BOTTRILL v SUNOL & ANOR (Discrimination) [2017] ACAT 81
DT 4/2017
Catchwords: DISCRIMINATION – vilification – religious conviction – constitutional law – whether resolving a complaint by an ACT resident against a NSW resident involves the exercise of Commonwealth judicial power – it does not – geographical jurisdiction of ACAT – whether obtaining access in the ACT to internet material posted outside the ACT may be conduct in the ACT – whether material that may incite hatred toward, revulsion of, serious contempt for or serious ridicule of an ACT resident on the ground of religious conviction may be unlawful in the ACT where it was posted on a website of a NSW resident and downloaded in the ACT – it may
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Bottrill v Sunol [2017] ACAT 81
Case
[2017] ACAT 81
Decision Date
CaseChat Overview and Summary
The matter before the Administrative Appeals Tribunal (ACAT) involved a complaint by Mr Bottrill, a resident of the Australian Capital Territory (ACT), against Mr Sunol, a New South Wales (NSW) resident, and another party, regarding alleged acts of vilification on the basis of religious conviction. Mr Bottrill alleged that Mr Sunol's conduct, including the posting of internet material on a website and subsequent downloading of this material by Mr Bottrill in the ACT, amounted to unlawful conduct under the Discrimination Act 1991 (ACT). The primary legal issue was whether ACAT had jurisdiction to hear the matter and whether the conduct in question, which occurred outside the ACT, could be considered unlawful under ACT law when accessed within the ACT.
The ACAT found that it did have jurisdiction to hear the complaint, dismissing the respondent's challenge to its geographical jurisdiction. The Tribunal reasoned that the exercise of judicial power by the Commonwealth, in this instance by ACAT, was not limited by the geographical boundaries of the ACT. Furthermore, the Tribunal held that the downloading of internet material in the ACT, which was posted from NSW, could be considered conduct in the ACT for the purposes of the Discrimination Act. The content of the material, which was deemed to incite hatred, revulsion, contempt, or ridicule on the ground of religious conviction, was found to be capable of constituting unlawful conduct under ACT law, even though it originated outside the ACT.
The Tribunal concluded that it had jurisdiction over the complaint and that the conduct in question could be unlawful under ACT law. Consequently, the application by the respondent challenging the jurisdiction of the Tribunal was dismissed. The matter was relisted for further directions, with the option for the parties to attend by telephone. This decision underscores the broad jurisdictional reach of the ACAT in matters involving the Discrimination Act and highlights the potential implications of accessing online content that may constitute vilification, regardless of where the content was originally posted.
Orders
Orders of the court
The Tribunal orders that:
1 The application by the respondent challenging the jurisdiction of the Tribunal is dismissed.
2 The matter is to be relisted on a date to be fixed for further directions and the parties may attend by telephone.