Tag Archives: Anti-Discrimination Campaigner Garry Burns

McKee Ordered To Apologise

Image result for geoff mckee

McKee given 14 days to apologise

Geoffrey McKee, father of serial Homophobic cyber stalker Luke McKee, a defendant under the Anti-Discrimination Act 1977 (NSW), was found to have unlawfully vilified male homosexuals by suggesting they (male homosexuals), are 3 times more likely to molest male children.

Civil and Administrative Tribunal – New South Wales, within 14 days of the date of this decision, the defendant is to post the following *apology, attributed to him, on the Causes.com website and every website controlled by him, such apology to remain on the website for the life of the website or at least six months whichever is the lesser:-
Details on *apology can be found here with entire transcript Case Law NSW

Sunol Pleads Guilty –

Image may contain: 1 person, sunglasses, hat, glasses and close-up

John Sunol – Found Guilty

John Christopher Sunol pleaded guilty in the Newcastle Local Court on the 2 March 2017 to using a carriage service to cause offence.

The Magistrate’s orders were that the offender John Christopher Sunol, is to be released under section 19B ( 1 ) ( d ) of the Crimes Act 1914 ( Commonwealth ), without proceeding to conviction on the following conditions ;
The offender gives security in the sum of $1, 000. The offender to be of good behaviour for 2 years. Sunol is not to continue any activity with a Commonwealth carriage service which identifies me or names the victim Garry Burns.

His Honour made it very clear to Mr Sunol that if he breaches the orders he could receive a jail penalty on his return.

BERNARD GAYNOR : “ SAME SEX MARRIAGE IS ABOUT 2 MEN WALLOWING IN THEIR OWN EXCREMENT, THAT’S NOT SEX “

MEDIA RELEASE

BERNARD GAYNOR : “ SAME SEX MARRIAGE IS ABOUT 2 MEN WALLOWING IN THEIR OWN EXCREMENT, THAT’S NOT SEX “

FOR IMMEDIATE RELEASE

14 November 2016

NSW Anti-Discrimination Campaigner and public interest litigant Garry Burns has lodged a number of complaint’s under the NSW Anti-Vilification Provisions of the ADA 1977 ( NSW ) against QLD resident Bernard Gaynor over a number of statement’s he published on the internet that Mr Burns alleged were harmful to homosexual Australians.

SAME SEX MARRIAGE IS ABOUT 2 MEN WALLOWING IN THEIR OWN EXCREMENT, THAT’S NOT SEX ”, RETWEETED Mr Gaynor.

 

“ How could that statement concern serious questions on enrichment toward the Great Conversation in the following ideas claimed by Mr Gaynor as quoted in one of his recent Defence’s filed. ( sic )

 

a. Morality ;

b. Public policy on political freedom ;

c. Religious freedom ;

d. The implied constitutional freedom of political opinion ;

e. The Public interest ;

f.  Threads posed to those freedoms and ideas ;

g. Open and frank participation in the Great Conversations that these issues pertain to.

His above statement goes a step further because it clearly vilifies male homosexuals based on their homosexuality , “ said Mr Burns. 

 

The NSW Supreme Court of Appeal will hear an Application lodged by Mr Gaynor on Wednesday 30 November and and Thursday the 1 December 2016 at 10am challenging jurisdiction and constitution.

 

The court will determine and hear the proceeding involving the matter of an Applicant and Respondent living in different states in relation to the ADA 1977 ( NSW ).

 

“ Basically what Mr Gaynor is legislating for is a right to sit on his computer somewhere in Queensland and publish material on his website / Facebook pernicious to homosexual Australians claiming that I and others who share my characteristic ( homosexuals ) don’t have jurisdiction to lodge a homosexuality vilification complaint against him under any state or territory discrimination or equal opportunity provision because the public act according to Mr Gaynor occurred in QLD and not NSW.

Regarding the public act, the Dow Jones decision states, regarding the internet, an act occurs where the content is downloaded.

The internet crosses all state and territory boundaries and any jurisdictional argument put forward by Mr Gaynor in his application must fail.

This case for me involves a very important question of law to be explored and I will fight for it “ said Mr Burns.

 

ENDS

MEDIA ENQUIRIES

GARRY BURNS

02-9363-0372

0407-910-309

garryburnsantidiscriminationactivist.com 

 

Burns V Sunol – – – “unlawful homosexual vilification”

NSW Crest

Civil and Administrative Tribunal
New South Wales

Medium Neutral Citation:
Burns v Sunol [2016] NSWCATAD 74
Hearing dates:
10 November 2015
Date of orders:
19 April 2016
Decision date:
19 April 2016
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
A Britton, Principal Member
E Hayes, General Member
Decision:
(1)The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.
(2)The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.
(3)The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.
(4)The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.
(5)Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or operated by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):

On various dates throughout 2015, I published statements on various websites concerning homosexuality and homosexual people.

NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.

I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.

John Sunol

.

Catchwords:
EQUAL OPPORTUNITY — homosexual vilification — whether a publication was a public act of the respondent — whether the publication had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons

EQUAL OPPORTUNITY — victimisation — meaning of “detriment” — whether loss or damage suffered — whether any detriment suffered was “on the ground” of the person victimised having made complaint of unlawful vilification

RELIF — utility of making restraining order where a restraining order is in existence

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Cases Cited:
Bogie v The University of Western Sydney (1990) EOC 92–313
Burns v Dye [2002] NSWADT 32
Burns v Sunol (No 2) [2014] NSWCATAD 126
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2015] NSWCATAD 131
Burns v Sunol [2015] NSWCATAD 178
Burns v Sunol [2016] NSWCATAD 16
Jones v Trad [2013] NSWCA 389
Kazak v John Fairfax Publications Limited [1995] EOC
Margan v Manias [2015] NSWCA 388
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier (EOD) [2006] NSWADTAP 51
Sunol v Collier and anor. (No 2) [2012] NSWCA 44
Category:
Principal judgment
Parties:
Garry Burns (Applicant)
John Sunol (Respondent)
Representation:
Solictors:
Mr Burns (Applicant in person)
Mr Sunol (Respondent in person)
File Number(s):
1410195, 1410218, 1410717

REASONS FOR DECISION

  1. John Sunol, the respondent in these proceedings, made an application to the NSW Civil and Administrative Tribunal (NCAT) for orders under s 102 of theAnti-Discrimination Act 1977 (NSW) (the Act), to dismiss three complaints made by Garry Burns to the President of the Anti-Discrimination Board (the Complaints). In those complaints Mr Burns alleged that by publishing material on the internet Mr Sunol vilified homosexual persons and also victimised him, in contravention of the Act. The Tribunal (constituted by Principal Member Britton), declined to make the orders sought by Mr Sunol (Burns v Sunol[2015] NSWCATAD 178 (“Burns 2015)).
  2. The material the subject of the Complaints (the offending material) was published either on a website operated by Mr Sunol or on websites operated by third parties (third party content).
  3. On 4 September 2015 Principal Member Britton directed the parties to make written submissions addressing whether, in relation to each complaint, the elements of s 49ZT (unlawful homosexual vilification) and/or s 50 of the Act (victimisation) were satisfied. In answer to that direction Mr Burns filed written submissions on 10 September 2015. No submissions were received from Mr Sunol. A hearing was subsequently conducted to determine the Complaints.
  4. In relation to the allegations of homosexual vilification the primary issues to be determined are:
  1. Whether the communication of the offending content was a “public act” of Mr Sunol.
  2. If so, whether the offending content had the capacity to incite hatred towards, or serious contempt for, homosexual person(s).
  3. If so, whether the requisite emotion was incited “on the ground of” the homosexuality of the person(s).
  4. If yes, whether, as Mr Sunol contends, one of the exceptions listed in s 49ZT applies.
  1. In relation to the allegation of victimisation the primary issues are:
  1. Whether Mr Sunol subjected Mr Burns to “a detriment”
  2. If so, whether it was “on the grounds” that Mr Burns had alleged that Mr Sunol had vilified homosexuals and/or brought proceedings under the Act.
  1. In these reasons we adopt the description of the Complaints used in Burns 2015: Complaint 1: NCAT no. 141095; Complaint 2: NCAT no. 1410218; Complaint 3: 1410717.
  2. For the reasons discussed below we find each Complaint to be substantiated in part.

