept dago ( a collog. offens ) word for a foreigner because he’s Greek how would that make him feel”,   asks Mr.Burns.
 
Mr.Burns has been a victim of a gay hate crime on four previous occasions, nearly losing his life in 1989 to a gang of teenage thugs.
 
Employees of Radio 2SM have made Affidavit’s that the facebook page is constantly monitored by staff sitting outside the studio and that any offensive or unlawful statement’s are removed immediately when they are made and those making them blocked.
 
“Well what happened in June 2012 ? Were they all out in the kitchen making a cup of lemon tea all at the same time or does it take these incongruous imbeciles over 12 months to remove the unlawful vilification against homosexuals ” ? asks Mr.Burns.
 
 
Go suck some dick for drugs poofter
 
ENDS
 
MEDIA ENQUIRES
 
Gary Burns
 
9363-0372
0407-910-309

 

FORMER KATTER PARTY CANDIDATE GUILTY OF INCITING HATRED AGAINST HOMOSEXUALS

Administrative Decisions Tribunal New South Wales

Medium Neutral Citation
Burns v Corbett [2013] NSWADT 227
Hearing Dates
3 October 2013
Decision Date
15/10/2013
Jurisdiction
Equal Opportunity Division
Before
M Chesterman, Deputy President
D Kelleghan, Non-judicial Member
A Lowe, Non-judicial Member
Decision
1. The complaint of unlawful homosexual vilification is substantiated with regard to statements, reproduced in paragraph [19] of this decision, that were made by the Respondent to the representatives of different newspapers on three occasions during late January 2013.2. The Respondent is to refrain from conduct contravening section 49ZT of the New South Wales Anti-Discrimination Act 1977.3. Within twenty-eight (28) days of the date of this decision, the Respondent is to procure, at her expense, the publication of the following apology in a reasonably prominent position in the Sydney Morning Herald:This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 15 October 2013.On three occasions during late January 2013, I made statements concerning homosexual people to the representatives of different newspapers, and expressly or implicitly authorised the publication of my statements by these newspapers.

On 15 October 2013, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexual people in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

4. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders.

Mr Garry Burns

PO Box 77

PADDINGTON NSW 2021

Dear Mr Burns

The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 15 October 2013 and entitled Burns v Corbett, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that vilification of homosexual people, as defined in those provisions, is unlawful.

I offer my apologies for that behaviour.

Yours faithfully

Tess Corbett

Catchwords
Homosexual vilification – incitement – remedies
Legislation Cited
Anti-Discrimination Act 1977
Cases Cited
Burns v Dye [2002] NSWADT 32
Carter v Brown [2010] NSWADT 109
GLBTI v Wilks & Anor [2007] QADT 27
Sunol v Collier (No 2) [2013] NSWCA 196
Wilson & McCollum v Lawson and Anor [2008] QADT 27
Category
Principal judgment
Parties
Garry Burns (Applicant)
Tess Corbett (Respondent)
Representation
G Burns (Applicant in person)
No appearance (Respondent)
File Number(s)
131029

REASONS FOR DECISION

Introduction

1In a complaint to the Anti-Discrimination Board (‘the Board’) dated 31 January 2013, the Applicant, Garry Burns, alleged that the Respondent, Tess Corbett, had made vilifying statements about homosexuals that were reported on 22 January 2013 on the front page of a Victorian newspaper, the Hamilton Spectator. Mr Burns referred also to republications of her statements by other newspapers and on the ABC during the next few days. He described Ms Corbett as the endorsed candidate for a political party, Katter’s Australian Party, and asked that this party be joined as a respondent to his complaint.

2Annexed to Mr Burns’ complaint were copies of the relevant page of the Hamilton Spectator and of transcripts of the republications on which he relied.

3In letters to Ms Corbett and to Katter’s Australian Party dated 6 February 2013, the Board enclosed a copy of Mr Burns’s complaint and requested their response.

