Gaynor v Burns

On 29 December 2023, Mr Garry Burns, the first defendant, lodged a complaint with the President of the Anti-Discrimination Board (NSW) (“the ADB”) in respect of a YouTube video posted by Mr Bernard Gaynor, the plaintiff, on “X” (previously “Twitter”) on or about 27 November 2023. Mr Burns alleged the video constituted homosexual vilification under s 49ZT of the Anti-Discrimination Act 1977 (NSW) (“the AD Act”).

This complaint by Mr Burns is the most recent in a long series of similar complaints made by him about Mr Gaynor. Mr Gaynor is a conservative blogger whereas Mr Burns is a self-described gay Australian anti-discrimination campaigner. These two men have been mired in legal disputes for some years. The legal complexity of Mr Burns’ otherwise relatively straightforward complaints arises from the fact that Mr Burns resides in New South Wales (“NSW”) whereas Mr Gaynor resides in Queensland. Some of the previous decisions concerning the long running animus between these two men are relevant to these proceedings including: Burns v Gaynor [2015] NSWCATAD 211; Burns v Corbett (2017) 96 NSWLR 247; [2017] NSWCA 3 (“Burns v Corbett (CA)”); Burns v Corbett (2018) 265 CLR 304; [2018] HCA 15 (“Burns v Corbett (HC)”); Gaynor v Local Court of NSW [2019] NSWSC 805 and Gaynor v Attorney General of New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48.

On 15 January 2024, Mr Burns’ complaint was accepted by the ADB and on 15 April 2024 the complaint was referred to the NSW Civil and Administrative Tribunal (“NCAT”). By amended summons filed on 6 August 2024, the plaintiff seeks judicial review of the two decisions made by the Delegate of the ADB (“the Delegate”): the decision on 15 January 2024 made pursuant to s 89B of the AD Act to accept the complaint of homosexual vilification made by the defendant against the plaintiff; and, the decision on 15 April 2024 made pursuant to s 93C of the AD Act to refer that complaint to NCAT.

In short, the plaintiff submits that the ADB lacked jurisdiction to accept and refer the complaint because whereas Mr Burns resides in New South Wales (NSW), Mr Gaynor resides in Queensland and the alleged “public act” did not occur in NSW.

Three grounds are set out in the amended summons in these terms:

The plaintiff's submissions, both written and oral, framed the jurisdictional error as being the absence of the two jurisdictional facts referred to in Grounds 1 (i) and (ii) and the failure to take into account that those two jurisdictional facts were not present in this matter: Ground 2. The matters listed in Ground 3 were relied upon in support of the alleged errors in Grounds 1 and 2 and I have proceeded on the basis that Ground 3 was effectively abandoned.

Mr Burns, the Delegate (the second defendant), and NCAT, (the third defendant), all filed submitting appearances. Pursuant to orders made on 30 July 2024, the Attorney General was granted leave to intervene in the proceedings and was joined as the fourth defendant. He is the only active contradictor.

Review of the first decision was made out of time pursuant to r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) which stipulates that “[p]roceedings for judicial review of a decision must be commenced within 3 months of the date of the decision”. Mr Gaynor sought an extension of time under r 59.10(2) of the UCPR which was not opposed by the Attorney General.

On 8 January 2024, the ADB received Mr Burns’ complaint via letter dated 29 December 2023. The letter was in these terms (I have removed some of the irregular spacing in it but have otherwise extracted it verbatim):

Annexures A and B were poor quality photographs taken of a computer screen. Annexure A depicted what is described in the complaint whereas Annexure B depicted the number of “likes” etc.

On 15 January 2024, the Delegate accepted the complaint under s 89B of the AD Act.

On 6 February 2024, Mr Burns emailed a larger and clearer picture of the publication. He also added that:

On 23 February 2024, the decision to accept the complaint was communicated to Mr Gaynor by way of letter sent by email from Ms Connie Santiago, an ADB conciliation officer, to Mr Gaynor’s personal email address. That email address was not provided by Mr Burns in his complaint. The inference is that the ADB already had Mr Gaynor’s email address from the numerous previous complaints made against him by Mr Burns.

That same day, Mr Gaynor emailed Ms Santiago complaining, inter alia, that the complaint did not include any relevant printout out or transcript of the publication. He described the complaint as “vexatious” and stated that the images Mr Burns had submitted as evidence of the “X” post were photos Mr Burns had taken of his own computer and were “entirely illegible”. Ms Santiago replied on 26 February enclosing larger photos of the publication.

On 1 April 2024, Mr Balzola, the plaintiff’s solicitor, wrote to the ADB pointing out that the President and the Delegate of the ADB should be aware that Mr Burns had previously brought unsuccessful complaints against him and thus would be aware that he resided in Queensland. The plaintiff submitted that the ADB has no jurisdiction to investigate the complaint. A copy of the reasons was sought, and attention was drawn to a number of matters relevant to the decision to accept the complaint. It is not necessary to extract them all for the purpose of these reasons but one of the matters raised was that the decision in Burns v Gaynor held that placing material on the internet by a resident of another State is not a public act within the state of NSW.

