Anti-gay comments vilification but not bashing, tribunal finds

A leading gay rights activist will launch an appeal against a recent tribunal decision that found a man who had shouted “I am going to eradicate all gays from Oxford Street” guilty of vilification for verbally abusing him but not over a vicious bashing a few days later that left him with serious injuries.

The case has led to calls from legal experts for an overhaul of Australia’s vilification laws while the man involved has been ordered by the Administrative Decisions Tribunal (ADT) to take out an advertisement in the Star Observer within the next 28 days apologising for his actions. In part the apology will read: “I acknowledge that the words that I used vilified homosexual men in breach of the NSW Anti-Discrimination Act 1977. The aim of this act is to promote tolerance, understanding and acceptance in the community.”

Simon Margan, the Oceania representative for the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), told the Star Observer this week he was simply putting up posters for marriage equality on Oxford Street in early August 2010 when Danny Manias, then 34, began to follow him along the well-known LGBTI strip.

According to statements filed with the ADT, Manias then yelled: “I am going to eradicate all gays from Oxford Street!” and “Do not worry I am doing good work!’ before claiming “There are wicked things taking place on Oxford Street!”

In the decision handed down earlier this month by a three-member panel of the ADT it was found those comments incited, or were capable of inciting, “hatred or serious contempt of homosexual men”. The ADT awarded Margan $1,000 for harm caused.

A week later, on August 9, Margan was again on Oxford Street when Manias confronted him, hit him in the eye and repeatedly kicked him in the head. The assault was one of five committed by Manias in a short period of time on Oxford Street on the day for which he was later sentenced to 18 months imprisonment.

Margan was left with a fractured eye socket that has continued to impede his vision, and has suffered other symptoms consistent with post-traumatic stress disorder and a possible brain injury. The ADT, however, found the bashing did not constitute serious vilification as Manias did not make anti-gay comments during the unprovoked attack itself.

“At the time when he committed the five assaults for which he was convicted on his plea of guilty, Mr Manias said nothing that might have encouraged onlookers to view favourably what he was doing or that might in any other way prompt them to have negative feelings towards homosexual people,” the tribunal stated.

Margan told the Star Observer he intended to shortly launch an appeal against the decision as he felt serious vilification did occur during the assault.

“The assault has to be taken into context with the statements taken around it. I think they (the ADT) divorced the intentions of the assault from the assault they were analysing – that was a major hurdle for the case,” he said.

“They didn’t want to take into context the fact that it was happening on Oxford Street or the comments that were made a few days before.”

Dr Alan Berman, a senior lecturer in Law at the University of Newcastle and author of Speaking Out – Stopping Homophobic and Transphobic Abuse in Queensland, told the Star Observer there was a very real need for law reform in the area as time constraints and other restrictions on reporting vilification meant many incidents were never reported in the first place.

“There has never been an instance in Australia which an individual has been found guilty of severe or serious vilification resulting in the imposition of criminal penalties because the process for referring such cases for prosecution is so cumbersome,” he said.

“Unfortunately, the anti-vilification legislation in all jurisdictions in Australia lack teeth.”

The ADT’s judgement has set one important precedent, however, as it suggested a significant amount of compensation would be due to Margan if it was found vilification did occur during the bashing.

“If somebody does make homophobic comments while they are beating somebody up, that is now pursuable by ordinary vilification legislation,” Margan said. “I think that will help others who were in a particular situation similar to myself but where homophobic statements are articulated at the same time.”

INFO: Read the full judgement here.