4In a reply dated 5 March 2013, the National Director of Katter’s Australian Party, Aidan McLindon, stated that the Party ‘in no way supports, endorses or approves of the statements made by Mrs Corbett in the Hamilton Spectator article’ and that following the publication of this article the Party had accepted her withdrawal of her nomination as a candidate and her resignation from the Party’s general membership. Mr McLindon pointed out also that according to the report in the Hamilton Spectator, Ms Corbett had told this newspaper that her views on homosexuality were ‘personal’ and did not necessarily reflect the view of the Party.

5Ms Corbett did not reply to the Board’s letter of 6 February 2013.

6In a letter dated 23 April 2013, the President of the Board referred Mr Burn’s complaint to the Tribunal, naming both Ms Corbett and Katter’s Australian Party as respondents. He enclosed a copy of his Report relating to the complaint and stated that in his opinion the complaint could not be resolved by conciliation.

7At a case conference in the Tribunal on 29 May 2013, neither respondent appeared. The Tribunal noted that Ms Corbett had apparently not been properly served with a copy of the President’s Report. It directed that Mr Burns (who appeared in person) should notify the Registry of her residential address and that the Registrar should send a copy of this Report to her at this address, together with notification that a second case conference would be held on 3 July.

8At this case conference, the Tribunal also ordered that Katter’s Australian Party should be removed as a respondent.

9On 11 June, the Registrar wrote to Ms Corbett as directed, sending the letter to an address in Victoria that Mr Burns had provided.

10At a case conference held on 3 July, Ms Corbett again failed to appear. On 4 July, the Registrar wrote to her, advising her of directions that the Tribunal had given regarding the filing of pleadings and evidence and of the date of a further case conference.

11At the third case conference, held on 14 August, Ms Corbett again failed to appear. The Tribunal directed that she should file and serve before 10 September 2013 any material on which she wished to rely and that the hearing of the complaint would take place on 3 October. On 14 August, the Registrar sent a registered letter to her, advising her of these directions.

12According to a form headed ‘Delivery Confirmation – Advice Receipt’ that Australia Post provided subsequently to the Registry, this letter was delivered to Ms Corbett on 27 August 2013. A signature purporting to be that of Ms Corbett appears on the form, beside the words ‘Signature of Addressee or Agent’.

13Ms Corbett did not appear at the hearing before us on 3 October 2013. Mr Burns, appearing in person, stated that he had written to Ms Corbett about the hearing.

14Having given consideration to the Registrar’s correspondence with Ms Corbett, and in particular to the signature providing evidence that the letter of 14 August 2013 had been delivered to her personally, we concluded that she had been given due notice of the proceedings and of the date of the hearing. We accordingly held that it was appropriate for us to hear and determine Mr Burns’ complaint in her absence.

15We then admitted the following evidence tendered by Mr Burns: (a) the President’s Report; (b) eight pages printed out on 27 May 2013 from the Hamilton Spectator’s page on Facebook; (c) a witness statement signed by Mr Burns on 16 July 2013; and (d) a passage in a report (dated 9 March 2005) of a New South Wales Coroner’s inquest into three deaths, quoting from the evidence given by a witness who described himself as a victim of paedophilia.

16In the course of his submissions, Mr Burns indicated that he did not seek any compensation in this matter. The remedies that he sought instead were orders requiring Ms Corbett to (a) publish an apology in one or more appropriate media outlets, (b) apologise to him privately by letter, and (c) refrain from any future conduct amounting to unlawful homosexual vilification as defined in section 49ZT of the Anti-Discrimination Act 1977 (‘the Act’).

The publications on which Mr Burns relied

17The article in the Hamilton Spectator on which Mr Burns primarily based his complaint appeared on the front page of the edition published on 22 January 2013. A copy of it was included in the President’s Report.

