Gaynor v Burns

In the case of Gaynor v Burns, the dispute arose between two residents of different states, with the complainant, Gaynor, residing in New South Wales and the respondent, Burns, in Victoria. The issue before the court was whether the Anti-Discrimination Board (NSW) had jurisdiction to accept and refer a complaint of homosexual vilification to the New South Wales Civil and Administrative Tribunal (NCAT). The dispute was centred on the interpretation of the Anti-Discrimination Act 1977 (NSW) and whether a delegate of the President of the Board needed to be satisfied of residency in New South Wales and that the relevant “public act” occurred in New South Wales before exercising any discretionary power. The court was required to determine whether these factors constituted jurisdictional facts.

The court examined the meaning of “homosexual vilification” as provided in section 49ZT of the Anti-Discrimination Act 1977 (NSW) and the meaning of “to incite” and “public act” in the context of the legislation. The court found that the jurisdictional facts did not need to be established by the delegate before exercising their discretion to accept a complaint and refer it to NCAT. This was because the provisions of the Anti-Discrimination Act 1977 (NSW) did not require a delegate of the President of the Board to be satisfied of residency in New South Wales and that the relevant “public act” occurred in New South Wales before exercising any discretionary power.

The court concluded that the Anti-Discrimination Board (NSW) possessed the relevant jurisdiction to accept complaints and refer them to NCAT. The court found that the jurisdictional facts did not need to be established by the delegate before exercising their discretion to accept a complaint and refer it to NCAT, as the provisions of the Anti-Discrimination Act 1977 (NSW) did not require such a satisfaction. Therefore, the Anti-Discrimination Board (NSW) was found to have the jurisdiction to accept and refer the complaint of homosexual vilification to NCAT.