Collier v Sunol

[2005] NSWADT 261

CITATION:	Collier v Sunol [2005] NSWADT 261
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Henry Collier RESPONDENT John Sunol
FILE NUMBER:	051037
HEARING DATES:	28/09/2005
SUBMISSIONS CLOSED:	28/09/2005
DATE OF DECISION:	17/11/2005
BEFORE:	Chesterman M - ADCJ (Deputy President); Gill M - Non Judicial Member; Groth D - Non Judicial Member
APPLICATION:	Vilification - Homosexual
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Racial Discrimination Act 1975 (Cth)
CASES CITED:	Burns v Dye [2002] NSWADT 32 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 Dow Jones & Co Inc v Gutnick [2002] HCA 56 Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Jones v Toben [2002] FCA 1150 Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102
REPRESENTATION:	APPLICANT S Pritchard, barrister RESPONDENT In person
ORDERS:	1. The Application is upheld in relation to the following statements set out in paragraph 2.3 of the Points of Claim as amended: (d), (e), (f), (h) and (i); 2. The parties are to address us on the matter of what orders we should make by way of relief and with regard to costs. We direct the Registry to arrange a hearing for this purpose

REASONS FOR DECISION

The nature of these proceedings

1 In these proceedings, the Applicant, Mr Henry Collier, alleges that material published by the Respondent, Mr John Sunol, on the internet during October 2004 vilified homosexual people contrary to provisions of the Anti-Discrimination Act 1977 (‘the AD Act’).

2 According to Mr Collier, Mr Sunol published this material in two ways: by including it in material published on websites controlled by him and by contributing it to websites controlled by others. All the websites involved were accessible to the general public without a password.

3 The orders that Mr Collier seeks from the Tribunal are that Mr Sunol must (a) remove from all websites controlled by him all material relating to homosexuals, homosexuality or the Gay and Lesbian Mardi Gras; (b) refrain from publishing material on these topics on any website, whether or not it is controlled by him; (c) post an apology for his prior publication of material vilifying homosexuals on every website that is controlled by him, or on which he has previously published any material; and (d) pay Mr Collier’s costs.

4 Mr Sunol asserts that some of the material claimed to have been published by him was in fact put on the relevant website by other people. He admits that he himself published the rest of the material, but says that this material did not contravene the AD Act for two reasons. These are (a) that it did not vilify homosexual people and (b) that it was published reasonably and in good faith for purposes in the public interest, and therefore fell within an exception to the prohibition against homosexual vilification in the AD Act.

5 On 25 October 2004, Mr Collier lodged with the Anti-Discrimination Board the complaint that gave rise to these proceedings. A conciliation conference held on 16 December 2004 was unsuccessful. On 10 March 2005, at Mr Collier’s request, the President of the Anti-Discrimination Board referred the complaint to the Tribunal.

The material about which Mr Collier complains

6 In his evidence to the Tribunal, Mr Collier stated that he is a gay man and a long-term gay activist in both the USA and Australia. He has been a member of Gay and Lesbian Mardi Gras for about ten years. In July 2004, he retired from a Senior Lectureship in Accounting and Finance at the University of Wollongong, having previously taught in these areas at a number of American universities.

7 Mr Collier first came across messages bearing Mr Sunol’s name and contact details when on 18 October 2004 he logged into a publicly accessible website called ‘Allsorts’. This website, he said, was primarily for students enrolled at the University of Wollongong, giving information relating to sexually diverse activities. The messages that he read shocked and horrified him because of their hostility to homosexual people.

8 Between 18 and 25 October 2004, Mr Collier, using search engines, found numerous websites containing messages that had been posted by Mr Sunol since about 2001. All of the sites were accessible without a password and some were apparently controlled by Mr Sunol. On one message, Mr Sunol said that he held a number of university degrees and TAFE diplomas and that he was studying for a Master of Commerce degree at the University of Newcastle. Mr Collier made printouts of a large number of pages from these messages.