18This article was written by Rex Martinich. Near the commencement, it referred to Ms Corbett’s recent endorsement as the candidate of Katter’s Australian Party for the Federal seat of Wannon. It then reported on statements that she had made about a number of political issues, including what the article described as ‘the Labor Government’s controversial Anti-Discrimination Bill’. It indicated that Ms Corbett had expressed opposition to certain aspects of this Bill, though not to all of it.

19Immediately following a quoted statement by Ms Corbett that people ‘should be able to discriminate’, the following passage then appeared in the article:-

“I don’t want gays, lesbians or paedophiles to be working in my kindergarten.

“If you don’t like it, go to another kindergarten.”

When asked if she considered homosexuals to be in the same category as paedophiles, Ms Corbett replied “yes”.

“Paedophiles will be next in line to be recognised in the same way as gays and lesbians and get rights,” she said.

20Further material included in the President’s Report included printouts of articles published on the website of the Sydney Morning Herald on 23 January 2013, on the website of the Australian on 24 January 2013 and on the ABC’s website on 24 January 2013. In each of these articles, the substance of Ms Corbett’s statements that we have just quoted from the article in the Hamilton Spectatorwas repeated, except that the article on the Australian’s website (appearing under the byline of its Victorian Political Editor) did not report her claim that homosexuals were ‘in the same category as paedophiles’. This newspaper did however state that she ‘refused to back away from’ her ‘inflammatory comments’ and that she had told its reporter both that homosexuality was ‘against the word of God’ and that she was pleased to have ‘got the front page’ of the Hamilton Spectator. In addition, the article on the Sydney Morning Herald’s website (appearing under the byline of the State Political Correspondent for the Age) reported a statement by her to the effect that ‘gays and lesbians and paedophiles were “moral issues”‘.

21The eight pages printed out on 27 May 2013 from the Hamilton Spectator’s page on Facebook included a number of comments on Ms Corbett’s statements posted by members of the public. Most of these comments expressed agreement with her views. Also included in this material were the full text of the article published by the Hamilton Spectator on 22 January 2013 and an editorial headed ‘Public Opinion – The Winner’ discussing the issues raised by the newspaper’s decision to publish this article.

Relevant statutory provisions

22The provisions of the Act in which unlawful racial vilification is defined are sections 49ZS and 49ZT. They state:-

49ZS Definition of “public act”

In this Division:

public act includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

49ZT Homosexual vilification unlawful

(1) 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.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, 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.

23The question of standing to make a vilification complaint is addressed in section 88:-

88 Vilification complaints

A vilification complaint cannot be made unless each person on whose behalf the complaint is made:

(a) has the characteristic that was the ground for the conduct that constitutes the alleged contravention, or

(b) claims to have that characteristic and there is no sufficient reason to doubt that claim.

24The remedies that the Tribunal may grant if a complaint under the Act is upheld are listed in subsection (2) of section 108. They include an order that the respondent must not continue or repeat any conduct made unlawful by the Act (under paragraph (b)) and an order that the respondent publish an apology and/or a retraction (under paragraph (d)).

Discussion and conclusions

25Mr Burns claimed in his witness statement to be a homosexual man. Since there is no sufficient reason to doubt this claim, the requirement of standing is satisfied.

26He submitted that any person who made statements to a journalist and gave express or implied permission for these statements to be published by the journalist committed a ‘public act’ within paragraph (a) and/or (c) of section 49ZS of the Act.

27We agree with this proposition. When applied to the facts of this case, the outcome is that Ms Corbett committed three ‘public acts’.

28First, at some time before 22 January 2013 she made the statements set out above at [19], or statements to similar effect, to Mr Martinich. At the same time, she gave him permission, expressly or by implication, to reproduce or report on what she had said in theHamilton Spectator. She thereby caused these statements to be communicated to the public not only through being quoted in Mr Martinich’s front-page article in this newspaper but also through their republication, wholly or substantially, on the newspaper’s Facebook page and on the websites of the Sydney Morning Herald, the Australian and the ABC. We treat these instances of republication, both by the Hamilton Spectator and by other media outlets, as falling within the scope of her ‘public act’ because, as she would have appreciated, they were very likely to occur.

