The recent NSW decision of Passas v Comensoli  NSWCATAP 298 (18 December 2019) provides an example of someone who has been penalised for “homosexual vilification” as a result of comments concerning same-sex marriage. However, it does provide clarification that merely to express disagreement with the introduction of same sex marriage does not amount to such vilification under NSW law.
Ms Passas and Mr Comensoli were fellow occupants of a block of units in Ashfield. On 15 November 2017 the results of the postal survey on the introduction of same sex marriage were announced, with 61% of respondents to the survey in favour. Mr Comensoli, in celebration of the result, draped a rainbow flag over his balcony. Ms Passas disagreed with the proposed change. What followed was summarised by the Appeal Panel of the NSW Civil and Administrative Tribunal as follows:
[I]t was found that on 15 November 2017 she made loud verbal demands upon the Respondent to remove the flag because it was “offensive to [her] culture and religion”, and that the Respondent should not be afforded the right to marry “until [he] could breastfeed and have children”, which could be heard by other residents of the complex and surrounding areas.Para .
There was evidence that Mr Comensoli’s housemate, Ms Di Natale, heard the words that were said. No other evidence of anyone else hearing what was said on the occasion seems to have been presented, but it was conceded that others in nearby flats could have heard the words. Later the exchange became much more widely known when publicised by Mr Comensoli on Facebook, but in these proceedings any effect of the later publicity was not regarded as relevant for the purposes of determining Ms Passas’ liability or the penalty to be imposed.
It was relevant to note, however, that Ms Passas was a well-known local politician, having served on the local Council for about 11 years, and at the time of the incident being Deputy Mayor of the Inner West Council. This was held by the Panel to be relevant to the effect of her comments (see paras -, to be discussed below.)
Under the NSW Anti-discrimination Act 1977 (“ADA”), s 49ZT, “homosexual vilification” is unlawful unless it falls within the “defences” provided by that provision.
49ZT Homosexual vilification 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.
Under s 108 of the ADA, a Tribunal which finds that a respondent has committed unlawful behaviour may award damages, order the publication of an apology, or both. It is not uncommon for the damages being awarded under s 49ZT to be spoken of as a “penalty” for the unlawful behaviour (see eg para ), though technically they are meant to be compensation for the harm caused, and they do not amount to a “criminal” penalty.
The Civil and Administrative Tribunal at first instance (D Dinnen, Senior Member; J Newman, Member) found that there had been vilification under s 49ZT in relation to both statements made by Ms Passas, and ordered that she pay damages of $2500 and publish an apology in the Inner West Courier newspaper.
The Appeal Panel (Dr R Dubler SC, Senior Member; J McAteer, Senior Member) upheld a finding of vilification in relation to one of the statements, but not the other; amended the wording of the apology to be published; but upheld the award of $2500 in compensation as reflecting what the Panel saw as an appropriate award for the remaining statement that they held amounted to vilification.
(a) Statement 1: no vilification
The first statement that had been made by Ms Passas: that the Applicant should remove the rainbow flag because it was “offensive to my culture and religion”, had been held by the Tribunal at first instance to be “objectively offensive, expressed to incite or stimulate hostility”- para  at first instance, quoted at para  by the Appeal Panel. But the Panel signficantly held that this was wrong as a matter of law. They cited important comments from the NSW Court of Appeal decision in Sunol v Collier (No 2)  NSWCA 44, concerning the importance of protecting free speech on political and other issues. There Allsop P had said:
 Thus, one comes to the task of construing s 49ZT recognising the high value that the common law (and indeed the legislature) places on freedom of expression: Brown v Classification Review Board (1998) 82 FCR 225 at 235 and Coco v The Queen  HCA 15; 179 CLR 427 at 437, such that a conservative approach should be adopted to the construction of statutes that restrict it. This approach is reinforced by the recognition of the limitation on Commonwealth, State and Territory legislative power by the implied Constitutional freedom recognised by the test enunciated in Lange v Australian Broadcasting Corporation  HCA 25; 189 CLR 520, Coleman v Power  HCA 39; 220 CLR 1, Aid/Watch Incorporated v Federal Commissioner of Taxation  HCA 42; 241 CLR 539 at 556 - and by the operation of the Acts Interpretation Act 1901 (Cth), s 15A and the Interpretation Act 1987 (NSW), s 31; cf Wotton v The Queen  HCA 2 at . (emphasis added)
Hence they ruled that a statement that a person, for whatever reason, disagrees with the concept of same-sex marriage, will not of itself amount to vilification for the purposes of s 49ZT; that is, it will not be something which “incite(s) hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of … homosexuality”.
Merely expressing disagreement with the rainbow flag, as a symbol of same sex marriage, because it was “offensive to my culture and religion”, does not in our view, reach the threshold of inciting hatred or serious contempt of such people [presumably, homosexual persons].Para  of the Appeal Panel decision
(b) Statement 2: vilification
The second statement that Ms Passas made was, however, upheld by the Panel as vilification. This was her statement that the Applicant should not be afforded the right to marry “until [he] could breastfeed and have children”. The Tribunal at first instance at  held that: “The objective understanding of this statement is that a person who can’t breastfeed or have children should not be afforded an equal right to marry the person of their choosing.”
