Menzies v Owen
[2014] QCAT 661
•17 December 2014
| CITATION: | Menzies and anor v Owen [2014] QCAT 661 |
| PARTIES: | Richelle Menzies (First Applicant) Rhonda Bruce (Second Applicant) |
| v | |
| Ronald Owen (Respondent) |
| APPLICATION NUMBER: | ADC009-06; ADC011-06 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 2 - 3 June 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Ann Fitzpatrick |
| DELIVERED ON: | 17 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent Ronald Owen is to make a private apology and retraction to the Applicant, Richelle Menzies. The apology and retraction is to be delivered to the Applicant’s legal representatives by 9 January, 2015. The apology and retraction must be genuine and unqualified and must express regret for the offence, hurt, humiliation and anxiety caused to Ms Menzies by his contraventions of section 124A of the Anti-Discrimination Act 1991 arising out of the report to Council tabled on 6 September, 2005 and the newsletter distributed in September, 2005. 2. The Respondent Ronald Owen is to make a private apology and retraction to the Applicant, Rhonda Bruce. The apology and retraction is to be delivered to the Applicant’s legal representatives by 9 January, 2015. The apology and retraction must be genuine and unqualified and must express regret for the offence, hurt, humiliation and anxiety caused to Ms Bruce by his contraventions of section 124A of the Anti-Discrimination Act 1991 arising out of the report to Council tabled on 6 September, 2005, the newsletter distributed in September, 2005 and the letter headed “No Human Rights for Non Humans” published on the owenguns.com website and the lockstockandbarrel.org website. 3. The Applicants are to file and serve any submissions in relation to costs of the proceedings by 16 January, 2015. 4. The Respondent is to file and serve any submission by 3 February, 2015. 5. The Applicants are to file and serve any submissions in reply by 10 February, 2015. |
| CATCHWORDS: | Anti-discrimination - Vilification on the ground of sexuality – public act – incitement – reasonable conduct – good faith – public interest. Anti-Discrimination Act 1991 (Qld) ss 4A, 124A, 206, 209, Preamble - ss 6(b) and (c) Catch the Fire Ministries v Islamic Council of Victoria Inc (2006) 15 VR 207 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Richelle Menzies and Rhonda Bruce represented by Mr S Hamlin-Harris of Counsel instructed by Caxton Legal Centre. |
| RESPONDENT: | Ron Owen represented by Mr R Haddrick of Counsel instructed by SK Lawyers. |
REASONS FOR DECISION
Background
Prior to the hearing in this matter on 2 and 3 June, 2014, there was extensive litigation between the parties.[1] The matter was heard afresh on those dates.
[1]Menzies & Ors v Owen [2008] QADT 20; Owen v Menzies & Ors [2010] QSC 387; Owen v Menzies & Anor [2011] QCA 241; Owen v Menzies & Anor [2012] QCA 170; Menzies & Anor v Owen [2013] QCATA 527.
The First Applicant, Ms Menzies, is a homosexual. At the relevant times she resided within the Cooloola Shire. The Second Applicant is a male to female transsexual bisexual, who regards herself as a member of the Gympie homosexual community, residing within the Cooloola Shire.
The Respondent, Mr Owen was at all material times a Councillor on the Cooloola Shire Council.
The Applicants complain that Mr Owen engaged in conduct which contravened section 124A of the Anti-Discrimination Act 1991 (Qld) (the Act) in that he publicly vilified homosexuals on 6 different occasions in August and September, 2005.
Section 124A provides:
“(1) A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.
(2) Subsection (1) does not make unlawful-
…
(c) a public act, done reasonably and in good faith, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including public discussion or debate about and expositions of, any act or matter.”
At the hearing a document entitled Further Amended Points of Claim was handed up by the Applicants’ Counsel. Counsel for the Respondent did not object. The document dated 2 June, 2014 sets out the Claim and reflects the fact that three of the original Applicants are no longer proceeding. The document otherwise reflects the Points of Claim filed in the matter. I have relied upon the Further Amended Points of Claim, dated 2 June, 2014 in considering the matter.
Mr Owen submits that the allegations should be dismissed. He also submits that even if he is said to have infringed section 124A of the Act he is entitled to the benefit of section 124A(2)(c) of the Act.
In the defence filed in this matter on 30 April, 2007, Mr Owen claims the benefit of section 240 of the Local Government Act 1993 which provides that a councillor does not incur civil liability for an act or omission done honestly and without negligence under that Act.
Standing
The Act approaches entitlement to complain in two ways. First a person who is “subjected to” the allegedly vilifying conduct is entitled to complain under section 134(1)(a). Second, under section 194 of the Act, the Tribunal may deal with the complaint as a representative complaint where it is alleged that the respondent contravened the Act against a number of people.
The Applicants were asked at the commencement of the hearing whether they made their complaint as a representative complaint. They said that they did not. They said that they drew their complaint from membership of a group, being homosexuals living in the Gympie area, but they made their complaint as individuals.
Accordingly, as the complaint was not made as a representative complaint and there were no submissions that the justice of the case demands that the matter be dealt with by means of a representative complaint, the matter proceeded under section 134(a) of the Act.
I accept the submissions of the Applicants that members of a group may raise complaints of vilification under the Act, where allegedly vilifying acts are directed at a group rather than at an individual. In this regard, I note that in any event, under section 199 of the Act, a complainant in relation to a representative complaint must choose whether to proceed before the tribunal as a party to a representative complaint or to make an individual complaint. I find that individual claims arising from vilifying acts directed to a group are contemplated by the Act. Mr Owen made no submission on this issue.
I find that Ms Bruce and Ms Menzies have standing to bring the claim as individuals who claim that they were subjected to vilifying acts because they are homosexuals, even though the alleged acts were directed to homosexuals at large rather than to them personally.
It will be necessary to make findings as to whether they were in fact subjected to or experienced the acts complained about. That is a different issue to the question of their standing to make complaint.
Issues to be determined
The issues to be determined are:
(a) Did Mr Owen do each of the six acts complained of, or otherwise cause them to occur?
(b) Were Ms Bruce and Ms Menzies each subjected to those acts?
(c) Were the acts “public acts”?
(d) Did the acts “incite hatred towards, serious contempt for, or severe ridicule of” homosexuals?
(e) Was the incitement on the “grounds of sexuality”?
(f) Is the Tribunal satisfied on the balance of probability[2] that under section 124A(2) any public act was done:
·reasonably and
·in good faith;
·for a purpose in the public interest, including public discussion or debate about, and expositions of, any act or matter?
[2]Anti-Discrimination Act 1991 (Qld) s 206.
Relevant Legal Principles
Section 4A of the Act defines “public act” as:
(1) (a) any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and
(b) any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
(2) Despite anything in subsection (1), a public act does not include the distribution or dissemination of any matter by a person to the public if the person does not know, and could not reasonably be expected to know, the content of the matter.
The relevant legal principles and authorities are set out by Member Savage SC, in GLBTI v Wilks & Anor [3]:
“(a)The respondents’ intent to incite is irrelevant: Burns v Dye [2002] NSWADT 32, para 21; John Fairfax Publications Ltd v Kazak [2002 NSWADTAP 35 at para 10; Veloskey & Anor v Karagiannakis & Ors [2002] NSWADTAP 18, para 24, Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, para 12.