29Secondly, at some time between 22 and 23 January 2013, she told the State Political Correspondent for the Age that (to use his words) ‘gays and lesbians and paedophiles were “moral issues”‘. She thereby implicitly authorised the owner of the Age, Fairfax Media, both to publish this statement and to republish the statements set out above at [19]. It acted accordingly.

30Thirdly, at some time between 22 and 24 January 2013, Ms Corbett told one of the Australian’s political editors that (to use his words) she ‘refused to back away from’ the opinions attributed to her by the Hamilton Spectator. She thereby implicitly authorised theAustralian to republish them (which it did, except for her claim that homosexuals were ‘in the same category as homosexuals’). She also authorised this newspaper, expressly or by implication, to publish her accompanying statement that homosexuality was ‘against the word of God’.

31If the only instance of communication of Ms Corbett’s statements to the public had been in the article appearing on 22 January 2013 in the Hamilton Spectator, the Tribunal would not, we believe, have had jurisdiction to deal with this matter. This is because the relevant ‘public act’ would have been committed wholly in Victoria. But all of the instances of republication that we have outlined involved communication to the public in New South Wales.

32In written submissions filed before the hearing, Mr Burns argued that the publications of the statements by Ms Corbett that are quoted above at [19], and also of the two additional statements appearing on the websites of the Sydney Morning Herald and the Australianrespectively, fell within the range of ‘public acts’ defined in section 49ZT(1) of the Act. This was the case, he said, because these statements were not only likely to incite, but actually incited, ‘hatred towards’ or ‘serious contempt for’ homosexual people on the ground of their homosexuality. He relied particularly on the fact that they asserted the existence of ‘an unfounded connection between paedophiles and homosexual men (in my case)’.

33In support of this argument, Mr Burns cited two decisions of this Tribunal on section 49ZT of the Act (Burns v Dye [2002] NSWADT 32 and Carter v Brown [2010] NSWADT 109) and two decisions of the Anti-Discrimination Tribunal of Queensland on the equivalent provision in Queensland legislation (GLBTI v Wilks & Anor [2007] QADT 27 and Wilson & McCollum v Lawson and Anor [2008] QADT 27).

34In reaching our conclusions as to the interpretation of section 49ZT, we have sought to apply the following principles stated by Bathurst CJ in the leading case on the section, Sunol v Collier (No 2) [2013] NSWCA 196, at [41]:-

41 In these circumstances, s 49ZT should be construed as follows:

(a) 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.

(b) It is not necessary for a contravention that a person actually be incited.

(c) 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.

(d) It is not necessary to establish an intention to incite….

35Subject to two qualifications of relatively little significance, we agree with Mr Burns’ argument. In our opinion, the statements by Ms Corbett that we have quoted above at [19] did contain the component of ‘incitement’ required by section 49ZT(1) of the Act.

36All of these statements were included in the article published by the Hamilton Spectator on 22 January 2013. Subject to one exception, they were all republished on websites controlled by this newspaper, the Sydney Morning Herald, the Australian and the ABC. We find accordingly that each of the three ‘public acts’ committed by Ms Corbett fell within the scope of section 49ZT(1).

37The main consideration underlying these conclusions is that, as Mr Burns pointed out, Ms Corbett encouraged people to regard homosexuals as ‘in the same category as’ paedophiles. For highly distressing reasons, the Australian public at the present day is being made particularly aware of the serious and long-lasting psychological damage suffered by victims of paedophilia. At any time, and especially at this time, any pronouncement that ‘brackets’ (for want of a better term) homosexual people with paedophiles is ‘capable of’, or has the effect of, ‘urging’ or ‘spurring on’ an ‘ordinary member of the class to whom it is directed’ to treat homosexuals as deserving to be hated or to be regarded with ‘serious contempt’. Ms Corbett’s claims that these two groups are ‘in the same category’ and that in due course the latter group will ‘be recognised in the same way as’ the former group and will ‘get rights’ are pronouncements of this kind. They do not merely offend or insult: they ‘incite’ these negative reactions.

