Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: Burns v Sunol [2015] NSWCATAD 131
• Hearing dates: 7 October 2014
• Decision date: 25 June 2015
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: J Wakefield, Senior Member; J Schneeweiss, General Member; M O’Halloran, General Member

Decision

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 common sense 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) Mr Sunol is to refrain from publishing the material including statements to the same or similar effect on any website whether or not controlled by him.

• Catchwords: ANTI-DISCRIMINATION - Homosexual vilification- Public Act- Incitement – Remedies – Restraining Order
• Legislation Cited: Anti-Discrimination Act 1977 NSW ss 49ZS, 49ZT, 88, 104, 108; Civil and Administrative Tribunal Act 2013 ss 3(d), 45
• Cases Cited: Burns v Corbett [2013] NSWADT 227; Burns v Dye [2002] NSWADT 32; Burns v Sunol [2012] NSWADT 246; Collier v Sunol [2005] NSWADT 261; Collier v Sunol [2008] NSWADT 339; Sunol v Collier (EOD) [2006] NSWADTAP 51; Sunol v Collier (No 2) [2012] NSWCA 44
• Category: Principal judgment
• Parties: Garry Burns (Applicant); John Christopher Sunol (Respondent)
• Representation: G Burns (Applicant in person); J C Sunol (Respondent in person)
• File Number(s): 1410384

Reasons for decision

Introduction

1. By these proceedings, Mr Burns makes three complaints that the publication of certain material on his website by Mr Sunol constitutes homosexual vilification in breach of s 49ZT of the Anti-Discrimination Act 1977 NSW. For the reasons which follow the Tribunal finds that Mr Burns’ first two complaints are substantiated and that the third complaint is partly substantiated.

Procedural History

2. On 24 March 2014, Mr Burns lodged his three complaints with the President of the Anti-Discrimination Board. The President’s delegate accepted the complaints for investigation under s 89B of the Anti-Discrimination Act. The President received further information from Mr Burns on 24 March 2014.

3. The complaints accepted for investigation by the President and identified in the complaint summary in the President’s Bundle are as follows:

“1.   The complaint of homosexual vilification in the publishing of comments on the respondent’s blog on 23 March 2014 and endorsing comments by Luke McKee (C2014/0238). …

2.   The complaint of homosexual vilification for comments published on the respondent’s blog on 21 March titled ‘Rape little boys taken off ABC shows – this is same sex marriage’ and following comments (C2014/0371) …

3.   The complaint of homosexual vilification in relation to comments made by the respondent on his blog published on 21 March 2014 headed

‘Some very interesting videos on corruption from Luke McKee’ (C2014/01372) …”

4. On 14 May 2014 the President wrote to Mr Sunol and sought a response to the allegations. No response was received from Mr Sunol.

5. The President referred the complaints to the Tribunal pursuant to s 93C of the Anti-Discrimination Act on 21 July 2014. The President has identified each of the complaints as homosexual vilification in breach of ss 49ZS and 49ZT of the Anti-Discrimination Act. The period of the complaints is from 21 to 24 March 2014.

The hearing

6. The matter was heard on 7 October 2014. The parties were self- represented. At the commencement of the hearing Mr Sunol sought leave for Mr Geoff McKee to appear as his representative at the hearing. Mr Sunol said that Mr McKee was the father of Mr Luke McKee of whom Mr Burns had also made complaint but that he was independent. No real basis for the application was advanced. Mr Sunol gave no reason why he could not represent himself at the hearing and indeed said that he was able to represent himself.

7. Mr Burns objected to Mr McKee representing Mr Sunol. He said that Mr McKee was the subject of a separate complaint before the Tribunal which was to be set down for a case conference.

8. Section 45 of the Civil and Administrative Tribunal Act 2013 provides:

“45 Representation of parties

(1)   A party to proceeding in the Tribunal:

(a)   has the carriage of the party’s own case and is not entitled to be represented by any person, and

(b)   may be represented by another person only if the Tribunal grants leave for the person to represent the party

…

(3)   The Tribunal may at its discretion:

(a)   grant or refuse leave under subsection (1)(b) and

(b)   revoke any leave that it has granted.”

9. On the basis of the parties’ submissions and the Tribunal file it was apparent that:

1. Mr Sunol had served no witness statement and did not seek to give oral evidence at the hearing the facilitation of which would require separate representation,

2. Mr Sunol anticipated making an application to call Mr McKee as a witness in his case,

3. Mr McKee’s son was the subject of complaint in other proceedings before the Tribunal in which Mr Burns is the applicant in which event questions could arise as to Mr McKee’s independence and interest,

4. There was no evidence of any medical or other reason why Mr Sunol could not represent himself, and

5. Mr Sunol has previously represented himself before the Tribunal and informed the Tribunal that he could represent himself at the hearing.

10. In those circumstances we considered it appropriate to refuse Mr Sunol’s application for leave for Mr McKee to appear as his representative.

11. Later in the course of the hearing Mr Sunol sought to call Mr McKee to give evidence. He had not served a witness statement from Mr McKee or given advance notice to Mr Burns of the nature of the proposed evidence. When asked about the nature of that evidence, Mr Sunol said that Mr McKee knew of relevant matters and could give evidence about them. In particular, Mr Sunol said that he (Mr Sunol) did agree with some of the issues which had been published on his website about which complaint was made but that he did not believe that publication was going to harm anybody and that he did not post things which were totally inappropriate in his view. He said that evidence about this could also be given by Mr McKee. When questioned by the Tribunal about whether the evidence would be relevant including whether it went to the question of whether or not any publication, if a public act, had the effect of inciting hatred, serious contempt or severe ridicule of homosexuals, Mr Sunol said that he thought his publications would not incite hatred, that he was “not out to incite hatred” and that Mr McKee could give evidence of this.

12. We could not be satisfied on the basis of Mr Sunol’s submissions as to the real nature of the proposed evidence or how it would be relevant. Mr Sunol’s submissions appeared to concern evidence of his intention regarding publication. This is not a necessary element of a contravention of s 49ZT; see Sunol v Collier (No 2) [2012] NSWCA 44 per Bathurst CJ at [41] and Basten JA at [79]. Additionally, it would have been unfair to Mr Burns to allow late evidence of which he had not had notice or the opportunity to prepare for or respond to. Mr Sunol gave no reason for the lateness of the proposed evidence.

13. Lastly, in light of the opportunity already afforded to the parties by the pre hearing process to serve any evidence, and having regard to the object set out in s 3(d) of the Civil and Administrative Tribunal Act 2013 NSW to promote resolution of the real issues in the proceedings justly, quickly, cheaply and with as little formality as possible, it would not have been appropriate in our view to adjourn the hearing to allow for the service of further evidence, the real nature and relevance of which could not be identified. For these reasons, we refused Mr Sunol’s application to call Mr McKee as a witness.