(b) What is required is that there has been incitement to another to hate etc rather than a mere conveyance of a hatred already held by the speaker cf Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267, para 33.
(c) “Incite”, “hatred”, “contempt” and “ridicule” should all be given the ordinary natural meaning i.e. to incite – urge on, stimulate or prompt to action cf Burns v Dye supra para 19; John Fairfax Publications Ltd v Kazak supra para 40.
(d) It is not necessary that it be proved that any particular person was incited but that the capacity of the public act to incite the ordinary reasonable person is what must be made out cf Deen v Lamb [2001] QADT 20 see also John Fairfax Publications Ltd v Kazak supra; Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284; Burns v Laws (No.2) [2007] NSWADT 47;
(e) The incitement to hatred must be on “the grounds of sexuality” meaning that that matter was a “substantially contributing factor” cf Waterhouse v Bell (1991) 25 NSWLR 99, 106 per Clark JA; Velsokey supra, Burns v Dye Sexuality is defined in the Act’s scheduled Dictionary as inter alia homosexuality.”
[3][2007] QADT 27 at 15.
In this case, I think it is important to consider in more detail the proper analysis for testing whether the matters attributed to Mr Owen have the capacity to incite the “ordinary reasonable person”. Relevant to that enquiry is the breadth of publication and the nature of the people to whom the matters are published. I accept Mr Owen’s submission that the Tribunal must measure “incite” against an “ordinary member of the class to which the public act is directed, taking account of the circumstances in which the conduct occurs.[4] In GLBTI v Wilks & Anor Member Savage SC was concerned with the publication of a letter to the editor of a newspaper which threatened violence to homosexuals at Mission Beach. He said:
“I was initially concerned that the entirely fictitious story invented by Mr Woodley could not be taken seriously by reasonable members of the community. But incite does not merely mean to bring into existence – the test is not whether conduct would create hatred, contempt or ridicule only where it had not previously existed. Here it is important to remember that Mr Wilks was the editor of a paper with wide circulation in Mission Beach – a paper which publishes both its own and others opinions publicly. To use the forum provided by the newspaper to publish such material to a population which may include people who are “reluctantly tolerant” of homosexuals, objectively incites those if not others to cease tolerance and proceed down the path of hatred, ridicule and contempt.”
[4]Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284 at 231 [19] and 255 [158].
In relation to the justification provision relied upon by Mr Owen, I note the discussion in Deen v Lamb by the then President of the Anti-Discrimination Tribunal, Walter Sofronoff QC. He said: “While the circumstances of an individual case where good faith is in issue might involve a consideration of particular motives more in accordance with a popular conception of malice, the ultimate inquiry in every case involves questioning the true purpose of the impugned act. It is rare that a defendant will admit an improper purpose. Consequently, lack of good faith is usually to be inferred from other facts proved. For this reason it is common, in defamation actions, to scrutinise a defendant’s conduct for evidence from which an improper purpose might be inferred. In addition, the terms of the publication, where they are in excess of that required for the occasion, might be evidence from which lack of good faith is to be inferred.”[5]
[5]Deen v Lamb [2001] QADT 20.
The President also said: “it is plain that, by enacting s.124A, the legislature did not intend to stifle debate, even acrimonious debate, upon matters of public interest and importance. It did not intend, by this Act, to censor artistic or political expression, even when offence and division is a certain outcome. As the terms of the section make clear, even acts and publications that do indeed incite hatred, serious contempt and severe ridicule are to be tolerated provided certain conditions are met. One of those conditions is that the person acts in good faith.” Further in the decision the President said: “In also making reasonableness a requirement the statute adds a further objective standard to the requirement that the act be done in good faith for the identified purpose. It would not be helpful to list possible instances of a failure to act reasonably. That must be left for future cases. It is enough for this case to observe that the pamphlet has been written in moderate language. It is concise and there is no suggestion that it has been published or disseminated other than in the electorate.”[6]
[6]Ibid.
The decision of Catch the Fire Ministries v Islamic Council fo Victoria[7] contains good guidance as to the meaning of “good faith” and “reasonable” in a similar provision in the Victorian Racial and Religious Tolerance Act 2001.
[7][2006] VSCA 284.
Nettle J expressed the view that good faith is a subjective concept and that one looks to whether the conduct was engaged in with the “subjectively honest belief that it was necessary or desirable to achieve” a genuine religious purpose. In this case the enquiry is directed to achievement of public discussion of matters in the public interest.
His Honour expressed the view that whether conduct was engaged in “reasonably” involves an objective analysis according to the standards of an open and just multicultural society, which is referred to in the Preamble of the Victorian Act.[8]
[8]Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 at [92],[93] and [94].
In the Queensland Act, Parliament’s reasons for enacting the Act include a consideration that:
“the protection of fragile freedoms is best effected by legislation that reflects the aspirations and needs of contemporary society’; and
“the quality of democratic life is improved by an educated community appreciative and respectful of the dignity and worth of everyone.” [9]
[9]Anti-Discrimination Act 1991 (Qld), Preamble - section 6(b) and (c).
Accordingly I consider the question of what section 124A(2)(c) contemplates as done “reasonably” is to be judged by the standards of a contemporary, educated community which is appreciative and respectful of the dignity and worth of everyone. I do not think such a community is very different to the “open and just multicultural society” discussed by Nettle J. I adopt his conclusion that “It is only when what is said is so ill-informed or misconceived or ignorant and so hurtful as to go beyond the bounds of what tolerance should accommodate that it may be regarded as unreasonable.”[10]
[10]Catch the Fire Ministries Inc & Ors.,op.cit.at [98].See also the preceding discussion at [95] – [97].
Finally, I consider that the reference to a purpose in the “public interest” in section 124A(2)(c) should bear its ordinary meaning of affecting the public at large.
The Complaints and Findings
The Applicants complain that Mr Owen engaged in six public acts in breach of section 124A of the Act.
Bumper Sticker
The first complaint is that Mr Owen drove a vehicle with the registration number 967 GJV on public roads within the Cooloola Shire at various times prior to 23 August, 2005, such vehicle displaying a bumper sticker that stated “Gay Rights? Under God’s Law the only rights gays have is the right to die (Lev.20:13)”
Mr Owen gave evidence that the vehicle to which the bumper sticker was attached was not owned by him, however, he was driven as a passenger in that vehicle from time to time. He agreed that he had driven the vehicle from time to time prior to March, 2005. I accept that evidence. Mr Owen denied attaching the bumper sticker to the vehicle. He did not know who had done so and he did not know when it was attached. I accept that evidence. There is no evidence that Mr Owen drove the vehicle at a time when the bumper sticker was attached to the vehicle. However, I find that Mr Owen knew of the sticker because he was able to answer a question raised with him in a council meeting about the bumper sticker. He did not disavow knowledge of the bumper sticker when asked the question on 23 August, 2005.
Ms Bruce gave evidence that she saw the vehicle with the bumper sticker parked outside the Cooloola Shire Council chambers on 20 September, 2005. I find that Ms Bruce was subjected to the bumper sticker. Ms Bruce did not see Mr Owen drive the vehicle on 20 September, 2005. There is no evidence that Ms Menzies saw the bumper sticker. I cannot find that Ms Menzies was subjected to the bumper sticker.
