POINTS OF CLAIM AGAINST JOHN LAWS

The complaint revolves around issues of incitement, vilification and harassment made by John Laws against queer identifying people in his attacks of Carson Kressley1.

COMPLAINT HISTORY

This complaint to the Anti-Discrimination Board comes at the end of a lengthy procedure to find a suitable remedy to this situation. It is our assertion that all external remedies were exhausted.
    A) 03/11/2004 - John Laws broadcast his comments about queer identifying people1.

    B) 08/11/2004 - Complaint submitted to 2UE regarding the comments on Commercial Radio Code of Practice Breaches2.

    C) 07/01/2005 – Initial complaint Information submitted to the (ABA)3.

    D) 18/01/2005 - Complaint Information submitted to the (ABA) with additional complaint participants4.

    E) 07/01/2005 - Australian Broadcasting Association (ABA) acknowledged receipt of our FAX5.

    F) 21/01/2005 - ABA notification of decision to investigate the complaint6.

    G) 01/02/2005 - 2UE responded to the original complaint7.

    H) 20/06/2005 - Applicant response submitted to the original ABA complaint 2UE response8.

    I) 29/06/2005 – ABA letter informing us of the progress of the application9.

    J) 20/07/2005 - Applicant clarification request sent on 29/06/2005 to the ABA10.

    K) 21/07/2005 - ACMA response to the clarification request sent on 20/07/2005 to the ABA11.

    L) 05/09/2005 - ACMA final ruling on the original ABA complaint 2UE response12.

We are unsatisfied with the finding of the ABA. We are submitting this complaint to the Anti Discrimination Board. The ABA doesn’t have the standard of investigative powers as a tribunal has and there is a substantively different set of requirements for a complaints’ burden of proof.

LEGISLATION

01) The anti-discrimination act 13 states that incitement of homophobic sentiment is a breach of that act.

    Anti-Discrimination Act 1977, s 49ZT
    Homosexual vilification unlawful
      i) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.
      ii) Nothing in this section renders unlawful:
        (a) a fair report of a public act referred to in subsection (1), or
        (b) a communication or the distribution or dissemination of any matter comprising a publication referred to in Division 3 of Part 3 of the Defamation Act fl174 or which is otherwise subject to a defense of absolute privilege in proceedings for defamation, or
        (c) a public act, done reasonably and in good faith, for academic, artistic, religious instruction, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter,

02) The section the anti-discrimination act 14 further broadly defines a ‘Public Act’.

    Anti-Discrimination Act 1977, s 49ZS, div 98
    In this Division:
    “public act” includes:
      (a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
      (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems & insignia, &
      (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the homosexuality of the person or members of the group.

CONTENT SUMMARY

03) Based on these two references to the act previous tribunals 15 have indicated that there are three aspects required to met to prove to prove incitement and vilification.

ISSUE REQUIREMENT Page No
Aspect 1 - PUBLIC ACT The event was a public act 2 4-5
Aspect 2 - INCITEMENT The act was one that incited its listeners towards action. The broadcast made the listeners privy to homophobic viewpoints, gave example 3 6-11
B) Artificial Division John Laws set up a division between the target and the audience separate out a section of society based on their homosexuality. 3-4 8
C)Spokesperson Status He articulated his own homophobic views on homosexuality. He also put himself forward as the unofficial spokes person of these Aussie male groups claiming he was channelling unarticulated collective homophobic ideology. He rationalized this by dividing his target from his listeners in the areas of:- A) Artificial Division By Stereotype B) Artificial Division By Profession 4 9
D) Encouraged Action He stated that he could not act but gave a breakdown of the type of abuse that someone would give if they were stooping to such a level. 4 10
E) Audience Reaction Several callers reacted to the Broadcast with sentiment sympathetic to the homophobic violence that this broadcast was inciting. There is also evidence that off-air violence was also perpetrated as a result of this incitement. 4 11-12
Aspect 3 - HATRED OR SERIOUS CONTEMPT The act incites hatred, contempt or ridicule of a person or group of persons. The extent of the severity can be witnessed by callers’ responses and acts perpetrated towards queer identifying people in the greater community. 5 13-15
A) Attacking Language Taking a stance that publicly proclaims inactivity towards the presence of homophobia. 5
B) Homophobic Vilification Presenting rationalising and legitimising homophobic sentiment 5
Aspect 4 - GROUNDS The act is on the grounds of the imputed homosexuality of the person and also a member/convener. 5 16-17
Aspect 5 – QUEER IDENTIFYING NATURE The applicant is a person of that sexual orientation and a member/convener of a group those function is to advocate and support members of that sexual orientation. 6 18-19

COMPLAINT REASONING

Aspect 1 - PUBLIC ACT

04) The ‘Public Act’ broadly defined in the anti-discrimination act 16 can be easily applied to John Laws Broadcast that was explicitly disseminated through the regular broadcast of his show.