The evidence before the Tribunal

14. Neither party served witness statements or gave oral evidence. The material accepted into evidence by the Tribunal comprised the President’s Bundle together with correspondence from Mr Burns to the Tribunal dated 27 August 2014 and 28 August 2014 and attachments and a letter from Mr Sunol to the Tribunal dated 21 July 2014. This evidence to which we refer below is reproduced with all typographical errors.

The first complaint

15. The content of the publication the subject of the first complaint is included in the President’s Bundle being contained in the printout of the webpage identified at universal resource locator (url) “http://johnsunolb.blogspot.com.au /2014/03/a-letter-from-luke-mckee-that-i-feel.html”. The text of the webpage (which is incompletely printed) is:

“John Christopher Sunol’s new blo[…]

messages on agenda 21 and the […]

world order

this is my new blog that is replacing my old blogs, johnsunol and johnsunola

Sunday, 23 March 2014

A letter from Luke McKee that I feel should be put on online

gary ** ** is after me. changing the words in a distorted vioicemail.

see I am your friend john and you will protest that little faggot stalker who contacted me first, harnessed me and claimed connection to corrupt police. he is evil.

Ihave 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 whilst he watches as he says in his threats to me.

Luke

this is communications I am haveing with Luke Mckee

Twitter followers: 828

Please not that I follow all who follow me on this twitter account

whether I agree or not to the content of the twitter,”

The second complaint

16. The content of the publication the subject of the second complaint is found in a printout in the President’s Bundle of the webpage located at url “http://johnsunolb.blogspot.com.au/2014/03/rape-little-boys-taken-off-abc-shows.html”. It contains the heading referred to in the first complaint. It continues:

“Friday, 21 March 2014

Raped little boys taken off ABC shows – this is same sex marriage

rape little boys – taken off an ABC show

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.

If you do not want this, then write letter so politicians, shout at the Top of your voice online, travel around the best way you can whilst you still have the chance and tell all what is coming

Plus

back and support others who do NOT WANT This

You will be unjustly persecuted like I am at the moment but put up with this persecution knowing that you are working for the betterment of society if ridding the world of this

Alister Crowley – the wickedness man on earth – part of the coming new world order under

agenda 21 is all part of this,

Depopulation from agenda 21 to bring the world from its present figures of 7.2 billion people down to 500 million people by 2070 as part of this – a 90% drop in population figures,

It is all part of an agenda, called agenda 21 – it is not a conspiracy theory or a set of propaganda lies put by nuts and loony tunes as some would say.

IT IS FACT AND WE MUST ACT QUICKLY OR WE WILL BE CAUGHT IN BY THE COMING OF THIS AND MUCH MUCH MORE

Twitter followers 815

Please not that I follow all who follow me on this twitter account

whether I agree or not to the content of the twitter,

this twitter account has been worked on since 22 January 2014 with this blog …

Posted by John Christopher sunol at 13.05…”

17. The material is apparently linked to three comments posted by Mr Sunol on the site. The first reads:

“I think this is going to enrage some people, but so be it, I want to get the message out to the world before it is to late. I have a duty to both God and society to get this on the world news scence.”

18. The second reads:

“This to me is horrific: this is why we must reject same sex marriage and be willing to take those who oppose us.”

19. The third comment repeats the material complained of.

The third complaint

20. The third complaint arises from publication on 21 March 2014 by Mr Sunol of a Youtube clip referred to in a blog found on url “http://johnsunolb. blogspot.com.au/2014/03/some-very-intersting-vidoes-on.html”.

21. The webpage is headed as in the previous two pages the subject of complaint. It states relevantly:

“Friday, 21 March 2014

some very intersting vidoes on corruption from Luke McKee

so you don’t get sued for making unsubstainted claims of defimation.

put all my videos on my youtube channel, such as this one first

http://tinyurl.com/abcplugspedos

and then quote all the sources. pay special attention to the yauningbread blog link where a gay rights activist puts up an uncensored photo of the child rape victim and says

WOW LOOK AT US NOW – PETER TROUNG AND MARK NEWTON ARE GREAT GAY DADS

[who rape their boy] who can argue against us and gay marriage now!”

22. The link contained on the webpage, “http://tinyurl.com/abcplugspedos”, opens to a Youtube clip. Mr Burns does not complain about the clip but seven statements linked to it. By his letter to the Tribunal dated 28 August 2014, Mr Burns provided copies of these statements. These were identified at the hearing as follows (omitting references to the sources of each statement):

“Older homosexuals call their under aged love interests or targets ‘chickens’ or ‘chicks’. The baby chicks featured in this video was likely an advertisement for the pederasts ring. Truly sick”

“This is truly sickening!”

“did you seek the link from one of the pedophiles in the video campaigning for gay marriage (so he can get kids out of it and rape them)? posting that link gets you banned by the leftists on twitter.”

“disgusting !!! i knew it! the gay marriage equality makes it even more easier for pedophiles to gain access to their child victims”

“everybody with comom sense know 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.”

“read the thesis gay marriage is child abuse – last link. it describes gays saying exactly what you said.”

“… the stats are from a few studies. Most pedophlies are hetrosexuals. Homosexual pedophiles (majority male) represent approximately 10% of them. They are more prolific and they work in teams. Thease teams of pedophiles can’t own children with no …”

Relevant legislation

23. The complaints referred by the President are those of homosexual vilification under ss 49ZS and 49ZT of the Anti-Discrimination Act. These sections provide as follows:

“49ZS Definition

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.”

“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.”

24. There is a threshold issue. Section 88 of the Anti-Discrimination Act provides:

“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.”

25. Section 104 of the Anti-Discrimination Act provides:

“104 Proof of exceptions

Where by any provision of this Act or the regulations conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any proceedings before the Tribunal relating to a complaint lies on the respondent.”

26. As the Tribunal has identified in Burns v Dye [2002] NSWADT 32 at [14] and Collier v Sunol [2005] NSWADT 261 at [30], in order to succeed in a complaint of homosexual vilification in breach of s 49ZT the complainant must establish four elements being:

1. A public act;

2. Which incites;

3. Hatred towards, serious contempt for or severe ridicule of a person or group of persons;

4. On the ground of the homosexuality of the persons or members of that group.

27. The complainant will fail if one of the exceptions outlined in s 49ZT(2) applies. The onus of establishing such an exception lies on the Respondent.

Standing

28. The first question is whether Mr Burns has standing before the Tribunal. Mr Burns in earlier proceedings before the Tribunal has claimed to be a homosexual man; see Burns v Corbett [2013] NSWADT 227 at [25]. He repeated the claim before us. There is no sufficient reason to doubt this claim and so we find the requirement for standing to be satisfied.

Public Act

29. The next question is whether or not the posting of material on his website by Mr Sunol is a “public act” within the meaning of s 49ZS. Neither party made detailed submissions on the issue of what constituted a “public act” or the relevant authorities. In his submissions Mr Sunol acknowledged that the material was published on his website in each instance.

