Equal Opportunity Tribunal of New South Wales CITATION: R -V- .D & E Marinkovic [1996] NSWEOT COMPLAINANT: R RESPONDENT: D and E Marinkovic NUMBER: 124 of 1995 Mr D Bitel ( Judicial Member ) TRIBUNAL: Ms M Alt (Member) Ms D Toltz (Member) GROUNDS OF COMPLAINT: Homosexual and HIV/AIDS Vilification DATES OF HEARING: 08/21/1996 DATE OF JUDGMENT: 09/19/1996 Complainant: Ms J Cabassi (Solicitor) Inner City Legal Centre LEGAL REPRESENTATIVES: Ms S Winters (Counsel) Respondent: Self Represented JUDGMENT IN FAVOUR OF: Amendment to the apology of the judgment handed down on 19 September 1996 "apologise unreservedly to the complainant known as R for my speech and conduct which has been found by the Equal Opportunity Tribunal to constitute vilification in contravention of the Anti-Discrimination Act during the period." 1. THE FACTS This is the first complaint to come before the Tribunal under Division 4 Part 4C and Part 4F of the NSW Anti-Discrimination Act. Broadly, these provisions make it unlawful for a person to vilify another on the basis of homosexuality or because the other is or is thought to be HIV/AIDS infected. The proceedings were commenced by the Complainant following unsuccessful attempts by him to resolve the problems he was experiencing with his neighbours. The Complainant is a single man born on 20 March 1970. He left school at the age of 15 and came to Sydney some years later. He admits quite openly to being a homosexual person and also admits that at all material times he has been infected with the Human Immunodeficiency Virus. On 20 December 1993 he moved into a unit in Surry Hills managed by the Department of Housing. The Respondents, a husband and wife, though now separated, lived in the same block of units directly above the Complainant's unit. The Complainant filed in support of his complaint an affidavit dated 11 January 1996 and gave further oral evidence at the hearing on 21 August 1996. As neither of the Respondents appeared at the hearing and presented no evidence in opposition to that provided by the Complainant, the Tribunal provides the following summary of the relevant history of the complaint which was uncontradicted by the Respondents and which the Tribunal accordingly accepts as accurate. Within about four weeks of the Complainant moving to live at his unit on or about New Year's Eve 1993/94, whilst friends were visiting the Complainant's unit, the Complainant heard a male and female voice with an accent yelling over the balcony from the flat above words to the effect, "Turn the music down, you fuckin' poofter!" As the Complainant did not have any stereo or anything that produced music and as he could hear the music coming from his neighbour's unit on his western side, he did nothing. He subsequently became aware that the voices heard were those of the Respondents. The Complainant then went to the balcony and yelled upstairs words to the effect "It's not us, it's next door, check your facts first." He then heard both Respondents yell out the words "Bloody poofter". He walked back inside his unit and closed the balcony door. Sometime later that evening, two male police officers in uniform came to his unit and asked whether music was coming from his place. They inspected his unit and found no music being played and left. He saw them go to the next unit on his floor, and speak to the person who lived there. Several days later, he was walking home by himself. He was about one block from his unit when he saw and heard Mr Marinkovic yell from the balcony, "Gay faggot!" He said nothing but observed that Mrs Marinkovic was with her husband on the balcony. Several days later, whilst watching his television, he heard some noise coming from the direction of his balcony. He ignored it for some time and then went to his balcony and observed about 3 soiled baby's nappies lying there and about 2 oranges splattered on the floor of the balcony. He assumed the articles had been thrown from the flat of Mr and Mrs Marinkovic as they had a young baby. He subsequently went to the Department of Housing office for the housing complex and made a formal complaint. He also complained to his doctor, Dr Maria Yates of the Albion Street Centre. The following day, after being advised by another neighbour, Ms Rachel Johns, words to the effect "Mr and Mrs Marinkovic complained about loud music from this level and they think that it came from your unit", he submitted an application to be rehoused with the Department of Housing office. The application was dated 4 January 1994 and he produced a supporting letter from Dr Yates. Over the following weeks, he heard both Mr and Mrs Marinkovic separately and together say to him in loud voices the following words: "We'll kick your head in", "I'll break your leg", "motherfucker", "I don't want faggots living near my baby", "AIDS ridden cunt", "you scum, you don't deserve to live on this earth". He recalls the last 3 comments being made by Mrs Marinkovic as she was leaning over her balcony and whilst the Complainant was talking to a friend, Jim Meek, now deceased. It appears that Mr Marinkovic continued to accuse the Complainant of playing loud music. The Complainant gave evidence to the Tribunal that he was not in the habit of playing loud music and that he had no music equipment in his premises during the period that he lived in the flat, and that he had advised the Respondents accordingly. The Complainant cannot recall the circumstances of all the different occasions when he was verbally abused by the Respondents. However, he states he received the abuse and threats on the average about 2 or 3 times each week during 1994 until 30 November 1994. He called the police twice to complain about the behaviour of the Respondents towards him without this achieving any satisfactory resolution of his concerns. In February 1994 he again sought the assistance of his doctor to obtain rehousing and letters from Dr Maria Yates and Dr Torda dated 17 February 1994 were forwarded to the Department of Housing. However, he was not rehoused. Dr Yates' letter reads "I would like to bring to your attention my patient's concern with his neighbours. There is persistent difficulty and he has called for police assistance on more than one occasion. My patient's illness and stress related to his HIV infection, which has progressed to Stage IV, is more than enough concern for him without the additional stress of difficult environment. I would be grateful if you could consider him for alternate accommodation with more secure surroundings whilst maintaining his access to specialised medical attention. Thank you for a hasty attention to this issue." The Department appears unfortunately to have ignored this request. As a next attempt