2 September 2015 (submissions closed 16 September 2015)
Date of orders:
06 March 2017
Decision date:
06 March 2017
Jurisdiction:
Administrative and Equal Opportunity Division
Before:
J Wakefield, Senior Member J Newman, General Member S Davison, General Member
Decision:
(1) The complaint of homosexual vilification in relation to the second sentence of the publication is substantiated. The complaint in relation to the balance of the publication is dismissed.
(2) Within 14 days of the date of this decision, the respondent is to post the following apology, attributed to him, on the Causes.com website and every website controlled by him, such apology to remain on the website for the life of the website or at least six months whichever is the lesser:-
“This apology is made pursuant to an order of the New South Wales Civil and Administrative Tribunal (NCAT) made on 06 March 2017.
Between 30 December 2013 and 16 June 2014 I published a statement on a website concerning homosexual people.
On 06 March 2017, NCAT held that my statement amounted to unlawful homosexual vilification in contravention of the Anti-Discrimination Act, 1977 (NSW). NCAT found that it was capable of inciting hatred or severe ridicule of or serious contempt for one or more homosexual people on the ground of their homosexuality. NCAT also found that my statement was not published reasonably and in good faith.
I apologise for publishing this statement. I acknowledge that the Act makes it unlawful to vilify homosexual people on the ground of homosexuality.”
Catchwords:
ANTI-DISCRIMINATION – Civil and Administrative Tribunal (NSW) – Administrative and Equal Opportunity Division – vilification on grounds of homosexuality – public act – incitement – s 49ZT(2) exception
[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
Burns v McKee [2017] NSWCATAD 66
Case
[2017] NSWCATAD 66
Decision Date
CaseChat Overview and Summary
In the case of Burns v McKee, the applicant brought a complaint to the New South Wales Civil and Administrative Tribunal, specifically to the Administrative and Equal Opportunity Division, alleging that the respondent had published content that constituted vilification on the grounds of homosexuality. This complaint arose from statements made by the respondent in a public forum, which the applicant argued amounted to a breach of the Anti-Discrimination Act 1977 (NSW). The central issue before the Tribunal was whether the respondent's statement incited hatred, severe ridicule, or serious contempt towards homosexual individuals, and whether it was made reasonably and in good faith.
The Tribunal had to determine if the respondent's statements were indeed vilifying as per section 49ZT(2) of the Anti-Discrimination Act, which provides exceptions for public acts that are not reasonably and in good faith. The court examined the content and context of the statements, assessing their potential impact on the homosexual community. It was crucial to discern whether the statements were made in a manner that could incite hatred or severe ridicule, as well as whether the respondent had acted reasonably and in good faith when publishing them.
The Tribunal concluded that the second sentence of the respondent's publication amounted to unlawful vilification, as it was capable of inciting hatred or severe ridicule of homosexual people on the grounds of their sexuality. However, the Tribunal found that the rest of the publication did not constitute vilification. Consequently, the Tribunal ordered the respondent to issue an apology to the applicant, to be prominently displayed on his websites for a period of at least six months. This decision underscores the importance of ensuring that public statements do not incite discrimination against any group, particularly in the context of protected attributes such as sexual orientation.
Orders
Orders of the court
(1) The complaint of homosexual vilification in relation to the second sentence of the publication is substantiated. The complaint in relation to the balance of the publication is dismissed.
(2) Within 14 days of the date of this decision, the respondent is to post the following apology, attributed to him, on the Causes.com website and every website controlled by him, such apology to remain on the website for the life of the website or at least six months whichever is the lesser:-
“This apology is made pursuant to an order of the New South Wales Civil and Administrative Tribunal (NCAT) made on 06 March 2017.
Between 30 December 2013 and 16 June 2014 I published a statement on a website concerning homosexual people.
On 06 March 2017, NCAT held that my statement amounted to unlawful homosexual vilification in contravention of the Anti-Discrimination Act, 1977 (NSW). NCAT found that it was capable of inciting hatred or severe ridicule of or serious contempt for one or more homosexual people on the ground of their homosexuality. NCAT also found that my statement was not published reasonably and in good faith.
I apologise for publishing this statement. I acknowledge that the Act makes it unlawful to vilify homosexual people on the ground of homosexuality.”