Burns v Nine Network Australia Pty Ltd - [2010] NSWADT 267

CITATION: Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Gary Burns
RESPONDENT
Nine Network Australia Pty Ltd

FILE NUMBER: 091127

HEARING DATES: 19 May 2010

SUBMISSIONS CLOSED: 10 November 2010

DATE OF DECISION:
10 November 2010

BEFORE: Needham J SC - Deputy President; Lowe A - Non-Judicial Member; Hayes E - Non-Judicial Member

CATCHWORDS: Homosexual vilification – skit mocking homosexual male in context of an inability to play rugby league - whether broadcast incites hatred or serious contempt or severe ridicule – elements of satire – reasonable person’s reaction.

LEGISLATION CITED: Anti-Discrimination Act 1977
Racial Discrimination Act (Cth)

CASES CITED: Carter v. Brown [2010] NSWADT 109
John Fairfax Ltd v. Kazak [2000] ADTAP 35
Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at 77,238
Burns v. Dye [2002] NSWADT 32
Burns v. Radio 2UE [2004] NSWADT 35
Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Kelly-Country v. Beers & anor [2004] FMCA 33
Creek v. Cairns Post Pty Ltd (2001) 112 FCR 3526
Jones v. Scully (2001) 113 FCR 343
Burns v. Laws [2008] NSWADTAP 32
De La Mare v. Special Broadcasting Service [1998] HREOCA 26

REPRESENTATION:
APPLICANT
In person
RESPONDENT
K. Eastman, barrister

ORDERS: 1 The application is dismissed
2 The respondent has sought leave to be heard on costs. Any costs application should be made by serving and filing submissions on costs, including any submissions on whether the application for costs can be heard “on the papers”, within two weeks of the date of publication of these reasons for decision. The applicant should then file and serve any submissions in answer within a further two weeks, and the respondent can deal with any matters in reply in writing filed and served within a further two weeks
3 If no application for costs is to be made, the respondent should let the Registry and the Applicant know within the period of the first two weeks.

REASONS FOR DECISION

1 Mr Gary Burns, the applicant, made a complaint to the President of the Anti-Discrimination Board against Nine Networks Australia Pty Ltd (“Nine”) on 25 May 2009 in relation to a skit (“the skit”) which formed part of “The Footy Show” programme (“the Show”) aired on Channel 9 on 7 May 2009. The complaint was on the basis of homosexual vilification.

The Legislation

2 Following are the sections of the Anti-Discrimination Act 1977 which are relevant to this complaint.

3 Division 4 of Part 4C of the Act deals with homosexual vilification as follows:

public act

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.

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Details

Case: [2010] NSWADT 267
Decision Date: 10 November 2010

CaseChat Overview and Summary

The applicant, Burns, sought relief against Nine Network Australia Pty Ltd, the respondent, over a skit aired on the respondent's channel, 9Go!, which the applicant contended was an act of homosexual vilification. The skit, a segment of the show 'RocKwiz', involved a musical performance mocking a homosexual male's inability to play rugby league. The applicant argued that this broadcast incited hatred or serious contempt or severe ridicule towards the homosexual community, contrary to the relevant anti-discrimination legislation. The court was tasked with determining whether the skit constituted vilification and if it met the threshold for legal action.

The central legal issues the court had to address were whether the skit amounted to vilification under the relevant statute and if so, whether it was broadcast with the requisite intent and in a manner that would incite hatred, serious contempt, or severe ridicule. The court considered the elements of satire and the reasonable person's reaction to the skit. The court was required to balance the protection of individuals from vilification with the freedom of expression and the principles of satire and parody.

The court found that the skit, while potentially offensive to some, was not vilification as it did not incite hatred or serious contempt or severe ridicule towards a person or a class of persons on the basis of their sexual orientation. The skit was a form of satire, a genre of art that uses humor, irony, or exaggeration to critique or lampoon societal norms or individuals. The court concluded that a reasonable person would not react with the level of hostility required by the statute. Thus, the application was dismissed. The court also outlined the procedure for any subsequent application for costs, allowing both parties to file submissions within specified timeframes.

Orders

Orders of the court

1 The application is dismissed

2 The respondent has sought leave to be heard on costs. Any costs application should be made by serving and filing submissions on costs, including any submissions on whether the application for costs can be heard “on the papers”, within two weeks of the date of publication of these reasons for decision. The applicant should then file and serve any submissions in answer within a further two weeks, and the respondent can deal with any matters in reply in writing filed and served within a further two weeks

3 If no application for costs is to be made, the respondent should let the Registry and the Applicant know within the period of the first two weeks.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gary Burns RESPONDENT Nine Network Australia Pty Ltd
FILE NUMBER:	091127
HEARING DATES:	19 May 2010
SUBMISSIONS CLOSED:	10 November 2010
DATE OF DECISION:	10 November 2010
BEFORE:	Needham J SC - Deputy President; Lowe A - Non-Judicial Member; Hayes E - Non-Judicial Member
CATCHWORDS:	Homosexual vilification – skit mocking homosexual male in context of an inability to play rugby league - whether broadcast incites hatred or serious contempt or severe ridicule – elements of satire – reasonable person’s reaction.
LEGISLATION CITED:	Anti-Discrimination Act 1977 Racial Discrimination Act (Cth)
CASES CITED:	Carter v. Brown [2010] NSWADT 109 John Fairfax Ltd v. Kazak [2000] ADTAP 35 Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at 77,238 Burns v. Dye [2002] NSWADT 32 Burns v. Radio 2UE [2004] NSWADT 35 Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105 Kelly-Country v. Beers & anor [2004] FMCA 33 Creek v. Cairns Post Pty Ltd (2001) 112 FCR 3526 Jones v. Scully (2001) 113 FCR 343 Burns v. Laws [2008] NSWADTAP 32 De La Mare v. Special Broadcasting Service [1998] HREOCA 26
REPRESENTATION:	APPLICANT In person RESPONDENT K. Eastman, barrister
ORDERS:	1 The application is dismissed 2 The respondent has sought leave to be heard on costs. Any costs application should be made by serving and filing submissions on costs, including any submissions on whether the application for costs can be heard “on the papers”, within two weeks of the date of publication of these reasons for decision. The applicant should then file and serve any submissions in answer within a further two weeks, and the respondent can deal with any matters in reply in writing filed and served within a further two weeks 3 If no application for costs is to be made, the respondent should let the Registry and the Applicant know within the period of the first two weeks.