Kerslake v Sunol
[2022] ACAT 40
•16 May 2022
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 49ZTAustralian 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 246Burns 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 65
Margan v Manias [2015] NSWCA 388
Nationwide News Pty Ltd v Wills [1992] HCA 46
Penhall-Jones v NSW [2006] FMCA 927
Penhall-Jones v NSW [2007] FCA 925
Qantas Airways Ltd v Gama [2008] FCAFC 69
Rep v Clinch [2021] ACAT 106
Shaikh v NSW Fire Brigades (1996) EOC 92-808
Sivanantham v Commissioner of Police, NSW Police Service [2001] NSWADT 44
Sunol v Collier (No.2) [2012] NSWCA 44
Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55
Young v Cassells (1914) NZLR 852
List of
Texts/Papers cited: Australian Bureau of Statistics, Australian Marriage Law Postal Survey, 2017 (National Survey Results, 15 November 2017) < Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012)
Catechism of the Catholic Church (Web Page) < C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014)
International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Luke McNamara, Regulating Racism, Racial vilification laws in Australia (Federation Press, 2002)
Macquarie Dictionary
Neil Rees, Simon Rice and Dominique Allen, Australian Discrimination Law (Federation Press, 2014)
US Holocaust Memorial Museum, Holocaust Encyclopaedia, ‘Introduction to the Holocaust’ (Webpage, 5 November 2021) < align="left">Tribunal:Senior Member R Orr QC
Date of Orders: 16 May 2022
Date of Reasons for Decision: 16 May 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 35/2020
DT 42/2020
DT 43/2020
DT 45/2020
BETWEEN:
TIM KERSLAKE
Applicant
AND:
JOHN SUNOL
Respondent
TRIBUNAL:Senior Member R Orr QC
DATE:16 May 2022
DT 35/2020
The Tribunal finds that the posts numbered DT35.001, DT35.002, DT35.003, DT35.006, DT35.007, DT35.011, DT35.012, DT35.014, DT35.018, DT35.019, DT35.025, DT35.032, DT35.038 and DT35.039 in exhibit A5 are vilification.
DT 42/2020
The Tribunal finds that none of the posts in exhibit A6 are victimisation.
DT 43/2020
The Tribunal finds that none of the posts in exhibit A7 are victimisation.
DT 45/2020
The Tribunal finds that the posts numbered C.001, C.006, C.007, C.051, C.056, C.069, C.079, C.080 and C.095 in exhibit A8 are vilification.
ORDERS IN DT 35/2020, DT 42/2020, DT 43/2020 and DT 45/2020
The Tribunal orders that:
The applicant will file with the Tribunal and serve on the respondent any further evidence and submissions in relation to the orders that the Tribunal should make in relation to the findings of vilification, and in relation to the claims by the applicant that the respondent breached the confidentiality orders made in these proceedings, by 10 June 2022.
The respondent will file with the Tribunal and serve on the applicant any further evidence and submissions in relation to the orders that the Tribunal should make in relation to the findings of vilification, and in relation to the claims by the applicant that the respondent breached the confidentiality orders in these proceedings, by 8 July 2022.
The applicant will file with the Tribunal and serve on the respondent any further evidence in reply to the respondent’s evidence and any further submissions in reply to the respondent’s submissions, by 22 July 2022.
These issues will be determined on the papers unless the parties agree to a hearing, or a party applies to the tribunal for an order for a hearing and the tribunal makes an order providing for this.
………………………………..
Senior Member R Orr QC
REASONS FOR DECISION
Introduction
These proceedings are claims of vilification under section 67A, and victimisation under section 68, of the Discrimination Act 1991 (Discrimination Act) by Tim Kerslake (Mr Kerslake or applicant) against John Sunol (Mr Sunol or respondent) in relation to a large number of social media posts. Most of these were written statements, some were oral presentations (which in these reasons are called publications, documents or posts).
In summary, section 67A of the Discrimination Act provides that it is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of (sometimes shortened in these reasons to incite hatred etc.) a person or group on the ground of their sexuality, which includes their homosexuality, other than in private. In summary section 68 provides that it is unlawful for a person to subject, or threaten to subject, another person to any detriment because of a discrimination action. The applicant made complaints to the ACT Human Rights Commission (Human Rights Commission or Commission) that he had been vilified because of his homosexuality, and victimised, by Mr Sunol.[1] Mr Sunol has self-identified his views in these proceedings as “the Christian Faith” and the “Catechetical teachings of the Catholic Church on the point of homosexuality” which are said to be that “homosexual acts are intrinsically disordered”.[2] These complaints have been referred to ACAT by the Commission under section 53A of the Human Rights Commission Act 2005 (Human Rights Commission Act).
[1] Exhibits A1, A2, A3 and A4
[2] Affidavit of Mr Sunol, exhibit R1, at [112]-[122]
These referrals were considered by the Tribunal[3] as matters DT 35/2020 (vilification in relation to 41 documents); DT 42/2020 (victimisation in relation to two documents); DT 43/2020 (victimisation in relation to 71 documents); and DT 45/2020 (vilification in relation to 105 documents). For convenience these four proceedings have been heard and considered together.
Summary of this decision
[3] In these reasons, a reference to ‘ACAT’ or ‘tribunal’ refers to the ACT Civil and Administrative Tribunal generally, whereas ‘Tribunal’ refers to the current panel.
This Tribunal finds that the complaints were properly referred to ACAT by the Commission, and that ACAT has jurisdiction to hear them. The posts were published in the ACT, were accessible to residents here, and Mr Kerslake is a resident here and read them here. The other arguments of Mr Sunol that ACAT did not have jurisdiction to determine these matters are not accepted.
In relation to the vilification claims, in order to amount to vilification under section 67A of the Discrimination Act, a publication needs to be more than insensitive, disrespectful, insulting, offensive or abusive, or even an expression of hatred, revulsion, contempt or ridicule. The publication needs to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of, a person or group of people.
This can involve words which command, request, propose, advise or encourage hatred etc. But it can also involve words which incorporate strong and abusive language about the person or group which is likely to incite hatred etc. In particular where the words indicate that because of being homosexual a person is inherently inferior, a threat to others, or a criminal, the issue of vilification will arise.
In order to come within the exception to vilification for discussion or debate in the public interest under section 67A(2)(c) of the Discrimination Act the publication must be reasonable, that is objectively rational and proportionate, and for purposes in the public interest, such as discussion or debate about or presentation of any matter. This can include discussion or debate about religion or politics, including on the nature of homosexuality and the position of homosexual people in society.
Many of the publications at issue in these proceedings are religious or political statements. For example, Mr Sunol states that homosexuality is wicked and evil, and many similar statements. Mr Sunol argued that because he has freedom of religion and freedom of speech his comments cannot be vilification. I do not agree. If Mr Sunol’s statements do incite hatred etc., they must fall within the exception for reasonable discussion or debate in section 67A(2)(c) not to be vilification. The use of political or religious language does not of itself prevent a statement from inciting hatred etc. or make it a reasonable discussion or debate.
In light of these principles I have considered the posts in the Schedule to these reasons. On this basis I find that:
(a)In proceedings DT 35/2020: the posts in documents numbered DT35.001, DT35.002, DT35.003, DT35.006, DT35.007, DT35.011, DT35.012, DT35.014, DT35.018, DT35.19, DT35.025, DT35.032, DT35.038 and DT35.039 in exhibit A5 are vilification.
(b)In proceedings DT 45/2020: the posts in documents C.001, C.006, C.007, C.051, C.056, C.069, C.079, C.080 and C.095 in exhibit A8 are vilification.
The remaining posts are not vilification.
In order for the victimisation claims to be successful, section 68 of the Discrimination Act requires that Mr Sunol subjected, or threatened to subject, Mr Kerslake to a detriment, because Mr Kerslake had taken or proposed to take discrimination action, including these proceedings in ACAT. The concept of detriment is particularly important here. In the circumstances of these cases, in my view, generally actions which are just statements made by Mr Sunol, even those which are disrespectful, insulting or abusive of Mr Kerslake, in relation to proceedings, did not subject Mr Kerslake to a detriment, and therefore were not victimisation.
In light of these principles I have considered the posts in the Schedule to these reasons. On this basis I find that:
(a)In proceedings DT 42/2020 none of the posts in the documents DT 42/2020 are victimisation.
(b)In proceedings DT 45/2020 none of the posts in documents C.001-C.105 are victimisation.
It was decided at the hearing that the issue of what orders the Tribunal should make if vilification or victimisation was made out would be dealt with following this decision. Directions will be made to enable this now to be considered. Further, in the proceedings Mr Kerslake made applications that Mr Sunol had breached confidentiality orders made by the tribunal. This was not fully canvassed in the hearing and so these directions will also enable this now to be considered.
Complaints
Mr Kerslake made various complaints to the Commission. The first complaint was of vilification made on about 15 January 2020. It was referred to the tribunal on 23 July 2020 and is proceedings DT 35/2020 in the tribunal. It involves 41 documents (as noted below these are referred to as exhibit A5, documents DT 35.1 to 35.41). This complaint is not made on behalf of someone else. It is a complaint of vilification on the basis of homosexuality against Mr Sunol.[4]
[4] Statement of Mr Sunol, exhibit R1, annexure A, pages 63-73; exhibit A1
The second was a complaint of victimisation made on about 30 March 2020. It was referred to the tribunal on 23 July 2020 and is proceedings DT 42/2020 in the tribunal. It involves two documents (as noted below these are referred to as exhibit A6, documents DT 42.001 and 42.002). This complaint is not made on behalf of someone else. It is made against Mr Sunol and Luke McKee.[5] Mr McKee is not a party to these proceedings.
[5] Statement of Mr Sunol, exhibit R1, annexure B, pages 88-93; exhibit A2
The third was a complaint of victimisation made on about 17 June 2020. It was referred to the tribunal on 23 July 2020 and is proceedings DT 43/2020 in the tribunal. It involves 71 documents (as noted below these are referred to as exhibit A7, documents DT 43.001 to 43.071). This complaint is not made on behalf of someone else. It was only against Mr Sunol.[6]
[6] Statement of Mr Sunol, exhibit R1, annexure C, pages 116-121; exhibit A3
The fourth was a complaint of vilification made in June 2020. It was referred to the tribunal on 18 August 2020 and is proceedings DT 45/2020 in the tribunal. It involves 104 documents (as noted below these are referred to as exhibit A8, documents C.001 to C.104). This complaint is not made on behalf of someone else. It is a complaint of vilification on the basis of homosexuality against Mr Sunol.[7]
[7] Statement of Mr Sunol, exhibit R1, annexure D, pages 134-138; exhibit A4
In total therefore there are 207 documents which are raised in these four proceedings.
Interim applications
There was a range of interim applications for directions and orders made in relation to the proceedings. Some of these were routine, but some were more significant and I note some of the more significant ones.
