Burns v Nine Network Australia Pty Ltd (EOD) [2011] NSWADTAP 25

Burns v Nine Network Australia Pty Ltd (EOD) [2011] NSWADTAP 25

The Tribunal's reference to being "comfortably satisfied" was a compressed expression drawn from Briginshaw and did not show that it applied a third or stricter standard of proof. In any event, the case involved undisputed primary facts and an evaluative judgment under s 49ZT rather than a fact-finding contest to which Briginshaw had significant work to do. The Tribunal's use of "capacity to incite" did not substitute a different legal test, but reflected language used in vilification authorities to identify an objective inquiry unaffected by intention. Because no error was shown in relation to s 49ZT(1), it was unnecessary to consider the challenges concerning s 49ZT(2)(c), and there was...

Jurisdiction
Australia
Judgment Date
20 May 2011
Procedural Posture
Appeal From Equal Opportunity Division Decision Dismissing Complaint of Homosexual Vilification / Internal Appeal Before Appeal Panel
Outcome
Appeal dismissed
Legal Topics
['homosexual Vilification' 'public Act' 'standard of Proof' 'briginshaw Principles' 'capacity to Incite' 'statutory Exception for Artistic Purposes in the Public Interest' 'leave to Extend Appeal to Merits']
['anti Discrimination Law' 'equal Opportunity' 'administrative Law'] ['homosexual Vilification' 'public Act' 'standard of Proof' 'briginshaw Principles' 'capacity to Incite' 'statutory Exception for Artistic Purposes in the Public Interest' 'leave to Extend Appeal to Merits']

Case Brief

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Procedural Posture

Appeal From Equal Opportunity Division Decision Dismissing Complaint of Homosexual Vilification / Internal Appeal Before Appeal Panel

Legal Issues

  1. 1 ['Whether the Tribunal applied an erroneous standard of proof by requiring it to be "comfortably satisfied".' 'Whether the Tribunal misstated the test under s 49ZT of the Anti-Discrimination Act 1977 by referring to material having the "capacity to incite".' "Whether it was necessary or appropriate to consider challenges to the Tribunal's conclusions under s 49ZT(2)(c)." 'Whether leave should be granted to extend the appeal to the merits.']

Ratio Decidendi

The Tribunal's reference to being "comfortably satisfied" was a compressed expression drawn from Briginshaw and did not show that it applied a third or stricter standard of proof. In any event, the case involved undisputed primary facts and an evaluative judgment under s 49ZT rather than a fact-finding contest to which Briginshaw had significant work to do. The Tribunal's use of "capacity to incite" did not substitute a different legal test, but reflected language used in vilification authorities to identify an objective inquiry unaffected by intention. Because no error was shown in relation to s 49ZT(1), it was unnecessary to consider the challenges concerning s 49ZT(2)(c), and there was...

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed.']