Southey v Australian Press Council

The discrimination complaint

1. The applicant argued that the complaint was treated less favourably than comparable complaints that did not concern or affect people who are not transgender.
2. In her complaint of discrimination regarding this adjudication, by letter of 16 August 2021 to Anti-Discrimination NSW, the applicant stated (in part) that: "There is nothing humorous about threats of gross violence and genital mutilation directed at a person, in any way, on the basis of their gender, race or disability. Transgender individuals already deal with unconscionable rates of prejudice, discrimination and violence because of their transgender status. A 2019 study by the Michael Kirby Institute at Sydney University found that 53% of transgender Australians have experienced rape, sexual assault, or sexual coercion. A study by the Australian Human Rights Commission found that 46% of transgender Australians have been assaulted with a weapon such as a rock, bottle, or knife….When acts of homicide and extreme violence are enacted against transgender people, those acts frequently involve genital mutilation or genital torture. Sex assignment surgery is a highly technical and complex medical procedure. There are only two surgeons in Australia who are qualified to perform male to female sex reassignment surgery, neither live in NSW, where the Daily Telegraph is most widely circulated, one is unmarried, and neither has provided pro bono services. As such, it seems extremely unlikely that the article was the extension of a genuine offer to provide medical care, and a proper and professional reassignment surgery in a high quality clinical setting, accompanied by anaesthesia, and supported by professional follow up care. The publication was a flippant threat of castration, genital mutilation, and extreme violence. Despite the high volume of articles reporting the offender's new legal name and current pronouns, the article further demeaned all transgender people by using the individual's former name and pronouns. The article also used the derogatory term "sex change operation. The article established no public interest that justified such an expression and incitement of grievous bodily harm. Accordingly, it was a breach of the Australian Press Council's Statement of General Principles"….
3. The applicant supplied examples of adjudications by the respondent of complaints not involving transgender persons as comparators, arguing that such examples had resulted in findings by the respondent that the Statement of Principles had been breached.

Procedural History

1. The complaint was declined by Anti-Discrimination NSW pursuant to s92 of the Anti-Discrimination Act 1977 ('the Act'). The applicant sought leave to continue with the complaint in the Tribunal pursuant to s96 of the Act and in Southey v The Australian Press Council [2023] NSWCATAD 121, leave was granted for a complaint of direct discrimination to proceed, whilst a complaint of indirect discrimination was not permitted to proceed in the Tribunal.
2. The respondent then filed an application for summary dismissal of the complaint. The grounds for the dismissal application were as follows: "4. The grounds of this application are: There weas no act of direct discrimination in breach of section 38B(1)(a) of the AD Act as there was: No act of less favourable treatment of the complainant or any other person, No act of less favourable treatment of the complainant on the ground of the complainant's transgender status, No act of less favourable treatment of the complainant or any other person on the ground of the transgender status of any other person, or The APC treated the complaint in the same manner and form as all complaints made to it and the contents of the complaint were not taken int account when the decisions were made on the way the complaint would be or was handled. 5. The proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance and should be dismissed pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act, 2013 (NSW)."

The Legislative Framework - Summary Dismissal

1. Section 102 of the Act states as follows: 102 Tribunal may dismiss complaint The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b). Section 92 (1)(a)(i) and (b) provide as follows: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint-- (a) the President is satisfied that-- (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or ….. (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint…..
2. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]. The Tribunal is obliged to consider the complainant's evidence at its highest.
3. In determining whether summary dismissal is warranted, a Court or Tribunal will exercise its discretion to dismiss a complaint on a summary basis with "exceptional caution" and only if "the case of the plaintiff is so clearly untenable that it cannot possibly succeed" as Barwick CJ (as he then was) put it: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 - 130.
4. As Dixon J stated in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91: "once it appears that there is a real question to be determined whether of fact or law and the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process". See also Spencer v The Commonwealth (2010) 241 CLR 118.
5. There is nothing in s102 or s92 of the Act that suggests that such injunctions are inapplicable to an application brought pursuant to s102 of the Act. They have been cited with approval and applied in the past in this Tribunal and its predecessor. See for example in relation to the then s111, which is now s102 Han v NSW Department of Health [2006] NSWADT 113 at 57 - 63; Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 at [34]-[44]; Dee v Commissioner of Police and Anor [2003] NSWADT 217 at [24].
6. Pursuant to s102, the Tribunal has a discretion as to whether to dismiss a complaint and that discretion must be exercised "judicially".