ALLEGATION OF VILIFICATION

Can Mr Burns make a complaint of vilification?

  1. In submissions made in support of the dismissal application, it was contended for Mr Sunol that, by the operation of s 88 of the Act, it was not open to Mr Burns to make a complaint of homosexual vilification because there was “no evidence” that he “has the characteristic [being homosexual] that was the ground for the conduct that constitutes the alleged contravention”.
  2. At hearing Mr Sunol advised that he no longer disputes Mr Burns’ claim of being homosexual.

Statutory framework: homosexual vilification

  1. Section 49ZT of the Act makes homosexual vilification unlawful:

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.

  1. The Act defines “public act” to mean:

“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.

  1. Section 49Z states:

… A reference in this Part to a person’s homosexuality includes a reference to the person’s being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

Complaint 1: 1410195

  1. In a complaint lodged with the President on 7 March 2014, Mr Burns asserted that material posted on Mr Sunol’s website between 5 March and 7 March 2014 amounted to “homosexual vilification and serious homosexual vilification”.
  2. Mr Burns claims that he visited Mr Sunol’s website on 5 March 2014 and downloaded the following content:

alternative text version – downloaded content 5 Mar 2014 (36.9 KB, rtf)

  1. In addition, Mr Burns claims that when he clicked on the link appearing on that page it opened to the website of “Right Wing America”, (RWA website). He claims he downloaded 27 pages of material from that website, which he forwarded to the President (see report forwarded by the President of the Anti-Discrimination Board (the President) to the Tribunal under s 94A(2) of the Act (the President’s report)).

Scope of complaint

  1. In his initiating complaint, Mr Burns asserted that “all of the material” downloaded from the RWA website vilified homosexuals. In written submissions dated 4 September 2015, Mr Burns narrowed the scope of his complaint to two of the 17 passages listed in the Summary of Complaint contained in the President’s report.
  2. Because some people may find the two passages offensive, we have decided not to reproduce them in full in these Reasons.
  3. The first of the two passages is said to have been posted by “Sgt Rock” and is identified in the President’s report as Statement 1 (Statement 1). The clear imputation conveyed by that statement is that homosexual men are child molesters who have gone to “all ends to push their vile message on everyone including children”. It goes on to pronounce “we” will take action to stop “this sh**”.
  4. The second statement identified as Statement 3 in the President’s report, is said to have been posted by “John J” (Statement 3). In that statement “John J” wrote that when he opened a “faggot on boy link” his site crashed and these “queerbulous bastards” need to be physically attacked.

Is the offending communication a public act of Mr Sunol?

  1. There is no argument that the publication of material on the internet, which as in this case is not password protected, is “a form of communication to the public” and thus a “public act” as defined by s 49ZS(a). Nor is it disputed that the publication of Statements 1 and 3 on the RWA website is a “public act”. The issue in dispute is whether it is Mr Sunol’s public act.
  2. In Burns v Sunol [2016] NSWCATAD 16 (Burns 2016), the Tribunal (differently constituted) in addressing a similar factual situation involving the same parties identified at [33] the “real issue [as being] whether [Mr Sunol’s] actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material”. Adopting the approach taken in Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal wrote at [34] that “the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images”.
  3. Mr Sunol claims not to be the operator of the RWA website, the author of Statements 1 and 3 (the offending statements), or to place those statements on that website. Mr Burns acknowledges there is no evidence to contradict those claims but contends nonetheless that the communication of the offending statements was the public act of Mr Sunol because:
  • The surrounding content makes plain that Mr Sunol was expressly inviting users of his website to click on those links and view the material on the RWA website
  • Mr Sunol was expressly endorsing the offending passages by posting the statement, “Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements”.
  1. In these proceedings Mr Sunol conceded that he placed the link and the surrounding material set out at [14] of these Reasons on the website. He also stated that he did not agree with all of the material on the RWA website and conceded some was “a bit extreme”. He said that he had pasted the material on his website from material supplied by Luke McKee. He said he agreed with a lot of what Mr McKee had to say, but not the “dirty bits”.
  2. A number of conflicting accounts were given about what Mr Sunol knew of the content on the RWA website when he placed the subject link and the accompanying commentary on his website. At the hearing, he conceded he had a general understanding but claimed he took down the subject link once he fully appreciated the content of the offending statements. He said he could not remember when this happened but thought it was probably in about September 2014. In a letter dated 19 March 2014 addressed to the President, he wrote that he had neither read nor looked at the material and the first time he did so was when he received notice of Complaint 1. Mr Sunol was first notified of Complaint 1 on 13 March 2014.
  3. The offending content was able to be accessed in a number of ways: through the subject link on Mr Sunol’s website and directly via the RWA website. It may be that other websites also contained links to the RWA website. That the offending statements were communicated to the public in a number of ways of itself does not exculpate Mr Sunol.
  4. Read together with the statement, “Go into these links and you will see what I believe to be correct as I back and follow this person, Luke McKee over these statements”, we find that the material appearing on Mr Sunol’s website constituted an express invitation to users to click on the offending link and view the offending passages. We find Mr Sunol was responsible, in the relevant sense, for the “public act” of communicating the offending statements to the public.

Did the offending material have the capacity to incite?

  1. In Burns 2016, the Tribunal (differently constituted) noted at [9] that the vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan) and summarised at [9] the following principles:

(a) an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])

(b) “incite” in s 49ZT 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 (Sunol at [41]; Margan at [11])

(c) for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41]; Margan at [12])

(d) it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])

(e) the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])

(f) in making that assessment the particular class to whom the act is directed, the audience or likely audience, must be identified and considered (Sunol at [34]; [61];Jones at [62], [63]).

  1. NCAT and one of its predecessor tribunals, the Administrative Decisions Tribunal (ADT) has consistently held that the words “hatred” and “serious contempt” in the vilification provisions of the Act are to be given their ordinary meaning and has adopted the following definitions:

‘hatred’ means ‘intense dislike; detestation’ (Macquarie), ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’ (Oxford).

‘serious’ means ‘important, grave’ (Oxford); ‘weighty, important’ (Macquarie);

‘contempt’ means ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie).

See, for example, Burns v Dye [2002] NSWADT 32 at [23]; Kazak v John Fairfax Publications Limited [1995] EOC 92-701 at [40]; Burns 2012 at [112].

  1. Adopting these principles, the question posed by s 49ZT of the Act is whether as claimed by Mr Burns the offending statements had the capacity to incite — to rouse, to stimulate, to urge, to spur on, to stir up or to animate — hatred towards, serious contempt for, homosexual(s) in the ordinary member of the group to whom the material was directed, that is viewers of his blog, on the grounds of their homosexuality. In answering that question we must first identify the relevant audience and then consider whether each statement is likely to have the capacity to incite towards, hatred or contempt for the notional ordinary (or ordinary reasonable member) of that audience.

Identification of the audience

  1. The relevant audience are internet users to whom the offending statements were directed. Apart from Mr Burns, we have no evidence about the identity of the persons who viewed the offending statements via Mr Sunol’s website.
  2. Mr Sunol asserts that many people follow his blogs. He claims to know this because he receives numerous comments about material posted on his blog through his Twitter account. He claims that some of his “followers” share his views but many are “politicians, academics, media and business people” who are just interested in the issues. He also claims to be followed by “a bunch of trolls who say they know Gary [Burns]”.
  3. Given the dearth of evidence it is not an easy task to identify the relevant audience. While possible that no one apart from Mr Burns visited Mr Sunol’s website or clicked on the subject link and read the offending passages, we think consistent with Mr Sunol’s claims that some people visited his website and through it accessed the RWA website.
  4. As discussed in Burns 2016 at [39] – [41] it is likely that the people who accessed the offending statements via Mr Sunol’s website were not a homogenous group and probably held a diversity of views about homosexual men, ranging from favourable to unfavourable.

