Sunol v Kerslake (Appeal) - [2024] ACAT 35

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

SUNOL v KERSLAKE (Appeal) [2024] ACAT 35

AA 10/2023 (DT 35/2020 & DT 45/2020)

Catchwords: APPEAL – discrimination – appeal against findings of vilification based on respondent’s homosexuality – vilification by social media posts – alleged error by considering all 204 social media posts the subject of complaint after requesting respondent identify sample complaints – alleged error by relying on transcripts rather than listening to and viewing posts – alleged error in finding jurisdiction where the posts were downloaded in the ACT but uploaded in NSW – alleged error in finding jurisdiction where Human Rights Commission had not considered and decided the complaints on their merits – alleged error by not considering the respondent as an ordinary member of the public – alleged error by not taking into account appellant’s evidence he does not hate the respondent – alleged error by rejecting appellant’s defence that his posts about homosexuality were in the public interest and therefore not vilification – alleged error by awarding compensation, notwithstanding appellant’s brain injury – alleged error in tribunal consideration that 4 of the 14 offending posts had been removed – alleged error in tribunal consideration of the respondent’s victimisation of the appellant – alleged error in hearing the application where the appellant is a citizen of NSW - alleged error in tribunal consideration of the principles in Burns v Corbett – alleged error by awarding compensation in the absence of medical evidence of loss or damage – alleged error in failing to take into account appellant’s Christian beliefs – alleged error by failing to have regard to appellant’s right of freedom of expression and political communication – alleged failure in finding respondent was an aggrieved person – alleged failure in finding appellant’s posts were in relation to homosexual persons rather than the homosexual agenda – alleged failure in finding appellant made insulting comments on respondent’s site – alleged failure in finding vilification publications existed at the time of respondent’s complaints – alleged exercise of power for a purpose other than the purpose for which the power was conferred and/or exercising power unreasonably – no error found – appeal dismissed
Legislation cited: Anti-Discrimination Act 1977 (NSW) ss 49ZS, 49ZT
Constitution ss 75, 76
Discrimination Act 1991 ss 67, 68
Discrimination Amendment Act 2016 (repealed) s 41
Human Rights Commission Act 2005 ss 42, 43, 44, 45, 47, 53, 71, 88
Racial Discrimination Act 1975 (Cth)
Religious Tolerance Act 1977 (NSW) s 8
Judiciary Act 1903 (Cth) s 39

Cases cited:Bottrill v Sunol & Anor [2017] ACAT 81
Briginshaw v Briginshaw [1938] HCA 34
Burns v Corbett [2018] HCA 15
Burns v Corbett; Gaynor v Burns [2017] NSWCA 3
Burns v Gaynor [2015] NSWCATAD 211
Burns v Folau [2020] NSWCATAD 287
Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16
Corbett v Burns [2014] NSWCATAP 42
Dow Jones & Company Inc v Gutnick [2002] HCA 18
Farah v Sandilands [2021] ACAT 92
Gaynor v Burns [2023] NSWSC 847
Kerslake v Sunol [2022] ACAT 40
Kerslake v Sunol [2023] ACAT 18
Macca v ACT represented by emergency services agency [2017] ACAT 19
Meringnage v Interstate Enterprises Pty Ltd [2020] VSCA 30
Minister for Immigration and Citizenship v Li [2013] HCA 18
Wilson v Chan & Naylor Parramatta Pty Ltd [2020] NSWCA 213
Qantas Airways Ltd v Gama [2008] FCAFC 69
Rep v Clinch [2021] ACAT 106

List of
Texts/Papers cited: James Stellios, The Federal Judicature, (Lexis Nexis Butterworths, 2002)

Tribunal:Presidential Member G McCarthy
Senior Member D Stewart

Date of Orders:  24 May 2024
Date of Reasons for Decision:      24 May 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 10/2023

BETWEEN:

JOHN SUNOL
Appellant

AND:

TIM KERSLAKE
Respondent

APPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member D Stewart

DATE:24 May 2024

ORDER

The Tribunal orders that:

The appeal is dismissed.
In proceeding DT 35/2020, the appellant comply with orders 1 and 3 within 14 days and with orders 4 and 5 within 28 days.
In proceeding DT 45/2020, the appellant comply with orders 1 and 3 within 14 days and with order 4 within 28 days.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Tribunal

REASONS FOR DECISION

In the reasons below, a reference to ‘ACAT’ or ‘the tribunal’ refers to the ACT Civil and Administrative Tribunal generally. A reference to ‘Appeal Tribunal’ refers to the members who constituted the tribunal who heard this appeal. A reference to ‘Original Tribunal’ refers to the tribunal that made the orders that were under appeal.
The appeal arose from orders made by the Original Tribunal in response to two of four discrimination complaints referred by the Human Rights Commission (the Commission) to the tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (the HRC Act). The four complaints became the subject of proceedings DT 35, DT 42, DT 43, and DT 45 of 2020, respectively, which the Original Tribunal heard concurrently.
Each complaint arose from written statements or oral presentations “posted” by the appellant on the internet as social media posts.
In the first complaint, which became the subject of proceeding DT 35/2020, the respondent, Mr Kerslake, provided 41 documents which were the subject of the complaint. In each case, the respondent alleged the documents (or posts) amounted to vilification pursuant to section 67A of the Discrimination Act 1991 (the Discrimination Act). The Original Tribunal found 14 of the 41 posts to be vilification.[1]
[1] Kerslake v Sunol [2022] ACAT 40
By way of remedy, the Original Tribunal ordered (in summary) the appellant:
(a)to remove the posts from any social media account of any type that he owns or controls;
(b)not to repeat or continue the publication of the posts or posts in substantially the same terms;
(c)to post a statement on any social media account that he owns or controls over the next six months, and for a period of six months, which states as follows:
John Sunol has been found to have vilified a person and group of people on the ground of their homosexuality in some online posts he has made by the ACT Civil and Administrative Tribunal, see Kerslake v Sunol [2022] ACAT 40;
(d)to pay the respondent $4,000 by way of compensation for the vilification; and
(e)to pay Rod Swift, who was issued a subpoena in these proceedings at the request of the appellant, the sum of $1,474 as Rod Swift’s expenses in complying with the subpoena.
The Original Tribunal also revoked confidentiality orders it made on 21 August 2020, but maintained the confidentiality order it made in relation to a medical report written by Dr Parmegiani[2] about the appellant at the appellant’s request.
[2] The content of the medical report is the subject of a confidentiality order made by the Original Tribunal that remains in force
In the second complaint, which became the subject of proceeding DT 42/2020, the respondent provided two documents which were the subject of the complaint. In each case, the respondent alleged the documents (or posts) amounted to victimisation pursuant to section 68 of the Discrimination Act.
In the third complaint, which became the subject of proceeding DT 43/2020, the respondent provided 71 documents which were the subject of the complaint. In each case, the respondent alleged the documents (or posts) amounted to victimisation pursuant to section 68 of the Discrimination Act.
The original Tribunal dismissed the second and third complaints.
In the fourth complaint, which became the subject of proceeding DT 45/2020, the respondent provided 105 documents which were the subject of the complaint. In each case, the respondent alleged the documents (or posts) amounted to vilification pursuant to section 67A of the Discrimination Act. The Original Tribunal found nine of the 105 posts to be vilification.[3]
[3] Kerslake v Sunol [2022] ACAT 40
By way of remedy, the Original Tribunal ordered the appellant:
(a)to remove the posts from any social media account of any type that he owns or controls;
(b)not to repeat or continue the publication of the posts or posts in substantially the same terms;
(c)to post a statement on any social media account that he owns or controls over the next six months, and for a period of six months, which states as follows:
John Sunol has been found to have vilified a person and group of people on the ground of their homosexuality in some online posts he has made by the ACT Civil and Administrative Tribunal, see Kerslake v Sunol [2022] ACAT 40; and
(d)to pay the respondent $4,000 by way of compensation for the vilification.
The Original Tribunal also revoked confidentiality orders it made on 21 August 2020, but maintained the confidentiality order it made in relation to Dr Parmegiani’s report written about the appellant, at the appellant’s request.
The Original Tribunal dealt with the complaints by means of two published decisions. The first, Kerslake v Sunol [2022] ACAT 40, dealt with liability (the liability decision). The second, Kerslake v Sunol [2023] ACAT 18, dealt with remedy consequent upon the findings of vilification in proceedings DT 35/2020 and DT 45/2020 (the remedy decision).
The appellant appealed against the orders made in proceedings DT 35/2020 and DT 45/2020.
The appellant appealed on 29 grounds, which we deal with in turn.

Ground 1: failing to permit cross-examination of Mr Kerslake

The appellant alleged the Original Tribunal erred by failing to permit him to cross‑examine the respondent, Mr Kerslake. In response to this ground, we drew to the appellant’s attention that during the hearing before the Original Tribunal on 11 May 2021 discussion occurred regarding a proposal for no cross‑examination by either side following which the appellant agreed “to accede [to] that course”.[4]
[4] Transcript of original proceeding 11 May 2021, page 80, line 23
At the appeal hearing, the appellant commented on the context in which he agreed there be no cross-examination but no longer pressed ground 1.[5] We have therefore not considered it further.

Ground 2: requiring Mr Kerslake to ‘focus’ on a limited number of sample documents and then considering all complaints

[5] Transcript of proceeding 14 November 2023, page 83, line 36

The appellant submitted ground 2 goes to “an issue of natural justice”.[6] The appellant began by noting the Original Tribunal ordered the respondent to provide a “focused list” of publications that were the subject of the complaints. In response, the respondent provided a list of 13 publications from the 204 publications that made up the complaints in the four proceedings.
[6] Transcript of proceeding 13 November 2023, page 4, line 18
The appellant alleged the complaints, excluding the 13 publications provided, “were not considered in Hearing”[7] yet the Original Tribunal then proceeded “to adjudicate on all of them”.[8]
[7] Written submissions dated 20 October 2023 at [16]
[8] Written submissions dated 20 October 2023 at [32]
The appellant submitted it was not understood “that having dealt with the sample complaints, that it was then necessary to go back and extrapolate and deal with the rest of the complaints”.[9] In reply, we pointed out that the appellant’s written submissions in the original proceedings make it apparent the appellant (and everyone else) understood all of the complaints needed to be dealt with. In his written submissions, the appellant stated:
It is now appropriate to go through each of the 13 examples and then the balance of the 179 URLs.[10]
[9] Transcript of proceeding 13 November 2023, page 66, lines 4-6
[10] Written submissions dated 21 June 2021 at [52]
In response, the appellant submitted he was not given an opportunity to address the balance of the complaints orally at the original hearing, and this was procedurally unfair.[11]
[11] Transcript of proceeding 13 November 2023, page 66, lines 24-35
The submission was unpersuasive. At the appeal hearing, counsel for the appellant stated his understanding “the written submissions addressed everything in detail”.[12] He said he would check overnight that his understanding was correct before the hearing resumed the following day, but he did not return to the issue.
[12] Transcript of proceeding 13 November 2023, page 66, lines 36-37
In our view, the Original Tribunal could reasonably have presumed the appellant had said in his written submissions all he wished to say regarding the balance of the complaints. Also, where it is clear the appellant understood all complaints were in issue, the appellant does not point to anything to suggest he was unable to address any of the remaining complaints orally if he had wished to do so in addition to what had already been written.
In his written submissions on appeal, the appellant makes further complaint about the Commission referring the complaints to the tribunal without first considering them. That is not a question about procedural fairness and is the substance of ground 5 which we deal with below.
Ground 2 fails.