38The two matters on which we part company with Mr Burns’ submissions are these.

39First, in our opinion, neither of what we have called the two ‘additional statements’, published on the websites of the Sydney Morning Herald and the Australian respectively, falls within the scope of section 49ZT(1). The first of these two statements was simply to the effect that ‘gays and lesbians and paedophiles were “moral issues”‘. The second was that homosexuality was ‘against the word of God’. Neither statement, whether considered in isolation or in context, involved incitement to ‘hatred’ or ‘serious contempt’.

40Secondly, the question whether any readers of Ms Corbett’s statements were actually incited to experience hatred or serious contempt towards homosexual people on the ground of their homosexuality is not relevant in the present context. A number of authorities, including the passage from Sunol v Collier (No 2) that we have just quoted, have made this clear.

41There is no basis for believing that the defence, or ground of exemption, created by section 49ZT(2) might be available to the Respondent in these proceedings. One reason is that if the respondent to a complaint of unlawful homosexual vilification does not appear and give evidence, he or she has very little chance of satisfying the requirement of good faith contained in this provision.

42We need only refer to one of the four decisions on which Mr Burns relied, namely, GLBTI v Wilks & Anor [2007] QADT 27. The other three were concerned with situations differing substantially from those of the present case.

43In Wilks, the publication claimed to have vilified homosexual people unlawfully was a letter to a local newspaper published by it in the following terms (after some editing):-

To the Editor

Would you please notify your readers of the following:

POOFTERS BEWARE!!!

Homosexuals have been frowned upon, but tolerated by Garners Beach residents. However, recently they went too far. They were seen having acts on the 2nd beach at Garners in daylight and seen by kids, families etc.

A meeting of locals ensued. Three posses of five vigilantes were elected.

(Here follows threats which I am not prepared to print in a magazine which is delivered to every mailbox in the 4852 postal area. Ed.)

Homosexuals will be warned, told to leave and should do so.

Please don’t print my name and address for obvious reasons

44In holding that both the writer of the letter and the editor and publisher of the newspaper had engaged in unlawful homosexual vilification, the Queensland Anti-Discrimination Tribunal said (at [16 – 19]):-

16 The reader of the letter in my view is invited explicitly or implicitly to engage in conduct adverse to the interests of homosexuals. Moreover that such conduct is appropriate conduct is supposedly evidenced by support from the local populace.

17 The complainant’s Senior Counsel made five points about the correspondence (as sent or as published):

(a) The target of the correspondence were homosexuals;

(b) Homosexuals were (whatever the observed conduct) banned from public beaches near Mission Beach;

(c) The reason for the ban was at its most general that the days of reluctant tolerance of homosexuals in Mission Beach were over;

(d) The new intolerance was occasioned by the detrimental impact of homosexuals on the welfare of children and families;

(e) The new intolerance was expressly supported by the general populace.

17 I agree. I think this public act (by publication of a letter in the form set out) is more than a mere conveyance of a personal intolerance of people (of whatever sexuality) committing sexual acts in public. It expressly portrays an intolerance of homosexuals and incites people to express that intolerance by demanding homosexuals leave the beaches around Mission Beach and inviting members of the public to assault or otherwise take action against those people if they decline to move on.

18 I was initially concerned that the entirely fictitious story invented by [the writer of the letter] could not be taken seriously by reasonable members of the community. But incite does not merely mean to bring into existence – the test is not whether conduct would create hatred, contempt or ridicule only where it had not previously existed. Here it is important to remember that Mr Wilks was the editor of a paper with wide circulation in Mission Beach – a paper which publishes both its own and others opinions publicly. To use the forum provided by the newspaper to publish such material to a population which may include people who are “reluctantly tolerant” of homosexuals, objectively incites those if not others to cease tolerance and proceed down the path of hatred, ridicule and contempt.