Ordinary or ordinary reasonable member of the relevant audience?

  1. In Burns 2016 at [42]–[45], the Tribunal examined whether the assessment of the capacity of the impugned act to incite is to be made by reference to the “ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience. We adopt the approach taken by Bathurst CJ in Sunol at [34] and will measure the capacity of the offending statements to incite by reference to their effect on the notional “ordinary member” of the relevant group to whom the act is directed, namely users of Mr Sunol’s website.

Consideration

Statement 1

  1. The unambiguous imputation conveyed by Statement 1 is that homosexual men are paedophiles who actively promote their “vile message”.
  2. Whether an impugned public act has the capacity to incite one or more of the requisite emotions requires an objective evaluation and consideration of the act itself, the context in which it occurred, the surrounding circumstances, the language used, together with the identification of the relevant audience and any relevant characteristics or features of that audience. In making that evaluation, a decision-maker must guard against consciously or otherwise allowing their own reaction to the public act to influence their evaluation of its capacity of the act to incite one of the relevant reactions in the ordinary member of the group. It goes without saying that this task does not lend itself to empirical evaluation and will inevitably be impressionistic. There will be cases because of factors such as the persuasive nature of the language used, the method of communication and/or a particular characteristic of the members of the group which may predispose them to incitement, where there will be little doubt that the act had the capacity to evoke one or more of the relevant reactions in the ordinary member of the target group. Conversely, at the other end of the scale there will be public acts where there will be little room for doubt that it did not have the capacity to evoke those emotions. However, between these two extremes will invariably lie public acts where reasonable minds will differ on whether, objectively assessed, the act has the capacity to incite.
  3. As the Tribunal commented in Burns 2016 at [47], in Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to imagine a more damaging slur or insult to level at an individual or group of persons. Statement 1 does more than merely express hatred and serious contempt towards homosexual men; in our opinion it also urges the reader to adopt those feelings.
  4. As discussed, the relevant audience to which this message was directed is not a homogenous group. It is unlikely that the statement had the capacity to incite hatred towards or serious contempt for homosexual men among members of the group who, like Mr Burns, hold positive views about homosexual men. Nonetheless, on the balance of probabilities, we find the statement had the capacity to incite hatred of, or serious contempt towards, homosexual men in the ordinary members of the group.

Statement 3

  1. The message conveyed by Statement 3 is that after viewing a link featuring male homosexual sex “John J” reacted with disgust — “I couldn’t stand anymore” — and felt propelled to violently assault these “querulous bastards”.
  2. The statement plainly conveys the writer’s contempt and disgust for male homosexuals, however we have concluded that it lacks the capacity to incite those emotions in the ordinary member of the group. The statement is in effect a rant and is neither well written, cogent, nor persuasive. In contrast to Statement 1 it does not convey the serious imputation that male homosexuals are, or have a tendency to sexually abuse children. While it uses derisory and insulting terms to describe male homosexuals and homosexual sex, we are not persuaded that it is capable of inciting the requisite ill-feeling in the ordinary member of the group.
  3. Not being satisfied that this element of s 49ZT(1) is established, this part of Complaint 1 must be dismissed.

Did Statement 1 have the capacity to incite “on the ground of” homosexuality?

  1. We must decide whether at least one of the “real”, “genuine” or “true” reasons for Statement 1 having the capacity to incite hatred towards, or serious contempt for, homosexual men, was their sexuality (Jones at [98];). The “target” of each offending statement was unmistakably homosexual men, apparently in general. There is nothing to suggest from the language used or the context in which Statement 1 appears that some other feature or characteristic of this group was likely to have been a contributing factor to the incitement. We find Statement 1 had the capacity to incite each of the relevant emotions towards homosexual men on the grounds of their homosexuality.

Conclusion

  1. Statement 1 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Statement 3 is dismissed.

Complaint 2: 1410218

  1. In this complaint lodged with the President on 17 March 2014, Mr Burns alleged that the following material which appeared on Mr Sunol’s website on 14 March 2014 vilifies male homosexuals:

That will make * ** going crazy. Proof a gay man is 3 times more likely to

rape children! My dad explains it in simple english.

Embed both of the you tube videos on those pages like i showed you

What he going to do? Jail you for having you tube videos from the ABC, with links to world media reports? ** ** him

  1. The material claimed by Mr Burns to fall within s 49ZT(1) is the statement “Gay men are three times more likely to rape children”.

Did the offending material have the capacity to incite hatred towards, or serious contempt of homosexual men?

  1. The message conveyed by the statement is unambiguous: “Gay men are three times more likely to rape children”. As stated above in our opinion it is difficult to imagine a more damaging slur or insult that to accuse person or group of being a paedophile.
  2. We find the composition of the relevant audience to whom the message was directed (readers of Mr Sunol’s website) to be the same as that identified in relation to Complaint 1. For the reasons given above we think it more probable than not that the statement had the capacity to incite each of those emotions in the “ordinary member” of the group. That conclusion is bolstered by the use of the reference to statistics — “three times more likely” — which tends to imply that there is some factual basis for the claim and it was based on some statistical evidence.

Did the offending statement have the capacity to incite “on the ground of” homosexuality?

  1. The “target” of the offending statement is expressly stated to be “gay men”. There is nothing to suggest from the language used in the statement or the context in which it appears that some other feature or characteristic of this group was a contributing factor to the incitement. We find the statement had the capacity to incite each of the relevant emotions towards homosexual men on the ground of homosexuality of the members of that group.

Conclusion

  1. We find each element of s 49ZT(1) of the Act to be satisfied.

Complaint 3: 1410717

  1. In this complaint lodged with the President on 8 September 2014, Mr Burns claimed that material appearing on Mr Sunol’s website on 5 September 2015 constitutes both homosexual vilification and victimisation. With respect to the material said to constitute homosexual vilification, Mr Burns points to statements such as, “Stop Gary Burns criminalising dissent of ‘Gay Dads’ Baby Rape”. The nub of the allegation in respect of homosexual vilification is that the offending material is said to convey the message that homosexual men in general, and Mr Burns in particular, are paedophiles.
  2. Mr Burns attached to this complaint eight pages of material which cover a range of topics including “the Gay and Lesbian Lobby” and actions he is said to have taken in response to alleged homosexual vilification.
  3. At the request of the Tribunal, at hearing Mr Burns particularised the content he contends falls within s 49ZT(1) of the Act:
  1. The following passage posted on Mr Sunol’s website apparently on 5 September 2014 (Passage 1):

alternative text version – Passage 1 (36.7 KB, rtf)

  1. The following passage posted on a third party website, claimed by Mr Burns to be able to be opened through a link appearing on Mr Sunol’s website, immediately above Passage 1:

(Described by Mr Burns in the complaint as “Attachment B”, see President’s report page 11)

alternative text version – Attachment B (35.6 KB, rtf)

  1. The following passage posted on a third party website, claimed by Mr Burns to able to be opened by a link appearing on Mr Sunol’s website immediately below Passage 1:

(Described by Mr Burns in the complaint as “Attachment A”, see President’s report, page 12)

alternative text version – Attachment A (33.2 KB, rtf)

  1. For convenience we will refer to the above passages as Passages 1, 2 and 3, respectively, and collectively as “the offending passages”

Are the offending passages public acts of Mr Sunol?

  1. Mr Sunol submits that he was not relevantly responsible for any of the offending passages. While he admits placing Passage 1 on his website he submits he is not responsible for its communication to the public because it was written by Luke McKee and, in addition, the surrounding “disclaimer” — “Material I was asked to publish for a Luke McKee …” — made clear he was publishing the material on behalf of Mr McKee. With respect to Passages 2 and 3, he claims he did not write those passages and not did he operate or have any involvement with the websites on which they appeared.
  2. There can be no argument that Passage 1 was a form of communication to the public for which Mr Sunol was relevantly responsible. Whether he wrote the material is not to the point. Nor is the use of the purported disclaimer. By his actions, the material was published and communicated to the public.
  3. The available material does not support a finding that Passages 2 and 3 were written by, or posted on a website operated by, Mr Sunol. Nonetheless, applying the reasoning at [20] – [26] of these Reasons, we find that the communication of Passages 2 and 3 was a form of communication to the public for which Mr Sunol was relevantly responsible.