Ground 3: admitting evidence of Mr Kerslake regarding oral posts and posts communicated by other means including written posts

At the appeal hearing, the appellant explained ground 3 went to the Original Tribunal admitting into evidence transcripts prepared by the respondent of oral posts but not admitting the audio itself and not listening to the audio or video recordings.[13] The appellant submitted this was wrong because the video “offers the true context and nuances of what was said”.[14]
[13] Transcript of proceeding 13 November 2023, page 35, line 25
[14] Transcript of proceeding 13 November 2023, page 36, lines 5-6
With respect, it is for the appellant to prove error on the part of the Original Tribunal. We enquired about the evidence to prove the Original Tribunal admitted the transcript but not the video. The appellant submitted it was in the transcript of the original hearing, but we were not taken to anything in the transcript to support the submission. In particular, we were not taken to anything to suggest the appellant sought to tender the videos or oral posts but was not permitted to do so. We were not taken to any claim in the original hearing that the Original Tribunal needed to listen to the videos or oral posts to understand context or nuance, or that context or nuance mattered for the purpose of determining whether the posts constituted vilification.
We could see no error in the Original Tribunal relying on the transcripts prepared by the respondent, particularly where we were not taken to any suggestion the transcripts were inaccurate and where the appellant agreed to forgo cross‑examination of the respondent. Ground 3 fails.

Ground 4: misconstruing section 67A of the Discrimination Act

Ground 4 related to what is termed in the liability decision as the “extraterritorial operation” of the Discrimination Act. The appellant argued the tribunal did not have jurisdiction because the appellant resided in NSW and uploaded the material in NSW. The appellant submitted that to extend the operation of the Discrimination Act in these circumstances exceeded the legislative capacity of the Territory, or, alternatively, was outside the scope of the Discrimination Act when properly constructed.
The Original Tribunal considered and disagreed with this argument.[15] The Original Tribunal concluded, by reason the posts were published, accessed and read in the ACT, that there was a sufficient connection with the Territory to engage the Discrimination Act. Similarly, the Discrimination Act applied where the incitement, which was the relevant act for vilification, took place in the ACT. That was the conclusion in Bottrill v Sunol & Anor[16] (Bottrill) and was further supported by the analogous position of publication for the purpose of defamation.
[15] [2022] ACAT 40 at [59]-[67]
[16] [2017] ACAT 81
On appeal, the appellant submitted this finding of jurisdiction was erroneous on two general bases. The first related to the meaning of incitement and the three‑way relationship on which the action relied. The second relied on the policy impact of extending the jurisdictional reach of the Discrimination Act.
The appellant contended the jurisdiction of the tribunal, like that of the Commission before it, is limited by the nature of a vilification complaint. Vilification involves an incitement of others. It therefore necessarily involves consideration of what was done by the person claimed to have incited, and how that affected or could affect those claimed to have been incited. The impact on Mr Kerslake, as a resident in the ACT, is therefore not relevant (the appellant said), or at least not sufficiently relevant, to indicate there has been the necessary incitement.
The appellant relied for this argument on the interpretation of the equivalent Victorian provision considered in the decision of the Victorian Court of Appeal in Catch the Fire Ministries Inc v Islamic Council of Victoria Inc[17] (Catch the Fire). In that case, the various judgments of the Court emphasised that, unlike discrimination generally, vilification does not require a causal connection between the impugned conduct and the status of the person against whom it is directed. The emphasis is on the relationships between the inciter, those being incited, and those against whom the feelings of hatred, revulsion, serious contempt for, or serious ridicule (hereafter ‘hatred etc’) were felt.
[17] [2006] VSCA 284
We understood the appellant’s contention to be that, in the circumstances of this case, Catch the Fire emphasises that a finding of vilification involves whether the conduct of the appellant did or could lead others to develop feelings of hatred etc against the respondent individually or as a member of a group because of his or their sexuality. The location of the respondent within the ACT was not relevant to whether the relevant conduct had occurred and hence whether vilification had taken place. The appellant argued that, where the relevant conduct took place outside the ACT, there was insufficient connection with the ACT to establish legislative competence. Alternatively, the scope of the vilification provisions, once understood as applying to where the relevant conduct took place, did not give rise to an intention to extend the operation of the legislation beyond the ACT.
As part of this submission, the appellant contended the Original Tribunal was in error in extending the operation of the vilification provisions by drawing an analogy with defamation law. The appellant claimed Catch the Fire suggested there was an important distinction between defamation’s reliance on the impact on an individual and vilification’s focus on inciting hatred etc in others.[18]
[18] Transcript of proceeding 13 November 2023, page 55, line 32-35
The second reason put forward by the appellant for why the tribunal lacked jurisdiction in this matter related to the potentially unlimited reach of the vilification provisions. In Bottrill, the tribunal stated:
An example that illustrates the mischief being addressed is where a NSW resident in NSW stands near the border of the ACT, and yells into a loudspeaker – so that it can be heard in the ACT – vilifying remarks about classes of people that reside in the ACT or, as here, the complainant. This conduct would surely be proscribed by section 67A. The internet is the equivalent of the loudspeaker.[19]
[19] Bottrill at [74]
The appellant objected to this reasoning as adopted by the Original Tribunal in this matter.[20] It would, he said, mean the respondent could bring a vilification complaint against anyone in the world who took objection to homosexuality in ways similar to that taken by the appellant in these proceedings, regardless of the legal position in the country in which the conduct was engaged.
[20] Written submissions dated 20 October 2023 at [47]

The appellant’s submissions were similar to those described and rejected by the Tribunal in Bottrill.[21] The tribunal in that case recognised the potential territorial questions that may arise where there are at least three groups of people involved in any vilification matter: the person/s responsible for the communications in question; the person/s incited; and the person or groups potentially subjected to incited hatred etc. The tribunal preferred an interpretation of incitement, to constitute vilification, which included the receipt of any communication. Where a communication is capable of being read in the ACT, then the incitement occurs here. Alternatively, a sufficient connection is established to the extent the vilification provisions function to protect a resident of the ACT against the effects of vilification.
[21] Bottrill at [77]
The tribunal in Bottrill also rejected the submission it was not intended the vilification provisions have extraterritorial effect.
[G]iven that the clear purpose of the Discrimination Act is to protect ACT residents with the attributes identified, section 67A must be construed to proscribe, among other things, a non-private act that vilifies an ACT resident where the vilifying material is read in the ACT or is available to be read here. There is thus a clear intention to operate to proscribe conduct that vilifies an ACT resident even though the non-private act of the respondent is in NSW, so long as the material is read or arguably is capable of being read, in the ACT.[22]
[22] Bottrill at [76]
A similar argument about the limited geographical reach of the vilification provisions was considered by the tribunal in Farah v Sandilands[23] (Farah). In that case – involving an application for summary judgement – the tribunal considered whether radio broadcasts made in NSW but listened to in the ACT constituted a public act in the ACT and thus a basis for the tribunal’s jurisdiction. The respondents in that case submitted that vilification laws should be distinguished from other causes of action such as defamation which were focused on the effects or results of the conduct in question. Where the legislative intent was to provide relief against the effects of impugned conduct, then jurisdiction would extend to where those effects were felt in the ACT. In cases of vilification, by contrast, there was no need to establish that anyone had been harmed by the hatred, etc, or that any other person had in fact been incited by the conduct in question. Vilification laws, as described by Nettle JA in Catch the Fire, were “prophylactic” in that they are “focused on preventing or warding off conduct rather [than] redressing its effects”.[24] The respondent in Farah therefore submitted that the tribunal’s jurisdiction depended upon where the conduct in question had taken place.
[23] [2021] ACAT 92
[24] Farah at [53]
The Tribunal in Farah rejected the characterisation of vilification provisions as exclusively conduct based and that the law of defamation had no relevance. Incitement required both an audience and the potential for the conduct in question to affect that audience. The approach in Bottrill was not so clearly in error that, for the purposes of summary dismissal, the applicant's arguments were bound to fail.
For the reasons given in that case and that follow, we agree with the position in Bottrill as relied upon by the Original Tribunal in this case. We do not agree there is any inconsistency with the judgements in Catch the Fire and the tripartite nature of vilification described in that case.
The tribunal’s jurisdiction in this matter derives from a reference to it from the Commission under section 53A of the HRC Act which, in turn, is derived from the ability of the Commission to deal with discrimination complaints under the HRC Act. A complaint can be made by any person aggrieved by the conduct (section 43(1)(a)) or for whom the conduct is a matter of genuine concern because of the conduct's potential adverse effect on their interests (sections 43(1)(f) and 43(2)). The question whether the applicant is a person aggrieved is discussed further below in relation to ground 19.
In this matter, the respondent made several complaints about the appellant’s statements which were claimed to incite or were likely to, incite hatred etc. That hatred etc was directed either towards the respondent personally or towards a group of people of which the respondent claimed to be a member. The respondent is therefore claiming to be, or likely to be, either directly the subject of hatred etc or part of a group which is subjected to hatred etc.
It can be accepted that each communication should be dealt with separately in determining whether it can properly be the subject of a complaint, and ultimately a reference to the tribunal. However, as the decision in Catch the Fire and others indicate, vilification provides a form of redress for members of groups who are potentially subject to hatred etc. There is no need to establish the respondent was personally targeted or the subject of the posts in question.
In this case it is the residency of the applicant in the Territory which provides a sufficient connection with the Territory to enable the Territory legislature to provide the applicant with a form of redress against conduct which aggrieves them, or which potentially adversely affects their interests, in ways protected under the Discrimination Act. It is the purpose of the Discrimination Act to provide a form of redress for such a resident which justifies an interpretation of that Act which includes within its scope to conduct engaged in outside of the Territory. That scope therefore includes, as in this case, where material was uploaded by a person who was situated outside the Territory at the time of uploading but downloaded or available to be downloaded inside the Territory.
In our view, this position is supported by the approach taken to publication in defamation actions. Defamation depends not on the impact on an applicant of a person’s statements but the damage to the applicant’s reputation. Damage to reputation involves an assessment of how a statement or conduct of the person has or may have changed the beliefs or views of others about the person claiming to have been defamed. Like vilification, it protects the relationship between the applicant and those that may have been influenced by the views expressed by the person. We therefore do not find any error in drawing an analogy with defamation law in discussing vilification's potential application to conduct in other jurisdictions.
As in defamation, the Territory has the capacity to pass laws which subject individuals located outside the Territory to potential liability for communications which can be accessed in the Territory. The appellant did not put forward any reason to limit a sufficient connection with the Territory to where an individual is identified in the communications in question. Similarly, the absence of that limitation in the vilification provisions supports the operation of those provisions to protect against the incitement of hatred etc in communications received in the Territory. The appellant has not identified any error in the reasoning used which considered, but rejected, the arguments put forward by the appellant. We are satisfied there was no error by the Original Tribunal in finding it had jurisdiction.
Ground 4 fails.

