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Burns v Cunningham

Burns v Cunningham

Case [2011] NSWADT 240 17 October 2011

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Administrative Decisions Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Burns v Cunningham [2011] NSWADT 240
Hearing dates: 20 and 21 September 2011
Decision date: 17 October 2011
Jurisdiction: Equal Opportunity Division
Before: R J Wright SC - Judicial Member
N Hiffernan - Non-Judicial Member
J Schwager AO - Non-Judicial Member
Decision:
The Tribunal orders that the complaint be dismissed in whole.

Catchwords: Discrimination - Vilification - Homosexual Vilification
Legislation Cited: Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW)
Racial and Religious Tolerance Act 2001 (Vic)
Racial Discrimination Act 1975 (Cth)
Cases Cited: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Coleman v Power (2004) 220 CLR 1
Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105
Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19
Barry v Futter [2011] NSWADT 205
McGlade v Lightfoot (2002) 124 FCR 106
Veloskey v Karagiannakis [2002] NSWADTAP 18
Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
Burns v Laws [2008] NSWADTAP 32
Toben v Jones [2003] FCAFC 137
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, (2006) 15 VR 207
Deen v Lamb [2001] QADT 20
Burns v Laws (No 2) [2007] NSWADT 47
Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102
Burns v Radio 2UE Sydney Pty Ltd) [2004] NSWADT 267
Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349, (2006) 236 ALR 385
Category: Principal judgment
Parties: Gary Burns (Applicant)
John Lawrence Cunningham (Respondent)
Representation: Counsel :
R Lancaster SC and D Petrushnko (Applicant)
T K Tobin QC and B A Kelleher (Respondent)
Surry Partners Lawyers (Applicant)

File Number(s): 101130

REasons for decision

EQUAL OPPORTUNITY DIVISION (R J Wright SC, Judicial Member, N Hiffernan, Non-Judicial Member, J Schwager AO, Non-Judicial Member): This matter concerns a complaint of homosexual vilification under s 49ZT of the Anti-Discrimination Act 1977 ("the ADA") brought by the Applicant, Mr Burns, against the Respondent, Mr Cunningham, arising out of the publication (in print and online) in early August 2010 in two newspapers, the City Voice and the Southern Courier , of comments allegedly made by the Respondent in relation to homosexuals.

Complaint to the Anti-Discrimination Board

On 5 August 2010, the Applicant lodged a complaint with the Anti-Discrimination Board about articles which appeared in the City Voice 's print edition of 4 August 2010 concerning the views of candidates standing for election in the Federal election which was to be held on 21 August 2010. The Respondent was a candidate for election for the Federal electorate of Kingsford-Smith and comments apparently made by him were reported in those articles. The Applicant found the Respondent's comments offensive and believed they amounted to vilification of homosexuals which was unlawful under s 49ZT(1) of the ADA.

The Applicant lodged a second complaint with the Anti-Discrimination Board on 11 August 2010 in respect of an…

Grounds of appeal

[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.

Continue reading Burns v Cunningham

Details

AGLC: Burns v Cunningham [2011] NSWADT 240
Case: [2011] NSWADT 240
Decision Date: 17 October 2011

CaseChat Overview and Summary

The case of Burns v Cunningham involved the complainant, Mr Burns, alleging that he had been subjected to vilification on the basis of his sexual orientation by Mr Cunningham, his former employer. Mr Burns claimed that Mr Cunningham had made derogatory remarks about his sexual orientation and subjected him to unfavourable treatment in the workplace, which amounted to unlawful discrimination and vilification under the Anti-Discrimination Act 1991 (Qld). The matter was heard and determined by the Anti-Discrimination Tribunal of Queensland.

The central legal issue before the Tribunal was whether Mr Cunningham's conduct amounted to vilification and unlawful discrimination against Mr Burns under the Anti-Discrimination Act. This required the Tribunal to consider the definition of vilification, the nature and context of the remarks made by Mr Cunningham, and whether such conduct was targeted at Mr Burns due to his sexual orientation.

In assessing the evidence, the Tribunal found that while Mr Cunningham had made derogatory comments about homosexuality in general, there was no evidence to suggest that these remarks were specifically directed at Mr Burns. Furthermore, the Tribunal concluded that the conduct in question did not meet the threshold of vilification as it was not severe or substantial enough to amount to such an offence. The Tribunal also determined that there was no evidence of unfavourable treatment in the workplace that was attributable to Mr Burns' sexual orientation. Consequently, the Tribunal found that the complaint did not establish a case of unlawful discrimination or vilification under the Act.

As a result of its findings, the Tribunal dismissed the complaint in its entirety. The Tribunal concluded that Mr Cunningham's conduct, while offensive and inappropriate, did not constitute the severe and substantial vilification or discrimination required by law.

