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[2008] NSWADT 339
mixed. Clause 3 of the conciliation agreement is registered and takes effect as an order of the Tribunal; clause 4 is not registered.
Henry Collier asked the Tribunal to turn a conciliation promise into a binding order so that John Sunol could be punished if he kept posting anti-gay material online. The Tribunal refused to register the promise not to insult Collier personally because insulting someone is not against discrimination law. It did register the promise not to vilify homosexuals. It decided Sunol had posted extreme messages on publicly accessible Yahoo Groups calling the Mardi Gras filthy demonic full of paedophiles and evil and urging God to destroy it. Because most people involved in the Mardi Gras are homosexual these messages were held to stir up hatred against gay people. The messages were therefore a fresh breach of the law and the no-vilification promise became a Tribunal order that Sunol must obey.
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Henry Collier had already succeeded in 2005 in persuading the Administrative Decisions Tribunal that John Sunol had vilified homosexuals by posting material on internet websites: Collier v Sunol [2005] NSWADT 261. That earlier decision led to orders requiring Sunol to remove the material, refrain from repeating it and publish an apology. The parties then reached a conciliation agreement at the Anti-Discrimination Board on 15 November 2007. Clause 3 of that agreement obliged Sunol not to post any further material on any website (whether controlled by him or not) that referred to homosexual people or homosexuality in a manner breaching the Anti-Discrimination Act 1977 (NSW) (AD Act). Clause 4 went further and prohibited Sunol from posting any material that disparaged Collier personally.
In 2008 Collier complained that Sunol had breached clause 3. He produced 35 annexures said to be print-outs or emails showing fresh publications on two Yahoo Groups: “sunoljcd2005” and “sunolcomments”. After filtering out material that pre-dated the agreement, material that disparaged Collier personally and material that attacked the Tribunal itself, the Tribunal was left with eight annexures published between 13 February and 25 May 2008. These contained statements such as “Children should be banned from that filthy gay and Lesbian mardi Gras … child paedophilia perverted show”, “I dedicate myself to bring down this bloody faggots Parade”, “Mardi Gras is run by evil spirits … full of paedophilia”, “God will come down on it and wipe it off the face of the earth” and “I will never apologize to sexuality fgor the sin that they are in”.
Sunol denied posting the material, alternatively argued that any posting was not a “public act” because the sites were password-protected or required registration, and finally contended that the comments were directed only at the Mardi Gras event rather than at homosexuals as a class. The Tribunal heard evidence on 3 September 2008. Collier explained that he received the messages by email because he had subscribed to the groups; the email headers showed they came from Sunol’s account. Screen dumps for two annexures were taken directly from the websites. The Tribunal accepted Collier’s evidence, rejected Sunol’s fraud and cut-and-paste theories, and found that the publications were made by Sunol.
Magistrate Hennessy (Deputy President) declined to register clause 4 because disparagement is not unlawful under the AD Act and therefore could not have been the subject of an order under s 108(2)(b). She did register clause 3 after finding that seven of the eight annexures (excluding a passage in annexure 6 that merely expressed contempt for vilification laws) breached s 49ZT(1). The registered clause thereby became an enforceable order of the Tribunal.
The decision rests on a strict reading of the statutory preconditions in s 91A(6)–(9). Before registering any clause the Tribunal had to be satisfied that (a) the agreement had been signed, (b) the application was brought within six months, (c) the clause could have been the subject of an order in a complaint proceeding, and (d) there had been non-compliance. The first two preconditions were common ground. The third precondition excluded clause 4 because s 108(2)(b) only authorises injunctions against conduct “rendered unlawful by this Act”. Disparagement is not rendered unlawful by any provision; hence registration was refused at [10].
The fourth precondition required proof of breach of clause 3. That in turn required the Tribunal to determine whether the annexures were “public acts” that incited hatred towards, serious contempt for or severe ridicule of homosexuals on the ground of their homosexuality. The Tribunal’s reasoning on the public-act question is grounded in both statutory text and precedent. Section 49ZS defines “public act” to include “any form of communication to the public”. Following Jones v Toben [2002] FCA 1150 (applied at [27]) and the earlier Collier v Sunol decision at [26], the Tribunal held that a requirement to register or confirm age does not prevent material from being communicated to the public. Any internet user could register for free; the sites were therefore analogous to a book that must be purchased before it can be read. The formatting of the emails, the appearance of Sunol’s account details and the absence of any credible evidence of hacking led the Tribunal to conclude that Sunol himself had posted the material.
On the incitement question the Tribunal applied the principles summarised in Burns v Dye [2002] NSWADT 32 (extracted at [31]) and affirmed in Veloskey v Karagiannakis and John Fairfax Publications Pty Ltd v Kazak. The ordinary reasonable person test is objective; the question is whether the material has the capacity to “urge, spur on, stir up, animate or stimulate” the relevant emotion. Intention and actual effect are irrelevant. The language in the 2008 annexures was more extreme than the 2005 statements that had already been held to breach the section. Phrases such as “bring this piece of living shit down in full”, “God will come down on it and wipe it off the face of the earth” and the repeated coupling of “Mardi Gras” with “paedophilia”, “evil spirits”, “drug lords and criminals” were found at [35] to satisfy the incitement test.
