Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 6, 7,

8, 32, 39, 38, 77

Anti-Discrimination Act 1977 (NSW) s 49ZT

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 22

Australian Constitution s 116

Criminal Code 2002 s 750

Disability Discrimination Act 1992 (Cth)

Discrimination Act 1991 ss 2, 4, 4A, 4AA, 7, 67A, 68, 69, 70, 122, Dictionary

Evidence Act 2001 s 48

Human Rights Act 2004 ss 8, 14, 16, 28, 30

Human Rights Commission Act 2005 ss 42, 43, 47, 53A, 53CA, 53D, 53DA, 53E, 71, 78, 88

Legislation Act 2001 ss 5, 6, 122

Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth)

Racial Discrimination Act 1975 (Cth) s 18C

Subordinate

Legislation cited: Anti-Discrimination Amendment (Complaint Handling) Bill 2020 (NSW)

Cases cited: Barry v Futter [2011] NSWADT 205

Bogie v University of Western Sydney (1990) EOC 92-313

Bottrill v Sunol [2017] ACAT 81

Bottrill v Sunol [2018] ACAT 27

Briginshaw v Briginshaw [1938] HCA 34

Bropho v Human Rights & Equal Opportunity Commission [2002] FCA 1510

Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16

Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267

Burns v Dye [2002] NSWADT 32

Burns v Sunol [2012] NSWADT 246

Burns v Sunol (No.2) [2012] NSWADT 247

Carter v Brown [2010] NSWADT 109

Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284

Clinch v Rep [2020] ACAT 13

Clinch v Rep (No.2) [2020] ACAT 68

Collier v Sunol [2005] NSWADT 261

Damiano v Wilkinson [2004] FMCA 891

Dempster v National Companies and Securities Commission [1993] WASC 174

DLH v Nationwide News Pty Ltd (No.2) [2018] NSWCATAD 217

Dow Jones & Company Inc v Gutnick [2002] HCA 56

Farah v Sandilands [2021] ACAT 98

Jones v Toben [2002] FCA 1150

Jones v Trad [2013] NSWCA 389

Jumbunna Coal Mine NL v Victorian Coal Miners' Association (No.2) [1908] HCA 95

Kruger v Commonwealth [1997] HCA 27

Lipohar v R [1999] HCA 65

Margan v Manias [2015] NSWCA 388

Nationwide News Pty Ltd v Wills [1992] HCA 46

Penhall-Jones v NSW [2006] FMCA 927

Penhall-Jones v NSW [2007] FCA 925

Qantas Airways Ltd v Gama [2008] FCAFC 69

Rep v Clinch [2021] ACAT 106

Shaikh v NSW Fire Brigades (1996) EOC 92-808

Sivanantham v Commissioner of Police, NSW Police Service [2001] NSWADT 44

Sunol v Collier (No.2) [2012] NSWCA 44

Union Steamship Co of Australia Pty Ltd v King [1988] HCA 55

Young v Cassells (1914) NZLR 852

List of

Texts/Papers cited: Australian Bureau of Statistics, Australian Marriage Law Postal Survey, 2017 (National Survey Results, 15 November 2017)

Australian Human Rights Commission, 'Violence, Harassment and Bullying and the LGBTI Communities' (Webpage)

Carolyn Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012)

Dennis C Pearce and Robert S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, 2014)

International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)

Luke McNamara, Regulating Racism, Racial vilification laws in Australia (Federation Press, 2002)

Macquarie Dictionary

Neil Rees, Simon Rice and Dominique Allen, Australian Discrimination Law (Federation Press, 2014)

US Holocaust Memorial Museum, Holocaust Encyclopaedia, 'Introduction to the Holocaust' (Webpage, 5 November 2021)

The Tribunal finds that the posts numbered DT35.001, DT35.002, DT35.003, DT35.006, DT35.007, DT35.011, DT35.012, DT35.014, DT35.018, DT35.019, DT35.025, DT35.032, DT35.038 and DT35.039 in exhibit A5 are vilification.

The Tribunal finds that none of the posts in exhibit A6 are victimisation.

The Tribunal finds that none of the posts in exhibit A7 are victimisation.

The Tribunal finds that the posts numbered C.001, C.006, C.007, C.051, C.056, C.069, C.079, C.080 and C.095 in exhibit A8 are vilification.

ORDERS IN DT 35/2020, DT 42/2020, DT 43/2020 and DT 45/2020

1. The applicant will file with the Tribunal and serve on the respondent any further evidence and submissions in relation to the orders that the Tribunal should make in relation to the findings of vilification, and in relation to the claims by the applicant that the respondent breached the confidentiality orders made in these proceedings, by 10 June 2022.

2. The respondent will file with the Tribunal and serve on the applicant any further evidence and submissions in relation to the orders that the Tribunal should make in relation to the findings of vilification, and in relation to the claims by the applicant that the respondent breached the confidentiality orders in these proceedings, by 8 July 2022.

3. The applicant will file with the Tribunal and serve on the respondent any further evidence in reply to the respondent's evidence and any further submissions in reply to the respondent's submissions, by 22 July 2022.

4. These issues will be determined on the papers unless the parties agree to a hearing, or a party applies to the tribunal for an order for a hearing and the tribunal makes an order providing for this.

1. These proceedings are claims of vilification under section 67A, and victimisation under section 68, of the Discrimination Act 1991 (Discrimination Act) by Tim Kerslake (Mr Kerslake or applicant) against John Sunol (Mr Sunol or respondent) in relation to a large number of social media posts. Most of these were written statements, some were oral presentations (which in these reasons are called publications, documents or posts).

2. In summary, section 67A of the Discrimination Act provides that it is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of (sometimes shortened in these reasons to incite hatred etc.) a person or group on the ground of their sexuality, which includes their homosexuality, other than in private. In summary section 68 provides that it is unlawful for a person to subject, or threaten to subject, another person to any detriment because of a discrimination action. The applicant made complaints to the ACT Human Rights Commission (Human Rights Commission or Commission) that he had been vilified because of his homosexuality, and victimised, by Mr Sunol.[1] Mr Sunol has self-identified his views in these proceedings as "the Christian Faith" and the "Catechetical teachings of the Catholic Church on the point of homosexuality" which are said to be that "homosexual acts are intrinsically disordered".[2] These complaints have been referred to ACAT by the Commission under section 53A of the Human Rights Commission Act 2005 (Human Rights Commission Act).

3. These referrals were considered by the Tribunal[3] as matters DT 35/2020 (vilification in relation to 41 documents); DT 42/2020 (victimisation in relation to two documents); DT 43/2020 (victimisation in relation to 71 documents); and DT 45/2020 (vilification in relation to 105 documents). For convenience these four proceedings have been heard and considered together.

4. This Tribunal finds that the complaints were properly referred to ACAT by the Commission, and that ACAT has jurisdiction to hear them. The posts were published in the ACT, were accessible to residents here, and Mr Kerslake is a resident here and read them here. The other arguments of Mr Sunol that ACAT did not have jurisdiction to determine these matters are not accepted.

5. In relation to the vilification claims, in order to amount to vilification under section 67A of the Discrimination Act, a publication needs to be more than insensitive, disrespectful, insulting, offensive or abusive, or even an expression of hatred, revulsion, contempt or ridicule. The publication needs to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of, a person or group of people.

6. This can involve words which command, request, propose, advise or encourage hatred etc. But it can also involve words which incorporate strong and abusive language about the person or group which is likely to incite hatred etc. In particular where the words indicate that because of being homosexual a person is inherently inferior, a threat to others, or a criminal, the issue of vilification will arise.

7. In order to come within the exception to vilification for discussion or debate in the public interest under section 67A(2)(c) of the Discrimination Act the publication must be reasonable, that is objectively rational and proportionate, and for purposes in the public interest, such as discussion or debate about or presentation of any matter. This can include discussion or debate about religion or politics, including on the nature of homosexuality and the position of homosexual people in society.

8. Many of the publications at issue in these proceedings are religious or political statements. For example, Mr Sunol states that homosexuality is wicked and evil, and many similar statements. Mr Sunol argued that because he has freedom of religion and freedom of speech his comments cannot be vilification. I do not agree. If Mr Sunol's statements do incite hatred etc., they must fall within the exception for reasonable discussion or debate in section 67A(2)(c) not to be vilification. The use of political or religious language does not of itself prevent a statement from inciting hatred etc. or make it a reasonable discussion or debate.

9. In light of these principles I have considered the posts in the Schedule to these reasons. On this basis I find that:

(a) In proceedings DT 35/2020: the posts in documents numbered DT35.001, DT35.002, DT35.003, DT35.006, DT35.007, DT35.011, DT35.012, DT35.014, DT35.018, DT35.19, DT35.025, DT35.032, DT35.038 and DT35.039 in exhibit A5 are vilification.

(b) In proceedings DT 45/2020: the posts in documents C.001, C.006, C.007, C.051, C.056, C.069, C.079, C.080 and C.095 in exhibit A8 are vilification.

11. In order for the victimisation claims to be successful, section 68 of the Discrimination Act requires that Mr Sunol subjected, or threatened to subject, Mr Kerslake to a detriment, because Mr Kerslake had taken or proposed to take discrimination action, including these proceedings in ACAT. The concept of detriment is particularly important here. In the circumstances of these cases, in my view, generally actions which are just statements made by Mr Sunol, even those which are disrespectful, insulting or abusive of Mr Kerslake, in relation to proceedings, did not subject Mr Kerslake to a detriment, and therefore were not victimisation.

12. In light of these principles I have considered the posts in the Schedule to these reasons. On this basis I find that:

(a) In proceedings DT 42/2020 none of the posts in the documents DT 42/2020 are victimisation.

(b) In proceedings DT 45/2020 none of the posts in documents C.001-C.105 are victimisation.

13. It was decided at the hearing that the issue of what orders the Tribunal should make if vilification or victimisation was made out would be dealt with following this decision. Directions will be made to enable this now to be considered. Further, in the proceedings Mr Kerslake made applications that Mr Sunol had breached confidentiality orders made by the tribunal. This was not fully canvassed in the hearing and so these directions will also enable this now to be considered.

14. Mr Kerslake made various complaints to the Commission. The first complaint was of vilification made on about 15 January 2020. It was referred to the tribunal on 23 July 2020 and is proceedings DT 35/2020 in the tribunal. It involves 41 documents (as noted below these are referred to as exhibit A5, documents DT 35.1 to 35.41). This complaint is not made on behalf of someone else. It is a complaint of vilification on the basis of homosexuality against Mr Sunol.[4]

15. The second was a complaint of victimisation made on about 30 March 2020. It was referred to the tribunal on 23 July 2020 and is proceedings DT 42/2020 in the tribunal. It involves two documents (as noted below these are referred to as exhibit A6, documents DT 42.001 and 42.002). This complaint is not made on behalf of someone else. It is made against Mr Sunol and Luke McKee.[5] Mr McKee is not a party to these proceedings.

16. The third was a complaint of victimisation made on about 17 June 2020. It was referred to the tribunal on 23 July 2020 and is proceedings DT 43/2020 in the tribunal. It involves 71 documents (as noted below these are referred to as exhibit A7, documents DT 43.001 to 43.071). This complaint is not made on behalf of someone else. It was only against Mr Sunol.[6]

17. The fourth was a complaint of vilification made in June 2020. It was referred to the tribunal on 18 August 2020 and is proceedings DT 45/2020 in the tribunal. It involves 104 documents (as noted below these are referred to as exhibit A8, documents C.001 to C.104). This complaint is not made on behalf of someone else. It is a complaint of vilification on the basis of homosexuality against Mr Sunol.[7]

18. In total therefore there are 207 documents which are raised in these four proceedings.

19. There was a range of interim applications for directions and orders made in relation to the proceedings. Some of these were routine, but some were more significant and I note some of the more significant ones.

20. The Tribunal made a confidentiality order on 21 August 2020. This provided that pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) that there was to be no publication by either party (whether by social or traditional media, in digital, written or oral form, or in any other manner) of the matters contained in the documents filed with the Tribunal or received in evidence by the Tribunal for the hearing, or of descriptions of the conduct of the directions hearings and hearing. This was subject to an exception for the purpose of obtaining legal advice or witness statements (confidentiality order).

21. At the commencement of the substantive hearing on 17 March 2021 an order generally in similar terms was made in relation to those who attended the hearing. The hearing was otherwise held in public.[8]

22. The respondent asked for an order that the hearing be held in public (application dated 20 August 2020). The hearing of an application by the tribunal must be in public under section 38 of the ACAT Act. The Tribunal had only made the confidentiality order noted above. By operation of section 38 the hearing was therefore otherwise to be in public. No further order was therefore necessary. The respondent made further complaints that the hearing notices did not set out the names of the parties, and that this meant that the hearings were suppressed. The Tribunal explained that the hearings of the Tribunal were open to the public, subject to the relevant COVID-19 rules, but the parties and then those attending were subject to the non-publication order. The form of the hearing notices was unfortunate but did not mean that the hearings were suppressed or in private.[9]

23. Mr Kerslake sought orders on the basis that the confidentiality order had been breached (interim applications dated 11 September 2020 and 25 November 2020). These applications have not been considered in this decision and reasons. They will be considered in the next stage of these proceedings.

24. A further application was made more recently and dismissed at a hearing on 2 December 2021.

25. Mr Sunol asked for the issue of the Tribunal's jurisdiction in relation to a person outside ACT to be determined as a preliminary question (interim application of 20 August 2020). This application was not accepted, though this jurisdictional issue was pursued by the respondent and is considered in this decision.

26. The respondent asked for an order dismissing the referral from the Human Rights Commission (interim application dated 10 September 2020). This order was not made, but this issue was pursued by the respondent and is considered in this decision.

27. The respondent asked for an order that various questions of law be referred to a tribunal appointed under section 77(3) of the ACAT Act (interim application of 16 February 2021). This order was not made. Insofar as these questions are still in issue in these proceedings, they are considered in this decision.

28. A further interim application to refer 23 questions was made on 15 March 2021, two days before the substantive hearing. This application was considered at the hearing on 17 March 2021. Insofar as these questions are still in issue in these proceedings, they are considered in this decision.

29. The respondent asked for orders under section 32 of the ACAT Act striking out the complaints (application dated 8 March 2021). This order was not made.

30. The respondent made an application on about 16 February 2021 for the hearing dates to be vacated; this application was refused. An application was made on 15 March 2021 by the respondent that the hearing which was to commence on 17 March be adjourned. This application was considered at the hearing on 17 March 2021.

31. The hearing of this matter was set down for 17 and 18 March 2021, and Mr Kerslake represented himself. Mr Sunol was represented by Peter King instructed by Robert Balzola.

32. The application for an adjournment (see paragraph [30] above) was not initially granted. The application for a referral (see paragraph [28] above) was abandoned.[10] However after the applicant had presented his written evidence and provided some oral evidence and made himself available for cross-examination the application for an adjournment was remade and granted.[11]

33. A further hearing was then set down for 11, 12, 13, and 14 May 2021. On 11 May the applicant made an application to adduce further evidence, which was refused.[12] The respondent applied for another adjournment on the basis of Mr Sunol's health.[13] The hearing did proceed to conclude the evidence of the applicant and admit the evidence of the respondent, and Mr Sunol gave some brief oral evidence. The parties agreed not to cross-examine. Rather than continue to seek to have the matter heard in person, the Tribunal granted the adjournment on the basis that the hearing as to 'liability' issues continue on the papers. The Tribunal made directions for this to occur, which included an order that the respondent indicate in his submissions which of the various jurisdictional and other issues raised in the proceedings he continued to rely on. It was indicated that the Tribunal would after the provision of further material under this timetable provide a decision with reasons as to whether Mr Sunol has committed vilification and victimisation, and if so, a further hearing would be held in relation to what orders, if any, the Tribunal should make in light of this.[14]

34. The original complaints by Mr Kerslake and the material provided to the Tribunal by the Commission were accepted as evidence and marked as exhibit A1, A2, A3 and A4.

35. Mr Kerslake also provided indices of the relevant documents, with the text of the documents. On the basis of these indices, the documents are referred to in these proceedings as follows:

(a) In proceedings DT 35/2020 (vilification): documents DT35.1-35.41. These were filed on 21 August 2020 and accepted as exhibit A5, and the documents are referred to by the numbering system used by Mr Kerslake.

(b) In proceedings DT 42/2020 (victimisation): documents DT42.1-42.2. These were filed on 21 August 2020 and accepted as exhibit A6, and the documents are referred to by the numbering system used by Mr Kerslake.

(c) In proceedings DT 43/2020 (victimisation): documents DT43.1-43.69. These were filed on 21 August 2020 and accepted as exhibit A7, and the documents are referred to by the numbering system used by Mr Kerslake.

(d) In proceedings DT 45/2020 (vilification): documents C.001-C.105. These were filed on 21 August 2020 and accepted as exhibit A8, and the documents are referred to by the numbering system used by Mr Kerslake.

36. Mr Kerslake also provided a list of particularised claims in relation to these documents:

(a) List of particularised claims regarding social media posts in DT 35/2020 dated 12 October 2020 (which was accepted as exhibit A9).

(b) List of particularised claims regarding social media posts in DT 42/2020 dated 12 October 2020 (which was accepted as exhibit A10).

(c) List of particularised claims regarding social media posts in DT 43/2020 dated 12 October 2020 (which was accepted as exhibit A11).

(d) List of particularised claims regarding social media posts in DT 45/2020 dated 12 October 2020 (which was accepted as exhibit A12).

37. The applicant also tendered some documents provided under subpoena issued at the request of the respondent to Rodney Walter Swift (Mr Swift) (exhibit A13). Mr Kerslake also provided an affidavit affirmed on 24 November 2020 in relation to the proceedings (exhibit A14), and an affidavit in reply affirmed on 10 February 2020 (exhibit A15). He provided oral evidence.[15] The applicant also provided an affidavit by Mr Swift affirmed on 1 December 2020 (exhibit A16).