On 15 April 2024, Ms Santiago replied to the above letter. She advised Mr Gaynor that the ADB did not accept the plaintiff’s position that the ADB had no jurisdiction to investigate the complaint. The following reasons were provided for the initial decision to accept the complaint:

On that same day, Mr Burns was emailed a copy of this letter. He replied to Ms Santiago in the following terms (emphasis in original):

On 30 May 2024, Mr Gaynor commenced these proceedings.

On 27 June 2024, Mr Balzola wrote to the Crown Solicitor’s Office seeking clarification of certain matters. On 29 July 2024, the Crown Solicitor’s Office wrote to Mr Balzola clarifying the reasons for the decision as follows:

On 6 August 2024, the plaintiff filed the amended summons.

The relevant legislation is contained in Part 4C, Division 4 (Homosexual vilification) and Part 9, Division 2 (Complaints—the functions of the President) of the AD Act and relevant sections of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”).

Part 4C of the AD Act is titled “Discrimination on the ground of homosexuality” and Division 4 is titled “Homosexual vilification”. Relevantly, Division 4 provides:

Part 9 of the AD Act is titled “The functions of the President, the Tribunal and the Board”. Division 2 of that Part sets out the process required to lodge a complaint to the President of the Board. Section 87A permits the making of a complaint regarding someone who has contravened a provision of the AD Act, including s 49ZT in this case:

Section 88 then outlines specific criteria to be met in vilification complaints:

As for the form and content of complaints, s 89 provides that:

Section 89A states that a complaint is made by being lodged with the President of the Board.

Section 89B then provides:

Once the President accepts a complaint under s 89B of the AD Act, the President must then investigate the complaint under s 90. Under s 90A, if the complaint to be investigated is a vilification complaint, the President may require a person to produce a copy or transcript of any broadcast the subject of the complaint at a specified place.

Under s 91A, if the President is of the opinion that a complaint, other than a complaint the President has declined under s 92, may be resolved by conciliation, the President may at any stage after acceptance of the complaint, seek to resolve the complaint by conciliation.

Under s 92, the President may also decline the complaint or part of it during the investigation of the complaint. The reasons the President may decline the complaint are set out in s 92(1)(a). Section 92 provides:

In some circumstances, the President may be required to refer the complaint to NCAT at the request of a complainant (see ss 93A and 93B). Section 93C then provides:

Where a complaint is referred to NCAT, NCAT then possesses the functions set out in Part 9, Division 3 of the AD Act. Importantly, s 29(1) of NCAT Act states that NCAT has “general jurisdiction” over a matter where enabling legislation empowers NCAT “to make decisions or exercise other functions, whether on application or of its own motion, of a kind specified by the legislation in respect of that matter” (s 29(1)(a)).

Section 102 of the AD Act sets out NCAT’s powers to summarily dismiss a complaint at any stage in the proceedings. Section 108 of the AD Act sets out NCAT’s powers to dismiss a complaint at a final hearing. If NCAT finds that a complaint is substantiated, there are several remedies available to it including that it may order that the complainant be paid damages not exceeding $100,000, be granted injunctive relief, order than an apology be published or a retraction made, or order that a program or policy is implemented.

Given that the plaintiff’s submissions include assertions as to how s 49ZT should be interpreted, it is relevant to note some decisions of the NSW Court of Appeal in which the vilification provisions of the AD Act have been considered.

In Sunol v Collier (No. 2) [2012] NSWCA 44, the Court of Appeal considered the equivalent provision in relation to racial vilification. The word “incite” within s 49ZT was interpreted at [26]-[33] and [41]. At [28], Bathurst CJ observed the following:

At [41], Bathurst CJ summarised the construction of s 49ZT as follows:

Allsop P noted at [57] that the subject matter and mischief to which Part 4C was directed are identified in the second reading speech of Clover Moore MP for the Anti-Discrimination (Homosexual Vilification) Amendment Bill 1993 (Legislative Assembly, 11 March 1993) and the report of the NSW Anti-Discrimination Board entitled “Discrimination and Homosexuality” published in 1982. His Honour observed that this subject matter included the way homosexuals were from time to time vilified in public, which was seen as capable of creating the conditions for violence against homosexual men and women; and that the incitement of hatred, serious contempt or severe ridicule can be seen to create the conditions for violent behaviour. A review of the second reading speech demonstrates that there was an acute awareness throughout of the possibility of vilification occurring via media (e.g. radio and television), and that the paramount emphasis was on protecting the homosexual community within NSW.

The word “incite” was also considered in Jones v Trad (2013) 86 NSWLR 241; [2013] NSWCA 389 in the context of the equivalent provision in relation to racial vilification. Again, the Court held that an objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group on the ground of their homosexuality (at [53]) and there can be no incitement in the absence of an audience (at [54]-[55]). Further, in ascertaining the particular class to whom the act is directed, the audience or likely audience must be identified and considered (at [62], [63]).