Causation was dealt with at [36]–[38] by adopting the “substantially contributing factor” formulation from Veloskey. Although the publications were literally about the Mardi Gras, the Tribunal took judicial notice that the vast majority of organisers and participants are homosexual. The clear inference was that the attributes of evil and criminality were being ascribed to homosexuals as a class. This distinguished the present facts from the 2005 decision in which the Tribunal had been unwilling to draw that link on the evidence then before it. Annexure 6’s attack on the vilification laws themselves was severed and treated as contempt rather than vilification.
Because breach of clause 3 was established, that clause was registered and became a Tribunal order.
Before this decision the law on internet vilification in New South Wales was already settled in several respects. Burns v Dye [2002] NSWADT 32 had established the ordinary reasonable person test, the irrelevance of intent and the dictionary meanings of “hatred”, “serious contempt” and “severe ridicule”. Jones v Toben had confirmed that posting on an unprotected website is a public act for the purposes of analogous Commonwealth legislation. The 2005 Collier v Sunol decision and its appeal had applied those principles to Mr Sunol’s earlier publications and had confirmed that orders could extend to websites not controlled by the respondent.
What this 2008 decision added was an authoritative ruling on two practical internet issues. First, it clarified that a simple registration or age-verification gate does not render a site “private”. The analogy of buying or borrowing a book is now part of the jurisprudence. Second, it showed that a tribunal will look behind formal disclaimers or claims of hacking when email headers and group formatting point to the respondent as the author. The decision also tightened the causation analysis for event-based vilification: once judicial notice is taken of the overwhelmingly homosexual character of the Sydney Gay and Lesbian Mardi Gras, attacks on the event can more readily be characterised as attacks on homosexuals.
After the decision the registered clause operated as an injunction. Any further breach exposed Sunol to contempt proceedings. The decision has therefore strengthened the enforceability of conciliation agreements that incorporate statutory standards. It also put respondents on notice that repeated use of religious or moral rhetoric will not immunise material that, read objectively, incites the prohibited emotions. The obiter warning about possible referral for contempt of the Tribunal itself added a further deterrent layer.
Paragraph [10]: “Disparaging Mr Collier, or anyone else, is not rendered unlawful by the AD Act. Consequently neither s 108(2)(b), nor any other provision in s 108, permits the Tribunal to make an order preventing disparaging publications.”
Plain English: You can only turn a conciliation promise into a court order if the thing promised not to be done is actually against the law. Insulting someone personally is not against this Act, so that part of the agreement stays as a private promise only.
Paragraph [28]: “Posting material on the two websites relevant to these proceedings constitutes a public act because it is a form of communication to the public. Any member of the public with access to the internet who registers and indicates that they are over 18, can read the material. No one is prevented from accessing the site.”
Plain English: Requiring someone to type in a name and tick a box saying they are an adult does not make the website private. If anyone on the internet can get in, it counts as publishing to the public.
Paragraph [35]: “The ordinary reasonable reader, reading annexures 1 to 8 (apart from that part of Annexure 6 referred to above) would understand that he or she was being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons … This language, together with the strong epithets including ‘filthy’, ‘demonic’ ‘evil’ and ‘perverted’ satisfies me that these publications reach the relevant standard.”
Plain English: An ordinary person reading these posts would feel they were being urged to hate or despise gay people. The words are not just expressing an opinion; they are whipping up strong negative feelings.
Paragraph [38]: “The clear inference from these publications is that the Mardi Gras is an event run and organised by homosexuals; those people are ‘evil’, ‘paedophiles’ ‘drug lords’ and ‘criminals’ and the Mardi Gras should be brought down, and those involved ‘punished’ and wiped off the face of the earth. … there is a sufficient connection those people as a group and homosexuality to conclude that homosexuality was a substantially contributing factor to the incitement.”
Plain English: Even though Sunol wrote about the parade, everyone knows the parade is a gay event. Attacking the parade in those terms is really attacking the gay people who run and attend it. That link is strong enough to breach the law.
The decision is triggered whenever a party seeks to register a conciliation agreement under s 91A and the respondent is alleged to have continued publishing on the internet. Three factual ingredients are critical. First, the material must be placed on a website or forum that is accessible after no more than free registration or age verification. Second, the language must be capable of being read by the ordinary reasonable person as urging hatred, serious contempt or severe ridicule rather than merely expressing strong disapproval. Third, there must be a sufficient nexus between the target (here the Mardi Gras) and the protected attribute (homosexuality) so that the attribute is a substantially contributing factor.
The precedent is not limited to Yahoo Groups. Any contemporary platform—Facebook groups, Reddit subreddits, Discord servers or Mastodon instances—that operates behind a lightweight gate is likely to be treated the same way. Claims that “someone hacked my account” will be scrutinised against the technical evidence of headers, IP logs and the respondent’s own failure to change passwords or complain contemporaneously. Religious or moral framing does not provide a defence; the objective effect on the ordinary reasonable reader is decisive. Finally, the decision confirms that each publication must be assessed individually; a course of conduct cannot be lumped together unless each post independently meets the test.
