Kerslake v Sunol

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

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

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