Did Passage 1 have the capacity to incite hatred towards, or serious contempt of Mr Burns?

  1. Mr Burns asserts that that the reference in Passage 1 to a “militant gay paedophile rights activist” was intended to be a reference to him and that would be apparent to any user of Mr Sunol’s website. He argues that the use of the term “paedophile rights activist” had the capacity to incite hatred and serious contempt of him in ordinary users of Mr Sunol’s website.
  2. Mr Burns hypothesis rests on the assumption that the reader had knowledge of the history between Mr Burns and Geoff McKee [apparently Luke McKee’s father] and Mr Burns alleged “persecution” of Mr McKee.
  3. We accept that the reference to a “militant gay paedophile rights activist” in our opinion was intended by the author to be a reference to Mr Burns. Whether it is likely that that would been apparent to the ordinary user of Mr Sunol’s website cannot be assessed by reference to Mr Burns’ (or our) knowledge of the history between the parties, but rather by reference to the knowledge possessed by the ordinary member of the group. The available evidence does not support a finding that users of Mr Sunol’s website had knowledge of the history between Mr Burns and the McKees or that those matters had previously been ventilated on Mr Sunol’s website. While likely some members were aware that history, on the available evidence we are not satisfied that that knowledge could be imputed to the ordinary user of Mr Sunol’s website.

Did Passage 2 have the capacity to incite hatred towards, or serious contempt of Mr Burns?

  1. Mr Burns contends that Passage 2 had the capacity to incite hatred towards and serious contempt of him because it conveyed the imputation that he is a paedophile on account of being a homosexual male.
  2. Passage 2 conveys a number of messages, which include:
  • That Mr Burns is a “gay paedophile rights activist”.
  • That Mr Burns actively campaigns against self-described “campaign leader” Luke McKee and others opposed to “gay baby rape”.
  • That Luke McKee’s father is being “prosecuted” by Mr Burns.
  • That the Department of Foreign Affairs and Trade is involved in facilitating the sexual abuse of children and helping “150 gay dads”.
  1. The passage portrays Mr Burns in an unfavourable light. However we are not convinced that the meaning conveyed to the ordinary member of the relevant class was, as Mr Burns, contends that he was “a gay paedophile” as opposed to “a gay paedophile rights activist”.
  2. But in any event, even if accepted that this passage had the capacity to incite hatred or contempt towards Mr Burns, we are not satisfied that one of the “real”, “genuine” or “true” reasons for it to have the capacity to incite those emotions was Mr Burns’ sexuality. In our opinion the predominant factor contributing to any incitement is likely to have been Mr Burns’ role in seeking to prevent Mr McKee’s “followers” (if indeed there are any) “speaking out”. We think it unlikely that Mr Burns’ sexuality would have contributed to that incitement in any real or operative way. In reaching this conclusion we note the inherent difficulty of identifying the factor or factor(s) that causes a person to experience the emotion of hatred and/or contempt for another person or persons.

Did Passage 3 have the capacity to incite hatred towards, or serious contempt of male homosexuals?

  1. Passage 3 repeats the assertion made in the material the subject of Complaint 2: “Gay men are three times more likely to rape children”. It goes on to suggest none too subtly that gay marriage is a ruse designed to facilitate the marriage of “two [gay] paedophiles” and their adoption of a child “for the purpose of later sharing with their kind on a ‘boy lover’ network”.
  2. The language used in Passage 3 our opinion is even more powerful and persuasive than that used in Complaint 2. We are satisfied that it has the capacity to incite hatred and serious contempt for male homosexuals on the ground of their sexuality.

Conclusion

  1. Passage 3 satisfies each element of s 49ZT(1) of the Act. The complaint in relation to Passage 1 and 3 is dismissed.

Does the exception in s 49ZT(2)(c) apply?

  1. Section 49ZT(2)(c) provides:

(2) Nothing in this section renders unlawful:

(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.

  1. In submissions filed in support of the dismissal application, it was asserted for Mr Sunol that the above exception applied in respect of each complaint. At hearing he stated he only relied on the exception in relation to Complaint 2 and was “dead against” the material the subject of Complaints 1 and 3.
  2. Mr Sunol asserts that the offending statement the subject of Complaint 2 — “Gay men are three times more likely to rape children — was published for academic purposes to encourage debate about matters of public importance. He stated he has “nothing against homosexuals” but agrees with the offending statement “in a sort of academic way”. He claimed the statement was based on what he had been told by Geoff McKee who has researched the area and considered “academic material from one of the universities”. He stated he had read “bits of” but not all of the material relied upon by Geoff McKee.
  3. Mr Sunol bears the onus of establishing that this exception applies (s 104 of the Act). He has produced no evidence of any academic articles which support the proposition that “Gay men are three times more likely to rape children”. By his own admission he has made no independent enquiries about the truth or otherwise of the claims made by Mr McKee. At its highest his evidence is that he glanced at some literature he was provided by Mr McKee.
  4. Even if accepted that Mr Sunol published the offending statement to encourage debate about matters of public interest, he has failed to discharge the onus of establishing that he acted “reasonably and in good faith”. Accordingly it is not open to him to rely on s 49ZT(2)(c) of the Act.

ALLEGATION OF VICTIMISATION

  1. In Complaints 2 and 3 Mr Burns also alleged that he was victimised by Mr Sunol in contravention of 50 of the Act, which provides:

50 Victimisation

(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.

  1. Mr Burns must establish:
  1. That by the publication of the challenged material Mr Sunol subjected him to a detriment.
  2. That Mr Sunol did so “on the ground” that he had done one of the things listed in par. (a),(b), (c) and/or (d) of s 50(1).

Complaint 2

  1. Mr Burns contends that he was victimised by Mr Sunol by the publication of the following statements on his website:

That will make * ** going crazy. Proof a gay man is 3 times more likely to

rape children! My dad explains it in simple english.

I left out a name as i have court order not to put his name in the email I ma publishing and i do not want to breach order

This material is very serious and I think that all should watch this video I put online

Was Mr Burns subjected to a detriment?

  1. The word “detriment” in the context of s 50(1) of the Act means “loss, damage or injury” that is “real and not trivial” (see Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40] and Bogie v The University of Western Sydney (1990) EOC 92–313 at 78,146). Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken (Sivananthan v Commissioner of Police, NSW Police Service at [41]).
  2. Apart from a one line entry in his statement of claim — On reading each of the above statements the Applicant was shocked, humiliated and angry —Mr Burns provided no further particulars or any supporting evidence of the alleged detriment suffered. From the available material it cannot be discerned whether Mr Burns’ alleged reaction was because he believed the offending statements vilified homosexual men or because he was being targeted by Mr Sunol for his actions in making complaints to the President. While possible, we think it unlikely having read and considered numerous comments made by Mr Sunol of the type about which he now complains, that Mr Burns would have reacted with feelings of shock, humiliation and anger. Mr Burns bears the onus of proof and has failed to discharge that onus.
  3. We understand Mr Burns to also claim that by the publication of the offending material he suffered damage to his reputation because it conveyed the suggestion that he was a person who raped children. Elaborating on that argument he contends it would have been evident to the reader that he was the subject of the offending comments or the person referred to as “***”. In support he points to the following entry on Mr Sunol’s website which appears about 20 lines on from the passages complained about:

Labels: Gary Burns, John Christopher Sunol, John Sunol, Luke McKee.