05) The John Laws show was broadcast to a general audience. Whilst there is no way of knowing who was listening to the statement they didn’t constitute a private conversation in a normal speaking voice which would probably not be overheard by an intrusive ear even thought the statements were made on private lands. The fact that his statements were purposefully broadcast satisfies pervious tests 17 that differentiate private and public acts. The act did occur on private property but according to pervious cases 18 this doesn’t exclude it from being a public act as long as it is ‘capable’ of being overheard by the ‘passers’ in this case the average listener flicking through their radio station dial.

Aspect 2 - Incitement

06) Law’s broadcasted statements contravene the Anti-Discrimination Act 19. The act gives exceptions, but these exemptions clearly do not refer to this situation.

07) This complaint uses the ordinary English meaning of ‘incite’, namely, to ‘urge, spur on, stir up, animate; stimulate or prompt to action’. John Laws statements go beyond a simple conveying of hatred or express serious contempt or ridicule. The distinction between an act of incitement and conveying are discussed frequently in previous cases

08) Artificial Division

i) He presented a pre-conceived artificial division between people who identified as queer & those he identified as fair dinkum Australian blokes etc. his insinuation being that queer identifying people didn’t belong to any of these Aussie male stereotypical categories.

ii) He also went further to suggest that this division between straight & queer identifying people dictated what profession they held. He suggested that queer identifying people didn’t belong to the trucky, warfy & laborer groups.

09) Artificial Division By Stereotype

He presented a pre-conceived artificial division between people who identified as queer & those he identified as fair dinkum Australian blokes etc. his insinuation being that queer identifying people didn’t belong to any of these Aussie male stereotypical categories.

10) Artificial Division By Profession

He also went further to suggest that this division between straight & queer identifying people dictated what profession they held. He suggested that queer identifying people didn’t belong to the trucky, warfy & laborer groups.

11) Audience Reaction

The preponderance of authority is that the Anti-Discrimination Act 20 does not require proof of an intention to incite and that it is not necessary to prove that anyone was actually incited to respond in the requisite manner. The intent of Law’s broadcasted statements meant that it could the ordinary reasonable reader understand from the public act that he/she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of race. This therefore satisfies tests for actual intent of public acts set in previous cases 21.

12) Objectivity Test

The objectivity of the test vilification is taken using the ability for it to incite the “average person” rather than the sensitivity or reaction of the complainant. The assumption that historically oppressed minority groups may receive more public attacks, and therefore may be more sensitive to them, has been interpreted as irrelevant consideration on the question of the objective meaning of the public act 22 and furthermore any discussion of the social and historical context, within which the public act takes place, can only be discussed on appeal and only if the s 20C(2) exceptions are considered 23.

Aspect 3 - Hatred & Serious Contempt

13) The public act must be capable, in an objective sense, of inciting hatred towards, serious contempt for, or severe ridicule of, a person or persons. These words have been previous taken for their dictionary (extensively the Macquarie & Oxford dictionaries) meanings in pervious case 24 as follows

‘HATRED’ - ‘intense dislike; detestation’; ‘a feeling of hostility or strong aversion towards a person or thing; active and violent dislike’

‘SERIOUS’ -’Important, grave’; ‘weighty, important’

‘CONTEMPT’ - ‘the action of scorning or despising, the mental attitude in which something or someone is considered as worthless or of little account’; the feeling with which one regards anything considered mean, vile, or worthless.

‘SEVERE’ - ‘rigorous, strict or harsh’; ‘harsh, extreme’

‘RIDICULE’ - ‘subject to ridicule or mockery; make fun of, deride, laugh at’; ‘words or actions intended to excite contemptuous laughter at a person or thing; derision’

Law’s broadcasted statements were inherently designed for hatred towards & serious contempt of queer identifying people.