9 In his Points of Claim, which were filed in the Tribunal on 4 July 2005 and amended at the hearing, Mr Collier set out nine statements ((a) – (i)) that appeared in these printouts. At the hearing, his counsel, Ms Pritchard said he would not rely on one of them (numbered (c)) in these proceedings. She confirmed that his case was based on the remaining eight statements.

10 The text of these statements (which include some misspelt words) is as follows:-

(a) ‘Homosexuality is a behavioural disorder, brought on by the social conditioning (brain washing) of human beings, through group and peer pressure.

e.g. gay/lesbian/bi = sin

sin = eternal separation from God

eternal separation from God = death.’

(b) ‘The Gay and Annual Lesbian Mardi Gras, One big blight upon the city. This is the ultimate of all evil and it is unknowingly run by criminal gang members and potential terrorists.’

(d) ‘I have spoken out sharply against the Gay Lobby and feminist lefttist social changes which are anti-God and out to destroy todays society. This includes,

Same sex partners Marriage:

Adoption for homosexual couples:

Decriminalised drugs, Mariuajana and Heroine ect:

and other such evils.’

(e) ‘Faggots are all wicked evil people.’

(f) ‘I am willing to go to prison for being dissobedient to any law of such and I will incite others to do so as well.’

(g) ‘The Mardi Gras is full of Criminals and run by drug lords. It is also full of Child pedeophiles and corrupt people.’

(h) ‘God will burn Sydney to the Ground because of the evilness of these fags.’

(i) ‘I hope and pray that God mooves and brings more of the religious right into Australia to keep the poofs and faggs kept held down.’

11 Items (a) and (b) in this list appeared within a single posting on a website called which Mr Sunol controlled. Alongside a mobile phone number, he gave this website as his address in all the remaining items. The internet service provider for this site, along with a number of others that Mr Sunol controlled, was Geocities, which formed part of Yahoo! He also maintained Hotmail (MSN) accounts.

12 Item (d) in this list appeared on and items (e) to (i) inclusive on Items (e), (f), (h) and (i) formed part of a single posting. Item (g) was in another posting, in which item (a) was repeated. Items (d) – (i) were all contributions to online ‘chats’ with other web-users sending messages to these websites.

13 There were accordingly four messages in all, within which the eight statements of which Mr Collier complains were published.

14 Both during October 2004 and subsequently, Mr Collier discovered on the internet a number of other messages, apparently posted by Mr Sunol, which he (Mr Collier) considered to be very hostile and offensive to homosexuals. But although a number of them formed part of his evidence to the Tribunal, he did not formally claim, for the purposes of these proceedings, that they breached the relevant provisions of the AD Act.

Was Mr Sunol responsible for the publication of this material?

15 In his Answer to Points of Claim, filed on 18 July 2005, and at the hearing, Mr Sunol admitted that he wrote and posted items (a), (b), (d) and (g) in the above list. He admitted writing items (f) and (h), but only in private e-mail messages to individual recipients. He claimed that other people, possibly these recipients, were responsible for the presence of these items on a publicly accessible website. In addition, he denied having written items (e) and (i).

16 Mr Sunol’s evidence on this issue of publication was primarily made up of printouts of material from the internet – in particular, from a website called Zgeek – that hotly disputed his pronouncements about, amongst other things, homosexual people and insulted him in highly offensive ways. He maintained that his own websites had been hacked into and that material apparently emanating from them, including the messages to which his denials related, had been sent to this public site in order to discredit him. He alleged that Mr Danny Bresciani, the creator and controller of Zgeek, was one of the people responsible.

17 Mr Sunol argued also that since the public sites on which he posted messages had numerous subscribers – he gave a figure of 11,000 for Zgeek – there was a high probability that at least one person who read his postings would have had the expertise to hack into his own websites. He said that he had found expert witnesses who could testify along these lines, but that they had not been able to attend the hearing. He did not identify them by name or say what qualifications they possessed.

18 The principal evidence on this matter that Mr Collier put before the Tribunal comprised affidavits by two witnesses – Mr Danny Webb and Mr Phil Kernick – who had expertise and experience in the design and maintenance of secure web systems. They both testified that it was very difficult indeed to hack into a personal site hosted by a large commercial provider such as Geocities or Hotmail, without knowing the user’s password.