Ground 5: misconstruing section 53A of the HRC Act

The appellant contended the Commission referred the complaints in the four proceedings to the tribunal without first considering them. It noted there was no statement of reasons provided by the Commissioner regarding the merits of the complaints and that the tribunal was asked to consider the complaints for the first time without the benefit of any merit decision on the part of the Commission as “the Administrative Decision Maker below”.[25]
[25] Written submissions dated 20 October 2023, at [26]
The appellant submitted the Commission was required to do more than simply refer the complaints on to the Tribunal. It was required to consider them under section 45 of the HRC Act and erred by not doing so. The appellant submitted that where the Commission failed to consider and determine the complaints on their merits, so the tribunal did not have jurisdiction to do so.
The appellant also alleged noncompliance with section 45(2)(d) of the HRC Act by the Commission failing to provide the respondent with a discrimination referral statement. The appellant referred to paragraph 47 of the Original Tribunal’s liability decision in which it refers to the letter to the appellant dated 27 May 2020 and describes the letter as a discrimination referral statement for the purposes of section 53A(1)(a)(i). The appellant contended:
Now, a letter to Mr Sunol can’t be a discrimination referral statement. It can only be a letter in the context of section 45. It must be a statement to Mr Kerslake, but there’s no evidence of any such statement ever having been issued by the tribunal.[26] [27]
[26] Transcript of proceeding 14 November 2023, page 89, lines 16-19
[27] We presume will the reference to “the tribunal” was intended to be “the Commission”
Section 45 of the HRC Act states:
45 Commission’s obligation to be prompt and efficient
(1)The commission must deal with complaints promptly and efficiently.
(2)In particular, the commission must—
(a)allocate each complaint as soon as possible; and
(b)if the commission decides to consider the complaint by a commission-initiated consideration under section 48 (2)—tell the person who made the complaint, in writing, about the decision and that the person will not receive progress reports about the consideration; and
(c)unless subsection (4) applies—before considering the complaint, tell the complainant and the person complained about, in writing, that the complaint is to be considered; and
(d)if the complaint is a discrimination complaint (other than a matter under commission-initiated consideration) and the commission decides not to refer the complaint for conciliation—tell the complainant, in writing, that the complaint will not be referred for conciliation and include a discrimination referral statement with the notice; and
…
(3)However, the commission need not consider a complaint if satisfied that—
(a)the complaint—
(i)is frivolous, vexatious or not made honestly; or
(ii)lacks substance; or
(iii)is to be referred to another statutory officer-holder or dealt with by a national board under the; or
(iv)cannot be made by the complainant under the Act; or
(v)cannot otherwise be made under the Act; or
(b)the complainant has been given a reasonable explanation and the complaint needs no further action by the commission; or
(c)the matters raised by the complaint have been, or are being, dealt with by a court or tribunal or have been dealt with by the commission; or
(d)the complainant withdraws the complaint, whether in writing or otherwise, before notice of the complaint has been given to the person complained about.
(4)Also, the commission need not give notice under subsection (2) to the person complained of if, because of subsection (3), it decides—
(a)not to consider the complaint; or
(b)not to consider the complaint further.
Section 53A of the HRC Act 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.
(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.
NoteThe commission must also close the complaint (see s 78 (2) (d)).
(3)In this section:
complaint does not include a commission-initiated discrimination matter.
The first limb of ground 5 repeats the appellant’s submission to the Original Tribunal, to which the appellant added a submission that the Commission failed to provide him with procedural fairness by not investigating and reaching a conclusion in response to the respondent’s complaints before the complaints were referred to the tribunal.
The Original Tribunal rejected both submissions, and provided reasons for doing so in its liability decision:
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.[28]
[28] [2022] ACAT 40 at [52]
The appellant contended, on appeal, the Original Tribunal erred when finding the Commission did not need to consider the complaints. The appellant submitted section 45 required it to do so. The appellant submitted that, whilst there is not an express requirement for consideration of complaints, it is a requirement that should be inferred from section 45(3)(b), (c) and (d). The appellant then noted the Original Tribunal’s “finding” at paragraph 53 of its liability decision – that the Commission did not consider the complaints – which, he submitted, was a failure to exercise jurisdiction. The appellant submitted the Commission had a duty to “filter” the complaints that came through to the tribunal, “as a matter of statutory procedural fairness”,[29] and that where this alleged procedure had not been followed, the Original Tribunal lacked jurisdiction to consider the complaints.
[29] Transcript of proceeding 14 November 2023, page 88, lines 39-41
The appellant’s submissions were unpersuasive. In our view, nothing in section 45, expressly or inferentially, requires the Commission to consider a complaint on the merits through to finality. Section 45(2)(b) is irrelevant because the Commission did not decide to consider the respondent’s complaints as a Commission-initiated consideration. Save for in a circumstance described in section 45(4), section 45(2)(c) contemplates the Commission considering the complaint but says nothing about the nature or scope of the consideration. Section 45(2)(d) contemplates the Commission considering the complaint for the purpose of determining whether to refer it for conciliation. If it decides not to do so, it must tell the complainant of that decision in writing and include a discrimination referral statement.
In this case, the Commission obtained a written response from the appellant to the respondent’s complaint and provided it to the respondent. Upon the respondent advising the response did not resolve his complaint and the appellant advising he did not wish to participate further in conciliation, the Commission ended the conciliation. It then advised the respondent of his rights to refer his complaint to the tribunal “for determination”. Referring to the second limb of ground 5, in our view, the information provided by the Commission satisfied the definition of “discrimination referral statement” in section 88 of the HRC Act.
True, as the appellant pointed out, a similar letter sent to the appellant did not constitute a discrimination referral statement. The Original Tribunal apparently erred in paragraph 47 of its liability decision by describing the letter to the appellant as a discrimination referral statement, rather than the letter to the respondent, but nothing turns on that error. All that can be said is the Original Tribunal should have referred to the corresponding letter of the same date sent to the respondent, and to which the Original Tribunal referred in paragraphs 47 and 48 of its liability decision.
Nothing in section 47, nor any other section of the HRC Act, required the Commission to consider the complaints or any of them on the merits. Indeed, the HRC Act is to the contrary. For example, section 47 provides for “how the commission deals with the complaints it receives”. It provides steps which it “may, but need not” go through being allocation, consideration, conciliation, closure and reporting. As the Original Tribunal pointed out in its liability decision at paragraphs 43, 50 and 51, if a complainant is given a discrimination referral statement, it is then for the complainant to decide whether to request the Commission to refer the complaint (or complaints) to the tribunal: from the Commission’s viewpoint, consideration of the complaints is otherwise closed.
The appellant characterises the Original Tribunal’s statement at paragraph 53 of its liability decision, that the Commission did not consider the complaints, as a “finding”. In our view, that submission misrepresents the Original Tribunal’s statement which was made in the context of rejecting a submission there was a breach of procedural fairness by the Commission not considering and determining the complaints on their merits.
For these reasons, ground 5 fails.

Ground 6: treating Mr Kerslake as an ordinary reasonable member of the public

Ground 6 relied on the affidavit of the appellant, sworn 27 January 2021, in which he deposed to a “longitudinal history of attack”[30] by the respondent and Mr Swift over a two decade period, with a collateral purpose to harm, tarnish, attack, and ridicule the appellant. The appellant alleged the Original Tribunal erred “in its failure to consider the [respondent] and the affidavit (sic) of Rod Swift as ordinary, reasonable members of the public”.[31]
[30] Written submissions dated 20 October 2023 at [52]
[31] Written submissions dated 20 October 2023 at [55]
The appellant alleged the respondent and Mr Swift entered evidence in their applications “in a bid to tarnish the [appellant] in the eyes of the Tribunal”.[32] Complaint was again made about a denial of the appellant’s wish to cross examine the respondent or Mr Swift.
[32] Written submissions dated 20 October 2023 at [53]
Ground 6 was not developed in oral submissions. Counsel for the appellant referred to it[33] only in the context of his discussion regarding section 67A of the Discrimination Act which has no bearing or connection with the written submissions.
[33] Transcript of proceeding 13 November 2023, page 48, line 10
Referring then to the written submissions, we were not persuaded the Original Tribunal erred in the way suggested. We were not taken to anything in the Original Tribunal’s liability decision or remedy decision or the transcript of the proceedings to demonstrate the alleged error. We accept, as did the Original Tribunal,[34] there has been a long term and public debate between the appellant, the respondent and their respective supporters over some 20 years, but the appellant does not point to anything that, he says, evidences the Original Tribunal erred in its consideration of the respondent’s claim. As best we can ascertain, the Original Tribunal considered the respondent’s claim on its merits and according to law without regard to any improper or collateral purpose the respondent or Mr Swift might have had for making their complaints. We were not taken to anything in the transcript of the proceedings before the Original Tribunal to suggest otherwise.
[34] [2022] ACAT 40 at [149]

The appellant’s contention the Original Tribunal in some way facilitated an improper purpose by denying cross-examination of the respondent or Mr Swift is contradicted by the appellant’s agreement not to cross-examine either person, as discussed in response to ground 1.
Ground 6 fails.