A) Derogatory & Insulting Language

Taking a stance that publicly proclaims inactivity towards the presence of homophobia.

B) Homophobic Vilification Presenting, rationalising and legitimising homophobic sentiment.

C) Artificial Division by Male Group Stereotype

He presented a pre-conceived artificial division between people who identified as queer & those he identified as fair dinkum Australian blokes etc. his insinuation being that queer identifying people didn’t belong to any of these Aussie male stereotypical categories.

D) Artificial Division by Profession

He also went further to suggest that this division between straight & queer identifying people dictated what profession they held. He suggested that queer identifying people didn’t belong to the trucky, warfy & laborer groups.

14) Serious and Severe

Use of the words "serious" and "severe" calls for an evaluative judgment within a broad discretion according to cases 25.

15) ‘Serious’ Classification in Context

Even a brief analysis of the statements made by John Laws would be interpreted to cause ridicule and contempt and are therefore a breach of the act. The degree to which the comments cause such attack is a matter of judicial discretion. It is important to note that John Laws uses the words “serious” in the preliminary address of the attack, when catergorising the gravity of the discussion.

Aspect 4 - Grounds

16) The inciting comments must be aroused on the ground of the homosexuality of the person or group of persons said to be vilified by the public act. Homosexuality must be ‘a substantially contributing factor’ or ‘an operative ground’ of the incitement as in previous cases 26.
17) Law’s broadcasted statements alone specifically target contempt for queer identifying people and indicate that there are any sufficient and/or equally consistent grounds for the incitement 27. It is not sufficient if there are other, equally consistent, grounds for the incitement, given that s 4A of the AD Act does not apply to the vilification provisions 28.

Aspect 5 – Queer Identifying Nature

18) CAAH, Community Action Against Homophobia is a queer rights advocacy collective that was established since the end of 2000. Whilst having large queer community membership and participation the group also encompasses a large sector of the queer identifying student community. The aims, objective and campaigns are detailed on the web site of the group (www.caah.org). The group advocates, presents and campaigns to ensure that queer identifying people are treated with equality and have an avenue to vocalize their thoughts and opinions. As well as being a collective of independent queer rights advocates it is also an amalgamation a representatives from numerous other queer rights representative groups including

NON-STUDENT GROUPS

New South Wales (NSW)
  • Greens Queer Group – LGBTI (Lesbians, Gays, Bisexuals, Transgender and Intersex) Group
  • Socialist Alliance Queer Group

External to NSW

STUDENTS GROUPS
  • NSW State Branches of Student Representative Associations
  • NUS (National Union of Students) – NSW QSN (NSW Queer Sexuality Network)
  • CAPA (Council of Australian Postgraduate Students) Queer Committee – PERQ (Postgraduate Eastern Region Queers)
New South Wales (NSW)
  • Charles Sturt University (CSU) – SAME (Sexuality Awareness Means Equality)
  • Macquarie University (UMac) Queer Groups – GLAMOR & LAMU
  • Newcastle University (UNew) Queer Groups
  • University of New South Wales (UNSW) Queer Groups – QueerPlay
  • University of New England (UNE) – AquA (Armidale Queer Association)
  • Sydney University (USyd) – SUPRA (Sydney University Postgrad Association) Queer Collective & QuAC (Queer Action Collective)
  • University of Technology, Sydney (UTS) – OUTS Action Collective & OUT2Party
External to NSW
  • University of Melbourne (UMel) – PRIDE
  • University of South Australia (SAUA) Queer Group
  • University of Western Australia (UWA) Queer Groups
  • LaTrobe University (LaTrobe) Queer Group
19) Individuals taking part in the complaint, like the constituency of CAAH, are all queer identifying 29. The attacks were targeted at queer identifying people. The attacks are therefore of sufficient targeting of the complainants to warrant their concern for the ill feeling that they can engender towards them and other queer identifying people. CAAH as a group is specifically set up to function as the advocacy and services group for queer identifying people and therefore an attack on queer identifying people is an concrete attack on the aim, objects and functionality of the group and groups that some it its constituents represent.


