Southey v The Australian Press Council

NCAT Administrative and Equal Opportunity|2020-02-14|Before: Health J

Solicitors: Applicant (Self Represented) Sparke Helmore Lawyers (Respondent) File Number(s): 2018/00381334 Publication restriction: Nil

REASONS FOR DECISION

In this matter the applicant, Ms Claire Southey, alleges the respondent, The Australian Press Council (APC), discriminated against her on transgender grounds in relation to an article published on 10 January 2017 on 'news.com.au', in contravention of s 38M of the Anti-Discrimination Act 1977 (NSW) (ADA) having regard to s 38B(1)(a) of that Act.
We note that the applicant's original Points of Claim filed related to two separate acts of discrimination and three acts of victimisation. Those claims have been reduced to the one alleged act of discrimination contained in the Amended Points of Claim filed on 17 June 2019 (Point of Claim).
The APC in its Defence to the Points of Claim denies that it provided services to the public within the meaning of s 38M of the ADA. It relies on s 57 of the ADA and otherwise denies the alleged discrimination.

Preliminary Matter

As a consequence of an application made by the APC, dated 19 November 2019, the Tribunal has ordered that this proceeding be listed to determine a preliminary matter, being whether the APC provided the applicant with 'services' within the meaning of s 38M of the ADA.
It is this preliminary matter which is before us for determination.

Background to the Claim

The applicant's Points of Claim allege that the APC discriminated against her within the meaning of the ADA in its treatment of a complaint she made to the APC. The complaint relates to a 'news.com.au' article titled 'Woman accused of terrifying 7/11 Axe Attack is transgender unionist once known as Karl' (the Article). The APC conducted an adjudication, following its receipt of the applicant's complaint and found the Article did not breach the APC's general principles.
The APC has set out a summary of the applicant's claim as made in the Points of Claim: 1. the APC treated her complaint less favourably than it treated complaints about 'unwarranted emphasis placed on other personal characteristics that also materially contribute to substantial offence, distress or prejudice', 2. the APC's complaint handling process has a disproportionately adverse effect on transgender complaints; and 3. the APC 'in provision of its service of public complaint handling, indirectly treated transgender complainants less favourably than other complain[ants] who are not transgender.
It is these complaints which give rise to the preliminary question of whether the APC provides 'services' to the applicant in terms of the discrimination claim pursuant to s 38M of the ADA.

Applicant's request to have her name anonymised

At the conclusion of the hearing, the applicant requested that the Tribunal make an order to anonymise her identity pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) ('the anonymisation application'). The anonymisation application was opposed by the APC. We made orders for the filing of written submissions in respect of this application, which were received from the applicant on 21 February 2020 and the APC on 4 March 2020.

