John Sunol in NSW loses bid to throw out ACT tribunal case after publishing social media posts about homosexuality

John Sunol, who also describes himself as a homophobic bigot, published nearly 220 Twitter and YouTube posts that included "God has allowed Satan to bring the curse of COVID-19 to the word due to the wickedness of same-sex marriage and other gender based issues".

He also targeted a man and others, calling them a number of things, including mongrel, intolerant, authoritarian and Marxist.

Mr Sunol's barrister argued the posts reflected concerns and "love in the biblical sense", rather than hatred or contempt, for the people targeted.

Among the posts found to be vilification was a video in which Mr Sunol talks about how "same-sex marriage equals same-sex incest".

Another post had Mr Sunol saying "if you want to stop homophobia, you probably want to stop me as well because I'm a happy little homophobe living in my joy".

"I'm proud to be called homophobic and I'll encourage others to do the same," he said.

The man targeted in Mr Sunol's posts initially complained to the ACT Human Rights Commission in 2020, saying that based on the Discrimination Act 1991, the posts vilified him because of his homosexuality.

He also alleged Mr Sunol victimised him in some of the posts.

The commission referred the case to the ACT Civil and Administrative Tribunal.

The complainant also argued that Mr Sunol had breached confidentiality orders the tribunal had made.

Mr Sunol argued that the tribunal was prevented from having jurisdiction in the case because the commission made errors in its referral and because he resided in and uploaded the material in NSW.

He also cited the Constitution, arguing that section 116 provides that the Commonwealth shall not make any law "prohibiting the free exercise of religion".

During the tribunal proceedings, Mr Sunol identified his views as "the Christian faith" and the "Catechetical teachings of the Catholic Church on the point of homosexuality", which are said to be that "homosexuality acts are intrinsically disordered".

Mr Sunol argued that because he has freedom of religion and freedom of speech, his comments could not be vilification.

He also argued that there had been no detriment and therefore no victimisation.

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In a recent decision, tribunal senior member Robert Orr QC rejected Mr Sunol's arguments that the tribunal did not have jurisdiction to determine the case.

"This tribunal finds that the complaints were properly referred to ACAT by the commission and that ACAT has jurisdiction to hear them," Mr Orr said.

His reasoning also included that the posts were published in the territory and that the complainant was an ACT resident who read the posts here.

Mr Orr said he did not agree with Mr Sunol's freedom arguments, saying the use of political or religious language did not of itself prevent a statement from inciting hatred and thereby vilification or make it a reasonable discussion or debate.

Mr Orr found that only 23, or about 16 per cent, of the alleged vilification posts did amount to vilification.

He found none of the 73 alleged victimisation posts were found to be so.

Among the posts that were not deemed vilification, Mr Orr said some of them were driven by Mr Sunol's concern that Australia had allowed same-sex marriage.

"It is Mr Sunol and those who agree with him who seek to control but lack democratic support," Mr Orr said.

"In my view, the reasonable reader and listener would regard these statements, and Mr Sunol, as exaggerated and irrational."

Mr Orr said some of the posts were based on Mr Sunol's religious beliefs and others may be insulting or offensive, but they were not vilification.

In relation to victimisation, Mr Orr said section 68 of the Discrimination Act required that Mr Sunol subjected or threatened to subject the complainant to a detriment because the latter had taken or proposed to take discrimination action.

The senior tribunal member said Mr Sunol's posts - even those that are disrespectful, insulting or abusive - did not subject the complainant to a detriment and therefore not victimisation.

The next step in the proceedings include both parties serving further evidence about what orders the tribunal should make.

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