Ground 7: finding Mr Kerslake was vilified where he was not named or identified

Ground 7 related to the evidence indicating the respondent was the subject of various posts made by the appellant. The written submissions suggest three videos in which the respondent’s first name and ‘internet handles’ are referred to are not among the 13 sample posts discussed above in relation to ground 2. The appellant contended there was therefore insufficient evidence for the identity of the respondent to be established from the posts in question.[35]
[35] Written submissions dated 20 October 2023 at [64]
This ground raised several alleged errors which are the subject of other grounds of appeal. The question whether the Original Tribunal was in error in going beyond the 13 sample posts is considered above in ground 2. Whether the Original Tribunal made an error in finding vilification could occur in relation to posts which did not identify the respondent is considered above in relation to ground 4. Whether the Original Tribunal was in error in finding the respondent was a person aggrieved or otherwise able to bring the complaints despite not being identified in the posts found to be vilification is considered below in relation to grounds 15 and 19.
At the appeal hearing, counsel for the appellant referred to a recent decision of Burns v Gaynor before Senior Magistrate McIntyre in which, counsel said, complaints were dismissed on the grounds that the complainant in that case was not mentioned in posts made in another State.[36] We do not understand this to be a reference to the 2015 decision of Burns v Gaynor[37] (Burns v Gaynor) which was the original decision subject to appeal in the High Court decision of Burns v Corbett[38] (Burns v Corbett) and which is considered below in relation to ground 14. We were not directed to any citation for this recent decision, and it was not included in the list of authorities provided on the first day of the appeal hearing. Counsel referred to the recent decision being referred to by the Original Tribunal in the remedy decision. However, no case matching counsel’s description of the recent decision is cited in that decision. There is reference in the decision of Gaynor v Burns[39] to a decision by Magistrate McIntyre in which complaints made by Mr Burns about comments by Mr Gaynor were not made out and the proceedings were dismissed. However, there is no citation to a published decision referred to in that case.
[36] Transcript of proceedings 13 November 2023 at p 48, lines 36-42
[37] [2015] NSWCATAD 211
[38] [2018] HCA 15
[39] [2023] NSWSC 847 at [11]
We were therefore not directed to any authority which suggests the Original Tribunal was in error in establishing vilification despite the posts in question not identifying the respondent. Even if it was accepted that posts identifying the respondent were not properly in evidence before the Original Tribunal, in our view it was open to the Original Tribunal to rely on posts not identifying the respondent in its findings of liability for vilification. Any error in reference by the Original Tribunal to posts identifying the respondent was not material to either the liability decision or the orders made. We therefore do not reach any conclusions on whether evidence of posts identifying the respondent were admitted in error or there was otherwise insufficient evidence for the identity of the respondent to be established from the posts in question.
There is no material error identified in ground 7.

Ground 8: failing to accept Mr Sunol’s evidence that he does not hate Mr Kerslake

In ground 8, the appellant contended the Original Tribunal erred by not accepting the appellant’s uncontested evidence that he held no hatred of the respondent. He referred to his affidavit sworn 21 January 2021 in support of a claim the appellant “expresses no anima towards either the complainant or homosexuals”.[40] The appellant also contended there was “no evidence of incitement towards [hatred etc] ... of the complainant either alone or as member of that cognate group”.[41]
[40] Written submissions dated 20 October 2023 at [65]
[41] Written submissions dated 20 October 2023 at [66]
The written submissions relating to ground 8 refer to the appellant’s affidavit which refers to posts by the appellant in which he states he does not hate gay people.[42] The Original Tribunal referred to these posts, as well as other evidence the appellant does not hate homosexuals, in discussing freedom of speech and religion.[43] The Original Tribunal stated:
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.[44]
[42] See written submissions dated 20 October 2023 at [65] referring to appellant's affidavit 27 January 2021 pages 243-245
[43] Written submissions dated 20 October 2023 at [115]
[44] [2022] ACAT 40 at [119]
The Original Tribunal then went on to discuss whether the appellant's statements fell into an exception in section 67A(2)(c) of the Discrimination Act as being in the public interest.
The Original Tribunal, in discussing the elements of the test for vilification, referred to the objective nature of the test for vilification under section 67A(1) of the Discrimination Act:
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”. 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.[45] (citations omitted)
[45] [2022] ACAT 40 at [73]
The Original Tribunal has therefore not failed to recognise or accept the appellant held no hatred etc towards either the respondent or homosexuals. To the contrary, the Original Tribunal referred to the evidence provided and considered the extent to which it was relevant to a finding of vilification.
To demonstrate the Original Tribunal erred in its application of the relevant legal principles to the posts in question, counsel for the appellant took us through the posts which were held by the Original Tribunal to constitute vilification. Relevant to ground 8 is counsel’s discussion of one of the posts found to be vilification:
“I am a homophobic bigot and I revel in it. I’m the happy little homophobe living in my joy. ... when it comes to sexuality I’m definitely a bigot”. Mr Sunol responds to someone who agrees with him: “That is great. Why don’t we go out and recruit people on mass to become homophobic. This will upset a few people but I’m not worried about that.[46]
[46] [2022] ACAT 40 at [297]. Counsel also referred to C079 (transcript of proceedings 13 November 2023, page 45, lines 26-27), and C080 (transcript of proceedings 13 November 2023, page 47, lines 36-37), and C095 (transcript of proceedings 13 November 2023, page 47, lines 41-43)
Counsel for the appellant submitted the appellant's statement “Why don’t we go out and recruit people on mass to become homophobic” could not constitute a form of incitement of hatred etc.[47] We do not agree. In our view the statement was an encouragement for others to take on homophobic views and not a genuine attempt to solicit the views of others.
[47] Transcript of proceedings 13 November 2023, page 34, lines 23-29
Counsel for the appellant also suggested the Original Tribunal, in suggesting the appellant “[was] using homophobe to mean someone who hates homosexuals”[48] disregarded the statements of the appellant, including in replies to the post in question, that he did not hate homosexuals.[49]
[48] [2022] ACAT 40 at [298]
[49] Transcript of proceedings 13 November 2023, page 37, lines 26-27
In discussing this post, the Original Tribunal stated:
As discussed, the fact that Mr Sunol self-describes as homophobic and a bigot raises difficult issues. These terms have negative connotations, and therefore are likely to be seen as Mr Sunol insulting himself. In this context it seems that Mr Sunol is using homophobe to mean someone who hates homosexuals. This is supported by the suggestion that he will recruit people on mass to become homophobic; this does not make sense if it is recruiting people to be afraid of homosexuals. He is therefore suggesting the recruitment of people to hate homosexuals. This is the incitement of hatred etc. of homosexual people, including Mr Kerslake, on the ground of their homosexuality. This is not a reasonable, that is rational and proportionate discussion of any subject, let alone any religious belief. I find this is therefore vilification.[50]
[50] [2022] ACAT 40 at [298]
Earlier, after setting out the general approach to whether the posts incited hatred etc, the Original Tribunal stated:
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.[51]
[51] [2022] ACAT 40 at [86]-[87]
We understand the Original Tribunal’s statements to reflect the objective meaning of the words used by the appellant from the perspective of ordinary reasonable members of the public.[52]
[52] See also the discussion of the appropriate audience: [2022] ACAT 40 at [102]
At the appeal hearing, counsel for the appellant referred to Catch the Fire as relevant also to this ground, although the Appeal Tribunal was not directed to any specific passages from the case which might be relevant to this ground.[53]
[53] Transcript of proceedings 13 November 2023, at page 49, line 31
Catch the Fire considered a claim for vilification under section 8 of the Racial andReligious Tolerance Act 2001 (Vic), the equivalent to section 67A(1)(e) of the Discrimination Act. The case considered a number of statements made by the respondent in that case when conducting a seminar on the religion of Islam.
In summing up his views of section 8, Neave JA summarised the principles relevant to a vilification claim as follows:
·The phrase “on the grounds of religious belief” does not refer to the ground which caused the alleged inciter to act, but to the ground on which people exposed to the alleged inciter’s words or conduct were incited to hatred, or other relevant emotion against another person or group.
·It is not necessary to show that the audience was actually incited to hatred, serious contempt for, or revulsion or severe ridicule of, a person or class of persons, on the grounds of their religious belief. A breach of s.8 occurs if the words or conduct has the tendency to incite that response.
·In considering whether s.8 has been breached, it is necessary to take account of the effect of the words or conduct on an ordinary member of the audience to which they were directed.[54]
[54] Catch the Fire at [160]
The first dot point suggests the ground or motivation of the appellant in making the posts in question was not relevant to the question whether the persons incited by the posts could develop hatred etc against homosexuals because of their sexuality. This is consistent with the approach taken by the Original Tribunal.
The second dot point suggests evidence that someone was incited to hatred etc is not necessary. This is again consistent with the Original Tribunal's consideration of the possible effect of the posts.
The third dot point is perhaps more significant. How an ordinary member of the audience is affected by words or conduct depends on the context in which the words were used. The appellant’s statements that he does not hate homosexuals were part of that context, and hence could have affected how an ordinary member of the audience would react to the other comments made by the appellant. The statements considered in Catch the Fire were made at a seminar which also included statements exhorting participants to love and ‘witness’ Muslims. The tribunal in that case referred only to some of these statements in considering whether the statements were engaged in reasonably for a religious purpose so as to come within the exception to vilification. The judgement in Catch the Fire was critical of the failure of the tribunal also to consider the impact of these statements on the question of incitement.
However, the judgement in Catch the Fire does not suggest references to the need to love Muslims were sufficient to exonerate other statements made during the seminar. Vilification extends to the incitement of feelings other than hatred, including revulsion, serious contempt for, or severe ridicule which may not be inconsistent with the desire to love expressed in the seminar. The statements also have to be considered in their context, in that case as part of an oral seminar where the audience would be influenced by overall impressions. As Neave JA stated:
I agree that these statements must be taken into account in deciding whether s.8 was breached. I should make it clear however that I do not regard the invocation to love Muslims, while attacking their beliefs, as necessarily inconsistent with a breach of s.8. To do so would encourage those who incite hatred or other relevant emotion to combine egregious statements about a particular racial or religious group, with expressions of feigned concern for the targeted group. It cannot be overlooked that historically words inciting hatred or contempt of members of a racial or religious group have often been accompanied by expressions of real or assumed concern about the persons against hatred or other relevant emotion is incited.[55]
[55] Catch the Fire at [196]
In our view, this approach is consistent with the decision of the Original Tribunal in which the senior member discussed the context of the posts in question and the relevance of the various audiences to which the comments are directed.[56]
[56] See, eg, [2022] ACAT 40 at [96]-[102]
No error has been established in ground 8.

