Southey v Australian Press Council Inc

What is required in order to establish discrimination in the provision of goods or services on the grounds of transgender grounds? Section 38B of the Anti-Discrimination Act, NSW (1977) (referred to here as 'the Act) relevantly states as follows: 38B What constitutes discrimination on transgender grounds (1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person" ) on transgender grounds if the perpetrator-- (a) on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, ….. (2) For the purposes of subsection (1) (a), something is done on the ground of a person being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender persons or a characteristic that is generally imputed to transgender persons.

1. Section 38M of the Act states as follows: It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services.
2. Section 4A of the Act provides that: If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
3. In order to establish a claim of discrimination, the applicant needs to establish that she was in fact as treated less favourably than others in the same or similar position (sometimes referred to as 'differential treatment') and that at least one of the reasons she was treated less favourably was "on the grounds of" her transgender status" (sometimes referred to as 'the causation question').
4. Dutt v Central Coast Area Health Service [2002] NSWADT 133 involved alleged racial discrimination, not alleged transgender discrimination as in this case, but the principles set out in Dutt have long been applied in interpreting the provisions of the Anti-Discrimination Act, 1977.
5. In Dutt, at [60] - [65], the Tribunal discusses how the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar positon" and states that: "It is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently."
6. The words "on the grounds of" have been paraphrased as "because of", "due to," "a real" reason, a "genuine" reason or "true reason" for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
7. The applicant bears the onus of proof, on the balance of probabilities, that she or he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to either her transgender status or the fact that the article concerned a transgender person (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56]).
8. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] - [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].)
9. It is not the case that because a person is a transgender person and experiences something he or she perceives as "adverse" to that person, that the conduct is discriminatory simply because the person is a transgender person. The person needs to prove on the civil standard, which is the balance of probabilities, that the conduct impugned occurred "on the ground of", "due to" or "because of" the transgender status of the person. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the transgender status of the person.

Amended Points of Claim

1. Amended Points of Claim were filed on 17 June 2019 and relied upon at the hearing. These alleged that in adjudicating a complaint regarding an article dealing with reporting regarding a transgender person, the APC did not apply the same standards of adjudication that it applied to articles involving allegedly gratuitous emphasis on other characteristics such as race or sex or involving alleged racially or sexually discriminatory, negative or stereotypical reporting or other types of alleged discrimination.
2. Ms Southey made clear in her complaint that she was not "directly" named in the article and not directly affected by it. Her claim is that she was indirectly affected by it because she is a transgender person and the article sensationalized and placed gratuitous emphasis on the fact that the alleged assailant, who attacked a person in a 7-Eleven supermarket whilst under the influence of drugs at the time of the attack, had transitioned several years previously and was a transgender person.
3. The complaint is that in this Adjudication, the respondent applied different and less favourable tests and standards to assessing whether the article breached Principles 3 and 6 when compared with the way in which it would assess a matter involving an article about a person of a particular race, religion, ethnicity or a person with a disability.
4. The Amended Points of Claim set out at paragraphs 26-39 that on 10 January 2017, news.com.au, which is a member publisher of the APC and had therefore agreed to be bound by the APC's General Principles, published an article about a transgender woman accused of a violent crime. The article was headlined "Woman Accused of Terrifying 7-Eleven Axe Attack is transgender unionist once known as Karl."
5. Paragraph 28 of the Amended Points of Claim stated as follows: "Of the 33 sentences comprising the article, 15 made reference to the woman's former name, gender transition, or medical treatment for gender dysphoria. The headline of the article made explicit reference to the individual's transgender status. The headline omitted the woman's current name and instead referred to her by her former name. The by-line of the article made explicit reference to the individual's transgender status. The article included six historical photographs of the woman before her gender transition. The article included screenshots of social media materials about the woman's transgender status. The captions to the photographs mentioned the woman's transgender status on six separate occasions. The article established little or no relevance in the individual's transgender status to the violent crime that had made her newsworthy".
6. The Amended Points of Claim continue at paragraph 31 that: "The public interest in the individual's transgender status, if indeed there was any, did not warrant the prominent emphasis given to that characteristic. The article places unwarranted emphasis on a person's transgender status.
7. At paragraph 32: "The article materially contributed to the offence, prejudice and harm experienced by transgender Australians."
8. The argument of the complainant is that the close association of Ms Amati's transgender status with the violent crime in the article would tend to incite prejudice and ill-will against transgender persons on the grounds of their transgender status, offending Principles 3 and 6 of the General Principles.
9. The complaint made to the respondent was dismissed, as set out in Adjudication 1707, which was published, as required by the APC, by the publisher, news.com.au, on 2 May 2017.
10. The applicant provided a number of other APC determinations (which will be referred to in these Reasons for Decision as 'Adjudications'), seeking to demonstrate that there was a pattern of failure to adjudicate in a non-discriminatory manner on complaints involving transgender persons as compared with persons of particular races or women or adherents of minority religions.
11. The applicant provided nine examples of Adjudications in relation to other matters, from 1991 through to 2017 as comparators with Adjudication 1707. In addition, she argued that whilst the APC has guidelines in relation to reporting involving issues of race, there were (at the time of this Adjudication) no similar guidelines in relation to transgender reporting and to that extent, the complaint regarding reporting on transgender issues was treated less favourably than a complaint regarding reporting on issues involving race.
12. In paragraphs 37 and 38 of the Amended Points of Claim the applicant alleges that the APC, in the provision of its service of public complaint handling, indirectly treated transgender complainants less favourably than other complaints who are not transgender. However any question of "indirect" discrimination was not pursued.
13. In paragraph 39, the applicant alleged that the APC discriminated against the applicant on transgender grounds in the terms on which the APC provided its services.
14. The applicant sought, pursuant to section 108(1)(b) of the Anti-Discrimination Act 1987 (NSW), (referred to in these Reasons for Decision as 'the Act') a Declaration that the applicant's complaint of transgender discrimination is substantiated, pursuant to section 108(2)(d) publication of a retraction of its adjudication number 1707 accompanied by a summary of the Tribunal's findings and reasons and, pursuant to section 108 (2)(c) and an order requiring the respondent to reconsider the applicant's complaint in relation to the subject matter of the respondents adjudication number 1707 of 2017.