30. Other publications by Mr Sunol on the internet were considered in some detail by the Tribunal in Burns v Sunol [2012] NSWADT 246 which said at [20]:

“20.   With regard to the interpretation of section 49ZS, it has been held in the Tribunal that posting material on the internet may be a 'public act' even if internet users wishing to have access to it must first go through a process of registration. In Collier v Sunol [2008] NSWADT 339 at [25 - 28], the Tribunal said:-

   25 It was common ground that in order to access the website... a person merely needs to type that address into their internet browser. However, in relation to .... there is a more complicated process. When the user first accesses the website they receive the message “you have reached an age-restricted area of Yahoo Groups”. The message asks the person to register by providing the name of their account and a password. Any person is eligible to register. No approval is needed and registration is open to any member of the public. On registration a person nominates a user name and a password.

   26 Mr Sunol submitted that posting material on [the latter website] was not a public act because he maintains that the site is “password protected”. He relies on the decision in Collier v Sunol [2005] NSWADT 261 at [33] in which the Tribunal said:

We have no doubt that the act of posting written text on a website that is not password protected and therefore is publicly accessible falls within paragraph (a) of the definition of 'public act' in s 49ZS. It constitutes a 'form of communication to the public'.

27 Mr Sunol also highlighted the decision of the Federal Court in Jones v Toben [2002] FCA 1150 in support of his submission. That decision was referred to by the Tribunal in Collier v Sunol [2005] NSWADT 261 at [34]:

   34 In Jones v Toben [2002] FCA 1150, the Federal Court held that posting material on a site of this nature was an act 'not done in private' for the purposes of the vilification clauses of the Racial Discrimination Act 1975 (Cth). Section 18C(2) of this Act states that 'an act is taken not to be done in public if it... causes words, sounds, images or writing to be communicated to the public...' At [73 - 75], Branson J said:-

73 In my view, the placing of material, whether text, graphics, audio or video, on a website which is not password protected is an act which causes words, sounds, images or writing to be communicated to the public in the sense that they are communicated to any person who utilises a browser to gain access to that website.

74 I conclude that the placing of material on a website which is not password protected is an act which, for the purposes of the [Race Discrimination Act], is taken not to be done in private...

75 I further conclude that the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publication, in that it allows individuals who access the website with a browser to read that text and see those graphics.

28 It was Mr Collier's submission that just because a member of the public needs to register on line before reading the material, that does not take it out of the public realm. He used the analogy of a person having to purchase or borrow a book before they could read it. The existence of that step does not prevent the publication of the book from being a public act. We agree with Mr Collier's analysis. Posting material on the two websites relevant to these proceedings constitutes a public act because it is a form of communication to the public. Any member of the public with access to the internet who registers and indicates that they are over 18, can read the material. No one is prevented from accessing the site.”

31. Unlike the position which he took in Burns v Sunol [2012] Mr Sunol did not submit before us that posting material on his blog was not a public act because the site was password protected.

32. In line with the authorities to which we have referred we find that posting material on his website by Mr Sunol in the instances referred to in complaints 1 and 2 is a “public act” within the meaning of s 49ZS; see Collier v Sunol [2005] at [33]. In each instance it is a form of communication to the public. Any member of the public with access to the internet can read the material. No one is prevented from accessing the site.

33. Consistent with the finding of the Tribunal in Burns v Sunol [2012] at [24] and [36] and in light of Mr Sunol’s admission that he made the publications complained of we conclude that Mr Sunol is responsible in the relevant sense for the “public act” of communicating the material comprised in complaints 1 and 2 to the public within the meaning of s 49ZS(a).

34. As we have indicated, the material comprised in the third complaint does not appear on Mr Sunol’s website but is accessed through clicking on the link “http://tinyurl.com/abcplugspedos” which appeared on Mr Sunol’s website. It appears under the words:

“some very interesting vidoes on corruption from Luke McKee”.

35. Under this appear the words:

“so you don’t get sued for making unsubstainted claims of defimation.

put all my videos on my youtube channel, such as this one first

http://tinyurl.com/abcplugspedos”

36. Mr Burns submitted that Mr Sunol by referring on his site to “some very interesting videos on corruption from Luke McKee”, was drawing attention to the linked material and that this was by way of invitation to the readership to click on the hyperlink, open up the hyperlink and read the material. He relied on the determination of the Tribunal when considering a similar publication in Burns v Sunol [2012] at [34] – [36] He said that there was no question that the publication on Mr Sunol’s blog was a public act under s 49ZS. Mr Sunol made no submission on this aspect of the matter.

37. In Burns v Sunol [2012], Mr Sunol had argued in respect of three passages in question that he was not responsible for publication as they did not appear on any website maintained by him but would come only to the attention of internet users if they went to one of the websites and clicked on a particular phrase appearing on it; see Burns v Sunol [2012] at [33]. The Tribunal (at [34]) was not persuaded by this argument in respect of two of the publications by reason that the publications contained material which Mr Sunol himself composed and that his website expressly invited users who had logged on to it to click on the requisite phrase and thereby gain access to the material. The statement appearing on the website said:

“NB: this is cut and pasted material taken from online which is written by me to others some seven to eight years ago around 2003.”

38. The Tribunal’s conclusion at [36] was that the Respondent was responsible in the relevant sense for the public act by which the subject material was communicated to the public. The Tribunal at [35] contrasted that position with another publication where no invitation existed on a website maintained by the Respondent. The Respondent did not deny that he had composed the email containing the material in question, that this material was accessible on the internet on a website maintained by someone other than the Respondent or that it was possible for internet users who had logged on to his website to discover the link giving access to the material. However the Tribunal found at [35] that these matters of themselves in the absence of an invitation were insufficient to render the Respondent liable for the “public act” of communicating the material to the public by means of the internet.

39. The present case is not a situation identified in Burns v Sunol [2012] at [35] where there was no invitation on the website maintained by Mr Sunol to the link contained on his website.

40. In our opinion, the use of the words by Mr Sunol appearing at the top of the blog on his website “some very interesting vidoes on corruption from Luke McKee”, had the effect of directing viewers to the subject publication via the link. The words used are plainly an invitation to those viewing the site to access the material complained of. The “very interesting” nature of the material referred to on the website cannot be determined by a viewer unless it is accessed.

41. In line with the finding of the Tribunal in Burns v Sunol [2012] at [34], in our view the communication to the public of the subject material in the third complaint by way of invitation to access it via a link is a “public act” within the meaning of s 49ZS(a). Mr Sunol has admitted that he posted the words which we have found to be an invitation together with the link and we find that he was responsible in the relevant sense for the “public act” by which this material was communicated to the public.