Confidentiality order
The Tribunal made a confidentiality order on 21 August 2020. This provided that pursuant to section 39 of the ACT Civil and Administrative Tribunal Act2008 (ACAT Act) that there was to be no publication by either party (whether by social or traditional media, in digital, written or oral form, or in any other manner) of the matters contained in the documents filed with the Tribunal or received in evidence by the Tribunal for the hearing, or of descriptions of the conduct of the directions hearings and hearing. This was subject to an exception for the purpose of obtaining legal advice or witness statements (confidentiality order).
At the commencement of the substantive hearing on 17 March 2021 an order generally in similar terms was made in relation to those who attended the hearing. The hearing was otherwise held in public.[8]
[8] Transcript of proceedings on 17 March 2021 pages 16-17
The respondent asked for an order that the hearing be held in public (application dated 20 August 2020). The hearing of an application by the tribunal must be in public under section 38 of the ACAT Act. The Tribunal had only made the confidentiality order noted above. By operation of section 38 the hearing was therefore otherwise to be in public. No further order was therefore necessary. The respondent made further complaints that the hearing notices did not set out the names of the parties, and that this meant that the hearings were suppressed. The Tribunal explained that the hearings of the Tribunal were open to the public, subject to the relevant COVID-19 rules, but the parties and then those attending were subject to the non-publication order. The form of the hearing notices was unfortunate but did not mean that the hearings were suppressed or in private.[9]
Alleged breaches of confidentiality order
[9] Transcript of proceedings on 17 March 2021 pages 4-5
Mr Kerslake sought orders on the basis that the confidentiality order had been breached (interim applications dated 11 September 2020 and 25 November 2020). These applications have not been considered in this decision and reasons. They will be considered in the next stage of these proceedings.
A further application was made more recently and dismissed at a hearing on 2 December 2021.
Preliminary questions
Mr Sunol asked for the issue of the Tribunal’s jurisdiction in relation to a person outside ACT to be determined as a preliminary question (interim application of 20 August 2020). This application was not accepted, though this jurisdictional issue was pursued by the respondent and is considered in this decision.
Dismissal of referrals from Commission
The respondent asked for an order dismissing the referral from the Human Rights Commission (interim application dated 10 September 2020). This order was not made, but this issue was pursued by the respondent and is considered in this decision.
Referral of questions
The respondent asked for an order that various questions of law be referred to a tribunal appointed under section 77(3) of the ACAT Act (interim application of 16 February 2021). This order was not made. Insofar as these questions are still in issue in these proceedings, they are considered in this decision.
A further interim application to refer 23 questions was made on 15 March 2021, two days before the substantive hearing. This application was considered at the hearing on 17 March 2021. Insofar as these questions are still in issue in these proceedings, they are considered in this decision.
Strike out of the complaints
The respondent asked for orders under section 32 of the ACAT Act striking out the complaints (application dated 8 March 2021). This order was not made.
Adjournment
The respondent made an application on about 16 February 2021 for the hearing dates to be vacated; this application was refused. An application was made on 15 March 2021 by the respondent that the hearing which was to commence on 17 March be adjourned. This application was considered at the hearing on 17 March 2021.
Hearing
The hearing of this matter was set down for 17 and 18 March 2021, and Mr Kerslake represented himself. Mr Sunol was represented by Peter King instructed by Robert Balzola.
The application for an adjournment (see paragraph [30] above) was not initially granted. The application for a referral (see paragraph [28] above) was abandoned.[10] However after the applicant had presented his written evidence and provided some oral evidence and made himself available for cross-examination the application for an adjournment was remade and granted.[11]
[10] Transcript of proceedings on 17 March 2021 pages 6-15
[11] Transcript of proceedings on 17 March 2021 pages 2, 5-9, 54-57
A further hearing was then set down for 11, 12, 13, and 14 May 2021. On 11 May the applicant made an application to adduce further evidence, which was refused.[12] The respondent applied for another adjournment on the basis of Mr Sunol’s health.[13] The hearing did proceed to conclude the evidence of the applicant and admit the evidence of the respondent, and Mr Sunol gave some brief oral evidence. The parties agreed not to cross-examine. Rather than continue to seek to have the matter heard in person, the Tribunal granted the adjournment on the basis that the hearing as to ‘liability’ issues continue on the papers. The Tribunal made directions for this to occur, which included an order that the respondent indicate in his submissions which of the various jurisdictional and other issues raised in the proceedings he continued to rely on. It was indicated that the Tribunal would after the provision of further material under this timetable provide a decision with reasons as to whether Mr Sunol has committed vilification and victimisation, and if so, a further hearing would be held in relation to what orders, if any, the Tribunal should make in light of this.[14]
Complaints
[12] Transcript of proceedings on 11 May 2021 pages 65-67
[13] Transcript of proceedings on 11 May 2021 pages 67 and ff
[14] Transcript of proceedings on 11 May 2021; Orders of 11 May 2021
The original complaints by Mr Kerslake and the material provided to the Tribunal by the Commission were accepted as evidence and marked as exhibit A1, A2, A3 and A4.
Applicant’s documents
Mr Kerslake also provided indices of the relevant documents, with the text of the documents. On the basis of these indices, the documents are referred to in these proceedings as follows:
(a)In proceedings DT 35/2020 (vilification): documents DT35.1-35.41. These were filed on 21 August 2020 and accepted as exhibit A5, and the documents are referred to by the numbering system used by Mr Kerslake.
(b)In proceedings DT 42/2020 (victimisation): documents DT42.1-42.2. These were filed on 21 August 2020 and accepted as exhibit A6, and the documents are referred to by the numbering system used by Mr Kerslake.
(c)In proceedings DT 43/2020 (victimisation): documents DT43.1-43.69. These were filed on 21 August 2020 and accepted as exhibit A7, and the documents are referred to by the numbering system used by Mr Kerslake.
(d)In proceedings DT 45/2020 (vilification): documents C.001-C.105. These were filed on 21 August 2020 and accepted as exhibit A8, and the documents are referred to by the numbering system used by Mr Kerslake.
Mr Kerslake also provided a list of particularised claims in relation to these documents:
(a)List of particularised claims regarding social media posts in DT 35/2020 dated 12 October 2020 (which was accepted as exhibit A9).
(b)List of particularised claims regarding social media posts in DT 42/2020 dated 12 October 2020 (which was accepted as exhibit A10).
(c)List of particularised claims regarding social media posts in DT 43/2020 dated 12 October 2020 (which was accepted as exhibit A11).
(d)List of particularised claims regarding social media posts in DT 45/2020 dated 12 October 2020 (which was accepted as exhibit A12).
The applicant also tendered some documents provided under subpoena issued at the request of the respondent to Rodney Walter Swift (Mr Swift) (exhibit A13). Mr Kerslake also provided an affidavit affirmed on 24 November 2020 in relation to the proceedings (exhibit A14), and an affidavit in reply affirmed on 10 February 2020 (exhibit A15). He provided oral evidence.[15] The applicant also provided an affidavit by Mr Swift affirmed on 1 December 2020 (exhibit A16).
[15] Transcript of proceedings on 17 March 2021 pages 31-51
At the suggestion of the Tribunal the applicant provided a list of what he regarded as key examples of the publications at issue in these proceedings. These are documents, using Mr Kerslake’s numbering system and in the order of the proceedings and the documents considered in the Schedule:
(a)DT 35/2020, documents 3, 4, 6, 38;
(b)DT 42/2020, documents 1, 2;
(c)DT 43/2020, documents 11, 28, 29; and
(d)DT 45/2020, documents 31, 46, 57, 58.
This list was filed in the tribunal on 1 March 2021. These are all considered in the Schedule.
The applicant had earlier provided submissions on jurisdictional and other issues dated 10 September 2020 (applicant’s jurisdictional submissions). These submissions were taken into account on the relevant issues which are considered in these reasons. The applicant also provided an outline of submissions dated 12 February 2021 for the substantive hearing (applicant’s submissions). Further applicant’s submissions were provided on questions of law for referral (applicant’s questions of law submissions) and then applicant’s submissions in reply on 10 July 2021 (applicant’s submissions in reply).
Respondent’s documents
Mr Sunol provided a statement sworn on 27 January 2021 (exhibit R1). He gave some additional oral evidence.[16]
[16] Transcript of proceedings on 11 May 2021 pages 88-90
The respondent had also earlier provided submissions on jurisdictional and other issues dated 2 October 2020 (respondent’s submissions on jurisdiction). These submissions were taken into account on the relevant issues considered in these issues. The substantive respondent’s submissions were dated 21 June 2021 (respondent’s submissions).
Jurisdictional issue 1 – Referrals from the Commission
In the respondent’s submissions he relies on three issues which he argues prevent the tribunal from having jurisdiction in this matter. The first jurisdictional issue he calls the pathways issue.[17]
[17] Respondent’s submissions at [13]-[21]; see also the affidavit of Mr Sunol, exhibit R1 at [12]-[108]
The respondent raises the terms of section 53A of the Human Rights Commission Act which states:
53A Referral of discrimination complaints other than commission-initiated discrimination matters
(1)This section applies if—
(a)either—
(i)a complainant is given a discrimination referral statement under section 45 (2) (d); or
(ii)a statement under section 82 (1) is included in a final report in relation to a complaint; and
(b)within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT. [Emphasis added.]
If this section applies, section 53A(2) states that:
(2) The commission must—
(a)refer the complaint to the ACAT; and
(b)tell the complainant and the person complained about in writing about the referral. [Emphasis added.]
Section 88 defines ‘discrimination referral statement’ as:
… a statement in a notice in relation to a complaint to the effect that—
(a) the commission has closed the complaint; and
(b) the complainant may ask the commission to refer the complaint to the ACAT within 60 days after the day the notice is given to the complainant; and
(c) after the 60-day period, the complainant may apply to the ACAT under section 53B (Late application in exceptional circumstances) for the complaint to be heard.
As to when the Commission may close a complaint, section 78(1) states in part:
78 When complaints can be closed
(1)The commission may close a complaint at any time if—
…
(f)the commission considers that conciliation is unlikely to succeed; or …
The Commission files which are annexures A to D to the affidavit of Mr Sunol[18] contain letters to Mr Sunol and Mr Kerslake which state that the complaints were referred to the tribunal under section 53A which, the letters note, states that the Commission may do so if a person, in this case Mr Kerslake, had been given a discrimination referral statement and requested the Commission to refer their complaint to the ACAT.[19] These are therefore clearly referrals under section 53A(1)(a)(i).
[18] Exhibit R1; they are also exhibits A1, A2, A3 and A4
[19] Statement of Mr Sunol, exhibit R1, annexure A, page 50; see also annexure B page 82, annexure C page 101, annexure D page 128
In relation to the claim which has become DT 35/2020 in the tribunal, evidence of the relevant steps required by section 53A(1) seem to be contained in letters from the Commission to Mr Sunol and Mr Kerslake dated 27 May 2020. The letter to Mr Sunol stated:[20]
[20] Statement of Mr Sunol, exhibit R1, annexure A, page 59; see also annexure B page 87, annexure C page 106, annexure D page 132
I have decided on behalf of the Commission that conciliation is unlikely to be successful as a means of resolving this complaint.