Points of Defence

1. At paragraph 16 of the Points of Defence, the respondent admitted that news.com.au is a masthead controlled by a publisher member of the APC, admitted that the article had been published but denied that Adjudication, 1707 of 2 May 2017, discriminated on transgender grounds.
2. At paragraph 23(d) the respondent denied that it treated the complaint based on transgender issues less favourably than other complaints, stating that it followed the usual complaint handling process in relation to the complaint.
3. In response to paragraphs 36 and 37 of the Amended Points of Claim, the respondent says that it followed its usual complaint handling processes, that it issued the Adjudication and that there is no breach of the Anti-Discrimination Act (referred to here as 'the Act'). The respondent also denies that it provided a service to the public within the meaning of section 38M of the Act, relied on section 57 of the Act and otherwise denies the paragraphs.
4. In relation to paragraphs 39 and 40, the respondent denied that it provided a service, denied that it discriminated against the applicant, denied that it treated her complaint based on transgender issues less favourably than other complaints, says that it followed his complete handling process in relation to the applicants complaint and otherwise denied the paragraphs.
5. The question of whether the APC provides "services" for the purposes of s38M of the Act pursuant to s38M of the Act was determined in the affirmative in an interlocutory decision of the Tribunal in Southey v The Australian Press Council [2020] NSWCATAD 177. The decision was upheld by the Appeal Panel in The Australian Press Council v Southey [2021] NSWCATAP 9. At first instance, and affirmed on appeal, was the finding of the Tribunal that a service may be a service to the Members of the APC and also a service provided to members of the public, such as Ms Southey (see especially at [102] - [105].) They found that the complaints handling process can be designed to uphold journalistic standards as well as being of benefit to aggrieved complainants.
6. The Appeal Panel noted at [104] that exhibit JBP1 to the affidavit of Mr Pender set out some of the 'remedial actions' the APC can take in response to complaints. It was stated that: "Where a complaint is upheld, the adjudication may also include a reprimand or censure, and may explicitly call for [but not required] apologies, retractions, corrections, or other specified remedial actions by the publisher. The Council may also call for specific measures to prevent recurrence to the type of breach in question ... many complaints result in a correction, apology or some other form of action being taken due to the involvement of Council staff." Plainly, the complaints handling service of the APC benefits persons who are aggrieved by the publication the subject of the complaint.
7. The Appeal Panel concluded at [112] that: "Ms Southey identified the service as being complaint handling. We consider that she has identified the service with sufficient precision and the APC did not contend otherwise on appeal. A complaint handling process includes the determination of a complaint or, to use the APC's language, the delivery of an outcome. As we see it, that is part of the benefit or service provided to persons such as Ms Southey."
8. Thus, it has been found that the APC does provide a "service" for the purposes of the Act when adjudicating a complaint from a member of the public.
9. The respondent also relied on section 57 of the Act, arguing that pursuant to s57(2)(b) the APC is a "voluntary body" and therefore not subject to the Act.
10. In relation to remedies, the respondent disputed that the particular relief sought by the applicant is within the jurisdiction of the Tribunal and opposed any relief.

Is the APC a voluntary body and thus exempt from the Act?