42. Although the matter was not expressly raised by Mr Burns or Mr Sunol in their submissions it is appropriate to consider whether the subject complaints were each constituted by a separate “public act”. The consequence of such a finding when determining whether any of the publications amounted to unlawful homosexual vilification under s 49ZT will be that the Tribunal must consider each publication in insolation; see Burns v Sunol [2012] at [32].

43. In Burns v Sunol [2012] Mr Burns had contended that each of the publications about which he complained was a separate “public act”. The Tribunal [at 31] agreed with his submission by reason in part that all but two of the publications had occurred on different dates. This approach followed the discussion in Collier v Sunol [2005] at [36] – [38] concerning what is a single “public act” when multiple passages of allegedly villificatory material are published on the internet. In the present case two publications occurred on 21 March 2014 and one on 23 March 2014. The two publications on 21 March 2014 are to be found on different urls and were published at different times; 13:05 (in the case of the second complaint) and 20:25 (in the case of the third complaint). In our view, the publications on the same date were separated from each other both as to url and time of publication and should be treated as separate “public acts”.

44. Accordingly, the message conveyed is to be determined without reference to any of the “messages” conveyed by any of the other publications; see Burns v Sunol [2012] at [32]. It is only where materials are published within the “vicinity” (as the Tribunal put it at [32]) of one of the publications that they might form part of the context of that publication and for that reason be relevant to its interpretation. That is not the present case.

Interpretation of s 49ZT

45. The interpretation of s 49ZT was considered by the NSW Court of Appeal in Sunol v Collier (No 2) [2012]. The proceedings concerned whether s 49ZT was rendered invalid, wholly or in part, by the implied constitutional freedom of political communication. In considering the matter, the members of the Court gave guidance as to the interpretation of s 49ZT.

46. At [25-41], Bathurst CJ said:

“The Construction of s 49ZT of the Act

25   The first step in considering the question of whether s 49ZT infringes the implied constitutional freedom is the construction of the provision itself: Coleman v Power supra at [3], [147]-[158]; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 at [11].

26   I have set out the section above. The first question raised is what is meant by the word ”incite”. The meaning of the word has been considered both in the context of anti-discrimination legislation and in the context of criminal offences involving incitement. In Young v Cassells (1914) 33 NZLR 852, a case concerning the charge of inciting persons to resist constables, Stout CJ described the word as meaning ”to rouse, to stimulate, to urge, to spur on, to stir up, to animate” (at 854). In R v Massie [1998] VSCA 82; [1999] 1 VR 542, Brooking JA, with whom Winneke P and Batt JA agreed, said at 555 that the word covered words which command, request, propose, advise or encourage. In R v Eade [2002] NSWCCA 257; (2002) 131 A Crim R 390, Smart AJ (at [59]) cited what was said by both Stout CJ and Brooking JA with approval.

27   The word has received a similar construction in the context of anti-discrimination legislation: Catch the Fire Ministries supra at [14]; Kazak v John Fairfax Publications Limited [2000] NSWADT 77 at [23]; Burns v Dye [2002] NSWADT 32 at [19]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; Burns v Laws (No 2) [2007] NSWADT 47 at [102].

28   Although it is clear from this review of the authorities that the word ”incite” can cover a wide variety of conduct, it must be borne in mind that it is not sufficient to attract the operation of s 49ZT that the words simply express hatred, serious contempt for, or severe ridicule of a person on the grounds of homosexuality; the relevant public act must be one which could encourage or spur others to harbour such emotions: Burns v Dye supra at [20]; Burns v Laws (No 2) supra at [113].

29   It is also well established, both in the area of criminal law and in the context of anti-discrimination legislation, that it is not necessary for a person in fact to be incited by the words or publication: R v Eade supra at [60]; R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58 at 62; Veloskey v Karagiannakis supra at [25]; Catch the Fire Ministries Inc supra at [14].

30   The next issue is whether an intention to incite is required for a contravention of s 49ZT. The Tribunal has consistently held that intention is not an element of a contravention of this or related sections: John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis supra at [24]; Burns v Cunningham [2011] NSWADT 240 at [69].

31   Neither party at the hearing suggested that that approach was incorrect. I am prepared to proceed on this basis without finally deciding the issue. It is consistent with the approach taken by the High Court in Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349. In that case Mason CJ and Gaudron J made the following comments:

“However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, 'to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status'. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s.17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations”. (at 359)

Deane J agreeing at 382; but see McHugh J at 401.

32   The next issue of construction raised by the section is whether the public act required for a contravention of s 49ZT is one which would incite hatred, serious contempt for or severe ridicule in an “ordinary reasonable reader” or in a reasonable member, or an ordinary member, of the class to which the public act was directed. The first of the three alternatives is the one which has been consistently adopted by the Tribunal, following the test set out by the Court of Appeal in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 that “the ordinary reasonable reader ... is a person of fair average intelligence, who is neither perverse nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs”: John Fairfax Publications Pty Ltd v Kazak supra at [13]-[14]; Veloskey v Karagiannakis supra at [26]; Burns v Cunningham supra at [69].

33   A different approach to the question was taken by the Court of Appeal of Victoria in Catch the Fire Ministries Inc supra. In that case Nettle JA took the view that for conduct to incite hatred it must reach a relevant audience. In those circumstances he said the question is to be answered having regard to the effect of the conduct on a reasonable member of the class of persons to whom it is directed (at [16]-[18]). Ashley JA and Neave JA on the other hand suggested the question should be decided by reference to an ordinary member of the class rather than a reasonable member (at [132], [157]-[158]).

34   I prefer the view of Ashley and Neave JJA. This is because the legislation is concerned with the incitement of hatred towards, serious contempt for, or serious ridicule of homosexuals. That, 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.

35   The final question of construction is what is involved in the context of reasonableness and good faith in s 49ZT(2)(c). In Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105, French J as his Honour then was, in considering an equivalent provision (s 18D of the Racial Discrimination Act (Cth)) expressed the view that an act would be done reasonably in one of the protected activities in the section if it bore a rational relationship to that activity and was not disproportionate to carrying it out (at [79]). So far as good faith was concerned, French J took the view that it required more than subjective honestly and legitimate purpose but rather, under the aegis of loyalty to the relevant principles of the Act, a conscientious approach to the task of honouring the values asserted by the Act which are to be assessed objectively (at [96]).

36   Carr J who together with French J comprised the majority in Bropho, did not deal with the question. However Lee J, who dissented in the result, appeared to agree with French J on the issue of good faith, stating that it involved an objective determination having regard to the degree of harm likely to be caused and to the extent to which it may be destructive of the object of the Act (at [141]).

37   On the other hand, in Catch the Fire Ministries Inc supra, Nettle JA took a contrary view as to the meaning of good faith in the relevant equivalent section, stating (at [92]) that he saw no reason to “load objective criteria into the concept of good faith or otherwise to treat it as involving more than a 'broad subjective assessment' of the defendant's intentions”. Neave JA agreed with Nettle JA (at [197]). Ashley JA did not deal with the issue.

