Radio presenter Kyle Sandilands has failed to have an unlawful vilification case against him dismissed after he made live comments allegedly mocking the Christian faith for "cheap humour" and to invite his audience to share in his ridicule of "dumb as dog-s---" Christians.
His comments during a segment on the Kyle and Jackie O breakfast show in September 2019 are alleged by an ACT man to have incited hatred toward, revulsion of, serious contempt for or severe ridicule of Christians.
Among the comments were "Jesus walked on water ... because he's a magic man".
Mr Sandilands also said: "the mother lied obviously ... and told everyone 'oh I got pregnant by a magical ghost'. The dumb husband believed that bull---- story and then run around telling everyone 'my son is the son of God'. Bull----. Someone chock-a-blocked her behind the camel shed. She lied ... and everyone believed it!"
"You might believe everything that's written down 2000 years ago to be absolutely accurate and good on you, you're dumb," he said.
"Dumb as dog s---."
The segment was then published on the show's social media accounts and the website of Sydney's KIIS radio station.
ACT resident Khalil Farah, who is also a member of the Maronite Catholic community, in October 2019 filed a complaint to the Human Rights Commission for unlawful vilification under the Discrimination Act.
He heard about the comments from a group of work colleagues before hearing the comments on Facebook.
Members of the Maronite Catholic community also discussed on WhatsApp about Mr Sandilands' comments.
Mr Farah's complaint was referred to the ACT Civil and Administrative Tribunal in July 2020.
It's like he's [Kyle Sandilands] standing at the border with a huge microphone ... It was loud enough to be heard in Los Angeles.
Lawyer for the applicant, Khalil Farah
He alleged that Mr Sandilands' comments amounted to unlawful discrimination because they incited serious contempt and severe ridicule of Christians.
"His crude, crass demeanour was deployed to garner controversy to mock Christians and Christian beliefs for the purpose of cheap humour, and to invite his audience to share in his ridicule of 'dumb as dog-shit' Christians," Mr Farah alleged.
He also alleged the comments made a number of derogatory, derisive and offensive comments directed at biblical miracles, the fidelity and honesty of the Virgin Mary, and the intelligence and gullibility of people of the Christian faith.
"It is uncontroversial that the act was done other than in private. Sandilands' comments were broadcast on live FM radio, and the comments were later republished on publicly viewable posts on social media," Mr Farah said.
Mr Farah sought several orders against Mr Sandilands, including that he not repeat the unlawful act, make a donation to a nominated charity, provide a private apology and pay a financial compensation.
Mr Sandilands then filed an application to have the case dismissed.
He argued Mr Farah's unlawful vilification cannot be shown because the complaint failed to allege any facts that constituted the act being other than in private.
He also argued that the tribunal had no jurisdiction over the case because his transmission was beyond the geographical reach of the ACT as the broadcast was limited to only Sydney.
He said that Mr Farah heard the segment only via other means that he had no control over.
Mr Farah in response cited other legal cases, including one saying that a religious vilification claim by an ACT resident against a NSW resident "is within the ACT jurisdiction so long as it vilifies ACT residents".
He also said that Mr Sandilands' high profile meant it was inevitable he would incite people in the ACT because it was a consequence of speaking into the microphone.
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Mr Farah's legal counsel alleged there was "no doubt" that Mr Sandilands incited people in the ACT.
"It's like he's standing at the border with a huge microphone. There's no need to decide what mountain it bounced off. It was loud enough to be heard in Los Angeles," the lawyer said.
In a tribunal decision on Tuesday, senior member Professor Peta Spender ruled against Mr Sandilands' application to have the case dismissed, saying it did not meet the "high standard that is required".
She cited relevant principles, including that there must be clearly no real question to be tried in the sense that the claim is bound to fail.
Ms Spender said Mr Farah's evidence was sufficient to make an unlawful vilification claim.
Mr Sandilands' arguments about jurisdiction were also dismissed.
The case will come before the tribunal again at a later date.