19 Mr Kernick was not cross-examined. He said, amongst other things, that he created a ‘sample site’ at Geocities but that, despite employing all the techniques with which he was familiar, he was unable to hack into it.

20 In his affidavit and in cross-examination, Mr Webb said that he had first come across Mr Sunol’s postings in December 2003. He had found them to be inflammatory and offensive and had engaged in online debate with Mr Sunol. On 16 November 2004, he had asked Geocities to close down some sites controlled by Mr Sunol, on the ground that they were in breach of Yahoo!’s prohibition against offensive content. The sites were closed down, but Mr Sunol immediately created two new sites that were ‘carbon copies’ of the previous ones. On 18 November, Mr Webb requested the closure of these new sites, which occurred the next day. He denied having ever tried to hack into any website controlled by Mr Sunol.

21 Mr Bresciani was also called as a witness on Mr Collier’s behalf. He said that since 2001 he had received possibly as many as 1,000 e-mails from Mr Sunol. Their content included personal threats and abuse, and threats to have his website Zgeek closed down by the police. He complained without success to the Australian Media and Communications Authority and for a time he tried to block e-mails from Mr Sunol.

22 Like Mr Webb, Mr Bresciani sent requests to Geocities for closure of Mr Sunol’s sites and denied ever having tried to hack into any website controlled by Mr Sunol. When the postings on Zgeek that were offensive to Mr Sunol were drawn to his attention in cross-examination, he said that he could not possibly control everything that was posted on his website.

23 Mr Bresciani admitted, however, that he had forwarded on to Zgeek some of the e-mail messages that Mr Sunol had sent to him. He said that he had done this because Mr Sunol had ‘dared’ him to publish them, and only after giving due notice to Mr Sunol.

24 With regard to this evidence from Mr Bresciani, Ms Pritchard pointed out that Mr Collier’s claim in these proceedings did not rely on any material published on the Zgeek site.

25 She also argued that the printouts made by Mr Collier provided sound reasons why we should reject Mr Sunol’s assertions that he did not write items (e) and (i) in the foregoing list and that he wrote items (f) and (h) in private e-mails only. She pointed out that all four of these items appeared in the same posting made to on 20 October 2004. She said also that these items were downloaded by Mr Collier on the same day (again 20 October 2004) as an item (item (g)) which Mr Sunol did admit to publishing on this site.

26 The last of these submissions does not, in our view, count for much. While item (g) may have been downloaded from the website by Mr Collier on the same day as the four items that Mr Sunol claims not to have posted, item (g) (as we indicated above at [12]) was not part of the same message. Mr Sunol had sent item (g) to this site on the previous day, 19 October 2004.

27 On a review of all this evidence, we are, however, comfortably satisfied that Mr Sunol was responsible for the publication on a publicly accessible website, of the four items ((e), (f), (h) and (i)) which he denies having published in this way. In so finding, we make due allowance for the fact that he was not legally represented in these proceedings.

28 Our principal reasons for reaching this conclusion are as follows. The printouts indicate that a website controlled by Mr Sunol, was the source of the posting of these four items. His claim that one or more hackers effected the postings was not supported by any expert evidence to suggest that it was a reasonable possibility. Furthermore, it was directly contradicted by the two expert witnesses on whom Mr Collier relied. Although one of these witnesses (Mr Webb) was clearly antagonistic to Mr Sunol, the other (Mr Kernick) was not. Mr Kernick’s evidence was unchallenged because he was not called for cross-examination. Mr Bresciani appeared to us to be a truthful and reliable witness and in any event his site, Zgeek, was not one on which the relevant statements were posted.

Did this material vilify homosexuals unlawfully?

29 The provisions of the AD Act making homosexual vilification unlawful are ss 49ZT(1) and (2), in conjunction with s 49ZS. These are as follows:-

49ZT(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

49ZT(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
49ZS In this Division:

public act includes:

(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and

(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and

(c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

30 As stated, therefore, in Burns v Dye [2002] NSWADT 32 at [14]:-
To succeed in a complaint of homosexual vilification the complainant must establish on balance that the respondent committed:
a public act

which incites

hatred towards, serious contempt for or severe ridicule of a person or group of persons

on the ground of the homosexuality of the persons or members of that group.