38   In Burns v Laws (No 2) supra, the Tribunal expressed a preference for the views of Nettle JA to those of French J (at [191]).

39   Once again the parties did not address this issue. Indeed, although both cases were cited on different issues, the Court's attention was not drawn to the difference of opinion of two appellate courts as to the meaning of the provision. However, Mr Sunol in his written submissions (at [28]) seemed to suggest that the construction placed on s 49ZT(2)(c) in Burns v Laws (No 2) was correct. As I indicated, the Tribunal in that case preferred the view of Nettle JA to those of French J. This approach was not disputed by the Attorney General.

40   In these circumstances I propose to proceed on the basis that the later decision of the Court of Appeal of Victoria on this issue is correct. There was a clear majority on the issue in that case and it has not been shown to be plainly wrong.

Conclusion on Construction

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.

(e)   For the public act to be reasonable within the meaning of s 49ZT(2)(c) it must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out.

(f)   For the act in question to be done in good faith, it must be engaged in bona fide and for the protected purpose.”

47. Allsop P said at [57-62]:

“57   The secondary material being the second reading speech of Clover Moore MP for the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (Legislative Assembly, 11 March 1993) and the report of the New South Wales Anti-Discrimination Board entitled ‘Discrimination and Homosexuality’ published in 1982 identified the subject matter and mischief to which Pt 4C was directed. This subject matter included the way homosexuals were from time to time vilified in public, which was seen as capable of creating the conditions for violence against homosexual men and women. Violence was more directly addressed by s 49ZTA, but the incitement of hatred, serious contempt or severe ridicule can be seen to create the conditions for violent behaviour.

58   The secondary material also demonstrates a keen awareness of the effect of a provision such as s 49ZT on freedom of speech and of the need to balance such freedom with the desired aim of the legislation - to make unlawful public acts which incite the emotions and conditions to which I have referred. That attempted balance can be seen from the text employed by Parliament in subsections (1) and (2).

59   Thus, one comes to the task of construing s 49ZT recognising the high value that the common law (and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that restrict it. This approach is reinforced by the recognition of the limitation on Commonwealth, State and Territory legislative power by the implied Constitutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520, Coleman v Power [2004] HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation [2010] HCA 42; 241 CLR 539 at 556 [44]-[45] and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton v The Queen [2012] HCA 2 at [32].

60   The text of s 49ZT reflects an attempt by Parliament to weigh the policies of preventing vilification and permitting appropriate avenues of free speech. Subsections (1) and (2) should be read together as a coherent provision that makes certain public acts unlawful. Subsection (2) is not a defence; it is a provision which assists in the defining of what is unlawful. It attempts to ensure that certain conduct is not rendered unlawful by the operation of subsection (1).

61   Subject to the following comments, I agree with the Chief Justice as to the construction of subsection (1). 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.

62   Further, satisfaction of s 49ZT(1) is not necessarily to be assumed or concluded by rude, indecorous, base or insulting language that reflects some dislike of, or opposition to, homosexuality. The section provides for an act to incite hatred, serious contempt, or severe ridicule. Fine linguistic distinctions should of course not be drawn which may deflect attention from the language of the statute. The words of the statute are to be applied with a recognition of the degree or quality of the act contemplated by the language. The act is to be assessed by reference to the context in which it takes place, including the audience or likely audience.”

48. Basten JA said at [79]:

“79   Applying this approach, I agree with the construction of s 49ZT of the Anti-Discrimination Act 1977 (NSW) outlined by Bathurst CJ. The critical aspect of s 49ZT for present purposes is the requirement that to be unlawful the conduct must incite “hatred towards, serious contempt for, or severe ridicule of” persons within the protected class. Mere insults, invective or abuse will not engage the prohibition.”

49. As the Tribunal in Burns v Sunol [2012] pointed out at [15] a different approach to the term ‘incite’ had been taken by the Tribunal in Burns v Laws (No 2) [2007] NSWADT 47, to which the Chief Justice in Sunol v Collier (No 2) referred at [110] –[112]. The Tribunal in Burns v Laws (No 2) had said:-

“110   The second qualification relates to the Tribunal’s use of the terms ‘capacity’ and ‘capable’. We agree with Mr Reynolds …that these terms have the potential to understate what must be proved. In defamation law, they bear upon what is in essence a threshold question only. An allegedly defamatory imputation is judicially determined to be ‘capable of defaming’ the person to whom it refers if there are sufficient grounds to warrant referring to a jury the quite distinct question of whether it actually did defame this person.

111   In our opinion, the issue to be resolved under s 49ZT(1) is better framed as follows: would the relevant ‘public act’ have had the ‘effect’ of inciting, in the sense of urging or prompting, a hypothetical ‘ordinary reasonable person’ to experience one or more of the relevant reactions towards one or more homosexual people (as identified by the complainant), on the ground of their homosexuality? If terms such as ‘capacity’ or ‘tendency’ (this word appears in Neave JA’s judgment in Catch the Fire Ministries at [161]) are to be employed instead, it should be understood that they refer to the actual effect rather than the potential or possible effect.

112    This point is important if, as previous authorities have made clear, the term ‘incite’ is to be interpreted as meaning merely ‘urge’, not ‘successfully urge’ or ‘induce’. A test that required no more than proof that the relevant public act had the potential or possible effect of urging an ordinary reasonable person to experience one or more of the relevant reactions would in our view be unduly broad.”

50. The Tribunal observed in Burns v Sunol [2012] at [16] that the “….reference here to the reactions of an ‘ordinary reasonable person’ must now be considered incorrect in the light of the different pronouncements on this question by Bathurst CJ (with the concurrence of Basten JA) and Allsop P in Sunol v Collier (No 2).” However, the Tribunal considered at [16] that its observations as to the potential ambiguity of the terms “capable” and “capacity” in this context should be borne in mind. We respectfully agree.

51. The Tribunal in Burns v Sunol [2012] at [43] considered that the appropriate “class” to which the publications in that case were “directed” was internet users at large. As in that case, there was no evidence before us that people who log into websites maintained by Mr Sunol would be more responsive than the “ordinary” internet users to the content of the publications complained of. Accordingly, in our view the question of incitement is to be measured by reference to the “ordinary member” of that class being internet users at large to whom the public act is directed; see Sunol v Collier (No 2) [2012] per Bathurst CJ at [33] – [34] and Basten JA at [79].

52. The Tribunal in Burns v Dye [2002] at [23] considered the meaning of the words contained in s 49ZT saying:

“23 The third element the complainant must establish is that the public act must be capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons. These words are to be given their ordinary dictionary meaning. Kazak v John Fairfax Publications Limited [1995] EOC 92-701 [at 40] set out 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);

‘severe’ means ‘rigorous, strict or harsh’ (Oxford); ‘harsh, extreme’ (Macquarie);

‘ridicule’ means ‘subject to ridicule or mockery; make fun of, deride, laugh at’ (Oxford); ‘words or actions intended to excite contemptuous laughter at a person or thing; derision’ (Macquarie)…...”

