Burns v McKee [2017] NSWCATAD 66

Burns v McKee [2017] NSWCATAD 66

The respondent's publication of the second sentence, asserting that homosexuals are three times more likely to commit sex crimes against children than heterosexuals, constituted a public act capable of inciting hatred, serious contempt, or severe ridicule of homosexuals on the ground of their homosexuality, in breach of s 49ZT(1) of the Anti-Discrimination Act 1977 (NSW). The statutory exception in s 49ZT(2)(c) was not made out because the statement was not published reasonably and in good faith, as it lacked foundation in the sources cited and was gratuitously offensive. Other sentences in the publication did not reach the threshold or were not causally connected to homosexuality.

Jurisdiction
Australia
Judgment Date
06 March 2017
Procedural Posture
Application/complaint Before Tribunal / Principal Judgment/final Decision
Outcome
Complaint substantiated in part; orders made for apology; other relief refused.
Legal Topics
['homosexual Vilification' 'public Act' 'incitement' 's 49 ZT Anti Discrimination Act' 'statutory Exceptions' 'online Publication' 'standing' 'remedies for Vilification']
['anti Discrimination Law' 'administrative Law' 'equal Opportunity Law'] ['homosexual Vilification' 'public Act' 'incitement' 's 49 ZT Anti Discrimination Act' 'statutory Exceptions' 'online Publication' 'standing' 'remedies for Vilification']

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Procedural Posture

Application/complaint Before Tribunal / Principal Judgment/final Decision

Legal Issues

  1. 1 ["Whether the respondent's online publication constituted unlawful homosexual vilification under s 49ZT(1) of the Anti-Discrimination Act 1977 (NSW)" 'Whether the exception in s 49ZT(2)(c) for acts done reasonably and in good faith for public interest purposes applies' 'Whether the applicant has standing to lodge the complaint' 'Whether the publication occurred by a public act within the meaning of s 49ZS']

Ratio Decidendi

The respondent's publication of the second sentence, asserting that homosexuals are three times more likely to commit sex crimes against children than heterosexuals, constituted a public act capable of inciting hatred, serious contempt, or severe ridicule of homosexuals on the ground of their homosexuality, in breach of s 49ZT(1) of the Anti-Discrimination Act 1977 (NSW). The statutory exception in s 49ZT(2)(c) was not made out because the statement was not published reasonably and in good faith, as it lacked foundation in the sources cited and was gratuitously offensive. Other sentences in the publication did not reach the threshold or were not causally connected to homosexuality.

Court Disposition

Complaint substantiated in part; orders made for apology; other relief refused.

Orders

  • ['The complaint of homosexual vilification in relation to the second sentence of the publication is substantiated. The complaint in relation to the balance of the publication is dismissed.' 'Within 14 days, the respondent is to post a specified apology on the Causes.com website and every website controlled by him,...