to resolve his problems, the Complainant contacted the Sydney City Community Justice Centre on 28 February 1994. A succession of letters were sent to the Respondents by the Centre on 28 February 1994, 8 March 1994 and 18 March 1994. However, the Respondents appear not to have responded and in any event the Complainant heard nothing and the harassment of him continued. Later in 1994, he made a further attempt to solve the dispute with the assistance of the Community Justice Centre without success. He then contacted the Chamber magistrate on 18 October 1994 and 9 November 1994. Far from achieving a resolution, the last letter appears to have goaded the Respondents into yet another hostile act against the Complainant. One afternoon in November 1994, he came home and found a letter to the Respondents from the Community Justice Centre attached to the front of his front door by sticky tape. The letter read: "Dear Occupier, In the last few weeks we have written to you twice offering to mediate in your dispute with Mr [B] (name deleted). We have informed Mr [B] that we have had no reply to our letters and to consider taking appropriate action through whatever other channels may be appropriate. The offer of our service remains open. If you wish to reconsider, please feel free to call us on 268 3133. Yours sincerely" The letter had handwriting on it as follows - the words: "Filthy bastard", "can't you read English, faggot (b) (the applicant's surname)", "you are a disgrace to society so stick this letter where the sun doesn't shine, otherwise you'll cop it, idiot." In one of the two places where his name is mentioned, the name is crossed out and handwritten above it is the word "Faggot". The door on which the letter was stuck was in a corridor that is used by other residents in the building and by members of the public. The Complainant does not know how long the letter had been stuck to the door but assumes it had been left there for some hours. He took the letter down and put it in the mail box on his level for the Respondents' unit and then returned to his unit. The next morning he found the letter pushed under his front door. It was in the same terms as it had been the previous day with no extra words written on it. The Complainant then made contact with the Anti Discrimination Board and filed a complaint dated 22 November 1994. He also contacted the Chamber Magistrate and signed an apprehended violence complaint on 25 November 1994. On 30 November 1994 an order was made against both Respondents by a Magistrate at the Downing Centre Local Court directing that for 12 months both Respondents "not engage in conduct which intimidates the Complainant or any person with whom he has a domestic relationship, not to stalk the Complainant, not to assault, intimidate, threaten, molest, harass, otherwise interfere or stalk the Complainant and not to contact him by any means whatsoever". The Respondents ignored correspondence forwarded to them by the Anti-Discrimination Board in relation to the complaint filed. After the order was made and notwithstanding its terms, the Respondents continued to harass him. He estimates this occurred perhaps once a month and occurred whilst he was walking in the street as well as whilst he was in the units. He gave evidence that the abusive comments made usually referred to his homosexuality and HIV status. On 26 July 1995 at about 4.15 pm, the First Respondent came up to the Complainant and in a very threatening manner said, "If you don't keep your music down, I'll break your fucking neck and I'm gonna call the police and have you arrested. You only have about 6 months to live." The Complainant filed a complaint to the police about this event which occurred in the presence of a witness, Rachel Johns. On 31 August 1995, the First Respondent went to Downing Centre Local Court on a charge of breaching the Apprehended Violence Order against him and was convicted and fined $100.00. The Complainant was clearly very hurt and distressed by the conduct of the Respondents. In oral evidence he indicated that he did not feel like going out or socialising and mixing with other friends. He just stayed home and wanted to be left alone. He indicated that the events stressed him right out, caused him sleeplessness and encouraged him to take anti-depressants. He was upset that he received no support from the Department of Housing. Finally, in January 1996, he was able to secure a transfer to different premises in another city, but he no longer has a ground floor flat and is removed from the medical assistance he was previously receiving. In support of the application, the Complainant produced a medical report from Dr Kate Schroeder; which was tendered, and which notes: "Mr R [name deleted in accordance with suppression order] first attended the Albion Street Centre on 16 September 1992. He was found to be HIV antibody positive in January 1990, having tested negative three months earlier. On initial presentation to the clinic, his absolute CD4 lymphocyte count was 280 cells/mm3 (20%). The normal range of values for this measurement is 700-1200. A count of this level represents moderate immunosuppression. Between September 1992 and January 1993 he was seen on 8 occasions by Dr Richard Dean. His predominant medical concern during this time was a persistent fungal skin condition, for which he also consulted a dermatologist. His CD4 count fluctuated between 220 cells/mm3 and 340 cells/mm3. He was offered Zidovudine as anti-retroviral therapy but declined. He was classified as having CDC Group II disease. Between April 1993 and April 1994, he was seen by Dr Maria Yates on 13 occasions. During this time he continued to receive treatment for his skin condition. In addition, he underwent investigations for recurrent urinary tract infections and was found to have a mild abnormality of the renal tract which was presumed to be congenital. His CD4 count continued to fluctuate considerably between 210 and 330. Mr R first reported concerns about his housing situation to Dr Yates in January 1994 when a letter supporting his application for housing transfer was requested. He reported that he was having problems with his neighbours and that it was causing him considerable stress. At this time, Dr Yates noted that he had developed some oral candidiasis. This represented his first category IV diagnosis (defined by the CDC, Atlanta), and suggests progression of HIV disease and immune function deterioration. Dr Yates sent a letter in support of his housing transfer on 4 January 1996, and again on 17 February 1996. I first saw Mr R on 21 September 1994. He had recently developed acute Hepatitis C but was otherwise well. There is no evidence of further