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Valkyrie and Hill v Shelton

Valkyrie and Hill v Shelton

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Case Copied 10 August 2023 83 min read

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Valkyrie and Hill v Shelton [2023] QCAT 302

PARTIES:

JOHNNY VALKYRIE
DWAYNE HILL

(applicants)

v

LYLE SHELTON

(respondent)

APPLICATION NO/S:

ADL057-20 and ADL058-20

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

10 August 2023

HEARING DATE:

28 to 30 November 2022

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1. Lyle Shelton’s blog of 16 January 2020, and his posts of 25 January 2020, 25 July 2020, 29 August 2020, 19 September 2020, 2 October 2020 and the video podcast of 17 November 2020 did not and do not amount to vilification of Johnny Valkyrie or Dwayne Hill in contravention of section 124A of the Anti-Discrimination Act 1991 (Qld).

2. ADL057-20 and ADL058-20 are dismissed.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where complaints of vilification – how to interpret and apply the Queensland vilification law

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where complaints of vilification – where the respondent published a blog and other posts critical of the complainants’ drag queen performance for children in a library – whether the publications incited hatred towards, serious contempt for, or severe ridicule of the complainants on the ground of their sexuality or gender identity

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – OTHER MATTERS – where complaints of vilification – where the complainants made their complaints as individuals but relied on vilification of various groups of persons of which they were members – whether such complaints may be made – whether the tribunal should treat the complaints as representative complaints

Anti-Discrimination Act 1991 (Qld), s 4A, s 34, s 124A, s 146, s 194, s 199, s 204, s 206

Human Rights Act 2019 (Qld), s 5(2)(a), s 8, s 13, s 17(b), s 20, s 21, s 26, s 48

Australian Broadcasting Tribunal’s decision in Inquiry Into Broadcasts by Ron Casey (1989), as cited in the NSW Law Reform Commission’s Report 92(1999) - Review of the Anti-Discrimination Act 1977 (NSW)
Australian Macedonian Advisory Council Inc. v LIVV Pty Limited trading as Australian Macedonian Weekly (Anti-Discrimination) [2011] VCAT 1647
Bennett v Dingle (Human Rights) [2013] VCAT 1945
Bropho v. Human Rights and Equal Opportunity Commission (2004) 135 FCR 105
Burns v Dye [2002] NSWADT 32
Burns v Laws (No 2) [2007] NSWADT 47
Burns v Laws (EOD) [2008] NSWADTAP 32
Burns v McKee [2017] NSWCATAD 66
Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267
Burns v Smith [2019] NSWCATAD 56
Burns v Sunol [2014] NSWCATAD 2
Burns v Sunol [2014] NSWCATAD 61
Burns v Sunol [2015] NSWCATAD 131
Burns v Sunol [2016] NSWCATAD 16
Burns v Sunol (No 2) [2017] NSWCATAD 236
Catch the Fire Ministries v Islamic Council of Victoria [2006] VSCA 284
Cottrell v Ross [2019] VCC 2142
Deen v Lamb 2001 [QADT] 20
DLH v Nationwide News (No 2) [2018] NSWCATAD 217
Ekermawi v Commissioner of Police, NSW Police Force [2019] NSWCATAD 79
Ekermawi…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCAT 302
Decision Date

CaseChat Overview and Summary

Johnny Valkyrie and Dwayne Hill (the complainants) brought complaints of vilification against Lyle Shelton (the respondent) to the Queensland Human Rights Commission (QHRC) about posts the respondent made on his blog and social media. The QHRC found that the complaints could not be conciliated and referred them to the Queensland Civil and Administrative Tribunal (QCAT). The complaints were about posts the respondent made about a drag queen story time event which the complainants had performed at a library. The complaints were made on 27 January 2020 and 12 June 2020 and were each given a separate application number. The complaints were about the respondent’s blog of 16 January 2020 and posts of 25 January 2020, 25 July 2020, 29 August 2020, 19 September 2020, 2 October 2020 and a video podcast of 17 November 2020. The complaints were about the respondent’s posts being a public act which incited hatred, serious contempt or severe ridicule towards the complainants on the ground of their sexuality or gender identity, in contravention of section 124A of the Anti-Discrimination Act 1991 (Qld). The complaints were made as individuals and as members of various groups. The QCAT dismissed the complaints.The test for vilification in Queensland is set out in section 124A of the Anti-Discrimination Act 1991 (Qld). It is a standalone prohibition against certain behaviour. If there is a contravention of section 124A then this is unlawful and it can be the subject of a complaint. The section provides:A person must not, by a public act, incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race, religion, sexuality or gender identity of the person or members of the group.The complainants’ complaints were that the respondent’s posts had incited hatred etc. towards them as individuals and towards the groups of persons of which they were members. The respondent argued that the posts were fair comment and discussion in the public interest. The tribunal needed to decide whether the respondent’s posts would have the natural and ordinary effect to incite the audience on the ground of the complainants’ sexuality or gender identity. The tribunal also needed to decide whether the reaction of the audience needed to be on the ground of the complainants’ sexuality or gender identity. The tribunal concluded that the natural and ordinary effect of the respondent’s posts would not be to incite hatred etc. on the ground of the complainants’ sexuality or gender identity. The tribunal also concluded that the reaction of the audience needed to be on the ground of the complainants’ sexuality or gender identity. The tribunal concluded that the complaints failed. The tribunal dismissed the complaints.

Orders