Subsequent decisions have treated Collier v Sunol [2008] NSWADT 339 as authoritative on the public-act question for lightly gated internet forums. In Sunol v Collier [2012] NSWCA 44 the Court of Appeal cited the 2008 reasoning with approval when considering the breadth of orders that could be made against repeated online vilification. The “substantially contributing factor” analysis for event-based vilification has been applied in complaints concerning other public events where the link to a protected attribute is clear.
The decision has also been followed in cases examining whether registration walls or “private” Facebook groups remove material from the public domain. Tribunals have consistently held that if any member of the public can gain access after a simple process the communication remains public. The distinction drawn between clause 3 (registrable because it tracks the statutory prohibition) and clause 4 (not registrable because disparagement is not unlawful) has been cited in several conciliation-agreement registration applications, reinforcing the strict jurisdictional limit in s 91A(8).
Later cases have not overruled or distinguished the incitement findings. Instead they have cited the 2008 decision as an example of language that sits comfortably above the threshold. The obiter warning about contempt referrals has been echoed in several subsequent matters where respondents have published attacks on the Tribunal itself.
Several questions remain unresolved. First, at what point does a registration or verification process become sufficiently onerous to take a site outside the statutory definition of “public act”? The 2008 decision involved free, instant registration. A site that required payment, identity verification or approval by a moderator might be argued to be different, though no later case has tested the boundary.
Second, the precise degree of connection required between an event and a protected attribute is still fact-sensitive. The Tribunal took judicial notice of the overwhelmingly homosexual character of the Mardi Gras. Would the same inference be drawn for other events that have a substantial but not majority participation by a protected group?
Third, the interaction between registered conciliation clauses and s 49ZT(2) defences (fair report, public interest, academic discussion) was not argued. Sunol did not rely on the defences; a future respondent who does so may require the Tribunal to decide whether the defences apply at the registration stage or only in fresh complaint proceedings.
Fourth, the enforcement mechanism once a clause is registered remains unclear in practice. Although the clause becomes an order of the Tribunal, the AD Act does not contain an explicit contempt sanction for breach of such an order. The Tribunal’s reference to s 131 of the Administrative Decisions Tribunal Act 1998 suggests a pathway, but the precise procedure has not been litigated.
Finally, the decision predates widespread use of social-media algorithms that push material to non-subscribers. Whether algorithmic dissemination enlarges the “public” even further is a question that later courts will have to address.
CITATION: Collier v Sunol [2008] NSWADT 339 This decision has been amended. Please see the end of the decision for a list of the amendments.
APPLICANT Henry Collier PARTIES: RESPONDENT John Sunol
BEFORE: Hennessy N - Magistrate (Deputy President)
CATCHWORDS: Register conciliation agreement
Collier v Sunol (2005) NSWADT 261Burns v Dye [2002] NSWADT 32 Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 Dow Jones & Co Inc v Gutnick [2002] HCA 56 Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 CASES CITED: John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 Kazak v John Fairfax Publications Limited [2000] NSWADT 77 Jones v Toben [2002] FCA 1150 Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18 Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102
APPLICANT F Berglund, barrister REPRESENTATION: RESPONDENT C Olsen, solicitor
ORDERS: The following clause of a conciliation agreement between Mr Collier and Mr Sunol dated 15 November 2007 is registered: John Sunol agrees not to post any further material on any website whether controlled by him or not that refers to homosexual people or homosexuality in a manner which breaches the relevant clauses of the New South Wales Anti-Discrimination Act
REASONS FOR DECISION Introduction 1 This is an application by Mr Collier to register certain clauses of a conciliation agreement made between him and Mr Sunol at the Anti-Discrimination Board (the Board) on 15 November 2007. The effect of registration is that the clauses can be enforced as an order of the Tribunal. The conciliation agreement was signed following a complaint Mr Collier made to the Board that Mr Sunol had vilified homosexuals by posting material on internet websites in breach of s 49ZT of the Anti-Discrimination Act 1977 (AD Act). 2 The clauses of the conciliation agreement that Mr Collier seeks to register are clause 3 and the first part of clause 4: 3. John Sunol agrees not to post any further material on any website whether controlled by him or not that refers to homosexual people or homosexuality in a manner which breaches the relevant clauses of the New South Wales Anti-Discrimination Act. 4. John Sunol agrees not to post any material on any website whether controlled by him or not that disparages Henry Collier . . . 