38. At the suggestion of the Tribunal the applicant provided a list of what he regarded as key examples of the publications at issue in these proceedings. These are documents, using Mr Kerslake's numbering system and in the order of the proceedings and the documents considered in the Schedule:

(a) DT 35/2020, documents 3, 4, 6, 38;

(b) DT 42/2020, documents 1, 2;

(c) DT 43/2020, documents 11, 28, 29; and

(d) DT 45/2020, documents 31, 46, 57, 58.

This list was filed in the tribunal on 1 March 2021. These are all considered in the Schedule.

39. The applicant had earlier provided submissions on jurisdictional and other issues dated 10 September 2020 (applicant's jurisdictional submissions). These submissions were taken into account on the relevant issues which are considered in these reasons. The applicant also provided an outline of submissions dated 12 February 2021 for the substantive hearing (applicant's submissions). Further applicant's submissions were provided on questions of law for referral (applicant's questions of law submissions) and then applicant's submissions in reply on 10 July 2021 (applicant's submissions in reply).

40. Mr Sunol provided a statement sworn on 27 January 2021 (exhibit R1). He gave some additional oral evidence.[16]

41. The respondent had also earlier provided submissions on jurisdictional and other issues dated 2 October 2020 (respondent's submissions on jurisdiction). These submissions were taken into account on the relevant issues considered in these issues. The substantive respondent's submissions were dated 21 June 2021 (respondent's submissions).

Jurisdictional issue 1 - Referrals from the Commission

42. In the respondent's submissions he relies on three issues which he argues prevent the tribunal from having jurisdiction in this matter. The first jurisdictional issue he calls the pathways issue.[17]

43. The respondent raises the terms of section 53A of the Human Rights Commission Act which states:

53A Referral of discrimination complaints other than commission-initiated discrimination matters

_(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. [Emphasis added.]

If this section applies, section 53A(2) states that:

(a) refer the complaint to the ACAT; and

(b) tell the complainant and the person complained about in writing about the referral. [Emphasis added.]

44. Section 88 defines 'discrimination referral statement' as:

... _a statement in a notice in relation to a complaint to the effect that - _

(a) the commission has closed the complaint; and

(b) the complainant may ask the commission to refer the complaint to the ACAT within 60 days after the day the notice is given to the complainant; and

(c) after the 60-day period, the complainant may apply to the ACAT under section 53B (Late application in exceptional circumstances) for the complaint to be heard.

45. As to when the Commission may close a complaint, section 78(1) states in part:

_(1) The commission may close a complaint at any time if - _

(f) the commission considers that conciliation is unlikely to succeed; or ...

46. The Commission files which are annexures A to D to the affidavit of Mr Sunol[18] contain letters to Mr Sunol and Mr Kerslake which state that the complaints were referred to the tribunal under section 53A which, the letters note, states that the Commission may do so if a person, in this case Mr Kerslake, had been given a discrimination referral statement and requested the Commission to refer their complaint to the ACAT.[19] These are therefore clearly referrals under section 53A(1)(a)(i).

47. In relation to the claim which has become DT 35/2020 in the tribunal, evidence of the relevant steps required by section 53A(1) seem to be contained in letters from the Commission to Mr Sunol and Mr Kerslake dated 27 May 2020. The letter to Mr Sunol stated:[20]

I have decided on behalf of the Commission that conciliation is unlikely to be successful as a means of resolving this complaint.

This indicates compliance with section 78(1)(f) for the closing of a complaint.

I am therefore closing Mr Kerslake's complaint under section 78 1(f) of the Human Rights Commission Act 2005.

This indicates compliance with section 88(a) for providing a discrimination referral statement.

Referral to the ACT Civil and Administrative Tribunal

Mr Kerslake now has sixty days to require the Commission to refer his complaint to the ACT Civil and Administrative Tribunal (ACAT) for hearting.

This letter is therefore a discrimination referral statement for the purposes of section 53A(1)(a)(i).

I have decided on behalf of the Commission that conciliation is unlikely to be successful, and for this reason conciliation has now ended.

Referral to the ACT Civil and Administrative Tribunal (ACAT)

Under the Act you have the right to require the Commission to refer your complaint to the ACAT for determination.

You now have sixty days from the date of this letter to exercise this right.[21]

It is true that this letter does not expressly say that the Commission is closing the complaint. But the letter to Mr Sunol does, and the context and relevant legislative provisions indicate this.

49. By email dated 17 June 2021 from Mr Kerslake to an officer of the Commission he stated that "I am looking to refer the matter to ACAT. If you need me to complete any additional paperwork to make this happen, I am happy to do so".[22] The Commission treated this as a request for referral, and made the referral. As noted, the Commission wrote to Mr Sunol and told him that "Mr Kerslake has requested the Commission to refer his complaint to the ACT Civil and Administrative Tribunal (ACAT)" and that "the Commission has now referred the complaint to ACAT".[23]

50. The respondent argues that because the complaint to the Human Rights Commission had been closed it cannot be referred to ACAT. This is not correct. Section 53A(1)(a) provides two pathways for a referral. The first pathway requires a discrimination referral statement, which is a statement to the effect that the Commission has closed the complaint.

51. The respondent also argues that because there is no final report by the Commission that the complaint could not be referred to ACAT. This is also not correct. Section 53A(1)(a) provides two pathways for a referral. It is true that the one in section 53A(1)(a)(ii) requires a final report. But the other under section 53A(1)(a)(i) does not, and it is clear that this is the path used by the Commission in these cases.

52. 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.

53. Because the Commission has not in this case considered the complaints, there was no breach of procedural fairness obligations. The statements of the complaints in the material before the Commission were sufficient to support the referral decisions. It is up to the tribunal to provide procedural fairness in its consideration of the complaints. In this hearing Mr Kerslake has specified and particularised his complaints in detail, and Mr Sunol has been given a full opportunity to respond to these.

54. Mr Sunol makes particular claims that some of the details of the complaints by Mr Kerslake were not before the Commission, or not properly before the Commission.[24] But the lists of documents were provided to the Commission, and this is sufficient in the circumstances.[25] Mr Sunol also says in his affidavit that in relation to DT 35/2020 for example that "complaints materials 1, 4, 5, 30 and 41 are not before the Tribunal".[26] But exhibit A5 sets out documents as DT35.001, DT 35.004, DT 35.005, DT 35.030 and DT 35.041, and exhibit 9 provides significant particulars of the claims in relation to these documents.[27] These are set out and considered in the Schedule to these reasons.

55. The complaints to the Commission refer to lists of documents which conform with the number and nature of documents put before the Tribunal.[28] In the tribunal proceedings Mr Kerslake provided hard copies of the actual documents and posts and where necessary transcripts,[29] and particulars as to why they amounted to vilification or victimisation,[30] which were provided to Mr Sunol. There were some minor disparities between the lists provided to the Commission and the documents provided to the tribunal, which Mr Kerslake explained in his submissions and oral evidence.[31] I do not think that this renders the referral of the complaints to ACAT invalid, or the consideration by the Tribunal invalid. The Commission had sufficient information to make the referral decision. The full details of all the complaints have been before this Tribunal, and available to Mr Sunol in these proceedings, giving him the opportunity to deal with these. They are noted in the Schedule to this decision.

56. The respondent has not identified an error such as to render the referral from the Commission to ACAT invalid.

57. I note two other matters referred to during the proceedings. Mr Sunol argued that the complaints were made for an improper collateral purpose.[32] Mr Kerslake does seek compensation, as he is entitled to do. But there is no other evidence in support of this allegation. More than this is necessary to support such a claim.

58. Second, in my view Mr Kerslake was able to make the complaints. Section 42(1)(c) of the Human Rights Commission Act provides that complaints may be made about an unlawful act under the Discrimination Act. Under section 43(1)(a) and (f) a complaint about an act may be made by "a person (the aggrieved person) aggrieved by the act, service or conduct", or if the complaint is a discrimination complaint, which includes a vilification or victimisation complaint, "a person who has a sufficient interest in the complaint". Section 43(2) provides that a person has a sufficient interest in a complaint if:

...the conduct complained about is a matter of a genuine concern to the person because of the way conduct of that kind adversely affects ... the interests of the person or interests or welfare of anyone the person represents.

In my view Mr Kerslake is such an aggrieved person. The principal relevant issue raised was whether the Commission and ACAT had jurisdiction when Mr Sunol resided in NSW, which I now consider.

Jurisdictional issue 2: Extra-territorial operation

59. The respondent argued that the tribunal did not have jurisdiction because Mr Sunol resided in and uploaded the material in NSW. In his submissions Mr Sunol characterised this as two issues, the first whether the ACT Legislative Assembly had power to legislate so as to proscribe as unlawful conduct outside the ACT's territorial boundaries, to which he said the answer was no.[33]

60. I do not think that this is correct. The ACT can make laws with extraterritorial effect, provided there is some connection with the Territory.[34] 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.[35] In my view the ACT can make a law in relation to posts which vilify its residents and which are published here.

61. The second issue is whether on a proper construction the Discrimination Act does in fact apply to vilification written and uploaded by persons outside the ACT.[36] I set out and discuss section 67A(1) below, but note that the key requirement is that it "is unlawful for a person to incite hatred towards ... a person or group of people ... other than in private". Mr Sunol argues that this does not extend to him because he resides in NSW.

62. I do not think that this is correct. It is true that there is a common law presumption against legislation having extraterritorial effect. This presumption has statutory form in the ACT in the Legislation Act 2001 (Legislation Act), section 122. But these presumptions are generally weaker in respect of interstate, and between a state and a territory, operation in a federation, and at any rate are subject to a contrary intention.[37]

63. As noted, the relevant act for vilification is the incitement. Mr Kerslake gave clear evidence that he resided in the ACT and read all the publications at issue in these proceedings in the ACT.[38] There was no evidence provided by the respondent which cast doubt on this. The publications therefore took place in the ACT and the alleged incitement took place in the ACT.

64. In Bottrill v Sunol [No.1] (Bottrill)[39] the tribunal there considered the question of whether a social media post in one State or Territory (in that case NSW) could be complained of in another State or Territory (in that case ACT). The tribunal held that the Commission and ACAT did have jurisdiction in such a case. This conclusion was supported in part by Jones v Toben,[40] Collier v Sunol,[41] Dow Jones & Company Inc v Gutnick (Gutnick),[42] and section 4AA of the Discrimination Act. More difficult issues as to whether a person outside the ACT can bring proceedings here were considered in Clinch v Rep[43] and Rep v Clinch (Appeal)[44] (Rep v Clinch (Appeal)) which generally confirmed the decision in Bottrill.

65. I also note that the relevant provisions should be read in light of the law of defamation in Australia, to which the concept of vilification is analogous. The decision of the High Court in Gutnick should therefore be applied. In Gutnick a resident of Victoria wished to sue in defamation a United States of America corporation in the Supreme Court of Victoria. The High Court allowed that claim to proceed, and held that defamation proceedings can ordinarily be brought where damage to reputation occurs, which ordinarily will be where the relevant material is available if the person defamed has in that place a reputation that is thereby damaged. Defamatory material uploaded to the internet in the United States and available in Victoria where Mr Gutnick had a reputation could therefore be subject to a defamation claim in Victoria. Similarly, where vilifying material is uploaded in NSW and available in ACT, where Mr Kerslake read and could be vilified by, it in my view this can be subject to a vilification claim in the ACT.

66. Similar principles apply in relation to the claims of victimisation.

67. In my view therefore the Commission and the Tribunal have jurisdiction to hear these complaints notwithstanding that Mr Sunol resided and uploaded the documents in NSW.

Jurisdictional issue 3: Constitution

68. The respondent raised a number of issues under this heading.[45] One was that section 116 of the Constitution provides that the Commonwealth shall not make any law "prohibiting the free exercise of religion". This issue was only raised in final submissions by the respondent, and not earlier in the hearing. These submissions were brief, did not consider the issue of whether section 116 applied to a territory legislature,[46] and simply asserted that "to the extent Discrimination Act sections 67A and 68 impair the freedom of religion they are invalid".[47] These assertions provide no developed argument for invalidity. However, as discussed below, freedom of religion considerations are relevant to the interpretation and operation of section 67A, and I discuss them there.

69. Further, the respondent referred to the Human Rights Act 2004 (Human Rights Act), in particular section 14 which provides in part that "everyone has the right to freedom of thought, conscience and religion" and section 16(2) which provides that everyone "has the right to freedom of expression." The way these provisions operate and are relevant to this hearing are discussed further below, but they provide no basis for thinking that the Commission and tribunal do not have jurisdiction.

70. The Discrimination Act and the concepts of vilification it contains sit within and are informed by two broader streams of law. First, international and Australian human rights law, and second defamation law. The specific provisions of the Discrimination Act need to be read in light of the terms and concepts it borrows from human rights and defamation law.[48]

71. Section 67A of the Discrimination Act deals with vilification, and provides relevantly:

(1) It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

72. 'Sexuality' is defined by section 2 and the Dictionary as including "heterosexuality, homosexuality and bisexuality".

73. There are a number of relevant points which can be made in relation to this provision, based on a growing number of judicial and tribunal decisions in this area.[49] First, this involves an objective test. 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".[50] 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.

74. Second, there needs to be incitement. 'Incite' means to "urge on, stimulate or prompt action", and also "rouse, to spur on, to stir up or to animate",[51] in this case hatred etc. While this can cover a wide range of conduct, it is not enough simply to make insensitive, disrespectful, offensive, or insulting comments.[52] The concept of vilification in section 67A (and the NSW vilification provision) is different in significant aspects to the concept in some other discrimination laws, in particular offensive behaviour in section 18C(1) of the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act). This refers to acts which offend or insult another person or group.

75. Further, it is not enough to express hatred, revulsion, contempt or ridicule, inappropriate as this is. The post must be one which could encourage or spur others to hatred, revulsion, serious contempt, or severe ridicule. Such vilification can include words which command, request, propose, advise or encourage hatred etc. But it can also be words which simply incorporate such strong and abusive language about the person or group that it is likely to encourage hatred etc. In particular where the words indicate that because of being a homosexual a person is inherently inferior, a threat to others, or a criminal, the issue of vilification will arise.

76. It is not necessary to show that anyone was actually incited. It flows from this and the objective test for vilification that even if someone is incited, this may not be enough to show vilification.

77. A key issue in this case is to distinguish between, on the one hand, the many postings which are insulting or offensive, even just express hatred, revulsion, contempt or ridicule, but fall short of inciting hatred etc., and, on the other hand, those postings which in addition are also likely to incite hatred etc. on the ground of homosexuality, and therefore amount to vilification.

78. To note some key examples in the posts, many call people an activist, a radical, a radical LGBT activist, or a social justice warrior. I do not think that generally these are even offensive or insulting, let alone incite hatred etc.

79. Some of the posts complained of are general insults. This includes calling Mr Kerslake and others a mongrel, enemy, nasty, a trouble-maker, liar, bully, scumbag, intolerant, authoritarian, aggressive, corrupt, Marxist, communist, and fascist. I can see that Mr Kerslake may find these disrespectful, offensive, insulting, or abusive. Of course, much depends on the context and what other comments are included with such insults. But without additional aspects, I do not think that such insults necessarily incite hatred etc.

80. Many of the comments include negative statements in relation to Mr Kerslake and others from a religious perspective. These include that homosexual people and homosexuality generally are wicked, wrong, evil, a sin, or controlled by the devil. I discuss the issue of freedom or religion further below. I can see that Mr Kerslake may find these, disrespectful, offensive, insulting, or abusive. But in their terms they are expressing a particular religious belief of Mr Sunol. There may be many things and people Mr Sunol regards as wicked or evil. I do not think this necessarily incites hatred etc. against them. Of course, again much depends on the context and what other comments are included with such statements.

81. Some of the comments include more generalised abuse such as that homosexual people are unhealthy, diseased, perverse, or deviant. Some include homosexual slurs.[53] Such statements are more likely to be vilification, but to some extent this depends on the context, including the surrounding comments.

82. As I have noted the comments most likely to be vilification are those which suggest homosexual people are inherently inferior, a threat to others, or criminals.

83. To note some relevant discussions of this issue, in the decision of Burns v Sunol (No.2)[54] the Administrative Decisions Tribunal of NSW (M Chesterman, E Hayes and N Hiffernan) considered the NSW vilification provision which is similar to section 67A in relation to a number of publications by Mr Sunol:

30. In our opinion, publications 2 to 5 inclusive in the foregoing list satisfy the criteria to be considered in concluding that a 'public act' falls within section 49ZT(1) of the Act.

31. Each of these four publications contains one or more phrases that, read in context, has the 'capacity to incite', or the 'effect of inciting', feelings of 'hatred' and/or 'serious contempt' for the persons to whom the phrases refer amongst 'ordinary members' of the 'class to which the publication is directed'. The phrases in question do not merely convey these negative feelings, but urge readers of them to experience such feelings. The negative reaction that they incite is not merely dislike but hatred and/or serious contempt.

32. Examples of these phrases are 'dirty filthy poof' in no. 2, 'dirty filthy faggots' in no. 3, 'child molesters and paedophiles' in no. 4 and 'disease' warranting eradication (such as the product Mortein is claimed to achieve with flies and other pests) in no. 5.

84. But this was not the case in relation to other publications:

34. We reach the opposite conclusion with regard to publication no. 1, even though it applies epithets such as 'sinful' and 'evil' to homosexual people. Our reason is that its principal message is that, in the opinion of the writer (Mr Sunol) if not also of other adherents to the Christian faith, homosexuality infringes doctrines of Christianity. To proclaim on a website that, according to some versions of Christian doctrine, homosexuality is a sin and homosexuals are sinners does not, in our opinion, incite hatred and/or serious contempt for homosexual people amongst 'ordinary members' of the 'class' (i.e., internet users) to which the proclamation is 'directed'.