31 If the complainant succeeds on all of these four matters, the complaint will still fail if one of the exceptions outlined in s 49ZT(2) applies. By virtue of s 109 of the AD Act, the onus of establishing that an exception applies lies on the respondent.

32 We will now discuss these four matters in turn, bringing the second and the third together under a single heading.

Was the posting of any of the statements on a website a ‘public act’?

33 We have no doubt that the act of posting written text on a website that is not password protected and therefore is publicly accessible falls within paragraph (a) of the definition of ‘public act’ in s 49ZS. It constitutes a ‘form of communication to the public’.

34 In Jones v Toben [2002] FCA 1150, the Federal Court held that posting material on a site of this nature was an act ‘not done in private’ for the purposes of the vilification provisions of the Racial Discrimination Act 1975 (Cth). Section 18C(2) of this Act states that ‘an act is taken not to be done in public if it… causes words, sounds, images or writing to be communicated to the public…’ At [73 – 75], Branson J said:-

73 In my view, the placing of material, whether text, graphics, audio or video, on a website which is not password protected is an act which causes words, sounds, images or writing to be communicated to the public in the sense that they are communicated to any person who utilises a browser to gain access to that website.

74 I conclude that the placing of material on a website which is not password protected is an act which, for the purposes of the [Race Discrimination Act], is taken not to be done in private…

75 I further conclude that the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publication, in that it allows individuals who access the website with a browser to read that text and see those graphics.

35 We would add that the ‘public act’ of communicating the relevant material to the public via the internet clearly occurred in New South Wales, if not also in other jurisdictions. This was the State in which Mr Collier read and printed out all this material. The evidence shows any other person in New South Wales who used a browser to gain access to the relevant websites could do likewise. While dealing with a different cause of action (defamation), the principles stated by the High Court in Dow Jones & Co Inc v Gutnick [2002] HCA 56 appear to us to be applicable.

36 In the way in which this case was presented to us, the publication of each of the eight statements was claimed to be a ‘public act’ within s 49ZS that breached the prohibitions contained in s 49ZT. There was no comparable claim with regard to any other statements forming part of the four internet postings within which these eight statements were published (see [11 – 13] above) or with regard to any other material that Mr Sunol was alleged to have published on the internet.

37 In our opinion, it would have been permissible instead to characterise as a ‘public act’ each of the four internet postings, taken as whole. An approach along these lines was adopted in Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, where the complaint of vilification related to an article published in a newspaper. The Appeal Panel treated the publication of the article as a whole as the relevant ‘public act’. In its judgment at [36], it set out various phrases within the article on which the Appellants relied in claiming that publication of the article breached s 49ZT. At [38], it said:-

Whilst the Appellants’ submission with respect to the particulars of their complaint are set out above, it was never suggested that the determination of whether the article incited others to hatred, serious contempt or severe ridicule turns on anything other than the article taken as a whole. Its constituent parts must be assessed within the context of the entire article, having regard to its style and construction...
38 The case with which we must deal, however, is based on the contention that the publication of each of the eight identified statements, not of the four messages in which they appeared, was a ‘public act’ within s 49ZS of the AD Act. We accept this contention.

Was there incitement to hatred and/or serious contempt of a person or group?

39 Ms Pritchard submitted that all of the eight statements of which Mr Collier complained incited hatred and/or serious contempt within the meaning of s 49ZT(1). She did not contend that any of them incited severe ridicule.

40 The relevant principles. The judgment in Burns v Dye [2002] NSWADT 32 contains at [19 – 23] a convenient summary of the principles that we must bear in mind:-

19 … First, the word ‘incite’ is to be given its ordinary natural meaning which is to “urge, spur on, ... stir up, animate; stimulate to do something” (New Shorter Oxford English Dictionary, 1993) (Oxford); “urge on; stimulate or prompt to action” (the Macquarie Dictionary, third edition, 1997) (Macquarie).