The question is whether Mr Owen has engaged in any “public act”. Has he communicated to the public by, relevantly, “displaying notices”; or engaged in conduct observable by the public by, relevantly, “display of signs”?
Mr Owen has been a passenger and occasional driver of a vehicle owned by someone else, to which an unknown person has attached a bumper sticker, which may have the effect of vilification. Where is the line drawn? Is a passenger on a council bus bearing an advertisement which may vilify taken to have engaged in a public act within the meaning of section 124A of the Act? Is an employee directed to drive his employer’s car bearing an offensive bumper sticker, taken to have engaged in a public act, such that he should bear liability for any vilification which may result in it being observed in public?
Plainly the owner of the vehicle who permitted the bumper sticker to be attached to the vehicle and to remain on the vehicle whilst it was being driven on public roads has displayed a notice and displayed a sign and has thereby engaged in a public act. On balance I think it is going too far to say that a passenger in, or occasional driver of, a vehicle owned by someone else can attract liability for any vilification that might occur as a result of an offensive bumper sticker attached to the vehicle. Someone who is not an owner of a vehicle cannot control what is affixed to the vehicle.
In the absence of evidence that the vehicle was owned by Mr Owen at the relevant time, I am unable to find that he engaged in any public act associated with display of the bumper sticker, as contemplated by section 124A of the Act.
For these reasons I find that this ground of complaint is not made out. Without a finding that Mr Owen engaged in a public act, there is no purpose in further considering the elements of section 124A of the Act.
Comments in Council Meeting
The second complaint relates to a statement allegedly made by Mr Owen at a Cooloola Shire Council meeting on 23 August, 2005, reported in the Gympie Times in an article on 26 August, 2005. The report was read by the Applicants.
The statement was said to have been made in response to a question from Councillor Peter Cantrell, asking how Councillor Ron Owen could claim to be a “champion of the underdog and a protector of the downtrodden”, yet display a sticker on his car which states “the only rights gays have is the right to die.” After the question was asked, the Mayor, Mr Vernardos said words to the effect of: “No, No I wish to hear what Councillor Owen says about this.”
The statement complained about was Mr Owen’s alleged response as reported in the Gympie Times: “That’s because I probably don’t class the gays as being human.” That statement preceded the words: “I think the word “gay” is a misappropriation of the word. I’ve come out publicly on this before. I don’t think the gays are downtrodden. In fact they are in the ascendency in our community. It’s an illness isn’t it?” It is the first sentence which is the subject of the complaint.
Mr Gorrie the journalist who wrote the article reporting the comments, said that he may have mis-reported the words used and that “them” instead of “the gays” was used by Mr Owen in the first sentence. He otherwise insisted that the words quoted were what Mr Owen said and that the meaning was the same even with the amendment. Mr Gorrie no longer had the notes he made at the meeting.
No minutes were taken of the meeting.
Mr Owen gave evidence that he answered the question by an expression of his personal beliefs in words to the effect set out in paragraph 9 of his affidavit, Exhibit 13 in the proceedings:
“I believe, that if a person chooses to partake in un human activities that they lose their Human Rights. In the same way that if a person breaks the law and is convicted of a murder the State removes there rights and freedom of Movement. I said that “We all have a right to die, (no one lives forever) but if these people follow these practices they die a lot sooner (Aids, HIV, Hepatitis) they have the right to die sooner than others”. “It is an Illness they Choose”
Evidence was called from others present at the council meeting. Mr Stower, a newspaper publisher and friend of Mr Owen was present at the meeting. His evidence is that the report in the Gympie Times was not an accurate record of what Mr Owen said. At paragraph 9 of his affidavit, exhibit 8 in the proceedings, he set out his recollection of what Mr Owen said, being: “ ‘if a human chooses to perform in human Acts, they lose their Humanity’ .Then he mentioned convictions against humanity. Cr. Owen then said, he has never made any secret of the fact he opposes these groups on humanitarian ground.”
Mr Stower said that he did not hear Mr Owen say the words “Gay” or “Homosexual” or any other associated words.
Mr Jocumsen, a Councillor, was present at the council meeting. His affidavit, exhibit 9, sets out his recollection of Mr Owen’s response to the question asked by Councillor Cantrell. Paragraph 10 of his affidavit says: “I recollect that Councillor Owen said words to the effect of, “if a human choses to follow un Human Acts, they lose their Human Rights.” He said, we all had a right to die but when some people took up unsafe lifestyles they would die sooner.”
Mr Sachs, a Councillor, was present at the council meeting. His affidavit, exhibit 11, set out his recollection of Mr Owen’s response at paragraph 10: “ I recall that Councillor Owen said words to the effect of “if a person chooses to follow Non- Human Acts, if they break the law, they lose their Human Rights, as with a murder, the State removes their rights. He mentioned that he disapproved of their activities and that we all had a right to die but when some groups took up a more dangerous pursuit they would die sooner. He referred to Aids as an illness and said that he never referred to them as that name as he believed that they had subverted the word and were not very happy people.” He said that Councillor Owen did not mention the words gay or homosexual.
Mr Primrose, a retired hobby farmer was present at the meeting. He swears in his affidavit, exhibit 10, that he has no recall of Councillor Owen having used the words gay, lesbian or homosexual in his response. He said the response was short, concerned human rights and health. Mr Primrose had no better recollection.
Of the witnesses present at the meeting no one recalled words being used by Mr Owen to the effect: “That’s because I probably don’t class the gays as being human.”
I do not think it matters whether the alleged sentence used the word “them” or “gays”. In context the sentence is clearly able to be understood as referable to gay people.
Mr Gorrie conceded one error in his report, being the use of the word “gays”, not “them”. He had no notes to support his recollection. Given the number of witnesses who have a different recollection to that attributed to Mr Owen by Mr Gorrie, I find that Mr Owen did not say the words attributed to him.
The Applicants must prove on the balance of probabilities that Mr Owen did say the words complained about. I do not think they have done so. The Applicants have sought to change their case after the hearing concluded. The original complaint is set out in the Further Amended Points of Claim and refers only to the alleged statement “That’s because I probably don’t class the gays as being human.”
In their final submissions, the Applicants have submitted that the Tribunal should find in the alternative that the words said by Mr Owen were as remembered by Mr Sachs and that they rely on his version of events. That is not the case Mr Owen was required to meet. I decline to do so.
For these reasons I find that Mr Owen did not make the statement attributed to him and that this ground of complaint is not made out.
Report to Council
On 30 August, 2005, Mr Owen provided a report to the CEO of the Cooloola Shire Council for the purpose of it being tabled at a forthcoming General Meeting of the Council. On 6 September, 2005, the report was tabled at a meeting of the Cooloola Shire council.
The report was headed “Report from Cr Ron Owen re Community Morals and Youth Protection”. The report challenged the Mayor over his response to the Gympie Times news article. Mr Owen made the following statements in his report, which is the subject of the complaint:
“…
…Surely the Mayor will ask the Gympie Times for a retractions as claiming that the Mayor made two statements advocating tolerance to Sodomite behaviour is beyond belief. The Mayor is not an “Anything Goes” type of person, as an ex-policeman he would know that Sodomy is still a valid section of the Criminal Code. I am sure the Mayor would appreciate that the Christian Bible has guided our legal and moral philosophy for nearly 2000 thousand years, its inspiration and laws of moral behaviour has placed the Western Civilisation into world ascendancy. The Mayor would not wish to ignore the teachings of the Christian Bible such as to name two of many other verses, “If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination; they shall surely be put to death; their blood shall be upon them.”
