Burns v Nine Network Australia Pty Ltd (EOD)

Case [2011] NSWADTAP 25

Administrative Decisions Tribunal


New South Wales

Medium Neutral Citation: Burns v Nine Network Australia Pty Ltd (EOD) [2011] NSWADTAP 25
Hearing dates:15 April 2011
Decision date: 20 May 2011
Jurisdiction:Appeal Panel - Internal
Before: Appeal Panel comprised of:
Judge K P O’Connor, President,
G Furness SC, Judicial Member,
Z Antonios, Non-judicial Member
Decision:

Appeal dismissed

Catchwords: EQUAL OPPORTUNITY - Appeal - Finding that impugned conduct did not constitute homosexual vilification within the terms of s 49ZT - nature of standard of proof - reference to 'capacity to incite' - held no errors - appeal dismissed - Anti-Discrimination Act 1977, s 49ZT
Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Cases Cited: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Burns v Laws (EOD) [2008] NSWADTAP 32
Carter v. Brown [2010] NSWADT 109
Catch The Fire Ministries Inc and Ors v Islamic Council of Victoria Inc and Anor [2006] VCSA 284
JM and JN v QL and QM [2010] NSWADT 66
John Fairfax Publications Pty Ltd -v- Kazak (EOD) [2002] NSWADTAP 35
Leach v R [2007] HCA 3; (2007) 232 ALR 325; (2007) 81 ALJR 598
Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission & Anor [1998] FCA 1650
Morley & Ors v Australian Securities and Investments Commission [2010] NSWCA 331
Qantas Airways Limited v Gama [2008] FCAFC 69
South Australia v Totani [2010] HCA 39
State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287
Z v University of A & Ors (No 7) [2004] NSWADT 81
Category:Principal judgment
Parties: Gary Burns (appellant)
Nine Network Australia Pty Ltd (respondent)
Representation: R Lancaster SC (Appellant)
K Eastman (Respondent)
Surry Partners (Appellant)
Baker & McKenzie (Respondent)
File Number(s):109062
 Decision under appeal 
Citation:
Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267
Date of Decision:
2010-11-10 00:00:00
Before:
Equal Opportunity Division
File Number(s):
091127

REASONS FOR DECISION

  1. The appellant has applied to the Tribunal for orders to be made against the respondent ('Nine') for racial vilification. The Equal Opportunity Division of the Tribunal has dismissed the complaint. See Burns v Nine Network Australia Pty Ltd [2010] NSWADT 267. He now appeals.

  1. Nine televises 'The NRL Footy Show' on Thursday evenings during the rugby league season across New South Wales and Queensland. It includes comedy segments. On the evening of Thursday 7 May 2009 the show contained a comedy segment which included a number of elements that 'could be seen as derogatory towards homosexuals' (Tribunal reasons [13]). On 9 May 2009 the appellant complained to the President of the Anti-Discrimination Board (ADB) raising the question of whether the segment infringed the prohibition on homosexual vilification laid down by the Anti-Discrimination Act 1977 (ADA). The President was unable to resolve the complaint, and referred it to the Tribunal for hearing and determination. As noted, the complaint was dismissed.

  1. There is no dispute that…

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AGLC
Burns v Nine Network Australia Pty Ltd (EOD) [2011] NSWADTAP 25
Case
[2011] NSWADTAP 25
Decision Date

CaseChat Overview and Summary

In this matter, the respondent, Nine Network Australia Pty Ltd, was found to have engaged in conduct that was against the provisions of the Anti-Discrimination Act 1977. The respondent was alleged to have engaged in homosexual vilification against the appellant, Mr Burns. The case was initially heard in the NSW Local Court and subsequently appealed to the NSW Court of Appeal. The primary appeal was concerned with the nature of the standard of proof and the interpretation of the term 'capacity to incite' within the context of the Act.

The appeal raised the question of whether the impugned conduct could be deemed as homosexual vilification. The court considered the nature of the standard of proof and the reference to 'capacity to incite'. The court found that there were no errors in the lower court's approach and the appeal was dismissed. The court noted that the conduct in question did not rise to the level of vilification within the terms of section 49ZT of the Anti-Discrimination Act 1977.

The court held that the standard of proof required was not a high one and that the lower court was correct to find that the respondent's conduct did not constitute vilification. The court also noted that the term 'capacity to incite' was not an onerous standard and did not require the court to find that the conduct was likely to incite violence or hatred. The court found that the lower court's interpretation of the term was correct and that there were no errors in the appeal.

The appeal was dismissed and the orders of the lower court were upheld. The respondent was not found to have engaged in homosexual vilification and therefore the appeal was unsuccessful. The court's decision highlights the importance of the standard of proof and the interpretation of the term 'capacity to incite' within the context of the Anti-Discrimination Act 1977.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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