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A Sydney local councillor’s behaviour has been found to amount to homosexual vilification after she verbally abused a neighbour for displaying a rainbow flag on the day of the same-sex marriage postal survey result.
Julie Passas, who was the deputy mayor of Inner West council at the time, told neighbour Daniel Comensoli the flag he erected to celebrate the 61% Yes vote was “offensive to my culture and religion” and that he should not be allowed to marry “until you could breastfeed and have children”.
Two days later, she told visiting police officers “the rainbow flag was as offensive as the flag of Isis”, in a voice loud enough for neighbours to have heard it from inside their houses.
The NSW civil and administrative tribunal found that the initial conduct on the day of the vote amounted to inciting hatred, serious contempt or severe ridicule towards homosexual people, under the Anti-Discrimination Act.
However, the local councillor’s subsequent comments, when she loudly told a neighbour that Comensoli was “disgusting” were found not to amount to vilification.
The tribunal has ordered Passas to pay Comensoli damages of $2,500 and publish an apology for her conduct in the local Inner West Courier newspaper.
The act provides exemptions for vilification for things done in good faith for academic, artistic, religious or scientific purposes, including discussions or debate “of any act or matter” – but Passas did not apply for any exemptions.
At the time of the vilification, Passas and Comensoli lived next to each other in the Sydney suburb of Ashfield, where Passas had been a local councillor for 11 years.
According to court documents, Comensoli placed a large rainbow flag outside his apartment on the night of 15 November 2017 in celebration of the Yes result.
He claimed he was in the driveway when he heard Passas “yelling at him from her apartment balcony”.
“[Passas] loudly demanded from [Comensoli] that he remove the flag because it was ‘offensive to my culture and religion’. [Comensoli] refused, to which [Passas] loudly stated words to the effect that [he] should not be afforded the right to marry ‘until you could breastfeed and have children’,” according Comensoli’s version of events.
“The exchange was loud enough that it could be heard by other residents in the complex and surrounding areas.”
Comensoli also claimed Passas complained to other residents to have him evicted.
Two days later, Comensoli and his housemate Ashleigh DiNatale were at home when they heard Passas telling a neighbour, from their shared driveway, that they were “disgusting people”.
A day after this, Comensoli made a formal complaint to Ashfield police. When the police visited Passas at home, Comensoli said he could hear from his house that she said “the rainbow flag was as offensive as the flag of Isis.”
Passas denied she told police the rainbow flag was “similar” to the flag of Isis, but admitted to the tribunal that she referred to it “as an analogy”.
Passas admitted she had asked him to remove the flag, but “denied that she had done so in an aggressive, loud, or offensive manner”.
The tribunal found that, on the balance of probabilities, Comensoli’s account of events was correct.
“In evidence, [Comensoli] was direct, clear and made appropriate concessions, including that the display of the rainbow flag on 15 November 2017 was in breach of the strata regulations, and that he had publicised the incident by disseminating the conversation with the respondent on Facebook.
“In contrast, [Passas] had a very poor recollection of the events she was questioned about … and was defensive and deflective in her responses to [Comensoli’s] questioning.
“She was easily inflamed when questioned about her conduct and stated in cross-examination that the concept of gay marriage was offensive to her, was offensive to her upbringing and religion, and that [Comensoli] ‘made the whole thing up because of a gay issue’, ‘turned it into a gay issue’ when ‘it was about strata’ and was ‘only continuing because of support for him from her political opponents’.”
The tribunal found that Passas’s behaviour on 15 November had amounted to vilification.The test for vilification is an objective test, which means it is judged by reference to “an ordinary member” of the public.
“The manner in which the respondent made her demand was inappropriate and objectively likely to incite hatred, serious contempt or severe ridicule of homosexual persons, and other LGBTQIA+ persons for whom the rainbow flag is an accepted symbol of identity, in an ordinary member of the general public.
The tribunal found that an objective understanding of Passas’s statements inferred “that a person who can’t breastfeed or have children should not be afforded an equal right to marry the person of their choosing”.
It also found the statement “is objectively likely to rouse, stimulate, urge, stir up or animate hatred, serious contempt or severe ridicule of homosexual men.”
The tribunal found her comments created the impression that “homosexual men are ‘worthless’ or of ‘little account’”.
But Passas’s later comments were found not to amount to vilification.
“In any event, neither of the incidents of 16 and 17 November 2017 constitute, of their own right, homosexual vilification within the meaning of the Act.”
The conversation that included calling him “disgusting” made “no specific or implied reference to homosexual men or homosexuality, or characteristics of homosexuality”.
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