1. Some of the reasoning of the Appeal Panel is of assistance in considering whether or not the respondent is subject to the Act or whether it is exempt from the Act due to s57(2)(b), as argued.
2. If the respondent is a voluntary body and thus exempt from the Act, then the application must be dismissed. It is therefore appropriate to consider that matter. Section 57 of the Act states as follows: 57 Voluntary bodies (1) In this section, "body" means a body, the activities of which are carried on otherwise than for profit and which is not established by an Act, but does not include-- (a) a co-operative registered under the Co-operatives National Law (NSW) or a society under the Friendly Societies Act 1989 , or (b) a friendly society registered under the Friendly Societies Act 1989 , or (c) a building society or credit union registered under the Financial Institutions (NSW) Code , or (d) a co-operative housing society registered under the co-operati e Housing and Starr-Bowkett Societies Act 1998, or (e) a registered club. (2) Nothing in this Act affects-- (a) any rule or practice of a body which restricts admission to membership of that body, or (b) the provision of benefits, facilities or services to members of that body.
3. Applying the tests set out in Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15 at [14] by former Deputy President Hennessy, in order to come within the exception in s57, four elements need to be established. They are that: 1. First, the respondent is not "established by an Act;" 2. Second, the activities of the respondent are carried on otherwise than for profit; 3. Third, the respondent is not a co-operative registered under the Co-operatives Act 1992 (NSW) a friendly society registered under the Friendly Societies Act 1989 (NSW), a building society or credit union registered under the Financial Institutions (NSW) Code, a co-operative housing society registered under the Co-operative Housing and Starr-Bowkett Societies Act 1998 (NSW), or a registered club. 4. Fourth, the complaints relate to the provision of benefits, facilities or services to members of the Radio Station.
4. Adjudication of Ms Southey's complaints affects the provision of benefits, facilities or services to members of the respondent, but not only to members of the respondent. The Tribunal has already ruled in Ms Southey's favour that the services provided are not provided only to the members of the respondent, but also to members of the public, including a complainant such as Ms Southey.
5. Similarly, the benefits of adjudication of complaints are benefits that accrue not only to members of the respondent but also benefit the public, including complainants, who are not members of the respondent.
6. The services that are provided to a complainant such as Ms Southey do not affect the provision of benefits, facilities or services to members of that body. The two co-exist and the provision of benefits, facilities and /or services to members of the APC is not impeded by the fact that complainants also receive outcomes.
7. The Act is beneficial legislation (IW v City of Perth (1997) 191 CLR 1 per Brennan CJ and McHugh at 12) and it is not appropriate to read it in an unduly narrow way.
8. The respondent meets the requirements of not being established pursuant to an Act of parliament. It is not a co-operative, co-operative housing society, friendly society, a building society or credit union. The services being provided in adjudication of a complaint made by a member of the public do not restrict admission to membership of the APC and do not affect the provision of benefits, facilities or services to members of the APC.
9. The APC can provide the services of adjudication to members of the APC whilst at the same time providing those services to a person who makes a complaint and seeks an adjudication of that complaint. The services to the members are unaffected by the fact that services of adjudication are also provided to a complainant who seeks an adjudication.
10. For those reasons the s57(2)(b) exemption from the Act does not apply and the respondent is subject to the provisions of the Act.
11. Given that finding, it is not strictly necessary to determine whether or not the activities of the respondent are carried out "otherwise than for profit". But if it were necessary to so determine, the Tribunal would find that the character of the activities of the respondent place the respondent outside of the category of "voluntary association" for the reasons set out below.
12. In Strong v Hospitals Contribution Fund of Australia Ltd (2004) NSWADT 176 at [108] (hereafter referred to as 'Strong') the Tribunal stated that the term "not-for-profit" does not refer to actual financial results each year, but whether it has "the character of a relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest." Further, they stated that "the exception provided for in s57 is, in our view, directed towards such bodies, and that is bodies with that character that are identified by the term 'carried on otherwise than for profit". The Tribunal therefore rejected the argument that the HCF fell within the exception set out in s57.
13. As stated in the affidavit of Mr Pender dated 23 June 2021, (referred to hereafter as 'Mr Pender's affidavit') the APC is an incorporated association under the Associations Incorporation Act 2009 (NSW) and members of the APC are constituent bodies that are associations of publishers, corporate or individual publishers, an organisation representing journalists and any other organisation that has been admitted as a constituent body under the Constitution of the APC as set out in s2 of the Constitution. He describes it as an "incorporated not-for-profit" organisation. It receives no government funding and is paid by member contributions paid by constituent bodies as provided for in s16 of the Constitution.
14. Mr Pender gave unchallenged evidence in paragraph 12 of his affidavit that the APC's publisher members include news and media publishers such as News Corp Australia, Fairfax Media (Nine), Are Media, Daily Mail Australia, members of Country Press Australia and "many other publishers in Australia publishing in print and online. It does not include TV, radio or social media platforms."
15. The list of Constituent bodies in the Annexure to the Constitution of the APC (appended to Mr Pender's affidavit) names others as including Australian Associated Press, ninemsn, Australian Rural Publishers Association propertyreview.com, the Huffington Post Australia Pty Ltd and others.
16. In addition to the constituent members, there are also public members such as Ms Julie Kinross, who chairs an Adjudication Panel as well as journalist members. There is a salaried secretariat and public members such as Ms Kinross are remunerated. Reasonable travelling and subsistence expenses are paid to Council members and staff (Constitution, s19). The Chair, Vice-Chairs and Executive Director are appointed on "such terms as may be agreed upon" ( ss8, 9, 23) and there is no assertion in the evidence that those are voluntary roles.
17. Although structured as an association that does not make a profit (Constitution s3(2)), the APC is funded by large commercial interests. Mr Pender states at paragraph 10 that the APC's funding is provided by member contributions paid by constituent bodies. He states at paragraph 57 that, on average, since 2016, the APC has employed eight people. It appears from Ms Kinross's affidavit that an honorarium is paid to Members of the Council who sit on adjudication panels, such as Ms Kinross.
18. Mr Pender characterises it as "a not-for profit organisation with limited resources" at paragraph 56. The budget of the organisation is not referred to in the affidavit of Mr Pender, however, employing eight people and offering honoraria to others such as Ms Kinross, formerly operating from premises in the Sydney CBD (as disclosed on some documents that were in evidence) and, more recently, a North Sydney location, Level 6, 53 Berry St, North Sydney (as set out in various documents attached to Mr Pender's affidavit) does not suggest that this organisation is a "voluntary organisation".
19. We find that the work of the APC is not conducted by volunteers but by paid staff and others who receive salaries or honoraria and/or other emoluments such as paid travel. They do not volunteer their labour.
20. Section 3 of the Constitution states that the objects of the APC are as follows: "The objects of the association are to promote freedom of speech through responsible and independent print and digital media, and adherence to high journalistic and editorial standards, by (1) considering and dealing with complaints and concerns about material in newspapers, magazines, journals and other print and digital media; (2) encouraging and supporting initiatives by the print and digital media to address the causes for readers' complaints and concerns; (3) keeping under review, and where appropriate, challenging political, legislative, commercial or other developments which may adversely affect the dissemination of information of public interest, and may consequently threaten to Public's right to know; (4) making representations to governments, public inquiries and other forums as appropriate on matters concerning freedom of speech and access to information; (5) undertaking research and consultation on developments in public policy affecting freedom of speech, and promoting public awareness of such issues; (6) promoting an understanding of the objects and activities of the association especially among editors, journalists and journalism schools, through forums and consultations; and encouraging feedback for Council's consideration."
21. It is clear from these objects that the aims of the association are not directed solely to benefit of the members of the Council, but to broader public policy objectives. That suggests that the Council is much more than a "relatively small voluntary body, the activities of which could be carried on by an unincorporated association of people for purposes of pursuing a common interest" as discussed in Strong.
22. For the reasons set out above, we find that the respondent is not a "voluntary association" for the purposes of the Act.