  1. We reject that argument for these reasons. First, we do not accept the proposition that it would have been evident to users of Mr Sunol’s website that Mr Burns would have been the person referred to in the statements: “That will make * ** going crazy” and those referring to court orders and the like. While we accept that Mr Sunol was referring to Mr Burns, that connection could only be drawn by persons who had knowledge of the history between the parties. It is not apparent how the mention of Mr Burns’ name under the heading “label” would lead the reader to make that connection. Second, even if assumed that the reader would have made that connection, we are not persuaded that the statement carried the imputation that Mr Burns had a propensity to sexually abuse/rape children. Rather the imputation carried is that the statement would have infuriated Mr Burns.
  2. Not being satisfied that Mr Burns was subjected to a detriment this part of Complaint 2 must be dismissed.

Complaint 3

  1. The publication complained of is the following passage said to have appeared on Mr Sunol’s website on 6 September 2014.

(The handwritten notation was made by Mr Burns)

alternative text version – Passage 6 Sep 2014 (36.6 KB, rtf)

  1. There is no evidence to refute claim Mr Burns’ claims that when he opened the link appearing on the page it took him to the decision Burns v Sunol (No2)[2014] NSWCATAD 126 on CASELAW, a NSW Government website which publishes decisions of NSW Courts and Tribunals.

Was Mr Burns subjected to a detriment?

  1. The above content describes Mr Burns as being corrupt, accuses him of abusing the courts, being a thief and abusing the law. In contrast to Complaint 2 there can be no doubt that Mr Burns was the target of these comments.
  2. We have no evidence about Mr Burns’ reputation as perceived by others and therefore make no finding as to whether in fact Mr Burns was damaged by the publication of those comments.
  3. Mr Burns’ claim of being “shocked, humiliated and angry” on reading the above material is not implausible. The allegations, in particular the allegation of corrupt conduct, are of a serious nature. While the evidence on which Mr Burns relies is not especially compelling and unsupported, nonetheless we are satisfied on the balance of probabilities that it caused Mr Burns to experience feelings of humiliation and anger. We find by publishing the offending statement Mr Sunol subjected Mr Burns to a detriment that was real and not trivial.

On the grounds of

  1. Mr Burns must also establish that Mr Sunol published the offending material “on the ground” that he had done one of the things listed in s 50(1) of the Act. The phrase “on the ground of” in s 50(1) of the Act has been interpreted to mean one of the ‘real’, ‘genuine’ or ‘true’ reasons (Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]).
  2. Mr Burns contends that the trigger for Mr Sunol’s actions in subjecting him to the detriment of publishing the material about which he complains was because he alleged that Mr Sunol unlawfully vilified homosexuals in contravention of the Act (s 50(1)(c)) and also brought proceedings under the Act (s 50(1)(a)).
  3. Mr Sunol states that these proceedings are the eighth public hearing he has had to “endure” as a result of “the serial complainant’s [Mr Burns] obsessive, vexatious and frivolous complaints against my blogging about Agenda 21 and related issues”. He contends that his ideas are based on “my religious, academic, political, cultural and historical evidentiary beliefs”. He claims that Mr Burns is unfairly abusing the “court system” to silence people who do not share his views.
  4. We find that Mr Sunol published the offending material for a number of reasons, including that he:
  • feels aggrieved at being “singled out” and “unfairly targeted” by Mr Burns
  • believes that Mr Burns’ actions are an affront to free speech
  • considers given the volume of complaints that Mr Burns is not genuine, is “abusing the system” and is in effect a queralent
  1. While likely that these and other factors contributed to Mr Sunol’s decision to publish the offending material, we find that nonetheless at least one of the real reasons he did so is because Mr Burns has made allegations that he has contravened the Act and brought proceedings against him.

Does s 50(2) apply?

  1. While not raised by Mr Sunol at the hearing we note that in submissions filed on his behalf in relation to the dismissal application he foreshadowed his intention to rely on s 50(2) of the Act. The defence contained in s 50(2) only applies if the allegation of a contravention of the Act by the person victimised was both false and not made in good faith. Mr Sunol has not adduced any evidence to support a finding that the allegations made by Mr Burns are “false”. Absent such evidence s 50(2) cannot be relied upon.
  2. It is unnecessary to consider whether the allegations made by Mr Burns were not made in good faith.

Conclusion

  1. The complaint of victimisation in relation to Complaint 2 is dismissed. The complaint of victimisation in relation to Complaint 3 is substantiated.

Relief sought

  1. Mr Burns seeks orders that Mr Sunol issue an apology and be restrained from “any future acts of homosexual vilification”.
  2. Section 108 of the Act states:

(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.

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:

(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

Restraining order

  1. Having found the Complaint in part, we may make an order enjoining Mr Sunol from continuing or repeating any conduct rendered unlawful by this Act (s 108(2)(b) of the Act).
  2. In Burns v Sunol [2015] NSWCATAD 131 the Tribunal (differently constituted) made the following orders:

(1) In this order, “the material” means:

(a) Garry ** ** is after me. Little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. He is evil. I have work to do to help you, protest signs and letters. I am not the case. Your enemy is my enemy and he is evil gay stalker. I will not be raped to death in jail while he watches as he says in his threats to me.

(b) Rape little boys, this is same sex marriage. If you want this sit back in your armchair and let the homosexual lobby push for same sex marriage. This is the end results of same sex marriage. Sit back and enjoy yourself whilst this goes on.

(c) Older homosexuals call their underage love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pedorists ring.

(d) Gay marriage equality makes it even more easier for pedophiles to gain access to their child victims.

(e) Everybody with commonsense knows gay people have issues and are inclined to be pedophiles, but they call sane people ‘homophobic’ and don’t give a damn if children are being hurt.

(f) Gay marriage is child abuse.

(2) The Respondent is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.

  1. Mr Sunol’s appeal against the above decision was dismissed: Sunol v Burns [2015] NSWCATAP 207.
  2. While not identical the material the subject of the orders made in Burns v Sunol [2015] NSWCATAD 131, is broadly similar to the material we found to constitute unlawful homosexual vilification. For that reason we have decided there would be no utility in making a further order under s 108(2)(b) of the Act as it would in effect duplicate an existing order made by NCAT.

Apology

  1. Mr Burns seeks an order that Mr Sunol issue him with an apology.
  2. The efficacy of ordering an apology where a complaint of unlawful vilification is found to be substantiated has been the subject of extensive consideration by, the ADT (see for example, Sunol v Collier (EOD) [2006] NSWADTAP 51).
  3. We have decided it is appropriate to order Mr Sunol to publicly acknowledge that he has contravened s 49ZT of the Act. We order:

Within fourteen (14) days of the date of this decision, Mr Sunol must post an apology in the following terms in a prominent position on every website controlled and/or by him. The apology must remain on the website for the life of the website or at least six months, whichever is the lesser:

This apology is made pursuant to an order of the NSW Civil and Administrative Tribunal (NCAT):

On various dates throughout 2014, I published statements on various websites concerning homosexuality and homosexual people.

NCAT held that those statements amounted to unlawful homosexual vilification in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act). NCAT found that those statement were capable, of inciting hatred or serious contempt of homosexual people on the ground of their homosexuality. NCAT also found that my statements were not published reasonably.

I apologise for publishing these statements. I acknowledge that the Act makes it is unlawful to vilify homosexual people on the ground of homosexuality.

John Sunol

  1. We have decided no useful purpose would be served in requiring Mr Sunol to issue a personal apology to Mr Burns either in relation to the complaint of vilification and victimisation.

Orders

  1. The complaint of homosexual vilification in relation to Statement 1 of Complaint 1 is substantiated. The balance of Complaint 1 is dismissed.
  2. The complaint of homosexual vilification in relation to Statement 1 of Complaint 2 is substantiated.
  3. The complaint of homosexual vilification in relation to Passage 3 of Complaint 3 is substantiated. The balance of Complaint 3 is dismissed.
  4. The complaint of victimisation in relation to Complaint 3 is substantiated. The complaint of victimisation in relation to Complaint 2 is dismissed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 19 April 2016

John Christopher Sunol once again found guilty of vilifying homosexuals

NSW Crest

You’d think by now the people like Sunol who communicate with Luke McKee either by email or by phone would learn that Luke McKee is causing them lots of problems.