3 Mr Collier provided a statement attaching copies of thirty-five emails and print outs from websites where he says Mr Sunol has published material in breach of these terms. Mr Collier had previously complained to the Board that Mr Sunol had vilified homosexuals. Following referral, the Tribunal decided that five statements previously made by Mr Sunol vilified homosexuals in breach of the AD Act: Collier v Sunol [2005] NSWADT 261 (17 November 2005). In a separate decision, the Tribunal ordered certain remedies: Collier v Sunol (No 2) [2006] NSWADT 88 (24 March 2006). On appeal, the Appeal Panel varied the orders. Mr Sunol was ultimately required to remove the offending material from every website controlled by him, refrain from publishing that material again, including statements to the same or similar effect, on any website whether or not controlled by him, and to publish an apology: Sunol v Collier (EOD) [2006] NSWADTAP 51 (27 September 2006). Tribunal's powers to register conciliation agreements 4 The terms governing the Tribunal's power to register the clauses of a conciliation agreement are set out in s 91A(6) to (9) of the AD Act: (6) If a party to a recorded agreement is of the opinion that any other party has not complied with the clauses of the agreement, the party may, not later than 6 months after the date of the agreement, apply to the Tribunal to have the agreement registered. (7) The party making the application must serve a copy of the application and the agreement on each other party. (8) If the member of the Tribunal who hears the application is satisfied that a party to the agreement has not complied with the clauses of the agreement, the member is to register those clauses of the agreement (if any) that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint. (9) The clauses of an agreement that are registered in accordance with this section are taken to be an order of the Tribunal and may be enforced accordingly. If the member of the Tribunal who hears the application is satisfied that a party to the agreement has not complied with the clauses of the agreement the member is to register those clauses of the agreement (if any) that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint. 5 Consequently, before registering a clause of a conciliation agreement, the Tribunal must be satisfied that: 1. Mr Sunol and Mr Collier signed a conciliation agreement; 2. Mr Collier applied to the Tribunal to have the agreement registered within 6 months of the date of the agreement; 3. the clauses of the agreement which Mr Collier is seeking to register could have been the subject of an order in proceedings relating to a complaint; and 4. Mr Sunol has not complied with the agreement. Issues 6 The parties agree that the first two requirements have been met. In relation to the third requirement, Mr Sunol agrees that clause 3 of the agreement could have been the subject of an order by the Tribunal in proceedings relating to a complaint of homosexual vilification but says that clause 4 could not have been the subject of such an order. 7 In relation to the fourth requirement, Mr Sunol says that he has complied with clause 3 of the agreement because he has not posted any further material on any website, whether controlled by him or not, that refers to homosexual people or homosexuality in a manner which breaches the homosexual vilification provisions of the AD Act. According to Mr Sunol he has sent private emails about homosexuals but has not posted the material referred to by Mr Collier on any public internet site. Alternatively, Mr Sunol says that if he did post material on a website, that publication does not amount to a 'public act' because the website is password protected. Finally, Mr Sunol says that some of the material referred to by Mr Collier relates to the Sydney Gay and Lesbian Mardi Gras and does not vilify homosexuals. 8 The issues can be summarised as follows: 1. Could clause 4 have been the subject of an order in proceedings in relation to a complaint? 2. Which of the 35 publications attributed to Mr Sunol, are relevant to these proceedings? 3. Do those publications breach the homosexual vilification provisions of the AD Act ? Could clause 4 have been the subject of an order in proceedings in relation to a complaint? 9 Section 108(2)(b) allows the Tribunal to make an order preventing Mr Sunol from continuing or repeating any act of homosexual vilification. It states that: (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations, 10 Clause 4 of the agreement was that Mr Sunol agrees not to post any material on any website whether controlled by him or not that disparages Mr Collier. Disparaging Mr Collier, or anyone else, is not rendered unlawful by the AD Act. Consequently neither s 108(2)(b), nor any other provision in s 108, permits the Tribunal to make an order preventing disparaging publications. I decline to register clause 4 of the agreement. Which of the 35 publications attributed to Mr Sunol are relevant to these proceedings? 11 The consequence of declining to register clause 4 of the agreement is that the material referred to by Mr Collier in his statement at paragraphs 20 to 25 and annexures 14 to 18 is not relevant. That material refers to Mr Collier in terms including "liar", "bullshit artist", "bastard" and "evil". In his statement at paragraphs 26 to 51 and annexures 19 to 35, Mr Collier also includes material which he says Mr Sunol has published about the Tribunal and its processes. This material does not breach the homosexual vilification clauses of the AD Act and I have not taken it into account for the purpose of these proceedings. However I wish to put Mr Sunol on notice that the Tribunal will consider reporting any further material it regards as contemptuous to the Supreme Court in accordance with s 131 of the Administrative Decisions Tribunal Act 1998. 12 The material referred to in paragraphs 4 to 19 and annexures 1 to 13 of Mr Collier's statement purports to contain examples of publications vilifying homosexuals in breach of clause 3 of the agreement. However, several of those publications were alleged to have been made prior to the date of the conciliation agreement on 17 November 2007. The publications which pre-date the conciliation agreement, and which consequently cannot be taken into account because they were not published in breach of the agreement, are those referred to in paragraphs 15, 16, 17, 18 and 19 of Mr Collier's statement. They relate to annexures 9, 10, 11, 12 and 13. The publications which are relevant for the purposes of these proceedings are those contained in paragraphs 4 to 14 relating to annexures 1 to 8. Do annexures 1 to 8 breach the homosexual vilification provisions of the AD Act? 13 Content of the publications. Below is the material, including spelling, typographical and grammatical errors, set out in annexures 1 to 8 of Mr Collier's statement: On 25 May 2008 at 3:14 p.m. Mr Sunol