85. More extreme statements have been found to be vilification in other cases. In Barry v Futter,[55] it was held that the relevant comments were not made in public, but the tribunal none-the-less considered them and found that they "could be seen as tending to encourage members of the public ... to treat transgender persons as less than fully human and to suggest that physical abuse of such persons was justifiable". If a public act, the tribunal said this would therefore have been vilification.[56]

86. 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.

87. '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.

88. Another is, there are a number of posts which could be seen as inciting hatred etc., but which are exaggerated or illogical, if not at times ridiculous. The post at DT35.041 states: "This twitter account is purely put on line for the sole purpose to expose to the world the corruption of the LGBT rights groups and political agenda". It then states: "These groups are very oppressive and out to control the world".

89. On its face, to say that a group is out to control the world can incite hatred etc. of the group. But it is in my view an obviously overblown and exaggerated statement in this case. Further, in order to understand what this post is saying, I think it is appropriate to put it into the context of Mr Sunol's other posts. The publications show that a key concern of Mr Sunol was that Australia had allowed same-sex marriage. I take notice that this was the result of the Australian Marriage Law Postal Survey in which 80% of those eligible participated, 62% of whom voted in favour of same-sex marriage, followed by the passage of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) through the Australian Parliament.[57] If such actions are homosexual rights groups seeking to control Australia, or the world, it is by fundamentally democratic processes. If any control was exercised, it was legitimate democratic control. On this basis it is Mr Sunol and those who agree with him who seek to control but lack democratic support.

90. In my view this context shows that Mr Sunol's statements are at least exaggerated and illogical. In my view they reflect poorly on Mr Sunol and lower him in the eyes of the public. There is an argument that such exaggerated and illogical statements are unlikely to incite hatred etc. towards homosexual people. This is particularly so if they are objectively assessed, as noted in paragraph [73] above, and where the relevant audience is ordinary reasonable members of the public, as noted in paragraph [102] below.

91. However, generally, the basic concept of vilification is exaggerated and illogical statements, which take an irrelevant characteristic, in this case homosexuality, and incite hatred etc. on this basis. Further, history shows that such exaggerated and illogical statements can do great damage. Statements that suggested a minority group was out to control a place or country have been a form of vilification which has led to not just the incitement of hatred etc., but harassment, bullying, violence and even to genocide.[58] This suggests that such statements should be carefully examined even if exaggerated, illogical or ridiculous.

92. Another is, there are posts which use religious language to make comments in relation to homosexuality, well beyond just saying it is wrong. The post at C.069 states: "I believe that God has allowed Satan to bring the curse of Covid 19 to the world due to the wickedness of same-sex marriage and other gender based issues".

93. On its face, to say in essence that a group has caused the COVID-19 pandemic would incite hatred etc. of them. In some of the statements in this form by Mr Sunol it is not clear whether this possible incitement was against homosexual people, or against the majority of Australians and Australian politicians who voted for same-sex marriage, but in this case it refers to just same-sex marriage, which seems to be a proxy for homosexuality.

94. This post is in the form of a religious statement. As the comments from the tribunal in Burns v Sunol (No.2) set out above at paragraph [83]-[84] note, opinions which come from and only make any sense in the context of a particular religious tradition are less likely to incite hatred etc. in ordinary members of a general audience. This may be different if the speaker has some authority within and is only talking to a closed group. I summarise the evidence of Mr Sunol's religious position at paragraphs [116]-[118] below. Mr Sunol provides no basis for suggesting this statement reflects the position of his religious tradition. It is not supported by the catechism he quotes or the evidence he gives about his religious tradition and beliefs. I note that the catechism goes on to state that homosexual people "must be accepted with respect, compassion and sensitivity" and "every sign of unjust discrimination in their regard should be avoided", views not quoted by Mr Sunol.[59] On the basis of this evidence, this is not a statement of traditional religious belief, or even of Mr Sunol's belief system. Shorn of any religious support, such statements could be exaggerated and illogical. But they can also be statements which could incite hatred etc even in ordinary members of a general audience. Without the religious context, this statement seems in essence to be saying homosexuality has caused the pandemic.

95. Again, if anything, these comments reflect poorly on Mr Sunol and lower him in the eyes of the public. But also again, history shows that such statements that a particular group of people has caused harm or disease, can have terrible consequences. They should be carefully examined. Importantly, I do not think that the use of religious language of itself prevents a statement from inciting hatred etc. or makes it a reasonable discussion or debate.

96. Third, the context in which the post is made is relevant. An aspect of this context is the audience for the purpose of determining vilification, which raises particularly difficult issues.

97. Most of the posts here involve Mr Sunol stating publicly his position, in a way to which anyone can respond. In this context some comments are less likely to amount to the incitement of hatred etc. and are more likely to be reasonable and honest discussion or debate, than in other contexts, though much depends on the express terms of the post.

98. Some of these posts are directed specifically at Mr Kerslake. This is still a public context, but in focussing on Mr Kerslake, the posts are no longer just a vigorous discussion of issues, but at times a personal attack on an individual. In this context, in my view, language which may only be offensive and insulting when generally expressed can become strong and abusive language in relation to Mr Kerslake.

99. Mr Sunol argued for the relevance of another aspect of context, that is that his comments were often made in response to or in relation to offensive comments, perhaps even vilification, directed at him. Mr Sunol referred to this as 'persecution'. He has provided evidence of some of these comments, and they are at least offensive. For example he referred in particular to a comment that he had "declared jihad on gays".[60] I agree that it is relevant that words are said in the context of a debate, in particular a debate where Mr Sunol is responding to offensive comments.

100. There has been significant discussion about identification of the audience in vilification matters. The decision in Rep v Clinch (Appeal) discusses this in some detail.[61] The posts in issue here could be viewed by anyone, that is, the general public. But also the key groups who can and do seem to view and respond to the posts are supporters of Mr Kerslake and his views, and supporters of Mr Sunol and his views.

101. This means that all the statements by Mr Sunol can, and many are, disagreed with and another position put. For example in the first post, DT.001 set out in the Schedule, someone responds: "So if two people of the same sex love each other as much as people of the opposite sex they don't deserve equal happiness?". A response to DT35.025 is: "Can you please give sources for such claims because you honestly looking rather foolish when you sprout this crap".

102. In my view where posts are available to the general public, and there is ongoing debate between the applicant, and his supporters, and the respondent, and his supporters, the ordinary reasonable member of the public is the appropriate audience. To have regard to only Mr Kerslake's supporters, or only Mr Sunol's supporters, would not reflect the actual context, and distort the operation of section 67A. Such positions would not appropriately balance the non-discrimination and freedom of expression principles, which are noted below. I think this approach is warranted in this case since this reflects the actual diverse audience, and the position that the test for vilification is an objective one.

103. Four, section 67A(1) requires that a person incite hatred etc. "of a person or group of people". Some of the publications refer to Mr Kerslake himself; he is a person. Many of the publications refer to a group of people, often homosexual people, or a subgroup of such people. The subgroup is often gay activists or a similar term. Mr Kerslake is a member of such groups.

104. In my view the fact that the publications concern a subgroup of homosexual people does not prevent them amounting to vilification on the basis of homosexuality. In particular, section 4A(2) of the Discrimination Act makes this clear.

105. Fifth, the unlawful act needs to take place "other than in private", that is in public. This can be in the posting of comments on an internet site, indeed section 67A(1) of the Discrimination Act contains as an example "2. writing a publicly viewable post on social media". There was apparently no dispute in these proceedings that the posts by Mr Sunol were "other than in private." Even if there were a dispute, the postings were clearly in public, where Mr Kerslake and Mr Swift read them.[62]

106. Sixth, the incitement of hatred toward, revulsion of, serious contempt for, or severe ridicule of, a person or group of people needs to be on one of the grounds set out in section 67A(1) which includes sexuality in paragraph (g). Mr Sunol argued that the applicant failed to address this issue with any specificity and asked rhetorically "what is the attribute that he is relying on?"[63]

107. In my view it is clear that Mr Kerslake is complaining of vilification on the basis of sexuality in section 67A(1)(g). Each of the complaints of vilification to the Commission referred to this ground of sexuality.[64] As noted, sexuality includes homosexuality. Mr Kerslake states he is homosexual.[65] Mr Sunol argues that "apart from this bald deposition itself, there is no evidence that the applicant is an openly homosexual man".[66] But Mr Sunol provides no evidence that Mr Kerslake is not homosexual. Some of Mr Sunol's posts state or assume that Mr Kerslake is homosexual; in this context it seems inappropriately argumentative for Mr Sunol to now suggest without any evidence that he is not. In my view it is clear Mr Kerslake is homosexual and that he complains of vilification on the ground of homosexuality. Mr Kerslake does not complain on behalf of anyone else.[67]

108. A large number of posts make statements about people on the grounds of homosexuality, and in these cases this requirement is met. Some of the posts refer to the Gay and Lesbian Mardi Gras, the gay lobby, LGBTQI+ political activists or social justice warriors. In my view these are generally proxies for homosexual people, and where that is the case this requirement is met. In particular the reference to the gay lobby or gay or LGBTI political activists refers to a sub-group of homosexual people. But such references can still amount to vilification, because the statements are made on the grounds of sexuality.

109. Some of the statements refer to Mr Kerslake. Many of them do not and refer generally to homosexual people, to proxies for such people, or to subgroups of such people. In my view Mr Kerslake is able to bring this claim in relation to such statements.[68]

110. But seventh, there are exceptions, most relevantly here is that section 67A(2) states:

(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.

111. It was not argued in this case that academic, artistic, scientific or research purposes were relevant. It was argued that the posts were for purposes in the public interest, that is discussion, debate or presentations on the nature of homosexuality and the position of homosexual people in society. I accept that discussion and debate and presentation of this issue is in the public interest.

112. But to come within the exception, the act must be done reasonably and honestly. This involves a subjective and objective test, at least in relation to reasonableness, that is, the person must believe they are acting reasonably, and they must be actually doing so, objectively assessed. Unreasonable presentation of an argument, objectively assessed, does not fall within the exception.

113. Further, the section states that such purposes in the public interest include discussion or debate or presentation, and suggests that it could include other activities. Mr Sunol's position seemed to be that the posts were discussion or debate or presentations. 'Discussion' and 'debate' are not defined in the Discrimination Act and therefore take their general meaning. 'Discussion' generally means "1. ...critical examination by argument; debate". 'Debate' means "1. Discussion ...2. Deliberation; consideration 3. A systematic contest of speakers in which two opposing points of view of a proposition are advanced ..."[69]

114. Thus, while I think that the nature of homosexuality and the position of homosexual people in society are a matter of public interest, in order to fall within the exception in this context there needs to be a reasonable and honest discussion or debate or presentation on those issues. It is the operation of this section which implements freedom of speech and freedom of religion considerations.[70]

115. One of the key arguments of Mr Sunol was that he was simply exercising his right to freedom of speech and freedom of religion in making the posts. He specifically referred to the Human Rights Act, which provides in section 14 that "everyone has the right to freedom of thought, conscience and religion" and that this includes "the freedom to have or adopt a religion or belief of his or her choice" and "the freedom to demonstrate his or her religion of belief in worship, observance, practice and teaching ... whether in public or private". Section 16(2) of the Human Rights Act provides that "everyone has the right to freedom of expression" and that "this right includes the freedom to ... impart information and ideas of all kinds".[71]

116. Mr Sunol gave evidence as to his beliefs. He summarised these in his statement, exhibit R1, at paragraphs [85]-[95] and [112]-[129]. He said in this text and quoted posts that: "Yes I am a Christian man and I do not hate gay people"; "I am selective in my use of the words 'homophobe' and 'bigot' to express my religious beliefs in a world of wickedness and populated by demons as I know them to be in my convictions of faith as a Christian"; "elements of the homosexual community have attempted to demonise me"; "I verily believe ... that homosexuality is a grave sin and to be feared in its practice for well-founded medical, moral and spiritual reasons". At paragraph [116] he quotes the Catechism of the Catholic Church on chastity and homosexuality:

Basing itself on Sacred Scripture, which presents homosexual acts as acts of grave depravity, tradition has always declared that 'homosexual acts are intrinsically disordered'.[72]

117. He was also asked and replied in oral evidence as follows:

Mr KING: Yes, but I just want to ask you these supplementary questions briefly, Mr Sunol, if I may. But for the religious beliefs set out in those paragraphs, would you have tweeted or posted the matters complained of by the applicant in the tribunal?---It was for the religious beliefs I did that because I don't agree with homosexuality based on biblical teachings and my own beliefs.

Is it correct that you have been motivated only by those beliefs in respect of making the tweets and posts complained of?---Yes, that is correct. I believe - - -

No, you just need - that is all you need to say, Mr Sunol, because I am now going to ask you a supplementary question. Can you explain or would you explain, please to the tribunal how the tweets and posts are a demonstration of your religious belief and observances please?---The tweets and posts I put state what I believe and what I know to be true from my own beliefs in my own heart about homosexuality and how it is not good within society, how it is not good in my own beliefs and I believe that it is a sin of wicked against - a sin against God and same-sex marriage is a wickedness.

Please just answer this final question. Do you say that those tweets and posts are an expression of love for your fellow man, including the application based on your religious beliefs and not of hatred?---Yes, I do. They're nothing to do with hatred.[73]

118. In his submissions counsel for Mr Sunol noted these views, and Mr Sunol's "concern and love in the biblical sense" for Mr Kerslake and his friends, and stated:

Misguided though many may say such a concern is, nonetheless it was expressed and it was genuine ... On the internet ... [Mr Sunol's] representations to most is irrelevant, perhaps dated or even antediluvian, and obviously for the applicant and his group the subject of some sport, and it was unwise to engage in such ripostes. However it is not his maturity or judgment that is in issue.[74]

119. 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.

120. If it does, it is necessary to ask whether the statement falls within the exception in section 67A(2)(c). As I have noted, to come within section 67A(2)(c) the comments need to be reasonably and honestly expressed for the purpose of discussion or debate or presentation about any matter. Justice French said in relation to a similar provision in the Racial Discrimination Act that such exceptions "requires a recognition that the law condemns racial vilification of the defined kind [and I note homosexual vilification] but protects the freedom of speech and expression in the areas defined".[75] This means that the exercise of the freedom allowed should seek to honestly and conscientiously endeavour to have regard to and minimise the harm it will inflict, and not use the exception as a cover to offend, insult, humiliate or intimidate (the terms used in section 18C(1)(a) of the Racial Discrimination Act, but not 67A of the Discrimination Act) people by reason of their race. French J thought that an act would be done reasonably if it bore a rational relationship to that activity and was not disproportionate to carrying it out.[76] In Sunol v Collier (No.2) the NSW Court of Appeal summarised the reasonable requirement as meaning that the comment must bear a rational relationship to the protected activity and not be disproportionate to what is necessary to carry it out.[77] In this case, this means that to fall within the exception the comments 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 (sometimes shortened in these reasons to rational and proportionate).

121. 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)(c), which I have discussed. None of the other exceptions in Part 4 or Part 10 of the Discrimination Act are relevant.

122. Counsel for Mr Sunol argued that sections 14 (concerning freedom of religion) and section 16 (freedom of speech) of the Human Rights Act are exceptions.[78] This in my view is not correct. The Discrimination Act does not provide that these are exceptions. It is true that section 122 of the Discrimination Act states that the Act is additional to any other territory law that provides for the protection of a person from conduct that is or would be unlawful under the Discrimination Act, including vilification.[79] The Human Rights Act is another territory law, but it only has the operation for which it provides. As discussed below the only relevant operation of the Human Rights Act is in section 30 which states that sections 14 and 16 are an aid to interpretation of other legislation. Section 122 of the Discrimination Act does not give these sections in the Human Rights Act any greater operation than the Human Rights Act provides itself.

123. I do not see a basis for implying any further exception from the terms of section 67A. In particular I note that section 67A(1)(e) protects from vilification on the basis of religious conviction. The role of religion is recognised by this provision but as a protection from vilification on this basis, not as an exception to vilification on other bases.[80] This protection would be significantly limited if there were any implied exception for all statements of religion. Further, section 4AA provides that the Act, including section 67A, must be interpreted in a way that is beneficial to a person who has a protected attribute to the extent possible to do so consistently with the objects of the Act and human rights under the Human Rights Act. Section 7(1)(w) provides that sexuality is a protected attribute. The objects of the Discrimination Act are to eliminate discrimination "to the greatest extent possible". I discuss the Human Rights Act further below, but as noted there I do not think that it provides for an implied exception for religious statements from the operation of section 67A.

124. It is true that Mr Sunol also has a protected attribute under section 7(1)(t) of the Discrimination Act, a religious conviction. But in this case under section 67A it is Mr Kerslake's protected attribute of homosexuality which is relevant. There is no textual basis for thinking that the fact that a person subject to complaint of vilification has a protected attribute provides a complete exception or defence; if this were the case the section would be rendered of very little utility since almost everyone would have some protected attribute. The fact that Mr Sunol has a religious conviction does not mean that everything he says is outside the realm of vilification; similarly the fact that Mr Kerslake is homosexual does not mean that everything he says is outside the realm of vilification.

Other sources of freedom of speech and freedom of religion rights

125. However, as Mr Sunol noted it is necessary to consider other laws which may impose human rights limitations and exceptions, other than the Discrimination Act itself. In Rep v Clinch (Appeal)[81] the appeal tribunal considered other sources of such rights. I note some of these in the context of this case.

