Administrative Decisions Tribunal
New South Wales

Medium Neutral Citation:

Burns v Corbett [2013] NSWADT 227

Hearing dates:

3 October 2013

Decision date:

15 October 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 Spectator was 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 the Hamilton 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 the Australian 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 Australian respectively, 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:-