Burns v Cunningham [2011] NSWADT 240

Burns v Cunningham [2011] NSWADT 240

The Tribunal found that the respondent's comments, though disapproving of homosexuality and suggesting that homosexuals may require psychiatric rehabilitation, were genuine expressions of his views without malice or sarcasm. These comments, when assessed objectively, were not capable of inciting serious contempt or severe ridicule of homosexual persons as required by s 49ZT(1) of the Anti-Discrimination Act 1977 (NSW). Even if they could be so characterised, the Tribunal found that the respondent's acts were done reasonably and in good faith for a purpose in the public interest (the informing of electors of a candidate's views), thus enlivening the defence in s 49ZT(2)(c). Therefore,...

Parties
Applicant: Gary Burns; Respondent: John Lawrence Cunningham
Jurisdiction
Australia
Judgment Date
17 October 2011
Procedural Posture
Complaint Anti Discrimination / Final Tribunal Determination
Outcome
Complaint dismissed in whole
Legal Topics
Homosexual Vilification, Public Act, Incitement, Freedom of Speech, Anti Discrimination Act 1977 (nsw)
Anti Discrimination Law Equal Opportunity Homosexual Vilification Public Act Incitement Freedom of Speech Anti Discrimination Act 1977 (nsw)

Case Brief

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Parties

Gary Burns

Applicant

John Lawrence Cunningham

Respondent

Procedural Posture

Complaint Anti Discrimination / Final Tribunal Determination

Legal Issues

  1. 1 Whether the respondent's comments constituted unlawful homosexual vilification under s 49ZT(1) of the Anti-Discrimination Act 1977 (NSW)
  2. 2 Whether the respondent engaged in a 'public act' for purposes of s 49ZT
  3. 3 Whether the conduct incited serious contempt or severe ridicule within the meaning of the statute

Ratio Decidendi

The Tribunal found that the respondent's comments, though disapproving of homosexuality and suggesting that homosexuals may require psychiatric rehabilitation, were genuine expressions of his views without malice or sarcasm. These comments, when assessed objectively, were not capable of inciting serious contempt or severe ridicule of homosexual persons as required by s 49ZT(1) of the Anti-Discrimination Act 1977 (NSW). Even if they could be so characterised, the Tribunal found that the respondent's acts were done reasonably and in good faith for a purpose in the public interest (the informing of electors of a candidate's views), thus enlivening the defence in s 49ZT(2)(c). Therefore,...

Court Disposition

Complaint dismissed in whole

Orders

  • The Tribunal orders that the complaint be dismissed in whole.