Vilification case studies

The neighbour was a male of Chinese heritage. Some of the instances were captured by video on a phone and were viewed at the hearing. Several witnesses gave evidence, including the neighbour’s partner. The woman and the man each blamed the other for hostilities between them. The tribunal said it was not its function to apportion blame or referee an ongoing dispute, and even if the man was the instigator of hostilities, it did not excuse racial or homophobic vilification.

The tribunal found that all the instances were public acts. Some had been heard and observed by other people and the remaining incidents occurred in outside areas and could be heard and observed by passers-by or neighbours.

The use of the word chink and the gestures, including spitting and pulling her eyelids to make her eyes appear slanted, referenced the man’s ethnicity, and on one occasion the comments referenced the man’s sexuality.

The tribunal said it is not necessary to prove that the words and gestures actually incited hatred, serious contempt, or severe ridicule, but it must be clear that they were capable of it. The tribunal was satisfied that the words and gestures in all incidents were capable of inciting severe ridicule of the man.

Although there was insufficient evidence to establish a serious psychological injury, the tribunal was satisfied that the hurt and humiliation that the man suffered, resulted in his work, study, and social functioning being significantly adversely affected.

The tribunal awarded compensation of $10,500.

Zhai v Kullack [2024] QCAT 56 (16 February 2024)

Summary: This was a complaint of racial vilification by a man who was originally from Germany who spoke English with a heavy German accent. It concerned racially based insults from an adjacent neighbour’s boundary.

The man had been out in a utility driven by his son and when they returned to the man’s home there was no space to park on the street, so they parked in the man’s driveway. The man walked to the footpath to check that his son had parked close enough to hedges that were just inside his property. The man claimed that at that time the neighbour’s son, who was standing with his father and brother in the front yard of the father’s property said, What are you looking at you f***ing German c***? The man said his younger grandson shouted back What did you say that for? and his older grandson shook his head.

The man and the neighbour’s son had not met or had any conversation before this incident, although the man had seen him visiting the property next door. About a month before the incident, the man had spoken with a woman who lived in the neighbouring property and she commented on the man being German. The neighbour’s son claimed he was not aware that the man had German origin and claimed that he called the man a vermin c***. The tribunal said the version given by the neighbour’s son made no sense whatsoever in context. His claim that the man was waving his arms around and being a pest was not supported by video evidence at the time.

The tribunal accepted that the neighbour’s son had used the words as claimed by the man, and said that the comments are insulting and pejorative in relation to the man being thought to be German. The tribunal considered the comments were capable of urging on, stimulating, or prompting to action the ordinary reasonable person to the requisite feelings of ill-will towards the man, and did in law amount to racial vilification.

In terms of whether the comments were a public act, the tribunal referred to cases where it was held that a statement to the public includes the possibility of a statement being overheard by or visible to passers-by, even if the act took place on private property. In this case the tribunal said the act was performed otherwise than in private because it occurred across a neighbourhood boundary and was capable of being heard, and was heard, between one property and another, and was capable of being heard in public by people on a public footpath or road.

The tribunal accepted that the racially vilifying words were highly insulting to the man and caused him to be hurt and humiliated, particularly in front of his son and grandsons who witnessed him being treated in this manner. The man felt intimidated and fearful for his safety and said he suffered anxiety and sleeplessness, and an inability to peacefully enjoy his home in the front yard area. The tribunal considered an appropriate award for a one-off remark of the present kind is $3,300 (inclusive of interest) and ordered the neighbour’s son to pay that amount to the man by way of compensation for racial vilification.

Huenerberg v Murray [2023] QCAT 175 (2 May 2023)

Summary: The Australian Muslim Advocacy Network (AMAN) is an organisation that works to safeguard the human rights of Australian Muslims by engaging with policy, research, media, and the law.

The Islamic Council of Queensland (ICQ) is the peak body that represents the interests of Muslims in Queensland. Its members are organisations consisting of mosques and community organisations and its services include media and advocacy, promoting cultural cohesion, and promoting inter-cultural dialogue.

AMAN and ICQ made a complaint of vilification to the Queensland Human Rights Commission. The Anti-Discrimination Act 1991 enables an entity that promotes the interests or welfare of people of a particular race, religion, sexuality, or gender identity to make a complaint about alleged vilification.

The respondent is a former Senator for Queensland in the Australian Parliament and founder of Fraser Anning’s Conservative National Party (since deregistered). He maintained a Facebook page and a Twitter account.

The complainants claimed that the respondent made numerous online remarks in material published online, including posts on social media, that incited hatred towards and serious contempt and/or severe ridicule of people of the Muslim faith.