Leviticus 20:13 KJV
“For this cause God gave them up unto vile affections; for even their women did change that natural use into that which is against nature; and likewise also the men, leaving the natural use of the woman, burned their lust one toward another; men with men working that which is unseemly, and receiving in themselves that recompence of their error which was meet…Who knowing the judgment of God, that they which commit such things are worthy of death, not only do the same, but pave pleasure in them that do them.” Romans 1:26-32.
…
“The Mayor would always take a stand to defend the family, defend normal moral behaviour, and I am sure he will shortly be quoted correctly, warning for the breakdown of standards and ethics within our community. I was told by a person accused of looking at under aged porn on a computer that he had known the Mayor for over twenty years and went to the Mayor and asked him for a reference on his past character, as he was pleading guilty and needed a reference to assist him in sentencing and staying out of jail, the Mayor refused, giving reasons of his strong commitment to moral standards and the Christian way.
Sodomist’s [sic] cannot reproduce, their only means of recruitment to their way of life is by preying on the children of normal human beings, this drastically reduces their child’s life expectancy. If we had lions and tigers or wild dogs stalking our children, mothers would fight to the death to protect their children. Tolerance on this issue is a perversion of family defence.
Fact or fiction?
The sodomite magazine “Gay Pride” from http;// are quite proud of these figures (and even though a dubious source).
73% of homosexual men surveyed had at some time had sex with boys 16-19 years or younger!
Homosexual teachers are 90 to 100 times more likely to be involved sexually with pupils!
Of 3,808 indecent assaults, 88.1% were homosexual offences against boys less than 16 years!
Homosexuals are fourteen times more likely to have syphilis!
Homosexuals are eight times more likely to have had hepatitis!
Homosexual males are 5000 times more likely to have AIDS (90%) of all cases).
I believe that this proves, that you should not allow sodomites anywhere near schools, scouts, churches or government, or railways in fact I cannot think of anywhere on this planet I could recommend them to.
For Councils consideration.”
There is no dispute that Mr Owen is the author of the report.
Ms Bruce, attended the Cooloola Shire Council meeting on 6 September, 2005 and received and read the report. Ms Menzies was informed of the content of the report by Ms Bruce. On this basis I find that they were subjected to the contents of the report.
Mr Owen’s evidence is that he sent the report to the Chief Executive Officer for consideration at a forthcoming Council meeting on 6 September, 2005. I find that in accordance with the general practice as described by Councillor Sachs, the report was included on the agenda and made available with other agenda papers for the public prior to the meeting. Mr Owen attempted to read from the report at the meeting.
On the basis of this evidence, I find that writing the report and arranging for tabling it at the 6 September, 2005 Council meeting was a public act.
The next issue is whether the report had the capacity to urge the ordinary member of the public to whom the report was published, to hate, have serious contempt for, or severe ridicule of homosexuals because of their homosexuality. Has there been such incitement or is the report a mere conveyance of a hatred already held by Mr Owen?
I find that the report demonstrates Mr Owen’s hatred and contempt for homosexual people. The question is whether the report goes further and has the capacity to incite others to the same feelings.
Because the Report was published widely in the community through being available to any member of the public to collect it from the Council, it was likely to have been read by a wide range of people. Mr Owen has intended to gain sympathy and support for his views. He appeals to the fears of parents and cites statistics in relation to homosexual sex with young boys and serious health issues suffered by homosexual people to give credence to his views. Throughout the report Mr Owen refers to “Sodomites”, which his penultimate and final paragraph makes clear is a term interchangeable with homosexuals. He sets his report up as a reasoned argument as to why homosexuals should not be allowed near schools, scouts, churches or government, or railways. He concludes: “…in fact I cannot think of anywhere on this planet I could recommend them to.”
I find that the report does have the capacity to urge ordinary members of the public to hate homosexuals or to hold them in serious contempt because of their homosexuality.
I must finally decide whether Mr Owen is entitled to the benefit of section 124A(2).
It is submitted by Mr Owen that the report was done reasonably by using the provision of a report to instigate public discussion or debate. Further, Mr Owen submits it was done “in good faith”, that is without malice and the views expressed were sincerely held by him. The matter of public interest was said to be protection and promotion of the public health system and the costs upon the public health system associated with dealing with care for those with AIDS and possible criminal activity that was occurring in relation to minors or associated with the Historical Railway Association.
I reject Mr Owen’s submissions. The report’s contents and its publication were not reasonable. I find that the report contains matters which are so ill informed and ignorant as to go beyond the bounds of what tolerance should accommodate. I have in mind the passages which refer to sodomists or homosexuals preying on children and the exhortation not to allow homosexuals anywhere near schools, scouts, churches or government, or railways or anywhere on the planet.
As to whether the report was published in good faith, I reject Mr Owen’s submissions. I do not consider that the relevant test is whether Mr Owen held any malice. The test, consistent with Nettle J’s views in Catch the Fire Ministries is whether the conduct was engaged in with the subjectively honest belief that it was necessary or desirable to achieve public discussion of matters in the public interest.
Mr Owen’s own submission is that the report was prepared as a response to the way in which he was treated in the 26 August, 2005 Council meeting and the subsequent reporting of the meeting. I accept his submission that Mr Owen is seeking to defend his personal views in Council. I do not accept that he was principally concerned about the cost to public health of treating AIDS patients. He does not mention cost to the public health system in his report. I do not accept that he was seeking to address issues involving possible criminal conduct in relation to minors associated with the Historical Railway Association. The Association is not mentioned. I question in any event how the Cooloola Shire Council is the appropriate forum for a public discussion of these matters, even accepting that they are in the public interest. The Cooloola Shire Council has no authority over public health and any criminal conduct is a matter for the police. For these reasons I find that the report was not published in good faith.
I find that by publishing the report Mr Owen has contravened section 124A of the Act.
Channel 7 interview
On 7 September, 2005, Mr Owen participated in a television interview broadcast via Channel 7 in which he stated:
“I think it’s a very perverse lifestyle. Can our health services cope with the sodomites epidemic. As you have prisoners who break the law lose certain rights and I do believe homosexuals lose rights… I think that they know they are going to die shortly. I mean AIDS is pretty prevalent.”
The interview was originally given to Channel 10 over a period of 2 and a half hours. Channel 7 broadcast parts of the interview, including the statements complained about. The Applicants rely on all of the words spoken by the Respondent in the broadcasts as admissions against interest, but they only seek to establish a contravention of section 124A of the Act in relation to the words quoted above.
The evidence is clear that Mr Owen gave an interview and spoke the words complained about.
Ms Bruce observed the interview during the television broadcast. Ms Menzies observed the interview from a video recording made by Ms Bruce. I find that they were subjected to the statements.
