Burns v Sunol

Statutory framework

1. Section 49ZT, makes it unlawful for a person to engage in a "public act" which amounts to homosexual vilification within the meaning of that section: 49ZT Homosexual vilification unlawful (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. (2) Nothing in this section renders unlawful: (a) a fair report of a public act referred to in subsection (1), or (b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
2. A "public act" is defined by s 49ZS to include: In this Division: "public act" includes: (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, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses 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.

Legal principles

1. The vilification provisions of the Act have been the subject of detailed judicial consideration, most recently by the NSW Court of Appeal in Sunol v Collier and anor. (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following principles relevant to this matter may be distilled from those authorities: 1. an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (the relevant reaction) (Jones at [53]) 2. "incite" in s 49ZT means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (Sunol at [41]; Margan at [11]) 3. for a contravention of s 49ZT it is not necessary to establish that anyone was incited (Sunol at [41]), or to establish an intention to incite (Sunol at [41]; Margan at [12]) 4. it is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of homosexual persons; it must be capable of inciting those reactions in an ordinary member (or ordinary reasonable member) of the class to whom the act is directed/the audience or likely audience (Sunol at [41]) 5. the assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs (Sunol at [61]) 6. in making that assessment the particular class to whom the act is directed/ the audience or likely audience, must be identified and considered (Sunol at [34]; [61]; Jones at [62], [63]).

The offending content

1. Mr Burns complained to the President that the following material, which is reproduced at Tab 1 of the President's report, appeared on Mr Sunol's website on 2 December 2014: text version of content published (50.3 KB, rtf)
2. In his complaint, Mr Burns claimed that the above link takes the reader to the following page (Attachment A) maintained by Mr McKee who apparently uses the name, "Hojurka". text version of Attachment A (52.6 KB, rtf)

"No evidence of link" argument

1. In written submissions, Mr Sunol asserted that there is "no evidence" that the link to Mr McKee's website that Mr Burns claims was on his website (the offending link), "ever existed" and, by the operation of "the rule in Jones v Dunkel", the complaint must fail.
2. In a statutory declaration provided to the Board dated 22 December 2014, Mr Sunol declared that: 1. He was not the author of the "purportedly offensive material' found in the "said link" [to Mr McKee's website]. 2. He does not have control over "blocking other parties posting links upon my blogs but only the control of removing material or links that actually appear on my blog". 3. On or about 6 December 2014 he noticed and removed from his blog the link described by Mr Burns. He then placed the following note on his website, which shows that the "purportedly offensive material" had been removed: These articles are put on to show the coming of agenda 21 (coming of the new world order) or a one-world government, and issues related. This is to put all it represents as put in the media and other places such as news papers ect. I will change my writings from time to time as I deem the necessity to do so. johnsunol.blogspot.com.au / johnsunola.blogspot.com.au and johnsunolb.blogspot.com.au - (this blog) [For convenience we will refer to this passage as "the disclaimer".]
3. When questioned in these proceedings Mr Sunol gave a different account. He not only admitted placing the offending link on his website but described to the Tribunal how he did so. He also admitted placing the commentary on his website that appears at Tab 1 of the President's report.
4. The suggestion in Mr Sunol's statutory declaration that "other parties" might have posted the link on his website is implausible, unsupported and contradicted by his oral evidence.
5. The submission that there is "no evidence" that the page on Mr Sunol's website and the offending link "ever existed" must be rejected.

"Material does not exist" at time of complaint argument

1. Mr Sunol contends that because the offending link was allegedly removed before the President notified him of the complaint on 15 December 2014, the President lacked jurisdiction to refer the complaint to NCAT.
2. This argument is misconceived. There is the nothing in the Act that prevents the President from referring to the Tribunal, or the Tribunal from determining, a complaint where the alleged contravention of the Act has ceased. The only provision in the Act to impose a temporal requirement in relation to the making of a complaint is s 89B(2)(b), which provides that the President may decline a complaint if the alleged conduct occurred more than 12 months before the complaint was made.

The statutory construction argument

1. Mr Sunol contends that to constitute a "public act", the impugned act must satisfy either paragraph (a) or (b) and, in addition the second limb of paragraph (c) of s 49ZS - that the alleged vilifier had knowledge that the act promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person(s). In support of that contention, Mr Sunol points to the use of the word "and" at the end of paragraphs (a) and (b), which he submits operates to link or "hard wire" those paragraphs with paragraph (c). He cites in support of this proposition, Catch the Fire Ministries Inc & Ors v Islamic Council of Victoria Inc [2006] VSCA 284 (Catch the Fire) at [16].
2. This submission must be rejected. Section 49ZS sets out a non-exhaustive list of acts that constitute a "public act". The definition lists three broad categories of "acts":