This indicates compliance with section 78(1)(f) for the closing of a complaint.
I am therefore closing Mr Kerslake’s complaint under section 78 1(f) of the Human Rights Commission Act 2005.
This indicates compliance with section 88(a) for providing a discrimination referral statement.
Referral to the ACT Civil and Administrative Tribunal
Mr Kerslake now has sixty days to require the Commission to refer his complaint to the ACT Civil and Administrative Tribunal (ACAT) for hearting.
This letter is therefore a discrimination referral statement for the purposes of section 53A(1)(a)(i).
The letter to Mr Kerslake stated:
I have decided on behalf of the Commission that conciliation is unlikely to be successful, and for this reason conciliation has now ended.
Referral to the ACT Civil and Administrative Tribunal (ACAT)
Under the Act you have the right to require the Commission to refer your complaint to the ACAT for determination.
You now have sixty days from the date of this letter to exercise this right.[21]
It is true that this letter does not expressly say that the Commission is closing the complaint. But the letter to Mr Sunol does, and the context and relevant legislative provisions indicate this.
[21] Statement of Mr Sunol, exhibit R1, annexure A, page 57
By email dated 17 June 2021 from Mr Kerslake to an officer of the Commission he stated that “I am looking to refer the matter to ACAT. If you need me to complete any additional paperwork to make this happen, I am happy to do so”.[22] The Commission treated this as a request for referral, and made the referral. As noted, the Commission wrote to Mr Sunol and told him that “Mr Kerslake has requested the Commission to refer his complaint to the ACT Civil and Administrative Tribunal (ACAT)” and that “the Commission has now referred the complaint to ACAT”.[23]
[22] Statement of Mr Sunol, exhibit R1, annexure A, pages 53-54; see also annexure B pages 83-84, annexure C pages 102-103, annexure D page 129
[23] Statement of Mr Sunol, exhibit R1, annexure A, page 50; see also annexure B page 82, annexure C page 101, annexure D page 128
The respondent argues that because the complaint to the Human Rights Commission had been closed it cannot be referred to ACAT. This is not correct. Section 53A(1)(a) provides two pathways for a referral. The first pathway requires a discrimination referral statement, which is a statement to the effect that the Commission has closed the complaint.
The respondent also argues that because there is no final report by the Commission that the complaint could not be referred to ACAT. This is also not correct. Section 53A(1)(a) provides two pathways for a referral. It is true that the one in section 53A(1)(a)(ii) requires a final report. But the other under section 53A(1)(a)(i) does not, and it is clear that this is the path used by the Commission in these cases.
The respondent also argues in effect that the Commission was required to investigate, and reach a conclusion on, the complaints, and failed to do so, and generally failed to provide procedural fairness to him. As the provisions set out above show there is no obligation on the Commission to investigate and reach conclusions on the complaints. Section 47 also provides that complaints may, but need not, go through various steps. Division 4.2A deals with discrimination complaints and it contains section 53A, which requires referral to ACAT in specified circumstances; it also includes significant provisions as to how ACAT is to consider and determine complaints in sections 53CA, 53D, 53DA and 53E. This suggests that discrimination complaints can be considered by ACAT, and not by the Commission.
Because the Commission has not in this case considered the complaints, there was no breach of procedural fairness obligations. The statements of the complaints in the material before the Commission were sufficient to support the referral decisions. It is up to the tribunal to provide procedural fairness in its consideration of the complaints. In this hearing Mr Kerslake has specified and particularised his complaints in detail, and Mr Sunol has been given a full opportunity to respond to these.
Mr Sunol makes particular claims that some of the details of the complaints by Mr Kerslake were not before the Commission, or not properly before the Commission.[24] But the lists of documents were provided to the Commission, and this is sufficient in the circumstances.[25] Mr Sunol also says in his affidavit that in relation to DT 35/2020 for example that “complaints materials 1, 4, 5, 30 and 41 are not before the Tribunal”.[26] But exhibit A5 sets out documents as DT35.001, DT 35.004, DT 35.005, DT 35.030 and DT 35.041, and exhibit 9 provides significant particulars of the claims in relation to these documents.[27] These are set out and considered in the Schedule to these reasons.
[24] Affidavit of Mr Sunol, exhibit R1 at [232]-[267]
[25] Affidavit of Mr Sunol, exhibit R1, annexure A at page 73; annexure B at pages 90-95; annexure C at page 120; annexure D at page 138
[26] Affidavit of Mr Sunol, exhibit R1, at [236]
[27] Exhibit A9 at [42] and ff concerning DT 35.001, at [51] and ff concerning DT 35.004, at [54] and ff concerning DT 35.005, at [118] and ff concerning DT 35.030, at [140] concerning DT 35.041
The complaints to the Commission refer to lists of documents which conform with the number and nature of documents put before the Tribunal.[28] In the tribunal proceedings Mr Kerslake provided hard copies of the actual documents and posts and where necessary transcripts,[29] and particulars as to why they amounted to vilification or victimisation,[30] which were provided to Mr Sunol. There were some minor disparities between the lists provided to the Commission and the documents provided to the tribunal, which Mr Kerslake explained in his submissions and oral evidence.[31] I do not think that this renders the referral of the complaints to ACAT invalid, or the consideration by the Tribunal invalid. The Commission had sufficient information to make the referral decision. The full details of all the complaints have been before this Tribunal, and available to Mr Sunol in these proceedings, giving him the opportunity to deal with these. They are noted in the Schedule to this decision.
[28] Affidavit of Mr Sunol, exhibit R1, annexure A at page 73 when compared to exhibit A5; annexure B at pages 90-95 when compared to exhibit A6; annexure C at page 120 when compared to exhibit A7; annexure D at page 138 when compared with exhibit A8
[29] Exhibits A5, A6, A7 and A8
[30] Exhibits A9, A10, A11 and A12
[31] Transcript of proceedings on 17 March 2021 at pages 17-60, see especially pages 20-21, 32-33, 35-37, 42, 44-45
The respondent has not identified an error such as to render the referral from the Commission to ACAT invalid.
I note two other matters referred to during the proceedings. Mr Sunol argued that the complaints were made for an improper collateral purpose.[32] Mr Kerslake does seek compensation, as he is entitled to do. But there is no other evidence in support of this allegation. More than this is necessary to support such a claim.
[32] Affidavit of Mr Sunol, exhibit R1 at [284]-[299].
Second, in my view Mr Kerslake was able to make the complaints. Section 42(1)(c) of the Human Rights Commission Act provides that complaints may be made about an unlawful act under the Discrimination Act. Under section 43(1)(a) and (f) a complaint about an act may be made by “a person (the aggrieved person) aggrieved by the act, service or conduct”, or if the complaint is a discrimination complaint, which includes a vilification or victimisation complaint, “a person who has a sufficient interest in the complaint”. Section 43(2) provides that a person has a sufficient interest in a complaint if:
…the conduct complained about is a matter of a genuine concern to the person because of the way conduct of that kind adversely affects … the interests of the person or interests or welfare of anyone the person represents.
In my view Mr Kerslake is such an aggrieved person. The principal relevant issue raised was whether the Commission and ACAT had jurisdiction when Mr Sunol resided in NSW, which I now consider.
Jurisdictional issue 2: Extra-territorial operation
The respondent argued that the tribunal did not have jurisdiction because Mr Sunol resided in and uploaded the material in NSW. In his submissions Mr Sunol characterised this as two issues, the first whether the ACT Legislative Assembly had power to legislate so as to proscribe as unlawful conduct outside the ACT’s territorial boundaries, to which he said the answer was no.[33]
[33] Respondent’s submissions at [23]
I do not think that this is correct. The ACT can make laws with extraterritorial effect, provided there is some connection with the Territory.[34] Here there was significant connection. The posts were published in the ACT. Mr Kerslake accessed and read them in the ACT. Mr Kerslake resided in the ACT.[35] In my view the ACT can make a law in relation to posts which vilify its residents and which are published here.
[34] Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55 at [12]-[26]; Australian Capital Territory (Self-Government) Act 1988 (Cth) section 22, which provides that the ACT Legislative Assembly has power to make laws for the “peace, order and good government of the Territory”.
[35] Statement of Mr Kerslake, exhibit A14, at [9]; statement of Mr Kerslake, exhibit A15, at [33]-[36]; see also statement of Mr Swift, exhibit A16, at [66]-[69]
The second issue is whether on a proper construction the Discrimination Act does in fact apply to vilification written and uploaded by persons outside the ACT.[36] I set out and discuss section 67A(1) below, but note that the key requirement is that it “is unlawful for a person to incite hatred towards … a person or group of people … other than in private”. Mr Sunol argues that this does not extend to him because he resides in NSW.
[36] Respondent’s submissions at [24]
I do not think that this is correct. It is true that there is a common law presumption against legislation having extraterritorial effect. This presumption has statutory form in the ACT in the Legislation Act 2001 (Legislation Act), section 122. But these presumptions are generally weaker in respect of interstate, and between a state and a territory, operation in a federation, and at any rate are subject to a contrary intention.[37]
[37] Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309, O’Connor J at page 363; Dempster v National Companies and Securities Commission [1993] WASC 174; (1993) 9 WAR 215 (FC), 241-242; Lipohar v R [1999] HCA 65 at [37] (Gleeson CJ), at [99]-[103] (Gaudron, Gummow and Hayne JJ); Legislation Act sections 5, 6(3), 122 – section 122 is not a determinative provision and can therefore be displaced by a contrary intention; Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014) at [5.9].
As noted, the relevant act for vilification is the incitement. Mr Kerslake gave clear evidence that he resided in the ACT and read all the publications at issue in these proceedings in the ACT.[38] There was no evidence provided by the respondent which cast doubt on this. The publications therefore took place in the ACT and the alleged incitement took place in the ACT.
[38] Statement of Mr Kerslake, exhibit A14, at [9], [12]-[15]
In Bottrill v Sunol [No.1] (Bottrill)[39] the tribunal there considered the question of whether a social media post in one State or Territory (in that case NSW) could be complained of in another State or Territory (in that case ACT). The tribunal held that the Commission and ACAT did have jurisdiction in such a case. This conclusion was supported in part by Jones v Toben,[40] Collier v Sunol,[41] Dow Jones & Company Inc v Gutnick (Gutnick),[42] and section 4AA of the Discrimination Act. More difficult issues as to whether a person outside the ACT can bring proceedings here were considered in Clinch v Rep[43] and Rep v Clinch (Appeal)[44] (Rep v Clinch (Appeal)) which generally confirmed the decision in Bottrill.