I find that the interview and the statements made were a public act on the basis that Mr Owen engaged in a television interview, the natural consequence of which was the publication of his words, by Channel 10 and other broadcasters, such as Channel 7 once the broadcast was in the public domain.[11]
[11]McGlade v Lightfoot (2002) 124 FCR 106.
As to the question of whether the words had the capacity to incite hatred or serious contempt for homosexuals, I accept Mr Owen’s evidence that the Channel 7 broadcast was highly edited, it did not give the questions which he answered and the statements are not given their context. On this basis I accept the submission that it is not possible to judge whether the statements for which he was responsible, given in the way they were originally given, were capable of inciting hatred or serious contempt.
Taking the words complained about in isolation, acknowledging that they are out of context and separated from the question which elicited the response, it is difficult to see that Mr Owen has done anything other than express his own personal contempt for homosexuals. I do not think the words complained about have the capacity to incite ordinary people to hatred or serious contempt. The statements are prefaced by the words “I think” and “I believe” anchoring them as statements of personal opinion rather than being cast in a way which urges others to adopt Mr Owen’s views.
For these reasons I find that Mr Owen has not contravened section 124A of the Act. The Complaint is not made out.
Newsletter
Mr Owen admits that in September, 2005, he distributed a newsletter in the form of a pamphlet entitled “What’s Going On In Council?” to numerous households throughout the Cooloola Shire by delivery to residents’ letterboxes. The pamphlet sets out Mr Owen’s version of events of the Council meeting on 23 August, 2005 and 6 September, 2005.
Ms Bruce found the pamphlet in her letterbox. Ms Menzies became aware of the contents of the pamphlet through Ms Bruce telling her of the contents. I find that the Applicants were subjected to the contents of the pamphlet.
The content of the pamphlet objected to is:
· a cartoon depicting then United States President George Bush and the then Gympie Mayor, Councillor Venardos in a Coloola Shire Council flood boat in New Orleans after Cyclone Katrina. The Mayor suggests New Orleans and Gympie are similar places. The cartoon depicts the Grim Reaper and some persons dancing in the background.
· the statements:
“…I used words to the effect of, ‘I believe, that if a person chooses to partake in un Human activities, that they lose their Human Rights’. In the same way that if a person breaks the law and is convicted of murder the State removes their rights and freedom of movement. I said that, “We all have a right to die, (no one lives forever) but if these people follow these practices they die a lot sooner, (Aids, HIV, Hepatitis) they have the right to die sooner than others.” “It is an illness they Choose’.
“Do we ignore the massive impact on our nations Health Services due to the chosen pursuit of sodomist?
How do we, as Councillors comfort one of the 5000 people awaiting hospital treatment on the Sunshine Coast, or a person dying for the use of a renal disease machine?
Can your Health Services cope with the Sodomites epidemic and as it is a voluntary pursuit should they get preference over the general population who have not brought illness to themselves?
…
As councillors, how do we comfort the grieving Mother of the slightly retarded Nineteen year old son, who has moved in with two, Thirty year old sodomites?
…
Last week a Brisbane Teacher was convicted of sexually abusing school children.
As councillors how do we console the victims parents? Do we tell them that we should be tolerant, that we must not discriminate, that we should encourage perverse sexual behaviour?”
I find that Ms Bruce and Ms Menzies were aware of the contents of the newsletter and were subjected to it.
I accept Mr Owen’s evidence that the newsletter was distributed to Mr Owen’s constituents who lived in the division that he represented on the Cooloola Shire Council. Accordingly, I find that Mr Owen engaged in a public act through distributing the newsletter.
As to whether the newsletter had the capacity to incite hatred or serious contempt for homosexuals, I note Mr Owen’s submission that he was desirous of correcting the public record and articulating in the public domain his version of events in relation to the Council meeting on 23 August, 2005. It is submitted that an ordinary member of the community would not conclude the respondent was seeking to “incite hatred towards, serious contempt for or severe ridicule of homosexuals. It is submitted that an ordinary person would conclude that the respondent was responding to the events in Council, and seeking to rebut accusations made against him by other councillors, the Gympie Times, and other members of the community.
I have referred to the whole newsletter, being exhibit RM-3 to the Affidavit of Ms Menzies. Mr Owen prefaces his explanation of how he answered Councillor Cantrell at the Council meeting on 23 August, 2005 with the statement: “I expressed my personal beliefs to honestly answer his question.” Mr Owen goes on to explain that he prepared a report for Council to defend himself against a complaint from “Open Doors”, following the newspaper report of the meeting. He says: This is what I wanted to say but was silenced each time I spoke.” Mr Owen then sets out a reasoned basis for his personal belief. Included in his reasoning are the statements complained about and set out above. I note that he does not include the offensive provisions in his report which I have earlier found were not reasonable.
Throughout the newsletter Mr Owen refers to “sodomites”. The Macquarie dictionary defines sodomite as someone who practises sodomy [from Sodomite an inhabitant of Sodom…]. Sodomy is defined as: “1.sexual intercourse using the anal orifice, especially of one man with another. 2. Bestiality. 3.any sexual practice regarded as unnatural or perverted. [ME, from OF; from Sodom, one of the ‘cities of the plain’ destroyed by God for their wickedness. See Genesis 18 -19].[12]
[12]Macquarie Concise Dictionary, 4th ed., Macquarie Dictionary Publishers Pty Ltd, Sydney, p. 1157.
During the hearing Mr Owen said that he did not intend to refer to all homosexuals by use of the term “sodomite”, but only those who breached the Criminal Code, including paedophiles. No such refinement appears in the Newsletter. Even if that is what Mr Owen intended, he has not expressed himself sufficiently clearly to avoid the interpretation that the word sodomite is a reference to homosexuals. Because of the dictionary meaning of the word, I find that the ordinary reader would interpret the word as a reference to homosexuals.
The newsletter was plainly intended to garner support for Mr Owen at a time when his views in relation to homosexuality had received publicity and drawn criticism and complaint. The object of the letter was to urge on the ordinary residents of his constituency that he was entitled to freedom of thought and speech and that his views were reasonable and worthy of support. It is evident from Mr Owen’s language that he holds homosexuals in contempt. In particular, use of the dramatic word “sodomite” with its connotation of the old testament and evil deserving God’s vengeance. Mr Owen attributes high levels of disease to homosexuals and argues that the public health system is being overwhelmed as a result. He fears that children and the “slightly retarded” are at risk from homosexuals. By seeking to convince his constituents of the reasonableness of his views he is in reality asking them to adopt the same contempt for homosexuals that he feels.
Given the wide circulation of the newsletter and its appeal for support for Mr Owen’s views I find that the newsletter has the capacity to urge or stimulate hatred or serious contempt for homosexuals amongst members of the Gympie community. I find that this hatred or serious contempt would be because of their homosexuality.
The next question is whether publication of the newsletter was done reasonably and in good faith for the purpose of public discussion about matters in the public interest.
Applying an objective test by the standards of a contemporary, educated community which is appreciative and respectful of the dignity and worth of everyone, I must decide whether Mr Owen has gone too far in expressing his personal beliefs. Has he gone beyond what is acceptable, recognizing that a degree of tolerance for different and sometimes offensive points of view is necessary in a free society?