126. First, it is arguable that there is a limitation arising from the Constitution. The decision of the NSW Court of Appeal in Sunol v Collier (No.2)[82] held that section 49ZT of the Anti-Discrimination Act 1977 (NSW) was not invalid as inconsistent with the implied freedom of communication about governmental or political matters arising from the Constitution. Section 49ZT is similar to 67A of the Discrimination Act, and the decision strongly supports a similar conclusion in relation to section 67A. This decision does not consider freedom of religion, whether arising from section 116 of the Constitution, some implication, or a statutory right. The posts at issue in those proceedings did make significant mention of religious beliefs. Slightly different issues would arise in relation to freedom of religion, but in my view this decision also provides a basis for thinking that 49ZT of the NSW Act and section 67A of the Discrimination Act are not inconsistent with the principle of freedom of religion, which is appropriately protected by the exception in both laws.

127. There is an argument arising from the ACT's Human Rights Act which, as noted, in section 14 provides for freedom of religion and in section 16 provides for freedom of expression. But there is also in section 8 provision for recognition and equality before the law, including that "everyone has the right to equal protection against discrimination on any ground". The Discrimination Act, including section 67A, seeks to pursue the relevant concepts of equality and non-discrimination, even when they are in tension with freedom of religion and freedom of speech.

128. The rights in section 8, 14 and 16 are subject to section 28 which states that "human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society". There is significant authority that vilification legislation can be demonstrably justified in a free and democratic society.[83]

129. The relevant effect of sections 14 and 16 is in section 30, which provides that so far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights, including the right to freedom of expression. But section 30 also applies to the recognition of equality and prohibition of discrimination in section 8 of the Human Rights Act. And section 30 provides that any interpretation must be consistent with the purpose of the Discrimination Act, set out in section 4, and importantly the interpretive principle in section 4AA. Given the terms of sections 4, 4AA, and 67A of the Discrimination Act, in my view the interpretive provision in section 30 of the Human Rights Act has little room within which to operate in this context.

130. But where an ambiguity arises, section 30 may have work to do. One issue I note is that section 67A(2)(c) refers to "other purposes" and "discussion or debate about and presentation of any matter". In my view the ordinary meaning of these terms includes matters of religion. But if there were any doubt or ambiguity, section 30, with section 14, would support the argument that matters of religion are included. This is also supported by the fact that section 67A(1)(e) protects against vilification on the ground of religious conviction, which is broadly defined in the Dictionary. I discuss another operation of section 30 in relation to the meaning of detriment in the context of victimisation at paragraph [148] below.

the burden of proof of the elements of each referred complaint including demonstration that any exception, exemption, excuse, qualification or justification does not apply, and the jurisdictional facts upon which the Tribunal's jurisdiction depends, lies upon the Applicant Mr Kerslake.[84]

This is true in relation to the elements of the complaint, but section 70 provides that the onus of establishing an exception, exemption, excuse, qualification or justification lies on the person seeking to rely on it, that is Mr Sunol. Section 67A(2)(c) is such an exception.

132. Therefore in my view, Mr Sunol's freedom of religion and freedom of speech arguments need to be supported by the requirement for the incitement of hatred etc. and the express exception in section 67A(2)(c), read in light of sections 8, 14 and 16 of the Human Rights Act. I accept that there can be public discussion and debate about homosexuality and religion for the purposes of section 67A(2)(c). But this requires that the speech falls within the requirements of that section, in particular that Mr Sunol acts reasonably, that is rationally and proportionately, and honestly. Mr Sunol is of course able to disagree with the terms of section 67A, and to seek to have it changed. But his disagreement cannot mean he is not subject to the specific current terms of that law.

133. These provisions in relation to vilification are applied in the Schedule to the relevant publications. The Schedule sets out the substance of the statements made. There is an issue about whether those statements, many of which are insulting and abusive, and some of which I find are vilification, should be published here. In my view this is necessary in light of the principle of open justice, and the provision of reasons which address the issues raised in this case.[85] This also seems to be the traditional practice in defamation and vilification proceedings. The confidentiality order made in the proceedings does not apply to the tribunal itself. Generally I have only set out the relevant part of the statement. In some cases I have summarised the relevant statement rather than set it out in full because this not necessary. I have corrected some blatant typographical errors, but generally have not corrected the spelling, grammar or otherwise edited the quoted posts.

134. The discussion there focusses where necessary on the issues identified above, namely:

(a) Did the publication incite hatred etc.? Many of the posts are insulting or offensive, but it is necessary to ask whether they meet this higher requirement. This is a key issue in relation to many of the posts.

(b) Was it incitement of hatred etc. of a person or group? Most of the posts are in relation to homosexual persons, described in various ways, which includes Mr Kerslake.

(c) Was it incitement on the ground of homosexuality? Most of the posts are in relation to homosexuality, described in various ways.

(d) If the publication meets these requirements, was it none-the-less reasonably and honestly for discussion or debate about and presentation of homosexuality, the role of homosexual people in society, or religion, or any other matter, and therefore falls within the exception in section 67A(2)(c)?

135. Section 68 of the Discrimination Act provides:

_(1) It is unlawful for a person (the first person) to subject, or threaten to subject, another person (the other person) to any detriment because - _

_(a) the other person, or someone associated with the other person - _

(i) has taken discrimination action; or

(ii) proposes to take discrimination action; or

_(b) the first person believes the other person, or someone associated with the other person - _

(i) has taken discrimination action; or

(ii) proposes to take discrimination action.

136. 'Discrimination action' is defined in section 68(2) and includes (a) to begin a proceeding in the ACAT or a court in relation to the Discrimination Act; (b) make a discrimination complaint; (g) reasonably assert any rights that the other person, or someone else, has under the Discrimination Act; (h) claim that a person has committed an act that is unlawful under the Discrimination Act, or is an offence against the Criminal Code 2002, section 750, other than a claim that is false and not made honestly; and (i) do anything else in accordance with the Discrimination Act.

137. Section 68 of the Discrimination Act in relation to victimisation as it applies here therefore provides that it was unlawful for:

(a) Mr Sunol to do an act which;

(b) subjects, or threatens to subject, Mr Kerslake;

(c) to a detriment;

(d) because Mr Kerslake has taken or proposes to take discrimination action, in this case including these proceedings in the tribunal.

138. Each element is necessary, that is first there must be a relevant act, in this case posts to the internet, which second, subject or threaten to subject Mr Kerslake, third, to a detriment, and fourth, because Mr Kerslake has taken or proposes to take discrimination action.

139. The respondent argues that there is no discrimination action.[86] This concept is defined in section 68(2) as meaning "begin a proceedings in the ACAT or a court in relation to" the Discrimination Act. The respondent suggests that the applicant did not begin proceedings in the ACAT, rather a complaint was made to the Commission which was then referred to the ACAT. The referral takes place on the basis of the complainant's request as provided for in section 53A, set out above at paragraph [43]. In my view this can amount to beginning a proceedings in the ACAT. But at any rate the action can under section 68(2)(b) also be "make a discrimination complaint", that is a complaint under the Human Rights Commission Act. Section 42 of the Human Rights Commission Act makes it clear that a complaint about an unlawful act under the Discrimination Act is such a complaint, and this includes complaints of vilification and victimisation. In my view the proceedings in ACAT can also be discrimination action under section 68(2)(f), (g), (h) in that Mr Kerslake claims that actions of Mr Sunol are unlawful under the Discrimination Act. In my view the complaints to the Commission and the proceedings in ACAT by Mr Kerslake are discrimination actions.

140. The respondent also argues that there has been no detriment.[87] I agree that there is an issue as to what constitutes detriment in these circumstances. This is because the detriments alleged by Mr Kerslake are only statements by Mr Sunol in relation to discrimination actions which Mr Kerslake has taken. In my view there is an issue as to whether mere statements, even if disrespectful, offensive or insulting can amount to detriments. Now of course a threat to subject someone to another form of detriment will generally involve just words. The question is, can the detriment itself just be harsh words? Whether something constitutes a detriment is determined objectively.[88]

141. In Shaikh v NSW Fire Brigades[89] the tribunal there held that victimisation occurs when the respondent causes the complainant "to undergo loss, damage or injury", a definition taken from the Macquarie Dictionary. An alternative formulation was set out in Bogie v University of Western Sydney[90] that what was required was that the complainant "has been placed under a disadvantage as to a matter of substance, as distinct from a trivial matter". In Damiano v Wilkinson[91] a claim of victimisation in relation to statements to a paper that a discrimination claim was trivial, vexatious, misleading, lacking in substance and in effect involved a high degree of harassment was rejected as either accurate, understandable or not constituting a threat. All these formulations suggest that victimisation involves more than words directed to the complainant.

142. In Carter v Brown[92] the NSW tribunal seems to have extended this concept significantly, and stated:

... We accept the applicant's evidence that Mr Fisher caused him to feel humiliated, embarrassed and distressed by his conduct and the language he used. We find that those feelings amount to a detriment in that the conduct of Mr Fisher placed the applicant under a disadvantage, was not trivial and constitutes damage and a form of injury. As with the complaint against Mr Brown, there was no evidence as to the applicant's reputation as perceived by others and, as such, we make no finding as to whether his application [sic] has, in fact, been damaged by the conduct of the respondent.

143. The complaints of victimisation in that case concerned the same acts as the complaints of vilification, which were in summary significant abuse of the complainant. I note that the complaint of victimisation against Mr Fisher concerned language which expressly threatened physical violence, namely "come down the bottom of the driveway so I can smack your ... head in". It seems to me that on any view physical violence is a detriment. The complaints of victimisation in relation to Mr Fisher were for other reasons not proved.[93]

144. This broader concept seemed to be accepted in Burns v Sunol.[94] In that case the tribunal only upheld 2 of 8 claims of victimisation, and in relation to these 2 said:

In each of these publications, Mr Sunol used a number of abusive and highly derogatory terms with reference to Mr Burns. In no. 7, he called Mr Burns a 'habitual liar', a 'common thief' and a 'serial litigant' and accused him of making 'false accusations in courts of law' and 'framing people'. Furthermore, he threatened that if he were to go to gaol, he would encourage other inmates to 'have serious words with' Mr Burns after they were released. In no. 8, he called Mr Burns a 'thieving lying rotten mongrel', a 'serial litigant' and 'a serial abuser of the important legal resources of the NSW civil court systems' and accused him of 'always' bringing 'false actions'.

In varying degrees, these two publications, disseminated via the internet, were such as to cause Mr Burns to feel 'humiliated, embarrassed and distressed'. In one of them, no. 7, a threat (albeit somewhat far-fetched) was conveyed in this sentence: 'If I went to prison I would make sure that everyone I cane (sic) across in prison knew the reason why I was put in there with them and encourage them to have serious words with you when released." In conformity with the Tribunal's determination in Carter v Brown [2010] NSWADT 109 at [154], we are satisfied that these publications subjected Mr Burns to a 'disadvantage' which was 'not trivial' and which therefore amounted to a 'detriment' under section 50 of the Act.[95]

145. In that decision the tribunal seems to take the view that one of the acts was a threat of violence. As noted, in my view physical violence is clearly a detriment. It is only in one case that words alone were held to be a detriment, and these were very significant words, in contrast to the other claims which were rejected. Therefore although detriment arising from only words is seen by some as possible, this requires exceptional circumstances

146. Penhall-Jones v New South Wales (No. 2)[96] concerned the concept of victimisation in the Disability Discrimination Act 1992 (Cth). Driver FM stated: "I accept that verbal abuse in the workplace (particularly by a supervisor) can be a 'detriment' for the purposes of s.42 of the DDA". But the claims in that case were not upheld, including on appeal.[97] This suggests that one exceptional circumstances may arise by virtue of the relationship between the people concerned.

147. I doubt that words used in the context of public debate about proceedings against the complainant, which are disrespectful, offensive, rude, insulting, or hurtful, can generally be victimisation, even if the complainant says they feel offended, hurt, humiliated, embarrassed or distressed by them. First, this seems to me to be outside the common meaning of detriment. The Macquarie Dictionary defines 'detriment' as "loss, damage or injury". Although not determinative, the phrase in the section of "subject, or threaten to subject" suggests that the detriment is something that can be done and threatened.

148. Second, this seems to me to be a context in which the Human Rights Act does have some operation. As noted, section 30 of that Act provides that so far as is possible to do so consistently with its purpose, section 68 of the Discrimination Act in this case, must be interpreted in a way that is compatible with human rights. Section 16 of the Human Rights Act provides for freedom of expression. It is true that section 8 also provides for non-discrimination, but while section 68 seeks to generally protect the ability of people to bring proceedings without detriment, it is not directly about non-discrimination. There is little in the purpose of the Discrimination Act which suggests that the concept of detriment in relation to victimisation should be read generally so as to limit freedom of speech; rather it seems to me section 68 should be read in a way which is to the extent possible compatible with that freedom. Freedom of speech principles apply as much to debate about legal proceedings as they do to other public issues.[98] In my view therefore section 68 should be read in light of section 16 and section 30 of the Human Rights Act, and this means that if victimisation does apply to just speech about legal proceedings, it does so only in circumstances where this is appropriate, and not generally so as to inappropriately limit freedom of speech in relation to discrimination actions. For example where there is an employer employee relationship, a supervisor supervisee relationship, a teacher student relationship, or other ongoing important relationship with a significant power differential, there is more basis for thinking that just words can be victimisation and will not inappropriately limit freedom of speech. But I do not think that just offensive or insulting comments in public in relation to proceedings by people who are not in such special relationships will generally be victimisation.

149. Third, as just noted, there is no special relationship here, and other contextual facts are relevant. Mr Kerslake and Mr Sunol and their supporters have known each other and been disagreeing for significant period of time. Mr Kerslake says he first came across Mr Sunol in 1999 when Mr Sunol repeatedly made insulting, derogatory and harassing comments on a site he was running. He has more recently been monitoring Mr Sunol's social media accounts.[99] Mr Swift says he knew of Mr Sunol from 2002.[100] Mr Sunol seems to agree with this.[101] In these periods there seems to have been a range of strongly worded postings by Mr Sunol, some of which are the subject of these proceedings. Mr Sunol alleges that he was also the subject of a range of strongly worded posts by people aligned to Mr Kerslake, which he describes as harassing. I accept that some of the posts directed at Mr Sunol were also strongly worded posts. Mr Sunol also gives evidence of the large number of complaints which have been made against him.[102] I make no finding about these posts directed at Mr Sunol or the proceedings. But I do note that there has been a long term and public debate between Mr Sunol, and his supporters, and Mr Kerslake, and his supporters.

150. Mr Kerslake is not in any other relationship with Mr Sunol; he is not an employee, student, or neighbour. Rather his relationship is that he has simply chosen to read Mr Sunol's posts, and now has 20 years of experience of what they say. If he thought that they were causing him a detriment in some way, he could have stopped reading them.

151. Fourth, the proceedings in ACAT are public. There has been a confidentiality order made, but the purpose of this is to restrict further publication by the parties and those attending the hearings of the posts at issue in these proceedings. Apart from this order, the Tribunal proceedings are public, in particular the fact of the proceedings, the parties and the nature of the claims are public. An important reason for such proceedings to be in public is to enable scrutiny and debate about them.

152. The alleged victimisation are words said which refer generally to these or similar public proceedings, that is proceedings in which the respondent is facing a claim that they have vilified or victimised someone. There is no obligation on the respondent to accept these claims; he has a right to dispute and contest them. In the proceedings, Mr Sunol and his lawyers have done so strenuously; this of itself cannot be victimisation. But Mr Sunol stating also in public posts, using less lawyerly language, that he disputes the claims, even in strong, disrespectful, offensive, rude or hurtful language, does not seem to me generally to amount to victimisation.

153. I have set out all the relevant posts in the Schedule. Many of these simply refer to these proceedings or other proceedings. Others refer to the complainant in an insulting and offensive manner. They also suggest that the claims are fake, abusing processes and laws, unjustly attacking Mr Sunol, conducting lawfare, vexatious, false, wrong, frivolous, setting up cases, and using the legal system to get gratification. There are some which make more serious allegations of fraud or corruption in relation to the proceedings.

154. But many of these claims are made formally in these proceedings themselves. This includes that the complaints are made for a collateral purpose, that they were frivolous and an abuse of process, that there was an inappropriate multiplication of complaints, that the complaints were motivated by hate and are a hate crime, that Mr Sunol has been denied statutory obligations and procedural fairness, and more.[103]

Defamation and breach of confidence are separate causes of action

155. Fifth, part of Mr Kerslake's claim seems to be that the posts said to be victimisation involve defamation or a breach of confidentiality. But these claims are not directly made in these proceedings, and it does not seem appropriate for the Tribunal to determine these claims simply as a basis for a claim for victimisation.

156. Sixth, all the discussions of victimisation suggest that the concept does not catch trivial detriment. Generally mere words, even if offensive or insulting, will fall within this category. Many of the posts fall within this category of trivial.

157. The position in summary is therefore in my view that detriment in section 68 generally means loss, damage or injury, that section 68 needs to be read as subject to section 30 of the Human Rights Act and the freedom of expression in section 16, that Mr Kerslake and Mr Sunol are not in a special relationship but have known of each other for many years, and that they and their supporters have been in debate for many years, that these proceedings are generally public, that Mr Sunol has strongly disputed the claims within the proceedings and many of the posts reformulate his position outside the proceedings, and that trivial detriment is not caught by the concept of victimisation. These factors lead me to the position that generally public statements by Mr Sunol in relation to these proceedings, even if insulting and disrespectful to Mr Kerslake, do not amount to victimisation. Of course regard needs to be had to the actual words used, and I admit that in some exceptional cases these can amount to victimisation.

