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Burns v Folau...

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Burns v Folau [2020] NSWCATAD 287

In Brief Mr Garry Burns, believed the respondent vilifies homosexual people by posting comments on Instagram and Twitter as well as addressing people in a sermon delivered to the congregation at the Truth of Jesus Christ Church, Kenthurst, NSW. 1 Mr Israel Folau, denied the allegation and affirmed that the comments were made in good faith for the purpose of religious instructions. 2 A. Britton Principal member, refused leave under section 96 (1) of the Anti- Discrimination Act 1977 (NSW)3 (‘the Act’) for the complaints against Israel Folau to proceed. 4 Hearing began 1st September 2020, and the decision was made 18th November 2020 this matter was held in the Civil and Administrative Tribunal New South Wales in the Administrative and equal opportunity division.

Background The purpose of the Anti-Discrimination laws is to, render unlawful racial, sex and other types of discrimination in certain circumstances and to promote equality of opportunity between all persons. 5 Section 49ZT of the Act is still current today, and has not been amended or repealed in relation to the Burns v Folau6 hearing. Margan v Manias,7 is an example case that demonstrates the execution of a fair and just conviction of section 49ZT of the Act. When compared to Mr Folau’s form of expression there are clear inverses made to demonstrating their effects towards the community. M Chesterman, Deputy President J Newman, Non-judicial Member P Smith, Non-judicial Member, stated in their decision in Margan v Manias that, ‘The test of whether unlawful vilification occurred under section 49ZT requires an assessment of the reactions of a hypothetical, not an actual, observer of the relevant conduct. It is irrelevant, therefore, to determine whether any one or more persons witnessed both the 'verbal' and the 'physical' conduct. What should be assessed instead is the reaction of a hypothetical observer of both these instances of conduct.’ 8

The foundation of the Act is to protect those being discriminated against, and this Act shields as a security to establish the confidence that those in breach of this law are dealt with accordingly.

Facts 1 Burns v Folau [2020] NSWCATAD 287 [3]. 2 See ibid [26]. 3 Anti- Discrimination Act 1977 (NSW) s 96 (1). 4 Burns v Folau ibid (n 1) Decision [1]. 5 Anti- Discrimination Act ibid (n 3) Long title. 6 [2020] NSWCATAD 287. 7 Margan v Manias [2013] NSWADT 177 (7 August 2013). 8 Ibid [33].

Allegations made by Mr Burns (the applicant) was that Mr Folau (the respondent) had breached section 49ZT of the Anti- Discrimination Act 1977 (NSW).9 (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. 10

Mr Burns argued that the respondent Mr Folau discriminated against homosexuals, via social media platforms (Instagram and Twitter), as well as at a sermon he delivered to the congregation of the Truth of Jesus Christ Church, Kenthurst, NSW. 11 Paragraphs [22-4] of Burns v Folaou,12 gives evidence of the three instances of misconduct made by Mr Folau that qualified in vilifying homosexual people. Thus, breaching section 49ZT of the Anti- Discrimination Act 1977. Mr Folau responded that, the comments made were in good faith for the purpose of religious instruction and therefore subject to the exception in section 49ZT (2)(b) in the act. 13 Additionally Mr Folau argues that the complaints are vexatious because it is: (1) [O]bviously untenable and manifestly groundless as to be utterly hopeless (2) Had been brought for a collateral purpose and not for the purpose of having an adjudication of the legal issues, including to pay Mr Burns’ outstanding legal costs arising out of unsuccessful litigation previously commended be Mr Burns.14

Another argument raised to urge the tribunal to reject the complaint to proceed is that Mr Burns does not seek damages, and that the main purpose of the proceeding is to seek an apology for the homosexual community. Mr Folau draws attention to the fact that the joint public statement made with Rugby Australian, was issued after the comments were made which included an apology to the public that Mr Folau does not, condone discrimination of any kind against any person on the grounds of their sexuality.15 9 Anti- Discrimination Act ibid (n 3) s 49ZT. 10 Ibid. 11 Burns v Folau ibid (n 1). 12 Ibid [22] –[24]. Posts on Instagram and Twitter as well as the transcript of the sermon said by Folau. 13. Burns v Folau ibid (n 1) [26]. Anti- Discrimination Act 1977 s (2) Nothing in this section renders unlawful— (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. 14 Ibid [27]. 15 Ibid [46].