On balance I think Mr Owen has gone too far. In particular, his frequent use of the immoderate term “sodomite”; the reference to un-human acts, the linking of homosexuality with disease likely to overwhelm the public health system and linking homosexuality with paedophilia go beyond a reasonable exposition of the views of one opposed to homosexual acts, who might otherwise have expected tolerance of his views, even though out of step with much modern thinking. I find that publishing the newsletter was not done reasonably.
For the sake of completeness I will consider the issues of good faith and public interest.
Mr Owen’s principal objective in publishing the newsletter was to explain what had happened on 23 August, 2005 and to defend his position. In doing so he appeals to the public interest. I cannot find that debate in the public interest was his primary motivation. I find that the newsletter was not published in good faith.
Mr Owen submits that correcting the public record as to events that occurred at the Council meeting on 23 August, 2005, protection and promotion of the public health system, protection of young people from immoral activity and criminal activity and possible criminal activity that was occurring in relation to minors at or associated with, the Historical Railway Association were matters in the public interest.
The newsletter does not refer to the Historical Railway Association. Although matters related to conduct at the Historical Railway Association may be in the public interest it is not a basis for justifying this newsletter. Correcting the record may also be a matter of public interest, however in this case the overwhelming thrust of the newsletter is defence of Mr Owen’s personal beliefs. The Applicants acknowledge in their submissions that discussion about the impact on the health system of persons suffering AIDS, or on the priority in which persons on waiting lists should be determined or on the legal rights that homosexual people are entitled to are matters of public interest, although they seem to suggest that would only be the case in the context of an election. I disagree; I consider they are each matters of public interest and that any citizen is entitled to engage in public discussion about such matters. Provided of course that the discussion is reasonable and in good faith. Having found that Mr Owen’s discussion was not reasonable or in good faith, I am unable to find that he is entitled to the benefit of the exemption in section 124A(2).
I find that the statements made in the newsletter, the subject of the complaint, contravene section 124A of the Act.
The last matter associated with the newsletter is the cartoon. I discern an inference that Gympie may suffer a flood similar to that experienced in New Orleans following Cyclone Katrina, as a result of the presence of homosexual people in the town. That is the submission made by the Applicants. It is a silly idea and I do not think any ordinary and reasonable resident of Gympie would take it seriously, even if they could make out that meaning from such a poorly executed cartoon. I find that the cartoon does not contravene section 124A of the Act.
Website
It is alleged that in mid to late 2005, Mr Owen caused a letter written by him to be published on a website “lockstockandbarrel” and “owenguns”. It is alleged the websites are controlled by him. The letter was entitled “No Human Rights for Non-Humans” and includes the following material which is the subject of complaint:
‘Ref, To Sexual Preferences, by ‘name withheld’, is obviously too ashamed have it printed. Not only because it identifies it as a Sodomist, but because of the mass conjecture and inaccuracies that the letter perpetuates.
“The Laws of Nature bind men absolutely although they have never made a friendship or settled on an agreement of what to do or what not to do. We are naturally induced to seek and remain by our consent in a community, and if a man breaks with the Law of Nature and seeks a life not fit for the dignity of his community, he has to either leave that community, or submit to the punishment of that community. Any person who commits acts that no ignorant animal would commit, declares war on his community, and therefore may be destroyed by any or all of the community, in the same way that the community can rightfully destroy wild tigers, crocodiles, or germs and viruses that endanger its security”!
What reliable survey does “name withheld”, draw its conjecture that almost half of youth suicide in our area are due to “young people who are born sexually oriented towards people of the same sex”? This is straight out of a Walt Disney imaginary world. There can be no genetic reason why any human is born into the world with that perversion implanted in them, if there was any evidence, common-sense would prove it was false. If it was the case, then as people of the same sex cannot reproduce themselves the genetic history would have died out many thousand of years ago.
That is probably one of the good reasons why the death sentence is proscribed for the perpetrators, and any who condone them, in the Old and New Testament of the Bible. In those early days they were much smarter than the apathetic near brain dead community of today as they knew that the only way perverts get new recruits, is to woo or pay them. They woo them by making it acceptable and common place. They cannot have their own children, so they steal others. This makes normal parents very angry. They have spent a good part of their own lives educating their children to be useful members of society, and when their children are ill used and perverted, when they are told by their local teacher, churchman, pop singer, or radio talk back creeps that it quite okay to do things that uneducated dogs and cats cannot and won’t do, then they become very confused. Some leave home, some commit suicide, but not because they had a defect when they were born, but because we have allowed creatures to prey on our young, who are just as savage as those tiger’s earlier discussed.
I too was originally left handed, and was encouraged to use the right hand for writing, I was always grateful as it was always a pleasure to have the ability to change hands while boxing, shooting, or playing table tennis. Persecution and mistreatment for left-handers is another fairy story to disguise the way creatures of your ilk have persecuted and mistreated the young people that you induce to prostitute themselves, before you return them to the streets. You have no thoughts for their families, only your next depravity. They are not young gays sleeping ‘rough’ on the streets, they were once normal family kids that your kind have seduced, and then rejected.
You re-oriented them.
Your nonsense, regarding “utterly terrifyingly and soul destroying alone” in comparison with people suffering from racism, is proved false by the premise that they cannot choose if they are born black, white, or yellow, but you can. If you want to stop being terrifyingly and soul destroyingly alone, all you have to do is stop thinking about your depraved sexual habits.
Your condemnation of parents calling them the abusers, when it is you that is preying on their young, is despicable. If there is tons of guilt to be placed on anyone’s head it has to be on the perpetrator. Can you blame a mother for protecting her family from a predator like you?
You resort to insulting animals as well as mothers, when you say that “no other animal which turns on their young with such viciousness “over what you call “a perfectly normal variation in sexuality”. Animals have the bravery to fight to the death to preserve their young, and we can learn from their tenacity. Animals do not normally engage in depraved acts, but when they realise they have made a mistake, they back off. If is only when human trash involve them in depravities does the word “bestiality” come into being. Without the unnatural human, there is no such thing as “bestiality”.
Keep writing to these Senators, unfortunately it won’t make any difference, but at least the letters make them feel bad when they still vote on party lines, and know that they are going to lose votes. These days, evil politicians make evil legislation to protect the evil. It is not real law, but it will condemn families, Mothers, Fathers and Grandparents, for protecting and guiding. Under the new Sexual Discrimination Act, they are the wrong doers, they will be penalised. Families will be destroyed, giving fiendish delight to the likes of “Name withheld”. “Name withheld” will inspire more opposition to the Sexual Discrimination Bill, as more natural people will realise the hate that the homosexuals have for the family, and any Christian/Jew/Moslem with back bone. (Yes, it does incur the death sentence in the Koran too).
I will not withhold my name. I will the “slings and arrows of outrageous fortune” that the homosexual Mafia who took over the Parliamentary benches and the bureaucracy of our State government may throw at me, as ‘Battle Honours’”.
Ms Bruce read the material on the website prior to lodging the Complaint in this matter in 2005. It is not pleaded as to how Ms Menzies became aware of the material. I find that Ms Bruce was subjected to the material. I am unable to find Ms Menzies was subjected to the material without some evidence that she aware of it.