53. As was further noted in Burns v Sunol [2012] at [18] the Appeal Panel in Veloskey v Karagiannis (EOD) [2002] NSWADTAP 18, in a matter determined under s.20C of the Anti-Discrimination Act which defines unlawful racial vilification and like s 49ZT(1) employs the phrase “incite hatred towards, serious contempt for or severe ridicule of a person or group of persons”, also considered the use of the adjectives “serious” and “severe”. The Appeal Panel said at [29]:-

“29   The words ‘hatred’, ‘contempt’ and ‘ridicule’ are to be given their ordinary English meaning, but the latter two are qualified by the adjectives ‘serious’ and ‘severe’ respectively. Thus, in the context of s 20C, the public act must be capable of inciting intense dislike or hostility towards a person or group of persons, or grave scorn for a person or group of persons, or extreme derision of a person or group of persons: Kazak v John Fairfax Publications Ltd; Burns v Dye. The use of the adjectives ‘serious’ and ‘severe’ call for an evaluative judgment on the part of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556.”

54. The meaning of “on the ground of” in s 49ZT was considered by the Tribunal in Burns v Sunol [2012] at [19] saying:-

“19   With reference to the question whether alleged incitement is 'on the ground of the homosexuality of the person or members of the group', as required by the concluding words of section 49ZT(1), the Tribunal in Collier v Sunol [2005] NSWADT 261, in a passage subsequently approved in Collier v Sunol [2008] NSWADT 339 at [36], said at [63 - 64]:-

63 The principles governing this issue are summed up as follows in Burns v Dye [2002] NSWADT 32 at [24]:-

24 We note that s 4A of the Act does not apply to vilification complaints. Section 4A provides that in relation to complaints of unlawful discrimination, where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, (whether or not it is the dominant or substantial reason), then that act is taken to be done for that reason. Consequently in the context of s 49ZT it is helpful to look at relevant cases, which dealt with the meaning ‘on the grounds of’ before the 1994 amendment to the Act, inserting s 4A, took effect. Mathews DCJ in O'Callaghan v Loder [1984] EOC 92-023 at 75,499 took the view that the phrase ‘on the ground of’ meant a ‘significant factor,’ ‘a substantially contributing factor’ and ‘a causally operative effect’. Her Honour used these clauses interchangeably. In Waterhouse v Bell (1991) 25 NSWLR 99 at p 106. Clarke JA used the phrase ‘an operative ground’.

64 In Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, the Appeal Panel used the phrase 'a substantially contributing factor'. We take this to be the preferable view.”

Submissions of the parties, discussion and findings

55. In correspondence with the Tribunal both parties offered what might be considered written submissions including some material which was irrelevant to the questions before the Tribunal.

56. Mr Burns submitted that by the publications complained of Mr Sunol was encouraging people to regard homosexuals in the same category as paedophiles. He also submitted the statements were an endorsement to suggest that homosexual males or females should be looked at differently because they are indeed a risk to male and female children. Mr Burns says that the elements of unlawful homosexual vilification are made out in respect of all three complaints.

57. In his more general oral submissions, Mr Sunol accepted that he had published the material about which complaint was made. He also said that he had deleted the material “since I’ve found out what was in it”. When asked by the Tribunal whether he knew what was on the link when he published it he said “No, I didn’t. I didn’t go in to it fully”. He went on to say:

“… I do agree with some of the issues which is in that link. I don’t agree with same sex marriage at all. I am not a violent person. I don’t believe that it’s going to harm anybody. I do not put things which I think are totally inappropriate. …”

58. He also submitted that he did not think that the publications would incite hatred and said that “I am not out to incite hatred”. He repeated that when the link appeared “as soon as I found out what it was I took it straight down”. When the Tribunal raised the question of whether the publications had the effect of inciting hatred, Mr Sunol said:

“I state it did not incite [inaudible] hatred. I state that the people might read on my blog would read it as an academic material which I put into four points. I talk about gender 21, I talk about [inaudible] a whole lot of things and I put it there as academic and once I realised what serious [inaudible] I took it straight down”.

59. He later said that he did not believe that the publications were going to affect people. He said that he did not deliberately go and publish material that would incite others. He said that “I use my academic prowess. I link to issues and speak on a blog and if I find they’re inappropriate, off they come and no more is said about them”.

60. As the Tribunal in Burns and Sunol [2012] found at [38] evidence of what Mr Sunol “really meant” or “intended to say” might be potentially relevant to the question of whether a publication might fall within the exception to liability created by s 49ZT(2). However, it has no bearing on whether a publication falls within the range of “public acts” described in s 49ZT(1); see Sunol v Collier (No 2) [2012] per Bathurst CJ at [30] – [31].

61. As we have indicated it is not necessary for the contravention that a person actually be incited. Nor is it necessary to establish an intention to incite; see Sunol v Collier (No 2) [2012] at [41] per Bathurst CJ and [79] per Basten JA. Nor is it a relevant matter that the offending material was written by others. We have found that Mr Sunol published them. Nor is it an exception to liability under s 49ZT that the publisher was ignorant of the contents of the publication or that the offending material has been removed.

62. We now turn to consider in more detail whether any and, if so, which of the “public acts” which we have found fall within the operation of s 49ZT(1).

63. The first publication refers to “Garry ** **”. Mr Burns says that that is a reference to him. In the publication he is referred to as “that little faggot stalker” who “contacted me first, harnessed [harassed] me and claimed connection to corrupt police”. He is said to be “evil”. He is said to be an “evil gay stalker”. He is said to have made threats to Luke McKee that he will watch whilst Mr McKee is “raped to death in gaol”.

64. Mr Burns says that by making the statement “this is communications I am haveing with Luke McKee” Mr Sunol is republishing the material in the letter from Mr Luke McKee of 23 March 2004 and endorsing the statements of Mr McKee in which Mr Burns is referred to as a “little faggot stalker” and an “evil gay stalker He submitted that by letting the public know that he is having a communication with Mr McKee, Mr Sunol wants ordinary members of the public or the people to look at his blog and to know these statements.

65. Mr Sunol submitted that he did not call Mr Burns a paedophile. He said he had no idea if Mr Burns is homosexual and that he does not believe that that is the issue. He said that Mr Burns was attempting to get legislation through and to get Mr Sunol into a situation where Mr Burns can “set precedent”. He believed that the issue was to try and “get a guilty plea” or “find a decision against [Mr Sunol]”. There was no evidence in support of that submission before the Tribunal nor was it a relevant matter for consideration upon the application before us.