158. These provisions in relation to victimisation are applied in the Schedule to the relevant publications. The statement above at paragraph [133] applies here also. The issues are:

(a) did Mr Sunol do an act: in all the posts he makes a statement;

(b) which subjects, or threatens to subject, Mr Kerslake: the statements are often about Mr Kerslake, or a group which includes Mr Kerslake;

(c) to a detriment: this is the key issue in relation to most of the posts; and

(d) because Mr Kerslake has taken or proposes to take discrimination action: most of the posts refer to these proceedings, or other similar proceedings, which are discrimination actions?

159. On the basis of the principles set out above, as applied to the publications as set out in the Schedule, I find as follows:

(a) The posts numbered DT35.001, DT35.002, DT35.003, DT35.006, DT35.007, DT35.011, DT35.012, DT35.014, DT35.018, DT35.19, DT35.025, DT 35.032, DT35.038 and DT35.039 in exhibit A5 in proceedings DT 35/2020 are vilification.

(b) None of the posts in exhibit A6 in proceedings DT 42/2020 are victimisation.

(c) None of the posts in exhibit A7 in proceedings DT 43/2020 are victimisation.

(d) The posts numbered C.001, C.006, C.007, C.051, C.056, C.069, C.079, C.080 and C.095 in exhibit A8 in proceedings DT 45/2020 are vilification.

Part 1: DT 35 posts (vilification)

160. These documents are set out in the applicant's index of documents, exhibit A5, and particulars of the claims are set out in the applicant's list of particularised claims, exhibit A9, and dealt with generally in his submissions. They are dealt with generally in the respondent's submissions at paragraphs [33] and following, and the example documents are discussed at: paragraphs [54], document DT35.004; paragraphs [58]-[63], document DT35.003; paragraphs [64]-[79], document DT35.006; and paragraphs [116]-[131], document DT35.038.

161. DT35.001 is a Youtube video by Mr Sunol entitled: "Same sex marriage = same sex incest = Father & Son ??? What next!!!". In the video he expanded on the themes in the title and stated in part that: "Same-sex marriage equals same-sex incest."; "God condemned incest. Incest is wicked, it's wrong, it's evil."; "Next thing you know, if they want to have children, the son will be having sex with the mother to have a child, so the father and son can be parents."; "That is pure wickedness in God's eyes"; "We're going into pits of hell. We need an about-turn and quickly march back up the channel and change our direction, otherwise the end is not too great."

162. In my view for the reasons given above the reference to same sex marriage is a reference to homosexuality. The video states that same sex marriage, that is homosexuality, is equal to incest, a significant crime. This incites hatred toward, revulsion of, or serious contempt for homosexual people, which includes Mr Kerslake, on the ground of homosexuality. This statement is not an expression of religious belief. Nor is it a reasonable, that is rational and proportionate, discussion or debate about homosexuality or any other matter. I find it is vilification.

163. The statements that "God condemns incest, incest is wicked, it's wrong, it's evil" are not such vilification, nor are the other comments in this post.

164. DT35.002 is a Youtube video by Mr Sunol entitled: "Child Pedophelia is being normalized by Gay Pride Marches part A (Gay Rights Movements)". In the video he says: "The Sydney Gay and Lesbian Mardi Gras - child paedophilia normalisation. The homosexuality community want to normalise the sexuality of children. ... Let's all get up off our feet and stop being lazy and oppose it openly."

165. In my view for the reasons given above the reference to gay pride marches is a reference to homosexuality. This video states that such marches, that is homosexuality, normalizes child paedophilia, a significant crime. These comments incite hatred toward, revulsion of, or serious contempt for homosexual people, which includes Mr Kerslake, on the ground of homosexuality. This statement is not an expression of religious belief. Nor is it a reasonable, that is rational and proportionate, discussion or debate about homosexuality or gay pride marches. I find it is vilification. Other statements in the post are not such vilification, including the statement to oppose it openly. To oppose homosexuality or gay pride marches does not of itself encourage hatred etc.

166. DT35.003 is a Youtube video by Mr Sunol entitled: "Child phedophelia [sic] is being normalized by Gay Pride Marches part B". The video states that: "Child paedophilia is getting normalised through the homosexual Mardi Gras and through gay culture", and this is said several more times. For the same reasons as set out in paragraph [165] in my view this is vilification. Other statements in the post are not such vilification.

167. Mr Sunol argues against a finding of vilification in relation to DT35.003 on a number of grounds (which I also assume applies to DT35.001 and DT35.002).[104] He says that the transcript is not in admissible form, but gives no basis for this, and no objection was made to the admission of this as evidence in the Tribunal;[105] even if this is correct, the tribunal is not bound by the rules of evidence, and there is no unfairness in my view in allowing Mr Kerslake to rely on this document.[106] Mr Sunol did not dispute that he said these things. Second, it is said that it is an expression of Mr Sunol's political expression or religious expression. As discussed above in order to rely on such a ground Mr Sunol needs to bring the statements within the terms of section 67A(2)(c) of the Discrimination Act. These statements are neither in form nor substance a reasonable, that is rational and proportionate, discussion, nor a statement of political or religious belief. Mr Sunol provided no evidence that these statements reflect the beliefs of his religion; in particular they are not referred in the document referred to in paragraph [116] above, or in his evidence of his beliefs in these proceedings. Third, it is said that the applicant is seeking to criminalise the respondent's "duty to fulfil his Evangelical, Apostolic and Pastoral Mission".[107] No criminal proceedings are involved; these are wholly civil proceedings. Further, as noted these statements are neither in form nor substance a statement of religious belief.

168. DT35.004 is a Youtube video by Mr Sunol entitled: "Message to Dogwomble and Rod Swift". In the video he says this is a message to "Rod Swift and Dogwomble - or Tim", who it was accepted was Mr Kerslake. Mr Sunol then makes a range of comments to them, including that: "you two bloody mongrels keep out of the scene and stay off, or else there will be trouble"; "leave me alone"; "you are my old enemies"; "this is a warning, a total warning, to both of you clowns".

169. These comments may be insulting or offensive to the two persons named, but in my view they do not incite hatred etc. Mr Kerslake argues that these should be read as incorporating the statements in DT35.001, DT35.002 and DT35.003; in my view there is no basis for doing so. The other posts provide some context, but each post needs to be considered on its own terms.

170. The post also says that: "I'm if anything more hardline anti-homosexual rights than I ever was"; "You will not stop me"; Mr Sunol states that he remembers them from the past and "I'm just as ...anti-gay, anti- same... homosexual rights now as I was in those times, if not more hardline and hardened".

171. These comments may be insulting or offensive to the two persons named, but in my view they do not incite hatred etc. Even if they are vilification, in my view they are a statement of political position, and as such are a reasonable discussion or debate about homosexuality and fall within section 67A(2)(c).

172. DT35.005 is a Youtube video by Mr Sunol entitled: "Direct message to Dogwomble and Rod Swift". The post says: "There's no such thing as a bogeyman in my life ... It's a bunch of homosexual activists which want... t my blood because I won't bow down to their... atrocities and their ... domination"; "they want to commit fraud. And they want to steal from me"; "They can't get money from me because... I'm bankrupt"; "These people are nasty: very, very nasty."; "I will not stop and will not give in, because I do not vilify. I'm a victim of other people ...". He goes on: "Same-sex marriage is evil, And same-sex marriage is part of Agenda 2030 under a cultural Marxist agenda". He states: "The man taking me to court ...[is] a troublemaker".

173. The use of the terms wanting his blood, atrocities, domination, fraud and stealing cause me some concern here. In another context they may have been suggesting criminal, violent or otherwise unlawful acts which would incite hatred etc. But in this post it seems Mr Sunol in an overblown style means lawful acts seeking acceptance and legalisation of homosexuality and same-sex marriage, and bringing proceedings against him seeking compensation in relation to vilification. Mr Kerslake states that "cultural Marxist" is an "anti-Semitic trope", though he provides no evidence for this;[108] even if it is, I do not think this of itself incites hatred etc. on the basis of homosexuality. I note that generally Mr Sunol seems to use such terms as well as communists, socialists, fascists as generic terms of abuse rather than on the basis of their actual meanings. These comments, as well as nasty and evil may be insulting, offensive, abusive and overblown, but in my view in context they do not incite hatred etc. on the ground of homosexuality.

174. DT35.006 is entitled "All need to take a look at Luke McKee Statistics". It refers to Luke McKee statistics and states: "There's more probability of homos... of paedophilia amongst homosexuals than amongst the heterosexuals. Even though heterosexuality does have paedophilia - yes we must agree - the probability rises far higher due to lifestyles". DT35.007 is similar to DT35.006.

175. This suggests that paedophilia is far higher amongst homosexuals than the general community. No factual support is given for this, only a reference to Luke McKee, with no suggestion he is any relevant type of scientist. It is true that Mr Sunol is not saying that all homosexual people commit paedophilia, or that only homosexual people commit paedophilia. But he is saying a "far higher number" do so. Paedophilia is a significant crime. On this basis this comment incites hatred toward, revulsion of, and serious contempt for homosexual people, including Mr Kerslake, on the ground of their homosexuality. This statement is not an expression of religious belief. Nor is it a reasonable, that is rational and proportionate, discussion or debate about homosexuality. I find DT35.006 and DT35.007 are vilification.

176. Mr Sunol argues against this on a number of grounds.[109] He says that the transcript is not in admissible form, but gives no basis for this, and no objection was made to the admission of this as evidence;[110] even if this is correct, the Tribunal is not bound by the rules of evidence, and there is no unfairness in my view in allowing Mr Kerslake to rely on this document.[111] Mr Sunol did not dispute that he said these things. Second, it is said that it is an expression of Mr Sunol's "scientific articulated argument". But there is no scientific argument. There is simply a bald assertion unsupported by any evidence or science.

177. Third, it is said to be a political expression. As discussed above in order to rely on such an argument Mr Sunol needs to bring himself within the terms of section 67A(2)(c). This statement does not do so. It is neither in form or substance a reasonable, that is rational and proportionate, discussion of a political or religious position. Mr Sunol provided no evidence that these statements reflect his beliefs; in particular they are not contained in the document referred to in paragraph [116] above, or in his evidence of his beliefs in these proceedings.

178. Other statements in the post are not such vilification.

179. DT35.008 is a Youtube video entitled "Homosexual totalitarian dictatorship coming". It states: "The homosexual totalitarian dictatorship is coming and it is a socially conditioning the whole of society. Now it has attacked this ... through the film called Doctor Who, a very famous cult-driven event"; "this is using the same methodology Joseph Goebbels did during World War II with Adolf Hitler".

180. The use of the terms 'homosexual totalitarian dictatorship' cause me significant concern here. In their plain meaning this suggests that homosexual people will form a totalitarian dictatorship in Australia, which could incite hatred etc. of homosexual people.

181. But these statements are exaggerated and illogical. First, the dictatorship and social conditioning Mr Sunol is concerned about are generally lawful acts seeking acceptance and legalisation of homosexuality and same-sex marriage, as discussed at paragraph [89] above. It is Mr Sunol's position which lacks democratic support and seeks to control Australia undemocratically. These are matters of general knowledge.

182. The position that these statements are exaggerated is strengthened by the reference to Doctor Who, and Hitler, who in fact in the Holocaust targeted homosexual people, a matter of general knowledge.[112]

183. In my view the reasonable reader and listener would regard these statements, and Mr Sunol, as exaggerated and irrational. I do not think that would incite hatred etc. in an ordinary reasonable member of the public. On this basis they are not vilification.

184. DT35.009 is entitled "Message to Rod Cub and Dogwomble over same-sex marriage and homosexual rights". This post refers to two people, including Mr Kerslake, and says that they are: "a couple of homosexual activists who are troublemakers. Who have framed me and set me up from the very beginning".

185. These comments may be insulting or offensive to the two persons named, but in my view they do not incite hatred etc. on the ground of homosexuality. I find they are not vilification.

186. Mr Sunol goes on: "In my mind and in my attitude same sex marriage is a perversion and wickedness in God's eyes. Homosexuality is sin, sin against God ... It is very evil, it is very political"; "Go back to bed with the other homosexual activists mates and enjoy yourself. Because I tell you right now, Jesus Christ is going to return and when He returns things will change big time ...".

187. This is a statement of religious belief. As such I do not think it incites hatred etc., and if it does, it is a reasonable, that is rational and proportionate statement of Mr Sunol's belief on a religious issue and falls within section 68A(2)(c). It is not vilification.

188. DT35.010 is a twitter post which states: "I do not need any more fake news so piss off Rod: Note this buster. P flag is only a bunch of old 'poofs' who are heavily involved in Pederasty". According to Mr Kerslake 'P flag' refers to an organisation called Parents and Friends of Lesbians and Gays.[113] This was not disputed by Mr Sunol.

189. Paedophilia or pederasty are crimes. But the organisation is going by its name made up of parents and friends of lesbians and gays, who may or may not be lesbians and gays. There is no obvious connection between Mr Kerslake and this group. It is not clear therefore that this post incites hatred etc. against Mr Kerslake or homosexual people. On this basis I find it is not vilification.

190. DT35.011 is a post which states: "I am not verifying I'm giving hatred I'm just telling the truth I'm the way it stands [sic]. I believe that pedal resting and sexual contact with underage young boys is rampid [sic] amongst older people from pflag and the LGBTQI community and I will push this as hard as I can".

191. Sexual contact with boys is a criminal offence. PFLAG going by its name is made up of parents and friends of lesbians and gays, who may or may not be lesbians and gays. There is no obvious connection between Mr Kerslake and this group. But the LGBTQI+ community is equivalent to the homosexual community, including Mr Kerslake. This element of the post that states "sexual contact with underage young boys is rampid amongst..." the homosexual community incites hatred etc. against homosexual people on the ground of homosexuality. It is not a reasonable discussion or debate or presentation of matters concerning homosexuality. On this basis I find it is vilification.

192. DT35.012 is a post which states: "If you want to stop homophobia you probably want to stop me as well because: 'I am the happy little homophobe living in my joy' I'm proud to be called homophobic and I'll encourage others to do the same".

193. As discussed above at paragraph [86], Mr Sunol calling himself a homophobe has two possible meanings, 1. a fear of homosexuals, or 2. entrenched prejudice against homosexuals. Here it seems to be the second, and close to hatred. Further Mr Sunol says he will encourage others to also be prejudiced against homosexuals. This post is in effect encouraging others to hatred etc. of homosexual people on the ground of their homosexuality. It is not a reasonable, that is rational and proportionate discussion or debate or presentation of matters concerning homosexuality. I find it is vilification.

194. DT35.013 is a post which states: "I intend to travel around Australia, eventually the world again speaking against Gay rights highlighting the persecution that has been given to me by way of law-fare: I am not guilty of vilification, hate, discrimination or anything. I was attacked me [sic] for Political reasons".

195. These comments may be insulting or offensive, but in my view they do not incite hatred etc. I find they are not vilification.

196. DT35.014 is a post similar to DT35.012. On the same basis I find it is vilification.

197. DT35.015 states: "I do not believe homophobia is a danger to anyone: I believe that homophobia is a natural protection built into all natural healthy heterosexual men to protect them from the deviancy and unhealthy unnatural behaviour of homosexuality".

198. These comments may be offensive, but in my view they do not incite hatred etc. I find they are not vilification.

199. DT35.016 states: "Rather than being a criminal offence I see homophobia as an asset for the protection of the average heterosexual person from the deviant lifestyles of homosexuality: Homosexual sex makes the average person feel like it does when you have a spider run up your arm". This then links to a post which says: "Some evolutionary psychologists say that #homophobia is nature's protection against this predatry [sic] homosexual instinct".

200. These comments may be insulting or offensive, but in my view they do not incite hatred etc. on the basis of homosexuality. Mr Kerslake argues that the comment about the spider incites revulsion, but even if so this is revulsion on the basis of "homosexual sex", not homosexuality or a person or group on the grounds of homosexuality.[114] I find this is not vilification.

201. Linked to DT35.016, DT35.017 states: "Not only does this protect the average person from the deviant lifestyle of sexual homosexual minorities but it protects children from sexual exploitation which are part of the deviance that some of the homosexual culture encombass [sic]".

202. These comments may be insulting or offensive, but in my view they do not incite hatred etc. on the basis of homosexuality. I find they are not vilification.

203. DT35.018 part 1 states: "It is normally homosexuals that delve in Pederasty and these children raped by the sex abuse in the catholic church were nominally you boys from around 10-16". This is linked to a post, part 2: "LGBT activists hate Catholic doctrine ... In deep denial, they say Paedophilia is the clergy's problem. Data from Royal Commission shows Pederasty is the overwhelming cause of abuse".

204. Pederasty and paedophilia are serious criminal offences. This is not saying that it is only homosexual people who commit these offences, nor that all homosexual people do so. But to say that it is normally homosexual people who commit these offences suggests that this is often the case. I think this incites hatred toward, revulsion of and serous contempt for homosexual people on the basis of their homosexuality. It is not a reasonable discussion or debate or presentation of matters concerning homosexuality or abuse in the Catholic Church. I find it is vilification.

205. The reference to Catholic doctrine does not incite hatred etc., there is no reference to homosexuality and is a reasonable discussion of an issue. It is therefore not vilification.

206. This also includes a post, part 3, entitled "Some thoughts on homosexuality triggered by the conviction of Cardinal Pell". This states: "Associated with and directly linked to the male homosexual characteristics are hugely disproportionate levels of antisocial behavioural problems. These behavioural problems are reported as pederasty, paedopholia and general disordered sexual behaviour, such as the fetish about the anus and the mouth (those non-general parts of the human body)... Catholic religious doctrine is clear: homosexuality is declared to be inherently disordered". DT35.019 is the same as DT35.018.

