‘Neighbourly tensions’ triggered by a North Queensland residential fencing dispute have escalated during a long-running saga requiring a Queensland tribunal to resolve cross complaints of alleged sexual and racial vilification.
Queensland Civil and Administrative Tribunal (QCAT) member Louise Pearce was charged with adjudicating the veracity of separate complaints under the Anti-Discrimination Act 1991 (Qld) between Cairns couple Peter Fitz-Gibbon and Sunny Park and their next-door neighbour Jingru ‘Laura’ Liu.
Ms Liu was the first to take legal action – making a complaint to the Queensland Human Rights Commission (QHRC) on 11 March 2020 against Mr Fitz-Gibbon and Mr Park for alleged racial vilification.
Mr Fitz-Gibbon and Mr Park, a same sex couple, on 22 June 2020 made their own complaint to the QHRC alleging they were sexually vilified by Ms Liu.
Both applications were heard by QCAT during a two-day hearing in Cairns in March this year.
Ms Pearce delivered separate written findings in both cases, but also included an explanation on how the separate complaints came to have been made.
“From the outset it should be noted that these complaints are merely two in a long history of disputes and actions between the parties involved,” Ms Pearce said.
“There appears to be a long history of ongoing disputes between the parties ranging from fencing disputes, noise complaints, reports to council for contraventions of council by-laws and even assault. Police have also been involved and there appears to be peace and good behaviour orders in place against each other.”
The trio first became neighbours when Ms Liu, an Australian resident of Chinese descent, sub-divided the block of land on which she lived and sold it to Mr Fitz-Gibbon and Mr Park, who subsequently constructed the home in which they live.
“It appears relations between the parties were amicable until a dispute arose over a dividing fence,” the tribunal found.
Ms Pearce said Ms Liu’s racial vilification complaint related to events flowing from her going into voluntary quarantine during a visit to family in China, at the commencement of the coronavirus outbreak in February 2020.
During this time, Mr Fitz-Gibbon emailed Ms Liu to “remind” her of her quarantine obligations.
The tribunal was told the email read: “Comerad (sic) Laura … attached is an extract from the Homeland Security Department obligations on self-quarantine. Please observe them for the protection of the local community. In the past you have shown a disregard for Australian law no doubt as a result of your connection to Communist China where the rule of law has little value and whose flag you proudly display.”
Ms Pearce said Mr Fitz-Gibbon and Mr Park did not deny they placed signs erected outside Ms Liu’s house which read – “Quarantined. 14 days, Coronavirus, Do Not Enter”, “Communist Chinese Consulate, Going Cheap” and “We support the people of HK in their fight for Freedom, Justice and Democracy, Down with Tyranny.”
“It should be noted that the respondent (Mr Fitz-Gibbon) does not deny erecting the sign(s),” Ms Pearce said.
“(Mr Fitz-Gibbon) does not deny erecting the sign and in fact advised it was to be a humorous joke for his own amusement.”
Mr Fitz-Gibbon and Mr Park, in their complaint, alleged they were sexually vilified by Ms Liu via the playing of loud rap music containing homophobic lyrics. They also claimed Ms Liu yelled homophobic epithets at them from inside her home and while they were walking along the street.
Although Ms Pearce included the words used by Ms Liu and lyrics contained in the music played in her decision, QLS Proctor has opted against republishing them here.
Before deciding both cases, Ms Pearce spoke of the “three distinct” elements that needed to be satisfied before making a finding in vilification cases.
“For vilification to occur, three distinct points must be satisfied,” she said.
“Firstly, the unlawful discrimination must occur on the grounds of either race, religion, sexuality or gender identity.
“Secondly, a person contravening the Anti-Discrimination Act must engage in an activity to either incite hatred, serious contempt, or severe ridicule of a person or group of persons on the basis of their race, religion, sexuality or gender identity.
“Thirdly, the inciting of hatred, serious contempt or severe ridicule must be a public act. A public act is described as any form of communication to the public, including by speaking, writing, printing, displaying notices, broadcasting, telecasting, screening or playing of tapes or other recorded material, or by electronic means; and any conduct that is observable by the public, including actions, gestures and the wearing or display of clothing, signs, flags, emblems or insignia.
With respect to Ms Liu’s complaint, Ms Pearce dismissed the application saying: “It is accepted by the Tribunal that the acts of (Mr Fitz-Gibbon and Mr Park) are in poor taste, are offensive and petty and undoubtedly designed to illicit a negative response from (Ms Liu).”
“They do not however meet the threshold tests under section 124A of the Anti-Discrimination Act for racial vilification.”
Ms Pearce also dismissed Mr Fitz-Gibbon and Mr Park’s application regarding sexual vilification.
However, in their case, Ms Pearce found Ms Liu had sexually harassed the couple.
“The Tribunal’s decision with regards to the application in this matter is (that) Jingru ‘Laura’ Liu sexually harassed Peter Gerald Fitz-Gibbon and Sunny Chell Park,” Ms Pearce said.
“(Ms Liu) is ordered to not commit further contraventions under the (Anti-Discrimination Act) against the (Mr Fitz-Gibbon and Mr Park). The parties bear their own costs.”
In reaching her final decision in both cases, Ms Pearce made an observation that appeared in both judgments published last Thursday (21 July).
“Aspects of both the applicants and the respondents evidence (in both cases) caused the Tribunal to find both parties unreliable witnesses,” she said.
“Much of the evidence and assertions made by both parties could not be corroborated with the exception of the images provided.
“It would appear to the Tribunal that the ongoing dispute between the parties has reached such levels that neither is able to clearly articulate events and issues at hand.
“Both parties appear to be prepared to go to great lengths to discredit and cause harm to the other.”
Read the Ms Liu decision.
Read the Mr Fitz-Gibbon and Mr Park decision.