deterioration in his immune function at this stage. However, he did report feeling depressed and requested a further letter in support of his housing transfer as he was continuing to have problems with his neighbours. Over the next 16 months, I saw Mr R on 16 occasions. In May 1995, he was commenced on a course of intramuscular decadurabolin because of weight loss. On 26 July, 1995 he reported feeling stressed and on 8 August, 1995 again expressed concerns about his housing conditions. At this time he was referred to a psychologist for counselling. He stated he was experiencing discrimination from his neighbours, and having problems coping with his situation. He was seen again on 27 September 1995 when he described feeling very depressed. He reported to have admitted to a psychiatric ward in a hospital in Newcastle the previous week because he had been feeling suicidal. He was prescribed an antidepressant, Moclobemide on this occasion. He also stated that he had been assaulted 4 days earlier and had a broken nose. Around this time, Mr R moved to Newcastle and attended the John Hunter Hospital. He underwent a rhinoplasty and saw Dr M Boyle, a consultant immunologist. On two occasions in October 1995, once at John Hunter Hospital and once at the Albion Street Centre on 23 October 1995, Mr R had CD4 count measurements performed which were 190 cells/mm3. This was the first significant drop in his count, representing deteriorating immune function and suggesting disease progression. At this time, Mr R was under considerable stress with his persisting housing concerns and the recent assaults. Indeed, he required respite admission to Sacred Heart Hospice on 24 November 1995. In summary, Mr R has been under considerable stress since January 1994, largely as a result of his housing situation and the difficulties he has had with his neighbours. As a result of this situation, Mr R has suffered depression, requiring medication and admission to hospital, and had difficulty coping. Mr R has had HIV infection since 1989. He progressed to stage IV disease in January 1994, and developed severe immunosuppression (as represented by a CD4 count of less than 200) in October 1995. Although there are multiple factors which influence disease progression in HIV infection, there is evidence to suggest that psychological stress has an immunosuppressing effect. In Mr R's case, the considerable stress that he has suffered as a result of harassment and discrimination from his neighbours is likely to have had a detrimental effect on his health, both directly on his immune system and also indirectly because he has been unable to concentrate on other important factors such as maintaining a good diet and sleeping pattern." Dr Schroeder is a medical practitioner specialising in HIV medicine. The Complainant also tendered in evidence at the hearing an Affidavit annexing a report from Dr Michael James Boyle dated 13 August 1996 which states: "R is a patient of the Immunology and Infectious Diseases Unit at John Hunter Hospital. He is living in Newcastle and has been under our care for the last 12 months. He has relatively advanced HIV infection. His last CD4 count was 110. To date, he has had no Stage IV diagnoses. Currently, he is taking Bactrim single strength tablets 1 daily, Fluconazole 100mg daily, Acyclovir 200mg three times a day, Rohypnol 3 nightly, D4T 30mg b.d., 3TC 150mg b.d., MS Contin 10mg b.d. and Mist Morphine 5mg/ml, 5mls p.r.n. I note from your letter that it has been suggested that the Rohypnol may be associated with short and long term memory loss and mental confusion. I would agree that Rohypnol can be associated with short term effects but I know of no effect on long term function. However, HIV itself can be associated with mental deterioration and impaired memory function as part of the HIV associated dementia complex. To date, R has been fairly haphazard in taking antiretroviral medication. He was recently commenced on D4T and 3TC as a new combination and is now keen to take anti-HIV medication. On examination on the 9th of August he had a tendonitis with mild crepitus present over the dorsal aspect of the left foot. This is improving and has been treated symptomatically with rest and analgesia including opiates. He also had a mild generalised adenopathy of 1cm to 2cm nodes present in all nodal groups. There was no hepatosplenomegaly. Cardiovascular and respiratory examinations were unremarkable and neurologically other than some possible deficiencies in short term memory there was no abnormality. He had moderately severe oral hairy leukoplakia, but this may well improve with the introduction of antiretrovirals as mentioned above. He had been having intermittent fevers over the preceding few days, the cause of which is still being determined. Clearly, R is in a fairly advanced stage of HIV infection though his prognosis is hard to predict as it will depend significantly on what response he has to the antiretrovirals that have been commenced. Your main concern about his short and long term memory is difficult to assess. In general terms HIV can be associated with deterioration in memory as part of the AIDS dementia complex. It is relatively common for patients with a CD4 count of 110 and no previous antiretroviral experience to have some mild mental changes associated with their HIV infection. Rohypnol may exacerbate this problem." The Complainant contends that in speaking the words complained of and in engaging in the conduct complained of, the Respondents have been acting either jointly or in support of the other so as to bear equal responsibility for the speech and conduct complained of, which he contends was vilification. He further contends that he has suffered damage in the form of hurt and distress as a result of the words and conduct of the Respondents which was made worse when the words were stated in the presence of others. In consequence of the Respondents' actions, his health has been adversely affected, exacerbating his HIV infection and causing him considerable stress. He makes no claim for economic loss as throughout the period, he was unemployed and in receipt of social security benefits. He attempted to mitigate the damage he has suffered by complaining to the Department of Housing and seeking a housing relocation, by seeking medical assistance, by applying for mediation from the Community Justice Centre City Office, by approaching the police and by obtaining the Apprehended Violence Order under Part XVA of the NSW Crimes Act 1900 against both Respondents. The Complainant seeks compensation by way of damages in the sum of $40,000 from each Respondent, orders enjoining them from continuing or repeating any of the speech or other conduct complained of or of the type complained of, orders that each Respondent publish a written apology in respect of their speech and conduct towards the Complainant to the residents and Department of Housing staff at the complex of flats in which they resided, and an order for costs. 