Ground 9: finding Mr Sunol did not have an arguable defence

Ground 9 contended the Original Tribunal erred by finding the appellant did not have an arguable defence. The appellant drew on the Original Tribunal’s finding that “it is not correct ‘that expressions of [the appellant’s] religious beliefs could not be vilification’”.[57] This ground contrasted the approach taken by the Original Tribunal in determining the extraterritorial application of the vilification provisions[58] with the availability of any defence of expression of religious belief. The appellant contended the Original Tribunal, in paragraph 121, “reverts to a strict limitation, asserting that in the absence of any ‘express’, i.e. statutory exception, then there is no arguable defence”.[59]
[57] [2022] ACAT 40 at [121]. See Written submissions dated 20 October 2024 at [67]
[58] The approach of the Original Tribunal to the issue of extraterritorial operation of the vilification provisions is dealt with in ground 4 above
[59] Written submissions dated 20 October 2023 at [70]
We do not accept the appellant’s characterisation of paragraph 121 which states:
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)I, which I have discussed. None of the other exceptions in Part 4 or Part 10 of the Discrimination Act are relevant.[60]
[60] [2022] ACAT 40 at [121]
In this paragraph, the Original Tribunal was disagreeing with the submission that expression of religious belief was a complete defence to any claim for vilification. Instead, expression of religious belief can – but need not necessarily – fall within the exception to vilification provided for in subsection 67A(2) which states:
(2) However, it is not unlawful to—
(a)make a fair report about an act mentioned in subsection (1); or
(b)communicate, distribute or disseminate any matter consisting of a publication that is subject to a defence of absolute privilege in a proceeding for defamation; or
(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.
The Original Tribunal discusses the interpretation and application of the exception in section 67A(2) at length,[61] finding that for expressions of religious belief to fall within the exception –
the comment 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.[62]
[61] [2022] ACAT 40 at [110]-[132]
[62] [2022] ACAT 40 at [120]
The Original Tribunal denied any basis for implying any further or more express exception from the terms of section 67A, either based on the terms of the Discrimination Act[63] or other sources including the Constitution or the HRC Act.[64] That analysis does not rely on the absence of any ‘express’ exception.
[63] [2022] ACAT 40 at [123]
[64] [2022] ACAT 40 at [125]-[130]
The Appeal Tribunal was not taken to any error by the Original Tribunal in its analysis. At the appeal hearing, counsel deferred to his written submissions on this ground and did not return to it.[65] Ground 9 fails.

Ground 10: failing to have regard to the evidence of Dr Parmegiani

[65] Transcript of proceeding 13 November 2023, page 50, lines 36-38

The appellant submitted the Original Tribunal’s decision “is entirely unsatisfactory and attempts to ‘bury’ the profound evidence on an uncontested basis of the mental condition of the [appellant]”.[66] In support, the appellant submitted the only references to the evidence of Dr Parmegiani’s report are at paragraphs 33 and 68 of the remedy decision and that the Original Tribunal “entirely disregards the report, concluding ‘I do not think it provides a basis for not providing remedies to the applicant’ without further comment”.[67]
[66] Written submissions dated 20 October 2023 at [74]-[75]
[67] Written submissions dated 20 October 2023 at [74]

At hearing, the appellant referred to details in Dr Parmegiani’s report regarding the appellant’s personal history including his medical and employment history. Dr Parmegiani’s report also details interactions between the appellant and the respondent in the 1990s when the appellant was studying homosexual activism, and the respondent was taking offence at the appellant’s homophobic attitudes.
The appellant’s counsel also quoted Dr Parmegiani’s reported belief that the appellant’s “basic tenants and beliefs of his religion which were then expressed in a rather unplanned and disinhibited manner were driven by the persistent and lasting effects of [a] traumatic brain injury”.[68]
[68] Transcript of proceeding 13 November 2023, page 14, lines 16-20
With reliance on the brain injury, the appellant submitted it was unreasonable, unfair and an error of law for the Original Tribunal to find in the circumstances there had been a contravention of the Discrimination Act.[69]
[69] Transcript of proceeding 13 November 2023, page 17, lines 34-37
The appellant also submitted, with reliance on Dr Parmegiani’s report, the Original Tribunal erred in its liability decision by not focusing on the issue of causation, namely it failed to realise and determine the appellant’s expression of homophobic beliefs were driven by his brain injury and not hatred of the respondent or homosexuals generally. In particular, the appellant drew on the statements in Catch the Fire regarding causation that, the appellant submitted, the Original Tribunal failed to apply.
By way of an alleged additional error, the appellant acknowledged Dr Parmegiani’s report was provided after the Original Tribunal published its liability decision but submitted the Original Tribunal erred by not going back and reviewing its findings on liability – and finding the appellant was not liable – after considering Dr Parmegiani’s report.[70]
[70] Transcript of proceeding 13 November 2023, page 23, lines 29-38
The appellant also submitted the Original Tribunal erred by ordering the appellant to pay damages to the respondent pursuant to section 53E of the HRC Act in circumstances where, on the uncontradicted opinion of Dr Parmegiani, the appellant’s conduct was caused by his brain injury. The appellant described the award of damages as “an unreasonable exercise of discretion”.[71] The appellant also contended it was not open for the Original Tribunal to award damages in light of Dr Parmegiani’s report.[72]
[71] Transcript of proceeding 13 November 2023, page 24, lines 15-16
[72] Transcript of proceeding 13 November 2023, page 27, lines 5-7
We begin with the error alleged in ground 10: failure to have regard to the evidence of Dr Parmegiani. In his written submissions, the appellant alleged paragraphs 33 and 68 are “the only reference” to the evidence of Dr Parmegiani and that the Original Tribunal “entirely disregards the report”, noting only its view at paragraph 68 that the report does not provide a basis for providing remedies to the applicant. The appellant submitted this finding was made “without further comment”.
The submissions are factually wrong. The Original Tribunal provided a detailed confidential appendix to its remedy decision in which it dealt at length with Dr Parmegiani’s report and said at paragraph 68 the report “explains various things”. The contention the Original Tribunal failed to have regard to the evidence of Dr Parmegiani is plainly wrong on the face of the decision.
The appellant’s submissions regarding Dr Parmegiani’s report that were outside ground 10, as pleaded, were also unpersuasive.
Regarding the claim that the Original Tribunal erred by not setting aside its findings in its liability decision after receiving Dr Parmegiani’s report, we asked the appellant if the Original Tribunal was asked to do so. We were not taken to anything to suggest that was done, the appellant stating only:
The Tribunal was asked to review the whole matter in the light of Dr Parmegiani’s report. But let me put this alternative submission, that even if that-even if the Tribunal member had no duty to go back and revisit the findings or the preliminary findings that he had made, in our respectful submission, he was and should have taken into account the report of Dr Parmegiani at the level of the orders that should be made.[73]
[73] Transcript of proceeding 13 November 2023, page 23, line 44 to page 24, line 2
We were not taken to any evidence the Original Tribunal “was asked to review the whole matter” or, in particular, its findings in the liability decision. Indeed, to the contrary, the remedy decision and the confidential appendix dealing with the report of Dr Parmegiani both report the appellant submitting only that the Original Tribunal should take the appellant’s health into account “in relation to the remedies to be ordered”.[74]
[74] [2023] ACAT 18 at [68] and confidential appendix at [1]
Regarding the claim that the Original Tribunal erred by not setting aside its findings in its liability decision, we see no error in the Original Tribunal not doing something it was not asked to do.
The submission it was unreasonable for the Original Tribunal to award damages, having regard to Dr Parmegiani’s report, or that it had a duty not to award damages, was equally unpersuasive. As the appellant acknowledged, whether to award damages was a discretionary decision for the Original Tribunal pursuant to section 53E of the HRC Act. As the Original Tribunal pointed out, Dr Parmegiani does not suggest the appellant lacks capacity to make decisions about what he posts online or to appreciate the wrongful nature of some of his acts. As the Original Tribunal succinctly put it, Dr Parmegiani provided some explanation for the appellant’s conduct, but the explanation does not provide a legal excuse for the conduct nor a basis for denying remedies to the respondent. As Dr Parmegiani pointed out, whilst the appellant regrets getting involved with ‘these troublemakers’, which we presume to mean the respondent and others, he still enjoyed participating in social media on the Internet; he actively participated in debates about homosexuality; and he expressly acknowledged what the consequences might be, namely that he would be found to have vilified others and be ordered to remedy it.
During the appeal hearing, the appellant did not challenge any of the Original Tribunal’s reasoning for concluding, as a matter of discretion, remedies could be awarded notwithstanding the appellant’s brain injury. We see no error in the Original Tribunal’s reasoning. Where the reasoning was not the subject of challenge, we see no basis for finding the Original Tribunal’s exercise of its discretion to award damages was unreasonable or to find the Original Tribunal had a duty not to award damages and failed to discharge that duty. Ground 10 fails.

Ground 11: failing to have regard to the removal of the posts prior to publication of the decision

With reliance on the affidavit of his solicitor,[75] the appellant said four of the 14 posts in proceeding DT 35/2020 found to be vilification in the Original Tribunal’s liability decision were no longer in publication and belonged to suspended accounts.
[75] Affidavit of Robert Balzola sworn 1 December 2022 at [5]
The appellant submitted the Original Tribunal erred by not taking removal of the four posts into consideration. In answer to our enquiry about evidence to show the Original Tribunal had failed to have regard to the posts been taken down, the appellant referred to paragraph 72 of the remedy decision where the Original Tribunal noted the appellant had not made any apology or any remedy for his actions but makes no reference to the fact some of the offending posts had been taken down.[76]
[76] Transcript of proceeding 13 November 2023 page 51, lines 11-14
This submission was contrary to the fact. In the remedy decision, the Original Tribunal noted the appellant’s argument that some of the posts had been removed and the accounts suspended, with specific reference to Mr Balzola’s affidavit dated 1 December 2022.[77] Self-evidently, the Original Tribunal took this evidence into account on the question of remedy.
[77] [2023] ACAT 18 at [33]
We asked if there was any evidence to show the Original Tribunal was asked to take into account that the posts had been taken down when considering remedy or otherwise. The appellant said he would “check where that was put” [78] but, so far as we can ascertain, the appellant did not return to the topic.
[78] Transcript of proceeding 13 November 2023, page 51, line 29
In any event, from reading paragraph 33 of the remedy decision, it is apparent the Original Tribunal took into account that some of the posts had been taken down or accounts had been suspended. Ground 11 fails.