In relation to this published decision I would safely say that Luke McKee’s daddy Geoffrey McKee will also be found guilty of vilifying homosexuals when the complaint is finally handed down.
Luke McKee you are causing problems for a lot of people.
This decision substantiates that view one hundred percent.
Warm regards,
Garry Burns.

Anti-Islam Solicitor Robert Remo Balzola loses again

0d61dda

Balzola looses again

Anti-Islam Solicitor Robert Remo Balzola
loses another NCAT encounter with anti-discrimination campaigner Garry Burns.

See below case law.
NSW Crest

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:
Burns v Sunol [2016] NSWCATAD 16
Hearing dates:
15 July 2015
Date of orders:
21 January 2016
Decision date:
21 January 2016
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
A Britton, Principal Member
M O’Halloran, Member
M Murray, Member
Decision:
1.   The complaint is substantiated.
2.   Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined “on the papers”.
3.   Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined “on the papers”.
Catchwords:
EQUAL OPPORTUNITY — homosexual vilification — whether a publication was a public act of the respondent — whether the publication had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual persons
Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Cases Cited:
Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2015] NSWCATAD 40
Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284
Jones v Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1
Jones v Trad [2013] NSWCA 389
Margan v Manias [2015] NSWCA 388
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1997) 194 CLR 355
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier and anor. (No 2) [2012] NSWCA 44
Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Category:
Principal judgment
Parties:
Garry Burns (Applicant)
Christopher Sunol (Respondent)
Representation:
Solicitors:
G Burns (Applicant in Person)
R Balzola & Associates(Respondent)
File Number(s):
1510181

JUDGMENT

  1. In 2014 Garry Burns lodged a complaint with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) about John Sunol, the respondent in these proceedings. The complaint concerns content published on the internet, which Mr Burns contends vilifies homosexuals. Section 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for a person, by a “public act”, to incite hatred towards, serious contempt for, or severe ridicule of a person on the ground that the person(s) is, or is thought to be homosexual.
  2. The material which is the subject of Mr Burns’ complaint was published on a website apparently operated by a third party, Luke McKee (the offending content). Mr Burns contends that Mr Sunol invited followers of his blog to view the offending content by placing on his blog a link to, and a commentary about, the offending content. Mr Burns also contends that as a consequence of this placement Mr Sunol was responsible in the relevant sense for the act of communicating the offending content to the public.
  3. Mr Sunol disagrees and submits that he is not responsible for the material appearing on Mr McKee’s website. He argues that Mr Burns is targeting him, not Mr McKee, because Mr McKee is “outside the jurisdiction of NSW”. Further he contends that Mr Burns’ actions in targeting him and not the “ultimate author” demonstrates that Mr Burns’ complaint is vexatious. He describes Mr Burns as a serial complainant.
  4. The issues that arise for determination are:
  1. Whether the communication of the offending content was a “public act” of Mr Sunol
  2. If so, whether the offending content incited or had the capacity to incite hatred towards, serious contempt for, or severe ridicule of homosexual person(s), and
  3. If so, whether the requisite emotion was incited on the ground of the homosexuality of the person(s).
  1. If the answer to each of the above questions is yes we must also consider whether, as submitted by Mr Sunol, any of the exceptions listed in s 49ZT apply.
  2. For the reasons set out below we have found Mr Burns’ complaint to be substantiated.

Statutory framework

  1. Section 49ZT, makes it unlawful for a person to engage in a “public act” which amounts to homosexual vilification within the meaning of that section:

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.

  1. A “public act” is defined by s 49ZS to include:

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 homosexuality of the person or members of the group.

Legal principles

  1. The vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following principles relevant to this matter may be distilled from those authorities:
  1. an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53])
  2. “incite” in s 49ZT 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 (Sunol at [41]; Margan at [11])
  3. for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41]; Margan at [12])
  4. it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41])
  5. the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61])
  6. in making that assessment the particular class to whom the act is directed/ the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]).

The offending content

  1. Mr Burns complained to the President that the following material, which is reproduced at Tab 1 of the President’s report, appeared on Mr Sunol’s website on 2 December 2014:

image of content published on Mr Sunol’s website on 2 December 2014

text version of content published (50.3 KB, rtf)

  1. In his complaint, Mr Burns claimed that the above link takes the reader to the following page (Attachment A) maintained by Mr McKee who apparently uses the name, “Hojurka”.

Attachment A

text version of Attachment A (52.6 KB, rtf)

“No evidence of link” argument

  1. In written submissions, Mr Sunol asserted that there is “no evidence” that the link to Mr McKee’s website that Mr Burns claims was on his website (theoffending link), “ever existed” and, by the operation of “the rule in Jones v Dunkel”, the complaint must fail.
  2. In a statutory declaration provided to the Board dated 22 December 2014, Mr Sunol declared that:
  1. He was not the author of the “purportedly offensive material’ found in the “said link” [to Mr McKee’s website].
  2. He does not have control over “blocking other parties posting links upon my blogs but only the control of removing material or links that actually appear on my blog”.
  3. On or about 6 December 2014 he noticed and removed from his blog the link described by Mr Burns. He then placed the following note on his website, which shows that the “purportedly offensive material” had been removed:

These articles are put on to show the coming of agenda 21 (coming of the new world order) or a one-world government, and issues related. This is to put all it represents as put in the media and other places such as news papers ect. I will change my writings from time to time as I deem the necessity to do so. johnsunol.blogspot.com.au / johnsunola.blogspot.com.au and johnsunolb.blogspot.com.au – (this blog)

[For convenience we will refer to this passage as “the disclaimer”.]

  1. When questioned in these proceedings Mr Sunol gave a different account. He not only admitted placing the offending link on his website but described to the Tribunal how he did so. He also admitted placing the commentary on his website that appears at Tab 1 of the President’s report.
  2. The suggestion in Mr Sunol’s statutory declaration that “other parties” might have posted the link on his website is implausible, unsupported and contradicted by his oral evidence.
  3. The submission that there is “no evidence” that the page on Mr Sunol’s website and the offending link “ever existed” must be rejected.

“Material does not exist” at time of complaint argument

  1. Mr Sunol contends that because the offending link was allegedly removed before the President notified him of the complaint on 15 December 2014, the President lacked jurisdiction to refer the complaint to NCAT.
  2. This argument is misconceived. There is the nothing in the Act that prevents the President from referring to the Tribunal, or the Tribunal from determining, a complaint where the alleged contravention of the Act has ceased. The only provision in the Act to impose a temporal requirement in relation to the making of a complaint is s 89B(2)(b), which provides that the President may decline a complaint if the alleged conduct occurred more than 12 months before the complaint was made.

The statutory construction argument

  1. Mr Sunol contends that to constitute a “public act”, the impugned act must satisfy either paragraph (a) or (b) and, in addition the second limb of paragraph (c) of s 49ZS — that the alleged vilifier had knowledge that the act 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(s). In support of that contention, Mr Sunol points to the use of the word “and” at the end of paragraphs (a) and (b), which he submits operates to link or “hard wire” those paragraphs with paragraph (c). He cites in support of this proposition, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (Catch the Fire) at [16].
  2. This submission must be rejected. Section 49ZS sets out a non-exhaustive list of acts that constitute a “public act”. The definition lists three broad categories of “acts”:
  • any form of communication to the public, including speaking …, and
  • any conduct (not being a form of communication referred to in paragraph (a)) observable by the public…, and
  • the distribution or dissemination of any matter to the public…
  1. The use of the conjunction “and” at the end of paragraphs (a) and (b) simply indicates that the acts listed in each of the three paragraphs fall within the scope of the definition. This is made plain by the opening words of the definition: “Public act includes …”
  2. The literal meaning of the definition is that an act will constitute a “public act” if it satisfies any one of the three paragraphs listed in s 49ZS. While, as the High Court emphasised in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1997) 194 CLR 355 at 381-2, 384, the proper approach to statutory interpretation is contextual rather than strictly literal, there is nothing in either the definition itself, its context or the language of the Act to suggest that the definition should be construed to mean that an impugned act caught by paragraph (a) or (b), must also satisfy the second limb of paragraph (c).
  3. The decision of the Court of Appeal of Victoria in Catch the Fire does not, as Mr Sunol contends, support the proposition he advances about the operation of the definition. The passage he cites relates to a discussion about the meaning of the word “incitement”.

