Garry Burns
Garry Burns is an Australian lawfare activist, serial litigant and LGBTIQA+ activist. He is known for complaints and litigation in relation to homosexual vilification, including against public figures such as Jeff Kennett, Bob Katter and Israel Folau. His cases have tested provisions of the New South Wales Anti-Discrimination Act 1977 and the jurisdictional limitation of tribunals.
Personal experience of hate crimes
In 1988, amidst a series of gay hate crimes across Sydney, three young people dragged Burns to the cliffs off Bondi's Marks Parks and threatened to throw him off for being gay. Burns stated that this experience, and other gay-hate crimes, have left him with post-traumatic shock disorder and motivated him to "ensure hatred and vilification are not part of the Australian psyche".Activism and public commentary
Burns has been one of Australia's best known LGBTIQA+ activists, receiving both praise and criticism for his advocacy.In 2010 Burns stated he would "throw a tantrum" outside Labor MP Kirsten Livermore's office if she did not address homophobia, following a Roy Morgan study that revealed 45% of her electorate thought that homosexuality was immoral. In 2013 he called on the NSW State Government to defund ACON after a rise in the states HIV infections. In 2014, Burns claimed that Ian Thorpe had kept his homosexuality hidden because of the fear of his fear of "losing huge sponsorship deals."
In response to Burns' litigation, in 2020 Mark Latham introduced a private members bill in NSW Parliament to change the way that complaints are handled by the anti-discrimination board. Latham stated in an interview to the Catholic Weekly that gay activists had been targeting Christians and other venerable people in the community through the anti-discrimination laws.
Australian Federal Elections
In the 2007 Australian Federal Election, Burns volunteered for George Newhouse, who was the Labor candidate in the seat of Wentworth, running against the incumbent and future Prime Minister, Malcom Turnbull. During the campaign, Burns allegedly verbally abused and intimidated Turnbull's wife, Lucy Turnbull. The following day, Burns sent an email to Malcolm Turnbull stating that there will be more angry homosexuals like Burns attacking Turbull in public because of his "fascist leader" John Howard, who Burns accused of treating gay people as second-class citizens. He described Turbull's wife as a "middle-aged well dress 'fag hag' impersonator of a wife" and Turnbull as a "weak and pathetic excuse for a human being. Burns was subsequently sacked from his volunteer position. In the 2010 Australian Federal Election Burns considered challenging Turnbull if someone provided him with the necessary funds. He criticised Turnbull for "poncing around the place wanting to become prime minister".Complaints and litigation
He has lodged over 100 complaints to the NSW Anti-Discrimination Board including 36 vilification or victimisation complaints against Queensland Senate Candidate Bernard Gaynor during a period of 32 months. Gaynor stated that Burns' actions caused his life to become "a living nightmare", and that it has resulted in over $300,000 in legal expenses forcing Gaynor to sell his house. In 2020 Burns stated that he had won around 62 out of 65 proceedings.The elements of homosexual vilification under NSW Anti-Discrimination legislation are that it is:
- A public act,
- That could incite hatred, serious contempt or severe ridicule towards a person or group,
- Because of the homosexuality of that person or group.
Burns v Dye (2008)
Arguments: Burns accused Dye of discriminatory behavior including multiple accounts of verbal abuse, homophobic graffiti and smearing faeces and urine by his front door. Dye acknowledged that he used the terms "faggot" and "poofter" in relation to Burns, but argued that they are part of popular vernacular as general terms of insult, rather than having a meaning exclusively related to homosexuality. The terms were likened to the use of "bastard" which previously referred to a person born outside of marriage, but has become a general insult.
Judgments: The Tribunal found that verbal abuse occurring in an open hallway constituted a form of public ''communication'' because it could be overheard by other residents and guests. However, it did not meet the required threshold for incitement because Dye was so visibly drunk he did not "enjoy any position of respect or influence". The Tribunal found that Dye had drawn a large penis on Burns' front door with the words "fag lives here, faggots should die", which breached anti-vilification law because it was considered public communication, and met the requirement for incitement because it promoted killing homosexuals. The depositing of faeces and urine on Burns' doorstep did not constitute vilification because even if it constituted public communication, it was not directly linked to Burns' sexuality. The Tribunal ordered Dye send a letter of apology to Burns and pay him $1,000.
A minority Tribunal member, Antony Silvia, argued that all allegations had been proven and that Burns should have been awarded $15,000. Burns stated that the judgement was a bittersweet victory. He said:
I'm a good person, I'm a decent person, I want to make society a better place for people. I don't want people put in boxes, put on the mantelpiece and knocked off by those who have hatred in their hearts.