The Submissions of the Applicant concerning the anonymisation application

The applicant filed submissions supporting her anonymisation application on 24 February 2020. The submissions include a number of exhibits outlining discrimination, vilification and harassment of the transgender community both in Australia and throughout the world. One of the articles (Exhibit 5) is a news article relating to the refusal of transgendered persons into Russia. Other articles relied upon by the applicant relate to the effect discrimination and victimisation of transgender persons has on their mental health. An extract from smartraveller.gov.au was included in the bundle relied upon by the applicant. The article sets out the risks faced by LGBTI (lesbian, gay, bi-sexual, transgender and intersex) travellers overseas. We accept the risks associated with members of the LGBTI community travelling overseas and the effect discrimination and victimisation can have on their mental health. This is certainly not an issue which is disputed by the APC in its submissions concerning the anonymisation application.
In the applicant's statement in support of the anonymisation application she refers to employment positions she has held with a number of media and technology companies for over 20 years. A significant part of the applicant's employment involved her travelling to other countries. In some of those countries, it is indicated that members of the LGBTI community are not welcome, and indeed, their relationships and displays of public affection may breach local laws.
The applicant anticipates that she will likely be called upon to travel internationally to some of the specified countries in terms of her current and future employment.
In her statement, the applicant says that she has not disclosed information concerning complaints made by her to the APC, the proceedings in this Tribunal or complaints made to the Anti-Discrimination Board of New South Wales. Despite this, the applicant has become aware that these proceedings and her other complaints have been reported in The Australian Newspaper and other media publications. In some of those publications the applicant states that she has been referred to as 'it', which she considers to be dehumanising and degrading.
The applicant submits that the Tribunal should exercise a discretion to make an order to anonymise her identity in these proceedings so as to limit, as far as possible, any victimisation, discrimination or hurt towards her. All of which may result in negative reporting about her which will cause detriment to her mental health. Further, it is implied in her submissions that the reporting of her name and transgender status may affect her ability to travel freely internationally.
The APC filed submissions in reply to the anonymisation application on 4 March 2020. It says the APC would like to consent to the application but opposes it due to the many practical difficulties that would arise if an anonymisation order was made. Those difficulties are set out below.
First, an anonymisation order would give rise to practical difficulties for the APC because of the structure and nature of its operation. These difficulties include: 1. the APC publisher members have an interest in the APC and its operations. The APC has informed various publisher members (which consist of external organisations) of the proceedings commenced by the applicant and the nature of this hearing to determine the separate question. The publisher members are expecting the APC to inform them of the outcome of each application. The APC submits that an anonymisation order would place it in a difficult position with respect to informing its publisher members of the outcomes; 2. the APC has association members which comprise publisher members and public and independent journalist board members who attend general meetings and annual general meetings. They all have input into the composition of the APC's Board and its Constitution. An anonymisation order would place the APC in a difficult position with respect to its association members if it could not inform them of the outcome of these proceedings including the separate question to be determined; 3. it is common ground that the applicant has already appeared in media articles published about the commencement of these proceedings against the APC, including articles discussing the substance of the applicant's claim. The likelihood of media organisations being able to infer that the determination of the separate question refers to the applicant and approach the APC with questions to seek comment is likely. The APC says it would be 'undesirable' to be unable to confirm the decision relates to the applicant in response to those enquiries; 4. in the event that media organisations are able to infer that the decision relates to the applicant, and in the event that a media organisation discloses/publishes the information, the APC has concerns that the applicant may bring further claims against it for breaches of the Tribunal's order. In this regard, the APC refers to the applicant's submissions in respect of her anonymisation application. Without evidence substantiating the allegation, the applicant says that the APC has caused the publication of information on the internet and in newspapers about her transgender status in relation to this and other applications.
Secondly, it is submitted that the applicant suggests in support of her application that an anonymisation order would protect the confidential matter of her transgender status. However, the APC submits that the applicant's transgender status is on the public record and refers to submissions made to the Senate of the Commonwealth Parliament of Australia. The Senate was seeking submissions concerning the government's exposure draft of the Marriage Amendment (Same Sex Marriage) Bill in which the applicant identifies herself at page 1 as 'a transgender Australian' and signs the submissions in her own name. The APC said that this document is searchable on the internet and no steps have been taken by the applicant to disassociate herself with her name from her transgender status in this forum. The APC says that an anonymisation order will not remove the ability of the public to know the applicant is a transgender person, particularly given that this information is already publicly available. It relies upon the decision in State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 at [61] where the following has been said in relation to an application for the use of a pseudonym to anonymise a person in the proceedings: [52] In a number of leading authorities dealing with suppression orders at common law, the order sought was (as in the present case) an order preventing the public identification of a person - most commonly a witness - involved in proceedings being heard in open court. Frequently (though not in the present case) the order was sought at or near the commencement of the hearing and, if the application was granted, the order made was that throughout the proceeding the person should be identified by a pseudonym. [53] In such cases, the courts have applied a criterion of 'necessity', such as that stated by McHugh JA. They have, however, widened the permitted range of purposes so as to include securing the proper administration of justice generally - i.e., in future proceedings as well as in the proceedings currently being heard. In O'Shane v Burwood Local Court (NSW) & Ors [2007] NSWSC 1300, for instance, McClellan CJ at CL said at [46]: There are two questions which require our consideration. They are essentially related. The first question is whether the granting of a pseudonym order is necessary to secure the proper administration of justice. In the cases where an implied power to make pseudonym orders has been recognised - particularly those relating to blackmail, informers and extortion - the Court has been satisfied that if an order were not made the consequence would be 'unacceptable' … The consequences which have justified an order are the safety, livelihood or reputation of a victim or witness as a result of giving evidence in the proceedings. In the case of informers, revelation of their identities has been accepted as potentially undermining other investigations (including covert operations), posing a threat to their safety with the prospective prejudice to the prosecution of crime. In blackmail cases, if the identity of the 'victim' is not protected they may be vulnerable to other 'blackmailers' or reluctant to report the crime. By protecting the 'victim' in one case the court encourages other incidents of blackmail in other cases to be reported. [54] At [48] His Honour said that 'the Courts will not add to the list of categories'. … [61] … The values that have informed judicial decisions about the issues raised in s75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or for reporting.
The Appeal Panel in Dezfouli summarised at [81] the factors relevant to the exercise of the discretion to make a non-disclosure order in the following terms: … (a) the presumption of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served (for any other reason); (f) the possibility that the purposes to be served may be a mixture of private and public interest; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the full consideration underlying an order.
Thirdly, the Tribunal has published a guideline entitled 'Confidentiality, Privacy and Publication', in which proceedings of the kind commenced by the applicant are not listed as proceedings in which the identity of a party is not disclosed as a matter of course.
The hearing list published by the Tribunal in this matter has already disclosed the applicant's name. Indeed some of the details of the application, and this hearing, have already been published (The Australian Newspaper article). The APC submits that an order made under s 64 will not achieve the result which the applicant submits is necessary to protect her by the making of an order.
Fourthly, the APC, assuming it is successful in the separate question determination, will seek to rely upon that decision in relation to 12 complaints made against the APC to the Anti-Discrimination Board New South Wales. Further, the applicant has made approximately 460 complaints to the APC and has a general pattern of making complaints to the Anti-Discrimination Board when she does not agree with the outcome of a complaint to the APC. Should an anonymisation order be granted, the APC says it will be prejudiced in being able to refer to the separate question to be determined in those other complaints.
The APC also says that the Anti-Discrimination Board's functions may be prejudiced and unnecessary costs incurred by the APC, if it could not inform the Anti-Discrimination Board of the outcome of the separate question in any current or future complaints the applicant may bring.