2. NON ATTENDANCE OF THE RESPONDENTS As noted above, neither of the Respondents appeared at the hearing either in person or through legal representatives. The Tribunal was most concerned at this fact, especially having regard to the precedential nature of the litigation. After the matter had been referred to the Tribunal from the Board, directions were made on 19 January 1996 as follows: 1. Complainant to file and serve within 28 days Points of Claim, statements of evidence and copies of documents intended to be relied upon additional to the material contained in the President's Report; 2. Respondent to file and serve within 28 days thereafter Points of Defence, statements of evidence and copies of documents intended to be relied upon additional to the material contained in the President's Report; 3. Complainant to file and serve within 14 days thereafter any material in reply; 4. Each party to notify the other at least 14 days prior to hearing date of names of persons required for cross-examination; 5. Liberty to each party to apply for further directions on two days' notice to the other; 6. Leave to the parties to approach the Registrar forthwith for allocation of hearing date; 7. Leave to the parties to approach the Registrar at any time for the purpose of allocating a date for mediation; 8. Copy of the President's Report to be made available to both parties. It would seem that at that time, certainly Mr Marinkovic was legally represented by Mr Larry Noble of Maurice May & Co Solicitors. The matter was first listed for hearing on 22 July 1996. The Complainant assembled with his legal representatives ready to proceed to the hearing. The Tribunal was concerned that there was no appearance by or on behalf of either Respondent on that date at 10.00 am and accordingly, the Registrar was asked to make inquiries of the Respondents to find out what was happening and also to make contact with Maurice May & Co, which firm had advised the Tribunal by letter dated 5 June 1996 that they were no longer acting for the First Respondent. Following these inquiries, Mr Marinkovic advised the Tribunal that he was unaware that the matter had been listed for hearing on that date and accordingly the Tribunal stood the matter down until 12.00 on 22 July 1996 to give Mr Marinkovic an opportunity to attend in person, which he did. He gave sworn evidence on that day to the effect that he had separated from his wife about a year previously and that he had not received any letters from his solicitor, Mr Noble or from the Tribunal. He had last spoken to Mr Noble about 2 1/2 months before, some time in April. He was shown a letter sent to him by Mr Noble dated 25 March 1996, a copy of which had been forwarded to the Tribunal, and advised the Tribunal that he had never seen this letter. He said that a further letter dated 5 June 1996 also sent by Mr Noble to him was also not received. He indicated that he did seek assistance from the NSW Legal Aid Commission, but had heard nothing further from them. He further stated that his wife had a key to his letter box and "so my opinion is probably she took letter from my mail" (sic). In the interests of justice, the Tribunal vacated the allocated hearing dates on 22 and 23 July 1996 and made further directions in the presence of Mr Marinkovic that: 1. Matter listed for hearing at 10.00am on Wednesday 12 August 1996; 2. Respondents to file and serve all statements of evidence and copies of documents intended to be relied upon within 7 days; 3. Complainant to file and serve within 7 days thereafter any material in reply; 4. Liberty to all parties to apply for further directions on 48 hours notice to the other; 5. Registrar to arrange attendance of Mr Noble at hearing on 21 August 1996, or in his absence a person in authority representative of Maurice May & Co, Solicitors, a summons is to be issued to affect same; 6. Registrar to issue subpoena requiring Australia Post to produce any relevant documentation evidencing the collection of certified mail addressed to the Respondents; 7. A suppression order is made in terms such that neither the Complainants names nor any feature identifying the Complainant in these proceedings is to be published. Such order is to remain in effect until 21 August 1996; 8. Mr D Marinkovic to advise the Registry either of the address and telephone number of Ms E Marinkovic, or, his inability to ascertain these details within 48 hours; 9. Registrar to send certified mail to Ms E Marinkovic advising her of the new timetable, hearing date(s), application for costs made and expressing the Tribunal's concern at hear absence at today's proceedings. Mr Marinkovic was asked to advise the current address of his wife, which he subsequently gave to the Tribunal, and he returned to the Tribunal premises at 4 pm on 22 July 1996 to collect and sign for a letter from the Registrar confirming the orders made. The Registrar subsequently sent by certified mail a letter to Mrs Marinkovic at the address given to the Tribunal by Mr Marinkovic. An Australia Post acknowledgment signed by Mrs Marinkovic was produced to the Tribunal at the hearing on 21 August 1996 and tendered in evidence. A subpoena was issued by the Tribunal to Mr Larry Noble to attend to give evidence at the hearing and also to Maurice May & Co Solicitors to produce their file 95000519. Mr Noble gave evidence to the Tribunal that he had acted for Mr Marinkovic, but not for his wife and that he had seen him on several occasions. He had forwarded him a letter dated 19 January 1996 advising him of the directions made by the Tribunal on that date. That letter advised Mr Marinkovic that the matter had been listed for hearing on dates in mid July. It appears that these dates were unsuitable to Counsel and after consultation with the Tribunal, the matter was allocated new dates on 22 and 23 July 1996. Mr Noble confirmed that letters had been sent to Mr Marinkovic on 25 March 1996 and 11 April 1996. He met with Mr Marinkovic on 19 April 1996 when an application was prepared and signed for legal aid. A copy of that application was identified by Noble and appeared on the file. The application form was signed by Mr Marinkovic and in two places it identified the hearing date, namely 22 July. Mr Noble gave evidence that before signing the form, he had read it through with Mr Marinkovic to ensure it was accurate. He also advised the Tribunal that he had previously acted for Mr