Ground 12: failing to have regard to the victimisation of Mr Sunol by Mr Kerslake and his support group

The appellant contended the Original Tribunal failed to consider or address the evidence of ongoing vexatious long-term harassment and abuse of the appellant by the respondent and his support persons evidenced by the documents at annexure E to his affidavit sworn 27 January 2021. The appellant contended the Original Tribunal disregarded the “collateral purpose” of the “deluge of complaints” made by the respondent. In this regard, the appellant alleged the Original Tribunal ignored the principles set out in Burns v Folau[79] and other cases. The appellant relied upon details of this claim in his written submissions dated 26 September 2022 to the Original Tribunal detailing his claims regarding collateral purpose.
[79] [2020] NSWCATAD 287
During the appeal hearing, the appellant clarified that ground 12 “is an aspect” of what he had put earlier regarding the evidence of longstanding teasing of the appellant with the appellant’s known condition and the history of the relationships between the appellant and the respondent going back to 2002. The appellant submitted this should have been considered on the question of causation, but was not, in the sense that the cause of the appellant’s conduct was the victimisation or teasing of the appellant by the respondent and his support group.[80]
[80] Transcript of proceeding 13 November 2023, page 51, line 29-37
The error alleged in ground 12 is contrary to the fact.
At paragraphs 99-102 of its liability decision, the Original Tribunal notes and responds to the appellant’s claim that “his comments were often made in response to the respondent’s offensive comments, perhaps even vilification, directed at him.” At paragraph 140, the Original Tribunal further notes and responds to the appellant’s claim his statements in relation to the respondent were only in response to alleged discriminatory actions taken by the respondent against him. At paragraph 149, the Original Tribunal acknowledges the ongoing debate between the appellant and the respondent on social media. The Original Tribunal acknowledges the appellant’s claim about the large number of complaints made against him and refers specifically to annexure E to the appellant’s affidavit affirmed 27 January 2021. At paragraph 154, the Original Tribunal acknowledges the appellant’s claim the respondent’s complaints were made for a collateral purpose and were motivated by hate and are a hate crime. At paragraph 157, the Original Tribunal acknowledges the debate over many years between the appellant and the respondent. It takes that into account in reaching its conclusion that “generally public statements [made] by [the appellant] in relation to these proceedings, even if insulting and disrespectful to [the respondent], do not amount to victimisation”.[81]
[81] See [2022] ACAT 40 at [157]
At paragraphs 6, 30 and 53-62 of its remedy decision, the Original Tribunal acknowledged the appellant’s submission that the proceedings were brought for a collateral purpose and in bad faith. It addressed the argument and explained why the argument was rejected. It acknowledged the appellant’s reliance on Burns v Folau[82] and explained why that case did not assist the appellant on the facts.
[82] [2020] NSWCATAD 287
The appellant might not agree with the Original Tribunal’s conclusions about the respondent’s conduct towards him, but to contend the Original Tribunal ignored his claim about the respondent’s conduct towards him is simply not true. Ground 12 fails.

Ground 13: assuming jurisdiction to make findings against Mr Sunol as a citizen of NSW

In support of ground 13, the appellant referred to paragraphs 38 to 152 of his submissions to the Original Tribunal dated 21 June 2021. Paragraph 38 of those submissions contends for the lack of any relevant conduct in the ACT; the matter should have been agitated in NSW under the laws applying in that State; and a user of the internet should not have to navigate their way through “a myriad of legal systems”. The remainder of the submissions relate to the meaning of “on the ground of” in section 67A(1) of the Discrimination Act as part of the requirement for vilification; discusses the characterisation of the 13 sample posts in detail; and then briefly discusses the principles of vilification.
To the extent paragraph 38 of the submissions to the Original Tribunal related to the jurisdiction of the Tribunal, it repeats the argument against the extraterritorial operation of the Discrimination Act discussed in relation to ground 4 above.
Ground 13 also refers to the ACT standing “alone across the Commonwealth against the overriding settled law on place of publication and place of download”.[83] No authority was cited in support of that submission.
[83] Written submissions dated 20 October 2023 at [95]
Where we were unable to discern any alleged error in ground 13 beyond that alleged and dealt with in relation to ground 4, ground 13 fails.

Ground 14: failing to apply the principles in Burns v Corbett [2018] HCA 15

Ground 14 encompasses two bases on which, it is said, the High Court decision in Burns v Corbett gave rise to error by the Original Tribunal. The written submissions referred to the earlier decision in Burns v Gaynor which was ultimately upheld in the High Court. At the appeal hearing, counsel for the appellant also submitted the vilification provisions were invalid to the extent they conferred jurisdiction on the tribunal to exercise the judicial power of the Commonwealth. Counsel acknowledged this second basis for alleged error arising from Burns v Corbett could have been raised more precisely in the written grounds of appeal.[84] Whilst it was, arguably, procedurally unfair to the respondent to particularise the second basis only at hearing, we have nevertheless considered it because it goes to the question of the Tribunal’s jurisdiction.
[84] Transcript of proceeding 13 November 2023, page 58, line 32-34
The first basis for alleged error was submitted to arise from comments of NCAT in Burns v Gaynor. That case considered an application for summary orders dismissing a complaint under section 49ZT of the Anti-Discrimination Act 1977 (NSW). Section 49ZT relevantly provided:
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
‘Public act’ was defined for the purpose of section 49ZT in section 49ZS to include:
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material.
It was accepted by NCAT that a public act had to take place in NSW for the purpose of the vilification provision. However, it was not sufficient for the material to be available for downloading in NSW. The NCAT Principal Member held:
In my opinion there was no relevant public act by Mr Gaynor in NSW. His acts of posting material on his computer were public acts but they took place in Queensland. It was the separate act of Mr Burns himself, not of Mr Gaynor, which caused the material to be downloaded in NSW. As it happened Mr Gaynor lived in Queensland not far from the NSW border. However, if Mr Burns’ argument is correct, a person who never leaves a country which permits (or even encourages) the publication of material vilifying homosexuals and who uploads vilifying material on his computer could be held liable to pay damages under the Act to a complainant if such complainant, or someone else, downloads the material in NSW. This would be so even though the complainant was not known to the uploader and was identified only by reference to a very large class of persons to which the complainant claimed to be a member. In my opinion such a circumstance is beyond the reach of the NSW Parliament.
On appeal in Burns v Corbett; Gaynor v Burns[85] the NSW Court of Appeal declared NCAT lacked jurisdiction to decide the complaints. The Court found the NSW legislature was not able to confer authority on NCAT to exercise judicial power in an area of federal jurisdiction due to the operation of section 39 of the Judiciary Act 1903 (Cth). This was upheld by the High Court in Burns v Corbett, with the plurality relying on an implication in Chapter III of the Constitution that –
Considerations of constitutional text, structure and purpose compel the conclusion that a State law that purports to confer jurisdiction with respect to any of the matters listed in ss 75 and 76 of the Constitution on a tribunal that is not one of the courts of the States is inconsistent with Ch III of the Constitution, and is, therefore, invalid.[86]
[85] [2017] NSWCA 3
[86] Burns v Corbett at [2] per Keifel CJ, Bell and Keane JJ (with whom Gageler J substantially agreed in a separate decision)
Neither the NSW Court of Appeal nor the High Court commented on the discussion of the meaning of “public act” by the NCAT Principal Member. We note in the decision of the NCAT appeal panel in Corbett v Burns,[87] the appeal from which was considered along with Burns v Gaynor in Burns v Corbett, the NCAT appeal panel concluded that it was open to the Tribunal to interpret ‘public act’ based on where the material was accessed. The outcome of the NSW Court of Appeal and High Court decisions invalidating the conferral of jurisdiction on NCAT was based on the matters being between residents of different States for the purposes of section 75(iv) of the Constitution. The place where material was uploaded or downloaded was irrelevant.
[87] [2014] NSWCATAP 42
The NCAT and NSW Court of Appeal decisions in Burns v Gaynor were referred to in Bottrill (leave to appeal to the High Court having been granted but not heard at the time of the decision in that case). Submissions in Bottrill also quoted from the NCAT decision as set out above. The Tribunal in Bottrill commented that the argument relied on in Burns v Gaynor, namely that the tribunal should avoid an interpretation of the provisions which would catch “unsuspecting persons who are acting in accordance with the law of their own jurisdiction”, “ignores that this would well happen in defamation cases too”.[88] The Tribunal considered that what “is more telling here is that the clear statutory purpose is to protect the persons that have the attributes that should not be vilified or be the subject of discrimination”.[89] The Tribunal concluded:
[G]iven that the clear purpose of the Discrimination Act is to protect ACT residents with the attributes identified, section 67A must be construed to proscribe, among other things, a non-private act that vilifies an ACT resident where the vilifying material is read in the ACT or is available to be read here. There is thus a clear intention to operate to proscribe conduct that vilifies an ACT resident even though the non-private act of the respondent is in NSW, so long as the material is read or arguably is capable of being read, in the ACT.[90]
[88] Bottrill at [71]
[89] Bottrill at [72]
[90] Bottrill at [76]
Bottrill has been followed in other ACAT decisions.[91] It was described and relied upon by the Original Tribunal in this matter.[92] The argument presented by Burns v Gaynor was therefore considered by the Original Tribunal. As explained in relation to ground 4, we were not persuaded there was any error in the Original Tribunal's finding that the tribunal had jurisdiction to hear the complaints notwithstanding the appellant residing and uploading the documents in NSW. The first basis of challenge therefore fails.
[91] See Rep v Clinch [2021] ACAT 106; Farah v Sandliands [2021] ACAT 92
[92] [2022] ACAT 40 at [64]