The evidence

1. The applicant relied on her affidavit, to which approximately 106 Exhibits were attached. The Tribunal ruled as to which of these were admissible and notified the parties of the Tribunal's rulings during the hearing.
2. A number of the exhibits submitted by the applicant as intended to show a "Long Term Pattern of Discrimination Against Transgender Australians" post-dated the article in question, so were not admitted into evidence. Similarly, a number of exhibits tendered as "Evidence about Transgender People as a Vulnerable Population" also post-dated the article and Adjudication in question and were not admitted on that basis.
3. The respondent relied on the affidavit of Ms Julie Kinross dated 17 June 2021 ('Ms Kinross's affidavit') and the affidavit of Mr John Burnett Pender dated 23 June 2021 ('Mr Pender's affidavit').
4. Ms Southey was not cross examined. Ms Kinross and Mr Pender, witnesses for the respondent, were cross examined by Ms Southey. Both parties provided extensive written submissions and made oral submissions at the hearing that were consistent with their written submissions.

Evidence of the Applicant

1. In her Amended Points of Claim the applicant referred to her many other complaints to the APC and to previous Adjudications. These can only be by way of background, as the Tribunal needs to determine whether the complaint at hand was dealt with in a discriminatory manner.
2. Similarly, of the many Exhibits filed by the applicant, some post-dated the Adjudication in question, so were ruled inadmissible, others related to overseas experience and guidelines in other countries for reporting involving transgender persons. There was no evidence that those guidelines were operative in this case, although the applicant implicitly argued that they ought to be.
3. Attachments 11-18 to the Amended Points of Claim were other Adjudications provided by way of comparison, determined between 1991 to 2017, on matters involving other characteristics such as race and religion (which is not a protected characteristic, as such, in NSW although 'ethno-religious' identity is so protected).

The evidence of Mr Pender

1. The affidavit of Mr Pender outlines the usual procedure followed by the respondent when complaints are received and annexes a number of relevant documents which provide direct documentary evidence as to how this particular complaint was processed.
2. According to the complaints procedure outlined by Mr Pender in his affidavit, the individual complaints are not sent to the adjudication panel unless the APC decides that it is necessary to send a complaint to the panel, a matter about which it has a discretion.
3. In this case an adjudication panel was convened and a document entitled "final statement of issues" was sent to the adjudication panel.
4. Mr Pender's affidavit states at paragraph 62 that publisher members of APC do not sit on adjudication panels, but that as this was a secondary complaint, the publisher of the article would take part in the meeting.
5. It is said to be standard practice for the APC to ask the publisher of an article to make submissions in response to the complaints received. The publication may also ask the name of the complainant.
6. A copy of the article itself, written for news.com.au and a final summary of issues indicates that one issue was said to be a possible breach of General Principle 3 and the second issue an alleged breach of General Principle 6.
7. The adjudication panel met on 8 February 2017 and was composed of Ms Julie Kinross, Vice Chair of the APC and Chair of this Adjudication Panel, Ms Melissa Seymour Dearness, Ms Cheryl Attenborough, Mr David Fagan and Mr Russell Robinson ( who stood in at short notice). They considered three matters on that day.
8. Ms Melissa Seymour Dearness was asked to act as a 'Rapporteur' for the adjudication panel. She was sent an email and a document entitled "Adjudication Panel Complaint Note". The Adjudication Panel Complaint Note stated as part of the background to complaint as follows: "Three out of the five complaints that the Council received concerning the article were from people who identified as being transgender."
9. The relevance of that information to assessing the complaint was not stated. On one view, whether those who complained were transgender persons ought not be relevant to any determination.
10. In this case the five complaints about the article in question were from members of the public who identified themselves. Copies of those complaint forms were in evidence, but as previously stated, these were not provided to the Adjudication Panel. The complaint form asks each complainant whether they have been directly affected or indirectly affected by the complaints. The complaint forms disclosed that the first complainant was said to be directly affected by the articles contents because the article is "deeply upsetting and traumatic for members of the queer and transgender communities, and their friends and families". The second complainant identified as being a transgender person, the third complainant did not indicate whether they were directly affected by the complaint and whether or not they were a transgender person, Ms Southey, the fourth complainant, identified herself as being a transgender person and the fifth complainant claimed to be a personal friend of Ms Evie Amati, the woman referred to in the article. Thus, it is not clear why the conclusion was drawn by the APC, as presented to the Adjudication Panel, that three of the five complainants were transgender persons, but it is possible that was correct.
11. The Adjudication Panel Complaint Note provided a template of issues in relation to General Principle 3 and General Principle 6 and also provided extracts from previous adjudications, namely Adjudication 1655 in relation to transgender issues, Adjudication 1587 in relation to an article with significant emphasis on people committing a crime being Muslim and Adjudication 1572 regarding whether an article unduly focused on autism in reporting a criminal trial.
12. The Rapporteur had questions and observations for the publication which appeared in the Adjudication Panel Complaint Note. Those were: What guidelines were applied for reporting on a story involving a transgender person? Is there any relation between the circumstances of arrest and transgender status or is this described for background only? How was the public interest served in emphasizing transgender status and in republishing Facebook posts from 2012 outlining this history?
13. In addition to the members of the panel, Mr Paul Nangle, APC's Director of Complaints and Mr John Pender, CEO, also attended the meeting ( as set out in Mr Pender's affidavit of paragraph 75).
14. Notes of the deliberations of the adjudication panel were in evidence, annexed to the affidavit of Mr Pender (pp 157-158). These indicated the discussion that took place and then the conclusions of the panel which included the words "not comfortable but not a breach - not substantial".
15. Ms Kinross, Chair of the Adjudication Panel for this Complaint, was cross- examined about what took place in during and after the adjudication meeting. It was suggested to her that Mr Pender had a significant role in drafting the final adjudication. Ms Kinross rejected this suggestion and stated that whilst, on the basis of the deliberations of the Adjudication Panel Mr Pender sent to her an attached draft adjudication, as Chair of the panel she was free to accept, reject or modify it. Her email of 28 March 2017 to Mr Pender, which was in evidence, indicated that she was content for the draft adjudication to be sent to the panel.
16. The only Adjudication Panel member who did not confirm that the draft Determination was appropriate and reflected the panel's decision was Ms Cheryl Attenborough, who stated as follows: "With regard to adjudication 1707, I would have preferred that we upheld as there is a such a strong over emphasis on the transgender aspect that it is over the top and seems gratuitous. However if the consensus is that we are to uphold I would prefer to see a stronger note of caution to the publications about reporting events that involve a person who is transgender, especially when there is no linkage to the fact that they are transgender and the event that has happened".
17. She evidently had a telephone discussion with Mr Pender after that.
18. Mr Russell Robinson reported back: "Adjudication 1707 is well summarized. I agree with the concluding paragraph taking the form of an advisory to publishers that transgender issues should be generally treated with caution and a degree of sensitivity".
19. Mr David Fagan and Ms Melissa Seymour-Dearness stated that the Adjudication in draft form matched the recollection of each of them respectively.
20. A summary of the responses of other panel members was provided to Ms Kinross. Mr Pender recommended to Ms Kinross that no change be made to draft Adjudication 1707. Ms Kinross accepted his recommendation and replied to that effect by email.
21. The Adjudication was sent in draft form to the publisher and then in final form with requirements that the publisher publish the Adjudication. The Adjudication was published on the website of the APC and a summary was circulated through the APC update. That procedure appears to be in accordance with the usual procedures of the APC. There is no evidence to the contrary.
22. On 2 May 2017 the APC notified the first secondary complainant about the published adjudication. Mr Pender's affidavit states that the usual practice under the complaints process is to notify all secondary complaints of the outcome but that unfortunately, complainants 2 to 5 were not sent emails "due to administrative oversight." The applicant wrote to the APC requesting a review of its adjudication and sought that the APC institute guidelines on transgender reporting.
23. As the applicant was a "secondary complainant", the APC's Constitution states that it is not necessary for the APC to conduct a review and they did not do so in this case.
24. It appears from the affidavit of Mr Pender dated 23 June 2021 that the usual processes for dealing with complaints by "secondary complainants" was followed in this case. There is no evidence that the process of dealing with a complaint was different from the way in which other complaints are dealt with.