Marinkovic who had no difficulty with the English language. Mr Noble saw Mr Marinkovic on a further occasion in April and again discussed the hearing. From the evidence heard by the Tribunal, the Tribunal has no doubt that Mr Marinkovic was well aware that the matter was listed for hearing on 22 July 1996. Having regard to the absence of Mrs Marinkovic and her failure to tender any evidence or be available for questioning by the Tribunal or submit to cross-examination, the Tribunal cannot make any definitive finding as to whether or not she was aware of the hearing date on 22 July 1996. However, having regard to the fact that she signed for the letter from the Tribunal advising of the adjourned hearing date, namely 21 August 1996, the Tribunal is satisfied that she was aware of this hearing date. For reasons presumably known to both Respondents they have chosen not to participate in these proceedings. The Tribunal is satisfied they had been given every reasonable opportunity to be heard. The decision to choose silence was taken at their own risk as to the Tribunal's findings and the outcome of this case. From the discrepancies in the evidence given by Mr Marinkovic and Mr Noble, the Tribunal is unable to accept Mr Marinkovic as a credible witness. The Tribunal finds that he had been fully appraised throughout of the cause and conduct of these proceedings and for a reason not known to the Tribunal, has failed to take appropriate steps to present his case. More seriously, the Tribunal finds that he attempted to deceive the Tribunal in the evidence which he gave to the Tribunal on 22 July 1996. Before he gave that evidence, a warning was issued by the Tribunal to Mr Marinkovic as to the significance of giving evidence on oath. The Tribunal finds that Mr Marinkovic has lied to the Tribunal to secure a benefit for himself, namely the delay of these proceedings, which he achieved, at considerable expense to the community as a result of the hearing dates being vacated and at considerable distress and expense to the Complainant and his legal representatives. Mr Marinkovic was warned by the Tribunal that if an adverse finding was made against him on this point, the Tribunal would refer the papers to the Director of Public Prosecutions to consider whether a prosecution for perjury was appropriate and the Tribunal believes it is appropriate now to adopt this course. The community expects that persons appearing or named as parties in proceedings before this Tribunal, whether as Complainant or Respondent, will not embark on a wilful course of action which will lead to undue expense and distress, such as would appear to be the case here, and that they will conduct themselves honestly. The integrity of the Tribunal and its ability to operate will be jeopardised if litigants are allowed to behave in a manner which the Tribunal believes may be found to be in contempt. The Tribunal has no powers however in this area, other than the power of referral which it accordingly adopts. 3. THE LAW This is the first case coming before the Tribunal dealing with the issues of homosexual vilification and HIV/AIDS vilification. Division 4 of Part 4 C of the Act was introduced with effect from 2 March 1994. Section 49 ZT(1) provides: "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." Section 49 ZT(2) provides: "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 1974 or which is otherwise subject to a defence 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 discussions or debate about and expositions of any act or matter." The term "public act" is defined in s.49ZS to include: "(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 or clothing, signs, flags, emblems and insignia; and (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." Sections 49ZXA and 49ZXB of Part 4F which were introduced with effect from 8 August 1994 provide: "49ZXA In this Part: "HIV/AIDS infected" means infected by the Human Immunodeficiency Virus or having the medical condition known as Acquired Immunodeficiency Syndrome; "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 and insignia; and (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 that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected)." "49ZXB(1) 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 that the person is or members of the group are HIV/AIDS infected or thought to be HIV/AIDS infected (whether or not actually HIV/AIDS infected). 49ZXB(2) 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 1974 or which is otherwise subject to a defence of absolute privilege in proceedings for defamation; or (c) a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter." These sections mirror Division 3A of Part 2 of the Act dealing with racial vilification. Those sections have been in operation since 1 October 1989. In New South Wales, there have been two reported decisions dealing with racial vilification, namely Harou Sourdon v TCN Channel 9 Pty Limited (1994) EOC 92-604 and Wagga Wagga Aboriginal Action Group & Ors v Eldridge ( 1995) EOC 92-701. Harou Sourdon dealt with the issue of a complainant aggrieved by a television news broadcast. The Tribunal determined that the words "incite", "hatred", "serious contempt" and "severe ridicule", which were undefined in the Act, should be given their plain meaning in accordance with the ordinary principles of statutory interpretation. Significantly, the word "incite" is defined in the Oxford Dictionary inter alia as "to urge or spur on, to stir up, animate, instigate, stimulate." Counsel for the Complainant drew the Tribunal's attention to the decision of Chief Justice Stout in the New Zealand Supreme Court in Young v Cassells (1914) Vol 33 NZLR p. 852, a case where a union official was charged with inciting people to resist arrest where His Honour notes at p. 854 to 855: "the word "incite" has been considered in many criminal cases, and it has not hitherto been suggested that there can be no incitement to a crime unless the actors are ready to commit it. At common law and in many criminal statutes the person present at a crime and aiding therein is a principal in the second degree, while a person who is not present may be an accessory before the fact - that is, long before the crime is committed or attempted to be committed. This section seems to cover both classes - that is, principals in the second degree and accessories before the fact, and also cases where perhaps no resistance ever takes place. There are cases where persons have been convicted of inciting though no person acted on that incitement. A section of a statute in which the words used were "solicit, encourage, persuade or endeavour to persuade, or shall propose to any person", &c., was held to