In a very significant decision with wide-reaching Constitutional implications, the NSW Court of Appeal in Burns v Corbett; Gaynor v Burns [2017] NSWCA 3 (3 Feb 2017) has overturned two findings of “homosexual vilification” made by a NSW Tribunal against residents of Queensland and Victoria. The complainant in both cases, Mr Garry Burns, alleged that Mr Gaynor and Ms Corbett had breached s 149ZT of the Anti-Discrimination Act 1977 by committing public acts which vilified homosexuals. The NSW Civil and Administrative Tribunal (NCAT) had made orders against both defendants. In this appeal the NSW Court of Appeal rules that the Tribunal had no jurisdiction to make such orders.

While the specific allegations involved vilification on the grounds of sexual orientation, the cases are significant for religious freedom in two ways. One is that such complaints, if made against persons or organisations with religious beliefs on the topic of homosexuality, may be subject to specific balancing clauses designed to accommodate religious freedom. If a resident of one State of Australia may be sued under such a law from any other State in the country, then the standard of protection of religious freedom will be reduced to the lowest common denominator around the country. The second reason that the case is important is that some states have specific religious “vilification” laws, and again if actions under such laws can be taken against residents of other States this may risk reducing the protection given to religious freedom across the whole country.

The decision in Corbett and Gaynor is a lengthy one, and the complexities of its reasoning on Constitutional issues will need to be unpacked over time. But for the purposes of those interested in the impact on the intersection between law and religion, the outcome of the decision can be summarised briefly here.

The headnote to the case (an unofficial summary issued by the court) states the important issues briefly:

A State tribunal which is not a “court of a State” is unable to exercise judicial power to determine matters between residents of two States because the State law which purports to authorise the tribunal to do so is inconsistent with the conditional investment by s 39(2) of the Judiciary Act of all such jurisdiction in State courts, and therefore rendered inoperative by virtue of s 109 of the Constitution.

For our purposes, what this means is this: a State cannot confer onto a “tribunal”, or any body which is not a “court”, the power to impose a penalty on a resident of another State at the instigation of a local resident. (To simplify the reasoning dramatically, the reason this is the case is that the Constitution confers jurisdiction on matters involving residents of different States onto the High Court; that it allows the Commonwealth Parliament to make such jurisdiction exclusively “federal” jurisdiction, and this has been done by the Judiciary Act 1903 (Cth); and this federal jurisdiction cannot be conferred on a body which is not a “court”.)

It may be simplest to explain this operation of this by referring to the specific matters involving Mr Gaynor and Ms Corbett.

Mr Gaynor had allegedly committed “homosexual vilification” of Mr Burns through material published on a computer in Queensland; Mr Burns was not specifically named but was making a claim simply as someone of a homosexual orientation. The NSW Civil and Administrative Tribunal, in Burns v Gaynor [2015] NSWCATAD 211 (14 Oct 2015), held that a person who posted material on a computer in Queensland could not be held liable for a “public act” under NSW discrimination law. This decision has now been upheld by the Court of Appeal.

Ms Corbett was a politician standing for election in Victoria when she was quoted as making some remarks about homosexual persons which were considered insulting. In Corbett v Burns [2014] NSWCATAP 42, the Appeal Panel of the Tribunal accepted at para [63] that it was arguable the republication on the internet of a report written in Victoria might amount to a “public act” in NSW, and hence be actionable under the NSW law dealing with homosexual vilification. This decision has now been overturned by the Court of Appeal.

In a previous post I gave another example of circumstances where someone might have been accused of “religious vilification” due to remarks made in NSW: see “Insulting religion and legal consequences“(Apr 3, 2016). While the cases dealt with in Corbett & Burns involve persons outside NSW being sued under NSW law, the case I postulated there was that of a NSW commentator who may have fallen foul of laws prohibiting “religious hate speech” in either Victoria or Tasmania. (There are no laws prohibiting such speech in NSW.)

Why is it significant that “cross-border vilification claims” will no longer be so readily available? Because the various States and Territories of Australia are not uniform in the decisions their Parliaments have made about how to balance free speech with freedom of religion and freedom from discrimination in the form of “hate speech”. To take one very clear example, the current Tasmanian law, the Anti-Discrimination Act 1998 (Tas), contains very broad restriction on free speech in s 17, which forbids “any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of” various characteristics, one of which is sexual orientation. The law as it stands contains no defence provision relating to religious purposes, unlike most other similar laws in Australia. In my previous post, “First they came for the Catholics…” (Nov 13, 2015) I referred to the case of the Roman Catholic Archbishop of Hobart, Julian Porteous, who had issued a leaflet setting out the Roman Catholic view of marriage, to students of Roman Catholic schools in his diocese. The Archbishop was sued in the Tasmanian Anti-Discrimination Tribunal for “offending” the complainant, a gay person. It was later reported that:

the Tasmanian Anti-Discrimination Commission has found a preliminary “case to answer” in relation to a claim of sexual orientation discrimination against not only the Archbishop of Hobart, Julian Porteous, but also “all Australia’s Catholic bishops.”

The problems of the current system are evident here. One State has a very low bar to cross before litigation is possible, the causing of mere “offence”. Others outside that State can then be called on to answer before a Tribunal in the first State. In doing so, even though their own jurisdictions may have “balancing clauses” designed to accommodate religious freedom (such as, for example, in NSW s 56 of the Anti-Discrimination Act 1977), they will be required to defend themselves in the absence of such provisions in the first State. (The claim against Archbishop Porteous was eventually dropped, but there is nothing preventing a similar claim being made in the future.)

For these sort of reasons the decision of the Court of Appeal in Corbett and Burns is to be welcomed. Of course, there are ways that the law could be changed to avoid the result in this case. A State or States might decide, for example, to refer all judicial enforcement and imposition of penalties, in cases involving residents from other States, to a genuine State court and not simply to a tribunal. Even if this happened, it may be thought, with respect, that the issues and relevant balancing of human rights in such cases are more suited to resolution by a Judge than by non-legally qualified or non-judicial tribunal members, so that better outcomes may be expected.

But in such cases other issues will arise, complex questions as to whether the legislative power of a State extends to the punishment of residents of other States in such circumstances. It may be a good thing if the decision here leads to State governments resolving that their own vilification laws will only apply to their own residents. That way the relevant government will be required to answer to its own electorate for the laws it creates governing those residents.

There were a number of other constitutional issues raised by the lawyers for the defendants in Corbett and Burns. However, as the Court was able to dispose of the proceedings on the limited grounds of the residence of the parties, it did not comment on the broader issues. One of those broader issues is whether laws imposing serious limits on free speech, as some of the laws on “vilification” do, might not be invalid as unduly interfering with the implied freedom of political speech under the Constitution. I have commented on these matters in a previous paper, and it seems to me that there are strong arguments in favour of narrowing the scope of at least some of the laws here to fully recognise the key significance of both freedom of speech and freedom of religion in modern Australia. The decision of the Court of Appeal here is a good start in the process of “winding back” the laws where they have gone too far.