• any form of communication to the public, including speaking …, and
• any conduct (not being a form of communication referred to in paragraph (a)) observable by the public…, and
• the distribution or dissemination of any matter to the public…

1. The use of the conjunction "and" at the end of paragraphs (a) and (b) simply indicates that the acts listed in each of the three paragraphs fall within the scope of the definition. This is made plain by the opening words of the definition: "Public act includes …"
2. The literal meaning of the definition is that an act will constitute a "public act" if it satisfies any one of the three paragraphs listed in s 49ZS. While, as the High Court emphasised in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; (1997) 194 CLR 355 at 381-2, 384, the proper approach to statutory interpretation is contextual rather than strictly literal, there is nothing in either the definition itself, its context or the language of the Act to suggest that the definition should be construed to mean that an impugned act caught by paragraph (a) or (b), must also satisfy the second limb of paragraph (c).
3. The decision of the Court of Appeal of Victoria in Catch the Fire does not, as Mr Sunol contends, support the proposition he advances about the operation of the definition. The passage he cites relates to a discussion about the meaning of the word "incitement".

The disclaimer argument

1. Mr Sunol contends that the disclaimer posted on 6 December 2014 makes it clear that he was not endorsing the views expressed by Mr McKee but rather encouraging people to "make up their own minds".
2. While it is not entirely clear how long the material the subject of Mr Burns' complaint was on Mr Sunol's website before the disclaimer was posted, the available evidence indicates that it was at least a couple of days. Mr Burns testified that he saw the material (at Tab 1 of the President's Report) on or about 2 December 2014. The length of time that the material appeared on Mr Sunol's website before the disclaimer was posted may be relevant to the issue of relief, but it is otherwise irrelevant to our determination.

Is the offending communication a public act of Mr Sunol within the meaning of para (a) of s 49ZS?

1. There is no argument that the publication of material on the internet, which as in this case is not password protected, is "a form of communication to the public". Nor is there any disagreement that the communication of the offending content is a "public act" within the meaning of s 49ZS of the Act. The issue in dispute is whether its communication to the public is a public act by Mr Sunol.
2. The definition of public act must be read in the context of the substantive provision, s 49ZT of the Act, which makes it unlawful for a person, by a public act to incite … Mr Sunol contends that the offending content was not a form of communication by him but rather a form of communication for which Mr McKee is responsible. Mr Burns, on the other hand, contends that by placing on his website the words "all should read this … all should read this and make their own decision" and providing a link to Mr McKee's website, Mr Sunol was inviting or encouraging his "followers" to read the offending content. Mr Sunol disagrees and argues that the words on his website were nothing more than a "bald invitation" and are insufficient to attribute responsibility to him for the offending content.
3. In support of their respective positions, both parties referred us to decisions of NCAT and one of its predecessor tribunals, the Administrative Decision Tribunal, in which both were parties.
4. In Burns v Sunol [2012] NSWADT 246 (Burns 2012), the Tribunal (differently constituted) considered whether Mr Sunol had communicated to the public three publications, which appeared on websites maintained by third parties. The Tribunal reasoned (at [34]) that Mr Sunol was relevantly responsible for two of those publications because first, each contained material that he had composed and, second, Mr Sunol expressly invited users who had logged onto it to click on the requisite phrase and gain access to the publications. With respect to the third publication, the Tribunal held that Mr Sunol was not responsible for its communication to the public: "It is not clear from the evidence relating to [that] publication … that any such invitation existed on a website maintained by Mr Sunol": at [35].
5. More recently, in Burns v Sunol [2015] NSWCATAD 40 (Burns 2015), the Tribunal found that the publication of statements relating to a YouTube clip, which appeared on a website that was not maintained by Mr Sunol, nonetheless constituted a public act of Mr Sunol. The Tribunal found at [41] that the words posted by Mr Sunol on his website - "some very interesting videos on corruption from Luke McKee" - constituted an invitation to access those videos and taken together with the accompanying link made Mr Sunol responsible in the relevant sense for the impugned "public act".
6. Mr Sunol contends that the Tribunal in Burns 2015 misapplied the principles established in Burns 2012, which he contends establish the: 1. First responsibility test 2. Operator test 3. Accessibility test 4. Knowledge test 5. Intention test 6. Second responsibility test 7. Composition test.
7. If Mr Sunol is contending that Burns 2012 is authority for the proposition that the alleged vilifier will only be relevantly responsible for the publication of material said to vilify homosexuals appearing on a website maintained by third party, if each of the above "tests" is satisfied, we cannot agree. It is a misreading of Burns 2012 to suggest that the Tribunal held that where the impugned material is published on the website of a third party, the alleged vilifier will only be relevantly responsible if they were the operator of the third party website, primarily responsible for the publication of, or the author of the impugned material, or placed that material on that website.
8. There is no evidence to contradict Mr Sunol's claim that he was not the operator of Mr McKee's website, the author of the offending content, or that he posted the offending content on that website. The real issue is whether his actions in putting the offending link and the surrounding words on his website, is sufficient to make him relevantly responsible for the communication of the offending material.
9. Consistent with the approach taken by the Tribunals in Burns 2012 and Burns 2015, the determination of this issue requires consideration of the context in which the offending link appears, including any surrounding words and images.
10. We agree with the submission made by Mr Burns that the words posted on Mr Sunol's website constitute an express invitation to people visiting Mr Sunol's website to click on the offending link and view the offending content. The statement "I think all should read this and make their own decision if they back it [the legalization of Phedofelia [sic]]" does not make the words appearing on Mr Sunol's website any less of an invitation or encouragement to view the offending content. Read in context we find that the material appearing on Mr Sunol's website constituted an express invitation to users to click on the offending link and access the offending content.
11. We find that Mr Sunol was responsible, in the relevant sense, for the "public act" of communicating the offending content to the public. In reaching that conclusion, we note that the offending content could be accessed in a number of ways not just through the offending link on Mr Sunol's website.