207. Again, this is not saying that it is only homosexual people who commit these offences, nor that all homosexual people do so. But to say that it is hugely disproportionate suggest that normally homosexuals do so. I think this comment is inciting hatred toward, revulsion of and serous contempt for homosexuals. It is not a reasonable discussion or debate or presentation of matters concerning homosexuality or abuse in the Catholic Church. I find DT35.018 and DT35.019 are vilification.

208. The reference to Catholic doctrine does not incite hatred etc., and is a reasonable discussion of an issue. It is therefore not vilification.

209. DT35.020 states: "I will be writing a letter to the Working with Children today and explaining how I am being attacked by homosexual activist and they all tell lies to stop me I will fight these homosexual activist to the very end as they are all liars and very evil".

210. These comments may be insulting or offensive, but in my view they do not incite hatred etc. on the basis of homosexuality. I find that they are not vilification.

211. DT35.021 states: "I don't want to take any part in homosexuality: it is discussing [sic] & dirty Sexuality so I am not worried or don't care if I am excluded from this anyway".

212. This may be insulting and offensive, but it does not incite hatred etc. I find it is not vilification.

213. DT35.022 states: "In rejecting homosexuality & marriage equality I also will actively encourage others to follow Jesus Christ for the rest of their life and reject homosexuality and marriage equality like me for the rest of their life". This is linked to a post which states: "No Anti Discrimination law no supreme court case no spamming of pornography can or will change my attitude to homosexuality or same sex marriage: I will follow Jesus Christ for the rest of my life and in doing so reject homosexuality & marriage equality for the rest of mylife [sic]".

214. This may be insulting or offensive, but it does not amount to incitement to hatred etc. It is not vilification.

215. DT35.023 states: "And: I am going to spread my beliefs everywhere on issues concerning: 'homosexuality' and 'same sex marriage' Then prove to the world that a number of people agree [emoji omitted] with me over these controversial issues". It was linked to another post which states: "I may not be of the same fundamental belief system as 'Israel Felau' or that of 'Fred Phelps', from Westbro Baptist Church in Kansas [emoji omitted] USA: But I sure 'as hell' agree with these two groups over: 'homosexuality and same sex marriage LGBTQI rights'".

216. This may be insulting and offensive. But Mr Sunol is only stating that he is going to spread his beliefs which are referred to in general and moderate terms. It does not amount to incitement to hatred etc. It is not vilification.

217. DT35.024 states: "do not see homophobia as a curse but I see homophobia as an asset for all straight boys and to resist something which is very distasteful and horrid: I challenge all to type into google this: I am the happy little homophobe living in my joy:".

218. This may be insulting and offensive, but it does not incite hatred etc. I find it is not vilification.

219. DT35.025 is similar to the second part of DT35.018 concerning Catholic doctrine. However it states: "Data from the Royal Commission shows Pederasty, (ie homosexuality) is the overwhelming cause of abuse". This now expressly referring to homosexuality. This is not saying that only or all homosexual people commit the crime of pederasty or paedophilia. But it is saying homosexuality is the overwhelming cause of abuse in the Catholic Church. While referring to the Royal Commission there was no attempt to support this as a factual statement from specific findings of the Commission or elsewhere. I think this comment is inciting hatred toward, revulsion of and serous contempt for homosexual people on the ground of their homosexuality. It is not a reasonable discussion or debate or presentation of matters concerning homosexuality or abuse in the Catholic Church. I find this is vilification.

220. DT35.026 states: "Ordinary gay persons deserve sympathy. BUT . . we must expose the harmful propaganda of radical LGBT activism that derides Christianity, heteronormativity, traditional marriage & binary gender. They define these 4 things as 'oppressive', so they aim to destroy these things".

221. This may be insulting and offensive. But it does not amount to incitement to hatred etc. It calls for exposure, not hatred. It is not vilification.

222. DT35.027 begins with: "Meet a new breed of Australian CHRISTIAN ACTIVIST. His name is Martyn Iles: a breath of fresh air that will blow through Australian society, institutions & schools, removing the corrupting influence of LGBT propaganda." It links to an article apparently entitled: "Nobody can ban conversion | Conversion Therapy".

223. To refer to the corrupting influence of LGBT propaganda may be offensive and insulting. But this post does not incite hatred etc. I find it is not vilification.

224. It is part of a number of following posts, which relevantly provide: "Gay rights (Or homosexual rights) is only Cultural Marxist thugs who are only out to bully marriage equality and political correctness and on all people in a totalitarian fashion".

225. To call people Cultural Marxist thugs and bullies who act in a totalitarian fashion may be insulting and offensive, but it does not amount to incitement to hatred etc. It is not vilification.

226. DT35.028 states: "This shows the sort of scum bags (dirt bags or garbage) that I am fighting against over LGBTQI RIGHTS ISSUES:". It is linked to another post: "This bullying is what is being done to myself by the use of lawfare against me as put in other tweets that are in this thread: Then these LGBTQI thugs have the sheer audacity to blame me for the lawfare that they use against me".

227. The use of terms like scum bags, garbage, bullies and thugs may be insulting and offensive. But this does not amount to incitement to hatred etc. It is not vilification.

228. DT35.029 states: "I have no choice but to fight for freedom from the oppression from the LGBTQI rights lobby as these people are very [emoji omitted] (evil) The court battles will rage on & I am not ashamed of this:".

229. To suggest that there is oppression by the LGBTQI rights lobby who are evil may be insulting and offensive. But it does not amount to incitement to hatred etc. It is not vilification.

231. DT35.031 states: "Australian Christian Lobby likens gay marriage and Safe Schools to 'unthinkable' Nazi atrocities ... I am fully aware of this as I am a victim of the LGBTQI rights groups in case law: These tactics are what was used against me:". There is reference to a story in The Sydney Moring Herald entitled: "Australian Christian Lobby likens gay marriage and Safe Schools to 'unthinkable' ... 'We have much to learn from the dead', says Lyle Shelton in a blog post".

232. To liken gay marriage to Nazi atrocities is offensive and insulting, and exaggerated and absurd. But in my view it does not amount to incitement to hatred etc. It is not vilification.

233. DT35.032 is similar to DT35.025. For the same reasons I find it is vilification.

234. DT35.033 relevantly states: "From the tweets on this thread I can honestly say could say that the LGBT agenda is intolerant of Christian attitude towards sexuality and gender therefore they are authoritarian like the Chinese government". It is then said: "The LGBT rights lobby is Extremely aggressive:" There are a number of other similar posts.

235. To call people intolerant, authoritarian, and extremely aggressive may be insulting and offensive, but it does not amount to incitement to hatred etc. It is not vilification.

236. DT35.034 is similar to DT35.026. For the same reasons I find it is not vilification.

237. DT35.035 is similar to DT35.026. For the same reasons I find it is not vilification.

238. DT35.036 is also similar to DT35.026. For the same reasons I find it is not vilification. It is linked to a further posts which says: "LGBT ACTIVISTS spread the lie that I 'hate gays'. No saneperson 'hates gays'. That's like 'hatingautuistic people'. Crazy. BUT . . opposing the cultural Marxist LGBTagenda is a different matter. Our mission as CHRISTIAN ACTIVISTS, is to oppose this agenda".

239. To say that the lobby spreads lies may be insulting and offensive. But it does not amount to incitement to hatred etc. For Mr Sunol to say that he opposes an agenda does not amount to incitement of hatred, and even if it were it is a reasonable discussion of a matter. This is not vilification.

240. DT35.037 states: "I believe that I have been put on the earth to expose the harmful propaganda of radical LGBT activism that derides Christianity & and is going to eventually become a totalitarian state that will destroy all humanity if Jesus Christ does not return to earth to stop this:".

241. To say that people spread harmful propaganda and deride Christianity may be insulting and offensive, but it does not incite hatred etc. To say that LGBT activists are going to create a totalitarian state and "destroy all humanity" is offensive, and insulting, but also exaggerated and illogical. This issue is discussed above at paragraph [88]-[91]. In my view the ordinary reasonable reader would regard these statements as exaggerated and illogical. On this basis they are not vilification.

242. DT35.038 repeats part of an earlier post at DT35.018 and then DT35.025, that is "LGBT activists hate Catholic doctrine ... They say Paedopholia is the clergy's problem. Data from Royal Commission shows Pederasty (i.e.) homosexuality is the overwhelming cause of abuse." It is also similar to parts of DT35.036.

243. The relevant part of this post is the statement is that "pederasty (i.e) homosexuality is the overwhelming cause of abuse". This is not saying that only or all homosexual people commit the crime of pederasty or paedophilia. But it is saying homosexuality is the overwhelming cause of abuse in the Catholic Church. While referring to the Royal Commission there was no attempt to support this as a factual statement from specific findings of the Commission or elsewhere. I think this comment is inciting hatred toward, revulsion of and serous contempt for homosexuals. It is not a reasonable discussion or debate or presentation of matters concerning homosexuality or abuse in the Catholic Church. I find this is vilification.

244. DT35.039 states: "I believe that the fire emergency could be brought on by the homosexual terrorist threat to Australia:".

245. This is a post which raises the issues discussed at paragraph [88]-[91] above. It is not completely clear what is being said. In my view it is suggesting the bushfire emergency could have been caused by homosexual people actually undertaking terrorist acts. On this basis it would incite hatred etc. on the ground of homosexuality. It is not a reasonable or proportionate discussion of an issue. In its terms it has nothing to do with religion, and Mr Sunol made no suggestion that it had any source in a religious belief. I find this to be vilification.

246. On another view it may be suggesting that homosexuality and its legal position in Australia has brought on the bushfires, as set out in post C.069. But there is little basis in the text for thinking this is what Mr Sunol is saying.

247. DT35.040 refers to the Israel Folau case and then states: "I see that there is possibly millions of dollars wasted on me by the way of politically based lawfare (LGBT Rights lobby), corruptly to set up legal precedents that are in use today".

248. This may be insulting or offensive, but it does not incite hatred etc. It is not vilification.

249. DT35.041 states: "This twitter account is purely put on line for the sole purpose to expose to the world the corruption of the LGBT rights groups and political agenda:". It then states: "These groups are very oppressive and out to control the world: I am here just to do that a [sic] expose the LGBT rights groups (homosexual rights lobby) ...".

250. To say that LGBT rights groups are corrupt, have a political agenda, are oppressive, and should be exposed may be insulting and offensive, but does not incite hatred etc. As discussed at paragraph [88]-[91] above, to say that these groups are out to control the world is exaggerated and illogical. I do not think that they would incite hatred etc. in an ordinary reasonable member of the public. On this basis they are not vilification.

Part 2: DT 42 posts (victimisation)

251. These documents are set out in the applicant's index of documents, exhibit A6, and particulars of the claims are set out in the applicant's list of particularised claims, exhibit A10, and dealt with generally in his submissions. They are dealt with generally in the respondent's submissions at paragraphs [33] and following, and are discussed at paragraphs [132]-[143], concerning documents DT42.001 and DT42.002. The issue of victimisation is discussed at paragraph [135]-[158] above.

252. The applicant says that posts DT42.001 and DT42.002 are by Mr McKee, a person allegedly directly linked to Mr Sunol. These proceedings are not against Mr McKee. But Mr Kerslake argues that they suggest actions by Mr Sunol.

253. In relation to these claims the standard of proof is particularly relevant. The standard is the balance of probabilities, or reasonable satisfaction of the tribunal, but I agree with the respondent that the seriousness of the allegations made are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal, as discussed in Briginshaw v Briginshaw.[115] This is particularly relevant to these claims since they involve the conduct of Mr Sunol other than just publication online. (For the other matters in this case, it is generally only the publication online which is relevant, and this can be proved by production of the relevant document, which Mr Kerslake has done.)

254. In relation to DT42.001 Mr Kerslake says that certain information in the post could have only been provided by Mr Sunol to Mr McKee. But I do not think that Mr Kerslake has shown this to the relevant standard of proof. The information relates to a court order, and no evidence of any confidentiality regime in relation to that court order is provided, or if there was such an order that everyone subject to it except Mr Sunol complied with it. There is also no direct evidence that Mr Sunol gave the information to Mr McKee. Mr Kerslake says that "Mr McKee is a long-time associate of ... Mr Sunol", but even if true, this falls well short of showing that Mr Sunol provided this information to any standard of proof. It is possible he did so, but more is needed.

255. Even assuming that Mr Sunol did give the information to McKee, there is little basis for finding that this act itself subjected or threatened to subject Mr Kerslake to any detriment because of discrimination action. Mr Kerslake states that the publication by Mr McKee was at about the time of his complaint to the Commission which has given rise to these proceedings, but there is no evidence as to when the provision of the information by Mr Sunol occurred. Not only is there no basis for finding that Mr Sunol provided the information, there is no basis for finding that he did so "because of" Mr Kerslake's complaint.

256. The second part of the post refers to the ACT Human Rights. Again this is a post by Mr McKee. There is no evidence that this information or more properly statement came from Mr Sunol. The post itself is by Mr McKee not Mr Sunol.

257. On the evidence available, there is no victimisation by Mr Sunol.

258. The second post DT42.002 is in a similar position. It is not by Mr Sunol; there is no evidence the information came from Mr Sunol; the post is by Mr McKee not Mr Sunol. On the evidence available, there is no victimisation by Mr Sunol.

259. Mr Kerslake says that these posts are false, offensive and defamatory and have caused him severe reputational damage. But his claim is for victimisation by Mr Sunol, and it is the elements of this claim which need to be shown by evidence.

260. These documents are set out in the applicant's index of documents, exhibit A7, and particulars of the claims are set out in the applicant's list of particularised claims, exhibit A11, and dealt with generally in his submissions. They are dealt with generally in the respondent's submissions at paragraphs [33] and following, and the example documents are discussed at paragraphs [106]-[109], document DT43.001; paragraphs [58]-[63], document DT43.028; paragraphs [110]-[111], document DT43.029; and paragraphs [112]-[115], document DT35.038.

261. The issue of victimisation is discussed at paragraphs [135]-[158] above.

262. DT43.001 is a post by Mr Sunol which states: "I have another case starting in Canberra from a man I have known of for over 20 years and he is one of the first LGBT SJW warriors that I had to handle/ This man is not a nice man and a nasty piece of Garbage I will handle in the courts:".

263. The post is an act by Mr Sunol. But it does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

264. The post DT43.002 is the same. DT43.003 is similar and refers to "fake cases" which are "all fraud" and "entail fake news". The post at DT43.004 is similar, as are the posts at DT43.005, DT43.006, DT43.007, DT43.008, and DT43.009.

265. These posts do not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find they are not victimisation.

266. The post DT43.010 states: "Mr Dollinger or Dogwomble has put a Discrimination accusation against me through the ACT (Canberra) human rights commission which I see as a fraudulent accusation with no evidence".

267. This post does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

268. The post DT43.011 states: "I have put in some submissions to answer this case to the ACT Human Rights and if this case is not dropped and brought on against me To ACAT I have gone public over this : I want to inform the public of the corruption of LGBT SJW political activists in abusing these Civil laws : ...'.

269. This post is in the form of a threat. It is difficult to understand, but it seems to be to the effect that if the case is not dropped, Mr Sunol will go public (notwithstanding he says "have gone public"), and inform the public of corruption by political activists. The publication of private information in relation to a person would be a detriment, for the purposes of vilification. But this comment is not in its terms in relation to private information about Mr Kerslake. The exposure rather is to be "of corruption of political activists". The disclosure of corruption is not a on its face a detriment to Mr Kerslake. I find this this is not victimisation.

270. A post at DT43.012 states: "Another LGBT SJW political activist is starting up more fake cases against me from the ACT (Canberra) : (Dogwomble or Mr Dollinger) ...".Another post states: "I wish to let all know that my answer over the corruption of the LGBT SJW political activists groups and their Co-horts in abusing the Anti-Discrimination laws is in my submissions to the ACT Human Rights over the false accusation against me in Canberra : I have gone public :".

271. These posts do not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find they are not victimisation.

272. The post DT43.013 refers to section 49ZT of the NSW Anti-Discrimination Act 1977 and states relevantly: " ... Homosexual vilification used against me by LGBT SJW political activists. This needs to be repealed as it being abused : We have no real need for this law but to prop LGBT rights:". It goes on to say similar things to DT43.012, and: "I wish to let all know that my answer over the corruption of the LGBT SJW political activists groups ...".

273. These posts do not subject or threaten to subject Mr Kerslake to a detriment because he has taken or proposes to take discrimination action. I find it is not victimisation.

274. The post DT43.014 is similar to DT43.013 and states: "I am about to take on more LGBT SJW political activists from. Canberra ACT about abuse discrimination le [sic] again : I will write up about thid on twitter as it happens :".

275. This post does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

276. The post DT43.015 states: "I 'might have to face the courts/ anti-discrimination tribunals' over this statement as I may upset someone from 'LGBT SJW political activists': But if anyone is upset over 'This tweet' Then so be it as I have the power of God putting this message online through me".

277. This post does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

278. The posts DT43.016 and DT43.017 are similar to DT43.012. I find they are not victimisation.

279. Post DT43.018 states: "I am going to fight people who think that they can have me on vexatious case of vilification of homosexuals in Canberra ACT by the name of dog-womble. He is a blatant liar and needs to be opposed:".

280. This post does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

281. Post DT43.019 states: "I refuse to sell my home to pay one red cent to those vexatious fraudulent complaints lodged against me as the LGBT SJW political activist who are taking me on in the ACT and elsewhere are all committing fraud and purgery by telling lies. I will not give in to such".

282. This post does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

283. The post at DT43.020 states: "I believe that, I am under attack using lawfare corruptly (again) against me: But this time it is from Canberra ACT using the Human Rights Commission to abuse the law :".