20 Second, the vilification provisions of the Act do not make unlawful the use of words that merely convey hatred towards a person, or the expression of serious contempt or severe ridicule: Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 at 78-266.

21 Third, proof of intention to incite, or that anyone was in fact incited, is not required. As noted in Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 at [93]:“It is the capacity of the public act performed by a person which is significant, rather than the intent of the person who performed that act. Further, it is the likely effect rather than the actual effect of the public act which is significant.”…

22 Four, the audience or potential audience of the public act should be assumed to be the “ordinary reasonable person” as defined by the Australian Broadcasting Tribunal in Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 at 357 and quoted with approval in Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at p.10:

The test to be applied is, in the Tribunal’s view, an objective one. The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal’s view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views.
23 … the complainant must establish … that the public act must be capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons. These words are to be given their ordinary dictionary meaning. Kazak v John Fairfax Publications Limited [2000] NSWADT 77 [at 40] set out the following definitions:

“hatred” means “intense dislike; detestation” (Macquarie), “a feeling of hostility or strong aversion towards a person or thing; active and violent dislike” (Oxford);

“serious” means “important, grave” (Oxford); “weighty, important” (Macquarie);

“contempt” means “the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account”(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie);

“severe” means “rigorous, strict or harsh” (Oxford); “harsh, extreme”(Macquarie);

“ridicule” means “subject to ridicule or mockery; make fun of, deride, laugh at”(Oxford); “words or actions intended to excite contemptuous laughter at a person or thing; derision” (Macquarie).

41 Subsequent decisions have affirmed these propositions: see for example Veloskey v Karagiannakis at [21 – 29]; John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [12 – 14, 32 – 34].

42 In Veloskey v Karagiannakis at [28] (see too John Fairfax Publications Pty Ltd v Kazak at [16]), the Appeal Panel stated a further proposition of significance:-

28 Thus, in the context of vilification provisions, the question is, could the ordinary reasonable reader understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race? The question is not, could the ordinary reasonable reader reach such a conclusion after his/her own beliefs have been brought into play by the public act?…
43 Considerations of specific relevance in this case. As already noted (see [13] above), the eight statements complained of were published within four messages. Specifically, statements (a) and (b) were included in the same message, statements (a) and (g) were included in another message and statements (e), (f), (h) and (i) in yet another message. By contrast, statement (d) seems to have been published in isolation from all the other statements.

44 It follows that in determining the effect on the ordinary reasonable reader of all of the eight statements except for statement (d), the fact that they were published in three groups, according to the pattern that we have just outlined, must be taken into account. This fact forms part of the context in which each of them was published and is for that reason is a significant factor (see the dicta quoted at [37] above from Veloskey v Karagiannakis).

45 Contrary to a proposition in Ms Pritchard’s written submissions, however, it does not follow that ‘the statements must be taken as a whole’. Only the statements within each of the three groups of statements ((a) and (b); (a) and (g); (e), (f) (h) and (i)) should be read in conjunction. The three groups of statements, each forming part of a different message posted by Mr Sunol, should be read in isolation from each other.

46 Ms Pritchard submitted that the matters that we should take into account should also include assertions by Mr Sunol, in some of his postings to publicly accessible sites, that (a) although he had suffered brain damage in a car accident in 1978 he had fully recovered, (b) he had obtained a number of university degrees and TAFE diplomas, some of which gave him expertise on social science topics such as gay hate crimes, drugs, alcohol and corruption and (c) that he was studying for a Master of Commerce degree.

47 The printouts show, however, that only one of the eight statements complained of appeared on a website in proximity to assertions of this nature. In a message posted at about the same time as statement (g), Mr Sunol referred to his degrees and TAFE diplomas and his status as a student in a Master of Commerce course. We do not attach much significance to this matter.