[39] [2017] ACAT 81
[40] [2002] FCA 1150
[41] [2005] NSWADT 261 at [35]
[42] [2002] HCA 56; 210 CLR 375
[43] [2020] ACAT 13
[44] [2021] ACAT 106
I also note that the relevant provisions should be read in light of the law of defamation in Australia, to which the concept of vilification is analogous. The decision of the High Court in Gutnick should therefore be applied. In Gutnick a resident of Victoria wished to sue in defamation a United States of America corporation in the Supreme Court of Victoria. The High Court allowed that claim to proceed, and held that defamation proceedings can ordinarily be brought where damage to reputation occurs, which ordinarily will be where the relevant material is available if the person defamed has in that place a reputation that is thereby damaged. Defamatory material uploaded to the internet in the United States and available in Victoria where Mr Gutnick had a reputation could therefore be subject to a defamation claim in Victoria. Similarly, where vilifying material is uploaded in NSW and available in ACT, where Mr Kerslake read and could be vilified by, it in my view this can be subject to a vilification claim in the ACT.
Similar principles apply in relation to the claims of victimisation.
In my view therefore the Commission and the Tribunal have jurisdiction to hear these complaints notwithstanding that Mr Sunol resided and uploaded the documents in NSW.
Jurisdictional issue 3: Constitution
The respondent raised a number of issues under this heading.[45] One was that section 116 of the Constitution provides that the Commonwealth shall not make any law “prohibiting the free exercise of religion”. This issue was only raised in final submissions by the respondent, and not earlier in the hearing. These submissions were brief, did not consider the issue of whether section 116 applied to a territory legislature,[46] and simply asserted that “to the extent Discrimination Act sections 67A and 68 impair the freedom of religion they are invalid”.[47] These assertions provide no developed argument for invalidity. However, as discussed below, freedom of religion considerations are relevant to the interpretation and operation of section 67A, and I discuss them there.
[45] Respondent’s submissions at [25]-[32]
[46] Kruger v Commonwealth (1997) 190 CLR 1, page 123
[47] Respondent’s submissions dated 21 June 2021 at [28]
Further, the respondent referred to the Human Rights Act 2004 (Human Rights Act), in particular section 14 which provides in part that “everyone has the right to freedom of thought, conscience and religion” and section 16(2) which provides that everyone “has the right to freedom of expression.” The way these provisions operate and are relevant to this hearing are discussed further below, but they provide no basis for thinking that the Commission and tribunal do not have jurisdiction.
Vilification
The Discrimination Act and the concepts of vilification it contains sit within and are informed by two broader streams of law. First, international and Australian human rights law, and second defamation law. The specific provisions of the Discrimination Act need to be read in light of the terms and concepts it borrows from human rights and defamation law.[48]
[48] Rep v Clinch (Appeal) at [52]-[54]
Section 67A of the Discrimination Act deals with vilification, and provides relevantly:
(1) It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:
…
(g)sexuality;
…
‘Sexuality’ is defined by section 2 and the Dictionary as including “heterosexuality, homosexuality and bisexuality”.
Objective test
There are a number of relevant points which can be made in relation to this provision, based on a growing number of judicial and tribunal decisions in this area.[49] First, this involves an objective test. What Mr Sunol meant or intended by the posts is not directly relevant. Mr Sunol’s counsel referred to the tests for discrimination, and argued that “in the present case the expressed and genuine basis of Mr Sunol’s decisions to make responsive tweets and posts of or concerning Mr Kerslake was not his hatred or contempt for Mr Kerslake but his concern and love in the biblical sense for him and his group of friends”.[50] But in a case of alleged vilification the focus is on the words actually used. The intention of Mr Sunol is irrelevant. I return to the relevance of Mr Sunol expressing his religious beliefs below. Nor is what Mr Kerslake thought the posts meant or intended relevant.
Incitement
[49] These are taken from DLH v Nationwide News Pty Ltd (No.2) [2018] NSWCATAD 217 (DLH) see especially at [10]; Sunol v Collier (No.2) [2012] NSWCA 44 (Sunol v Collier (No.2)), see especially Bathurst CJ at [25]-[41]; Burns v Sunol [2012] NSWADT 246; Jones v Trad [2013] NSWCA 389; Margan v Manias [2015] NSWCA 388; Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510; Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16; Clinch v Rep [2020] ACAT 13; Rep v Clinch (Appeal); Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267; see also generally Neil Rees, Simon Rice and Dominique Allen, Australian Discrimination Law (Federation Press, 2014) chapter 10
[50] Respondent’s submissions at [42]
Second, there needs to be incitement. ‘Incite’ means to “urge on, stimulate or prompt action”, and also “rouse, to spur on, to stir up or to animate”,[51] in this case hatred etc. While this can cover a wide range of conduct, it is not enough simply to make insensitive, disrespectful, offensive, or insulting comments.[52] The concept of vilification in section 67A (and the NSW vilification provision) is different in significant aspects to the concept in some other discrimination laws, in particular offensive behaviour in section 18C(1) of the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act). This refers to acts which offend or insult another person or group.
[51] Macquarie Dictionary online; see also Young v Cassells (1914) 33 NZLR 852, page 854, quoted in Sunol v Collier(No.2) at [26] (Bathurst CJ)
[52] Sunol v Collier (No.2) at [79] (Basten JA); see also the other cases in footnote 49 above
Further, it is not enough to express hatred, revulsion, contempt or ridicule, inappropriate as this is. The post must be one which could encourage or spur others to hatred, revulsion, serious contempt, or severe ridicule. Such vilification can include words which command, request, propose, advise or encourage hatred etc. But it can also be words which simply incorporate such strong and abusive language about the person or group that it is likely to encourage hatred etc. In particular where the words indicate that because of being a homosexual a person is inherently inferior, a threat to others, or a criminal, the issue of vilification will arise.
It is not necessary to show that anyone was actually incited. It flows from this and the objective test for vilification that even if someone is incited, this may not be enough to show vilification.
A key issue in this case is to distinguish between, on the one hand, the many postings which are insulting or offensive, even just express hatred, revulsion, contempt or ridicule, but fall short of inciting hatred etc., and, on the other hand, those postings which in addition are also likely to incite hatred etc. on the ground of homosexuality, and therefore amount to vilification.
Key examples
To note some key examples in the posts, many call people an activist, a radical, a radical LGBT activist, or a social justice warrior. I do not think that generally these are even offensive or insulting, let alone incite hatred etc.
Some of the posts complained of are general insults. This includes calling Mr Kerslake and others a mongrel, enemy, nasty, a trouble-maker, liar, bully, scumbag, intolerant, authoritarian, aggressive, corrupt, Marxist, communist, and fascist. I can see that Mr Kerslake may find these disrespectful, offensive, insulting, or abusive. Of course, much depends on the context and what other comments are included with such insults. But without additional aspects, I do not think that such insults necessarily incite hatred etc.
Many of the comments include negative statements in relation to Mr Kerslake and others from a religious perspective. These include that homosexual people and homosexuality generally are wicked, wrong, evil, a sin, or controlled by the devil. I discuss the issue of freedom or religion further below. I can see that Mr Kerslake may find these, disrespectful, offensive, insulting, or abusive. But in their terms they are expressing a particular religious belief of Mr Sunol. There may be many things and people Mr Sunol regards as wicked or evil. I do not think this necessarily incites hatred etc. against them. Of course, again much depends on the context and what other comments are included with such statements.
Some of the comments include more generalised abuse such as that homosexual people are unhealthy, diseased, perverse, or deviant. Some include homosexual slurs.[53] Such statements are more likely to be vilification, but to some extent this depends on the context, including the surrounding comments.
[53] Burns v Dye [2002] NSWADT 32; Burns v Sunol (No.2) [2012] NSWADT 247 at [31]-[32]; Burns v Sunol [2012] NSWADT 246 at [63] referring back to the comments at [44]
As I have noted the comments most likely to be vilification are those which suggest homosexual people are inherently inferior, a threat to others, or criminals.
Other discussions
To note some relevant discussions of this issue, in the decision of Burns v Sunol (No.2)[54] the Administrative Decisions Tribunal of NSW (M Chesterman, E Hayes and N Hiffernan) considered the NSW vilification provision which is similar to section 67A in relation to a number of publications by Mr Sunol:
30. In our opinion, publications 2 to 5 inclusive in the foregoing list satisfy the criteria to be considered in concluding that a ‘public act’ falls within section 49ZT(1) of the Act.
31. Each of these four publications contains one or more phrases that, read in context, has the ‘capacity to incite’, or the ‘effect of inciting’, feelings of ‘hatred’ and/or ‘serious contempt’ for the persons to whom the phrases refer amongst ‘ordinary members’ of the ‘class to which the publication is directed’. The phrases in question do not merely convey these negative feelings, but urge readers of them to experience such feelings. The negative reaction that they incite is not merely dislike but hatred and/or serious contempt.
32. Examples of these phrases are ‘dirty filthy poof’ in no. 2, ‘dirty filthy faggots’ in no. 3, ‘child molesters and paedophiles’ in no. 4 and ‘disease’ warranting eradication (such as the product Mortein is claimed to achieve with flies and other pests) in no. 5.
[54] [2012] NSWADT 247
But this was not the case in relation to other publications:
34. We reach the opposite conclusion with regard to publication no. 1, even though it applies epithets such as ‘sinful’ and ‘evil’ to homosexual people. Our reason is that its principal message is that, in the opinion of the writer (Mr Sunol) if not also of other adherents to the Christian faith, homosexuality infringes doctrines of Christianity. To proclaim on a website that, according to some versions of Christian doctrine, homosexuality is a sin and homosexuals are sinners does not, in our opinion, incite hatred and/or serious contempt for homosexual people amongst ‘ordinary members’ of the ‘class’ (i.e., internet users) to which the proclamation is ‘directed’.
More extreme statements have been found to be vilification in other cases. In Barry v Futter,[55] it was held that the relevant comments were not made in public, but the tribunal none-the-less considered them and found that they “could be seen as tending to encourage members of the public … to treat transgender persons as less than fully human and to suggest that physical abuse of such persons was justifiable”. If a public act, the tribunal said this would therefore have been vilification.[56]
Use of term ‘homophobic bigot’
[55] [2011] NSWADT 205
[56] At [85]-[86]
There are several particular issues which arise in relation to the posts by Mr Sunol. One is that he describes himself as a “homophobic bigot”. The Macquarie Dictionary online defines ‘homophobia’ as: “1. a fear of homosexuals, usually linked with hostility towards them; 2. entrenched prejudice against homosexuals.” A ‘homophobe’ is “someone who exhibits homophobia”. Being afraid of homosexuals does not necessarily suggest hatred of, revulsion of, serious contempt for, or severe ridicule of homosexual people, but it may be a cause of this. Entrenched prejudice against homosexuals is close to hatred etc. As discussed below, the context of such comments will generally determine whether they are expressing hatred and inciting hatred etc.
‘Bigot’ means “someone who is intolerantly convinced of the rightness of a particular creed, opinion practice etc”. Generally I do not think that self-describing as a bigot generally incites hatred etc.
Exaggerated and illogical statements
Another is, there are a number of posts which could be seen as inciting hatred etc., but which are exaggerated or illogical, if not at times ridiculous. The post at DT35.041 states: “This twitter account is purely put on line for the sole purpose to expose to the world the corruption of the LGBT rights groups and political agenda”. It then states: “These groups are very oppressive and out to control the world”.
