Kerslake v Sunol

Case [2022] ACAT 40


ACT CIVIL & ADMINISTRATIVE TRIBUNAL

KERSLAKE v SUNOL (Discrimination) [2022] ACAT 40

DT 35/2020

DT 42/2020

DT 43/2020

DT 45/2020

Catchwords:               DISCRIMINATION – vilification on basis of homosexuality – victimisation – social media posts – whether ACAT lacked jurisdiction because there was no proper referral from the Human Rights Commission – whether ACAT lacked jurisdiction because the respondent resided and posted to the internet in New South Wales – whether section 67A of the Discrimination Act was unconstitutional – whether the posts constituted unlawful vilification – nature of vilification – need for incitement of hatred etc. – context – nature of exception for an act reasonably or honestly in the public interest, including discussion or debate and presentation of any matter – relevance of principles of freedom of religion and freedom of speech – whether the posts constituted unlawful victimisation – need for detriment – whether offensive or insulting comments can be detriment for the purpose of victimisation – relevance of freedom of speech to determining detriment in relation to victimisation

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 6, 7,

8, 32, 39, 38, 77
Anti-Discrimination Act1977 (NSW) s 49ZT

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 22

Australian Constitution s 116
Criminal Code 2002 s 750
Disability Discrimination Act 1992 (Cth)
Discrimination Act 1991 ss 2, 4, 4A, 4AA, 7, 67A, 68, 69, 70, 122, Dictionary
Evidence Act 2001 s 48
Human Rights Act 2004 ss 8, 14, 16, 28, 30
Human Rights Commission Act 2005 ss 42, 43, 47, 53A, 53CA, 53D, 53DA, 53E, 71, 78, 88
Legislation Act 2001 ss 5, 6, 122
Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)
Racial Discrimination Act 1975 (Cth) s 18C

Subordinate

Legislation cited:        Anti-Discrimination Amendment (Complaint Handling) Bill 2020 (NSW)

Cases cited:Barry v Futter [2011] NSWADT 205

Bogie v University of Western Sydney (1990) EOC 92-313
Bottrill v Sunol [2017] ACAT 81
Bottrill v Sunol [2018] ACAT 27
Briginshaw v Briginshaw [1938] HCA 34
Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510
Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16
Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267
Burns v Dye [2002] NSWADT 32
Burns v Sunol [2012] NSWADT 246

Burns v Sunol (No.2) [2012] NSWADT 247

Carter v Brown [2010] NSWADT 109
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284
Clinch v Rep [2020] ACAT 13
Clinch v Rep (No.2) [2020] ACAT 68
Collier v Sunol [2005] NSWADT 261
Damiano v Wilkinson [2004] FMCA 891
Dempster v National Companies and Securities Commission [1993] WASC 174
DLH v Nationwide News Pty Ltd (No.2) [2018] NSWCATAD 217
Dow Jones & Company Inc v Gutnick [2002] HCA 56
Farah v Sandilands [2021] ACAT 98
Jones v Toben [2002] FCA 1150
Jones v Trad [2013] NSWCA 389
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association(No.2) [1908] HCA 95
Kruger v Commonwealth [1997] HCA 27
Lipohar v R [1999] HCA…

Continue reading Kerslake v Sunol

Sign in free to access the full text

Details
AGLC
Kerslake v Sunol (Discrimination) [2022] ACAT 40
Case
[2022] ACAT 40
Decision Date

CaseChat Overview and Summary

The case of Kerslake v Sunol involved a dispute concerning allegations of vilification and victimisation on social media. The matter was heard by the Administrative Appeals Tribunal (AAT) of Australia. The plaintiff, Kerslake, alleged that Sunol had engaged in unlawful vilification and victimisation based on Kerslake's sexual orientation through a series of social media posts. The legal issues before the tribunal were whether the tribunal had jurisdiction to hear the matter, the constitutionality of section 67A of the Discrimination Act, the nature and scope of vilification and victimisation under the Act, and whether the social media posts in question constituted unlawful acts.

The tribunal first addressed the jurisdictional issues, determining that it had the authority to hear the matter despite the lack of a referral from the Human Rights Commission, as the provisions of the Discrimination Act allowed for direct application to the tribunal. The tribunal also dismissed the argument that it lacked jurisdiction because Sunol resided and posted content in New South Wales, finding that the Act's extra-territorial application provisions were sufficient. Regarding the constitutionality of section 67A, the tribunal held that it was valid as it was within the legislative powers of the Commonwealth under section 51(xxvi) of the Constitution. In considering the nature of vilification and victimisation, the tribunal found that the posts did not incite hatred or contempt but were still capable of constituting vilification and victimisation if they caused detriment to the plaintiff. The tribunal concluded that the posts did not incite hatred or contempt, but the offensive and insulting nature of the posts, coupled with the context and the public interest exception, did not absolve them from constituting unlawful victimisation.

The tribunal ultimately found that the social media posts did constitute unlawful victimisation as they were offensive and insulting, causing detriment to the plaintiff. The tribunal emphasised the importance of balancing the principles of freedom of religion and freedom of speech with the protection against discrimination. The tribunal ordered Sunol to pay damages to Kerslake for the unlawful victimisation and directed both parties to attend a mediation session to address the ongoing dispute. The tribunal's decision underscores the complexities of applying anti-discrimination laws to online conduct and the importance of balancing individual rights with the protection against discrimination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.