In Margan v Manias [2015] NSWCA 388, the Court considered the word “incite” in the context of s 49ZT. In reliance on Sunol v Collier and Jones v Trad, it was held that it means to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement (at [11]). It was further held that for there to be a contravention of s 49ZT it is not necessary to establish that anyone was incited: (at [12]) but there must be an audience to the public act (at [61]). The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurs, including the temporal and geographic context and the audience (at [55], [88], [97]). There can be no incitement in the absence of an audience (at [76]).

In Burns v Corbett (HC), the High Court dismissed a series of appeals from the Court of Appeal, including one brought by Mr Burns against Mr Gaynor: Burns v Corbett (CA). The High Court held that ss 28(2)(a) and (c), 29(1) and 32 of the NCAT Act were invalid to the extent that they purported to confer jurisdiction upon NCAT, in circumstances where the complainant and the respondent to the relevant complaint were “residents of different States” within the meaning of s 75(iv) of the Commonwealth Constitution.

It is not necessary to consider the respective pathways the court took to arrive at that decision. What is relevant, however, is that the High Court held that NCAT lacked jurisdiction to determine disputes between residents of different states because to do so would be the impermissible exercise of federal judicial power by a body other than a Chapter III court.

Prior to the hearing in the High Court, the NSW Parliament passed the Justice Legislation Amendment Bill (No 2) 2017 (NSW) which introduced a new Part 3A into the NCAT Act in response to the difficulties identified by Court of Appeal. Part 3A provides a mechanism for matters to be heard by an authorised court (either the Local Court or the District Court), instead of NCAT.

Section 34B(1) provides that a person with standing to make an application to NCAT may, with the leave of an authorised court, make the application or appeal to the court instead of NCAT but, by s 34B(2), the authorised court may only grant leave if it is satisfied of a number of matters, relevantly including that the determination of the application by NCAT would involve an exercise of federal jurisdiction (and therefore that NCAT would lack jurisdiction to determine the application).

Section 34B of the NCAT Act provides:

Under s 34C of the NCAT Act, the authorised court will possess all of the jurisdiction and functions NCAT would have possessed had it been endowed with federal jurisdiction.

The effect of the operation of Part 3A of the NCAT Act is that there is now a mechanism to resolve the controversy between Mr Burns and Mr Gaynor in the event that NCAT lacks jurisdiction. The practical effect of these amendments is that if a resident of NSW wishes to bring a complaint against a resident of another State or Territory, he or she must first lodge the complaint with the ADB who will then, if appropriate, refer it to NCAT. This includes cases where it is common ground that NCAT does not have jurisdiction to hear it because the respondent resides outside of NSW. The legislation does not provide a mechanism for NCAT to then refer the complaint to the authorised court. Rather, the complainant is then apparently informed that NCAT has no jurisdiction (a fact known to the complainant prior to lodging the complaint) and the complainant must then lodge the complaint in the Local Court. The complainant must go through this procedure before being able to lodge a complaint in an authorised court.

Under s 34B(2) of the NCAT Act, the authorised court may grant leave for the application to be made but only if satisfied of the four matters enumerated under that subsection, one of which is that the application was first made to NCAT.

Mr Gaynor’s central premise was that the Delegate had no jurisdiction to accept Mr Burns’ complaint. It was effectively submitted that the Delegate “rubber stamped” the complaint without properly considering the relevant criteria. So much is apparent, it was submitted, by the supplementary reasons provided on 29 July 2024, which do not correlate with the statutory criteria.

It was submitted that there are in fact five criteria which must be satisfied before a complaint is accepted:

It was submitted that each of criterion (4) and criterion (5) were jurisdictional facts, the satisfaction of which was necessary in order to enliven the power of the Delegate granted by s 89B of the AD Act. It was submitted that these jurisdictional facts were not satisfied and thus the Delegate fell into jurisdictional error in accepting the complaint.

The plaintiff accepted that the common law presumption against extraterritoriality is a principle of construction and that the correct approach is to interpret the relevant statute to determine whether that presumption has been displaced. Reliance was placed on the principles derived from Chubb Insurance Company of Australia Ltd v Moore [2013] NSWCA 212; (2013) 302 ALR 101 (“Chubb Insurance”) at [145]-[146] and DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 (“DRJ”): when considering whether a provision applies extraterritorially, the “central concern” or “hinge” around which a particular statute operates, must be identified and given its “proper construction”, taking into account its context and subject matter.

It was submitted that the hinge around which the homosexual vilification provisions operate is the commission of a public act by a person. That this is so is ascertained from the phrase “... for a person, by a public act, to incite …” in s 49ZT. It was submitted that it is the location of the person who commits the prohibited public act that is central to the operation of these provisions. It was submitted that the language of s 87A(1) and s 49ZT(1) also supports this interpretation. The opening words of s 87A(1) are “[a] complaint alleging that a named person has, or named persons have, contravened a provision of this Act”. The opening words of s 49ZT(1) are “[i]t is unlawful for a person, by a public act, to incite ...”. It was submitted that it is not the results or consequences of the public act that is prohibited by s 49ZT but rather the conduct of a person, being their public act that has a capacity to incite.