On its face, to say that a group is out to control the world can incite hatred etc. of the group. But it is in my view an obviously overblown and exaggerated statement in this case. Further, in order to understand what this post is saying, I think it is appropriate to put it into the context of Mr Sunol’s other posts. The publications show that a key concern of Mr Sunol was that Australia had allowed same-sex marriage. I take notice that this was the result of the Australian Marriage Law Postal Survey in which 80% of those eligible participated, 62% of whom voted in favour of same-sex marriage, followed by the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) through the Australian Parliament.[57] If such actions are homosexual rights groups seeking to control Australia, or the world, it is by fundamentally democratic processes. If any control was exercised, it was legitimate democratic control. On this basis it is Mr Sunol and those who agree with him who seek to control but lack democratic support.
[57] Australian Bureau of Statistics, Australian Marriage Law Postal Survey, 2017 (National Survey Results, 15 November 2017) <>
In my view this context shows that Mr Sunol’s statements are at least exaggerated and illogical. In my view they reflect poorly on Mr Sunol and lower him in the eyes of the public. There is an argument that such exaggerated and illogical statements are unlikely to incite hatred etc. towards homosexual people. This is particularly so if they are objectively assessed, as noted in paragraph [73] above, and where the relevant audience is ordinary reasonable members of the public, as noted in paragraph [102] below.
However, generally, the basic concept of vilification is exaggerated and illogical statements, which take an irrelevant characteristic, in this case homosexuality, and incite hatred etc. on this basis. Further, history shows that such exaggerated and illogical statements can do great damage. Statements that suggested a minority group was out to control a place or country have been a form of vilification which has led to not just the incitement of hatred etc., but harassment, bullying, violence and even to genocide.[58] This suggests that such statements should be carefully examined even if exaggerated, illogical or ridiculous.
Religious statements
[58] US Holocaust Memorial Museum, Holocaust Encyclopaedia, ‘Introduction to the Holocaust’ (Webpage, 5 November 2021) < and also ‘Nazi propaganda’; see also Australian Human Rights Commission, ‘Violence, Harassment and Bullying and the LGBTI Communities’ (Webpage) <>
Another is, there are posts which use religious language to make comments in relation to homosexuality, well beyond just saying it is wrong. The post at C.069 states: “I believe that God has allowed Satan to bring the curse of Covid 19 to the world due to the wickedness of same-sex marriage and other gender based issues”.
On its face, to say in essence that a group has caused the COVID-19 pandemic would incite hatred etc. of them. In some of the statements in this form by Mr Sunol it is not clear whether this possible incitement was against homosexual people, or against the majority of Australians and Australian politicians who voted for same-sex marriage, but in this case it refers to just same-sex marriage, which seems to be a proxy for homosexuality.
This post is in the form of a religious statement. As the comments from the tribunal in Burns v Sunol (No.2) set out above at paragraph [83]-[84] note, opinions which come from and only make any sense in the context of a particular religious tradition are less likely to incite hatred etc. in ordinary members of a general audience. This may be different if the speaker has some authority within and is only talking to a closed group. I summarise the evidence of Mr Sunol’s religious position at paragraphs [116]-[118] below. Mr Sunol provides no basis for suggesting this statement reflects the position of his religious tradition. It is not supported by the catechism he quotes or the evidence he gives about his religious tradition and beliefs. I note that the catechism goes on to state that homosexual people “must be accepted with respect, compassion and sensitivity” and “every sign of unjust discrimination in their regard should be avoided”, views not quoted by Mr Sunol.[59] On the basis of this evidence, this is not a statement of traditional religious belief, or even of Mr Sunol’s belief system. Shorn of any religious support, such statements could be exaggerated and illogical. But they can also be statements which could incite hatred etc even in ordinary members of a general audience. Without the religious context, this statement seems in essence to be saying homosexuality has caused the pandemic.
[59] See at [116], footnote 72 below
Again, if anything, these comments reflect poorly on Mr Sunol and lower him in the eyes of the public. But also again, history shows that such statements that a particular group of people has caused harm or disease, can have terrible consequences. They should be carefully examined. Importantly, I do not think that the use of religious language of itself prevents a statement from inciting hatred etc. or makes it a reasonable discussion or debate.
Context
Third, the context in which the post is made is relevant. An aspect of this context is the audience for the purpose of determining vilification, which raises particularly difficult issues.
Most of the posts here involve Mr Sunol stating publicly his position, in a way to which anyone can respond. In this context some comments are less likely to amount to the incitement of hatred etc. and are more likely to be reasonable and honest discussion or debate, than in other contexts, though much depends on the express terms of the post.
Some of these posts are directed specifically at Mr Kerslake. This is still a public context, but in focussing on Mr Kerslake, the posts are no longer just a vigorous discussion of issues, but at times a personal attack on an individual. In this context, in my view, language which may only be offensive and insulting when generally expressed can become strong and abusive language in relation to Mr Kerslake.
Mr Sunol argued for the relevance of another aspect of context, that is that his comments were often made in response to or in relation to offensive comments, perhaps even vilification, directed at him. Mr Sunol referred to this as ‘persecution’. He has provided evidence of some of these comments, and they are at least offensive. For example he referred in particular to a comment that he had “declared jihad on gays”.[60] I agree that it is relevant that words are said in the context of a debate, in particular a debate where Mr Sunol is responding to offensive comments.
[60] Statement of Mr Sunol, exhibit R1, at [170]-[176], which although not referred to seems to relate to at least some of documents at annexure E, part 2, pages 153-163
There has been significant discussion about identification of the audience in vilification matters. The decision in Rep v Clinch (Appeal) discusses this in some detail.[61] The posts in issue here could be viewed by anyone, that is, the general public. But also the key groups who can and do seem to view and respond to the posts are supporters of Mr Kerslake and his views, and supporters of Mr Sunol and his views.
[61] Rep v Clinch (Appeal) at [125]-[132], [149]-[160]
This means that all the statements by Mr Sunol can, and many are, disagreed with and another position put. For example in the first post, DT.001 set out in the Schedule, someone responds: “So if two people of the same sex love each other as much as people of the opposite sex they don’t deserve equal happiness?”. A response to DT35.025 is: “Can you please give sources for such claims because you honestly looking rather foolish when you sprout this crap”.
In my view where posts are available to the general public, and there is ongoing debate between the applicant, and his supporters, and the respondent, and his supporters, the ordinary reasonable member of the public is the appropriate audience. To have regard to only Mr Kerslake’s supporters, or only Mr Sunol’s supporters, would not reflect the actual context, and distort the operation of section 67A. Such positions would not appropriately balance the non-discrimination and freedom of expression principles, which are noted below. I think this approach is warranted in this case since this reflects the actual diverse audience, and the position that the test for vilification is an objective one.
Person or group of people
Four, section 67A(1) requires that a person incite hatred etc. “of a person or group of people”. Some of the publications refer to Mr Kerslake himself; he is a person. Many of the publications refer to a group of people, often homosexual people, or a subgroup of such people. The subgroup is often gay activists or a similar term. Mr Kerslake is a member of such groups.
In my view the fact that the publications concern a subgroup of homosexual people does not prevent them amounting to vilification on the basis of homosexuality. In particular, section 4A(2) of the Discrimination Act makes this clear.
Other than in private
Fifth, the unlawful act needs to take place “other than in private”, that is in public. This can be in the posting of comments on an internet site, indeed section 67A(1) of the Discrimination Act contains as an example “2. writing a publicly viewable post on social media”. There was apparently no dispute in these proceedings that the posts by Mr Sunol were “other than in private.” Even if there were a dispute, the postings were clearly in public, where Mr Kerslake and Mr Swift read them.[62]
Grounds of homosexuality
[62] Statement of Mr Kerslake, exhibit A14, at [12]-[15], [22]; statement of Mr Kerslake, exhibit A15, at [37]-[43]; statement of Mr Swift, exhibit A16, at [66]-[69]
Sixth, the incitement of hatred toward, revulsion of, serious contempt for, or severe ridicule of, a person or group of people needs to be on one of the grounds set out in section 67A(1) which includes sexuality in paragraph (g). Mr Sunol argued that the applicant failed to address this issue with any specificity and asked rhetorically “what is the attribute that he is relying on?”[63]
[63] Respondent’s submissions at [47]
In my view it is clear that Mr Kerslake is complaining of vilification on the basis of sexuality in section 67A(1)(g). Each of the complaints of vilification to the Commission referred to this ground of sexuality.[64] As noted, sexuality includes homosexuality. Mr Kerslake states he is homosexual.[65] Mr Sunol argues that “apart from this bald deposition itself, there is no evidence that the applicant is an openly homosexual man”.[66] But Mr Sunol provides no evidence that Mr Kerslake is not homosexual. Some of Mr Sunol’s posts state or assume that Mr Kerslake is homosexual; in this context it seems inappropriately argumentative for Mr Sunol to now suggest without any evidence that he is not. In my view it is clear Mr Kerslake is homosexual and that he complains of vilification on the ground of homosexuality. Mr Kerslake does not complain on behalf of anyone else.[67]
[64] Statement of Mr Sunol, exhibit R1, annexure A at page 67, annexure D at page 135
[65] Statement of Mr Kerslake, exhibit A14, at [5]; statement of Mr Kerslake, exhibit A15, at [28]-[32]
[66] Statement of Mr Sunol, exhibit R1, at [163]
[67] Statement of Mr Sunol, exhibit R1, annexure A at page 65, annexure D at page 133
A large number of posts make statements about people on the grounds of homosexuality, and in these cases this requirement is met. Some of the posts refer to the Gay and Lesbian Mardi Gras, the gay lobby, LGBTQI+ political activists or social justice warriors. In my view these are generally proxies for homosexual people, and where that is the case this requirement is met. In particular the reference to the gay lobby or gay or LGBTI political activists refers to a sub-group of homosexual people. But such references can still amount to vilification, because the statements are made on the grounds of sexuality.
Some of the statements refer to Mr Kerslake. Many of them do not and refer generally to homosexual people, to proxies for such people, or to subgroups of such people. In my view Mr Kerslake is able to bring this claim in relation to such statements.[68]
Exception for reasonable discussion
[68] See also above at [103]-[104]
But seventh, there are exceptions, most relevantly here is that section 67A(2) states:
(2) However, it is not unlawful to–
…
(c)do an act mentioned in subsection (1) reasonably and honestly, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter.
It was not argued in this case that academic, artistic, scientific or research purposes were relevant. It was argued that the posts were for purposes in the public interest, that is discussion, debate or presentations on the nature of homosexuality and the position of homosexual people in society. I accept that discussion and debate and presentation of this issue is in the public interest.
But to come within the exception, the act must be done reasonably and honestly. This involves a subjective and objective test, at least in relation to reasonableness, that is, the person must believe they are acting reasonably, and they must be actually doing so, objectively assessed. Unreasonable presentation of an argument, objectively assessed, does not fall within the exception.