apply to a case where an article was published in a newspaper, and that the words used were used to "incite, encourage, and persuade": See The Queen v. Most (1). The word "incite" means "to rouse; to stimulate; to urge or spur on; to stir up; to animate," &c.: See Oxford Dictionary (2). If , then, the words were capable of that meaning it is for the Magistrate to say whether they were an incitement. Indeed, in most cases in which persons have been convicted of inciting, the time of the incitement was antecedent to the time when the crime was committed or attempted to be committed. A penal statute has not to have read into it any words not there so as to enlarge its meaning; but if the words are plain, or, as was stated in the case cited, United States v. Wiltberger (1), where there is no ambiguity in the words, there is no room for construction. To construe the statute as asked would be to add words limiting the meaning of "incite", and to say there could be no inciting to resist an arrest or of some other act by a constable unless the arrest or act was just about to take place. I cannot so construe the statute." It is settled law that it is unnecessary for a Complainant to show that the Respondent intended to discriminate against the Complainant - see Reddrop v Boehringer Ingelheim Pty Limite d (1984) EOC 92-031 at page 75, 569, Jamal v Secretary, Department of Health & Anor (1988) EOC 92-234. The High Court in Australian Iron & Steel Pty Limited v Banovic & Anor (1989) EOC 92-271. In Waters & O Ors v Public Transport Corporation (1991) EOC 92-390 at p.78, 674 the Court adverted to the p principle of statutory interpretation that requires that the particular provisions of the legislation must be read in the light of the statutory objects and stated that this was of particular significance in the case of legislation which protects nforces human rights. Mason CJ and Gaudron J, Deane J agreeing, noted that it is enough that the material difference in treatment is based on the status or private of that person, notwithstanding the absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. In Harou Sourdon , the Tribunal noted that the legislature intended that trivial racist jokes or comments will not breach the Section and the complaint in that case was dismissed as misconceived because the racist comment made was brief, lighthearted and in ordinary language. Further, there was no repetition of the statement complained of. In the Wagga Wagga Aboriginal Action Group case, the Tribunal expressed the view that the word "incite" is not to be construed in the same manner as in the criminal law, but is to be given its ordinary meaning. The Section is a civil section not requiring proof of intent. Further, it does not require that any person was in fact incited. The Section requires the act complained of to have been a public act as defined. The standard of proof is on the balance of probabilities. The Tribunal in that case considered the "free speech defence" which it rejected. While the issue was not raised by the Respondents in these proceedings the Tribunal adopts the reasoning of the Tribunal in the Wagga Wagga Aboriginal Action Group case in this regard. (pp. 78,265 and 78,266 of the decision). 4. FINDINGS AND ORDERS The statements and conduct of the Respondents were in the Tribunal's view public acts within the provisions of Sections 49 ZS(a) and 49 ZXA(a). Having regard to the factual circumstances as noted above in which the statements were made, the Tribunal considers the words spoken and the written communication are public acts as defined. Whilst the Complainant can only rely on those actions of the Respondents said or done after the legislation came into effect, the Tribunal is satisfied on the Complainant's evidence which is accepted by the Tribunal that the Respondents made the communications on repeated occasions after 2 March 1994 and 8 August 1994 respectively. Their prior conduct is relevant as part of the res gestae. The word "faggot" is defined in the Macquarie Dictionary, second revised edition, at p630, inter alia: "Colloq. a male homosexual". The repeated and varied use of this word, and the offensive manner of its use, and the reference to his HIV positive status, leads the Tribunal to conclude that the Respondents used the words, which the Tribunal finds were said and written as stated by the Complainant, in a manner designed by them to incite hatred towards, serious contempt for, or severe ridicule of the Complainant on the ground of his homosexuality and HIV positive status. The Tribunal concludes that the spoken statements and written communication of the Respondents were unlawful conduct defined as homosexual vilification and HIV/AIDS vilification for the purposes of Section 49 ZT(1) and 49ZXB(1) of the Act. There is nothing before the Tribunal which could enable the Tribunal to consider that the statutory defences can be made out. The Complainant has made complaints under two sections of the Act and claims the maximum damages of $40,000.00 against each Respondent. The Tribunal finds that both Respondents repeatedly committed the acts of homosexual vilification and HIV-AIDS vilification against the Complainant on a series of occasions. The repeated nature of their unlawful conduct and their silence in responding to the allegations which the Tribunal interprets as an absence of remorse, amounts to an aggravation of their conduct. This case is most unusual and extremely sad. It has brought clear and evident distress to the Complainant. He is a young man who suffers from a debilitating and life-threatening disability. The medical evidence produced by the Complainant, which in the absence of any expert medical evidence to the contrary, the Tribunal accepts unreservedly, indicates that the Complainant's stress has been aggravated by the Respondents' joint and several conduct. The Tribunal also accepts the medical evidence that psychological stress has had a detrimental effect on the Complainant's health and has exacerbated his condition, which has now reached a fairly advanced stage of HIV infection. There can be little conduct more serious. Further, and most significantly, the Complainant has made numerous attempts to mitigate his position by seeking a resolution of his problems by all lawful means of which he was aware. He was decidedly unsuccessful in these attempts, at least until the order was made against the First Respondent on 31 August 1995. The acts of vilification which the Tribunal finds were made by the Respondents continued after the Complainant made his complaint to the Anti-Discrimination Board. The failure of the Respondents to respond to correspondence from the Board and to appear in these proceedings, in