Further, in reliance on the principles derived from the decisions of the Court of Appeal as to what “incite” means in this statutory context (to which I have already referred), it was submitted that if actual incitement of a person is not necessary and that the capacity to incite is to be judged objectively, then incitement could not be the relevant hinge.

The plaintiff submitted that a similar position has been taken in the criminal law with respect to conduct offences and result offences where the relevant distinction seeks to preserve the presumption against extra-territorial effect where the offending conduct that is alleged has characteristics that crosses State borders. Reliance was placed on the observations of Gleeson CJ in Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83F-G, 84C and 87G where his Honour concluded that the relevant offences were result offences and that the purpose of the legislation was to prevent the occurrence in NSW of a certain consequence, being pollution in NSW. The relevant conduct in that case was spraying by a farmer on his Queensland property that resulted in a significant fish kill in the Barwon River which straddled the border between Queensland and NSW. An analogy was also sought to be drawn with principles of defamation law.

Overall, it was submitted that there are no necessary implications that rebut the statutory presumption against extraterritoriality in s 49ZT. Nor, it was submitted, does a reading of the AD Act assist; it could not be said that the legislative purpose would be frustrated or that a contrary intention is indicated by “the object, subject matter or history of the enactment”.

Significant reliance was placed on the decision of Principal Member, D Patten, in Burns v Gaynor where it was held that publication on the internet by a person situated in a state other than NSW was not a public act in NSW.

It was submitted that the fifth criterion before a complaint can be accepted is the residency of the respondent. In reliance on the decision of the High Court in Burns v Corbett (HC), it was submitted that residency is a jurisdictional precondition. It was submitted that the High Court held, in effect, that the ADB has no jurisdiction to accept a complaint made against a resident of another state. It was submitted that if NCAT has no power to finally adjudicate the referred controversy, then the investigating authority can have no authority to investigate or resolve by conciliation that same controversy. Accordingly, residency is an antecedent requirement of acceptance of a complaint that must be ascertained by the Delegate.

It was submitted that each of criterion (4) and (5) were objectively ascertainable prior to acceptance and were essential for, and are antecedent to, the exercise of the power granted by s 89B of the AD Act. The plaintiff noted the decisions of Enfield City v Development Assessment Commission (2005) 199 CLR 135; [2005] HCA 5 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 at [37]-[44] in this regard.

It was accepted that the jurisdictional facts of the public act having to be performed in NSW and the residency status of the parties to the dispute are not to be found in the language of s 89B. Despite this, it was submitted that they are facts that must be determined prior to the exercise of that power, the failure of which renders the decision to accept it invalid. It was submitted that the fact that neither criterion was considered by the Delegate is apparent from the reasons of 15 April 2024 as supplemented by the letter of the Crown Solicitor’s Office dated 29 July 2024.

Given that the power to refer the complaint to NCAT rests upon there having been a validly accepted complaint, it was submitted that the consequence of the invalid acceptance of the complaint is that there was no jurisdiction to refer the matter to NCAT.

It was further submitted that it is doubtful that the Delegate truly exercised the discretion pursuant to s 93C of the AD Act in any event given the additional reasons contained in the letter of 29 July 2024. That letter contains an additional reason for referral that was not included in the reasons provided on 15 April 2024. That additional reason was that the complaint could not be resolved by conciliation. That additional reason was the only reason recorded in the recommendation created by the responsible officer and given to the Delegate requesting endorsement of the reasons for decision given on 15 April 2024. Further, the only reason for referral given in the Report produced by the President (pursuant to s 94A(2) of the AD Act) and received by NCAT on 8 May 2024 is that the complaint was “[r]eferred under section 93C(a) because the Delegate is satisfied that the complaint cannot be resolved by conciliation”.

The Attorney General’s position was that these proceedings should be dismissed for the following principal reasons.

First, on the correct construction of ss 89B and 93C, the President was not required to decide, at the stage of determining whether to accept the complaint, or at the stage of determining whether to refer the complaint to NCAT, whether there was a public act in NSW, amounting to a jurisdictional fact, as a precondition to jurisdiction.

Secondly, the relevant hinge for the purposes of assessing extraterritorial effect of s 49ZT is the incitement, which necessarily requires attention to be paid to the audience who received Mr Gaynor’s internet publication. If that is so, then the President did not make any jurisdictional error of the kind asserted by Mr Gaynor in deciding to accept the complaint and refer it to NCAT.

Thirdly, in the alternative, the relevant hinge for the purposes of assessing the extraterritorial effect of s 49ZT is the location of those against whom the feelings of hatred, revulsion, serious contempt for, or serious ridicule were felt. Again, if that is so, then the President did not make any jurisdictional error of the kind asserted by Mr Gaynor in deciding to accept the complaint and refer it to NCAT.