Mr Owen admits that he was the author of the letter in question. He said that it was written in 1998 in response to a letter published in the Gympie Times from a person advocating free sex with children. Mr Owen’s letter was published by the Gympie Times, however, the newspaper inserted the heading. Although retaining quotation marks around the second paragraph, the newspaper removed reference to the source of the quote – John Locke’s Second Treatise on Government, published in 1689.
He said that the letter appearing on the websites was the version printed in the Gympie Times.
The evidence is that the website owenguns.com was established to advertise the gunshop Owen Guns. The website lockstockandbarrel.org was established as an adjunct to a printed magazine published by people associated with Owen Guns.
Mr Owen gave evidence that he did not load the letter onto the websites and did not know it was on the websites until these proceedings commenced, whereupon he took it off the websites.
The question is whether Mr Owen caused the letter to be published on the websites.
Who owned and operated the websites?
Mr Ward, then a volunteer at Caxton Legal Service undertook some searches. Attachment JWW2 to his affidavit, Exhibit 2 in the proceedings is the result of a domain name registration search of owenguns.com. The search result reveals the registrant of the domain name and the administrative contact as Owen Guns of 24 McMahon Road, Gympie. Mr Ward conducted the search on 31 March, 2008.
Mr Ward conducted a domain name search of lockstaockandbarrel.org on 1 April, 2008. At that time the Registration Organization was shown to be lockstandandbarrel of PO Box 872, Gympie. I note that is the postal address of Owen Guns.
I accept Mr Ward’s evidence that the two websites are related, that they carry some of the same content and that upon ringing the telephone number for lockstockandbarrel, he was put through to Mr Owen’s wife who referred him to Mr Owen on the telephone number listed for owenguns.com.
In cross examination Mr Owen said that the 2 websites are the same domain but there were two ports into the same thing so that people could go into lockstockandbarrel and read articles and then go across into owenguns to access advertisements and stockists and the like.
Mr Owen’s evidence is that as advertising manager for the now defunct print publication Lock Stock and Barrel it was appropriate for his name and number to be associated with the site. He said that because he wrote articles for and managed the advertising for the magazine his wife would naturally have referred Mr Ward to him.
Mr Owen said that once the magazine Lock Stock and Barrel ceased printed publication in 1998 an electronic version was created using the space owned by Owen Guns.
Mr Owen professed an inability to upload material onto the websites without the assistance of the “tech” employed to do so.
Mr Owen gave evidence that when first established Ken Speackman ran the website for both Owen Guns and Lock Stock and Barrel from a technical point of view. He also referred to another employee of Owen Guns, John Challenger who together with Mr Speackman would obtain articles that Mr Owen had written or other people had written and he would load them onto the websites.
On the basis of the information disclosed in the domain name searches and Mr Owen’s evidence I find that the websites were owned and operated by Owen Guns.
What control did Mr Owen have over the websites?
The next issue is whether Mr Owen exerted sufficient control over the websites for him to be responsible for their content. If Mr Owen did control the websites and he allowed the websites to be conducted on the basis that anyone could post material, including unlawful material and he made no checks of the content, then it is no excuse that he did not know what was on the websites and that he did not post the material.[13]
[13]Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 at para. 34.
Mr Owen said that the business is owned by a Trust. He said that he is not a trustee and he has no beneficial interest in the trust. He said that he is not an employee. I asked a member of the Tribunal registry staff to conduct a business name search from the Australian Securities and Investment Commission database. The search reveals that from 1 September, 2005 the holder of the business name Owen Guns is Ronald Owen as trustee for the Owen Guns Trust.
Mr Owen’s affidavit, exhibit 13, records that he is a Licensed Firearm Dealer and Licenced Armourer. In evidence he said that he is one of three Licensees and that he is responsible for one of the Owen Guns’ registers which is the majority of the business. I note that under the Weapons Act 1990 (Qld) the holder of these licences does so in the course of carrying on business.
Mr Owen gave evidence that once he saw the letter the subject of the complaint in the material for the proceeding, he had it taken down off the websites. He said that was in approximately 2007. His evidence is that: “I contacted Owen Caulfield, a tech that we use at the moment and asked him if he could get the whole site down, close it up.” When asked if this happened, Mr Owen said: “I think so, yes”.
When asked: “And did Ken or others have authority to put your material up on the website?” Mr Owen responded: “Yeah, they had passwords and you know, like, Ken was in control of the passwords and when somebody like Mike Veranda wanted to put anything up he would use those passwords.”
On this basis I find that Mr Owen carries on the business of Owen Guns as a function of holding a Dealer’s and Armourer’s Licence, and as trustee of the Owen Guns Trust. I find that the websites were created to further the business of Owen’s Guns and were linked, carrying the same material. Although Mr Owen may not have had any technical control over the operation of the websites, I find that the business he carried on engaged persons to undertake that work. I find that Mr Owen gave authority to Mr Speackman and employees to put his written work on the websites and that they had access to passwords in order to do so without reference to him. I find that Mr Owen had sufficient control over the websites that he could require them to be closed down.
Taking all these matters into account, I find that Mr Owen had control of the websites. I find that by allowing the websites to be managed in such a way that his written work could be uploaded without reference to him, he has caused or allowed the letter in question to be published on the websites. I reject Mr Owen’s submission that there is no evidence whatsoever that links him to the publication on these websites of the offending material.
Public act.
Publishing material on the internet is a public act.[14] Mr Owen says that the definition of public act is not met because he “does not know, and could not reasonably be expected to know, the content” of the website. I reject that submission. I find that Mr Owen could reasonably be expected to know the content of the websites if he chose to conduct the management of the websites differently, so that employees and others did not have the freedom to post whatever material they chose on the websites. By choosing to operate the websites in that way, Mr Owen has implicitly authorised the publication of all material on those sites. I find that Mr Owen has allowed the letter in question to be published on the internet and that he has engaged in a public act.
[14]Jones v Toben [2002] FCA 1150 at [73] – [75]; Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512.
Capacity to incite hatred, serious contempt or severe ridicule.
I acknowledge that the letter is written in response to another letter published by the Gympie Times in 1998, raising issues to which Mr Owen took great exception. I note that the heading on the letter was not drafted by him and that the source of the quote forming the second paragraph has been removed. However, as I have previously said, by allowing the websites to operate in the way he did Mr Owen has implicitly authorised the publication of the letter in the form it appears and he has allowed its removal from the context in which it was originally drafted.
Publication on the internet can reach a very broad audience, including ordinary reasonable people who are fearful or ignorant about homosexuality and who are susceptible to being incited to hate or hold serious contempt for homosexuals. I find that the letter has the capacity to incite hatred or serious contempt for homosexuals because of their homosexuality. The letter is strongly worded.
I accept the submissions of the Applicants that an ordinary reasonable reader would understand the letter to say or infer that:
· homosexuality is in breach of the law of nature;
· homosexuals either have to leave the community or submit to the punishment of that community;
· homosexual conduct is an act no ignorant animal would commit;
· homosexuality is a declaration of war on a community and a danger to its security and therefore homosexuals may be destroyed or killed by that community;
· the Bible’s requirement to sentence a homosexual or anyone who condoned homosexuality to death is good and smarter than today’s laws;
· homosexuals steal other people’s children;
· homosexuals are perverts;
· making homosexuality acceptable and common place causes confusion amongst children and, where they have been ‘preyed on’ by homosexuals, to commit suicide;
· homosexuals are as savage as tigers in preying on children
· children only become homosexuals if they have been seduced or mistreated by homosexuals;
· homosexuals induce children to prostitute themselves;
· mothers should protect their children from homosexuals;
· parents should learn from animals and fight to the death to protect their children from homosexuals;
· tolerance of homosexuals in the law is evil and will destroy families;
· homosexuals hate the family and any religious person with “backbone”;
· the Koran’s imposition of a death sentence on homosexuals is good.
