In April 2018 Mr Smith publicly commented on Mr Bernard Gaynor’s Facebook post regarding Mr Burns by writing:
“The same Garry Burns who is on the record advocating for paedophile rights, and acceptance of their practices in the rainbow world. This sick filthy piece of human filth needs to be put down, just like we do to sick animals…After all…it would be the humane thing to do.”
Mr Burns does not complain about that comment and it is then followed by posts from different people supporting Mr Gaynor, some of which explicitly refer to “Garry Burns”.
The Face Book discussion then turns to the subject of Israel Falou and Mr Burns joins the conversation to say, “That’s correct Norman Sim Elias. Mr Falou broke no anti-discrimination law with his statement.”
Posted with Mr Burns’ comment is a small photo of him. This is followed by a comment from another person saying, “Struth Good to see a photo of this excrement. Copy it and keep it folks – you can show your kids what such a person looks like…”
Following this Mr Burns reported Mr Smith’s post to the NSW Police Force and later sent a private Face Book message to Mr Smith stating that the intended to take legal action against for defamation because he published a comment on Mr Gaynor’s Facebook page that he was either a paedophile or condone or promote the criminal activity of raping children.
“My little brother at age eight was raped by a paedophile and committed suicide at age 17 when I was 19. I am seeking compensation. Your lawyer can contact me…to offer to retract the comments,” Mr Burns said.
After providing his telephone number Mr Smith contacted him, told him he would get nothing from him and threatened to smash Mr Burns’ head in.
Mr Burns contacted the police again to report the threat and the police responded by telling Mr Smith to only contact Mr Burns’ through his lawyer.
Mr Smith was later contacted by the Anti-Discrimination Board of NSW and responded to the Board that he didn’t mean to mention Garry Burns but Garry Dowsett and conceded that nowhere on the public record does Mr Burns advocate for paedophiles to be accepted into the gay and lesbian community.
Although Mr Smith apologised to Mr Burns the matter did not resolve at the Anti-Discrimination Board.
In ordering the payment of $10,000 for sexual orientation vilification, the Tribunal took into account the distress the comment caused Mr Burns, given the traumatic circumstances of his younger brother’s death, the fact Mr Smith’s comment did incite public hatred with following comments such as ‘good to see a photo of this excrement’ and that the comment did relate to Mr Burns’ sexual orientation as a known homosexual.
Vilification and the Equal Opportunity Act 1984
Although sexual orientation vilification is unlawful in NSW, it is not in Western Australia.
Sexual orientation discrimination is unlawful in most areas of public life in WA, however in openly public areas such as social media platforms, sexual orientation discrimination is not covered.
The Attorney-General has recently announced the Terms of Reference for the review of the Equal Opportunity Act 1984.
Included in the Terms of Reference is consideration for the need for any reform regarding the inclusion of vilification, including racial, religious, sexual orientation and impairment vilification.
To read more about Civil and Administrative Tribunal NSW decision.
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