A court in the Australian state of New South Wales (NSW) has ruled that a man who had yelled ‘I am going to eradicate all gays from Oxford Street,’ at a gay activist had vilified him but not when he subsequently bashed the man – leaving him with serious facial injuries.
Sydney based LGBT rights activist Simon Margan had been followed down Sydney’s Oxford Street in August of 2010 by Danny Manias while Margan had been putting up posters for a rally in support of same-sex marriage when Manias made the comment – also yelling, ‘There are wicked things taking place on Oxford Street.’
The Administrative Decisions Tribunal found that those comments constituted vilification but found that Margan had not been vilified when Manias bashed him a week later.
The court has ordered that Manias take out a quarter page advertisement in a gay newspaper apologizing for the comments to Margan who Manias must also pay $1,000.
The apology must include the phrase, ‘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.’
Margan told GSN that his litigation was unique in that it is the first time a homophobic assault had been tried as an example of vilification but he was concerned by the court’s finding that he had not been homophobicly vilified by the assault despite Manias making his bias towards him previously known.
‘Whilst the finding of vilification is good, the failure of the tribunal to consider the physical assault as vilification is problematic,’ Margan said.
‘Most homophobic assaults on Oxford Street do not accompany verbal comments. We believe in this case the tribunal focused too much on the need for verbal comments to accompany an assault to ascertain a gay basher’s intentions. The decision is a step forward, however, we are considering whether to appeal of the tribunal’s rejection of the physical vilification aspect of the claim.’
However Margan hoped the decision had set a precedent around homophobic assaults.
‘The tribunal found that if a complaint of vilification concerning an assault such as this were to demonstrate the homophobic intention of the assault, it would have been good grounds for significant damages,’ Margan said.
‘A complaint of vilification where the physical assault and verbal comments occur in quick succession would be a good future test case for the vilification provision.’
Margan’s eye socket was broken during the assault, one of five of which Manias had committed that day, over which he was jailed for 18 months.