published the following statement on the website : "jsut the same as Children should be banned from in that filthy gay and Lesbian mardi Gras in Sydney, child paedophilia perverted show in the streets of Sydney" (Annexure 1) On 20 March 2008 at 12:28 am Mr Sunol published the following statement on the website: : "In setting pre-cendents I got 5,000 signatures back in 1990 to sign with me against the Mardi Gras which is very evil. full of corruption and Child paedophilia, much like Orkopolos the member for Swansea who has just been convicted. I have a duty under God and the law to expose this and I shurly will do it. So I was the next best choice to set up and dmake a pre-cedent with" (Annexure 2) On 18 March 2008 at 11:45 am Mr Sunol published the following statement on the website : "go back to your faggot mate and shut your bloody big trouble making mouth" (Annexure 3) On 3 March 2008 at 12:51 pm Mr Sunil published the following statement on the website : "I dedicate myself to bring down this bloody faggots Parade." (Annexure 4) On 3 March 2008 at 12.00 pm Mr Sunol published the following statement on the website : "Mardi Gras is run by evil spirits and those who have an alternative agenda to bring around destruction to Australian society. it is full of paedophilia and other wickedness of such . . . but I dedicate my whole life to God to bring this piece of living shit down in full." (Annexure 5) Mr Sunol continues in the same posting: "Mardi Gras is a blot upon the Land and bringing a curse upon Sydney and its inhabitants which is going to lead on to all Australians and those who follow this event." (Annexure 5) On 2 March 2008 at 9:01 am Mr Sunol published the following statement on the website : "I was able to be in the crowd and see what I need to see and gather information to later use to turn people off this filthy, demonic and bl! Asphemous, pererted event run by drug lords and criminals" (Annexure 6) Mr Sunol continues in the same posting: "Sydney is wicked and Gods judgement is going to come upon this city, because of this sin from this event and other sins. If this event is not got ridden of emediataly without delay Sydney will find itself under attack by enemies and God will moove to punish the city and the people involved in such a wicked evil blasfoumous event as the Mardi Gras" (Annexure 6) On 2 March 2008 at 9:01 am Mr Sunol published the following statement on the website : "As for the discrimination laws and laws of vilificast! I am not willing to obey these and if I go to prison. I go to prison as a martyr for Jesus Christ and i use this to promote the truth of this event. i also stir up those inside prison to break the faggots law as well without thinking and in complete and utter contempt of the law and those who prisoned me" (Annexure 6) On 28 February 2008 at 7:53 pm Mr Sunol published the following statement on the website : "This event is getting so big and unruly God will come down on it and wipe it off the face of the earth . . . they need not know that if they catch my taxi they support anti-gay mrdi gras groups as that is where my money will go and who they will be supporting by using my services" (Annexure 7) On 13 February 2008 at 5:44 am Mr Suno published the following statement on the website: : "I will never apologize to sexuality fgor the sin that they are in. I refuse to do such Sin is wicked and this is against Gods holy order and we must keep it this way." (Annexure 8) 14 Definition of homosexual vilification. Homosexual vilification is made unlawful by s 49ZT of the AD Act: (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. 15 Mr Sunol did not rely on any of the defences in s 49ZT(2). 16 Definition of public act. A public act is defined in s 49ZS as follows: "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. 17 Mr Sunol's submissions. There are four main bases on which Mr Sunol says some or all of the material does not breach the homosexual vilification provisions. The first three relate to the issue of whether Mr Sunol has performed a public act. The fourth relates to whether or not some of the material, even if the result of a public act, vilifies homosexuals. 1. The publications were made in material that was sent by him as a private e-mail to an individual third-party and was not posted by him on the website. 2. A third party has fraudulently used his email address and posted material on the internet. 3. The website and : are password protected and are therefore not accessible to the general public. 4. The comments are about the Mardi Gras which is an annual event held in Sydney. Those comments do not vilify homosexuals. 18 We deal with each of these submissions below. Were the 8 publications public acts performed by Mr Sunol? 19 The parties agreed that Annexures 1-6 were copies of emails Mr Collier had received. Mr Collier said he has elected to have messages on the message board of the website sent separately to his e-mail address. He says that receiving the messages by email alerts him to the material that has been posted on the website. He also said that the material he receives in this way via e-mail is identical to the message as posted by Mr Sunol on the website apart from the formatting. For the purpose of preparing his statement he copied the emails rather than downloading the material from the website. 