The evidence of Ms Kinross

1. Ms Kinross gave evidence that she is the Vice Chair of the APC and was the Chair of the Adjudication Panel that decided the APC's Adjudication number 1707, the subject of these proceedings. She was appointed to the APC as a Public Member and her term of appointment concludes in December 2021.
2. Ms Kinross's evidence was that the Adjudication Panel that considered this matter met in Brisbane on 8 February 2017. The panel considered three complaints on that day. Ms Kinross was the Chair of the Adjudication Panel. Prior to commencement of the panel discussions, she had read the index of complaint materials, which included the original newspaper article and a summary of issues prepared by the secretary of the APC. A copy of that document was annexed to her affidavit. She states that it was the practice of the respondent not to divulge the names of complainants in secondary complaints to the members of the Adjudication Panel. She states that she was unaware of the identity of the complainant when chairing the Adjudication Panel.
3. Ms Kinross's affidavit states that she has a general recollection that the decision about the complaint "could have gone either way" and that the panel discussed it for quite a long time. She states that she would have been comfortable if the resolution of the panel had been to uphold the complaint but was equally comfortable with the panel's decision, which was that the general principles of the APC had not been breached in this instance. Her recollection was that none of the Adjudication Panel members argued forcefully either that the complaint should be upheld or that it should be dismissed.
4. Ms Kinross states in her affidavit and stated in cross examination that her personal view was that the article had breached the APC's principles. She considered that the number of references to Ms Amati's transgender status in the article was gratuitous and unnecessary and considered that the number of photographs and layout of the article placed a necessary emphasis on the transgender status of Ms Amati. She recalled that the panel as a whole thought that the detailed personal history of Ms Amati included in the article was unnecessary.
5. Ms Kinross gave several reasons as to why, in her view, this complaint was not upheld. First, it involved reporting on what was said in court at the bail hearing. She stated that a degree of latitude is given to an article that is a report of what happened in court, as these are public proceedings. The panel was aware that Ms Amati's lawyer had raised her transgender status and her need for hormone treatment in court during Ms Amati's bail hearing. Ms Kinross states that she recalled thinking that there was a public interest issue involved, as to what health services are offered to those who are incarcerated and the degree to which governments are required to provide health services to those in prison.
6. Ms Kinross also recalled that there was discussion of Ms Amati's Facebook profile, which allowed her profile to be viewed by members of the public. She had decided to make her profile available for public viewing and her profile contained all of the personal details included in the article. This was the second reason that the complaint was not upheld.
7. The third matter to which Ms Kinross adverted in cross-examination was the fact that she was aware that this was a 'profile piece', in the parlance of the industry: it was intended to provide insight into the person who had allegedly committed the crime of attempting to murder people not known to her in a 7-Eleven store in Sydney.
8. In cross-examination, Ms Kinross stated that in a so-called 'profile piece', the APC allows considerable latitude as to how much of the person's personal information is reported. Because Ms Amati's Facebook page contains all of the personal information that found its way into the article and because her lawyer had adverted to her transgender status and need for hormone treatment in jail, the APC determined that it's guidelines had not been breached by publication of the article on the Internet
9. Ms Kinross's evidence was that after the meeting, one of the panel members, Ms Cheryl Attenborough, communicated to the CEO, Mr Pender, that, in her view, the strong emphasis in the article on the transgender aspect of the article was "over the top" and "seemed gratuitous". Ms Kinross stated that this view had not been strongly expressed at the meeting. She agreed with the suggestion in Mr Pender's email of 7 April 2017 that Ms Attenborough's proposed change to adjudication 1707 should not be made. The Adjudication was published without further amendment.
10. A copy of the adjudication was in evidence. It stated in conclusion as follows: "No material has been drawn to the Council's attention to suggest that the factual material published about the woman's background was not obtained from her public Facebook page or was not substantially accurate. The Council acknowledges that in preparing an article of this kind the publication may well have more material which relates to one part of a person's life then another and it may be reasonable for the article to deal more with that aspect than others. On the material available to it, the Council considers that the publication took reasonable steps to ensure that the article presented factual material with reasonable fairness and balance in accordance With General Principle 3. The Council considers that the article does not suggest that the woman's transgender status caused the alleged attack, nor did it make any stereotypical generalizations about transgender people. It did include some repeated references to the woman's former name and her journey through transition, however the Council accepts these had been publicly and extensively referred to by the woman on her Facebook page. It included some repeated references to the accused woman's request at bail court for hormone therapy drugs, however the woman herself had already publicly referred to her taking these drugs, and there is a public interest in reporting about the provision of healthcare to accused persons. The council considers the publication took reasonable steps to avoid causing or contributing materially to substantial offence, distress or prejudice, or risk to health or safety. The public interest also justified reporting on her request for hormone therapy drugs. Accordingly, general principle six was not breached in this respect. While the general principles were not breached in this instance, the Council acknowledges that the Australian community may be at the early stages of understanding the appropriate approach to reporting transgender issues, and accordingly there is a need for caution in reporting on such Issues. The relevant council standards applied in the adjudication were the following general principles of the council: Publications must take reasonable steps to: 1. Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other materials such as opinion. 2. To provide a connection or other adequate remedial action if published material is significantly in accurate or misleading. 3. Ensure that factual material is presented with reasonable fairness and balance, and that writers' expressions of opinion are not based on significantly in accurate factual material or omission of key facts. 4. Ensure that where material refers adversely to a person, a fair opportunity is given for subsequent publication of a reply if that is reasonably necessary to address a possible breach of general principle three. 5. Avoid intruding on a person's reasonable expectation of privacy, unless doing so is sufficiently in the public interest. 6. Avoid causing or contributing materially to substantial offense, distress or prejudice or a substantial risk to health or safety, unless doing so is sufficiently in the public interest."