The disclaimer argument

  1. Mr Sunol contends that the disclaimer posted on 6 December 2014 makes it clear that he was not endorsing the views expressed by Mr McKee but rather encouraging people to “make up their own minds”.
  2. While it is not entirely clear how long the material the subject of Mr Burns’ complaint was on Mr Sunol’s website before the disclaimer was posted, the available evidence indicates that it was at least a couple of days. Mr Burns testified that he saw the material (at Tab 1 of the President’s Report) on or about 2 December 2014. The length of time that the material appeared on Mr Sunol’s website before the disclaimer was posted may be relevant to the issue of relief, but it is otherwise irrelevant to our determination.

Is the offending communication a public act of Mr Sunol within the meaning of para (a) of s 49ZS?

  1. There is no argument that the publication of material on the internet, which as in this case is not password protected, is “a form of communication to the public”. Nor is there any disagreement that the communication of the offending content is a “public act” within the meaning of s 49ZS of the Act. The issue in dispute is whether its communication to the public is a public act by Mr Sunol.
  2. The definition of public act must be read in the context of the substantive provision, s 49ZT of the Act, which makes it unlawful for a person, by a public act to incite … Mr Sunol contends that the offending content was not a form of communication by him but rather a form of communication for which Mr McKee is responsible. Mr Burns, on the other hand, contends that by placing on his website the words “all should read this … all should read this and make their own decision” and providing a link to Mr McKee’s website, Mr Sunol was inviting or encouraging his “followers” to read the offending content. Mr Sunol disagrees and argues that the words on his website were nothing more than a “bald invitation” and are insufficient to attribute responsibility to him for the offending content.
  3. In support of their respective positions, both parties referred us to decisions of NCAT and one of its predecessor tribunals, the Administrative Decision Tribunal, in which both were parties.
  4. In Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal (differently constituted) considered whether Mr Sunol had communicated to the public three publications, which appeared on websites maintained by third parties. The Tribunal reasoned (at [34]) that Mr Sunol was relevantly responsible for two of those publications because first, each contained material that he had composed and, second, Mr Sunol expressly invited users who had logged onto it to click on the requisite phrase and gain access to the publications. With respect to the third publication, the Tribunal held that Mr Sunol was not responsible for its communication to the public: “It is not clear from the evidence relating to [that] publication … that any such invitation existed on a website maintained by Mr Sunol”: at [35].
  5. More recently, in Burns v Sunol [2015] NSWCATAD 40 (Burns 2015), the Tribunal found that the publication of statements relating to a YouTube clip, which appeared on a website that was not maintained by Mr Sunol, nonetheless constituted a public act of Mr Sunol. The Tribunal found at [41] that the words posted by Mr Sunol on his website —“some very interesting videos on corruption from Luke McKee” — constituted an invitation to access those videos and taken together with the accompanying link made Mr Sunol responsible in the relevant sense for the impugned “public act”.
  6. Mr Sunol contends that the Tribunal in Burns 2015 misapplied the principles established in Burns 2012, which he contends establish the:
  1. First responsibility test
  2. Operator test
  3. Accessibility test
  4. Knowledge test
  5. Intention test
  6. Second responsibility test
  7. Composition test.
  1. If Mr Sunol is contending that Burns 2012 is authority for the proposition that the alleged vilifier will only be relevantly responsible for the publication of material said to vilify homosexuals appearing on a website maintained by third party, if each of the above “tests” is satisfied, we cannot agree. It is a misreading of Burns 2012 to suggest that the Tribunal held that where the impugned material is published on the website of a third party, the alleged vilifier will only be relevantly responsible if they were the operator of the third party website, primarily responsible for the publication of, or the author of the impugned material, or placed that material on that website.
  2. There is no evidence to contradict Mr Sunol’s claim that he was not the operator of Mr McKee’s website, the author of the offending content, or that he posted the offending content on that website. The real issue is whether his actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material.
  3. Consistent with the approach taken by the Tribunals in Burns 2012 and Burns 2015, the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images.
  4. We agree with the submission made by Mr Burns that the words posted on Mr Sunol’s website constitute an express invitation to people visiting Mr Sunol’s website to click on the offending link and view the offending content. The statement “I think all should read this and make their own decision if they back it [the legalization of Phedofelia [sic]]” does not make the words appearing on Mr Sunol’s website any less of an invitation or encouragement to view the offending content. Read in context we find that the material appearing on Mr Sunol’s website constituted an express invitation to users to click on the offending link and access the offending content.
  5. We find that Mr Sunol was responsible, in the relevant sense, for the “public act” of communicating the offending content to the public. In reaching that conclusion, we note that the offending content could be accessed in a number of ways not just through the offending link on Mr Sunol’s website.

Did the offending material have the capacity to incite?

  1. We must evaluate whether the offending content had the capacity to incite — to rouse, to stimulate, to urge, to spur on, to stir up or to animate — hatred towards, serious contempt for, or serious ridicule of homosexual(s) in the ordinary (or ordinary reasonable) member of the relevant audience, on the grounds of their homosexuality.
  2. To undertake that task, consistent with the authorities, we must first identify the relevant audience and then consider the likely effect of the offending content on the notional ordinary or ordinary reasonable member of that audience.

Identification of the audience

  1. The relevant audience are internet users who viewed the offending content via Mr Sunol’s website. We have no evidence about who accessed the offending content via this path, apart from Mr Burns. According to Mr Sunol, his followers, who, he claims number just under 1000, represent a cross section of the community and include politicians, journalists and public commentators. We also think it likely that it includes people who share similar views on issues championed by Mr Sunol, such as opposition to same sex marriage. Mr Burns apparently follows Mr Sunol on the internet for the purpose of monitoring the type of material he promotes. According to Mr Sunol, Mr Burns is but one of a number of “trolls” who follow him on-line to “catch him out”.
  2. Given the ease with which sites can be accessed via the internet, we think it reasonable to assume that the audience probably also included people who put the term “paedophilia” into a search engine or otherwise stumbled across Mr Sunol’s blog.
  3. It is likely that members of the audience would hold a diverse range of opinions about homosexual people and same sex marriage, ranging from ignorance, support and strong opposition. We think it likely that a fair number of the audience would hold similar views to Mr Sunol about these issues. It is also likely that the audience includes people such as Mr Burns who hold opposing views, and people who hold no views about these issues.

Ordinary or ordinary reasonable member of the audience?

  1. As Bathurst CJ commented in Sunol at [32], there is a divergence of opinion as to whether the assessment of the capacity of the impugned act to incite is to be made by reference to the “ordinary”, “reasonable” or “ordinary reasonable” member of the relevant audience. The Chief Justice expressed a preference for the question to be answered having regard to the effect of the act on an “ordinary member” of the relevant group. He explained (at [34]):

[T]hat, of my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To 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.

  1. Allsop J, on the other hand, took the view that the question is ultimately one to be determined having regard to the context in which the offending act took place, reasoning (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.

  1. In Jones, Ward JA at [53] referred to, but did not determine, the issue characterising the test as the “ordinary member (or perhaps an ordinary reasonable member)” (at [61], [62]).
  2. More recently in Margan, the Court of Appeal appeared to endorse the approach taken by Bathurst CJ in Sunol, stating (at [76]) that the assessment should be made by reference to the ordinary member of the audience to whom the public act is directed, not the ordinary reasonable member.