Consideration

1. In determining whether or not to grant leave for the applicant to proceed with the complaint in the Tribunal, once it had been referred by Anti-Discrimination NSW, Senior Member Mulvey stated, at paragraphs [23] - [25] of Southey v Australian Press Council [2023] NSWCATAD 121 as follows: 23 It is important to remember that the Tribunal when considering a leave application is not undertaking merits review, but rather, it is a gatekeeper to decide whether it is fair and just for the complaint to proceed further. 24 Briefly, in the twenty seven word "article" there is mention of the community use of money to fund the person's transition. These words implied in the adjudication by the Respondent might suggest that state funded medical treatment should be denied to the individual, specifically on the basis of their transgender status. 25 When considered at its highest, I am satisfied that the comparators relied upon by the Applicant establishes that, when comparing those matters which involve transgender and non-transgender grounds, there is prima facie evidence of a different decision-making practice by the Respondent, demonstrating that less favourable treatment is accorded to a complaint of transgender discrimination.
2. One of the grounds for the application for summary dismissal in this case was that: "There was no act of direct discrimination on the ground of transgender status in breach of Part 3A of the Anti-Discrimination Act 1977 (NSW) contrary to Order #1 made by the Tribunal on 25 May 2023 in Southey v The Australian Press Council [2023] NSWCATAD 121.
3. That ground may be misconceived. There was no "act of direct discrimination" found by the Tribunal in that decision, just that, when the evidence was considered at its highest, the complaint was found to be not "frivolous, misconceived or lacking in substance". The question of whether or not there was direct discrimination remains to be determined. The finding that it was not "lacking in substance" means that there was at least an arguable case, as found by Senior Member Mulvey.
4. Where there are matters of fact or law in dispute, as set out in General Steel and Dey, there ought to be a determination on the merits of the matter, rather than summary dismissal of a complaint.
5. I find that the letter to the editor in this case involves a suggestion of that a person may commit acts of gratuitous violence, namely mutilation of the genitals or castration, against a transgender person. That differentiates it from the facts of the matter in Southey v The Australian Press Council [2021] NSWCATAD 329. I accept that, as the applicant argues, the Tribunal "has never considered a complaint about reporting which includes flippant jokes about genital mutilation".
6. The letter to the editor in this case is also future oriented, suggesting a possible action in the future, rather than being a report on something that has occurred in the past, as in Southey v The Australian Press Council [2021] NSWCATAD 329.
7. The article in Southey v The Australian Press Council [2021] NSWCATAD 329 concerned a report on a court proceeding, which involves public interest in knowing what occurred before the courts, which this matter does not. It is distinguishable on that basis from the facts in Southey v The Australian Press Council [2021] NSWCATAD 329 as there appears to be little public interest in making any person the butt of a 'joke' suggesting castration or genital mutilation, even through a letter to the editor. Nor is there any public interest in referring to the transgender person according to their previous sex in the circumstances of this case.
8. The respondent's own Advisory Guideline for reporting on persons with diverse sexual orientation, gender identity and sex characteristics include guidelines include guidelines advising publications to "refrain from using derogatory or prejudicial language" and "avoid using the wrong pronouns, noting that media usage of wrong pronouns can be distressing and disempowering".
9. The letter to the editor involves the suggestion of a violent act that could be performed on a person against that person's will, involving either castration or genital mutilation that could be life-threatening and certainly threatening of bodily integrity. That cannot be explained or excused by the fact that the person who could be castrated or otherwise mutilated has criminal convictions. Nor does that make it more of a joke, even if the person who wrote the letter has strong feelings about the crimes of which the accused was convicted. This is suggested in the Adjudication as an exculpatory factor but when more carefully considered could not justify the violent act that is suggested.
10. A hypothetical comparator, could also be a heterosexual male. Is it more likely that the complaint to the respondent about the letter to the editor was treated differently than it would have been if the proposal in the letter was to do such an act to, say, a heterosexual male? Such issues ought to be ventilated at a hearing on the merits, rather than foreclosed by summary dismissal.
11. The fact that the suggestion was in the "guise of humour" or "morbid humour" as referred to in the Adjudication, cannot, when the implications are well considered, prevent a proper examination as to whether the decision by the respondent not to uphold the complaint was infected by discrimination due to, or because, it concerned a transgender person. Would similar statements about a heterosexual male have been treated in the same way?
12. There is at least one very direct comparator among the comparative adjudications relied on by Ms Southey, regarding an article dealt with in Adjudication 1771, concerning an article published in the Sunshine Coast Daily on 20 May 2019, headed "ANNA, YOU'RE NEXT: Labor rout puts Premier in crosshairs" with the front page including prominent target 'crosshairs' superimposed on an image of the Queensland Premier's face next to the headline "ANNA YOUR'E NEXT".
13. In that case, Adjudication 1771 cited Principle 6 (the same principle as is cited in this matter) and stated (in part) as follows: "the Council acknowledges the publication's comments that it did not intend to incite violence against Premier Palaszczuk and was instead suggesting that the State Labor Party was a political target. However, by superimposing an image of crosshairs on a photograph of the Premier's fact next to the headlines "ANNA YOU'RE NEXT" and "Labor rout puts Premier in crosshairs". The article went beyond political comment and showed the Premier being the subject of political violence. This could have been taken by some readers as condoning violence against the Premier or had the potential to trigger violence against the Premier. In this respect, the publication failed to take reasonable steps to avoid causing offence, distress or prejudice, or a substantial risk to the health and safety without a justifiable public interest. Accordingly, the publication breached General Principle 6".
