Vilification

In Sunol v Collier (No 2) [2012] NSWCA 44 the New South Wales Court of Appeal (Bathurst CJ, Allsop P & Basten JA) has failed to find that s 49ZT of the Anti-Discrimination Act 1977 (NSW) was invalid after it served to prohibit the publication of statements which allegedly vilified homosexual people.

That section of the Act specifies that "Homosexual vilification [is] unlawful" -

(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

(2) Nothing in this section renders unlawful:

(a) a fair report of a public act referred to in subsection (1), or

(b) a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or

(c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter.

John Christopher Sunol, who posted the statements, failed in his contention that s 49ZT infringed the implied freedom of communication about government or political matters.

The Court found that s 49ZT struck the appropriate balance between the legitimate end of preventing vilification and the requirement of freedom to discuss and debate government and political matters, deciding that -

s49ZT of the Anti-Discrimination Act 1977 (NSW) does not exceed the legislative power of the State, as confined by the implied constitutional protection of political discourse, and is not invalid on that ground.

In 2005 Collier (now deceased) took action against Sunol over egregious expressions of hatespeech, with the NSW Administrative Decisions Tribunal finding in his favour in Collier v Sunol [2005] NSWADT 261. The Tribunal was guided by cases such as  Burns v Dye [2002] NSWADT 32, in considering Sunol's claim that particular statements "constituted theological material and was ‘written to’ people who shared his religious beliefs" or that "he was just ‘putting out’ his point of view, which ‘we all have rights to do’".

The current case originated in a November 2009 referral by the Administrative Decisions Tribunal Appeal Panel of four questions of law in relation to s 118 of the Administrative Decisions Tribunal Act 1997 (NSW) -

i) Whether eight communications or public acts identified in [13] of the Tribunal's decision in Collier v Sunol [2008] NSWADT 339 on their own or in combination are capable of invoking or enlivening the protection of or application of the constitutional implication of freedom of communication about government or political matters? 

ii) Whether s. 49ZT of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe or be construed so as to conform with the constitutional implication of freedom of communication about government and political matters?

iii) Whether, in relation to matters before the Appeal Panel pertaining to the constitutional implication of freedom of communication about government or political matters, ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) are unlawful or ultra vires? 

iv) Whether ss. 91A(6) to (9) and 114 of the Anti-Discrimination Act 1977 (NSW) should be read down so as not to infringe the constitutional implication of freedom of communication about government or political matters?"

Sunol was substituted for the Panel as applicant by an amended summons filed on 15 August 2011.