Fourthly, even if the Court accepts Mr Gaynor’s argument that the relevant hinge for the purposes of assessing extraterritorial effect of s 49ZT is the relevant public act, then the President did not make a jurisdictional error in accepting the present complaint and referring it to NCAT. That is because it is at least strongly arguable that the public act occurred at least in part in NSW.

Finally, there is no jurisdictional precondition arising from the High Court decision in Burns v Corbett (HC) to the effect that the respondent to a complaint must be a resident of NSW for the President to validly exercise administrative functions in relation to that complaint.

It was submitted that the discretion under s 89B(1) of the AD Act to determine whether or not a complaint is to be accepted or declined is relevantly unconfined. Nor should the discretion to refuse an application in s 89B(1) be confined to the circumstances set out in s 89B(2)(a)-(e). Section 89B(2) should not be interpreted as requiring the President to decline a complaint if one or more of s 89B(2)(a)-(e) are satisfied. These examples serve to provide express examples of where the President may decide to decline a complaint. Further, it was submitted that these express examples (provided in (a)-(e)) are all matters which could be identifiable on the face of the complaint.

Reliance was placed on the fact that there is a further power for the President to decline a complaint during the investigation process: s 92. The bases upon which the President is expressly empowered to decline a complaint during investigation as listed in s 92(1)(a) are noticeably broader than their equivalents in s 89B(2) in respect of the decision to decline a complaint at the stage of initial receipt.

It was noted that s 89B does not provide that the public act must be performed in NSW nor the residency status of the parties. It was submitted that the court would not find them to be implied jurisdictional facts as to do so would be inconsistent with the scheme in Part 9, Divisions 2 and 3.

The Attorney relied on Leeming JA’s observation in Gaynor v Attorney General at [138], that the President performs non-judicial functions when exercising her functions under Division 2 (such as investigating or attempting conciliation). However, the judicial function of resolving the complaint according to law is assigned to NCAT under Part 9, Division 3 (or, if NCAT lacks jurisdiction, to an authorised court under Part 3A of the NCAT Act).

It was noted that it is well established that when a judicial decision-maker is asked to summarily dismiss a claim on the basis of lack of territorial connection, there must be a high degree of certainty about the ultimate outcome of the proceeding in order to do so, which is why the issues raised in those proceedings should not be decided in a summary way except in the clearest of cases: see Agar v Hyde (2000) 201 CLR 552; [2000] HCA 41 at [57].

It was submitted that even if the Delegate was authorised to consider the question of territoriality, this is not such a clear case as to make it appropriate to do so because there are very strong arguments that there was a sufficient territorial connection for Mr Gaynor’s conduct to constitute a contravention of s 49ZT of the AD Act. The appropriate venue for arguments about extraterritoriality to be ventilated and ultimately resolved is an authorised court under Part 3A of the NCAT Act, being the body to whom the legislative scheme assigns the function of determining the dispute.

The Attorney General identified other decisions of NCAT and its interstate equivalents considering and determining territorial questions: Corbett v Burns [2014] NSWCATAP 42; Burns v Gaynor; Bottrill v Sunol [2017] ACAT 81; Farah v Sandilands [2021] ACAT 92; Sunol v Kerslake (Appeal) [2024] ACAT 35; Australian Muslim Advocacy Network Ltd v Twitter Australia Holdings Pty Limited [2024] QCAT 201. It was submitted that in none of them did any of the Tribunals raise an issue as to whether the complaint ought to have been dismissed by the President or her interstate equivalent even before the Tribunal came to consider the issue.

Given that it was common ground that the AD Act does not contain any express provision concerning its territorial reach, it was submitted that the question is to be determined by statutory construction. Reliance was placed on the relevant principles as stated in Karpik v Carnival plc [2023] HCA 39; (2023) 98 ALJR 45 at [19] and the summary of the relevant principles by Gordon, Edelman and Stewart JJ in BHP Group Ltd v Impiombato (2022) 276 CLR 611; [2022] HCA 33 at [59], [61]-[62]. It was further submitted that changing times have led to dramatic diminishment in concern for extraterritorial operation of laws.

It was noted that DRJ, BHP v Impiombato and Karpik v Carnival plc concerned asserted international extraterritoriality. In Dempster v National Companies & Securities Commission (1993) 9 WAR 215 at 242, Malcolm CJ concluded that the presumption may not be as strong within Australia as it is in relation to places outside Australia. That is because of the fact that the states and territories exist in a federation where there is likely to be frequent movement of people between states and a commonality of problems requiring cooperative solutions. It was submitted that this principle has significant force in the present case.

It was submitted that the resolution of the question of the hinge of s 49ZT requires consideration of the various components of the provision. The provision has regard not merely to the person performing the public act (the ‘inciter’); but also the audience for the public act; and also those towards whom the feelings of hatred, revulsion, serious contempt for, or serious ridicule were directed: Gaynor v Attorney General at [66]-[67]:

It was submitted that the Court would not find that the hinge around which the homosexual vilification provisions operate is the commission of a public act by a person. Rather, the Court should find that the relevant hinge is the incitement which the provision proscribes, which in turn directs attention to the audience of that incitement. Section 49ZT provides: “It is unlawful for a person, by a public act, to incite…” (emphasis added).