284. This post does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

285. The following posts DT43.021 to DT43.056 in this bundle are generally similar to those considered above. In summary they refer to:

- Mr Sunol's accusers as: political activists, thugs, trouble makers, internet trolls, geese, liars, lobbyists, fascists, left-wing socialists/communists, enemies of John Sunol, vexatious internet trolls, corrupt homosexual lobby, LGBT social justice warriors,

- that they are: abusing processes, unjustly attacking, conducting lawfare, bringing vexatious, false, wrong, frivolous, complaints, setting up cases, committing fraud, using the legal system to get gratification, corruptly taking Mr Sunol to task; and

- that Mr Sunol: would fight these cases, that if they were not dropped he would go public, that "if he does not want egg on his face he [Dogwomble] had better withdraw", he is not guilty, the complaints should be withdrawn, he will not conciliate or come to an agreement, God would protect him, he would refuse to comply, all the cases and submissions should go public.

286. These posts do not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find they are not victimisation.

287. The following posts DT43.057 to DT43.061 concern section 49ZT of the NSW Anti-Discrimination Act 1997 and a NSW Parliamentary inquiry into the provision. They provide that Mr Sunol has put in a submission to have it repealed; that the submissions can be viewed and "victims of LGBT bullying and vexatious litigation are finally being heard"; LGBT activists have no coherent defence against the information revealed to the Committee and they resort to ad hominem arguments against Mr Sunol.

288. These posts do not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find they are not victimisation.

289. The following posts DT43.062 to DT43.064 concern the case of Collier v Sunol. They suggest that the "case was really ZGEEK v Sunol, a travesty of justice" with the ZGEEKS a group of people including Mr Kerslake (dogwomble).

290. These posts do not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find they are not victimisation.

291. The post at DT43.065 states: "ZGEEK junior member Tim Kerslake (dogwomble) was sending me menacing and harassing emails" in relation to which Mr Sunol says he took legal action. This or similar statements are also said in DT43.066, DT43.067 and in DT43.068.

292. These posts do not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find they are not victimisation.

293. The post at DT43.069 states: "Since studying sociology in a class of homosexual activists at Newcastle Uni in 1996-7, I've been stalked, menaced & harassed, vilified, doxed, livelihood destroyed, made bankrupt, accused of being a hate monger, all for opposing the Mardi Gras and same-sex marriage". It is then said in a separate post: "Screenshot shows a twitter account that targets me while hiding behind the fake identity of Luke McKee. Real identity is Tim Kerslake from Canberra. Information on this stalker's history as it relates to me is contained in Exhibit 1 here:...".

294. This post does not subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. I find it is not victimisation.

295. The document at DT43.070 is a submission by Mr Sunol to the Inquiry into Anti-Discrimination Amendment (Complaint Handling) Bill 2020 of the NSW Parliament dated 26 April 2020. The documents at DT43.070 seem to be the attachments to this submission. These documents set out issues in relation to the Bill and Inquiry, and information concerning relations between Mr Sunol and Mr Kerslake and others, people Mr Sunol calls "homosexual activists", and a range of litigation against Mr Sunol by those people, including these proceedings. I do not see a basis for thinking that these documents subject or threaten to subject Mr Kerslake to a detriment, because he has taken or proposes to take discrimination action. Further, as a submission to parliamentary inquiry it is subject to parliamentary privilege, that is the principle that it is not possible to call into question or examine what was said in Parliament or documents provided to Parliament.

296. These documents are set out in the applicant's index of documents, exhibit A8, and particulars of the claims are set out in the applicant's list of particularised claims, exhibit A12, and dealt with generally in his submissions. They are dealt with generally in the respondent's submissions at paragraphs [33] and following, and the example documents are discussed at: paragraphs [55]-[56], document C.057; paragraph [57], document C.058; paragraphs [80]-[91], document C.046; and paragraphs [92]-[105], document C.031.

297. The post at C.001 is a video in which Mr Sunol states: "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."

298. 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.

299. The post at C.002 states in part: "The Curse of the homosexual Mardi Gras is now spreading all over Australia, targeting well known cities like Alice Springs in the Northern Territory. We must pray to God to stop this sinful wicked activity immediately or it will consume the whole of society and destroy everyone".

300. To say that something is sinful, wicked and may destroy society may be offensive, insulting, and as to destroying society exaggerated and illogical, but I do not think it incites hatred etc. I find it is not vilification.

301. The post at C.003 states: "I am willing to lift my head up and the prominent ANTI lgbtqi rights campaigner and well and truly against the Mardi Gras and all its components as a spread of this disease will put the curse upon the whole of Australia. Curse of the homosexual Mardi Gras and the lgbtqi rights".

302. This may be offensive and insulting, but I do not think it incites hatred etc. I find it is not vilification.

303. Post C.004 is similar to C.002 and C.003. I find it is not vilification.

304. Post C.005 states in part: "I am being set up by the LGBTQI activists who are very evil people controlled by the devil". Many of the subsequent posts state that Mr Sunol was and is being set up in cases.

305. To suggest that people are "setting up" others, are evil, and controlled by the devil may be offensive and insulting, but I do not think it incites hatred etc. I find it is not vilification.

306. In relation to post C.006 it is difficult to gauge the context, but Mr Sunol says: "... I believe that homosexual rape kiddies as well. Child molestation right across the board of humanity not just the Catholic church. Other parts of Society as well, you must accept that because that is reality." He later states: "Sydney Mardi Gras is full of perverts who wish to do this kind of act". Post C.007 is similar.

307. In my view for the reasons given above the reference to gay pride marches and mardi gras are a reference to homosexuality. This post states that such marches are full of perverts who wish to rape kiddies and undertake child molestation. On this basis it incites hatred toward, revulsion of, and serious contempt for homosexual people on the ground of homosexuality. This statement is not an expression of religious belief. Nor is it a reasonable, that is rational and proportionate discussion or debate about homosexuality. I find C.006 and C.007 are vilification. Other statements in the post are not such vilification.

308. Post C.008 states: "I dedicate myself to the destruction of homosexual marriage as this is very evil brought on the earth through the power of Satan: But Jesus Christ Power is far greater than the power of Satan ...".

309. This post expresses a view, which is religious in nature. To say something is evil and brought about by Satan may be offensive and insulting, but I do not think it incites hatred etc. I find it is not vilification.

310. Post C.009 states: "I have been abused & taken to be a fool who is ignorant by some member(s) of the lgbtqi rights groups & lobby who call themselves: 'social justice Warriors' They are no more social justice Warriors than the devil himself they are just blatant troublemakers who tell lies:".

311. In this post Mr Sunol describes his position; this is not vilification. He calls LGBTQI+ rights groups blatant trouble-makers. This may be offensive and insulting but does not incite hatred etc. I find it is not vilification.

312. Post C.010 states: "children need to live the lifestyle of a child and not be put into areas of no concern to them to early in lifestyle. Those that include children in gender and sexuality are stealing a child's little boy or girl life and they grow up to early."

313. This expresses views about childhood and education. It is not incitement of hatred etc. I find it is not vilification.

314. In relation to post C.011 it is also difficult to gauge the context but this seems to concern a report that children were suspended for asking to be excused from a class because the subject was sexuality. It says: "this is wicked in the eyes of God. Homosexuals have no rights to force a 10 year old into teaching about issues to do with sexuality & for the five year old children exposed to learning about sex gender studies this is just NOT ON WE MUST GET UP & SPEAK OUT AGAINST THIS:".

315. This expresses views about teaching. It suggests homosexuals forced teaching on sexuality on children. This may be insulting and offensive and but it does not incite hatred etc. Even if it did, it is likely a reasonable discussion. I find it is not vilification.

316. Post C.012 concerns a claim and says: "this man is a blatant liar & to my beliefs an evil man working in cahoots with the devil. If this goes to court - then I will have no choice but to fight back & show that we all have rights to reject the Gay Rights lobby [hyperlink omitted] & any others of this nature".

317. Calling someone a blatant liar, evil, and working in cahoots with the devil may be offensive and insulting and but it does not incite hatred etc. I find it is not vilification.

318. Post C.013 seems to relate to the Israel Folau case in some way and states: "when one person of the same sex has sex with the same sex 'demon spirits' are transported between the two and both are possessed by demonic spiritual forces. Witchcraft becomes involved and takes over their lives:".

319. This expresses a religious opinion. To suggest someone is 'transported by demon spirits' and 'possessed by demonic spiritual forces' may be offensive and insulting, but it does not incite hatred etc. I find it is not vilification.

320. Post C.014 states: "I would like to let 'Rod ...' & other members of the GLBTQI rights lobby know that are attacking me. I will fight you to the day I die as I know that you mob are Political activist. To my beliefs very evil: You lot have given me no choice. I can not compromise with the devil:".

321. To call someone a political activist, evil, and the devil may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

322. Post C.015 states: "I now have PFlag Perth in Western Australia attacking me online: I look at this coming from the 'devil' and I am not afraid to take these people on full as I have Jesus Christ protecting me from these people". Post C.016 is similar.

323. As mentioned above PFLAG is an organisation called Parents and Friends of Lesbians and Gays; as such its members may not be homosexual. To call someone the devil may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

324. Post C.017 seems to relate to an allegation that Mr Sunol had a serious charge against him. It states: "Rod ... & other members of the LGBTQI social justice movements or homosexual activists lobby - I am taking you lot to account as I suspect that this fraud is being perpetuated by your group & unethical skulduggery that goes on with your social justice & feminists campaigns".

325. To say someone is carrying out fraud and unethical skulduggery may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

326. Post C.018 concerns a Newcastle pride march: "This pride event is based off an expansion of the Sydney gay and lesbian Mardi Gras which started as a riot of Homosexual rights in 1978 has blown out for the whole nation for social and political change. Now this 'curse' is carrying out its original plans and has gone into:". C.019 is similar.

327. To call the Mardi Gras and pride marches a curse may be insulting and offensive but does not incite hatred etc. I find it these posts are not vilification.

328. The post at C.020 states: "I am under attack by 'so-called' social justice warriors which I call internet thugs and evil LGBTQI rights campaigners all of the time as I speak out against homosexual rights:".

329. To call someone an internet thug and evil may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

330. The post at C.021 states: "All I know is that I am fighting very evil people and I suggest that as many as possible should speak out against Gay rights & Political Correctness :".

331. To call someone evil may be insulting and offensive, but does not incite hatred etc. To speak out against gay rights and political correctness, and suggest that others also do so, may be offensive, does not incite hatred etc. I find this is not vilification.

332. The post at C.022 states: "I intend to travel everywhere at Rand varrying out thr good message how it the greatest thing on earth to be classified s : 'born again homophobe' Telling and teaching on the benefits of being : 'anti homosexual'".

333. Mr Sunol says he has been classified, apparently by others, as a homophobe. I doubt that this can be Mr Sunol inciting hatred etc. To say that he is telling and teaching of the benefits of being anti-homosexual may be insulting and offensive but does not incite hatred etc. I find this is not vilification.

334. The post at C.023 states: "I am one excellent example of the deceitful evil tactics used by the Gay rights movement using tactics known as law fare to stop those exposing the corruption in this [emoji omitted] evil organisation is very oppressive. They have a one world dictatorship agenda New World Order :".

335. To say someone is carrying out deceitful evil tactics and lawfare, and is corrupt, evil, and oppressive, may be offensive but does not incite hatred etc. To say the movement has a one world dictatorship agenda is insulting and offensive, and also exaggerated and illogical. I find this is not vilification.

336. The post at C.024 states: "I am not in contempt of the tribunals and their is lies being posted about this: I will fight this to the day I die. The LGBTQI lobby groups are very evil and I can never come to a settlement with them as that would be like making a settlement with the devil:".

337. To call someone evil and the devil may be insulting and offensive but does not incite hatred etc. I find is not vilification.

338. The post at C.025 states: "I am a victim of the homosexual lobby groups and gay activism 'Same sex marriage is very evil and Gay rights is brought into power by the devil so I have a duty to fight this evil to the very end".

339. To say that same sex marriage is evil and of the devil may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

340. The post at C.026 states: "I can see myself in my older years driving all over Australia and travelling overseas speaking on the coming new world order and how marriage equality coupled with Gay rights is going to destroy". The post at C.027 is similar. The post at C.028 is also similar, and states in addition: "... the Mardi Gras harbors drug dealers, child pedophiles, pornography (hard core Porn) with other such nasties."

341. Drug dealing and paedophilia are serious crimes. In this context the Mardi Gras is a proxy for homosexuality. But to say that the Mardi Gras harbours people who commit these crimes is not the same as saying that homosexuality is equivalent to paedophilia and drug dealing, or normalises paedophilia and drug dealing. Or that all, most or even some homosexual people are involved in paedophilia or drug dealing. This may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

342. The following posts C.029, C.030, C.031 return to the theme that homophobia is normal, and is nature's protection against predatory homosexual conduct. These are not vilification.

343. In the post at C.032 Mr Sunol states: "Do not listen to those saying I have a criminal record as I do not. They are telling lies as they are homosexual social justice warriors very evil people & liars only: I have been set up and framed for political purposes to set caselaw:?".

344. To call someone a liar and very evil may be insulting and offensive but does not incite hatred etc. I find this is not vilification

345. The post at C.033 states: "Gay rights (Or homosexual rights) is only Cultural Marxist thugs who are only out to bully marriage equality and political correctness on all people in a totalitarian fashion". The posts at C.034, and C.035 are similar.

346. To call people Cultural Marxist thugs, bullies, politically correct and totalitarian may be insulting and offensive but does not incite hatred etc. I find it is not vilification

347. The post at C.036 states: "LGBT ACTIVISTS spread the lie that I 'hate gays'. No sane person 'hates gays'. That's like 'hating autistic people'. Crazy. BUT . . opposing the cultural Marxist LBGT agenda is different. Our mission as CHRISTIAN ACTIVISTS, is to expose and oppose this agenda". The post at C.037 is similar.

348. To call someone a liar and Cultural Marxist may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

349. The post at C.038 states: "I believe that the Roman Catholic Church had homosexual Pederast Priests in it who did commit sexual abuse and crimes on young boys : George Pell was not guilty of this but because he was so high in the church ranks he became a victim of the LGBT rights groups and a scape goat:,".

350. To say that the Roman Catholic Church had homosexual pederast priests is not saying that all homosexuals, or most or even many homosexuals are pederasts. It is only a statement that there were some homosexual pederast priests. I do not think this incites hatred etc. in relation to homosexual people on the ground of homosexuality. To say that George Pell was a victim of LGBT rights groups may be insulting and offensive to those groups but does not incite hatred etc. I find this is not vilification

351. The post at C.039 is similar to those at C.026 and C.027. I make the same findings.

352. The post at C.040 states: "I need to inform my followers that I am using this twitter account for academic discourse & I would like to nominally spread the message on how corrupt & abusive the LGBT rights lobby [social justice warrior's] really are in pushing homosexual rights for political gain". The posts at C.041 and C.042 are similar.

353. To call someone corrupt, abusive, and pushing something for political gain may be insulting and offensive but does not incite hatred etc. I find that this is not vilification.

354. The post at C.043 relevantly states: "(Australia needs a Religious Freedom Law, so Catholic paedophiles aren't interfered with with children.) "these are not Catholic paedophiles their Homosexual paedophiles as Homosexuals got into the Catholic Church:".

355. This does not suggest that all, most or even many homosexuals are paedophiles. I do not think it incites hatred etc. I find it is not vilification.

356. The post at C.044 states: "The LGBT rights lobby is a very small but powerful group ... I see this group as powerful but very evil & oppressive: It is this group & others of such that have attacked me. They use law as a weapon to push their agenda not what the courts are meant to be". The post at C.045 is similar.

357. To state that someone is evil, oppressive, and uses law as a weapon to push an agenda may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

358. The post at C.046 states: "LGBT activism leads to child abuse e.g. teaching kids that (1) homosexual acts are natural (2) their biological gender could be wrong (3) grooming of boys by homosexual men is OK (4) Christian teachings about sanctity of birth, marriage & death are based on ignorance & bigotry".

359. This is a comment about LGBT activism and teaching. It states that LGBT activism leads to child abuse, and in particular that, it seems to suggest, this includes teaching that grooming boys by homosexual men is OK. This is offensive and insulting. But it does not suggest that all, most, many or even any LGBT activists commit child abuse or grooming, and on this basis I think it does not incite hatred etc. I find it is not vilification.

360. The post at C.047 states: "I believe that two pederasts can marry each other following the removal of gender from Australia's Marriage Act. I believe that male homosexuality and pederasty are linked, as a duck is linked to water...". Following on from this post C.048 states: "This is partly the reason for child abuse being rampart in the Catholic church, it is the fault of homosexuality in the Catholic church and to my beliefs his is wickedness in the church. Satan has made his way into some of the church members via Phedarasty and homosexuality".

361. This does not suggest that all or even most or many homosexuals are paedophiles. To say that they are linked, a very unclear statement, and suggest that homosexuality is wicked, may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

362. The post at C.049 and C.050 are similar to the post at C.046. I make the same findings.

363. The post at C.051 states: "I believe that this will happen and that is why I call on all non homosexual people from all over the world to rise up and speak out against the LGBT social justice warriors for political change before it is too late". The post at C.052 expands on this and states: "A bunch of political thugs with the goals of forcing homosexual rights onto all people". This also includes a post: "The only way you can fight the Sydney 'gay mafia' is with lawyers, guns, and money. The LGBT judicial authorities have all 3 of these resources at taxpayer expense (GLLO police have guns). Send me lawyers and money! I'm down on my luck". It also states: "This account is also available to expose the LGBT SJW Political activists for what they really are :".

364. 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.

