(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 of the homosexuality of the person or members of the group. 9 A public act is defined in s 49ZS as follows: "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 of the homosexuality of the person or members of the group. 10 Certain exceptions are set out in s 49ZT(2): (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 on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) 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 discussion or debate about and expositions of any act or matter. 11 The party seeking to prove an exception has the onus of proof: AD Act, s 104. Mr Sunol did not rely on any of the provisions in s 49ZT(2) in this case. 12 Mr Burns has standing to make a complaint of homosexual vilification because he is a homosexual person: AD Act, s 88. HOMOSEXUAL VILIFICATION - LEGAL PRINCIPLES Introduction 13 In 2012 and 2013 the Court of Appeal interpreted the homosexual vilification provisions and relevantly identical provisions in relation to racial vilification. 14 In March 2012, the Court of Appeal handed down a decision in Sunol v Collier (No 2) [2012] NSWCA 44. In that case Mr Sunol submitted that the provision making homosexual vilification unlawful was invalid under the Australian Constitution because it infringed the implied freedom of communication about governmental or political matters. In the course of rejecting that proposition, the Court of Appeal (Bathurst CJ, Allsop P and Basten JA) discussed the meaning of "incite" in s 49ZT.