14. In Adjudication 1771, there was an implicit threat of, or incitement to, physical violence. The Adjudication upheld the complaint. In this case, there is also a threat of physical violence but the complaint was not upheld.
15. Thus, there was at least one very directly comparable instance of a threat of future possible serious physical violence and harm that was treated differently in the Adjudication from the threat of serious violence and harm, or possible incitement to violence that was directly raised in this matter.
16. As there is at least one example that is directly comparable in terms of a threat of violence from amongst those Adjudications selected by Ms Southey, I concur with Senior Member Mulvey that there is an arguable case of discrimination in this matter.
17. It would be a matter for the Tribunal panel hearing the matter to determine whether or not any particular proposed comparator should be found to be a comparator. In the submissions of the respondent as to whether leave should be granted for the matter to proceed in the Tribunal, the respondent argued that one difference between the article the subject of Adjudication 1771 is a front page article with an image, whereas this article was much less prominent and did not involve an image. Whether it should properly be regarded as a comparator Adjudication is a matter that ought to be determined at a hearing, as leave has been granted for the matter to proceed.
18. In the Adjudication 1771 decision, the Adjudication found that: "the article went beyond political comment and showed the Premier being the subject of potential significant violence. This could have been taken by some readers as condoning violence against the Premier or had the potential to trigger violence against the Premier."
19. An available view is that the name of the offender in this matter could be substituted for the words 'the Premier' and an Adjudication that did not treat the applicant less favourably than the applicant in Adjudication 1771 would have upheld the complaint on a similar basis: the letter to the editor discusses the offender person "as being the subject of potential significant violence" and the letter to the editor "could have been taken by some readers as condoning violence against the offender or had the potential to trigger violence against" the offender.
20. I am satisfied that there is sufficient evidence of 'differential treatment' meted out because of, due to the transgender status of the person being discussed in this case to constitute an arguable case of direct discrimination.
21. Having found that there is at least one possible comparator from those suggested by the applicant and possibly also a hypothetical comparator, it is not necessary to determine whether there are any other bases upon which to find that there is an arguable case, as that comparison is a strong one.
22. There may be more than one possible comparator. Only one comparator may be sufficient to establish that the reason, or a reason, for the way in which this complaint was dealt with by the respondent was that it involved a transgender person.
23. As there are matters of law in dispute and there is an arguable case, it is not appropriate to summarily dismiss this complaint, for the reasons set out above.
24. The applicant states in her letter of 6 October 2022 to Anti-Discrimination NSW at point 4 that "The publication of the material also skirts dangerously close to hate speech laws" citing s93Z of the Crimes Act 1900. Yet there is no reference of the vilification provisions of the Act.
25. The facts of this matter may raise the question of whether facts of this complaint, could also constitute transgender vilification for the purposes of ss38R and 38S of the Act, in that there is a public act as defined in s38R that "incites hatred towards, serious contempt for, or severe ridicule of a person" "on the ground that the person is a transgender person". In addition, the s52 prohibition in the Act on "permitting" another person to do an act that is unlawful by reason of a provision of the Act may also be enlivened in such a claim. See for example Burns v Smith [2019] NSWCATAD 56.
26. As the complaint has not been made pursuant to those sections of the Act dealing with vilification and there is no present application to amend the complaint to claim vilification, it is not necessary to consider whether there is an arguable case of vilification. Whether a claim of transgender vilification is arguable has therefore not been taken into account in the determination of this summary dismissal application.
27. The respondent argues that "usual complaint-handling were followed". However In Southey v Australian Press Council [2021] NSWCATAD 329 at [121], the Tribunal stated: "..even if usual complaint-handling processes were followed, discrimination could nevertheless occur if different and less favourable treatment is given to a complaint of a transgender person regarding an article regarding a transgender person, as compared with articles where another protected characteristic (such as race or sex) is involved."
28. The respondent also argued that the proceedings are vexatious because there are a number of applications between these parties regarding the handling of complaints about media reports involving transgender people. The Tribunal has a statutory obligation to consider each application on its merits. There is no other indication that the proceedings are vexatious or frivolous.
29. The fact that there are a number of claims made by Ms Southey concerning press presentation of transgender people does not change the legal obligation of the Tribunal to consider each matter on its merits, where the proceedings are not otherwise frivolous, vexatious, misconceived or lacking in substance.
30. I am not persuaded that the volume of complaints shows that this complaint is vexatious "in the sense of being brought to annoy or, otherwise, for some purpose collateral to the proceedings, such as to vent frustration or to be seen to be actively advocating for her cause" as argued by the respondent at paragraph 27 of the written submissions of the respondent dated 22 August 2023, or in any other relevant sense. This matter has substance.
31. The Tribunal is required to act in ways that are just, as well as quick and cheap, pursuant to sections 3(d) and 36(1) of the Civil and Administrative Tribunal Act, 2013 and it would not be just to summarily dismiss this matter without a hearing on the merits.
32. There ought to be a hearing of the matter, for the reasons set out above, whether "on the papers" or in person as determined by the Tribunal.

Orders

1. The application for summary dismissal of this complaint is dismissed

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2023