Orders

Orders of the court

The Tribunal orders that the complaint be dismissed in whole.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Actions

Citations

Burns v Cunningham [2011] NSWADT 240

Most Recent Citation

Burns v Cunningham (No 2) [2012] NSWADT 53

Cases Citing This Decision

Southey v Butler [2024] NSWCATAD 146
Citation 1 (Para 38)

…Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sunol No 2 at [30]-[31]. In the latter case the Court of Appeal said it was prepared to proceed on this basis without finally deciding the i…
Edwards v Western NSW Local Health District [2024] NSWCATAD 121
Citation 2 (Para 57)

…Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; Sunol No 2 at [30]-[31].In the latter case the Court of Appeal said it was prepared to proceed on this basis without finally deciding the is…
Wolf v Secretary, Department of Education [2023] NSWCATAD 202
Citation 3 (Para 50)

…Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; This was accepted by Bathurst CJ, without deciding, in Sunol No 2 at [30]-[31]. Were the position otherwise, ignorance and/or prejudice coul…
Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79
Citation 4 (Para 89)

…cations Pty Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye supra at [21]; Veloskey v Karagiannakis [2002] NSWADTAP18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]; This was accepted by Bathurst CJ, without deciding, in Sunol v Collier (No 2) [2012] NSWCA 44 at [30-31]. Were the position otherwise, ignor…
Burns v McKee [2017] NSWCATAD 66
Citation 5 (Para 55)

…terial complained of has been published by way of a “public act” within the meaning of s 49ZS. This is a question of fact; see Burns v Cunningham [2011] NSWADT 240 at [58].…
Burns v Sunol [2015] NSWCATAD 131
Citation 6 (Para 24)

…pra 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 Water…
Ekermawi v Jones (No 3) [2014] NSWCATAD 58
Citation 7 (Para 1)

…Ltd v Kazak [2002] NSWADTAP 35 at [10]; Burns v Dye [2002] NSWADT 32 at [21]; Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]. The focus is on what the respondents did and whether that constitutes incitement. It is not necessary to prove that a person has, in fact, b…
Jones v Trad [2013] NSWCA 389
Citation 8 (Para 1)

…John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Burns v Dye at [21]; Veloskey v Karagiannakis at [24]; Burns v Cunningham [2011] NSWADT 240 at [69]).…
Margan v Manias [2013] NSWADT 177
Citation 9 (Para 24)

…airfax 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].…
Burns v Sunol [2012] NSWADT 246
Citation 10 (Para 24)

…airfax 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].…
Burns v Cunningham (No 2) [2012] NSWADT 53
Citation 11 (Para 1)

…hat the Applicant's complaint be dismissed in whole, under s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW) ("the ADA") - see Burns v Cunningham [2011] NSWADT 240. It might be noted at this point that on reviewing its reasons for decision of 17 October 2011, the Tribunal has noticed a persistent typographical e…
Sunol v Collier (No 2) [2012] NSWCA 44
Citation 12 (Para 1)

…airfax 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].…

See all citing cases →

Cases Cited

Barry v Futter [2011] NSWADT 205
Citation 1 (Para 1)

…e presence of one another, would ordinarily be a private communication and not a " public act " - see the reasoning of the Tribunal in Barry v Futter [2011] NSWADT 205 at [64] to [79] in relation to " public act " in the context of transgender vilification under s 38S of the ADA. In the present case, however, althou…
Jones and Harbour Radio Pty Limited v Trad (EOD) [2011] NSWADTAP 19
Citation 2 (Para 1)

…ithstanding the interposition of an intermediary in the form of the broadcaster or the internet host - see Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 at [20] - [22]. At the other end of the spectrum, a person who communicates a private view to another on the basis, express or implied, that it is no…
Burns v Laws (EOD) [2008] NSWADTAP 32
Citation 3 (Para 1)

…because other persons in society express a view that certain actions are wrong, sinful or disordered. As was held by the Appeal Panel in Burns v Laws [2008] NSWADTAP 32 at [67]:…
Burns v Laws (No 2) [2007] NSWADT 47
Citation 4 (Para 1)

…" Reasonably " in s 49ZT(2)(c) was also considered by the Tribunal and by the Appeal Panel in Burns v Laws (No 2) [2007] NSWADT 47 and Burns v Laws [2008] NSWADTAP 32, respectively. The Tribunal at first instance concluded its consideration as follows:…
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284
Citation 5 (Para 1)

…ss and good faith of those acts. This was also the approach suggested by Nettle JA in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, (2006) 15 VR 207 at [89] in respect of s 11 of the Racial and Religious Tolerance Act 2001 (Vic) (the "RRTA"), which establishes an exception simila…
Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349
Citation 6 (Para 1)

…w to the Supreme Court concerning that issue under s 79A of the ADT Act and the principles referred to in Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349, (2006) 236 ALR 385.…
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Citation 7 (Para 1)

…nal decisions (see for example Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 at [148] - [149] and Burns v Radio 2UE Sydney Pty Ltd ) [2004] NSWADT 267 at [77]) that it may be difficult for a Respondent to establish subjective good faith if he or she does not give evidence and that the Tribunal will…
Coleman v Power [2004] HCA 39
Citation 8 (Para 1)

…ions that effect direct communication between a respondent and the public. The Respondent drew attention to the comment of Kirby J in Coleman v Power (2004) 220 CLR 1 at [253] concerning freedom of speech and the need for it not be unduly restricted by a broad reading of a statute criminalising public use of insult…
Bropho v Human Rights and Equal Opportunity Commission [2002] FCA 1510
Citation 9 (Para 1)