66. There was no evidence lead that Mr Burns was not the subject of the publication or any other person identified who was. We are satisfied that Mr Burns was the target of the publication. He is expressly identified as a homosexual person. The phrases “little faggot stalker” and “evil gay stalker” incorporate very strong and abusive language and impute serious criminal conduct.

67. In our opinion, having regard to the authorities to which we have referred, the publication is capable of urging or spurring on ordinary internet users to harbour emotions of hatred or serious contempt for or severe ridicule of Mr Burns by reason of the substantially contributing factor of his homosexuality. The words used are not mere insults or invective. They have the effect of urging or prompting hypothetical readers of the phrases in question to experience negative feelings rather than merely having such feelings conveyed to them. Accordingly in our view, the first publication complained of satisfies the criteria of presumptive liability established in s 49ZT(1).

68. The second publication contains the words “rape little boys … this is same sex marriage”. It goes on to say:

“if you want this [rape of minors] 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.”

69. In respect of the second complaint Mr Burns submitted that Mr Sunol, published the material in the complaint, shared publicly three times in comments on his blog. The first comment was; “I think this is going to enrage some people, but so be it, I want to get the message out to the world before it is to [sic] late. I have a duty to both God and society to get this on the world news scence [sic]”. The second comment was “this to me is horrific: this is why we must reject same-sex marriage and be willing to take those who oppose us”. Mr Sunol again publishes the material the subject of complaint in the third comment. Mr Burns says that Mr Sunol has republished the statement by endorsing it in subsequent comments.

70. In his letter to the Tribunal Mr Sunol says that he has deleted the material the subject of the complaint from his blog. He says that he did not publish on his blog “that if same sex marriage was legislated into law it would allow homosexual men the right to rape male children”. He went on to say: “but this is fact, same sex marriage will allow men to rape little boys and this must accepted as a fact – it was reported on the ABC and is a known fact to the general community. I do not put this on my blog but I am willing to talk about it to someone in private and spread this around as I know it to be the truth. I do not vilify Gays, never have and will not recognise garish complaints on me as they are all based on lies”.

71. Further, as to the second complaint, Mr Sunol says that although he has taken down the link “I still agree with the content, Same Sex Marriage will make it far more easier [sic] for Paedophilia to happen with male children or female in a family as I believe the same sex marriage is psychological [sic], unbalance, unnatural and leaves open the door for Paedophilia to happen in many cases”. He goes on to say “Garry is abusing the law and is looking for ways to get me in more trouble, He is stalking me on the net and telling lies when he finds some little article – makes a small insignificant matter look like a mountain load of vilification and hate when it related to nothing, and tells lies on doing this”. He said that the Youtube clips were from an ABC show and that he is not responsible for others’ comments on an ABC Youtube video.

72. The “target” of this publication is parties to same sex marriage, namely homosexual men or women. The language is strong and abusive and imputes serious criminal conduct. In our view, the words used have the capacity to urge and prompt hatred towards, serious contempt for or severe ridicule of both parties to a same sex marriage on the ground of their homosexuality amongst ordinary internet users at large. The words used are not mere insults or invective or abuse. They urge or spur on readers to experience negative feelings. We find that the second publication also satisfies the criteria of presumptive liability established in s 49ZT(1).

73. The third publication complained of comprises seven posts found on the youtube clip accessed at “http://tinyurl.com/abcplugspedos”. Mr Burns does not complain about the YouTube clip from the ABC. He submitted that the publication of these posts in relation to that clip by a number of people deliberately linking homosexuality to the criminal act of paedophilia were in each instance a public act capable of inciting hatred within the meaning of s 49ZT.

74. Mr Burns relies on Burns v Corbett [2013] at [37] where the Tribunal found:

“…Ms Corbett encouraged people to regard homosexuals as in the same category as paedophiles.”

75. He says that the statements published on Mr Sunol’s blog do the same thing. He says the statements linked to the Youtube clip incorporated very strong and abusive language about their target and/or imputed criminal conduct. He says that this reflects not just a dislike but hatred or serious contempt. He says that the statements published by the viewers of the Youtube clip imply that if legislation is approved for gay marriage for same sex couples giving them access to male children those children will become victims of paedophilia and that the statements deliberately link homosexuality to the criminal act of paedophilia.

76. Mr Sunol says in relation to the third complaint:

“I have DELETED all material now and he need not worry as I do NOT BREAK THE LAW or vilify anyone, This is all a lie made up by Garry on a person al [sic] vendetta – I believe that this compliant has no substance behind it and it is a vindictive attempt to pervert the cause [sic] of justice deliberately made out by Garry as he hates me so badly he wants me locked away.

I am NOT guilty of this and never will accept it.

I am not responsible for the statements following this you tube, and neither will I ever accept this.

Garry is just plainly out to make a vindictive statement against me as he is so corrupt that he wants me locked up – then to get all my money of me for his own hatred.

I have deleted it from my blog now but I agree with the ABC show, not the statements below which I have no control of.”

77. Except for three posts identified below, in our view these publications also were capable of urging or prompting amongst internet users at large hatred towards, serious contempt for or severe ridicule of homosexuals on the grounds of homosexuality. We find that in each instance they satisfy the criteria for presumptive liability in s 49ZT(1).

78. The first post is “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 pedorasts ring. Truly sick”. In our view these words are strong and abusive and impute serious criminal conduct to older homosexuals both as having “underage love interests” and as being possible members of a “pedorasts ring”. The phrases do not merely convey these negative feelings to internet users are large but urge them or spur them on to experience such feelings.

79. The second post is the words “this is truly sickening!”. This publication of itself does not in our view satisfy the criteria of presumptive liability set out in s 49ZT(1). The words cannot be given context so as to identify a target. They appear within the link among a number of other posts which are not in date order and it is unclear whether the words used are referring to another post or the content of the youtube clip. It is not clear for example whether what is said to be “truly sickening” is same sex marriage, paedophilia, or something else. There was no evidence before us as to the actual content of the youtube clip to which reference might be made. In those circumstances in our view the words by themselves could not have the effect of urging or prompting hatred towards or serious contempt for or severe ridicule of any person or group of persons on any ground.

80. The third post in the complaint contains the words “did you see the link from one of the paedophiles in the video campaigning for gay marriage (so he can get kids out of it and rape them)?” The words make reference to a video which was not in evidence. The words in isolation could possibly convey that persons campaigning for gay marriage including homosexuals may be paedophiles seeking to gain access to children for the purposes of rape. On the other hand, in his letter to the Anti-Discrimination Board on 23 March 2014 Mr Burns acknowledged that the content of the Youtube clip was a matter of public interest. If in the context of the contents of the video clip the quote referred in fact to an actual paedophile campaigning for gay marriage for a criminal purpose the words in that context might not meet the criteria for presumptive liability in s 49ZT(1). We cannot be satisfied on the material before us that they do.