The Appeal Panel upheld this finding on, it seems, two separate grounds. One was that, on this part of the appeal, they only had authority to overturn the Tribunal if there had been an “error of law”, and that:
irrespective of what may be our impression or view of the effect of the statement, we have concluded that with respect to this second statement it was reasonably open for the Tribunal to hold that the facts of the case fall within the ordinary meaning of the words of the statute so that no error of law arisesPara  of the Appeal Panel decision
However, they also went on to consider whether they agreed with the Tribunal or not, and concluded that they did. The core reasoning is here:
The second statement, that the Respondent should not be afforded the right to marry “until [he] could breastfeed and have children”, could reasonably be regarded as using derogatory ridicule to belittle homosexual men. In our opinion, it was reasonably open for the Tribunal to conclude that “The objective understanding of this statement is that a person who can’t breastfeed or have children should not be afforded an equal right to marry the person of their choosing”. Further, in our view it was reasonably open to the tribunal to find that “The statement seeks to legitimise serious contempt or severe ridicule of the homosexual men by identifying matters from which they are biologically excluded as a means of justifying their inequality at law” (emphasis added)Para , AP
With respect to the Panel, and those who may agree with them, I cannot see this as a reasonable reading of the provision. Of course what was said was not polite, and no doubt should be condemned as rude and uncaring. But did it amount to actual unlawful incitement to hatred, serious contempt, or severe ridicule? The meaning of what was said was that a person who is not a biological woman should not marry a man. That is no doubt now a controversial position, but it is a statement of a political view about a social institution. Is it really “derogatory” to say of someone that their biological limitations prevent them from doing something?
Interestingly even in this paragraph at the core of their ruling, the Panel does not explicitly say that the statement itself amounts to serious contempt or severe ridicule- the furthest they go is to say that the statement “legitimises” such behaviour. The logic of this statement is that they may pave the way for vilification in the future by others, but they are not directly found to have incited the relevant emotions. On this ground alone the finding seems doubtful.
(c) Significance of public office
There was some discussion in the Panel’s decision as to the relevance of the public positions held by Ms Passas (as Council member and Deputy Mayor). In particular, did the fact that she held a respected public office either make it easier for her to be held to have “incited” the relevant emotions, or did it have some bearing on the harm suffered and hence the penalty (damages award) that should be imposed?
The Appeal Panel’s comments on this issue are somewhat unclear. There is no doubt that they considered that the appellant’s public office did have a bearing on the size of the penalty that should be imposed:
 It was essentially a finding of fact by the Tribunal that, viewed objectively, the effect or impact that the Appellant’s conduct had or was likely to have on the audience was amplified by the position and status of the Appellant as a person on the local council and deputy mayor. It was reasonably open to the Tribunal to conclude that this status of the Appellant resulted in there being a greater effect or impact on the audience who heard or could have heard the Appellant’s comments.
 Where a person’s comments have greater impact on an audience by reason of the standing or status of that person, we fail to see how it would be erroneous for the Tribunal to rely upon this circumstance as a question of law… It makes logical sense to conclude that a person’s position, such as being on a local council and a deputy mayor, would have an effect on how that person’s remarks are received by an audience and in turn be relevant on the question of penalty and harm caused to the Respondent.Paras -, AP
The status of the appellant, then, could be held to have had an impact on the question of “penalty”, once she had been found to have incited the relevant emotions. But did that status also assist the Tribunal in finding that such incitement had occurred? It seems that it may have played some part. If vilification is moving others to experience hatred or contempt, or to express ridicule, then it seems plausible that comments uttered by public figures might have an effect of this sort, which comments by others may not. But it has to be said the matter is still not clear.
(d) Possible defences
For whatever reason, in defending the claim of vilification Ms Passas and her advisors had not pleaded the “defences” in s 49ZT(2). On appeal she attempted to raise them, especially the defence that what she had done was “a public act, done reasonably and in good faith and in the public interest, including discussion or debate about and expositions on any act or matter”- see para . As she had not pleaded this before the first instance hearing, however, the Appeal Panel ruled that it was now too late to rely on the defence.
These defences are quite wide, and the courts have stressed that they should always be taken into account when considering a claim of vilification. It is unfortunate that due to a pleading error at first instance, the Appeal Panel did not consider the nature and scope of the defences. Anyone faced with a claim under s 49ZT should always consider these matters.
(e) Wording of the “apology”
As well as the Panel ruling in her favour on statement 1, Ms Passas also had a small victory in achieving a re-wording of the apology she was ordered to publish. The first instance Tribunal had ordered that the apology include the sentence: “That evening, I publicly yelled abuse at Mr Comensoli…” Ms Passas contested the use of the words “yell” and description of what she said as “abuse”, neither of which were specific findings of the Tribunal. The Appeal Panel agreed.
In the end the approved apology was as follows:
“On 15 November 2017, the day of the historic “Yes vote” publicising the results of the Australian same-sex marriage survey, my neighbour Daniel Comensoli flew a rainbow flag from his balcony. The NSW Civil and Administrative Tribunal has determined that on that occasion I made statements which are in breach of the homosexual vilification provisions of the Anti-Discrimination Act, which made it unlawful for any person, by a public act, to incite hatred towards, serious contempt for, or serious ridicule of a person or group of persons on the ground of homosexuality.
I offer my apologies for that behaviour.”Para , AP
What was said by the appellant here, to reiterate, was arguably unhelpful, discourteous, and rude. But I have some doubt as to whether it should have been regarded as unlawful. Certainly one misapprehension by the lower Tribunal has been helpfully corrected on appeal: a simple statement opposing same sex marriage does not amount to unlawful homosexual vilification under s 49ZT ADA. The Appeal Panel’s view that the other comments were unlawful vilification seem, with respect, to be open to doubt. In particular, the concept that remarks may “legitimise” incitement in the future seems clearly to indicate that the remarks themselves did not rise to the level of incitement on their own.
With the importance of free speech as a fundamental value of Australia law, as noted by the Court of Appeal in Sunol, it seems fairly clear that the legislation should not be read so broadly as to penalise comments of the sort made here.