Further, the section states that such purposes in the public interest include discussion or debate or presentation, and suggests that it could include other activities. Mr Sunol’s position seemed to be that the posts were discussion or debate or presentations. ‘Discussion’ and ‘debate’ are not defined in the Discrimination Act and therefore take their general meaning. ‘Discussion’ generally means “1. …critical examination by argument; debate”. ‘Debate’ means “1. Discussion …2. Deliberation; consideration 3. A systematic contest of speakers in which two opposing points of view of a proposition are advanced …”[69]
[69] Macquarie Dictionary online, ‘discussion’ (def 1), ‘debate’ (defs 1, 2, 3)
Thus, while I think that the nature of homosexuality and the position of homosexual people in society are a matter of public interest, in order to fall within the exception in this context there needs to be a reasonable and honest discussion or debate or presentation on those issues. It is the operation of this section which implements freedom of speech and freedom of religion considerations.[70]
Freedom of speech and religion
[70] I return to this issue at paragraphs [119]-[124] below.
One of the key arguments of Mr Sunol was that he was simply exercising his right to freedom of speech and freedom of religion in making the posts. He specifically referred to the Human Rights Act, which provides in section 14 that “everyone has the right to freedom of thought, conscience and religion” and that this includes “the freedom to have or adopt a religion or belief of his or her choice” and “the freedom to demonstrate his or her religion of belief in worship, observance, practice and teaching … whether in public or private”. Section 16(2) of the Human Rights Act provides that “everyone has the right to freedom of expression” and that “this right includes the freedom to … impart information and ideas of all kinds”.[71]
[71] Respondent’s submissions at [8], [29]-[32]
Mr Sunol gave evidence as to his beliefs. He summarised these in his statement, exhibit R1, at paragraphs [85]-[95] and [112]-[129]. He said in this text and quoted posts that: “Yes I am a Christian man and I do not hate gay people”; “I am selective in my use of the words ‘homophobe’ and ‘bigot’ to express my religious beliefs in a world of wickedness and populated by demons as I know them to be in my convictions of faith as a Christian”; “elements of the homosexual community have attempted to demonise me”; “I verily believe … that homosexuality is a grave sin and to be feared in its practice for well-founded medical, moral and spiritual reasons”. At paragraph [116] he quotes the Catechism of the Catholic Church on chastity and homosexuality:
Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that ‘homosexual acts are intrinsically disordered’.[72]
[72] The full document is at: Catechism of the Catholic Church (Web Page) <>
He was also asked and replied in oral evidence as follows:
Mr KING: Yes, but I just want to ask you these supplementary questions briefly, Mr Sunol, if I may. But for the religious beliefs set out in those paragraphs, would you have tweeted or posted the matters complained of by the applicant in the tribunal?---It was for the religious beliefs I did that because I don’t agree with homosexuality based on biblical teachings and my own beliefs.
Is it correct that you have been motivated only by those beliefs in respect of making the tweets and posts complained of?---Yes, that is correct. I believe - - -
No, you just need - that is all you need to say, Mr Sunol, because I am now going to ask you a supplementary question. Can you explain or would you explain, please to the tribunal how the tweets and posts are a demonstration of your religious belief and observances please?---The tweets and posts I put state what I believe and what I know to be true from my own beliefs in my own heart about homosexuality and how it is not good within society, how it is not good in my own beliefs and I believe that it is a sin of wicked against - a sin against God and same-sex marriage is a wickedness.
Please just answer this final question. Do you say that those tweets and posts are an expression of love for your fellow man, including the application based on your religious beliefs and not of hatred?---Yes, I do. They’re nothing to do with hatred.[73]
[73] Transcript of proceedings on 11 May 2021 page 89
In his submissions counsel for Mr Sunol noted these views, and Mr Sunol’s “concern and love in the biblical sense” for Mr Kerslake and his friends, and stated:
Misguided though many may say such a concern is, nonetheless it was expressed and it was genuine … On the internet … [Mr Sunol’s] representations to most is irrelevant, perhaps dated or even antediluvian, and obviously for the applicant and his group the subject of some sport, and it was unwise to engage in such ripostes. However it is not his maturity or judgment that is in issue.[74]
[74] Respondent’s submissions at [42]
It is necessary to discuss the relevance of these views and the rights quoted to this case. As to the terms of the Discrimination Act, these views do not of themselves prevent Mr Sunol’s statements being vilification. The test for vilification is set out in section 67A and discussed above. The key issue here is whether the incitement of hatred etc. is of a person or group of people on the ground of their sexuality. There is the need for an assessment in each case as to whether the statement incites hatred etc. on this basis.
If it does, it is necessary to ask whether the statement falls within the exception in section 67A(2)(c). As I have noted, to come within section 67A(2)(c) the comments need to be reasonably and honestly expressed for the purpose of discussion or debate or presentation about any matter. Justice French said in relation to a similar provision in the Racial Discrimination Act that such exceptions “requires a recognition that the law condemns racial vilification of the defined kind [and I note homosexual vilification] but protects the freedom of speech and expression in the areas defined”.[75] This means that the exercise of the freedom allowed should seek to honestly and conscientiously endeavour to have regard to and minimise the harm it will inflict, and not use the exception as a cover to offend, insult, humiliate or intimidate (the terms used in section 18C(1)(a) of the Racial Discrimination Act, but not 67A of the Discrimination Act) people by reason of their race. French J thought that an act would be done reasonably if it bore a rational relationship to that activity and was not disproportionate to carrying it out.[76] In Sunol v Collier (No.2) the NSW Court of Appeal summarised the reasonable requirement as meaning that the comment must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out.[77] In this case, this means that to fall within the exception the comments must bear a rational relationship to discussion or debate or presentation about the nature of homosexuality and the position of homosexual people in society, and be proportionate to what is necessary to engage in that discussion or debate (sometimes shortened in these reasons to rational and proportionate).
[75] Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [95]
[76] Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 at [79], [95]
[77] Sunol v Collier (No.2) at [41]
Mr Sunol seemed to suggest that expressions of his religious beliefs could not be vilification, and provided in effect a complete defence. This is not correct. Under section 67A there is no express exception in relation to the expression of religious belief. The only exception is relevantly in section 67A(2)(c), which I have discussed. None of the other exceptions in Part 4 or Part 10 of the Discrimination Act are relevant.
Counsel for Mr Sunol argued that sections 14 (concerning freedom of religion) and section 16 (freedom of speech) of the Human Rights Act are exceptions.[78] This in my view is not correct. The Discrimination Act does not provide that these are exceptions. It is true that section 122 of the Discrimination Act states that the Act is additional to any other territory law that provides for the protection of a person from conduct that is or would be unlawful under the Discrimination Act, including vilification.[79] The Human Rights Act is another territory law, but it only has the operation for which it provides. As discussed below the only relevant operation of the Human Rights Act is in section 30 which states that sections 14 and 16 are an aid to interpretation of other legislation. Section 122 of the Discrimination Act does not give these sections in the Human Rights Act any greater operation than the Human Rights Act provides itself.
[78] Respondent’s submissions at [9]
[79] Respondent’s submissions at [29]-[30]
I do not see a basis for implying any further exception from the terms of section 67A. In particular I note that section 67A(1)(e) protects from vilification on the basis of religious conviction. The role of religion is recognised by this provision but as a protection from vilification on this basis, not as an exception to vilification on other bases.[80] This protection would be significantly limited if there were any implied exception for all statements of religion. Further, section 4AA provides that the Act, including section 67A, must be interpreted in a way that is beneficial to a person who has a protected attribute to the extent possible to do so consistently with the objects of the Act and human rights under the Human Rights Act. Section 7(1)(w) provides that sexuality is a protected attribute. The objects of the Discrimination Act are to eliminate discrimination “to the greatest extent possible”. I discuss the Human Rights Act further below, but as noted there I do not think that it provides for an implied exception for religious statements from the operation of section 67A.
[80] Carolyn Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012) chapter 7; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; Bottrill v Sunol [2018] ACAT 21; Farah v Sandilands [2021] ACAT 92
It is true that Mr Sunol also has a protected attribute under section 7(1)(t) of the Discrimination Act, a religious conviction. But in this case under section 67A it is Mr Kerslake’s protected attribute of homosexuality which is relevant. There is no textual basis for thinking that the fact that a person subject to complaint of vilification has a protected attribute provides a complete exception or defence; if this were the case the section would be rendered of very little utility since almost everyone would have some protected attribute. The fact that Mr Sunol has a religious conviction does not mean that everything he says is outside the realm of vilification; similarly the fact that Mr Kerslake is homosexual does not mean that everything he says is outside the realm of vilification.
Other sources of freedom of speech and freedom of religion rights
However, as Mr Sunol noted it is necessary to consider other laws which may impose human rights limitations and exceptions, other than the Discrimination Act itself. In Rep v Clinch (Appeal)[81] the appeal tribunal considered other sources of such rights. I note some of these in the context of this case.
[81] At [139]-[144]
First, it is arguable that there is a limitation arising from the Constitution. The decision of the NSW Court of Appeal in Sunol v Collier (No.2)[82] held that section 49ZT of the Anti-Discrimination Act 1977 (NSW) was not invalid as inconsistent with the implied freedom of communication about governmental or political matters arising from the Constitution. Section 49ZT is similar to 67A of the Discrimination Act, and the decision strongly supports a similar conclusion in relation to section 67A. This decision does not consider freedom of religion, whether arising from section 116 of the Constitution, some implication, or a statutory right. The posts at issue in those proceedings did make significant mention of religious beliefs. Slightly different issues would arise in relation to freedom of religion, but in my view this decision also provides a basis for thinking that 49ZT of the NSW Act and section 67A of the Discrimination Act are not inconsistent with the principle of freedom of religion, which is appropriately protected by the exception in both laws.
[82] See at [8]
As mentioned above PFLAG is an organisation called Parents and Friends of Lesbians and Gays; as such its members may not be homosexual. To call someone the devil may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
Post C.017 seems to relate to an allegation that Mr Sunol had a serious charge against him. It states: “Rod … & other members of the LGBTQI social justice movements or homosexual activists lobby – I am taking you lot to account as I suspect that this fraud is being perpetuated by your group & unethical skulduggery that goes on with your social justice & feminists campaigns”.
To say someone is carrying out fraud and unethical skulduggery may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
Post C.018 concerns a Newcastle pride march: “This pride event is based off an expansion of the Sydney gay and lesbian Mardi Gras which started as a riot of Homosexual rights in 1978 has blown out for the whole nation for social and political change. Now this ‘curse’ is carrying out its original plans and has gone into:”. C.019 is similar.
To call the Mardi Gras and pride marches a curse may be insulting and offensive but does not incite hatred etc. I find it these posts are not vilification.
The post at C.020 states: “I am under attack by ‘so-called’ social justice warriors which I call internet thugs and evil LGBTQI rights campaigners all of the time as I speak out against homosexual rights:”.