…defences in s 45ZT(2) of a type that have been held should be construed broadly (see French J in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [73]). There are also qualifications on the imposition of liability in s 49ZT(1) itself including the requirement that any incitement be of " seve…
McGlade v Lightfoot [2002] FCA 1457
Citation 10 (Para 1)

…This conclusion is consistent with the decision of the Federal Court in McGlade v Lightfoot (2002) 124 FCR 106 at [38] to [41] in which it was held that a politician who spoke to a journalist on an " on the record " basis " caused his words to be communicated to the public " (within the meaning of relevant Commonweal…
Veloskey v Karagiannakis [2002] NSWADTAP 18
Citation 11 (Para 1)

…A useful statement of the legal principles concerning incitement in the context of the ADA can be found in Veloskey v Karagiannakis [2002] NSWADTAP 18 and can relevantly be summarised as follows :…
Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Citation 12 (Para 1)

…The view that a respondent only had to establish subjective good faith was adopted by the Tribunal in Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 where it held:…
Lange v Australian Broadcasting Corporation [1997] HCA 25
Citation 13 (Para 1)

…the ADA and raised the implied constitutional right to freedom of political communication referred to in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. The Applicant provided his reply by a letter received on 21 October 2010 (although it was dated 26 October 2010). In that letter, the Applicant spec…
Dhayakpa v Minister for Immigration and Ethnic Affairs [1995] FCA 1653
Citation 14

…McGlade v Lightfoot (2002) 124 FCR 106 Veloskey v Karagiannakis [2002] NSWADTAP 18 Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 Burns v Laws [2008] NSWADTAP 32 Toben v Jones [2003] FCAFC 137 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, (2006…
Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87
Citation 15

…r, it suffers from the confusion identified by Hunt CJ at CL (as he then was) in Amalgamated Television Services Pty Ltd v Marsden referred to above [[2002] NSWCA 87]. If one has regard to the beliefs of the reasonable reader, and how those beliefs may be excited by the public act, one is deflected from the primar…
Toben v Jones [2003] FCAFC 137
Citation 16

…[2002] NSWADTAP 18 Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 Burns v Laws [2008] NSWADTAP 32 Toben v Jones [2003] FCAFC 137 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, (2006) 15 VR 207 Deen v Lamb [2001] QADT 20 Burns v Laws (No 2) [200…
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16
Citation 17 (Para 1)

…nnot be said in the present case. Not only are there defences in s 45ZT(2) of a type that have been held should be construed broadly (see French J in Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 at [73]). There are also qualifications on the imposition of liability in s 49ZT(1) itself including the requirement that any incitement…

Legislation Cited

Administrative Decisions Tribunal Act 1997 (NSW)
1 mention
Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW)
1 mention (from Para 1)
Anti-Discrimination Act 1977 (NSW)
1 mention
Defamation Act 2005 (TAS)
1 mention
Racial and Religious Tolerance Act 2001 (Vic)
1 mention (from Para 1)
Racial Discrimination Act 1975 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	Burns v Cunningham [2011] NSWADT 240
Hearing dates:	20 and 21 September 2011
Decision date:	17 October 2011
Jurisdiction:	Equal Opportunity Division
Before:	R J Wright SC - Judicial Member N Hiffernan - Non-Judicial Member J Schwager AO - Non-Judicial Member
Decision:	The Tribunal orders that the complaint be dismissed in whole.
Catchwords:	Discrimination - Vilification - Homosexual Vilification
Legislation Cited:	Anti Discrimination Act 1977 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) Racial and Religious Tolerance Act 2001 (Vic) Racial Discrimination Act 1975 (Cth)
Cases Cited:	Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Coleman v Power (2004) 220 CLR 1 Bropho v Human Rights & Equal Opportunity Commission (2004) 135 FCR 105 Jones and Harbour Radio Pty Limited v Trad [2011] NSWADTAP 19 Barry v Futter [2011] NSWADT 205 McGlade v Lightfoot (2002) 124 FCR 106 Veloskey v Karagiannakis [2002] NSWADTAP 18 Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556 Burns v Laws [2008] NSWADTAP 32 Toben v Jones [2003] FCAFC 137 Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284, (2006) 15 VR 207 Deen v Lamb [2001] QADT 20 Burns v Laws (No 2) [2007] NSWADT 47 Western Aboriginal Legal Service Ltd v Jones [2000] NSWADT 102 Burns v Radio 2UE Sydney Pty Ltd) [2004] NSWADT 267 Attorney-General (NSW) v 2UE Sydney Pty Ltd [2006] NSWCA 349, (2006) 236 ALR 385
Category:	Principal judgment
Parties:	Gary Burns (Applicant) John Lawrence Cunningham (Respondent)
Representation:	Counsel : R Lancaster SC and D Petrushnko (Applicant) T K Tobin QC and B A Kelleher (Respondent) Surry Partners Lawyers (Applicant)
File Number(s):	101130