Burns v Sunol

[2016] NSWCATAD 81

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 Member
Decision:	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 44
Category:	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

1. 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.

2. 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.

3. These reasons consider two further complaints made by Mr Burns and address whether:

1. The communication of the material about which Mr Burns complains was the “public act” of Mr Sunol

2. 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

3. If so, whether one or more of those emotions was incited on the ground of the homosexuality of the person(s).

4. 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.

5. For the reasons that follow, we found only one of the complaints to be substantiated.

Statutory framework

6. 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…