It was submitted that s 88B of the AD Act reflects the beneficial nature of the legislation by seeking to ensure that applicants are always able to access the appropriate jurisdiction for their claim, regardless of whether they may have already made a complaint, possibly incorrectly, in another jurisdiction.

In the alternative, it was submitted that the Court would find that the relevant hinge is the location of those against whom the feelings such as hatred were felt. This alternative hinge was said to reflect the statutory purpose of s 49ZT, namely, to protect homosexual persons from vilification. It was submitted that this legislative intent lends support for the construction that the legislature intended to proscribe conduct where those effects were felt in NSW. Otherwise, they would have no remedy under NSW law. Such an outcome is inconsistent with the beneficial intention of the AD Act. Reliance was placed on the line of cases in the ACT Civil and Administrative Tribunal to this effect: see Bottrill v Sunol. Similarly, see Farah v Sandilands [2021] ACAT 92 and Sunol v Kerslake (Appeal).

It was next submitted that even if the Court accepts that the relevant hinge is the location of the public act, it does not follow that the relevant act in the present case was not committed in NSW given the observations of Bell P (as his Honour then was) in Gaynor v Attorney General at [67] and in Corbett v Burns [2014] NSWCATAP 42. Further, the Attorney provided examples of interstate Tribunals adopting similar positions: Baxter v Air New Zealand [2012] VCAT 1666 at [35]-[39] and Australian Muslim Advocacy Network Ltd v Twitter Australia Holdings Pty Limited at [32]-[47].

It was submitted that even if the Court finds that the relevant hinge for the purposes of assessing extraterritorial effect of s 49ZT is the location of the public act, the President did not make a jurisdictional error in accepting the present complaint and referring it to NCAT. That is because it is strongly arguable that the public act occurred at least in part in NSW. As noted above, that was not an issue which the President could have been expected to resolve at the stage of accepting the complaint. Rather, it is a matter which ought to be resolved by the body which hears and resolves the dispute.

Finally, it was submitted that it is not a jurisdictional precondition that the respondent must be a resident of NSW. It was submitted that the plaintiff’s submission to the contrary fundamentally misunderstands the decision of the High Court in Burns v Corbett (HC) and to the extent that an aspect of that decision is in dispute, the Attorney General issued notices as required by s 78B of the Judiciary Act. No recipient indicated that they wished to be heard.

It was further submitted that Mr Gaynor’s argument overlooks Part 3A of the NCAT Act. Mr Gaynor argues that if there is no body with jurisdiction to resolve a complaint, then the President of the ADB can have no authority to accept that complaint, investigate it, or resolve it by conciliation. It was submitted that the premise of this argument is unsound.

The plaintiff’s challenge to the validity of the two decisions is premised on the assertion that the two identified facts (described in submissions as criteria 4 and 5) are jurisdictional in nature. As the High Court (Gleeson CJ, Gummow, Kirby and Hayne JJ) observed in Enfield City v Development Assessment Commission at [28], “[t]he term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion.” Thus, it was accepted that the plaintiff must establish that the fact of where the respondent to the complaint resides and that the relevant public act (within the meaning of s 49ZT of the AD Act) occurred in NSW are prerequisites to be satisfied before the discretionary power to accept a complaint under s 89B of the AD Act can be exercised.

As Spigelman CJ observed in Timbarra Protection Coalition v Ross Mining NL at 64, a jurisdictional fact must have an objective existence in the sense that it exists in fact and the existence of the fact must be essential to the validity of the action under the relevant act.

The plaintiff’s counsel accepted during the hearing that if I was satisfied that the Delegate had jurisdiction to accept the complaint then it followed that she had jurisdiction to refer it to NCAT; in other words, success in challenging the second decision depended on the plaintiff successfully challenging the first decision.

I propose to deal first with the plaintiff’s contention that it is a jurisdictional fact that the respondent to a complaint must reside in NSW. Not only am I not satisfied that this is a jurisdictional fact, I am also not satisfied that the plaintiff’s contention correctly states the scope and operation of ss 89B and 49ZT of the AD Act.

The plaintiff has not established that it is a precondition to the exercise of the President’s discretion to accept a complaint about s 49ZT under s 89B of the AD Act that the respondent must be a resident of NSW for the following reasons.

First, there is nothing in the statutory language of s 49ZT or 89B that expressly identifies that the respondent’s residency is a necessary prerequisite to the exercise of the Delegate’s power to accept the complaint.