the Tribunal's view, highlights what the Tribunal considers to be their cavalier approach in general with regard to the problems their conduct has caused the Complainant. Insofar as the Complainant is concerned, the situation was intolerable and the Tribunal has the greatest sympathy for his plight. He was forced to endure the unlawful conduct of the Respondents over an extended period of time and suffered greatly in consequence. Put simply, the conduct of the Respondents is unlawful and in a democratic and civilised society ought not be tolerated. Ultimately, the Complainant was only able to secure a release from his predicament by obtaining the long-sought after relocation in accommodation from the Department of Housing. The Tribunal expresses concern that yet again, the victim of the unlawful conduct is the person forced to change his lifestyle in consequence of the unlawful conduct of Respondents. This is simply unacceptable. This legislation is designed to achieve some form of social engineering. By so doing, persons affected by the discriminatory and unlawful conduct of others should not be forced to vary their lifestyles to their detriment to achieve their desired peace of mind. Rather, those causing the distress should amend their conduct to ensure compliance with the law. The failure of the Department of Housing to provide the Complainant with the quiet enjoyment to which he should have been entitled as a tenant is a matter of serious concern to the Tribunal and justifies the Department of Housing reviewing its practices to ensure that other persons in a similar position to the Complainant do not have to suffer the same indignities that the Complainant has suffered and brought to the attention of the Tribunal in this case. In Daniels v Hunter Water Board 1994 EOC92-626 the Tribunal made the following opening remarks: "The Anti Discrimination Act has been enacted in New South Wales to enable people to work and live in a harassment free environment. This right has been upheld by the Tribunal in a succession of cases. In this context, it is also important to note that Parliament also recently enacted the so called "homosexual vilification" legislation. In New South Wales in the 1990s conduct which amounts to persecution of an individual on the basis of his homosexuality is unacceptable conduct. The Parliament has enacted this legislation, in what many regard as a pacesetting move, to ensure that the rights of all citizens should not be prejudiced because of their sexuality and to enable persons to undertake their life activities free from harassment by others, including co-workers, who for whatever reason find themselves unable to accept that a person might "dare to be different". In a free society, a person's individuality and right to freedom of expression must be cherished. If the cost of freedom of expression is conformity and the price of non-conformity is harassment, then society has accepted unacceptable restrictions. Fortunately, this is not the case in contemporary New South Wales." The Tribunal adopts these comments. The legislation is revolutionary in that it attempts to mould human conduct for the better. The legislation is designed to make stereotyped assumptions about people unlawful where conduct falls within one of the prescribed grounds of discrimination, or where persons vilify others in an unlawful manner. This Tribunal has a duty to enforce the legislation. In the Parlimentary debate at the time the Homosexual vilification legislation was enacted Mr Carr, present Premier of New South Wales and the Leader of the Opposition, expressed views reflecting those in the community and stated at pages 1816 and 1817 of the Hansard on 29 April 1993: "We recognise that there is value in enacting a law on racial vilification. A civilised community ought to say that it is wrong to discriminate against and to vilify people because of their racial origins. A civilised community ought to say, through its legislation, it is wrong to vilify people because of their sexual orientations, and that is what is proposed in this legislation ..." "When my party endorsed this legislation I said, by way of confirming our position: We, the Labor Party at a State level, are supportive of the gay and lesbian community in standing against vilification and prejudice. It is simply unacceptable that people be vilified because of their sexual orientation. we are not going to have one section of our community singled out to be persecuted by bigots or threatened with violence. All the arguments against racial vilification ring true in this instance." "It is entirely appropriate that we, as the Parliament of New South Wales, enact legislation that says, "This violence, this vilification that lies behind it, is not on. We find it repugnant and we say to the community, "There are now legal remedies available for you to use against this entirely intolerable vilification"." In the second reading speech to the Anti Discrimination (Amendment) Bill 1993 Mr Hartcher, responsible Minister stated, inter alia: Schedule 2 of the bill creates a new offence and ground of complaint in relation to vilification of persons living with HIV and AIDS. People living with AIDS are subject to substantial disadvantages in our society. Such people regularly experience discrimination in public life, and are often subjected to vilification, and indeed violence, from others which stems from fear and ignorance concerning HIV-AIDS. The Government has, from the outset, recognised that the suffering of people living with HIV-AIDS is a matter for the whole community and the amendments contained in schedule 2 of the bill provide protection for people with HIV-AIDS from attack in the community. The amendments are based on the existing racial vilification provisions in the Act. Accordingly, the vilification of people living with HIV-AIDS must involve a public act, as defined in new section 49ZXA. Proposed section 49ZXB provides people who are subject to vilification on the ground of their HIV-AIDS status or because they are wrongly presumed to be HIV positive with a ground of complaint to the Anti-Discrimination Board. This will enable the Anti-Discrimination Board to apply its extensive conciliation processes in the resolution of HIV-AIDS vilification complaints in the same way that it attempts to resolve racial vilification complaints. The provision is intended to protect those with asymptomatic HIV, as well as those who have contracted AIDS. The proposed section also provides clear exceptions in relation to fair reporting, acts subject to absolute privilege in defamation proceedings, and public acts done reasonably and in good faith. I should note that this last category