81. The fourth post is “disgusting !!! I knew it! The gay marriage equality makes it even more easier for paedophiles to gain access to their child victims”. The words also target homosexual partners to gay marriage and impute serious criminal conduct. In our view the words are not mere insults or invective or abuse but have the effect of urging or prompting among ordinary internet users at large serious contempt for or severe ridicule of parties to a same sex marriage by reason of the substantially contributing factor of their homosexuality.

82. The fifth post is “everybody with comom sense know gay people have issues and are inclined to be pedophiles, but they call same people “homophobic” and don’t give a damn if children are being hurt”. The target of these words is homosexual people and the words convey that gay people are inclined to be paedophiles. The phrase imputes a tendency towards serious criminal conduct. Again, in our view the words are not merely insulting or invective or abuse but have the effect of urging or prompting serious contempt for or severe ridicule of gay people on the grounds of their homosexuality among ordinary internet users at large.

83. The sixth post says “read the thesis gay marriage is child abuse – last link. It describes gays saying exactly what you said”. The target of the publication is homosexual parties to gay marriage. The words convey that parties to a gay marriage engage in child abuse. The language is abusive and imputes serious criminal conduct. The words are not mere insults or invective or abuse but in our view have the effect of urging or prompting among ordinary internet users at large hatred towards or serious contempt for or severe ridicule of parties to a same sex marriage by reason of the substantial contributing factor of their homosexuality.

84. The seventh post in the third publication is “homosexual pedophiles (majority male) represent approximately 10% of them. They are more prolific and they work in teams”. Immediately before the phrase complained of are the words “most pedophiles are heterosexuals”. The context of the publication is the reporting of statistics. The target is homosexual paedophiles rather than homosexuals in the context of a comparison with heterosexual paedophiles (by inference 90% of all paedophiles). In our view, the words used do not and are not capable of inciting hatred towards serious contempt for or severe ridicule of homosexuals who are not paedophiles on the grounds of their homosexuality.

The exception under s 49ZT(2)

85. We have taken Mr Sunol’s submissions earlier referred to into account in considering whether the public acts which we have found might not be rendered unlawful by reason of s 49ZT(2). Mr Sunol’s submissions did not go to the proof of matters required under s 49ZT(2)(a) or (b).

86. Mr Sunol did make reference to his “academic prowess” by linking to issues and speaking on a blog. He also says that people might read the material as “academic material”. However, there is no evidence that any of the pubic acts which we have found bore a rational relationship to the protected activity and that it was not disproportionate to what was necessary to carry it out so as to make it reasonable within the meaning of s 49ZT(2)(c). Nor was there evidence that the act in question was engaged in bona fide and for the protected purpose so as to satisfy the good faith element in that subsection; see Sunol v Collier (No 2) [2012] at [41] per Bathurst CJ and Basten JA at [79]. There is no material before us upon which we can be satisfied that any of the publications was undertaken by Mr Sunol reasonably and in good faith for academic or any other purpose specified in s 49ZT(2)(c). Accordingly, the exception provided in s 49ZT(2)(c) is not made out.

87. For the foregoing reasons, we find that the publication by Mr Sunol of the material contained in the first and second complaints and the material in the third complaint excepting in respect of those two comments which we have identified were acts of unlawful homosexual vilification within the meaning of s 49ZT of the Act.

Relief and orders

88. Mr Burns is not seeking damages or an apology. He says that he would like Mr Sunol to enter “into some kind of agreement” with him that he would comply with the orders of the Tribunal and not republish statements via his blog that were harmful to homosexual men and women. He did seek an order which would restrain Mr Sunol from publishing similar offending material in the future. Mr Sunol made no submissions in respect of any relief.

89. The orders which the Tribunal might make where a complaint has been substantiated are contained in s 108 of the Anti-Discrimination Act. This section does not authorise an order requiring the Respondent to enter into an agreement concerning the compliance with orders of the Tribunal.

90. Section 108(2)(b) provides that if the Tribunal finds a complaint substantiated in whole or in part it may:

“(b)   make any order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations. …”

91. Mr Sunol informed the Tribunal that the offending material had been removed from his website. Mr Burns did not contradict this. Mr Burns submitted that Mr Sunol removes offending statements and then republishes them. There was no evidence of this in the material before us. Accordingly, any injunctive relief would be in respect of future publication.

92. In Sunol v Collier (EOD) [2006] NSWADTAP 51 in substitution for an order that had been made by the Tribunal at first instance the Appeal Panel made an order that Mr Sunol was to refrain from publishing certain materials “Including statements to the same or similar effect, on any website whether or not controlled by him”. In so doing, the Appeal Panel said at [49] ‘We are satisfied that the Tribunal has power to make an order enjoining Mr Sunol from repeating any unlawful conduct. That includes republishing the statements that the Tribunal has found to be unlawful. Courts and Tribunals have also made orders pursuant to comparable legislation enjoining a respondent from publishing or republishing material ‘to the same or similar effect’ or which conveys certain imputations: Islamic Council of Victoria v Catch the Fire Ministries Inc [2005] VCAT 1159 and Jones v Toben [2002] FCA 1150. There is evidence that Mr Sunol has continued to publish material that is similar to the material that the Tribunal found to be unlawful. Although it may be difficult for Mr Sunol to predict which statements will be in breach of the AD Act, he has been given a great deal of guidance on this issue by the Tribunal. We agree with Mr Collier that the order should cover the publication of material to the same or similar effect as the material that the Tribunal has found to be unlawful.”

93. On the question of whether Mr Sunol should be prevented from publishing such statements on other websites, the Appeal Panel in Sunol v Collier (EOD) [2006] said at [50]:

“We also agree that Mr Sunol should be prevented from publishing such statements on any websites, whether or not they are controlled by him. If he is able to post statements on websites not controlled by him, then those public acts should be covered by the Tribunal’s order. For those reasons, the following order should be substituted for Order 2:

Mr Sunol is to refrain from publishing the material referred to in the previous order including statements to the same or similar effect, on any website whether or not controlled by him.”

94. In a similar situation in Burns v Sunol [2012] the Tribunal proposed an injunctive order. If an order were to be made that Mr Sunol restrain himself from further publications the conduct restrained would have to be limited to “conduct rendered unlawful by Act or the regulations”; see s 108(2)(b) of the Anti-Discrimination Act, Burns v Sunol [2012] at [95] and Sunol v Collier (EOD) [2006] at [49].

95. Having been satisfied that the publication of the material referred to in the complaints which we have identified was unlawful, we consider that an order restraining Mr Sunol from republishing the material which has been found to be unlawful including material to the same or similar effect on any website whether or not controlled by him is warranted.

Costs

96. Neither party made submissions in respect of the costs of the proceedings in which they were self-represented. No order is made.

Orders

1. In this order, “the material” means:

1. 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.  

2. 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.

3. 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.

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

5. 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.

6. 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.

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

Decision last updated: 25 June 2015