To call someone an internet thug and evil may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
The post at C.021 states: “All I know is that I am fighting very evil people and I suggest that as many as possible should speak out against Gay rights & Political Correctness :”.
To call someone evil may be insulting and offensive, but does not incite hatred etc. To speak out against gay rights and political correctness, and suggest that others also do so, may be offensive, does not incite hatred etc. I find this is not vilification.
The post at C.022 states: “I intend to travel everywhere at Rand varrying out thr good message how it the greatest thing on earth to be classified s : ‘born again homophobe’ Telling and teaching on the benefits of being : ‘anti homosexual’”.
Mr Sunol says he has been classified, apparently by others, as a homophobe. I doubt that this can be Mr Sunol inciting hatred etc. To say that he is telling and teaching of the benefits of being anti-homosexual may be insulting and offensive but does not incite hatred etc. I find this is not vilification.
The post at C.023 states: “I am one excellent example of the deceitful evil tactics used by the Gay rights movement using tactics known as law fare to stop those exposing the corruption in this [emoji omitted] evil organisation is very oppressive. They have a one world dictatorship agenda New World Order :”.
To say someone is carrying out deceitful evil tactics and lawfare, and is corrupt, evil, and oppressive, may be offensive but does not incite hatred etc. To say the movement has a one world dictatorship agenda is insulting and offensive, and also exaggerated and illogical. I find this is not vilification.
The post at C.024 states: “I am not in contempt of the tribunals and their is lies being posted about this: I will fight this to the day I die. The LGBTQI lobby groups are very evil and I can never come to a settlement with them as that would be like making a settlement with the devil:”.
To call someone evil and the devil may be insulting and offensive but does not incite hatred etc. I find is not vilification.
The post at C.025 states: “I am a victim of the homosexual lobby groups and gay activism ‘Same sex marriage is very evil and Gay rights is brought into power by the devil so I have a duty to fight this evil to the very end”.
To say that same sex marriage is evil and of the devil may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
The post at C.026 states: “I can see myself in my older years driving all over Australia and travelling overseas speaking on the coming new world order and how marriage equality coupled with Gay rights is going to destroy”. The post at C.027 is similar. The post at C.028 is also similar, and states in addition: “… the Mardi Gras harbors drug dealers, child pedophiles, pornography (hard core Porn) with other such nasties.”
Drug dealing and paedophilia are serious crimes. In this context the Mardi Gras is a proxy for homosexuality. But to say that the Mardi Gras harbours people who commit these crimes is not the same as saying that homosexuality is equivalent to paedophilia and drug dealing, or normalises paedophilia and drug dealing. Or that all, most or even some homosexual people are involved in paedophilia or drug dealing. This may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
The following posts C.029, C.030, C.031 return to the theme that homophobia is normal, and is nature’s protection against predatory homosexual conduct. These are not vilification.
In the post at C.032 Mr Sunol states: “Do not listen to those saying I have a criminal record as I do not. They are telling lies as they are homosexual social justice warriors very evil people & liars only: I have been set up and framed for political purposes to set caselaw:?”.
To call someone a liar and very evil may be insulting and offensive but does not incite hatred etc. I find this is not vilification
The post at C.033 states: “Gay rights (Or homosexual rights) is only Cultural Marxist thugs who are only out to bully marriage equality and political correctness on all people in a totalitarian fashion”. The posts at C.034, and C.035 are similar.
To call people Cultural Marxist thugs, bullies, politically correct and totalitarian may be insulting and offensive but does not incite hatred etc. I find it is not vilification
The post at C.036 states: “LGBT ACTIVISTS spread the lie that I ‘hate gays’. No sane person ‘hates gays’. That’s like ‘hating autistic people’. Crazy. BUT . . opposing the cultural Marxist LBGT agenda is different. Our mission as CHRISTIAN ACTIVISTS, is to expose and oppose this agenda”. The post at C.037 is similar.
To call someone a liar and Cultural Marxist may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
The post at C.038 states: “I believe that the Roman Catholic Church had homosexual Pederast Priests in it who did commit sexual abuse and crimes on young boys : George Pell was not guilty of this but because he was so high in the church ranks he became a victim of the LGBT rights groups and a scape goat:,”.
To say that the Roman Catholic Church had homosexual pederast priests is not saying that all homosexuals, or most or even many homosexuals are pederasts. It is only a statement that there were some homosexual pederast priests. I do not think this incites hatred etc. in relation to homosexual people on the ground of homosexuality. To say that George Pell was a victim of LGBT rights groups may be insulting and offensive to those groups but does not incite hatred etc. I find this is not vilification
The post at C.039 is similar to those at C.026 and C.027. I make the same findings.
The post at C.040 states: “I need to inform my followers that I am using this twitter account for academic discourse & I would like to nominally spread the message on how corrupt & abusive the LGBT rights lobby [social justice warrior’s] really are in pushing homosexual rights for political gain”. The posts at C.041 and C.042 are similar.
To call someone corrupt, abusive, and pushing something for political gain may be insulting and offensive but does not incite hatred etc. I find that this is not vilification.
The post at C.043 relevantly states: “(Australia needs a Religious Freedom Law, so Catholic paedophiles aren’t interfered with with children.) “these are not Catholic paedophiles their Homosexual paedophiles as Homosexuals got into the Catholic Church:”.
This does not suggest that all, most or even many homosexuals are paedophiles. I do not think it incites hatred etc. I find it is not vilification.
The post at C.044 states: “The LGBT rights lobby is a very small but powerful group … I see this group as powerful but very evil & oppressive: It is this group & others of such that have attacked me. They use law as a weapon to push their agenda not what the courts are meant to be”. The post at C.045 is similar.
To state that someone is evil, oppressive, and uses law as a weapon to push an agenda may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
The post at C.046 states: “LGBT activism leads to child abuse e.g. teaching kids that (1) homosexual acts are natural (2) their biological gender could be wrong (3) grooming of boys by homosexual men is OK (4) Christian teachings about sanctity of birth, marriage & death are based on ignorance & bigotry”.
This is a comment about LGBT activism and teaching. It states that LGBT activism leads to child abuse, and in particular that, it seems to suggest, this includes teaching that grooming boys by homosexual men is OK. This is offensive and insulting. But it does not suggest that all, most, many or even any LGBT activists commit child abuse or grooming, and on this basis I think it does not incite hatred etc. I find it is not vilification.
The post at C.047 states: “I believe that two pederasts can marry each other following the removal of gender from Australia’s Marriage Act. I believe that male homosexuality and pederasty are linked, as a duck is linked to water…”. Following on from this post C.048 states: “This is partly the reason for child abuse being rampart in the Catholic church, it is the fault of homosexuality in the Catholic church and to my beliefs his is wickedness in the church. Satan has made his way into some of the church members via Phedarasty and homosexuality”.
This does not suggest that all or even most or many homosexuals are paedophiles. To say that they are linked, a very unclear statement, and suggest that homosexuality is wicked, may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
The post at C.049 and C.050 are similar to the post at C.046. I make the same findings.
The post at C.051 states: “I believe that this will happen and that is why I call on all non homosexual people from all over the world to rise up and speak out against the LGBT social justice warriors for political change before it is too late”. The post at C.052 expands on this and states: “A bunch of political thugs with the goals of forcing homosexual rights onto all people”. This also includes a post: “The only way you can fight the Sydney ‘gay mafia’ is with lawyers, guns, and money. The LGBT judicial authorities have all 3 of these resources at taxpayer expense (GLLO police have guns). Send me lawyers and money! I’m down on my luck”. It also states: “This account is also available to expose the LGBT SJW Political activists for what they really are :”.
To ask people to speak up does not incite hatred. To call people thugs who force homosexual rights is insulting and offensive but does not incite hatred etc. But to suggest that the only way to fight the “gay mafia is with lawyers, guns and money” and that homosexual people “have all 3 of these resources”, in particular guns, in my view incites hatred towards homosexual people on the ground of their homosexuality. On this basis I find this is vilification.
The post at C.053 is similar to that at C.046 and C.029, C.030 and C.031. I make the same findings.
The post at C.054 is similar to that at C.046. I make the same finding.
The post at C.055 is similar to that at C.047. I make the same finding.
The post at C.056 states: “This is what the LGBT SJW warriors are doing: I feel that we all should oppose this openly: Children “are not sexual objects for the gratification of ‘homosexual men’”.
This is suggesting that homosexual men as a general class use children as sexual objects. On this basis it is vilification of homosexual people since it incites hatred toward, revulsion of, or serious contempt for them on the basis of their homosexuality. This statement is not an expression of religious belief. Nor is it a reasonable, that is rational or proportionate, discussion or debate about homosexuality. I find it is vilification.
The post at C.057 is similar to that at DT43.013 and then states: “We must all support Israel Felau and oppose the LGBT SJW political activists as these homosexual activists are very oppressive :”.
To say that people should support Israel Folau, and oppose LGBT activists, is not even offensive. To say people are oppressive may be insulting and offensive but does not incite hatred etc. It find it is not vilification.
The post at C.058 states: “The world needs to reject the idea of same sex marriage and the same LGBT SJW political activists as this is the evil [emoji omitted] which I believe for God’s fury at the people: This will not stop only get worst until same sex marriage is overturned and the world comes to forgiveness :”.
To say that people should reject same sex marriage is not even insulting or offensive. To say same sex marriage is evil may be insulting or offensive but does not incite hatred etc. I find it is not vilification.
The posts at C.059 and C.060 are similar to those at C.038 and C.047. I make the same findings.
The post at C.061 states: “Have we all got why it takes to stand up and face to face the LGBT SJW political activists as these people are unscrupulous on their attacks upon those who oppose their LGBT agenda :”.
To say that people should stand up to activists is not even offensive. To say people are unscrupulous and attack those who oppose their agenda may be insulting and offensive but does not incite hatred etc. I find this is not vilification.
The post at C.062 states: “I know that when I fight the LGBT SJW political activists I cannot loose as I am fighting what is evil [emoji omitted] and I am doing what is right for all the heterosexual family people in the world :”.
To say people are evil may be insulting and offensive, but does not incite hatred etc. I find it is not vilification.
The post at C.063 states in part: “It is all going online and ‘I intend to use ‘online’ to my fullest plus‘travel everywhere’ talking on the coming of the ‘one world government’ and how evil [emoji omitted] the LGBT SJW political activists are in pushing for homosexual rights :”.
Whatever the coming one world government is, it is not expressly linked here to homosexuality. To say people are evil may be offensive but does not incite hatred etc. To say that homosexual activists push for rights is not even insulting or abusing. I find this is not vilification.
The post at C.064 states: “This is what I am fight ‘Gay Mafia’”.
To say people are a mafia may be insulting and offensive but does not incite hatred etc. I find this is not vilification.
The post at C.065 states: “this is what I am dedicated to speak out against the LGBT SJW political activist which I see as very evil and the enemy of all society:”.