I find that the letter has the capacity to incite hatred or serious contempt for homosexuals because of their homosexuality.
Justification
Mr Owen has submitted that he is in any event entitled to the benefit of section 124A(2) of the Act.
On the basis of the highly inflammatory language used by Mr Owen and the offensive imputations, I cannot accept the submission that allowing the letter to be widely published was reasonable. I find that the letter is so ill-informed, misconceived and ignorant and so hurtful that it goes beyond the bounds of what tolerance should accommodate and is unreasonable.
As to whether the act was done in good faith, I note that Mr Owen professes not to have known that the letter was published on the websites. It therefore cannot be the case that he had a subjectively honest belief that publishing the letter on the internet was necessary or desirable to achieve public discussion of matters of public interest. We do not know what the intention of the person who uploaded the letter onto the websites may have been. It is not to the point that the letter was part of a public debate in the Gympie Times in 1998. The letter was dealt with in an entirely different way when it was uploaded onto the websites.
Mr Owen submits that matters in the public interest addressed by the letter, included responding to public commentary in the Gympie Times. That is not to the point in terms of this complaint. He also said that advocating the protection of young people from immoral activity and possible criminal activity was in the public interest. In theory that is the case, however, those issues do not appear to be addressed in any rational way in the letter. To the extent they appear they are subsumed by vitriol directed at homosexual people.
I find that the elements of section 124A(2) are not met.
I find that the Complaint is made out and that section 124A of the Act has been contravened.
Claimed Immunity From Suit
Although section 240 of the Local Government Act 1993 (Qld) is relied upon by Mr Owen in the defence filed on 30 April, 2007, the matter was not addressed at the hearing nor in his final submissions.
It is not clear, but Mr Owen may have abandoned this defence. In any event I accept the Applicant’s submissions that the only acts which could fall within this immunity are the comments allegedly made in Council on 23 August, 2005 and the provision of a report for consideration at the 6 September, 2005 Council meeting.
I agree that neither of the public acts were acts expressly or directly required or authorised by the Local Government Act 1993 (Qld). They are acts which can be done without any special or statutory authority.[15]
[15]Colbran v State of Queensland [2007] 2 QDR 235 at [35] – [46].
I find that the immunity in section 240 of the Local Government Act 1993 (Qld) does not apply to the two public acts in question. Mr Owen has not satisfied the Tribunal that the immunity applies.
Summary of Findings
I have found that:
(a) Mr Owen contravened section 124A of the Act by publishing the report to be tabled in Council on 6 September, 2005 and that Ms Menzies and Ms Bruce were subjected to the report.
(b) Mr Owen contravened section 124A of the Act by distributing a newsletter in September, 2005 to his constituents and that Ms Menzies and Ms Bruce were subjected to the newsletter.
(c) Mr Owen contravened section 124A of the Act by publishing a letter headed “No Human Rights for Non Humans” on the websites owenguns.com and lockstockandbarrel.org. Ms Bruce was subjected to the letter.
Remedies sought
The Applicants no longer seek an order for damages.
The Applicants seek the following orders from the Tribunal:
· an order requiring the Respondent not to commit further contraventions of section 124A of the Act;
· an order requiring the Respondent to publish a public apology for each of the contraventions;
· an order requiring the Respondent to undergo formal anti-discrimination awareness training; and
· costs; and
· further or other relief.
Mr Owen has submitted that in the event the Tribunal concludes that one or more of the allegations are proven the Tribunal should order, pursuant to section 209(d) of the Act, that he makes a private apology and retraction to the Applicants of the offending remarks.
The orders this Tribunal makes must fit the damage suffered by the Applicants. In cross examination both Ms Bruce and Ms Menzies said that they could not point to any discrimination or vilification they have suffered from the public as a direct result of Mr Owen’s comments or material. However, in evidence in chief Ms Menzies said that she was shocked and alarmed by the contents of the report to Council. Ms Bruce’s evidence is that she was offended by the report. In relation to the newsletter, Ms Menzies evidence is that she was appalled and concerned. Ms Bruce said that she felt unsafe after reading the newsletter. In relation to the letter on the websites, Ms Bruce said that she experienced intense anxiety. The feelings experienced by Ms Menzies and Ms Bruce all fall within the definition of damage in section 209 of the Act, namely: ‘the offence, embarrassment, humiliation, and intimidation suffered by the person.”
Although I note the power to make an order requiring the Respondent not to commit contraventions of the Act, I doubt its efficacy as an injunction in matters which involve judgments as to how ordinary and reasonable people might react to certain public acts, considerations of context and where a line might be drawn on questions of tolerance of differing views. I decline to make that order. Every citizen must in any event comply with the law, as must Mr Owen. Mr Owen must now be acquainted with the law and has the capacity to determine the law before acting in the future.
The Applicants have properly raised the fact that certain Courts have expressed reservations about ordering public apologies.[16] On the facts of this case, I can only think a public apology drafted by this Tribunal would be an artifice. One cannot make a person express regret where none exists. An alternative mode of public expression has been adopted by some courts in the form of a public acknowledgment of a person’s acts of vilification. This Decision is a matter of public record which achieves that end. I decline to make an order for a public apology.
[16]See the discussion in N Rees, S Rice and D Allen, Australian anti-discrimination law, 2nd ed. The Federation Press, Sydney, 2014 at [10.8.2] – [10.8.5].
Mr Owen has submitted that if allegations are proven, the Tribunal should order that he make a private apology and retraction to the Applicants. I understand by such a submission that he is prepared to give a genuine and unqualified expression of regret for the offence, hurt, humiliation and anxiety caused to Ms Menzies and Ms Bruce by his unlawful acts of vilification of homosexuals and further to retract the offending statements.
I order that by 9 January, 2015, Mr Owen write to Ms Menzies, care of her legal representatives, setting out that apology and retraction in his own words. The apology and retraction must relate to the report to Council tabled on 6 September, 2005 and the newsletter distributed in September, 2005.
I order that by 9 January, 2015, Mr Owen write to Ms Bruce, care of her legal representatives, setting out that apology and retraction in his own words. The apology and retraction must relate to the report to Council tabled on 6 September, 2005, the newsletter distributed in September, 2005 and the letter headed “No Human Rights for Non Humans”, published on the owenguns.com website and the lockstockandbarrel.org website.
There is no express power in the Act enabling the Tribunal to order that Mr Owen undertake Anti-Discrimination awareness training. I find that I am unable to make such an order.
As the Applicants have claimed costs, I order that they file and serve submissions in relation to costs by 16 January, 2015 and that Mr Owen file and serve any submissions in reply by 3 February, 2015. The Applicants are to file and serve any submissions in reply by 10 February, 2015.
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