45For reasons similar to those explained in this passage, Ms Corbett’s statements did not merely ‘portray an intolerance of homosexuals’ but also ‘incited people to express that intolerance’.

46We are satisfied for the foregoing reasons that by each of the three ‘public acts’ that we have identified, Ms Corbett engaged in unlawful homosexual vilification as defined in section 49ZT of the Act.

47We turn now to the question of remedies. In relation to this question, we treat the following matters as relevant.

48First, Ms Corbett, at the time of these public acts, was the relatively recently endorsed candidate at Federal level of a political party which, although small, enjoyed a significant public profile. As the immediate republications of her statements illustrated, she and her opinions were moderately newsworthy.

49Secondly, her statements attracted positive responses from the general public, some of which appeared on the printouts from the Facebook page of the Hamilton Spectator. We treat this as relevant to the question of remedies, though not, as we said above, to liability.

50Thirdly, the passage that we admitted into evidence (see above at [15]) from a report, dated 9 March 2005, of a New South Wales Coroner’s inquest into three deaths demonstrated that a victim of paedophilia may well be susceptible to statements ‘bracketing’ homosexual people with paedophiles. The transcript of this witness’s evidence to the inquest included the following passage:-

Because I was raped and bashed by a man for years, so therefore I thought, okay this bloke here was a man he had sex with another man even though it was another human as a male. So me not having the social skill or the education back then, or the mentality or whatever to differentiate – I couldn’t differentiate between paedophilia and homosexuality.

51The same witness also said in relation to homosexual men: ‘I hated them with a passion.’

52Fourth and finally, we accept, as relevant to Mr Burns’ submission that Ms Corbett should convey an apology to him personally, his testimony that his brother, having been a victim of paedophilia, committed suicide at the age of 17.

53Taking these matters into account, we conclude that each of the remedies sought by Mr Burns is appropriate to the occasion.

54We order as follows:-

1. The complaint of unlawful homosexual vilification is substantiated with regard to statements, reproduced in paragraph [19] of this decision, that were made by the Respondent to the representatives of different newspapers on three occasions during late January 2013.

2. The Respondent is to refrain from conduct contravening section 49ZT of the New South Wales Anti-Discrimination Act 1977.

3. Within twenty-eight (28) days of the date of this decision, the Respondent is to procure, at her expense, the publication of the following apology in a reasonably prominent position in the Sydney Morning Herald:

This apology is made pursuant to an order of the Administrative Decisions Tribunal of New South Wales (ADT) made on 15 October 2013.

On three occasions during late January 2013, I made statements concerning homosexual people to the representatives of different newspapers, and expressly or implicitly authorised the publication of my statements by these newspapers.

On 15 October 2013, the ADT held that my statements amounted to unlawful homosexual vilification. The ADT found that they were capable, or had the effect, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. The ADT also found that my statements were not published reasonably and in good faith for purposes in the public interest.

I apologise for publishing these statements. I acknowledge that the words that I used vilified homosexual people in breach of the New South Wales Anti-Discrimination Act 1977. The aim of this Act is to promote tolerance, understanding and acceptance in the community. The Act sets limits on what can be said or done in public.

4. The Respondent is to forward a signed letter of apology, in the terms set out below, to the Applicant at the address set out below by ordinary post within 28 days of the date of these orders.

Mr Garry Burns

PO Box 77

PADDINGTON NSW 2021

Dear Mr Burns

The Equal Opportunity Division of the Administrative Decisions Tribunal, in a decision dated 15 October 2013 and entitled Burns v Corbett, has found me to be in breach of provisions of the Anti-Discrimination Act 1977 which state that vilification of homosexual people, as defined in those provisions, is unlawful.

I offer my apologies for that behaviour.

Yours faithfully

Tess Corbett

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