Did the offending material have the capacity to incite?

1. We must evaluate whether the offending content had the capacity to incite - to rouse, to stimulate, to urge, to spur on, to stir up or to animate - hatred towards, serious contempt for, or serious ridicule of homosexual(s) in the ordinary (or ordinary reasonable) member of the relevant audience, on the grounds of their homosexuality.
2. To undertake that task, consistent with the authorities, we must first identify the relevant audience and then consider the likely effect of the offending content on the notional ordinary or ordinary reasonable member of that audience.

Identification of the audience

1. The relevant audience are internet users who viewed the offending content via Mr Sunol's website. We have no evidence about who accessed the offending content via this path, apart from Mr Burns. According to Mr Sunol, his followers, who, he claims number just under 1000, represent a cross section of the community and include politicians, journalists and public commentators. We also think it likely that it includes people who share similar views on issues championed by Mr Sunol, such as opposition to same sex marriage. Mr Burns apparently follows Mr Sunol on the internet for the purpose of monitoring the type of material he promotes. According to Mr Sunol, Mr Burns is but one of a number of "trolls" who follow him on-line to "catch him out".
2. Given the ease with which sites can be accessed via the internet, we think it reasonable to assume that the audience probably also included people who put the term "paedophilia" into a search engine or otherwise stumbled across Mr Sunol's blog.
3. It is likely that members of the audience would hold a diverse range of opinions about homosexual people and same sex marriage, ranging from ignorance, support and strong opposition. We think it likely that a fair number of the audience would hold similar views to Mr Sunol about these issues. It is also likely that the audience includes people such as Mr Burns who hold opposing views, and people who hold no views about these issues.

Ordinary or ordinary reasonable member of the audience?

1. As Bathurst CJ commented in Sunol at [32], there is a divergence of opinion as to whether the assessment of the capacity of the impugned act to incite is to be made by reference to the "ordinary", "reasonable" or "ordinary reasonable" member of the relevant audience. The Chief Justice expressed a preference for the question to be answered having regard to the effect of the act on an "ordinary member" of the relevant group. He explained (at [34]): [T]hat, of my view, can be measured only be reference to an ordinary member of the class to whom the public act is directed. To determine the issue by reference to a reasonable person without considering the particular class to whom the speech or public act is directed would, in my opinion, impose an undue restriction on the operation of the legislation.
2. Allsop J, on the other hand, took the view that the question is ultimately one to be determined having regard to the context in which the offending act took place, reasoning (at [61]): The question of the audience against which the public act is to be assessed for the purposes of s 49ZT(1) may be very important in any individual case. It will be intimately connected with the whole context of the public act. Thus, in an emotionally charged public meeting where reason has been pushed aside by passion or hatred, it may be inappropriate to posit the standard of the "reasonable" member of the class which may be aptly described as a group of impassioned bigots. The question is ultimately one of fact in the context in which the act takes place. If the general public is being addressed, bearing in mind the approach conformable with Brown and Coco, the ordinary and reasonable members of the public may be appropriate to consider.
3. In Jones, Ward JA at [53] referred to, but did not determine, the issue characterising the test as the "ordinary member (or perhaps an ordinary reasonable member)" (at [61], [62]).
4. More recently in Margan, the Court of Appeal appeared to endorse the approach taken by Bathurst CJ in Sunol, stating (at [76]) that the assessment should be made by reference to the ordinary member of the audience to whom the public act is directed, not the ordinary reasonable member.