Ratio Decidendi A. Britton the principal member, conducted that his consideration must be fair and just, in regard to the interest of both parties. 16 The first expression of circumstances that reflected the orders made were, Mr Folau’s submission were rejected that the only remedy seek by Mr Burns was an apology, because the Complainant was found to be substantiated that the statement, while relevant to is not determinative of whether the power to order Mr Folau to issue a further apology should be exercised under s 108 of the Act. 17 Acknowledged that monetary settlement from Mr Folau was not the only reason Mr Burns made the complaint to the Board, that the collateral purpose of securing a monetary settlement to pay other legal costs of unrelated legal proceedings was evident, correlated to the ratio decidendi of the decision.18 Self-representation and conduct by Mr Burns amounting to abuse and harassment towards parties and the Board was behaviour that amounted below the standard expected by an individual of significant experience in legal proceeding to have been familiarised with. Where the President decision permits leave to proceed even though they believe it is vexatious. The egregious nature of Mr Burns’ conduct would not be in the interest of justice to permit the Complaint to proceed.19

Orders that was made Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Complaint against Israel Folau to proceed.20

Commentary The relevance of this case is the unique nature of difficulty in the cases complication between three areas of law, employment, contract and discrimination law on the basis of religion and opinion. It sets a precedent for members of society to feel comfortable to express religious preaching and feel protected by the Anti-discrimination laws,21 that they can voice their opinion as long as it is accordance with and are done for religious purposes. The unique nature of this case and the weight of responsibility on the sole member to order decisions maybe too heavy for one to carry. The complexity of this hearing arose many issues that

16 Burns v Folau ibid (n 1) [65]. 17 Anti- Discrimination Act ibid (n3) s 108. 18 See ibid [68]. 19 Ibid [71]. 20 Burns v Folau ibid (n 1). Orders (1). 21 Anti- Discrimination Act ibid (n3).

targeted, the substance, vexatious nature and authenticity of the matter brought forward. 22 A. Britton the principal member’s view was clear in its position that it would be a disservice to the justice system to have this matter proceed.

Minority Opinion Communities were affected by the orders made by this case and how both parties conducted themselves. The LGTBQ+ community was one effected directly by Mr Folaus’ aggressive portray of religious belief directed towards their choice of sexuality. Arguments raised relate to the power judiciary systems had over the control of what religious ‘good faith’ amounts to, and how to measure such a justification. This judgment also weighs now of future hearings wanting to proceed with vilification towards a community. This precedent requires those affected to swallow and accept decisions made with a level of acceptance.

Majority Opinion Instead, this decision supported the expression of religious belief, it gave society the security to allow themselves to liberally preach their religious views in ‘good faith’ as defended by Mr Folau. Although this case supported the freedom of religious speech, the case alternatively stretches its reach to the security one may lack in their employment. As stated in the Burns v Folau case an apology was made by Rugby Australia and Mr Folau.23 Mr Folau although lost his job due to the effect his comments made towards homosexual people. This microscope the security and freedom within employment individuals may face in future.24

Conclusion A. Britton decision provides a path for the interpretation of the application of the Anti-Discrimination act,25 on society and the communities it affects. It correlates that law and religious must co-exist and that this law penetrates the purpose of the rights to equality within the power of the Act. This case also reflects the high standard of behaviour accepted by the courts and the level of integrity required to proceed with a matter.

22 See especially Burns v Folau (n 1) [53]-[59]. 23 Burns v Folau (n 1) [25]. 24 See generally Ruth C A Higgins SC, ‘The Quarrel Between Security and Freedom’ (2019) 93 Australian Legal Journal 611. 25 Anti- Discrimination Act ibid (n3).

BIBLIOGRAPHY

A Articles/ Books/ Reports Higgins, Ruth ‘The Quarrel Between Security and Freedom’ (2019) 93 Australian Legal Journal 611

B Cases Attorney-General v Wentworth (1988) 14 NSWLR 481 Batistatos v Roads and Traffic Authority of NSW (2006) 226 CLR 256; [2006] HCA 27 Burns v Corbett; Burns v Gaynor; Attorney General for New South Wales v Burns; Attorney General for New South Wales v Burns (No 2); New South Wales v Burns [2018] HCA 15 Burns v Folau [2020] NSWCATAD 287] Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Commonwealth v ACT (2013) 250 CLR 441 Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Jones v Trad [2013] NSWCA 389 Langley v Niland & Anor (1981) 2 NSWLR 104 Margan v Manias [2013] NSWADT 177 (7 August 2013) New South Wales v Burns [2018] HCA 15 Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 Sunol v Collier and anor (No 2) [2012] NSWCA 44

C Legislation Anti- Discrimination Act 1977 (NSW)

D Other Anthony Forsyth, ‘Why the Israel Folau case could set an important precedent for employment law and religious freedom’, ( Web Page, June 11, 2019 2.28pm AEST)...