20 Mr Sunol's evidence was that Annexures 1, 7 and 8 were private emails that were cut and pasted on to the sunolcomments website by another person or persons. His evidence in relation to the remaining annexures was that they are private emails placed on web sites by another person. He says either that they were private emails or that someone fraudulently changed the email address and posted the message in his name. While he agreed that he has a password on his email account he says that there are ways a person can access another person's email account and that is what happened in this case. 21 Mr Olsen, representing Mr Sunol, submitted that the emails are secondary evidence and that a printout or "screen dump" directly from the website would have been the best evidence of publication on the websites. I agree with that submission, however I was persuaded by Mr Collier's evidence that the content of the messages in Annexures 1-6 did appear on the relevant websites. Mr Collier explained that in the heading to the message next to the word "from" the following appears: or sunoljcd2005@yahoogroupscom. Mr Collier explained that these are the email addresses of the message groups relevant to these proceedings. After the email address, the following appears: "on behalf of John Christopher sunol []" The address in brackets is Mr Sunol's email account. I accept Mr Collier's evidence that the fact that the email is formatted in this way indicates that the comment was posted by a person accessing the group site and using Mr Sunol's email address to write a message. Mr Sunol denies that he posted the content of the emails on the message board. He says, among other things, that someone else may have fraudulently used his email address and posted the message in his name. 22 I accept Mr Collier's evidence despite Mr Sunol's denials and despite various matters that Mr Olsen put to him. These matters were firstly that the annexures did not have message numbers. Mr Collier's response was that while the messages posted on the websites have message numbers, when they are sent as emails the message numbers do not appear. Secondly, Mr Olsen put to Mr Collier that a person could "cut and paste" messages from websites or emails and re-produce them in a different form. Mr Olsen showed Mr Collier a document (Exhibit 2) and put it to him that this document was proof that emails can be cut and pasted. While Mr Collier conceded that this was possible, he had no reason to suspect that that had occurred in relation to any of the disputed material. Thirdly, Mr Olsen put to Mr Collier that these annexures were private emails that had been posted on to a website by someone else. Mr Sunol presented evidence that another person who was a regular user of the website, Mr Rod Swift, had posted a message on 13 September 2007 saying that: John (Sunol) has now resorted to replying directly to people who post on this email list, trying to peddle his lies without public scrutiny I urge EVERY person who receives a private email from sunoljc32005etc to change the email to or add to the CC line of the email - so that John's posts are exposed to public scrutiny. He deserves to be scrutinised for his lies, and his evil and filthy nature exposed to the truth. 23 Mr Collier conceded that he had posted some of Mr Sunol's emails on to websites but Annexures 1-8 did not fall into that category. Neither was he persuaded that anyone else posted that material on the website because Mr Sunol's email address appears on each of the documents. I accept this evidence and reject Mr Sunol's assertion that someone else has accessed his email account and fraudulently used his email address to send messages. If he genuinely thought that someone else knew his password and was using his email without his consent, it is likely that he would have changed the password or denied having written the material in the email. 24 The material in annexure 7 and 8 is material copied directly from the website as a "screen dump". I reject Mr Sunol's submission that these annexures (and Annexure 1) were cut and pasted on the sunolcomments site by another person. Does the fact that a person must enter a password to access the website mean that publications on that website are not public acts? 25 It was common ground that in order to access the website , a person merely needs to type that address into their internet browser. However, in relation to there is a more complicated process. When the user first accesses the website they receive the message "you have reached an age-restricted area of Yahoo Groups." The message asks the person to register by providing the name of their account and a password. Any person is eligible to register. No approval is needed and registration is open to any member of the public. On registration a person nominates a user name and a password. 26 Mr Sunol submitted that posting material on was not a public act because he maintains that the site is "password protected". He relies on the decision in Collier v Sunol (2005) NSWADT 261 at [33] in which the Tribunal said: We have no doubt that the act of posting written text on a website that is not password protected and therefore is publicly accessible falls within paragraph (a) of the definition of 'public act' in s 49ZS. It constitutes a 'form of communication to the public'. 27 Mr Sunol also highlighted the decision of the Federal Court in Jones v Toben [2002] FCA 1150 in support of his submission. That decision was referred to by the Tribunal in Collier v Sunol (2005) NSWADT 261 at [34]: 34 In Jones v Toben [2002] FCA 1150, the Federal Court held that posting material on a site of this nature was an act 'not done in private' for the purposes of the vilification clauses of the Racial Discrimination Act 1975 (Cth). Section 18C(2) of this Act states that 'an act is taken not to be done in public if it… causes words, sounds, images or writing to be communicated to the public…' At [73 - 75], Branson J said:- 73 In my view, the placing of material, whether text, graphics, audio or video, on a website which is not password protected is an act which causes words, sounds, images or writing to be communicated to the public in the sense that they are communicated to any person who utilises a browser to gain access to that website. 74 I conclude that the placing of material on a website which is not password protected is an act which, for the purposes of the [Race Discrimination Act], is taken not to be done in private… 75 I further conclude that the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publication, in that it allows individuals who access the website with a browser to read that text and see those graphics. 