Burns v Radio 2UE Sydney Pty Ltd (2003-2004)
Burns v Radio 2UE Sydney Pty Ltd (No 1)
Background: On June 2, 2003, 2UE presenters John Laws and Steve Price referred to two gay contestants of TV renovation show The Block as "poofs". They also complained that children would be able to see the program. Burns stated that he was so angry when he heard the program that he threw up. After the broadcast, he wrote a letter to Laws calling him a fascist, very unattractive, a right-wing reactional bigot, a creature of hate and Adolf. Burns stated that he sought a public apology and a $10,000 donation to a HIV/AIDS charity.Proceedings: During the proceedings Burns requested $40,000 in damages and a written apology in the Sydney Star Observer, the Sydney Morning Herald and The Australian. Burns was represented by the Public Interest Advocacy Centre.
Arguments: 2UE's lawyers tendered 43 pages of Sydney Star Observer articles which contained the word "poof" in a non-offensive way. Burns stated that the word is still offensive when used by those outside the gay family. He also stated that comments like "all interior designers are gay" presented "macho simplistic attitudes".
Judgement: The tribunal found that the remarks did not constitute severe ridicule themselves, but that they could incite severe ridicule in others. Radio 2UE was ordered to make a public apology on air and in three metropolitan newspapers, and pay Burns reasonable costs on a party-party basis.
The judgment also stated that a personal apology is not sincere if it is ordered by a court, but distinguished between a personal apology and a court-ordered apology. It stated that while a court-ordered apology is not an apology as understood in moral or social terms, it functions as an acknowledgment of wrongdoing rather than a statement of genuinely held feelings. This reasoning has subsequently be adopted and applied in other cases.
Burns v Radio 2UE Sydney Pty Ltd (No 2)
Background: In November 2004 2UE presenters John Laws called Queer Eye For the Straight Guy star Carson Kressley a "pillow biter" and "pompous little pansy prig". Laws said it was intended as tongue-in-cheek humor.Judgement: The Tribunal unanimously agreed that Laws' comments incited severe ridicule against homosexual men but that Laws was protected by free speech provisions in the Anti-Discrimination Act. A dissenting tribunal member, Ms Mooney, stated that the insulting tone and degree of harm the comments may cause was not reasonable, so she thought that Laws had not established a reasonable free speech defense.
Apology: Prior to the judgment, Laws apologised in a gay newspaper Sydney Star Observer for his comments. Burns described the apology as "limp-wristed". Laws also agreed to give air-time to the Lesbian and Gay Anti-Violence Project.
On the same day as Laws' apology, the Sydney Gay and Lesbian Mardi Gras office was vandalized with the words "pillow biters" and "pompous pansy prig" written in pink spray-paint. Considering the offices were newly established with no signage to identify Mardi Gras tenancy, The Star Observer stated that it could have been made by a member of the gay community to prove a point.
Channel Nine's Footy Show (2010)
Background: A segment appeared on Channel Nine's The Footy Show in a mockumentary style in which Matthew Johns had a brother Elton Johns who was gay, and his father took him back to the hospital saying "I want to return this, it's faulty".Judgment: The Administrative Decisions Tribunal found the skit was tasteless, offensive and unfortunate but that it did not incite hatred or sever contempt or serious ridicule of homosexuality.
Burns v Corbett and Burns v Gaynor (2012)
Background: In 2012, the Katter's Australia Party candidate for the seat of Wannon, Tess Corbett, stated that she did not want "gays, lesbians or paedophiles working in my kindergarten" and stated that "pedophiles will be next in line to be recognised with rights similar to gays and lesbians. Queensland Senate candidate Bernard Gaynor endorsed Corbett's statements and was suspended from Katter's Australia Party for saying he would not allow gay teachers to educate his children. In a submission to the NSW inquiry into anti-discrimination laws, Gaynor claimed he had received 37 complaints against him by Burns between 2014 and 2020. Burns stated:I'm like a vicious Rottweiler... I've got hold of his leg and I'm not letting go until the bones and blood are bareJudgement: NSW Civil and Administrative Tribunal. found Corbett had vilified homosexuals by her comments. She was ordered to apologise in writing to Burns and publish an apology to the gay community in the Sydney Morning Herald, but did not comply.
Injunction: Burns started proceedings in the NSW Supreme Court to require Corbett to comply with the previous orders, but the court stated that the tribunal did not have the jurisdiction to deal with Corbett or Gaynor because they were not in New South Wales.
Appeal: The matter was appealed to the High Court of Australia. The Gaynor case was conjoined to the Corbett matter. The appeal raised significant constitutional issues relating to the jurisdiction of a NSW tribunal on interstate acts. The appeal was unanimously dismissed, the court finding that chapter three of the constitution would be undermined if a state tribunal had the jurisdiction over acts interstate.
Burns was ordered to pay costs of over $81,000. Burns requested an ex-gratia payment from the NSW Government to cover the costs, which was refused. He subsequently set up a GoFundMe campaign to raise the money to pay the costs.