The respondent not being named in the relevant publications was also discussed in the context of an appropriate remedy by the Original Tribunal in the remedy decision:
Some of the posts refer to the applicant himself. Most of the posts refer to homosexual people more generally, either all homosexual people or the subset of homosexual activists. Whether a post refers only to homosexual people generally, or to a sub-category, the applicant can seek a remedy for the statements if he is included in the class. The respondent continues to argue that there are doubts as to whether the applicant is a homosexual person, but as I noted in the first decision there is significant evidence that he is, and no evidence that he is not.[48] Similarly, when Mr Sunol refers to homosexual activists, or a similar term, it is clear that this includes the applicant. On this basis, in my view, the applicant is entitled to a remedy for all the posts which have been found to amount to vilification.[123]
[123] [2023] ACAT 18 at [67]
The Original Tribunal then goes on to consider how the respondent not being named in the publications is relevant to the question of compensation.[124]
[124] [2023] ACAT 18 at [89]-[103]
The vilification provisions expressly apply to the incitement of hatred etc against persons or groups of persons. The HRC Act provides a means of redress against such conduct. That means of redress would be considerably reduced if only persons expressly identified in publications were able to bring a complaint.
There is nothing in the vilification provisions or HRC Act which suggests that the potentially diffuse nature of the group potentially subjected to hatred etc affects whether a person is aggrieved by the conduct. The kind of interests that might be affected by a publication do not depend on whether the publication incites hatred etc against a person individually or each of the members of a group. The vilification provisions clearly recognise being the possible subject of hatred etc as a sufficient interest to make a complaint.
Ground 19 also states “the failure of the complainant to discharge the onus of proof at the Briginshaw standard means that the sufficient interest is not established.” The reference to the “Briginshaw standard” refers to the approach set out in Briginshaw v Briginshaw (Briginshaw) regarding the civil standard of proof:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[125]
[125] [1938] HCA 34 at [362]
As referred to in ground 15 in relation to this issue, in his submissions to the Original Tribunal of 21 June 2021 the appellant referred to the decision of the Federal Court in Qantas Airways Ltd v Gama where the Court stated:
The degree of satisfaction that is required in determining that [the civil law standard of proof] has been discharged may vary according to the seriousness of the allegations of misconduct that are made.[126]
[126] [2008] FCAFC 69 at [110]
This observation was made in the context of a racial discrimination claim under the Racial Discrimination Act 1975 (Cth). It was recognised in that decision that the nature of a racial discrimination claim had to be taken into account in determining the facts in issue.[127] But this did not mean generally there is a higher standard or onus of proof to be met in cases involving racial discrimination. The nature of the subject matter of the proceeding and the gravity of the matter alleged also have to be taken into account.
[127] See eg. [132] per Branson J, with whom French and Jacobson JJ agreed (at [110])
The Original Tribunal referred to the need to consider the seriousness of the allegations made, as discussed in Briginshaw, when considering allegations that the appellant had provided information to another person who had made posts allegedly victimising the respondent.[128] The Original Tribunal distinguished the other matters raised in this case where it was “generally only the publication online which is relevant and this could be proved by production of the relevant document”.[129]
[128] [2022] ACAT 40 at [253]
[129] [2022] ACAT 40 at [253]
In our view, the appellant has not established the Original Tribunal was in error by not referring to the approach in Briginshaw, or in the application of that approach, in deciding the respondent was able to make the complaints in question. The nature of a vilification complaint does not suggest that where posts do not identify the complainant directly there is insufficient evidence to establish the complainant was aggrieved or otherwise had a sufficient interest to make the complaint.
In finding the respondent was able to make the complaints in issue, the Original Tribunal referred to both sections 43(1)(a) and 43(1)(f) of the HRC Act. Those sections suggest a complaint can be made either by a person aggrieved by the conduct or by a person with a sufficient interest in the complaint. Section 43(2) then appears to expand the range of persons who have a sufficient interest in the complaint to include those who are concerned about the way conduct of the kind complained about has the potential to adversely affect their interests. It could be argued that it is not required for a person to bring a complaint under section 43(1)(f) that the conduct complained about has affected their interests.
However, section 43(6) states that a “person mentioned in subsection (1)(f) may make a complaint only if the aggrieved person consents to the making of the complaint”. Similarly, section 44(1)(c) requires that, if a complaint to the HRCis made by a person under section 43(1)(f), the complaint must name the aggrieved person. These provisions suggest that section 43(1)(f) and the reference to a person with a sufficient interest is a reference to complaints made on behalf of another person who is aggrieved by the conduct and who has consented to a complaint being brought.
This interpretation of sections 43(1)(a) and 43(1)(f) is consistent with the extrinsic materials supporting their introduction. The ability of persons with a sufficient interest to make a complaint was introduced by the Discrimination Amendment Act 2016. The explanatory statement accompanying the Bill, in outlining the introduction to what is now section 43(2), states:
This clause provides that a person has sufficient interest in a discrimination complaint if the conduct complained about is a genuine to concern to the person, because the conduct would adversely affects (or has the potential to adversely affect) the interests of the person or interests or welfare of the anyone the person represents. This provision will allow support services, legal representatives or advocacy groups to assist a person to exercise their rights under the Act. It acknowledges that due to the nature of discrimination, the vulnerabilities of people with protected attributes and the potential power imbalance between a complainant and respondent, complainants should be supported to make complaints.
This provision is not intended to remove or alter the authority of the Commission to conduct a complaint as a representative complaint in accordance with s 71 of the Human Rights Commission Act.
In outlining what is now section 44(1)(c), the explanatory statement states:
This clause provides that a discrimination complaint must name the aggrieved person, as part of making the complaint. This means that a discrimination complaint cannot be made about conduct that might be an unlawful act under the Discrimination Act, if there is no identified person to consent to the complaint and be named as the complainant.
Therefore, it is arguable the Original Tribunal, to the extent it referred to sections 43(1)(a) and 43(1)(f) in paragraph 58 of its decision, was in error in relying on the respondent as having a sufficient interest to be able to make the complaints.[130] However, this argument was not made by the respondents. Also, nothing we could find in either decision suggests the Original Tribunal was relying on the respondent having a sufficient interest in this way. In any event, any error in this regard would have been immaterial because the respondent was clearly an aggrieved person able to make the complaints in his individual capacity.

Ground 20: finding Mr Sunol’s posts were published in the ACT and not California and Twitter’s servers

[130] See also Macca v ACT represented by emergency services agency [2017] ACAT 19.

This ground contended the Original Tribunal made an error of fact in finding the posts in question were published in the ACT.[131]
[131] As set out in [2022] ACAT 40 at [60], written submissions of 20 October 2023 at [140]
We do not agree. The reference to publication in the ACT was made by the Original Tribunal in discussing the extraterritorial operation of the vilification provisions:
The ACT can make laws with extraterritorial effect, provided there is some connection with the Territory. 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. In my view the ACT can make a law in relation to posts which vilify its residents and which are published here.[132] (citations omitted)
[132] [2022] ACAT 40 at [60]
By referring to publication in this context in our view the Original Tribunal was referring to posts available to be accessed in the ACT, as they were by the respondent. It was the ability of a resident of the ACT to access and read the posts which the Original Tribunal relied upon to establish a connection with the Territory sufficient to bring the application of the vilification provisions within the legislative competence of the Territory assembly.[133]
[133] See further discussion in ground 4 above
The Original Tribunal went on to discuss the construction of the vilification provisions and referred to the decision in Dow Jones & Company Inc v Gutnick[134] in which publication – for the purposes of defamation law – was held to refer to the place or places where the published material was available. The Original Tribunal then referenced the fact that the appellant uploaded the material in NSW:
Similarly, where vilifying material is uploaded in NSW and available in ACT, where Mr Kerslake read and could be vilified by, (sic) it in my view this can be subject to a vilification claim in the ACT.[135]
[134] [2002] HCA 56
[135] [2022] ACAT 40 at [65]
It is this distinction between where the posts where uploaded and where they were available to be read (by being downloaded) which underlies the discussion of the extraterritorial operation of the vilification provisions. There is no error of fact established by the use of the word publication in relation to that distinction. Ground 20 fails.

Ground 21: failing to have regard to Mr Sunol’s intentions

At hearing, the appellant did not press ground 21[136] and we have therefore not considered it further.

Ground 22: having regard to the views of the ‘general public’

[136] Transcript of proceeding 13 November 2023, page 61, line 34

In his written submissions in support of ground 22, the appellant noted the Original Tribunal’s comments at paragraphs 100 and 102 of its liability decision that the publications could be viewed by anyone, that is the general public. The appellant submitted the ordinary reasonable member of the public could not identify the publications were about the respondent. It followed, the appellant said, there is no evidence the views of the general public have impacted on the respondent in any of the allegedly offending articles because it is not possible, he said, to deduce the articles were directed to the respondent.
At the appeal hearing, counsel for the appellant said he had nothing to add to the written submissions.[137]
[137] Transcript of proceeding 13 November 2023, page 61, line 37
In our view, the submissions in support of ground 22 are misconceived. There is no controversy the posts could be viewed by the general public. In the paragraphs of the Original Tribunal’s liability decision under attack on appeal, the Original Tribunal made no mention of whether Mr Kerslake could be identified in the posts, or not. The Original Tribunal was simply pointing out, correctly in our view, that when considering posts available to the general public expressing different viewpoints, the test for vilification is objective, to be judged by the views that would be formed by the ordinary reasonable member of the public, in order to find the balance between the non-discrimination and freedom of expression principles.
The paragraphs challenged by ground 22 have no connection with whether Mr Kerslake could be identified in the posts. Also, that the posts do not specifically identify the respondent is not to the point. As the Original Tribunal pointed out in paragraphs 103 – 109, the posts vilified homosexual people; the respondent identifies as homosexual; and vilification on the basis of sexuality is vilification for the purposes of section 67A(1)(g). Accordingly, the respondent was able to make his complaints in relation to the appellant’s statements. Ground 22 fails.