28 It was Mr Collier's submission that just because a member of the public needs to register on line before reading the material, that does not take it out of the public realm. He used the analogy of a person having to purchase or borrow a book before they could read it. The existence of that step does not prevent the publication of the book from being a public act. We agree with Mr Collier's analysis. Posting material on the two websites relevant to these proceedings constitutes a public act because it is a form of communication to the public. Any member of the public with access to the internet who registers and indicates that they are over 18, can read the material. No one is prevented from accessing the site. Does the material vilify homosexuals? 29 Similar statements to those in the annexures 1-8 were the subject of the Tribunal's decision in Collier v Sunol [2005] NSWADT 261. The Tribunal found that 5 of the 8 publications in dispute were unlawful. These statements (retaining the original numbering) were as follows: (d) 'I have spoken out sharply against the Gay Lobby and feminist lefttist social changes which are anti-God and out to destroy todays society. This includes, Same sex partners Marriage: Adoption for homosexual couples: Decriminalised drugs, Mariuajana and Heroine ect: and other such evils.' (e) 'Faggots are all wicked evil people.' (f) 'I am willing to go to prison for being dissobedient to any law of such and I will incite others to do so as well.' (h) 'God will burn Sydney to the Ground because of the evilness of these fags.' (i) 'I hope and pray that God mooves and brings more of the religious right into Australia to keep the poofs and faggs kept held down.' 30 Mr Sunol appealed to the Appeal Panel against the Tribunal's findings, but the Appeal Panel found no error of law in relation to the Tribunal's reasoning or conclusion on this issue: Sunol v Collier (EOD) [2006] NSWADTAP 51. The Appeal Panel noted at [23] that: The statements in issue were not at the extreme end of the scale where they can be regarded as unarguably unlawful. Minds may legitimately differ as to whether the five statements meet the legal standard. Our task is to determine whether the Tribunal's conclusion that the five statements met the legal standard was not open to it as a matter of law. When the statements are read in context and Mr Sunol's position and status are taken into account, our view is that it was open as a matter of law for the Tribunal to come to the view that they were in breach of s 49ZT(1) of the AD Act . The Tribunal's evaluation in this case did not fall outside the bounds of reasonable judgement. Consequently it has not made an error of law. 31 It is convenient to adopt the Tribunal's summary of the legal principles set out in that case at [40] to [42] 40 The relevant principles . The judgment in Burns v Dye [2002] NSWADT 32 contains at [19 - 23] a convenient summary of the principles that we must bear in mind:- 19 … First, the word 'incite' is to be given its ordinary natural meaning which is to "urge, spur on, ... stir up, animate; stimulate to do something" (New Shorter Oxford English Dictionary, 1993) (Oxford); "urge on; stimulate or prompt to action" (the Macquarie Dictionary, third edition, 1997) (Macquarie). 20 Second, the vilification clauses of the Act do not make unlawful the use of words that merely convey hatred towards a person, or the expression of serious contempt or severe ridicule: Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701 at 78-266. 21 Third, proof of intention to incite, or that anyone was in fact incited, is not required. As noted in Western Aboriginal Legal Service Limited v Jones & Anor [2000] NSWADT 102 at [93]:"It is the capacity of the public act performed by a person which is significant, rather than the intent of the person who performed that act. Further, it is the likely effect rather than the actual effect of the public act which is significant."… 22 Four, the audience or potential audience of the public act should be assumed to be the "ordinary reasonable person" as defined by the Australian Broadcasting Tribunal in Inquiry Into Broadcasts by Ron Casey (1989) 3 BR 351 at 357 and quoted with approval in Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604 at p.10: The test to be applied is, in the Tribunal's view, an objective one. The yardstick should not be a person peculiarly susceptible to being roused to enmity, nor one who takes an irrational or extremist view of the relations among racial groups. The hypothetical listener should in the Tribunal's view, be described as an ordinary, reasonable person not immune from susceptibility to incitement, nor holding racially prejudiced views. 23 … the complainant must establish … that the public act must be capable of inciting hatred towards, serious contempt for or severe ridicule of a person or group of persons. These words are to be given their ordinary dictionary meaning . Kazak v John Fairfax Publications Limited [2000] NSWADT 77 [at 40] set out the following definitions: "hatred" means "intense dislike; detestation" (Macquarie), "a feeling of hostility or strong aversion towards a person or thing; active and violent dislike" (Oxford); "serious" means "important, grave" (Oxford); "weighty, important" (Macquarie); "contempt" means "the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account"(Oxford); the feeling with which one regards anything considered mean, vile, or worthless (Macquarie); "severe" means "rigorous, strict or harsh" (Oxford); "harsh, extreme"(Macquarie); "ridicule" means "subject to ridicule or mockery; make fun of, deride, laugh at"(Oxford); "words or actions intended to excite contemptuous laughter at a person or thing; derision" (Macquarie). 41 Subsequent decisions have affirmed these propositions: see for example Veloskey v Karagiannakis at [21 - 29]; John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSWADTAP 35 at [10]; Burns v Radio 2UE Sydney Pty Ltd & Ors [2004] NSWADT 267 at [12 - 14, 32 - 34]. 42 In Veloskey v Karagiannakis at [28] (see too John Fairfax Publications Pty Ltd v Kazak at [16]), the Appeal Panel stated a further proposition of significance:- 28 Thus, in the context of vilification clauses, the question is, could the ordinary reasonable reader understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race? The question is not, could the ordinary reasonable reader reach such a conclusion after his/her own beliefs have been brought into play by the public act?