For example, in March 2019 the respondent issued a press release about the shooting at a Mosque in New Zealand that was offensive to people of the Muslim faith. In April 2019 he posted an article that suggested Islam is synonymous with barbarism and savagery and demanded the murder of non-Muslims. The article attracted comments expressing hatred and contempt for Muslims.

The respondent made similar posts in April 2019 through to February 2020 and they also attracted comments expressing hatred and contempt for people of the Muslim faith.

The respondent failed to participate in a compulsory conference ordered by the tribunal and failed to provide an adequate reason for not attending the compulsory conference.

In default, the tribunal ordered that:

1. The respondent has committed unlawful vilification under section 124A(1) of the Anti-Discrimination Act 1991.
2. The respondent be restrained from committing further contravention of section 124A(1) of the Anti-Discrimination Act 1991 against persons on the ground of their Islamic religion.

The complainants sought orders requiring the respondent to remove material that had been posted online, and they provided details of numerous posts on social media and other online material that constituted vilification of Muslims.

The tribunal then ordered the respondent to remove, or cause to be removed, various online material that was set out in schedules to the orders.

Australian Muslim Advocacy Network & Islamic Council of Queensland v Anning [2021] QCAT 452 (17 September 2021)

Summary: An Indian student studying hospitality at a college was called a f***ing Indian , told to go back to your country , and called Rudi (which is insulting in Punjabi) by the head trainer. This occurred in front of other people including other trainers. After insulting the student the head trainer laughed and the other trainers also laughed.

The tribunal was satisfied the insults were public acts , and taking into account that the student was in a disadvantaged and powerless position with respect to the trainers, the mocking and derision amounted to severe ridicule which was extremely distressing for the student. The other trainers were actually incited by the insult to laugh at the student.

The tribunal also found the student had been racially discriminated against and victimised. He was awarded compensation for his pain, suffering, embarrassment and humiliation of $10,500 ($3,500 each for vilification, discrimination and victimisation) and the college was ordered to refund for fees for the courses of $22,787.

Singh v Shafston Training One Pty Ltd [2013] QCAT 8  (8 January 2013)

Summary: The woman in the case below was referred to over the CB radio as a dago , wog , slut , gypsy , and import . The man who made the comments was a friend of the man in the case below and had given evidence for him. This man also gave out the woman's address as a place to go for sex, and made many comments about f***ing her.

Using these words had the effect of inciting contempt for, or severe ridicule of the woman because of her race.

The tribunal said this case was more serious than the earlier case because it continued for a longer period and was more persistent. The woman was awarded compensation of $10,000 and the man was ordered not to racially vilify or sexually harass the woman.

Casey v Blume [2012] QCAT 627 (21 November 2012)

Summary: A woman who speaks with a strong accent (and was from the former Yugoslavia) was called wog , import , dago , truckie slut, and whore and told to go home over a CB radio channel. The woman obtained a Peace and Good Behaviour Order against the man who was making the comments. Shortly after the Order the man announced over the CB radio to give the woman as much sh*t as you like . The man also broadcast the woman's address as a place to go for sex, and men did come to her home looking for sex.

The tribunal said that words such as import used on their own may be racial vilification in the context of hostile, aggressive or abusive exchanges. The CB radio culture was highly racially and sexually abusive.

The tribunal found that the man had racially vilified and sexually harassed the woman, and that he had encouraged others to do so too. The woman was awarded $5,000 compensation for the pain and suffering she experienced.

Casey v Flanagan [2011] QCAT 320 (8 July 2011)

Summary: A transgender woman was woken late at night by yelling from the footpath outside her home. A group of people, including a neighbour, were calling out abuse such as You f***ing f****t, you have your f***ing d*ck in a jar .

The neighbour then wrenched a wooden paling from the fence and shouted Has anyone got a box of matches so we can burn the f***ing f****t's place down?

The tribunal found this form of gang-style violence constituted sexual harassment, vilification on the grounds of gender identity, as well as the offence of serious vilification, which is punishable by imprisonment or fine.

The woman was terrified and experienced anxiety and stress, and she continued to feel unsafe around her home.

The tribunal awarded compensation of $10,000 for vilification and $5,000 for sexual harassment.

Brosnahan v Ronoff [2011] QCAT 439 (16 August 2011)

Summary:

A same sex couple experienced ongoing verbal abuse from mother and son neighbours.

The tribunal found that some incidents amounted to sexuality vilification under the Anti-Discrimination Act 1991 as they were public acts that were clearly designed to incite hatred towards, serious contempt for or severe ridicule of the complainants on the ground of their homosexuality, including:

• They were called f*****ts to their faces, to their landlord and in circumstances where neighbours were potentially able to hear it.
• When Mr Wilson was in his driveway getting help from a mobile battery supplier, Mr Lawson peered over the fence and said ' Make sure those p**fs pay you. They have a habit of not doing that.' .