48 With reference to the specific content of the eight statements, Ms Pritchard relied in particular on a specific ruling in Burns v Dye [2002] NSWADT 32, a homosexual vilification case. This was that the act of the respondent in drawing a large penis on the applicant’s front door and adding the words ‘fag lives here, faggots should die’ amounted to incitement to hatred or serious contempt. At [88], the Tribunal explained this ruling as follows:-

88… Read as a whole the meaning of the graffiti “fag lives here, faggots should die” was clear: Mr Burns was a homosexual; he lived in the unit where the graffiti appeared; the anonymous author advocated that fags should die…. The graffiti did not merely convey Mr Dye’s feelings of hatred towards, or contempt for, Mr Burns but was implicitly addressed to any passers-by as well as to Mr Burns. Moreover, it was addressed in both specific and general terms. It stated generally that homosexual males “should die”, which implies that killing them or violence toward them is a worthwhile endeavour or object, and it targeted one individual – the person whose residence lay behind the door. This proclamation was addressed at large to any member of the passing public. It was an urging of or an encouragement to anyone with the inclination to take heed of the message being conveyed. We find that this communication was capable of stirring up, spurring on, or urging hatred of, or at the very least severe contempt for, Mr Burns.
49 We agree that this passage provides useful guidance with regard to some at least of the statements with which we are concerned.

50 Mr Sunol asserted in his Answer to Points of Claim that statement (a) constituted theological material and was ‘written to’ people who shared his religious beliefs. He said in relation to statement (d) that he was just ‘putting out’ his point of view, which ‘we all have rights to do’. His submissions at the hearing did not further address the particular issues that we are now discussing.

51 Our rulings. In our judgment, the necessary element of incitement to hatred or serious contempt, in the sense that we have described this notion, is present in all but one of the eight statements on which Mr Collier relies.

52 The exception is statement (a). Unlike most of the other statements, it does not contain epithets such as ‘evil’ or ‘corrupt’. It does impute ‘sin’, but with specific reference to the well-known fact that according to some adherents of the Christian faith homosexuality is a sin. It could be interpreted as saying that homosexual people are victims of misfortune. Even though it was published in two messages that also contained statements (b) and (g) respectively, we are not satisfied that its publication had the necessary capacity to incite ordinary reasonable people to feelings of hatred or serious contempt towards homosexual people.

53 With regard to statements (b), (d), (e), (g) and (h), we would make these observations. They do not merely communicate the information that Mr Sunol harbours feelings of hatred and/or serious contempt towards the people to whom they refer. They also contain strong epithets, derogatory labels and serious allegations, put forward as reasons why other people should develop such feelings. To quote the language of Veloskey v Karagiannakis at [28] (see [42] above), the ‘ordinary reasonable reader’ of these statements would, in our judgment, ‘understand’ that ‘he/she is being incited to hatred… or serious contempt’.

54 The epithets used in these five statements include ‘evil’ (statements (b), (e) and (h)) ‘one big blight’ (statement (b)), ‘wicked’ (statement (e)) and ‘corrupt’ (statement (g)).

55 The labels ‘faggots’ and ‘fags’ are used (statements (e) and (h)). We consider these labels to be derogatory in the context in which they appear even though in quite different contexts – for example, in conversations between homosexual people – they may not be derogatory (cf the discussion in Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [30 – 31]).

56 In these statements, there are allegations that the Mardi Gras is ‘run by’ criminal gang members, potential terrorists and ‘drug lords’ and is ‘full of’ criminals, paedophiles and corrupt people (statements (b) and (g)). It is also alleged that the Gay Lobby is ‘anti-God’, is ‘out to destroy today’s society’, and promotes social causes that constitute ‘evils’ (statement (d)).

57 The remaining statements, (f) and (i), do not contain epithets or allegations of this nature, though the derogatory labels ‘poofs’ and ‘fags’ are employed in (i). What these two statements principally do is to urge the reader, explicitly or implicitly, to engage in conduct adverse to the interests of homosexuals.

58 Statement (f) reads as follows: ‘I am willing to go to prison for being dissobedient to any law of such and I will incite others to do so as well.’ Earlier in the message, it is indicated that the ‘law’ in question is a proposed amendment to anti-discrimination law removing exemptions for religious organisations. The message also conveys Mr Sunol’s belief that pressure for this amendment came from homosexual people, whom in this specific context he describes as ‘wicked evil people’ (statement (e)). There is accordingly an explicit statement of a desire by Mr Sunol to ‘incite’ conduct in opposition to the interests of people whom he labels as ‘wicked’ and ‘evil’.