1 John Laws ”Laws says at the Melbourne cup there was a pompous poof telling Australians how to wear their pocket square. Laws asks: what does this pompous little pansy know about judging girls?” (3 November 2005) 2UE ID: S00015731160 [see document A]
2 Simon Margan, “Commercial Radio Code of Practice – Listener Complaint Form” (8 November 2004) [see document B]
3 Simon Margan, “Group Complaint Form” (07 January 2005) [see document C]
4 Simon Margan, “Complaint Information (additional complainants)” (18 January 2005) [see document D]
5 Australian Broadcast Association, “Complaint – 2UE” (7 January 2005) File Ref: 2005/0001 [see document E]
6 Australian Broadcast Association, “RE: 2UE John Laws Shows 3/11/04” (3 January 2005) ABA File Ref: 2005/0153 [see document F]
7 2UE, “Comments by John Laws on 3 November 2004” (1 February 2005) [see document G]
8 Simon Margan “Supplemental Information to 2UE Response” (20 June 2005) [see document H]
9 Australian Broadcast Association, “Investigation: John Laws Show 3/11/04” (29 June 2005) ABA File Ref: 2005/0153 [see document I]
10 Simon Margan, “Clarifications on John Laws Complaint” (20 July 2005) [see document J]
11 Australian Communications and Media Authority, “Investigation: John Laws Show 3/11/04” (21 July 2005) ABA File Ref: 2005/0153 [see document K]
12 Australian Communications and Media Authority, “Re: Investigation: John Laws Show 3/11/04” (5 Sept 2005) ABA File Ref: 2005/0153 [see document L]
13 Anti-Discrimination Act 1977 (NSW) s 49ZS
14 Anti-Discrimination Act 1977 (NSW) s 49ZT
15 Z v University of A & Ore (No 7) [2004] NSWADT 81(29 April 2004) & Burns V Dye [2002] NSWADT 32 (12/03/2002)
16 Anti-Discrimination Act 1977 (NSW) s 49ZS (1& 3)
17 Kimble V Souris [2003] NSWADT 49
18 R V Ashley (1991) 77 NTR 27 (at 30) & Kane V Church of Jesus Christ Christian Aryan Nations (No3) (1992) 18 CHHR 268
19 Anti-Discrimination Act 1977 s49ZT (1)
20 Anti-Discrimination Act 1977 s49ZT (1)
21 Veloskey & Ancor V Karagiannakis & Ors [2002] NSWADTAP 18 (at 26 and 28)
22 A) Veloskey & Ancor V Karagiannakis (especially at 21) & Ors [2002] NSWADTAP 18
B) John Fairfax Publications
23 Kazak v John Fairfax Publications Ltd
24 A) Harou-Sourdon v TCN Channel Nine Pty Ltd [1994] EOC 92-604
B) Wagga Wagga Aboriginal Action Group v Eldridge [1995] EOC 92-701
C) R v D & E Marinkovic [1996] NSWEOT (19/9/96)
D) Hellenic Council of NSW v Apoleski and the Macedonian Youth Association [1997] NSWEOT (25/9/97)
E) Kazak v John Fairfax Publications Ltd [2000] NSWADT 77
F) Western Aboriginal Legal Service Ltd v Jones & Anor [2000] NSWADT 102
H) Anderson v Thompson [2001] NSWADT 11
I) Burns v Dye [2002] NSWADT 32
J) Malco & Ors v Massaris & Ors [1998] NSWEOT (12/2/98)
K) Veloskey & Ancor V Karagiannakis (especially at 21)
L) Ors [2002] NSWADTAP 18; John Fairfax Publications
M) Pty Ltd V Kazak (EOD) [2002] NSWADTAP 35
N) Z v University of A & Ors (No 7) [2004] NSWADT 81(29 April 2004)
O) Burns V Dye [2002] NSWADT 32 (12/03/2002).
25 Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556
26 O’Callaghan v Loder [1984] EOC 92-023 (at 75 & 499); Waterhouse v Bell (1991) 25 NSWLR 99 (at 106)
27 Veloskey & Ancor V Karagiannakis & Ors [2002] NSWADTAP 18 (at 30) (27 June 2002)
28 Kazak v John Fairfax Publications Ltd [2000] NSWADT 77; Western Aboriginal Legal Service Ltd v Jones & Anor.; Burns v Dye.
29 See template consent form attached (filled in consent forms from the rest of the applicants are pending)