365. The post at C.053 is similar to that at C.046 and C.029, C.030 and C.031. I make the same findings.

366. The post at C.054 is similar to that at C.046. I make the same finding.

367. The post at C.055 is similar to that at C.047. I make the same finding.

368. The post at C.056 states: "This is what the LGBT SJW warriors are doing: I feel that we all should oppose this openly: Children "are not sexual objects for the gratification of 'homosexual men'".

369. This is suggesting that homosexual men as a general class use children as sexual objects. On this basis it is vilification of homosexual people since it incites hatred toward, revulsion of, or serious contempt for them on the basis of their homosexuality. This statement is not an expression of religious belief. Nor is it a reasonable, that is rational or proportionate, discussion or debate about homosexuality. I find it is vilification.

370. The post at C.057 is similar to that at DT43.013 and then states: "We must all support Israel Felau and oppose the LGBT SJW political activists as these homosexual activists are very oppressive :".

371. To say that people should support Israel Folau, and oppose LGBT activists, is not even offensive. To say people are oppressive may be insulting and offensive but does not incite hatred etc. It find it is not vilification.

372. The post at C.058 states: "The world needs to reject the idea of same sex marriage and the same LGBT SJW political activists as this is the evil [emoji omitted] which I believe for God's fury at the people: This will not stop only get worst until same sex marriage is overturned and the world comes to forgiveness :".

373. To say that people should reject same sex marriage is not even insulting or offensive. To say same sex marriage is evil may be insulting or offensive but does not incite hatred etc. I find it is not vilification.

374. The posts at C.059 and C.060 are similar to those at C.038 and C.047. I make the same findings.

375. The post at C.061 states: "Have we all got why it takes to stand up and face to face the LGBT SJW political activists as these people are unscrupulous on their attacks upon those who oppose their LGBT agenda :".

376. To say that people should stand up to activists is not even offensive. To say people are unscrupulous and attack those who oppose their agenda may be insulting and offensive but does not incite hatred etc. I find this is not vilification.

377. The post at C.062 states: "I know that when I fight the LGBT SJW political activists I cannot loose as I am fighting what is evil [emoji omitted] and I am doing what is right for all the heterosexual family people in the world :".

378. To say people are evil may be insulting and offensive, but does not incite hatred etc. I find it is not vilification.

379. The post at C.063 states in part: "It is all going online and 'I intend to use 'online' to my fullest plus'travel everywhere' talking on the coming of the 'one world government' and how evil [emoji omitted] the LGBT SJW political activists are in pushing for homosexual rights :".

380. Whatever the coming one world government is, it is not expressly linked here to homosexuality. To say people are evil may be offensive but does not incite hatred etc. To say that homosexual activists push for rights is not even insulting or abusing. I find this is not vilification.

381. The post at C.064 states: "This is what I am fight 'Gay Mafia'".

382. To say people are a mafia may be insulting and offensive but does not incite hatred etc. I find this is not vilification.

383. The post at C.065 states: "this is what I am dedicated to speak out against the LGBT SJW political activist which I see as very evil and the enemy of all society:".

384. To say people are evil is offensive but does not incite hatred etc. To say that people are the enemy of all society does not make sense, since homosexual people are part of society. These comments may be insulting and offensive but does not incite hatred etc. I find it is not vilification.

385. The post at C.066 states: "A dictatorship could come out of the Corona virus and this I feel would be a homosexual dictatorship run by LGBT SWJ political activists".

386. The use of the term homosexual dictatorship causes me concern here. In its plain meaning this suggests that homosexual people will form an undemocratic dictatorship in Australia, which could incite hatred etc. of homosexual people. But these statements suggest that the dictatorship would be caused by the virus, not homosexual people. These statements are also exaggerated and illogical. This is discussed at paragraphs [88]-[91] above. In my view these statements would not incite hated etc. in the ordinary reasonable reader. On this basis they are not vilification.

387. The post at C.067 states in part: "I see Corona Virus as: God has allowed Satan to bring the curse of Covid 19 to the world due to the wickedness of same-sex marriage / Homosexual / Transgender issues being legislated into law:".

388. These type of statements are discussed at [92]-[95] above. In this statement it is allowing these matters to be legislated in law which seems to be of concern, and this was done by the whole Australian community and Parliament voting, not just homosexual people. If it is vilification it is of the majority of Australians, not homosexual people. On this basis I find they are not vilification.

389. The post at C.068 states: "these LGBDT SJW political activists are a communist backers and we must oppose them on all fronts:".

390. To say that people should be opposed is not even offensive. To say people are communists may be insulting and offensive but does not incite hatred etc. I find this is not vilification.

391. The post at C.069 states in part 1: "I believe that God has allowed Satan to bring the curse of Covid 19 to the world due to the wickedness of same-sex marriage and other gender based issues : QAnon conspiracy theories about the coronavirus pandemic are a public health threat via @TC_Africa". A number of posts by Mr Sunol follow this, including one which I will call part 2 which states: "I see another reason for Covid 19 is because of the sacking of Israel Felau as I class this as wickedness before God:".

392. These type of statements are discussed at [92]-[95] above. Essentially part 1 is saying that the COVID-19 pandemic was caused by 'same-sex marriage', which as discussed above is a proxy for homosexuality. This is not focused on the legalisation of same sex marriage as the post at C.067 was, but on homosexuality itself. It could incite hatred toward, revulsion of and serious contempt for homosexual people.

393. This is said in religious terms. But this belief is not supported by the catechism Mr Sunol quotes nor any of the evidence he gives about the tradition he says he is part of.[116] There is no evidence that this statement flows from his religious beliefs, in contrast to his statements that homosexuality is wrong, wicked etc.

394. I note that the fundamental statement that homosexuality caused the pandemic has no express rational basis; and that it is likely to reflect badly on Mr Sunol himself. But it is also not obviously illogical. It is difficult to see that this statement is a reasonable discussion about religion, homosexuality or the pandemic.

395. These features make the consideration of this statement quite difficult. But on balance I think that the fundamental message that the COVID-19 pandemic was caused somehow by homosexuality is likely to incite hatred, revulsion and contempt of homosexual people, including Mr Kerslake, on the ground of homosexuality, and is not a reasonable discussion of anything. I do not think that the use of religious language, especially where there is no evidence the view comes from Mr Sunol's religious tradition, of itself prevents a statement from inciting hatred etc. or makes it a reasonable discussion. I find this is vilification. I do not think that the part 2 statement is vilification; if this is vilification it is not of homosexual people on the ground of homosexuality.

396. The post at C.070 states: "This is the bastardy that the LGBT SJW political activists will do to George Pell, it him again with lies to get more money from the Catholic church and George Pell; They are all bastards who will stop at nothing:". The posts at C.071 and C.072 are similar.

397. To say people commit acts of bastardry, lie to get money, and will "stop at nothing" may be insulting and offensive but does not incite hatred etc. I find this is not vilification.

398. The post at C.073 states: "What about the Homosexual Agenda and its plans with the Sydney Gay and Lesbisn Mardi Gras during the Corona Virus is the Wrath of God on Such Pride marches to the wickedness of the LGBT activities of such : Covid 19 confirms this :"

399. To say that there is a homosexual agenda and that homosexuality is wicked may be insulting and offensive but does not incite hatred etc. In contrast to the post at part 1 of C.069 this is not clearly saying homosexuality has caused the pandemic. On this basis the comments are not vilification.

400. The post at C.074 states: "I believe that God has allowed Satan to curse the world with Covid 19 due to the wickedness of man introducing wicked legislation of same sex marriage and other gender issues related to homosexuality and sexual sin." The post at C.075 states: "I will spread this everywhere: 'both online using social media and the internet' and also in person to person contact offline where ever I go as people must know this". The posts at C.076 and C.077 are similar.

401. These type of statements are discussed at [92]-[95] and [387]-[392] above. In this statement it is allowing these matters to be legislated in law which seems to be of concern. Like the post at C.067, if it is vilification it is of the majority of Australians, not homosexual people On this basis they are not vilification.

402. The post at C.078 states: "I would like to say this??? In my belief no child is Homosexual : Homosexuality is a behaviour that is designated to teens and Adults only an. Is a. Learned behaviour brough on by social disorders of peer groups".

403. Mr Sunol is expressing a point of view here. This may be insulting or offensive but I do not think it would incite hatred etc. I find this is not vilification.

404. The post at C.079 states: "I am like in Poland : I have declared war on homosexuality and like in Roman Catholic Poland declare a crusade against Homosexual rights : Homosexual rights is wickedness in God's eyes :".

405. To declare a war or a crusade is inciting hatred, indeed violence. It is here declared against homosexuality. It might be argued that this is exaggerated or over blown language, but this is by no means clear here. This is not a reasonable, that is rational or proportionate, discussion of any issue. It is not a statement of religious belief. It is not supported by the catechism Mr Sunol quotes or the evidence he gives about his religious beliefs. Indeed it is contrary to that part of the catechism quoted at paragraph [94] above. I find it is vilification.

406. The post at C.080 states: "I do not declare war on all homosexual people at all, I declare war on members of the Gay lobby which is a specific activist group of political lobbyist and less than 5% of homosexual people: This group is the LGBT SWJ political activist lobby only 'Or Social Justice Warriors'". The post at C.081 states: "They are specifically LGBT political activists and lobbyists who I am at war with not the average Homosexual which these people lie about me hating :".

407. To declare a war on the "gay lobby" is inciting hatred, indeed violence on the ground of homosexuality. It is true that the war is not against all homosexual people, but it is incitement of hatred on the ground of homosexuality. It might be argued that this is just exaggerated or over blown language, but this this by no means clear here. This is not a reasonable, that is rational or proportionate, discussion of any issue. It is not a statement of religious belief. It is not supported by the catechism Mr Sunol quotes or the evidence he gives about his religious beliefs. Indeed it is contrary to that part of the catechism quoted at paragraph [94] above. I find it is vilification.

408. The post at C.082 states: "LGBT social justice warriors inside and outside the NSW Anti-Discrimination Board that have been persecuting me for 17 years are FASCIST". The post at C.083 is similar. The post at C.084 goes on to say: "Fascist are really left wing Socialist / communist and that is what those LGBT SJW political activists lobbyists taking me to court really are :".

409. To say people are activists or lobbyists is not even insulting or offensive. To say they are social justice warriors, persecutors, fascists, socialists, communists, and evil may be insulting and offensive but does not incite hatred etc. Warrior might suggest violence, but not I think so in this context. I find this is not vilification.

410. The post at C.085 states: "Over the past 15-20 years I have been the victim of internet troll's, geeks computer nerd, using the internet to make fun of me: Then another far more sinister evil group (LGBT SJW rights lobby & political activist) joined these computer nerds to corrupt make case Law:". The posts at C.086, C.087, C.088 are similar.

411. To say people are geeks, computer nerds, use the internet, are lobbyists or activists is not even insulting or offensive. To say that people victimise, are sinister, evil, and corrupt is insulting and offensive but does not incite hatred etc. I find this is not vilification.

412. The post at C.089 refers to an article about Israel Folau and states: "LGBT SJW activists refuse to shut up. They try to brutally silence every voice that refuses to celebrate their perverted doctrines & practices". The posts at C.090, C.091 and C.092 are similar.

413. To say people are activists is not even insulting or offensive. To say that people are brutal might suggest violence, but not I think in this context. To say that people refuse to shut up, brutally silence, and are perverted may be insulting or offensive but does not incite hatred etc. I find it is not vilification.

414. The post at C.093 also refers to an article about Israel Folau and states: "The whole world is at stake when LGBT SJW activists take action : LGBT SJW activists refuse to shut up. They try to brutally silence every voice that refuses to celebrate their perverted doctrines & practices".

415. To say that the whole world is at stake does not make sense. Homosexuals are part of the world. To say people are activists is not even offensive. To say that people refuse to shut up, brutally silence others, and are perverted may be insulting or offensive, but does not incite hatred etc. It is not vilification.

416. The post at C.094 states: "It is important to realise if we give homosexual rights all will be effected: I do not hate Gays as some people say about me: but I speak out against homosexual rights on behalf of the average person who does not realise that this is very detrimental to all human kind:"

417. This sets out Mr Sunol's view. It might be insulting or offensive, but it does not incite hatred etc. It is not vilification.

418. The post at C.095 is similar to C.080. As such I find it is vilification.

419. The post at C.096 is similar to C.089. I make the same finding.

420. The post at C.097 states: "my dedicated enemies are the corrupt LGBT SJW lobby of political activists which I class as an enemy of a society any my eternal enemy:".

421. To say people are lobby or are activists is not even insulting or offensive. To say that people are enemies and corrupt may be insulting or offensive but does not incite hatred etc. I find this is not vilification.

422. The posts at C.098, C.099, C.100 are similar to that at C.082. I make the same finding that they are not vilification.

423. The post at C.101 states: "DIVERSITY & INCLUSIVENESS: what does the slogan REALLY mean? Answer: LGBTSJW code and propaganda to undermine *oppressive* heteronormativity at the heart of our mainstream culture

[58] US Holocaust Memorial Museum, Holocaust Encyclopaedia, 'Introduction to the Holocaust' (Webpage, 5 November 2021) , and also 'Nazi propaganda'; see also Australian Human Rights Commission, 'Violence, Harassment and Bullying and the LGBTI Communities' (Webpage)

[60] Statement of Mr Sunol, exhibit R1, at [170]-[176], which although not referred to seems to relate to at least some of documents at annexure E, part 2, pages 153-163

[61] Rep v Clinch (Appeal) at [125]-[132], [149]-[160]

[62] Statement of Mr Kerslake, exhibit A14, at [12]-[15], [22]; statement of Mr Kerslake, exhibit A15, at [37]-[43]; statement of Mr Swift, exhibit A16, at [66]-[69]

[63] Respondent's submissions at [47]

[64] Statement of Mr Sunol, exhibit R1, annexure A at page 67, annexure D at page 135

[65] Statement of Mr Kerslake, exhibit A14, at [5]; statement of Mr Kerslake, exhibit A15, at [28]-[32]

[66] Statement of Mr Sunol, exhibit R1, at [163]

[67] Statement of Mr Sunol, exhibit R1, annexure A at page 65, annexure D at page 133

[69] Macquarie Dictionary online, 'discussion' (def 1), 'debate' (defs 1, 2, 3)

[70] I return to this issue at paragraphs [119]-[124] below.

[71] Respondent's submissions at [8], [29]-[32]

[72] The full document is at: Catechism of the Catholic Church (Web Page)

[73] Transcript of proceedings on 11 May 2021 page 89

[74] Respondent's submissions at [42]

[75] Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16 at [95]

[76] Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 at [79], [95]

[77] Sunol v Collier (No.2) at [41]

[79] Respondent's submissions at [29]-[30]

[80] Carolyn Evans, Legal Protection of Religious Freedom in Australia (Federation Press, 2012) chapter 7; Catch the Fire Ministries Inc v Islamic Council of Victoria Inc [2006] VSCA 284; Bottrill v Sunol [2018] ACAT 21; Farah v Sandilands [2021] ACAT 92

[83] Article 4 of the International Convention on the Elimination of All forms of Racial Discrimination 660 UNTS 195 prohibits, amongst other things, the dissemination of ideas of racial superiority. Article 20(2) of the International Covenant on Civil and Political Rights 999 UNTS 171 prohibits any advocacy for national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.

[85] ACAT Act section 60; Legislation Act section 179

[86] Respondent's submissions at [146]-[148]

[87] Respondent's submissions at [149]-[151]

[88] Sivanantham v Commissioner of Police, NSW Police Service [2001] NSWADT 44 at [41]; see also generally Neil Rees, Simon Rice and Dominique Allen, Australian Discrimination Law (Federation Press, 2014) at [11.3.15]-[11.3.19]

[89] (1996) EOC 92-808

[90] (1990) EOC 92-313

[91] [2004] FMCA 891 at [28]- [29]

[92] [2010] NSWADT 109 at [154]

[93] Carter v Brown [2010] NSWADT 109 at [134]- [155]

[94] [2012] NSWADT 246 at [66]- [89]; see also Burns v Sunol (No.2) [2012] NSWADT 247 at [47]

[95] Burns v Sunol [2012] NSWADT 246 at [79]- [80]

[96] [2006] FMCA 927 at [125]

[97] Penhall-Jones v New South Wales [2007] FCA 925

[98] See for example Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, at [21] (Mason CJ)

[99] Statement of Mr Kerslake, exhibit A14, at [6]-[7]. Mr Swift states that he first came across Mr Sunol in 2002: statement of Mr Swift, exhibit A16 at [7]

[100] Statement of Mr Swift, exhibit A16, at [7]

[101] Statement of Mr Sunol, exhibit R1 at [170]-[176] and what appears to be annexure E, attachment 1, pages 191-196

[102] Statement of Mr Sunol, exhibit R1, what appears to be annexure E, attachment 1, pages 199-200

[103] Statement of Mr Sunol, exhibit R1 at [281]-[288] and annexure M pages 292-296; Application by Mr Sunol dated 8 March 2021

[104] Respondent's submissions at [58]-[63]

[105] Transcript of proceedings on 17 March 2021 at page 25; the documents seem to be admissible under section 48 of the Evidence Act 2011.

[107] Respondent's submissions at [63]

[109] Respondent's submissions at [64]-[79]

[110] Transcript of proceedings on 17 March 2021 at page 25; the documents seem to be admissible under section 48 of the Evidence Act 2011.

[112] See footnote 58, Encyclopaedia, 'The Nazi regime also targeted ...men accused of homosexuality', and see also 'Gay men under the Nazi regime'

[115] [1938] HCA 34; 60 CLR 336; Qantas Airways Ltd v Gama [2008] FCAFC 69 at [110]; Respondent's submissions at [10]

[116] Exhibit R1 at [85]-[89] and [112]-[129]; transcript of proceedings on 11 May 2021 at page 89; summarised above at [116]-[118]