Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Burns v Sunol [2016] NSWCATAD 81 Hearing dates: 12 November 2015 Date of orders: 29 April 2016 Decision date: 29 April 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member
E Hayes, General MemberDecision: 1. Complaint 1 is substantiated.
2. Complaint 2 is dismissed.Catchwords: EQUAL OPPORTUNITY — homosexual vilification — meaning of “public act” — whether communication to the public of material on a third party website is a “public act” of the alleged vilifier — whether the publication had the capacity to incite hatred towards, serious contempt for, homosexual persons Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Burns v Sunol [2012] NSWADT 246
Burns v Sunol [2015] NSWCATAD 40
Burns v Sunol [2016] NSWCATAD 16
Burns v Sunol [2016] NSWCATAD 74
Jones v Trad [2013] NSWCA 389
Margan v Manias [2015] NSWCA 388
Sunol v Burns [2015] NSWCATAP 207
Sunol v Collier and anor. (No 2) [2012] NSWCA 44Category: Principal judgment Parties: Garry Burns (Applicant)
Christopher Sunol (Respondent)Representation: G Burns (Applicant in person )
J Sunol (Respondent in person)
File Number(s): 1510408,1510409
REASONS FOR DECISION
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John Sunol, the respondent in these proceedings, is an avid internet blogger. He maintains a website on which he posts comments about a wide range of topics, including same sex marriage, paedophilia, the war in Syria and the licencing scheme governing NSW taxi drivers.
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Garry Burns has lodged numerous complaints about Mr Sunol with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”). Common to all complaints is the allegation that by the act of publishing material on his website Mr Sunol has vilified homosexuals. Section 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act) makes it unlawful for a person, by a “public act”, to incite hatred towards, serious contempt for, or severe ridicule of a person on the ground that the person(s) is, or is thought to be, homosexual.
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These reasons consider two further complaints made by Mr Burns and address whether:
The communication of the material about which Mr Burns complains was the “public act” of Mr Sunol
If so, whether that publication incited or had the capacity to incite hatred towards, serious contempt for, or severe ridicule of, homosexual person(s), and
If so, whether one or more of those emotions was incited on the ground of the homosexuality of the person(s).
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We considered similar issues in a recently published decision involving the same parties: Burns v Sunol [2016] NSWCATAD 74 (Burns 2016). The subject matter of the complaints which were the subject of that decision is broadly similar to the complaints the subject of these Reasons.
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For the reasons that follow, we found only one of the complaints to be substantiated.
Statutory framework
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Section 49ZT makes it unlawful for a person to engage in a “public act” which amounts to homosexual vilification:
49ZT Homosexual vilification unlawful
(1) It is unlawful for…
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- AGLC
- Burns v Sunol [2016] NSWCATAD 81
- Case
- [2016] NSWCATAD 81
- Decision Date
CaseChat Overview and Summary
The court found that the publication of material on a third-party website could be considered a "public act" of the alleged vilifier, as the content was accessible to the public and had the potential to reach a wide audience. The court further found that the publication had the capacity to incite hatred towards, or serious contempt for, homosexual persons, as the comments were derogatory and targeted the respondent based on his sexual orientation. The court found that the respondent had substantiated his complaint of homosexual vilification and dismissed the appellant's counterclaim for defamation.
The court ordered that complaint 1 was substantiated, and complaint 2 was dismissed. The court did not make any orders for damages or compensation, as the respondent had not sought any. The decision highlights the importance of considering the potential impact of online communication on public perceptions and the need for individuals to be mindful of the potential consequences of their online actions.
Orders
Orders of the court
1. Complaint 1 is substantiated.
2. Complaint 2 is 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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