To say people are evil is offensive but does not incite hatred etc. To say that people are the enemy of all society does not make sense, since homosexual people are part of society. These comments may be insulting and offensive but does not incite hatred etc. I find it is not vilification.
The post at C.066 states: “A dictatorship could come out of the Corona virus and this I feel would be a homosexual dictatorship run by LGBT SWJ political activists”.
The use of the term homosexual dictatorship causes me concern here. In its plain meaning this suggests that homosexual people will form an undemocratic dictatorship in Australia, which could incite hatred etc. of homosexual people. But these statements suggest that the dictatorship would be caused by the virus, not homosexual people. These statements are also exaggerated and illogical. This is discussed at paragraphs [88]-[91] above. In my view these statements would not incite hated etc. in the ordinary reasonable reader. On this basis they are not vilification.
The post at C.067 states in part: “I see Corona Virus as: God has allowed Satan to bring the curse of Covid 19 to the world due to the wickedness of same-sex marriage / Homosexual / Transgender issues being legislated into law:”.
These type of statements are discussed at [92]-[95] above. In this statement it is allowing these matters to be legislated in law which seems to be of concern, and this was done by the whole Australian community and Parliament voting, not just homosexual people. If it is vilification it is of the majority of Australians, not homosexual people. On this basis I find they are not vilification.
The post at C.068 states: “these LGBDT SJW political activists are a communist backers and we must oppose them on all fronts:”.
To say that people should be opposed is not even offensive. To say people are communists may be insulting and offensive but does not incite hatred etc. I find this is not vilification.
The post at C.069 states in part 1: “I believe that God has allowed Satan to bring the curse of Covid 19 to the world due to the wickedness of same-sex marriage and other gender based issues : QAnon conspiracy theories about the coronavirus pandemic are a public health threat via @TC_Africa”. A number of posts by Mr Sunol follow this, including one which I will call part 2 which states: “I see another reason for Covid 19 is because of the sacking of Israel Felau as I class this as wickedness before God:”.
These type of statements are discussed at [92]-[95] above. Essentially part 1 is saying that the COVID-19 pandemic was caused by ‘same-sex marriage’, which as discussed above is a proxy for homosexuality. This is not focused on the legalisation of same sex marriage as the post at C.067 was, but on homosexuality itself. It could incite hatred toward, revulsion of and serious contempt for homosexual people.
This is said in religious terms. But this belief is not supported by the catechism Mr Sunol quotes nor any of the evidence he gives about the tradition he says he is part of.[116] There is no evidence that this statement flows from his religious beliefs, in contrast to his statements that homosexuality is wrong, wicked etc.
[116] Exhibit R1 at [85]-[89] and [112]-[129]; transcript of proceedings on 11 May 2021 at page 89; summarised above at [116]-[118]
I note that the fundamental statement that homosexuality caused the pandemic has no express rational basis; and that it is likely to reflect badly on Mr Sunol himself. But it is also not obviously illogical. It is difficult to see that this statement is a reasonable discussion about religion, homosexuality or the pandemic.
These features make the consideration of this statement quite difficult. But on balance I think that the fundamental message that the COVID-19 pandemic was caused somehow by homosexuality is likely to incite hatred, revulsion and contempt of homosexual people, including Mr Kerslake, on the ground of homosexuality, and is not a reasonable discussion of anything. I do not think that the use of religious language, especially where there is no evidence the view comes from Mr Sunol’s religious tradition, of itself prevents a statement from inciting hatred etc. or makes it a reasonable discussion. I find this is vilification. I do not think that the part 2 statement is vilification; if this is vilification it is not of homosexual people on the ground of homosexuality.
The post at C.070 states: “This is the bastardy that the LGBT SJW political activists will do to George Pell, it him again with lies to get more money from the Catholic church and George Pell; They are all bastards who will stop at nothing:”. The posts at C.071 and C.072 are similar.
To say people commit acts of bastardry, lie to get money, and will “stop at nothing” may be insulting and offensive but does not incite hatred etc. I find this is not vilification.
The post at C.073 states: “What about the Homosexual Agenda and its plans with the Sydney Gay and Lesbisn Mardi Gras during the Corona Virus is the Wrath of God on Such Pride marches to the wickedness of the LGBT activities of such : Covid 19 confirms this :”
To say that there is a homosexual agenda and that homosexuality is wicked may be insulting and offensive but does not incite hatred etc. In contrast to the post at part 1 of C.069 this is not clearly saying homosexuality has caused the pandemic. On this basis the comments are not vilification.
The post at C.074 states: “I believe that God has allowed Satan to curse the world with Covid 19 due to the wickedness of man introducing wicked legislation of same sex marriage and other gender issues related to homosexuality and sexual sin.” The post at C.075 states: “I will spread this everywhere: ‘both online using social media and the internet’ and also in person to person contact offline where ever I go as people must know this”. The posts at C.076 and C.077 are similar.
These type of statements are discussed at [92]-[95] and [387]-[392] above. In this statement it is allowing these matters to be legislated in law which seems to be of concern. Like the post at C.067, if it is vilification it is of the majority of Australians, not homosexual people On this basis they are not vilification.
The post at C.078 states: “I would like to say this??? In my belief no child is Homosexual : Homosexuality is a behaviour that is designated to teens and Adults only an. Is a. Learned behaviour brough on by social disorders of peer groups”.
Mr Sunol is expressing a point of view here. This may be insulting or offensive but I do not think it would incite hatred etc. I find this is not vilification.
The post at C.079 states: “I am like in Poland : I have declared war on homosexuality and like in Roman Catholic Poland declare a crusade against Homosexual rights : Homosexual rights is wickedness in God’s eyes :”.
To declare a war or a crusade is inciting hatred, indeed violence. It is here declared against homosexuality. It might be argued that this is exaggerated or over blown language, but this is by no means clear here. This is not a reasonable, that is rational or proportionate, discussion of any issue. It is not a statement of religious belief. It is not supported by the catechism Mr Sunol quotes or the evidence he gives about his religious beliefs. Indeed it is contrary to that part of the catechism quoted at paragraph [94] above. I find it is vilification.
The post at C.080 states: “I do not declare war on all homosexual people at all, I declare war on members of the Gay lobby which is a specific activist group of political lobbyist and less than 5% of homosexual people: This group is the LGBT SWJ political activist lobby only ‘Or Social Justice Warriors’”. The post at C.081 states: “They are specifically LGBT political activists and lobbyists who I am at war with not the average Homosexual which these people lie about me hating :”.
To declare a war on the “gay lobby” is inciting hatred, indeed violence on the ground of homosexuality. It is true that the war is not against all homosexual people, but it is incitement of hatred on the ground of homosexuality. It might be argued that this is just exaggerated or over blown language, but this this by no means clear here. This is not a reasonable, that is rational or proportionate, discussion of any issue. It is not a statement of religious belief. It is not supported by the catechism Mr Sunol quotes or the evidence he gives about his religious beliefs. Indeed it is contrary to that part of the catechism quoted at paragraph [94] above. I find it is vilification.
The post at C.082 states: “LGBT social justice warriors inside and outside the NSW Anti-Discrimination Board that have been persecuting me for 17 years are FASCIST”. The post at C.083 is similar. The post at C.084 goes on to say: “Fascist are really left wing Socialist / communist and that is what those LGBT SJW political activists lobbyists taking me to court really are :”.
To say people are activists or lobbyists is not even insulting or offensive. To say they are social justice warriors, persecutors, fascists, socialists, communists, and evil may be insulting and offensive but does not incite hatred etc. Warrior might suggest violence, but not I think so in this context. I find this is not vilification.
The post at C.085 states: “Over the past 15-20 years I have been the victim of internet troll’s, geeks computer nerd, using the internet to make fun of me: Then another far more sinister evil group (LGBT SJW rights lobby & political activist) joined these computer nerds to corrupt make case Law:”. The posts at C.086, C.087, C.088 are similar.
To say people are geeks, computer nerds, use the internet, are lobbyists or activists is not even insulting or offensive. To say that people victimise, are sinister, evil, and corrupt is insulting and offensive but does not incite hatred etc. I find this is not vilification.
The post at C.089 refers to an article about Israel Folau and states: “LGBT SJW activists refuse to shut up. They try to brutally silence every voice that refuses to celebrate their perverted doctrines & practices”. The posts at C.090, C.091 and C.092 are similar.
To say people are activists is not even insulting or offensive. To say that people are brutal might suggest violence, but not I think in this context. To say that people refuse to shut up, brutally silence, and are perverted may be insulting or offensive but does not incite hatred etc. I find it is not vilification.
The post at C.093 also refers to an article about Israel Folau and states: “The whole world is at stake when LGBT SJW activists take action : LGBT SJW activists refuse to shut up. They try to brutally silence every voice that refuses to celebrate their perverted doctrines & practices”.
To say that the whole world is at stake does not make sense. Homosexuals are part of the world. To say people are activists is not even offensive. To say that people refuse to shut up, brutally silence others, and are perverted may be insulting or offensive, but does not incite hatred etc. It is not vilification.
The post at C.094 states: “It is important to realise if we give homosexual rights all will be effected: I do not hate Gays as some people say about me: but I speak out against homosexual rights on behalf of the average person who does not realise that this is very detrimental to all human kind:”
This sets out Mr Sunol’s view. It might be insulting or offensive, but it does not incite hatred etc. It is not vilification.
The post at C.095 is similar to C.080. As such I find it is vilification.
The post at C.096 is similar to C.089. I make the same finding.
The post at C.097 states: “my dedicated enemies are the corrupt LGBT SJW lobby of political activists which I class as an enemy of a society any my eternal enemy:”.
To say people are lobby or are activists is not even insulting or offensive. To say that people are enemies and corrupt may be insulting or offensive but does not incite hatred etc. I find this is not vilification.
The posts at C.098, C.099, C.100 are similar to that at C.082. I make the same finding that they are not vilification.
The post at C.101 states: “DIVERSITY & INCLUSIVENESS: what does the slogan REALLY mean? Answer: LGBTSJW code and propaganda to undermine *oppressive* heteronormativity at the heart of our mainstream culture <LGBT SJW fanatics are like post-modern version of the Red Guards”. The posts at C.102, C.103 and C.104 are similar. The post at C.104 includes some further posts about the “lawfare racket”.
This in part sets out Mr Sunol’s views, some of which are not even insulting or offensive. To say people are fanatics and red guards may be insulting or offensive, but does not incite hatred etc. I find this is not vilification.
The post at C.105 states: “The LGBT Agenda is effective in its aim to destroy traditional marriage, due to advanced marketing techniques. Australia’s ABC has been captured. Listen to their shortsighted veneration of well-spoken ‘gay dads’ Mark Newton & Peter Truong here”.
To say that people wish to destroy traditional marriage may be insulting or offensive, but does not incite hatred etc. I find this is not vilification.
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Senior Member R Orr QC
Date(s) of hearing: 17 March 2021
11 May 2021
Applicant: In person Counsel for the Respondent: Mr P King Solicitor for the Respondent: Mr R Balzola, Robert Balzola and Associates
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