59 We note in passing that if, contrary to prevailing authority (see [40] above), it were necessary under s 49ZT(1) to prove an intention to incite, statement (f) would appear to supply the requisite evidence, at least so far as the statements published by Mr Sunol in the same internet message are concerned.

60 In statement (i), the desirability of ‘keeping down’ homosexual people (designated by the insulting terms ‘poofs’ and ‘fags’) is the significant element. Although the statement envisages that this will be done by ‘the religious right’, the implicit message is that this is appropriate conduct on the part of anyone.

61 The fact that Mr Sunol published statements (f) and (i) in the same message as (e) and (h) is important. Neither of the former two statements, standing alone, would have the requisite capacity to incite hatred or serious contempt. But when they are read in conjunction with the latter two statements, notably (e), it is clear that the basis on which they urge the reader to engage in conduct adverse to the interests of homosexual people is that such people deserve to be the objects of hatred and/or serious contempt.

62 We conclude therefore that statements (b) and (d) – (i) inclusive, though not statement (a), possess the element of incitement to hatred or serious contempt required by s 49ZT(1) of the AD Act.

Was hatred or serious contempt incited on the ground of the homosexuality of the person or of members of the group?

63 The principles governing this issue are summed up as follows in Burns v Dye [2002] NSWADT 32 at [24]:-

24 Finally it must be established that the offending public act must incite hatred towards, serious contempt for or severe ridicule of a person or a group of persons on the ground of the homosexuality of the person or members of the group. We note that s 4A of the Act does not apply to vilification complaints. Section 4A provides that in relation to complaints of unlawful discrimination, where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, (whether or not it is the dominant or substantial reason), then that act is taken to be done for that reason. Consequently in the context of s 49ZT it is helpful to look at relevant cases, which dealt with the meaning “on the grounds of” before the 1994 amendment to the Act, inserting s 4A, took effect. Mathews DCJ in O’ Callaghan v Loder [1984] EOC 92-023 at 75,499 took the view that the phrase “on the ground of” meant a “significant factor,” “a substantially contributing factor” and “a causally operative effect”. Her Honour used these terms interchangeably. In Waterhouse v Bell (1991) 25 NSWLR 99 at p 106. Clarke JA used the phrase “an operative ground”.
64 In Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, the Appeal Panel used the phrase ‘a substantially contributing factor’. We take this to be the preferable view.

65 Ms Pritchard submitted that on account of Mr Sunol’s consistent use of terms such as ‘fags’, ‘same sex partners’ and ‘the Gay and Lesbian Mardi Gras’, the homosexuality of members of the groups of people against whom hatred or serious contempt was incited was at least a ‘substantially contributing factor’ to the incitement. She also relied on Mr Collier’s evidence that he had been a member of the Gay and Lesbian Mardi Gras for about ten years (meaning, it would seem, that he played some role in its administration).

66 Both in his Reply to Points of Claim and at the hearing, Mr Sunol asserted that he was not antagonistic to homosexual people, nor did his statements attack them in general terms. In evidence, he said that during some of his tertiary studies and in his role as an activist he had come across evidence of criminal behaviour on the part of some of the leaders of the homosexual community, notably those involved with the Mardi Gras. His statements, he submitted, were designed to expose this conduct and demonstrate its pernicious consequences, not to vilify homosexual people.

67 In relation to two statements, (b) and (g), we accept this line of argument by Mr Sunol. They contain strong epithets and serious allegations and on the face of it are defamatory. But these epithets and allegations are directed only at ‘the Mardi Gras’, which would appear (we heard no evidence on the matter) to mean those involved in organising the annual Sydney event known by this name.

68 In so ruling, we again take account of the context in which these statements were published. Each of them appeared in the same message as statement (a), which we have held not to have incited hatred or serious contempt. The other material in the same message as both statements chiefly comprised an attack on freemasons. Furthermore, statement (g) was immediately followed by the following passage:-

I am not against the average gay as the average gay is only a victim of his own lobby group, or rainbow groups. It is the leadership that are corrupt.

