Menzies v Owen [2014] QCAT 661

History of litigation

This was a complaint of sexuality vilification that was originally upheld by the Anti-Discrimination Tribunal. See Menzies & Ors v Owen [2008] QADT 20 (19 September 2008).

It was set aside by the Supreme Court on the basis the tribunal had erred in effectively deciding a constitutional issue raised by the respondent. See Owen v Menzies & Ors [2010] QSC 387 (18 October 2010).

In a case stated, the Court of Appeal determined that:

  • The vilification provision did not offend the implied freedom of political expression.
  • A bisexual could have standing to bring a complaint of sexuality vilification; and
  • QCAT is a court.

See Owen v Menzies; Bruce v Owen; Menzies v Owen [2012] QCA 1170 (22 June 2012).

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Final decision from QCAT

By the time the complaint was returned to QCAT, two of the four original complainants had dropped out of the proceedings, and the remaining two complainants had abandoned their claims for compensation.

Three out of the six acts complained of were found to constitute sexuality vilification, and the respondent was ordered to make a genuine private apology and retraction to the complainants.

The respondent was a councillor on the Cooloola Shire Council. He denied that he had vilified the complainants in contravention of the Anti-Discrimination Act 1991 , and that even if he had, he was entitled to the defence or exception in section 124A(2) of a public act, done reasonably and in good faith, for ... purposes in the public interest .

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Test for act done reasonably

The tribunal said the question of what section 124A(2)(c) contemplates as done reasonably is to be judged by the standards of a contemporary, educated community which is appreciative and respectful of the dignity and worth of everyone. See paragraph [25].

Test for good faith

The tribunal referred to a decision of the former Anti-Discrimination Tribunal in Deen v Lamb [2001] QADT 20 and to a decision of the Victorian Supreme Court in Catch the Fire Ministries v Islamic Council of Victoria Inc (2006) 15 VR 207, and said the test is whether the conduct was engaged in with the subjectively honest belief that it was necessary or desirable to achieve public discussion of matters in the public interest. See paragraphs [19] to [23] and [66].

Test for purposes in the public interest

The tribunal said the reference to a purpose in the public interest in section 124A(2)(c) should bear its ordinary meaning of affecting the public at large. See paragraph [26].

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Acts complained of and findings of the tribunal

1. Bumper sticker

The respondent was an occasional driver of a vehicle with a bumper sticker stating: Gay Rights? Under God's law the only rights gays have is the right to die (Lev.20:13) . In the absence of evidence that the vehicle was owned by the respondent the tribunal was unable to find that he engaged in any public act as contemplated by section 124A of the Act.

2. Comments at council meeting

At a council meeting, it was reported in the Gympie Times newspaper that the respondent said in response to a question That's because I probably don't class the gays as being human . The respondent denied saying those words and the tribunal was not satisfied he said the words complained about.

3. Report to council

The respondent wrote a report and tabled it at a council meeting. The report referred to homosexuals as sodomites , saying they prey on children and should not be allowed anywhere near schools etc. The tribunal found the report had the capacity to urge ordinary members of the public to hate homosexuals or to hold them in serious contempt. The report was not done reasonably and in good faith for public discussion or debate. The report contained matters that were so ill-informed and ignorant as to go beyond the bounds of what tolerance should accommodate.

4. Channel 7 interview

In a television interview the respondent questioned whether our health services can cope with the sodomites epidemic , and said homosexuals are going to die shortly, and AIDS is pretty prevalent. The tribunal said the words lacked the capacity to incite, and it was difficult to see the respondent had done anything other than express his own personal contempt for homosexuals. The words I believe and I think anchored the statements as personal opinion rather than being cast in a way that urges others to adopt the respondent's views.

5. Newsletter

The respondent distributed a pamphlet to his constituents which he said was his version of events at the council meeting (referred to above). The newsletter referred to sodomites throughout, which the tribunal said evidenced the respondent's contempt for homosexuals. By seeking to convince his constituents of the reasonableness of his views, in reality the respondent was asking them to adopt the same contempt for homosexuals that he feels. In applying an objective test by the standards of a contemporary, educated community appreciative and respectful of the dignity and worth of everyone, the respondent went too far in expressing his belief. The distribution of the newsletter was not done reasonably. Debate in the public interest was not the respondent's primary motivation and the newsletter was not published in good faith.

6. Website

The respondent wrote a letter titled No Human Rights for Non-Humans which was posted on his two websites lockstockandbarrel and owenguns . The respondent said he didn't load the letter to the websites and didn't know they were there until the complaint, and he then asked for them to be taken down. The tribunal found that the respondent had control of the websites, and by the way he allowed the websites to be managed he had caused or allowed the letter to be published on the websites. The letter was lengthy and included statements to the effect that homosexuality is a breach of the law of nature, homosexuals should be destroyed or killed by a community, they steal children and induce children to prostitute themselves, tolerance of homosexuals in the law will destroy families, and the Koran's imposition of a death sentence on homosexuals is good. On the basis of the highly inflammatory language and offensive imputations, publication of the letter was not an act done reasonably.  Because he claimed not to know the letter was published, it could not be the case that he had a subjectively honest belief that publishing the letter on the internet was necessary or desirable to achieve public discussion of matters in the public interest.

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Comparison with original findings

The Anti-Discrimination Tribunal Queensland found sexuality vilification occurred in respect of the bumper sticker, the report to council, some of the comments during the channel 7 interview, and the website. The respondent was ordered to pay $5,000 to each of 2 complainants, to pay $2,500 to a third complainant, and to make a public apology. A bisexual complainant was held not to have standing.

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Access published decisions

Published decisions of the former Anti-Discrimination Tribunal Queensland, the Queensland Civil and Administrative Tribunal Queensland, the Supreme Court of Queensland and the Supreme Court of Queensland, Court of Appeal are available through the AustLII website.

Access decisions from the AustLII website

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