Secondly, the plaintiff’s argument misapprehends what the High Court held in Burns v Corbett (HC). The High Court held that NCAT lacked jurisdiction to determine disputes between residents of different states because to do so would be an impermissible exercise of federal judicial power by a body other than a Chapter III court. The preliminary steps required by the President (or delegate) of the ADB including accepting the complaint and referring complaints to NCAT are administrative in nature, not judicial. To the extent that any authority is needed for that conclusion, I note that in Gaynor v Attorney General each of Bell P (at [55]), Basten JA (at [94]-[99]) and Leeming JA (at [124], [138]) held that such preliminary administrative steps could permissibly be undertaken by the President or by NCAT independently of whether NCAT has jurisdiction to resolve the dispute.

Thirdly, the plaintiff’s submission that there is no body with jurisdiction to ultimately resolve a complaint where the respondent resides outside of NSW overlooks the enactment of Part 3A of the NCAT Act. As the plurality observed in Gaynor v Attorney General at [11]:

The Local Court and the District Court unarguably have jurisdiction to resolve disputes between residents of different states by virtue of the conferral of federal judicial power on them by s 39 of the Judiciary Act 1903 (Cth): Gaynor v Attorney General at [43].

For these reasons Ground 1(i) must fail.

As for Ground 1(ii), the plaintiff has not established that it is a precondition to the exercise of the President’s discretion to accept a complaint under s 89B of the AD Act that the relevant public act within the meaning of s 49ZT of the AD Act occurred in NSW either. The plaintiff accepted that there is nothing in the statutory language of s 49ZT or s 89B that expressly identifies this factor as a necessary prerequisite to the exercise of the Delegate’s power to accept the complaint. His position is that this jurisdictional fact should be implied as a matter of statutory construction.

I do not accept the plaintiff’s argument that the Delegate was required to definitively resolve this territorial question on a factual basis at the initial stage of deciding whether to accept the complaint under s 89B. There is no indication in the AD Act that Parliament intended that an administrative decision maker would be required to resolve this question at the preliminary stage of deciding whether to accept a complaint. When I questioned plaintiff’s counsel during the hearing as to how the Delegate was supposed to resolve this complex issue at the initial stage of accepting the complaint, he responded that there remains an obligation on the Delegate to “give it a go”.

Counsel in this matter filed lengthy and detailed submissions addressing the question of the extraterritorial effect of s 49ZT of the AD Act. The hearing before me proceeded for half a day. Although it is to be accepted that a complaint such as that made by Mr Burns against Mr Gaynor should not be “rubber stamped”, it is another matter entirely to require the President or a delegate of the ADB at the initial phase to determine difficult questions of statutory construction. If the plaintiff’s argument is to be accepted, then the Delegate should have approached the question in the same manner as the plaintiff did in order to arrive at the conclusion that the relevant hinge in s 49ZT was the location of the public act which, the plaintiff contended, was in Queensland and that that conclusion is a jurisdictional fact. In other words, if the plaintiff is correct then the President (or delegate) was required to undertake the following steps before accepting (or, as the plaintiff contends, rejecting) Mr Burns’ complaint.

First, on the plaintiff’s construction, the Delegate should have properly understood the common law presumption against extraterritoriality as explained in the decisions relied upon by the plaintiff including DRJ and Chubb Insurance and Insight Vacations Pty Ltd v Young (2011) 243 CLR 149; [2011] HCA 16.

Secondly, on the plaintiff’s construction, the Delegate should have been aware of the recent High Court decisions as to how that common law presumption can be displaced as a matter of statutory construction. Those cases include Karpik v Carnival plc where Gageler CJ, Gordon, Edelman, Gleeson and Jago JJ observed the following at [19] (citations omitted):

It follows that, on the plaintiff’s contention, the President (or delegate) should also have been aware of the relevant principles as recently summarised by Gordon, Edelman and Stewart JJ in BHP Group Ltd v Impiombato at [59] and [61] and [62] as follows (citations omitted):

Thirdly, the plaintiff contends that the Delegate should have construed s 49ZT to determine whether the common law presumption has been displaced such that it applies extraterritorially by identifying the “central concern” or “hinge” around which the AD Act operates, taking into account its context and subject matter. I have already summarised the parties’ respective submissions on the identification of the hinge in s 49ZT: the plaintiff contends that the relevant hinge in s 49ZT is the commission of a public act by a person whereas the Attorney contended, inter alia, that the relevant hinge is the incitement. On the plaintiff’s argument, the Delegate was required to resolve that question of statutory construction at the threshold stage by looking at the text and context of the provision whist also having regard to the principles derived from the decisions of the Court of Appeal as to what “incite” means in this statutory context I have summarised above at [35]-[39].