Freemasonary (sic) on the other hand is inheritently (sic) evil…

69 For these reasons, we are not satisfied that, in statement (b) or statement (g), the element of incitement to hatred or serious contempt for the group of people who constitute ‘the Mardi Gras’, or are its leaders, was incitement ‘on the ground of’ the homosexuality of these people. Their homosexuality is not put forward in the statements as ‘substantially contributing’ to the reasons why these negative feelings should be held towards them. Seen in isolation, both of these statements can in fact be reconciled with a positive, or at least neutral, view of homosexual people.

70 On the other hand, we believe, after careful consideration, that the homosexuality of the ‘Gay Lobby’, who are the targets of statement (d), is implicitly put forward in the statement as ‘substantially contributing’ to the reasons why they should be the subjects of hatred and/or serious contempt. This follows notably from the fact that two out of the three examples of ‘evils’ alleged to arise from the attempts of the ‘Gay Lobby’ to ‘destroy today’s society’ are initiatives specifically benefiting the homosexual community.

71 With regard to the remaining statements – (e), (f), (h) and (i) – the issue now being discussed can be disposed of quickly. Having regard particularly to the fact that they were all published within the same message and that all but one of them expressly refer in derogatory terms to homosexual people generally, there is no doubt that the homosexuality of such people is put forward in the statements as the reason why they should be the subjects of hatred and/or serious contempt.

72 In the outcome, five statements published by Mr Sunol – (d), (e), (f), (h) and (i) – are the only statements that in our opinion fall within the terms of s 49ZT(1). With regard to statements (a) (for reasons explained earlier), (b) and (g), the complaint by Mr Collier must be dismissed.

Do any of the statutory exceptions apply?

73 The only one of the statutory exceptions that Mr Sunol put forward was that contained in s 49ZT(2)(c). Taking into account some parts of his Answer to Points of Claim, we treat him as submitting that his publications were made ‘reasonably and in good faith’, for ‘religious instruction’ or ‘other purposes in the public interest’. As indicated earlier, Mr Sunol bears the onus on this issue.

74 With regard to four of the five statements that we have found to fall within s 49ZT(1), we have little hesitation in rejecting this argument. It cannot be said that statements (e), (f), (h) and (i) were published ‘reasonably’ or indeed that they were published for ‘religious instruction’ or ‘other purposes in the public interest’. They are nothing more than sweeping generalisations of a highly insulting and offensive nature.

75 It will be recalled that, according to Mr Sunol’s evidence, he wrote statements (f) and (h) as private e-mail messages only. At the hearing, he said that he wrote them in anger on account of having himself been insulted, and indeed that it was a silly mistake on his part to send these messages. We note these observations, which would be enough of themselves to rule out any claim of reasonableness. But we do not rely on them, as our finding is that he posted these two statements to a publicly accessible website on the internet.

76 The argument that the remaining statement, statement (d), was published ‘reasonably and in good faith’ for ‘religious instruction’ or ‘other purposes in the public interest’ requires closer consideration. The view that some of the initiatives ascribed to the ‘Gay Lobby’ in that statement would on theological (if not other) grounds be harmful to society cannot be categorised as unreasonable and the public expression of this view might well serve the purpose of religious instruction or be otherwise in the public interest. But the language of statement (d) is extreme and hostile, notably in asserting that the ‘Gay Lobby’ is ‘out to destroy today’s society’. In our opinion, this statement does not fall within the exception created by s 49ZT(2)(c) because the publication is not ‘reasonable’.

Our conclusions

77 For the foregoing reasons, the Application is upheld in relation to the following statements set out in paragraph 2.3 of the Points of Claim as amended: (d), (e), (f), (h) and (i). We dismiss it in relation to statements (a), (b) and (g). We note that statement (c) was not pressed.

78 In these circumstances, it is appropriate that we give both parties a further opportunity to address us on the matter of what orders we should make by way of relief and with regard to costs. We direct the Registry to arrange a hearing for this purpose. Written submissions already filed by the Applicant on these matters may be amended and/or supplemented as necessary at the hearing.