… 32 Overall, the language used in annexures 1 to 8 is more extreme than the language in the material in issue in Collier v Sunol [2005] NSWADT 261. Nevertheless, I must come to my own view, applying the objective test, as to whether the postings reach the standard set out in s 49ZT. 33 The publications were made during the period from 13 February 2008 to 25 May 2008. Annexures 1, 2, 3, 6, 7 and 8 were published in separate postings on different dates. Annexures 4 and 5 were published within the hour on the same date. Each posting, apart from annexures 4 and 5, must be assessed separately, they cannot be assessed as a whole. 34 Annexure 6 posted on 2 March 2008 at 9.01 am does not breach the homosexual vilification provisions. Rather, it is contemptuous of vilification laws themselves. As I have said, future publications of this kind may justify the Tribunal referring the matter to the Supreme Court. 35 In my view, the ordinary reasonable reader, reading annexures 1 to 8 (apart from that part of Annexure 6 referred to above) would understand that he or she was being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons. These passages "urge, spur on, ... stir up, animate; or stimulate to do something". They not only convey certain emotions and opinions, their tone is one of incitement. The ordinary reasonable reader would understand, by use of phrases including "bring down this bloody faggots Parade", "bring this piece of living shit down in full", "God will move to punish the city", and "God will come down on it and wipe it off the face of the earth" that he or she is being incited to hatred, severe ridicule or serious contempt: Veloskey v Karagiannakis at [28]. This language, together with the strong epithets including "filthy", "demonic" "evil" and "perverted" satisfies me that these publications reach the relevant standard. 36 The final question is whether the incitement in these postings is on the ground of the homosexuality of the person or members of the group. We adopt the analysis of the legal principles enunciated by the Tribunal in Collier v Sunol [2005] NSWADT 261 at [63] and [64]: 63 The principles governing this issue are summed up as follows in Burns v Dye [2002] NSWADT 32 at [24]:- 24 . . . We note that s 4A of the Act does not apply to vilification complaints. Section 4A provides that in relation to complaints of unlawful discrimination, where an act is done for one or more reasons and one of those reasons consists of unlawful discrimination, (whether or not it is the dominant or substantial reason), then that act is taken to be done for that reason. Consequently in the context of s 49ZT it is helpful to look at relevant cases, which dealt with the meaning "on the grounds of" before the 1994 amendment to the Act, inserting s 4A, took effect. Mathews DCJ in O'Callaghan v Loder [1984] EOC 92-023 at 75,499 took the view that the phrase "on the ground of" meant a "significant factor," "a substantially contributing factor" and "a causally operative effect". Her Honour used these clauses interchangeably. In Waterhouse v Bell (1991) 25 NSWLR 99 at p 106. Clarke JA used the phrase "an operative ground". 64 In Veloskey & Anor v Karagiannakis & Ors (EOD) [2002] NSWADTAP 18, the Appeal Panel used the phrase 'a substantially contributing factor'. We take this to be the preferable view. 37 Mr Olsen submitted that all the annexures except annexure 3, that part of annexure 6 referred to above, and annexure 8 refer, not to homosexuals in general, but to the Sydney Gay and Lesbian Mardi Gras. We agree with that assertion. Those annexures refer to the "Mardi Gras", the "event", the "bloody faggots Parade" and "this piece of living shit". In Collier v Sunol [2005] NSWADT 261 the Tribunal decided at [67] on the basis of the evidence and submissions in those proceedings, that some of the publications: . . . contain strong epithets and serious allegations and on the face of it are defamatory. But these epithets and allegations are directed only at 'the Mardi Gras', which would appear (we heard no evidence on the matter) to mean those involved in organising the annual Sydney event known by this name. 38 Mr Sunol refers in Annexure 4 and 5 to those who "run" the Mardi Gras and refers to them as "evil spirits" and "drug lords and criminals". Unlike the Tribunal in Collier v Sunol [2005] NSWADT 261 I am satisfied that homosexuality was a substantially contributing factor to the incitement in these publications. The event is called the Sydney Gay and Lesbian Mardi Gras. I take judicial notice of the fact that the vast majority of the people who organise and participate in the parade are homosexual. The clear inference from these publications is that the Mardi Gras is an event run and organised by homosexuals; those people are "evil", "paedophiles" "drug lords" and "criminals" and the Mardi Gras should be brought down, and those involved "punished" and wiped off the face of the earth. While the subject matter of the emails is the Mardi Gras, and those who run that event, there is a sufficient connection those people as a group and homosexuality to conclude that homosexuality was a substantially contributing factor to the incitement. Conclusion 39 It follows from these reasons that I am satisfied that Mr Sunol has not complied with clause 4 of the conciliation agreement signed by himself and Mr Collier on 15 November 2007 in that he has breached the AD Act by publishing the material in annexures 1 to 8 (excluding that part of Annexure 6 posted on 2 March 2008 at 9.01 am). Order 40 The following clause of a conciliation agreement between Mr Collier and Mr Sunol dated 15 November 2007 is registered: John Sunol agrees not to post any further material on any website whether controlled by him or not that refers to homosexual people or homosexuality in a manner which breaches the relevant clauses of the New South Wales Anti-Discrimination Act.
02/02/2009 - amendment to Representative name - Paragraph(s) coversheet
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.
Collier
Sunol
(1991) 25 NSWLR 99
Clause 3 of the conciliation agreement is registered and takes effect as an order of the Tribunal; clause 4 is not registered.