Consideration of the Evidence

1. The applicant states in her written submissions at paragraph 31 that she does not complain that the article was inaccurate, just that it placed gratuitous emphasis on the transgender status of the alleged assailant. The Tribunal needs to make an assessment of whether the other Adjudications with which the applicant compares this Adjudication were valid comparisons. If not, then the applicant's case fails unless the Tribunal posits a hypothetical comparator.
2. If the Tribunal is of the view that the comparative Adjudications were valid and reasonable comparators, then an assessment needs to be made as to whether this complaint was treated less favourably than others on the ground that it involved a transgender person, or on the ground that Ms Southey is a transgender person.
3. The applicant provides a number of comparisons: 1. first that in relation to matters involving Aboriginality, the APC has developed Advisory Guidelines, Attachment 20, the APC Advisory Guidelines on the reporting of Race 2001. At the time of the Adjudication in question, the APC had not developed any guidelines in relation to reporting on matters involving transgender persons. So this complaint did not have guidelines in place that could have assisted the Adjudicators in their determination and was therefore treated less favourably therefore than a complaint involving questions of gratuitous emphasis on race; 2. second that in Adjudication 1015 of 1999 a complaint regarding a court case involving an Aboriginal Australian person, the APC panel had found that "there was no suggestion that the woman's race was relevant to the crimes of which she was convicted" and that there was a "gratuitous reference" to a person's race; 3. thirdly in Adjudication 792 of 1995 another claim of gratuitous emphasis on race was upheld; 4. fourth in Adjudication 1587 of 2013 a complaint of gratuitous emphasis was upheld where an article referred prominently to "three heavily armed Muslims" in an article where there was no evidence that their alleged actions were due to simply being Muslims.
4. Some of the Adjudications posited as comparators were complaints where the Adjudication dismissed the compliant in whole or in part (for example Attachments 11, 12, 13, 14, 16 and 17). Even though these complaints were not upheld completely, the Adjudications often contained a statement encouraging the publication to be sensitive, to be careful not be inflame prejudice and not to unfairly suggest an association between a group and a crime if there was no proven association.
5. In the Adjudications contained in attachments 15, 18 and 19, the complaints were upheld. Attachment 15 concerned a racially offensive article, Attachment 18 use of the words "Islam", "Islamic" and "Muslim" in an article about terrorism and Adjudication 19 concerned demeaning, belittling depiction of women.
6. The respondent argued that some of the comparative Adjudications were earlier in time to a change in the Principles being applied, but the applicant argued that even though there was a slight change, the thrust of the Principles remained the same.
7. The respondent submits in their outline of submissions received by the Tribunal on 24 June 2021, that the applicant has not proven, on the balance of probabilities, that she was afforded less favourable treatment than would have been afforded a person who was not of transgender status in the same or similar circumstances or, if she was subject to some such treatment, that her transgender status was a reason for the less favourable treatment.
8. The respondent argues that questions about whether there has been a gratuitous emphasis on a protective characteristic and whether reporting on such characteristic is relevant and/or in the public interest is necessarily subjective in nature and that answers to those questions will depend on the particular facts and circumstances of the case in question. For this reason, the respondent argues that it is inappropriate for the Tribunal to rely as comparators on the outcomes of any other "gratuitous emphasis" complaints, as set out at paragraph 31 of the applicant submissions.
9. The respondent argues that there are many factors that cause such alleged comparators not in fact to be comparators, including changes in APC policies and principles that were in operation at the relevant time. The submissions also note that there have been adjudications dealing with complaints about articles that report on transgender issues or individuals that have been upheld and that there was no singling out of this complaint vis-à-vis other complaints made by persons not of transgender status.
10. The respondent also argues that Ms Southey's transgender status was not a reason for the APC's handling of her complaint. They cite direct evidence from those involved in the handling of the complaint that the real reasons for their decision-making were unrelated to Ms Southey's transgender status.
11. Ms Kinross gave evidence that, in her view, the reasons that the complaint was not substantiated were the following: the article was a "profile piece" and therefore discussion of personal matters was warranted. The second reason for not upholding the complaint, Ms Kinross said, was that when the criminal charges arising from the axe attack were dealt with in the bail court, the barrister for Ms Amati publicly referred to her transgender status and need for hormone-replacing medication whilst on remand. Ms Kinross stated that where there is a report of what was said in court, significant latitude is permitted in the industry so that a "court report" provides details and information that in another sort of article would not be seen as acceptable. She stated that this is because court proceedings are said to occur "in public" and there is a public interest in reporting what happens in court. Thirdly Ms Kinross stated that the Facebook page of Ms Amati frankly discussed her life before transitioning and photographs of her prior to transitioning and photographs afterwards.
12. The evidence of Ms Kinross was that Ms Southey's transgender status was not known to her or other members of the Adjudication Panel. There is no compelling evidence to the contrary.
13. The Respondent points to the principles for drawing inferences laid down in Dutt v Central Coast Area Health Service [2002] NSWADT 133. At [70], the Tribunal has identified considerations in the drawing of inferences as follows: 1. A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts 1. An inference must be reasonably drawn on the basis of the primary facts 2. An inference can be drawn from a combination of facts, none of which viewed alone would support that inference. 3. A fact relied on as the basis of an inference need not be proved to the requisite standard of proof 4. It is not enough that the inference is a mere possibility: it must be one of "probable connection" 5. The inference must be a logical one, and not supposition 6. An inference cannot be made where more probable and innocent explanations are available on the evidence.
14. The respondent argues that no inference can be drawn that transgender discrimination was the real reason for the APC's handling of the applicant's complaint because a more probable and innocent explanation is available on the evidence: simply that the relevant persons involved in handling the complaint did not consider that the complaint concerning the article had been substantiated and reached that view for reasons that were not discriminatory.
15. The respondent argues that because Ms Kinross did not know that Ms Southey was a transgender person at the time of the Adjudication, neither she nor the panel could have discriminated against her in the way the complaint was assessed and determined adjudicated.
16. The affidavit of Ms Kinross dated 17 June 2021 purports to annex all of the documents that she had that were relevant this adjudication. However an appraisal of Mr Pender's affidavit of 23 June 2021 shows that he states at paragraph 73, that on 7 February 2017 Mr Nangle emailed the adjudication panel a complaint note with a reporter's comments to the adjudication panel members. A copy of that document is annexed to the affidavit at page 153. Under the heading "background to complaint" there is a statement that "three out of the five complaints that the Council received concerning the article were from people who identified as being transgender".
