Burns v Smith

[2019] NSWCATAD 56

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Burns v Smith [2019] NSWCATAD 56
Hearing dates:	30 January 2019
Date of orders:	11 April 2019
Decision date:	11 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Tibbey Senior Legal Member F Given, Community Member
Decision:	Order 1. The complaint alleging unlawful vilification is substantiated. 2. The Respondent is ordered to pay the sum of $10,000 to the Applicant within 28 days of the date of this decision.
Catchwords:	HUMAN RIGHTS – homosexual vilification – meaning of “public act” – whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual person.
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Alexander v Home Office [1998] 1 WLR 968 Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns; New South Wales v Burns [2018] HCA 15 Burns v Dye [2002] NSWADT 32 Burns v Laws (No 2) [2007] NSWADT 47 Burns v Radio 2UE Sydney Pty Ltd (No 2) [2005] NSWADT 24 Burns v Sunol [2012] NSWADT 246 Burns v Sunol [2018] NSWCATAD 10 Carter v Brown [2010] NSWADT 109 Cohen v Hargous [2006] NSWADT 275 Collier v Sunol [2005] NSWADT 261 Eatock v Bolt (No 2) [2011] FCA 1180 Jones v Trad [2013] NSWCA 389 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Western Aboriginal Legal Service Ltd v Jones [2000] Margan v Manias [2015] NSWCA 288 Margan v Taufaao [2017] NSWCATAD 216 Nicholls and Nicholls v Director General, Dept of Education and Training [No 2] [2009] NSWADTAP 20 R v D & E Marinkovic [1996] EOC 92 Russell v Commissioner of Police, NSW Police Service and Nine Individual Police Officers [2001] NSWADT 32 Sunol v Collier and Anor (No 2) [2012] NSWCA 44 Western Aboriginal Legal Service v Jones [2000] NSWADT 102
Category:	Principal judgment
Parties:	Garry Burns (Applicant)   Blair Smith (Respondent)
Representation:	Applicant: Self Represented   Respondent: No appearance
File Number(s):	2018/00250640
Publication restriction:	Nil

REASONS FOR DECISION

The Complaint

1. This was a Complaint made by the Applicant, Mr Garry Burns, on 5 June 2018 to the Anti-Discrimination Board of NSW (‘the Board’) alleging homosexual vilification on a Facebook page.

2. The Complaint was made in relation to a comment posted by Mr Blair Smith on Mr Bernard Gaynor’s Facebook page on 19 April 2018 as follows:

“The same Garry Burns who is on the record advocating for paedophile rights, and acceptance of their practices in the rainbow world. This sick filthy piece of human filth needs to be put down, just like we do to sick animals…After all…it would be the humane thing to do.”

3. The comments were followed by a smiley face.

Surrounding Context for the Facebook Post

4. A series of posts on the Facebook page form part of the Report of the President of the Board, indicating the context of the post. These posts show that the comment alleged to vilify Mr Burns was made in…