Consideration

  1. The offending content conveys a number of messages:
  • That US President Obama’s friends include “gay paedophiles”
  • That President Obama and the US Democratic party support homosexuals and same sex marriage and, as a consequence, paedophilia
  • That Barrie Drewitt Barlow [a homosexual man who announced that he had fathered a child using a surrogate mother] is a paedophile
  • That same sex marriage is a ruse being used to legalise paedophilia
  • That the “movers and shakers” in the campaign for same sex marriage are motivated so they can “get little boys to rape”
  • That gay men have a “sexual need” to rape children.
  1. In Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to think of a more damaging slur or insult than to accuse a person of being a paedophile.
  2. Self-evidently the likely audience in this case is not a homogenous group. It is probable that a range of reactions to the offending content would be invoked. It is improbable that it had the capacity to incite Mr Burns or those who share his views about homosexuality and same sex marriage, to have hatred towards or serious contempt for homosexual persons. Nor in our opinion, is it likely to have the capacity to incite those reactions in uses who may not share Mr Burns’ views but are nonetheless rational and possess some basic understanding about those issues. As noted, we think it likely that the audience would include people, like Messrs Sunol and McKee, who are strongly opposed to same sex marriage. We think the use of intemperate language and the tone of the offending content was capable of stirring up, feelings of hatred toward and severe contempt for male homosexuals in the ordinary member of that sub-group.
  3. We find the offending content was capable of inciting the ordinary member of the relevant group to have hatred towards and severe contempt for male homosexuals.

On the grounds of

  1. We find that one of the “real”, “genuine” or “true” reasons for those reactions having the capacity to incite the notional ordinary member of the relevant audience to have hatred towards and severe contempt for male homosexuals, was their sexuality.

Do any of exceptions apply?

  1. Section 49ZT(2) operates to except certain public acts which might otherwise be unlawful by the operation of s 49ZT(1). Mr Sunol bears the onus of establishing that an exception applies (s 104 of the Act). He relies on s 49ZT(2)(c), which states:

(2) Nothing in this section renders unlawful:

(c) a public act, done reasonably and in good faith, or 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.

  1. Mr Sunol submits that his motivation in placing the offending link on his website was to encourage discussion in the public interest about the same sex marriage debate.
  2. To avail himself of the exception Mr Sunol must establish on the balance of probabilities that his action in communicating the offending content was done:
  • Reasonably and in good faith
  • For academic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
  1. Mr Sunol asserts that there is scientific evidence that homosexuals have a propensity to “rape or sexually abuse children”. He was unable to point to any supporting material.
  2. There is a range of opinion within the community about whether same sex marriage should be legalised. The offending content goes somewhat further than voicing strong opposition to same sex marriage. It promotes the view that it should not be permitted because homosexual men have a tendency to sexually abuse children.
  3. Even if accepted, as claimed by Mr Sunol, that the offending act was done in good faith and not motivated by ill-will or other improper motive (see for example, Western Aboriginal Legal Service v Jones [2000] NSWADT 102; Jones v Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1), we are not satisfied having regard to the inflammatory tone and intemperate language of the offending content together with the lack of any evidence of steps taken by Mr Sunol to determine whether there was any basis for the proposition that male homosexuals have a tendency to sexually abuse children, that it could be said that his act in communicating the offending content was done “reasonably”.
  4. Mr Sunol has not discharged the onus of establishing that his public act was done reasonably. Therefore the defence in s 49ZT(1)(c) cannot be relied upon.

Summary

  1. The complaint made by Mr Burns is substantiated.

Relief

  1. At the hearing we decided to give the parties the opportunity to make submissions about what if any orders should be made under s 108(2) of the Act, if we determined the complaint was substantiated. We did so in part because Mr Sunol advised that he had lodged an appeal against the decision in Sunol2015 to order that he refrain from publishing material on his or third party websites material of the type the subject of this complaint. The appeal was dismissed: Sunol v Burns [2015] NSWCATAP 207. We direct:
  1. Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined “on the papers”.
  2. Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined “on the papers”.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.

Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

DISCLAIMER – Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Decision last updated: 21 January 2016

FORMER KATTER PARTY CANDIDATE TESS CORBETT TO FACE COURT ON CONTEMPT

MEDIA RELEASE

FOR IMMEDIATE RELEASE
18 January 2016

corbett

Corbett to face the Supreme Court 15 February 2016

 
A former candidate from Bob Katter’s Australia Party who likened gays and lesbians to pedophiles during an interview on the campaign trail in 2013 had been found to have engaged in homosexual vilification under the Anti-Discrimination Act 1977 ( NSW ) by the former NSW Administrative Decisions Tribunal ( ADT )  and ordered the defendant to publish an apology in the Sydney Morning Herald pursuant to the Anti-Discrimination Act 1977.
 
Ms.Corbett was Bob Katter’s candidate for the Victorian seat of Wannon in the federal election until she was stood down in January of 2013 after telling her local paper , “ I don’t want gays , lesbians or pedophilies working in my kindergarten”.
“ If you don’t like it , go to another kindergarten “ , Ms.Corbett told the Hamilton Spectator.
 
When asked if she considered homosexuals to be in the same category as pedophiles , Ms.Corbett replies , “ yes “.
 
“ Pedophiles will be next in line to be recognised in the same was as gays and lesbians and get rights, “ she said.
 
Ms.Corbett appealed the 2013 decision of first instance citing St Paul as a defence but her appeal was rightly dismissed by the court of appeal.
 
Anti-Discrimination Campaigner and Public Interest Litigant Garry Burns initiated the proceedings against Ms.Corbett under the Anti-Discrimination Act 1977 ( NSW ). The Tribunal ordered the defendant to publish an apology in the Sydney Morning Herald in a prominent position pursuant to the Anti-Discrimination Act 1977 at her own expense and to also apologise to Mr.Burns in writing.
 
Ms.Corbett has failed to comply with an order of the NSW Civil Administrative Tribunal ( NCAT ) and on Tuesday 22 December 2015 Mr.Burns commenced “ contempt ” proceedings against the defendant in the NSW Supreme Court.
 
The Orders Mr.Burns seeks the court to make are ;
 
1. Ms.Corbett be found guilty of contempt of Court for failing to comply with the order made on the 24 September 2014 , in that the defendant failed to procure by 13 November 2015 , at her expense , the publication of the apology in the Sydney Morning Herald pursuant to the Anti-Discrimination Act 1977.
 
2. Ms.Corbett be found guilty of contempt of Court for failing to comply with the order made on the 24 September 2014 , in that the defendant failed to forward by 13 November 2015 a signed letter of apology to the plaintiff Mr.Burns.
 
3. The defendant Ms.Corbett be punished for her contempt by “ Fine “.
 
4. The defendant pay the plaintiff’s costs on an indemnity basis.
 
Mr.Burns is “ NOT ” seeking that the defendant Ms.Corbett be punished for her contempt by “ Jail “.
 
“ My public interest work is not about punishing individuals , it is about educating people in powerful positions of their responsibilities under the Anti-Discrimination Act 1977 to not make pernicious public statement’s that have a “ capacity ” or “ effect ” of inciting ridicule , contempt or hatred against homosexual Australians ” , Mr.Burns said.
 
Hearing Details
 
The Motion is listed at 9am on Monday 15 February 2016 in the Supreme Court of NSW.
 
Mr.Burns said , “ It is now up to the Judiciary on how it deals with this defendant in relation to the allegation of “contempt ”. My initiating of “contempt proceedings” against Ms.Corbett is to send a very clear and precise message to the Australian public that there are consequences if a defendant of an order of the NSW Civil Administrative Tribunal ( NCAT ) ignores it ”.
 
Mr.Burns wanted to engineer a very creative settlement / remedy. It’s terms must reflect his belief in the “public interest” in the defending of gay men and women’s rights to freedom from public acts of discrimination and or unlawful homosexuality vilification.
 
ENDS
 
For further information please contact Garry Burns on ;
02 -9363-0372 or 
0407-910-309.
 
The defendant’s solicitor is Robert Remo Balzola who can be contacted on the below numbers ;
02-9283-8180 or
0405-195-048.