17. Thus, although Ms Kinross states at paragraph 13 of her email that she did not know the identity of the complainant when chairing the adjudication panel, assuming that she received the complaint note, she and the other panel members had, in effect, been told that it was more than likely than not that the complainant was a transgender person. Whether that information had any relevance to, or effect on their decision-making is difficult to test or assess. This issue was not addressed at the hearing.
18. We accept the evidence of Ms Kinross that there was no conscious intention or motivation to discriminate against a transgender complainant in the way that a complaint regarding an article about a transgender person was adjudicated. There is no indication in the documents in evidence of any discriminatory intention or motivation.
19. We also accept the evidence of Ms Kinross and Mr Pender that the "usual complaint-handling process" was followed. However even if usual 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.
20. It has long been established that motive or intention is not determinative as to whether or not discrimination has occurred (See Waters v Public Transport Corporation [1991] 173 CLR 349 per Mason and Gaudron JJ at 359, Deane J agreeing at 342, in relation to different legislation, but dealing with the expression "on the ground of" See also Purvis v New South Wales (2003) 217 CLR 92 per McHugh and Kirby JJ at 142 - 143 and Gummow, Hayne and Heydon JJ at 163).
21. Discrimination could therefore occur even though there is no conscious motive or intention to discriminate, if firstly, a complaint about reporting of a matter involving a transgender person was treated less favourably than a complaint about some other sort of matter (ie if there was differential treatment) and, secondly, if the real reason for a complaint being treated less favourably than a complaint about a different sort of matter was treated was the transgender status of the complainant or the fact that the complaint was a complaint regarding an article about a transgender person. See also Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [61] - [65].
22. The applicant relied on several adjudications in relation to transgender persons, seeking to illustrate that there was a pattern of allowing more gratuitous emphasis on transgender characteristics than would have been seen as appropriate in other reporting involving persons with other characteristics set out in the Act. However an assessment of those Adjudications does not bear out that analysis, for the reasons set out below.
23. Adjudication 1709 of 20 June 2017, Exhibit 17 of the applicant's exhibits was in relation to a report in the Daily Mail Australia regarding the same incident as that report that was the subject of the Adjudication in these proceedings. The Daily Mail article also included photographs of Ms Amati prior to transition, with her previous girlfriend and swimming with friends. That complaint was upheld to the extent that it included photographs of others close to Ms Amati and named Ms Amati's mother and sister. It was held that this breached Principle 6 and Privacy Principle 7. The Adjudication accepted the explanation of the newspaper as to the reasons that otherwise the article did not offend either Principle 3 or Principle 6.
24. Adjudication 1709, which was upheld in part, indicates that careful consideration was given to the issues at hand and the complaint was not refused in its entirety.
25. The applicant also relied on Adjudication 1586 of 30 December 2013, Exhibit 13 in relation to an article in the Bairnsdale Advertiser on 8 July 2013. The panel did not uphold the Complaint, saying that it fell within the bounds of Principles 3 and 6. However the Council stated: "The Council noted that the editorial appeared to use the term "transgenderism" to mean discouraging traditional behavioural characteristics of the genders, rather than actual change in gender. But this limited meaning was not clear. Moreover, parts of the editorial was clearly open to be read in the way the complainant did, namely linking transgenderism with paedophilia. Although the editorial may have caused very great offence to some people, the importance of freedom of expression is so great that the Council considers it did not clearly breach the Council's Standards. Accordingly, the complaint is not upheld. However, on the assumption that the editorial was not intended to refer to people who are changing, or have changed their gender, nor to link them with paedophilia, the Council urges the newspaper to publish a prominent clarification to that effect".
26. On one view, this adjudication indicates careful attention to the nuances of the article and, although the complaint was not upheld, action was ordered of a corrective and educative nature.
27. Exhibits 14 and 15 of the Applicant's documents concerned Adjudication 1655 dated 18 September 2015. It concerned an article regarding a transgender woman who was arrested, produced and knife and refused to drop it, apparently whilst under the influence of a drug, suspected to be ice. The article referred to her transgender status. The police explained to the publication that "although she looks feminine, the offender still has the strength of a man". She was tasered.
28. The Adjudication found that the references to her transgender status was reasonable, explaining the use of the taser due to her strength and concluded: "The Council is sensitive to the issue of the media's portrayal of transgender issues. However, the alleged offender's transgender status was central to the police explanation of the reason for use of the taser. Accordingly, there was no breach of General Principle 3 or 6. The Council also notes the steps taken by the publication to address the complaint and ensure such issues are covered sensitively".
29. The adjudication states that the publication updated the article with the police comments and reduced the number of references to transgender and removed the term "pre-surgery", hence the reference to "steps taken".
30. This is an example of a complaint that was not upheld but was clearly carefully considered. The feedback of the APC to the publication resulted in changes to the article being made.
31. Two of these three Adjudications regarding transgender complaints were adjudicated prior in time to the Complaint the subject of these proceedings, which was published on 2 May 2017. The third, Adjudication 1709 concerned the same basic incident and person, Ms Amati, as Adjudication 1707.
32. The fact that the respective panels appear to have been careful in their assessment of the reporting and that some complaints about articles involving transgender persons were upheld in part tells against concluding that the APC, as at 2 May 2017, acted in a discriminatory manner in adjudicating this complaint. It suggests that there was, at the relevant time, considerable care in the approach to the assessment and Adjudication of complaints.
33. As to the question of whether the fact that there were no Advisory Guidelines available in relation to reporting on transgender issues whilst there were such guidelines in relation to reporting on matters involving Aboriginal people, there was no evidence that there were such guidelines in relation to reporting on people with disabilities, women or carers, for example. Ms Southey states that there were other guidelines issued by the APC in relation to media reporting on race, religion, asylum seekers and domestic violence, though these were not in evidence. But guidelines had not been issued in relation to reporting on matters involving every characteristic that is protected under the Act. We do not infer, therefore, that the fact that there were no such guidelines in relation to reporting on matters involving transgender matters was evidence of discrimination on the ground of transgender status, just that there was uneven and limited development of guidelines.

