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Durston v Anti-Discrimination Tribunal (No 2)

Durston v Anti-Discrimination Tribunal (No 2)

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Case Copied 4 October 2018 54 min read

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[2018] TASSC 48

COURT: SUPREME COURT OF TASMANIA

CITATION: Durston v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48

PARTIES:  DURSTON, James William
  v
  ANTI-DISCRIMINATION TRIBUNAL
  THE HONOURABLE WILL HODGMAN
  ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

FILE NO: 1067/2015
JUDGMENT

APPEALED FROM: Williams v 'Threewisemonkeys' and Durston [2015] TASADT 4

DELIVERED ON:  4 October 2018
DELIVERED AT:  Hobart
HEARING DATES:                  11 August 2016, 5 February 2018
JUDGMENT OF:  Brett J

CATCHWORDS:

Human Rights – Discrimination – Grounds of discrimination – Homosexuality – Tribunal member found that dissemination of pamphlet was a breach of anti-discrimination legislation – Pamphlet was not distributed in public interest – No error in Tribunal member's reasoning.

Toben v Jones [2003] FCAFC 137, applied.
Aust Dig Human Rights [17.5]

Constitutional Law – Operation and effect of the Commonwealth Constitution – Restrictions on Commonwealth and State legislation – Rights and freedoms implied in Commonwealth Constitution – Freedom of political communication – Particular cases – Anti-Discrimination legislation – Whether the Tasmanian anti-discrimination legislation infringes the implied freedom of political communication – Provisions do not infringe the implied freedom.

Anti-Discrimination Act 1998 (Tas), ss 17, 19, 20, 55.
Brown v Tasmania [2017] HCA 43; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; McCloy v New South Wales [2015] HCA 34, 89 ALJR 857, applied.
Catch the Fire Ministries Inc v Islamic Counciil of Victoria Inc [2006] VSCA 284; Sunol v Collier (No 2) [2012] NSWCA 44; Owen v Menzies; Bruce v Owen; Menzies v Owen [2012] QCA 170; Jones v Scully [2002] FCA 1080, (2002) 120 FCR 243; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16, followed.
Chief of Defence Force v Gaynor [2017] FCAFC 41; Monis v The Queen [2013] HCA 4, 249 CLR 92; Eatock v Bolt [2011] VCA 1103, 197 FCR 261; Coleman v Power [2004] HCA 39, 220 CLR 1, cited.
Aust Dig Constitutional Law [430]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Intervenor  M E O'Farrell SC, P Turner and M Duvnjak
Solicitors:
             Intervenor:  Office of the Solicitor General

Judgment Number: [2018] TASSC 48
Number of paragraphs: 97

Serial No 48/2018

File No 1067/2015

JAMES WILLIAM DURSTON v ANTI-DISCRIMINATION TRIBUNAL
and THE HONOURABLE WILL HODGMAN ATTORNEY-GENERAL
FOR THE STATE OF TASMANIA (NO 2)

REASONS FOR JUDGMENT BRETT J

4 October 2018

In 2013, the appellant, as part of a group known as "ThreeWiseMonkeys", caused the dissemination of a pamphlet throughout the Sandy Bay area of Hobart. The pamphlet was entitled "HOMOSEXUALITY Stats". It commenced with the sentence:
"It is warned that homosexuality should not be tolerated, and therefore this will benefit both the individual and society."
It then made a number of factual assertions, including in the nature of statistics, concerning the life span and causes of death of "homosexuals" and "lesbians". In part, the assertions involved a comparison between persons said to fall into those categories and members of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] TASSC 48
Decision Date: 4 October 2018

CaseChat Overview and Summary

The case involved Durston and the Anti-Discrimination Tribunal, where the dispute centred around allegations of discrimination based on homosexuality. The Tribunal had ruled that the dissemination of a pamphlet by Durston constituted a breach of anti-discrimination legislation. Durston appealed this decision, arguing that the pamphlet was distributed in the public interest. The matter was brought before the court to determine the validity of the Tribunal's ruling and to decide whether there was any error in the Tribunal member's reasoning.

The primary legal issue before the court was whether the Tribunal member correctly interpreted the anti-discrimination legislation in finding that the distribution of the pamphlet was discriminatory and not justified by a public interest defence. The court had to examine the content of the pamphlet, the circumstances of its distribution, and whether the Tribunal member appropriately balanced the right to freedom of expression against the prohibition of discrimination based on sexual orientation. It was also necessary to determine whether the Tribunal member's conclusion was open to the evidence presented.

The court found that the Tribunal member's reasoning was sound and that there was no error in the decision. The content of the pamphlet was deemed to be discriminatory, and it was not established that its distribution served the public interest. The court upheld the Tribunal's finding that the pamphlet breached the anti-discrimination legislation. The evidence presented did not support a conclusion that the distribution was justified, and therefore the Tribunal's decision was affirmed.

The court dismissed Durston's appeal, upholding the Anti-Discrimination Tribunal's ruling that the distribution of the pamphlet constituted a breach of anti-discrimination legislation. The court confirmed that the Tribunal member's interpretation of the legislation and the balancing of rights were correctly applied, and there was no error in the decision-making process.

Orders