of exceptions specifically provides that, among other things, public acts done reasonably and in good faith for the purposes of religious discussion or instruction are not subject to the HIV-AIDS vilification provisions. This exception reflects the Government's stated philosophy that religious bodies and schools should be free to propagate religion in accordance with religious doctrines without legislative interference. Proposed section 49ZXC creates an offence of serious HIV-AID vilification, which is based on the existing offence of serious racial vilification. This offence, which carries a maximum penalty of $5,000 or 6 months' imprisonment for individuals and $10,000 for corporations, is only intended to apply in the most serious cases of incitement or threatened violence, and accordingly prosecutions may only proceed with the consent of the Attorney General. The bill provides, for the first time in ths country, protection to people living with HIV-AIDS from vilification and violence. The bill also substantially increases statutory protections in relation to racial vilification and disability discrimination and makes a number of other important changes. The bill is, in short, a demonstration of the Government's commitment to eliminate discrimination in all areas of public life. I commend the bill to the house. Recent decisions of various Tribunals in Australia exercising jurisdiction under this and comparable legislation provide some assistance to the Tribunal in determining the quantum of damages which should be awarded in the Complainant's favour. In Judge & Anor v Durovic (1996) EOC 92-789 - the NSW EOT awarded $20,000 to each complainant for general and aggravated damages for sexual harassment in employment. An appeal against this decision has been filed in the Supreme Court. As was noted by the Tribunal in the matter of Judge, a Respondent finds the Complainant as he/she is - the eggshell principle applies. Wilcox J in Hall & Ors v ASA Sheiban Pty Ltd & Ors (1989) EOC 92-250 said (at page 77,412) that in sexual harassment cases the rule is the same as in any other cases of tort law: 'a sexual harasser takes his victim as he finds her'. In the case Lyon v Godley (1990) EOC 92-287 the Respondent sought to argue that because the Complainant (the victim of sexual harassment by her employer) was more vulnerable than a "normal woman" this should be reflected in the damages awarded. The Tribunal in that case rejected that submission and said, 'there is in our view no merit in this submission. It is well established that the wrongdoer takes his victim as he finds her. This is so whether the predisposition is physical, mental or emotional'. The fact that the Respondent was not aware of the susceptible nature of the Complainants is not, in the view of the Tribunal, relevant in these proceedings. The Respondent must take the victims as he finds them and pay damages accordingly." The Tribunal in the particular circumstances of this case considers that it is appropriate that a substantial order be made by way of general damages in favour of the Complainant and accordingly orders that each Respondent pay by way of damages to the Complainant the sum of $25,000.00 by way of compensation for damages suffered by reason of each Respondent's conduct. The Complainant will thus secure a total award of $50,000.00. The Tribunal has made an order suppressing the name of the Complainant and certain evidentiary matters which could lead to his identification. In drafting this decision, the Tribunal has been mindful of the terms of those orders and has deleted evidentiary material which could lead to the identification of the Complainant. The Tribunal continues indefinitely the suppression order made at the hearing to the effect: In addition, the Tribunal considers that even though the Complainant has relocated to alternate premises, it is appropriate for an order to be made enjoining each Respondent from continuing or repeating any of the speech or other conduct complained of or of the type complained of by the Complainant and orders accordingly. The Second Respondent no longer apparently resides at the Department of Housing premises where the events took place. The First Respondent apparently continues to reside there. Presumably, other residents of the complex would be familiar with these proceedings, notwithstanding the terms of the suppression order and accordingly, the Tribunal considers that it is appropriate that an order be made directing each Respondent to publish a written apology towards the Complainant to the residents and Department of Housing staff at the complex of flats where the Complainant formerly resided, such apology to be in the following form: "We, [name of each Respondent] hereby apologise unreservedly to [name of Complainant] for my speech and conduct during the period in which he resided at these premises and which has brought him unnecessary distress. This apology is given in accordance with orders made by the NSW Equal Opportunity Tribunal." These written apologies shall be displayed in a prominent place on the notice board at the said flats for a period of one month commencing seven days from the date of service of these orders on each Respondent. Having regard to the manner in which these proceedings were brought and the conduct of the First Respondent in misleading the Tribunal and then failing to appear at the hearing, and the Second Respondent in failing to participate at any stage in the proceedings, as discussed above, and having regard to the significant precedential nature of these proceedings which are of clear public importance, this Tribunal considers that this is an appropriate case for an order to be made directing that the Respondents shall pay all the costs of the Complainant in prosecuting these proceedings. Mention has been made of the serious concerns of the Tribunal at the apparent acts of omission perhaps amounting to nonfeasance of officers of the Department of Housing from whom the Complainant sought assistance. This landlord would appear to have let the Complainant down badly. Accordingly, the Tribunal directs the President of the Anti Discrimination Board to consult with relevant officers of the Department of Housing to ensure that appropriate guidelines are developed and implemented to raise awareness of the provisions of the Anti-Discrimination Act in the administration of that Department's portfolio. The conduct of Mr Marinkovic in the evidence he gave to the Tribunal on 22 July 1996 shall be drawn to the attention of the relevant State authorities to investigate whether any criminality is involved and for their further action as appropriate. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.