The Tribunal also found that some remarks amounted to sexual harassment as they were made with sexual connotations and with the intent of offending, humiliating or intimidating them, including:

• Mrs Lawson repeatedly described the complainants as f****ts .
• Mr Lawson referred to Mr Wilson and Mr McCollum repeatedly as princess (accompanied by a wolf whistle), as ladies and girls , and once as p**fs.

The Tribunal found that the use of the term wanker was not sexual harassment as it did not contain a sexual connotation.

Compensation of $9,500 and $11,500 was awarded to Mr McCollum and Mr Wilson, respectively for sexuality vilification and sexual harassment.

Wilson and McCollum v Lawson and Anor [2008] QADT 27 (6 November 2008)

Summary: The Gay Lesbian Bisexual Transgender Intersex Anti-Violence Committee Inc (GLBTI Committee) made a complaint of sexuality vilification. The GLBTI Committee is entitled under section 134(5) of the Anti-Discrimination Act 1991 (the ADA) to make a complaint of vilification, because its purpose is to promote the welfare and interests of gay, lesbian, bisexual, transgender, and intersex people.

A local newspaper published an edited version of a letter to the editor. It was headed P*****RS BEWARE!!! and included threat of physical violence to homosexuals at the beaches. The published version of the letter said that three posses of vigilantes were elected at a meeting of local residents and that homosexuals would be warned, told to leave, and they should do so. It also noted that the letter included threats that the editor was not prepared to print.

The complaint was made against the editor of the newspaper and the author of the letter.

The tribunal found that the publication of the article was a public act that had the capacity to incite the ordinary reasonable person to hate homosexuals.

The tribunal ordered that:

• each respondent make a published public apology, in words decided by the tribunal, in the Mission Beach Advertiser and another local paper; and
• the respondents pay the legal costs of the GLBTI Committee.

GLBTI v Wilks and Anor [2007] QADT 27 (30 November 2007)

Summary: Mr Peters worked as a drag queen, Tamara Tonite, and hosted a well known television show.

A debt collector attended Mr Peters' home. When Mr Peters refused to open his door the debt collector shouted abuse from the front of the home, calling Mr Peters a gutless wonder , a paedophile and saying that he would see him at the Wickham Hotel — well known gay hotel in Brisbane. Neighbours in the vicinity were likely to have heard what went on outside Mr Peters' house that morning.

The tribunal was satisfied that paedophilia is a characteristic often wrongly attributed to homosexual men. Together with the reference to the Wickham Hotel, the tribunal was satisfied that the comments were made on the grounds of Mr Peters' sexuality.

The tribunal decided that there was incitement, saying: I bear in mind that an accusation of paedophilia is a very serious accusation and one likely to cause serious damage to the complainant's relations with anyone who overheard it.

$3,000 was awarded to Mr Peters for his distress, after taking into account that Mr Peters had settled a claim with the respondent's employer at the Anti-Discrimination Commission.

Peters v Constance [2005] QADT 9 (23 May 2005)

Summary: A candidate in a federal election distributed a pamphlet that contained some of his opinions, which included views about the content of the Koran, and about people who believe in its teachings. It claimed that believers of the teachings of the Koran are prone to disobey the laws of Australia when they conflict with the teachings of the Koran, to the extent of being prepared to commit murder.

A complaint was lodged by Mr Deen who is a Muslim and the Chairman of the Islamic Council of Queensland. He applied for interim relief to prohibit further publication of the pamphlet.

The tribunal was of the opinion that the candidate had, by distributing the pamphlet (a public act), incited serious contempt for and hatred of Muslims as a whole.

However, the defence in section 124A(2)(c) applied. This defence provides that it is not unlawful to do a public act with the relevant tendency to incite, provided it is done reasonably and in good faith for a purpose in the public interest, including public discussion or debate and exposition of any matter.

The tribunal said :

It is plain that...the legislature did not intend to stifle debate, even acrimonious debate, upon matters of public interest and importance...even acts and publications that do indeed incite hatred, serious contempt and severe ridicule are to be tolerated provided certain conditions are met. One of those conditions is that the person acts in good faith.

The tribunal found that the candidate had produced and distributed the pamphlet in good faith. The pamphlet had been published by him in order to persuade electors, by a disclosure of his opinions, that he deserved their vote. The pamphlet was concise and had been written in moderate language, and there was no suggestion that it had been published or disseminated other than in the electorate.

The tribunal noted that the public has an interest in knowing the opinions of candidates, even when those views are unreasonable, unsupported, one-sided or even plainly wrong .

Deen v Lamb [2001] QADT 20 (8 November 2001)