Findings

1. In relation to Adjudication 1707, we find that the comparators posited are valid comparators but we are not satisfied that they show that in this particular Adjudication that less favourable treatment was given to the complaint and/or to the complainant due to the transgender issues contained in the article. Reviewing each of the three other Adjudications regarding reportage of matters involving transgender people, there appears to have been a careful weighing of the material, which is why some complaints have been upheld, at least in part.
2. That same careful weighing is evident in Adjudication 1707. The comment of Ms Attenborough after the adjudication shows that the result was finely balanced. Ms Kinross's evidence indicated that considerable latitude is given where a matter includes a report of what happened in open court. That is consistent with the reality that we have an "open justice" system and there is a public interest in the public being appraised of what was said in open court.
3. Ms Kinross also highlighted the fact that Ms Amati was very open on her Facebook page about her transitioning, a matter that may have been deeply private for another person and which the applicant submitted was a "deeply private matter". That degree of openness by Ms Amati on her Facebook page about her transitioning was taken into account in adjudicating the complaint.
4. The third justification of the publication, that the article was a "profile piece" appears to be a very 'thin' justification for possibly gratuitous material. In this case, quite salacious and arguably unnecessary detail was included in the article. That, of itself, would not be sufficient for the Tribunal to infer that the reason the complaint was not upheld was the fact that it involved a transgender person.
5. The Tribunal is satisfied from the evidence of Ms Kinross that a cogent, adequate explanation of the reasoning of the Adjudication panel has been provided. This explanation includes the difficulties that faced the panel in reaching a conclusion not to uphold the complaint and in weighing a number of matters. It is therefore not appropriate to draw an inference that discrimination was one of the reasons for the Adjudication result, either arising from discrimination by the panel in the task of adjudication or from discrimination towards Ms Southey.
6. We are not satisfied that there was differential treatment on the ground of transgender status in the Adjudication of the complaint or the treatment accorded to the applicant in the result of the Adjudication.
7. Adjudication number 1709 of 2017, another complaint regarding reporting involving Ms Amati, was adjudicated upholding the complaint in part, at around the same time as the Adjudication in question. As such, this adds weight to our view that the fact that this article involved in Adjudication 1707 involved transgender matters was not, of itself, the reason or a reason for declining to uphold this complaint.

Conclusion

1. The Tribunal is not satisfied that it has been proven, on the balance of probabilities, that Adjudication 1707 was conducted or decided in a discriminatory manner due to the subject matter of the article, concerning a transgender person. Nor are we satisfied that the applicant, in the Adjudication of this complaint, was treated in a discriminatory manner due to her transgender status.

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

Amendments 13 May 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act the quoted text at [4] is amended. 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: 13 May 2022