NEW SOUTH WALES: by Peter WestmoreNews Weekly
Tribunal rejects homosexual vilification complaint
, October 29, 2011
In an important test case, the NSW Anti-Discrimination Tribunal has ruled against a homosexual activist’s claim that public comments on the subject amounted to vilification.
Had the decision gone the other way, it would have severely restricted the right of public comment on homosexuality.
The case arose when John Cunningham, a candidate of the One Nation party in the last federal election, was contacted by a homosexual newspaper, City Voice, during the election and asked his views on homosexuality.
Mr Cunningham gave a telephone interview to the editor of City Voice in August last year. Subsequently, City Voice published a report headed, “Gays need ‘rehab’”.
It said, “Gays and lesbians are ‘unfortunates’ and should undergo ‘psychiatric rehabilitation’, the One Nation candidate for Kingsford-Smith, John Cunningham, has told City Voice.”
It further quoted Mr Cunningham as saying, “I have a completely Christian approach and feel very sorry for men and women who are inflicted with this.”
The newspaper published his comments, and also published an editorial and a number of letters criticising him. A local newspaper, Southern Courier, also picked up the story, and publicly criticised Mr Cunningham.
The Southern Courier quoted Mr Cunningham as saying, “I saw many of the unfortunates [homosexuals in Oxford Street] and my approach is for their psychiatric rehabilitation.
“They’ve lost quite a number from AIDS. It’s totally opposed to the words of Christ. I have a completely Christian approach and feel very sorry for men and women who are afflicted with this.”
The newspaper continued, “Mr Cunningham said he had always been courteous to homosexuals and had the deepest sympathy for them.
“When asked what he had to say to the homosexual community in Kingsford Smith, he replied: ‘I wish you well and hope one day your matters are sorted in conjunction with medical professionals’.”
However Gary Burns, a homosexual activist, lodged a complaint alleging that the comments attributed to John Cunningham in City Voice and the suburban newspaper amounted to homosexual vilification.
After a two-day hearing before the NSW Anti-Discrimination Board, the board rejected the claims that Mr Cunningham’s comments breached the NSW Anti-Discrimination Act.
It said, “The Tribunal observed Mr Cunningham and heard him give his evidence. We formed the view that he was genuinely attempting to give his truthful recollection of what occurred.
“He was prepared to make appropriate concessions, even when they may not have appeared to be in his interest. We accept his evidence as it was elucidated in cross examination.”
The tribunal said, “To describe people as ‘unfortunates’ is usually an expression of a view that those persons deserve sympathy and perhaps help rather than an expression of disparagement or contempt.
“There was nothing in what the respondent [John Cunningham] said or in the way in which it was said or reported which would provide a foundation for concluding that his description of the homosexual persons whom he had observed in Oxford Street while he was working there or even all homosexual persons as ‘unfortunate’ or ‘unfortunates’ was likely to stir up feelings of contempt or ridicule.
“This is especially so for those among the readership of City Voice who were homosexual. It might be thought more likely for those readers that they would have felt contempt or ridicule for the respondent, not homosexuals.”
The tribunal continued, “The Tribunal is of the view that an ordinary, reasonable reader would appreciate that use of the words ‘afflicted’ or ‘inflicted’ to describe homosexuals or AIDS sufferers would not cause him or her to feel contempt for or to ridicule those persons or a group of such persons.
“The reader may or may not agree with the view that homosexuality was an affliction but ‘afflicted’ or ‘inflicted’ are not words calculated to incite contempt or ridicule for the persons said to be afflicted.”
The tribunal also examined the complainant’s suggestion that it was seriously contemptuous to describe homosexuality as a psychiatric illness.
It said, “Suggesting that someone receive treatment or rehabilitation for a psychiatric condition is consistent with concern and respect for that person. It does not necessarily or even ordinarily bespeak contempt for or ridicule of the person.”
It added, “In the circumstances of this case, the Tribunal finds that giving public expression to the view that homosexual people have a problem that could be addressed by psychiatric rehabilitation would not cause the ordinary, reasonable reader to understand that he or she was being incited to feel contempt for or to ridicule such people.”
The tribunal also found that John Cunningham had acted reasonably, and in good faith, and the public interest, in conveying his views.