Consideration

1. The offending content conveys a number of messages:

• That US President Obama's friends include "gay paedophiles"
• That President Obama and the US Democratic party support homosexuals and same sex marriage and, as a consequence, paedophilia
• That Barrie Drewitt Barlow [a homosexual man who announced that he had fathered a child using a surrogate mother] is a paedophile
• That same sex marriage is a ruse being used to legalise paedophilia
• That the "movers and shakers" in the campaign for same sex marriage are motivated so they can "get little boys to rape"
• That gay men have a "sexual need" to rape children.

1. In Western society paedophilia is unlawful and attracts strong moral condemnation. It is difficult to think of a more damaging slur or insult than to accuse a person of being a paedophile.
2. Self-evidently the likely audience in this case is not a homogenous group. It is probable that a range of reactions to the offending content would be invoked. It is improbable that it had the capacity to incite Mr Burns or those who share his views about homosexuality and same sex marriage, to have hatred towards or serious contempt for homosexual persons. Nor in our opinion, is it likely to have the capacity to incite those reactions in uses who may not share Mr Burns' views but are nonetheless rational and possess some basic understanding about those issues. As noted, we think it likely that the audience would include people, like Messrs Sunol and McKee, who are strongly opposed to same sex marriage. We think the use of intemperate language and the tone of the offending content was capable of stirring up, feelings of hatred toward and severe contempt for male homosexuals in the ordinary member of that sub-group.
3. We find the offending content was capable of inciting the ordinary member of the relevant group to have hatred towards and severe contempt for male homosexuals.

On the grounds of

1. We find that one of the "real", "genuine" or "true" reasons for those reactions having the capacity to incite the notional ordinary member of the relevant audience to have hatred towards and severe contempt for male homosexuals, was their sexuality.

Do any of exceptions apply?

1. Section 49ZT(2) operates to except certain public acts which might otherwise be unlawful by the operation of s 49ZT(1). Mr Sunol bears the onus of establishing that an exception applies (s 104 of the Act). He relies on s 49ZT(2)(c), which states: (2) Nothing in this section renders unlawful: … (c) a public act, done reasonably and in good faith, or academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.
2. Mr Sunol submits that his motivation in placing the offending link on his website was to encourage discussion in the public interest about the same sex marriage debate.
3. To avail himself of the exception Mr Sunol must establish on the balance of probabilities that his action in communicating the offending content was done:

• Reasonably and in good faith
• For academic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

1. Mr Sunol asserts that there is scientific evidence that homosexuals have a propensity to "rape or sexually abuse children". He was unable to point to any supporting material.
2. There is a range of opinion within the community about whether same sex marriage should be legalised. The offending content goes somewhat further than voicing strong opposition to same sex marriage. It promotes the view that it should not be permitted because homosexual men have a tendency to sexually abuse children.
3. Even if accepted, as claimed by Mr Sunol, that the offending act was done in good faith and not motivated by ill-will or other improper motive (see for example, Western Aboriginal Legal Service v Jones [2000] NSWADT 102; Jones v Toben No 2 [2003] FCAFC 137; (2003) 199 ALR 1), we are not satisfied having regard to the inflammatory tone and intemperate language of the offending content together with the lack of any evidence of steps taken by Mr Sunol to determine whether there was any basis for the proposition that male homosexuals have a tendency to sexually abuse children, that it could be said that his act in communicating the offending content was done "reasonably".
4. Mr Sunol has not discharged the onus of establishing that his public act was done reasonably. Therefore the defence in s 49ZT(1)(c) cannot be relied upon.

Summary

1. The complaint made by Mr Burns is substantiated.

Relief

1. At the hearing we decided to give the parties the opportunity to make submissions about what if any orders should be made under s 108(2) of the Act, if we determined the complaint was substantiated. We did so in part because Mr Sunol advised that he had lodged an appeal against the decision in Sunol 2015 to order that he refrain from publishing material on his or third party websites material of the type the subject of this complaint. The appeal was dismissed: Sunol v Burns [2015] NSWCATAP 207. We direct: 1. Within 14 days of the date of this decision the applicant must: (i) file with the Tribunal and serve on the respondent a document setting out the orders, if any, he seeks under s 108(2) of the Anti-Discrimination Act 1977 (NSW) and any evidence and submissions in support of that application; (ii) notify the Tribunal and the respondent in writing whether he consents to the issue of what orders, if any should be made, being determined "on the papers". 2. Within 14 days of the receipt of the material referred to in Order (2) the respondent must: (i) file with the Tribunal and serve on the applicant any evidence and submissions in reply; (ii) notify the Tribunal and the applicant in writing whether he consents to the issue of orders, being determined "on the papers". I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 21 January 2016 - Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 January 2016