Fourthly, the plaintiff explicitly contends that the Delegate should have been aware of the decision of Mr D Patten, Principal Member at NCAT, in Burns v Gaynor. Mr Gaynor successfully had one of Mr Burns’ previous complaints dismissed on the basis that it was found that the public act must be in NSW (at [12]) and that the posting of material on a computer in Queensland capable of being downloaded in NSW is not a public act in NSW within the meaning of s 49ZT. The principal member was referred in that case to Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56 (“Gutnick”) (and extracted [38]-[44] in his reasons) before concluding the following at [17]:

If the President of the ADB (or delegate) was expected to know of that decision, then it follows that they should have been aware of any contrary authority including other decisions in which Mr Gaynor has run the same argument concerning the territorial nexus between the relevant public act and NSW for the purposes of s 49ZT. In Gaynor v Local Court of NSW, Mr Gaynor challenged the validity and operation of s 34B on a number of grounds. Relevantly, he also raised the same argument as he does in the present proceedings, namely, that s 49ZS and s 49ZT of the ADR Act operate so as to deprive the Local Court of any jurisdiction to hear the proceedings unless the matters complained of involve or are concerned with a public act in NSW. Mr Gaynor’s challenge to s 34B before Harrison J (as his Honour then was) was unsuccessful and he sought leave to appeal to the Court of Appeal where he was also unsuccessful: Gaynor v Attorney General.

In refusing leave and dismissing the appeal, Bell P said this about Mr Gaynor’s extraterritoriality argument (which is relevantly the same argument as is raised in the present proceedings) at [60]-[67]. I have set these paragraphs out in full given how apposite they are to the present proceedings:

The observation by Bell P that the question of where a publication is in fact “located” for, inter alia, jurisdictional purposes is “typically not free from complexity” is pertinent to the question at the heart of the present application. Contrary to the plaintiff’s contention, not only is it not a straightforward question, but it is also certainly not one that the Delegate was obliged to resolve at the initial phase of determining whether to accept the complaint

I am satisfied that the President of the ADB is not required to decide, at the stage of determining whether to accept a complaint under s 89B or at the stage of determining whether to refer a complaint under s 93C, whether or not there was a public act in NSW, amounting to a jurisdictional fact as a precondition to jurisdiction. Rather, the President’s function under Part 9, Division 2 of the AD Act is to conduct “an initial sifting process” or to “filter” complaints. It is a matter for the body exercising judicial power (whether NCAT or an “authorised court” under Part 3A of the NCAT Act) to determine whether there was a public act in NSW, and whether that is the necessary criterion to establish jurisdiction under the AD Act.

A further difficulty with the plaintiff’s argument is that, as a matter of general principle, requiring the President to determine whether the complaint should be summarily dismissed at the initial filtering stage is at odds with the terms of s 89B of the AD Act. The matters the President may have regard to in exercising the discretion to decline a complaint under s 89B(2) of the AD Act are extracted above at [27]. The matters are all such that would be apparent on the face of the complaint. That includes s 89B(2)(a), which provides a basis for declining to accept the complaint as being that “no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations”. It seems to me that there would have to be something apparent on the face of the complaint that made it clear that one or more elements of s 49ZT could never be established in order for the President to decline to accept a complaint.

Further, the President has a separate power to summarily dismiss a complaint under s 92 of the AD Act.

The question of where a public act of publication is located falls to be considered in the context of the proliferation of publications that are placed online by Australians daily which can be read instantly across Australia. As Kirby P observed 30 years ago in Goliath Portland Cement Co Ltd v Bengtell (1994) 33 NSWLR 414 at 428:

His Honour’s comments were made prior to the significant advances in technology that have occurred over the last 30 years and apply with even greater force now. As the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held in Gutnick at [44] (albeit in the context of defamation law):

Although the plaintiff urged me to resolve the extraterritoriality question as part of my decision, I do not consider it necessary to do so in order to determine this matter. Although I consider there to be some force in the argument that the central concern with s 49ZT is the location of where the relevant material is viewed, I do not propose to make any final determination on this question. As was submitted on behalf of the Attorney General, Mr Gaynor will be free to make any arguments which he wishes to make concerning the territorial reach of s 49ZT of the AD Act at any final hearing. I am also satisfied that, as was Bell P in Gaynor v Attorney General, for me to resolve that ultimate issue now would amount to an unnecessary fragmentation of the ordinary appellate processes which are available to the parties.

Although the plaintiff initially submitted, as an additional argument, that it was futile for the matter to be referred to NCAT (because it is common ground that NCAT does not have the jurisdiction to hear this complaint), the plaintiff ultimately accepted, putting the extraterritorial argument to one side, that the only way that Mr Burns could have his complaint heard in the Local Court was to commence it with the ADB and have it rejected by NCAT.

It follows from my findings in relation to Grounds 1(i) and (ii) that the plaintiff has not established that the Delegate failed to take into account in respect of each decision relevant considerations, namely, that the jurisdictional facts set out above were not satisfied: Ground 2.

For completeness, I note that the plaintiff raised a number of discrete arguments concerning the adequacy of the reasons and the difference between the initial reasons and the supplementary reasons. I do not consider that these arguments go to the grounds in the summons alleging jurisdictional error.

The plaintiff has not established that the President of the ADB (or delegate) lacked jurisdiction to accept Mr Burns complaint for either of the reasons that Mr Gaynor was a resident of Queensland nor that the alleged public act was in Queensland. Nor has the plaintiff established that the Delegate fell into jurisdictional error in failing to take into account, in respect of each decision, that these two factors were not satisfied.

Accordingly, I make the following orders: