Those who follow public matters in Australia will remember the controversy in 2019 surrounding controversial comments made by celebrity rugby player Israel Folau. See here and here for my discussion of the legal issues around Mr Folau’s claim that he had been dismissed partly on account of his religious beliefs. That claim was later settled before proceeding to trial, in December 2019 .
In an interesting sequel, Mr Folau was then sued by Mr Gary Burns for “homosexual vilification” under the NSW Anti-Discrimination Act 1977. Mr Burns’ claim was rejected by the President of the Anti-Discrimination Board in April this year. Now his appeal against this decision to the NSW Civil and Administrative Tribunal has been dismissed, and the claim will go no further- see Burns v Folau  NSWCATAD 287 (18 November 2020).
The decision seems clearly to be the correct outcome, but there are some aspects of the judgment by Principal Member Britton which I think are incorrect and worth noting.
By way of brief background, Mr Burns is, as Britton PM puts it, “not a novice complainant” (at ).
Since 2002, Mr Burns has made numerous complaints to the Board alleging that various individuals have vilified him, or homosexuals at large, in contravention of s 49ZT of the Anti-Discrimination Act 1977 (NSW) (the Act).At para .
Some of Mr Burns’ complaints have been successful, but his most high-profile case was his losing appeal to the High Court of Australia in Burns v Corbett  HCA 15 (18 April 2018) (for detailed comment see here.) That appeal has left him with a large costs order to pay, and the Tribunal comments in this case that payment of these costs seems to have been one of his motives in filing a claim against Mr Folau:
the inescapable conclusion is that one of the reasons Mr Burns made the Complaint was for the collateral purpose of securing a monetary settlement to pay the legal costs of unrelated legal proceedings.At para .
Mr Burns’ complaint was of a breach of s 49ZT of the ADA, “homosexual vilification”:
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 …
(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.(emphasis added)
The complaint was based on two Tweets from Mr Folau and the text of a sermon he gave to his church. The comments are set out in the judgment, and included
- a call on those who had committed various sins, including “homosexuals”, to repent because “Hell awaits” (accompanied by the comment that Jesus can save);
- a comment of a similar nature attached to a news item that the Tasmanian Parliament was going to “make gender optional” on birth certificates;
- remarks in the sermon suggesting that some of the recent natural disasters in Australia were God’s judgement, in part due to the recognition of same sex marriage contrary to God’s purposes for marriage.
The dismissal of Mr Burns’ claim by the President of the ADB had not been made by reference to how likely his claim was to succeed; it was made because of the perceived motives for his action, and a finding that his claim was “vexatious” and an “abuse of process”- see the summary at para  of the Tribunal decision. On appeal, the Tribunal agreed with the President and refused to allow the claim go further.
The Tribunal at  referred to the definition of “vexatious” that had often been followed:
the oft-cited explanation given by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491 that proceedings will be vexatious if:
“1. [T]hey are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. [T]hey are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. [I]rrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”At 
Here various features of the way Mr Burns had conducted himself meant that his claim would be dismissed. He seemed to have a “collateral purpose”, arguably starting the case not for the purposes behind the Act but in order to pressure Mr Folau to pay a settlement which would support his other debts; see, for example, a quote at  from a “GoFundMe” website referring to the costs from the High Court litigation. A number of abusive and arguably threatening emails were sent to Mr Folau’s solicitors. Mr Burns took the details to the press, ignoring the ADB’s processes which were meant to be confidential at first. And at para  the Tribunal reports a threat made to the President:
If the NSW ADB does not refer the matter [to the Tribunal] it will be ‘aiding and abetting’ the unlawful vilification of homosexuals. That’s the HEADLINE
This was clearly a threat to go to the press if his preferred outcome was not achieved. At paras - the Tribunal sums up why all these things led to the view that the claim was vexatious and an abuse of process, and that the President’s refusal to allow it to go ahead would be upheld.
In the course of the decision, though, Britton PM made some comments which I think can be challenged. One of the issues was whether there had been a prima facie case of vilification under s 49ZT(1). The Tribunal thought that there had:
In my view, it is arguable that, objectively assessed, each Comment had the capacity to incite hatred towards, [or?] serious contempt for homosexual people on the ground of their homosexuality. (For an explanation of the elements necessary to establish a complaint of unlawful vilification under the Act, see Sunol v Collier and anor (No 2)  NSWCA 44 at ; Jones v Trad  NSWCA 389 at ).At para 
My addition above is because there seems to a word missing. The two elements of “hatred towards” and “serious contempt for” are alternatives, so satisfying either would be sufficient. I think there are reasons to doubt whether Mr Folau’s comments had either effect. Certainly in the context of his memes he suggests, not that anyone “hate” homosexual persons, but that those who are engaged in homosexual activities should “repent” and trust Jesus. Nor does he urge contempt of any sort. Of course his views are not popular and may be offensive; but lack of popularity and the causing of offence are not the essence of the vilification provision (at least in NSW).
Certainly when it comes to the “defence” in s 49ZT(2), that comments were made “reasonably and in good faith for religious instruction purposes”, there seems to be a pretty strong case for this defence to apply. That is certainly so in the context of a sermon in church! But Mr Folau’s Twitter page was full of religious commentary, far fuller of that than of comments relating to rugby. Anyone who followed Mr Folau on Twitter would have been aware of his interest in presenting the teachings of the Christian faith there. It seems to me fairly apparent that this was also a context where “religious instruction” was being offered.
The Tribunal did not reject this defence out of hand, while not treating it very favourably:
Further, I reject Mr Folau’s submission that if one or more of his comments is found to satisfy the test in s 49ZT(1), the exception in s 49ZT(2)(b) will necessarily apply. Without proper argument and evidence, it is not possible to determine whether the exception will or will not apply. Notably, the onus of proving that the exception applies lies with Mr Folau: s 104 of the Act.At .
It is of course true that the onus of making out the defence would lie with Mr Folau; and in that sense one can say that if that was all, the case could have proceeded to a hearing where the evidence would have been presented. But with respect, it seems to me that the agreed and publicly available evidence was fairly clear.
However those comments are viewed, this particular case is at an end. As they had previously promised, the Australian Christian Lobby (who raised a large fund to support Mr Folau’s proceedings with Rugby Australia) has recently written to donors to return a portion of the money raised for that earlier case (about 20% pro rata) which was not expended. He may have some hopes that litigation is at an end for a while. But of course the questions around religious freedom and discrimination laws will continue to raise thorny problems.