Ground 23: holding Mr Sunol’s posts were in relation to homosexual persons rather than the homosexual agenda

At hearing, counsel for the appellant described ground 23 as “really a matter of historiography which I’ve already dealt with”[138] and added nothing further.
[138] Transcript of proceeding 13 November 2023, page 61, line 37
Turning to the written submissions, the appellant said his affidavit in the original proceeding made clear he was entering into the debate “on the question of the homosexual agenda and not a polemic on homosexual persons”.[139] The appellant alleged the Original Tribunal “ignored the distinction between the ‘man and the ball distinction between the homosexual agenda versus the sexuality of homosexual persons and confounded them as if [they were] ‘one-and-the-same’ issue which the [appellant] has been at pains to distinguish”.[140]
[139] Written submissions dated 20 October 2023 at [155]
[140] Written submissions dated 20 October 2023 at [157]
The appellant submitted the Original Tribunal ignored the evidence of the appellant and “contrived a reading of the publications that a fair-minded ordinary reader could not construe”.[141]
[141] Written submissions dated 20 October 2023 at [158]
This ground of appeal was not developed. We were not taken to any passage in the Original Tribunal’s reasons to support the alleged error. The proposition the Original Tribunal ignored the evidence is also contradicted by extensive references to the appellant’s affidavit throughout the reasons for decision. Nor was there any submission or comment about how the alleged error affected or could have affected the result. On appeal, it is for the appellant to prove. We are not persuaded ground 23 is made out on the submissions made. Ground 23 fails.

Ground 24: finding Mr Sunol made insulting comments on Mr Kerslake’s site

At hearing, counsel for the appellant described ground 24 also as “really a matter of historiography”[142] and added nothing further.
[142] Transcript of proceeding 13 November 2023, page 61, line 37
With reference to paragraph 149 of the liability decision, ground 24 contended there was no evidence of the appellant making “repeatedly … insulting, derogatory and harassing comments” in 1999.[143] The appellant alleged the Original Tribunal made a “finding” these comments were made in 1999 without evidence and where they were not relevant, and without giving an opportunity to examine Mr Kerslake and to put to him that these assertions were “false, contrived, unsupported and/or otherwise baseless puffs”. The appellant relied on the comments of the Original Tribunal in paragraph 100 of its liability decision to allege bias on the part of the Original Tribunal.
[143] Written submissions dated 20 October 2023 at [160]
Ground 24 is misconceived. Paragraph 100 says nothing about comments in 1999, or at any time, save for the posts in issue in the proceeding. In paragraph 149, the Original Tribunal never made a finding about the character of the comments made in 1999. It simply recorded Mr Kerslake’s evidence about the appellant’s posts in 1999, and the posts of others. For itself, the Original Tribunal went no further than noting there has been “a long term and public debate between Mr Sunol, and his supporters, and Mr Kerslake, and his supporters”.[144] That appears to be entirely uncontroversial. It does not in any way suggest bias. Ground 24 fails.

Ground 25: failing to have regard to or apply Mr Sunol’s objections to evidence

[144] [2022] ACAT 40 at [149]

At hearing, the appellant acknowledged ground 25 “links back” to ground 3 which he had already dealt with.[145] Nothing further was said, orally or in writing. Where ground 3 fails for the reasons given, so ground 25 fails.

Ground 26: conflating tweets DT 35.018 and DT 35.019

[145] Transcript of proceeding 13 November 2023, page 61, line 38-9

At hearing, the appellant stated he did not wish to add anything to what was put in written submissions[146] namely the publications (tweets) identified by the Original Tribunal as DT35.018 and DT35.019 were “the same and unduplicated” but treated by the Original Tribunal as if they were “separate publications”[147].
[146] Transcript of proceeding 13 November 2023, page 61, lines 39-41
[147] Written submissions of 20 October 2023 at [168]
The submission is misconceived. We have reviewed DT35.018 and DT35.019. True, the content is the same, as the Original Tribunal acknowledged,[148] but they are different documents evidenced by the fact they were posted at different times. In any event, in circumstances where the Original Tribunal acknowledged the content of the documents is the same, nothing turns upon whether the documents are characterised as the same or separate publications. Ground 26 fails.

Ground 27: determining publications DT 35.021-DT 35.023 existed at the time of Mr Kerslake’s complaints

[148] [2022] ACAT 40 at [206]

At hearing, the appellant stated he did not wish to add anything to what was put in the written submissions,[149] namely the publications in DT 35.021 to DT 35.023 “did not exist at the time of [Mr Kerslake’s] complaint or at the time of hearing.”
[149] Transcript of proceeding 13 November 2023, page 61, lines 41-42
The submission was contrary to the evidence. Publications DT 35.021 to DT 35.023 formed part of exhibit A5 before the Original Tribunal. The index of the documents comprising exhibit A5, and publications DT 35.021-DT 35.023 themselves within Exhibit A5, identify the dates of the documents to be 3, 6 and 7 October 2019, respectively. The complaints were made in 2020[150] and heard by the Tribunal in 2021.[151] Ground 27 fails.

Ground 28: applying public interest issues

[150] Exhibits A1-A4 in the original Tribunal proceeding
[151] [2022] ACAT 40

Ground 28 was, again, light on detail. The appellant submitted in his written submissions the Original Tribunal excised Constitutional and common law freedoms from the statutory operation of the Discrimination Act and treated the Act as if one of strict liability, but nowhere states the Constitutional or common law freedoms that were excised or points to any such freedom advanced by the appellant at the original hearing. Nor was this line of argument developed at hearing. Counsel for the appellant spoke about the Original Tribunal failing to consider Mr Sunol’s personal circumstances, namely that he has a disability, and a failure to have regard to the circumstances of the case to which he said he had referred but we have dealt with those circumstances elsewhere. For the purposes of ground 28, we were unable to identify any other circumstances referable to ground 28.
In his written submissions, the appellant also made a broad statement that the Original Tribunal’s decision, “if applied uniformly, would mean any public interest statement is an act of discrimination even if in the public interest which sterilises the publisher of their freedom of religion and freedom of speech”.[152] This claim was not developed and, with respect, is not correct. The liability decision explains at length the balance between statements that are, and are not, in the public interest. Ground 28 fails.

Ground 29: exercising a power for a purpose other than the purpose for which the power was conferred and/or exercising the power unreasonably

[152] Written submissions dated 20 October 2023 at [175]

Whether a power was exercised for a purpose other than the purpose for which it was conferred, and whether a power was exercised unreasonably, are separate questions.
In relation to the former question the starting point was for the appellant to identify the other or ulterior purpose the Original Tribunal had in finding the subject posts were vilification. We put the question squarely to counsel for the appellant: “So what is the ulterior purpose that the senior member was up to?”[153]
[153] Transcript of proceeding, 14 November 2023, page 63, lines 27-28
In answer, counsel for the appellant for the appellant said:
Well, what he did was - it's perhaps referred to in a couple of the 30 posts which I drew attention to earlier, such as - if one goes to the post at 363, CO51, 'The only way you can fight the Sydney gay mafia is with lawyers, guns, and money.' But the senior member seems to be proceeding on the basis that a crusade against the mafia that protects people like Mr Kerslake is within the purview of section 67A and our respectful submission is that isn’t the case.[154]
[154] Transcript of proceeding, 14 November 2023, page 63, lines 30 - 36
Counsel for the appellant did not develop the argument, next stating only “those are our submissions”.
The submission about “a crusade against the mafia” is not consistent with what the Original Tribunal wrote. At paragraph 363 of the liability decision, the Original Tribunal stated the quoted content of the post at C.051. At paragraph 364, the Original Tribunal commented on why it found the post is vilification:
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.
It is, with respect, clear the Original Tribunal found vilification for reasons entirely different from that claimed by counsel for the appellant. The post was found to be vilification because it was promoting the use of lawyers, guns and money, particularly guns, to “fight” the gay mafia - meaning to fight homosexual people. Nothing in the Original Tribunal’s reasons supports the idea of a mafia - gay or otherwise – that is protecting homosexual people such as the respondent. Nor does counsel for the appellant explain why such a scena would not be the purview of section 67A. Nor is there anything in the reasons to suggest, as the appellant seemed to contend, that section 67A was inapplicable because of the activities of the mafia.
We turn to the second component of ground 29: unreasonableness.
In support of this ground, in his written submissions the appellant submitted the decision, if allowed to stand, will –
sterilise freedom of speech, freedom of religion, subject any person to arbitrary claims by persons not damaged by such claims and result in a constriction of open debate in a democratic society that is both unlawful against the body of law and democratic society.[155]
[155] Written submissions dated 20 October 2023 at [178]
In his oral submissions, counsel for the appellant took a different approach:
Now, the final ground which deals with whether or not the power was exercised unreasonably in this case. I've previously put a submission about that. This is really, we submit, an example of the operation of Li's case, Li's case in the High Court.
And where the - if I can use the traditional language of Lord Greene. That in circumstances where the tribunal was knowingly dealing with a man who had a significant brain injury, going back many years, who had significant inhibitions that were known to Mr Kerslake over a relationship itself going back many years. It was unreasonable in the legal sense either to proceed to make any of the orders that were made against Mr Sunol.[156]
[156] Transcript of proceeding, 14 November 2023, page 62, lines 36 - 46
By “Li’s case”, counsel for the appellant was referring to statements of principle in Minister for Immigration and Citizenship v Li[157] in which the High Court, per Gageler J (as he then was) said:
Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute.[158] (citations omitted)
[157] [2013] HCA 18
[158] [2013] HCA 18 at [90]
Either way, the submissions were unpersuasive.
Regarding the written submissions, written in such broad terms without reference to anything, we were not persuaded the decisions under appeal were unreasonable, in the sense the power was not exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute, in circumstances where none of the previous 28 grounds of appeal attacking all aspects of the decisions were unsuccessful.
Regarding the oral submissions, which in substance repeat the submissions in support of ground 10, we reject the submission for the same reasons. Ground 29 fails.

Conclusion

Where we have concluded all the grounds of appeal fail, the appeal must be dismissed.
Consequent upon our decision to dismiss the appeal, a question arose regarding the appellant’s compliance with the orders made in the remedy decision. In our view, the orders requiring the appellant to act in ways he has not already acted should be varied to provide timeframes within which the appellant must comply.
In proceeding DT 35/2020, we will order the appellant comply with orders 1 and 3 within 14 days and with orders 4 and 5 within 28 days. In proceeding DT 45/2020, we likewise propose the appellant comply with orders 1 and 3 within 14 days and with order 4 within 28 days.
………………………………..

Presidential Member G McCarthy
For and on behalf of the Tribunal

Dates of hearing:	13 – 14 November 2023
Counsel for the Appellant:	Mr P King
Solicitors for the Appellant:	Mr R Balzola, Robert Balzola and Associates
Respondent:	Self-represented