Our Consideration

It is appropriate at this juncture to refer to the discussion of Principal Member Pearson in Winn v Hills Shire Council [2020] NSWCATAD 14 at [85]. [85] The principles governing the operation of the discretion to make orders under s 64 were considered in DLH v Nationwide News Pty Ltd [2018] NSWCATAD 92 . In that decision, the Tribunal cited with approval New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69 , in which an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal, considered in some detail the principles governing the exercise of the power conferred by s 75(2) of the Administrative Decisions Tribunal Act 1997 (NSW), which is broadly equivalent to s 64 of the NCAT Act. [86] The Appeal Panel in Dezfouli summarised at [81] the factors relevant to the exercise of the discretion to make a non-disclosure order in the following terms: … (a) the presumption in favour of open justice; (b) the need for an applicant for a suppression order to establish good grounds for making the order; (c) the comparative breadth of the criterion of 'desirability'; (d) the important differences between the types of suppression order that may be made - between (for instance) an order (as in this case) prohibiting disclosure of the identity of a participant and an order that a hearing occur in closed session, without notice to a party; (e) the undoubted breadth of the range of purposes that may be served ('any other reason'); (f) the possibility that the purposes to be served may be a mixture of private and public interests; and (g) the possibility that, although generally speaking the prospect of damage to reputation or 'embarrassment' affecting a participant in the proceedings will not provide sufficient grounds for a suppression order, there may be unusual circumstances where this is the principal consideration underlying an order. [87] As Principal Member Britton noted in Frost v TAFE NSW (No 2) [2019] NSWCATAD 129 : 11. The "presumption in favour of open justice" referred to by the Appeal Panel is a common law principle. In John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 142 -143 Kirby P explained (citations deleted): It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms … 12. Commenting on that principle the Appeal Panel in Dezfouli stated at [61]: [It] is unthinkable that the word 'desirable' in section 75(2) should be interpreted without regard to the basic common law precept of open justice. What is 'desirable' under a statutory provision must be determined in accordance with consistent standards and values, not the particular preferences of the court or tribunal applying the provision. The values that have informed judicial decisions about the issues raised in section 75 have consistently attributed considerable importance to the desirability of hearings being open to the public and fully reportable unless good reasons are advanced for restricting public access and/or full reporting. [88] Principal Member Britton referred to the Tribunal decision in Carroll v Tokdogan [2015] NSWCATAD 200 : 23. Section 64 reflects the principle of "open justice" also contained in s 49 of the NCAT Act (proceedings will be held in public) and one of the objects of the NCAT Act (to ensure that the Tribunal is accountable and has processes that are open and transparent: s 3(f)). In Carroll v Tokdogan [2015] NSWCATAD 200 , the Tribunal noted at [7]-[8]: [Section 64 of the NCAT Act] establishes the norm that unless orders are made under s 64 of the NCAT Act, the names of persons involved in proceedings will be contained in the Tribunal's written reasons for decision. As a consequence, the Tribunal commonly publishes reasons for decisions that contain facts that the parties may not wish to be published and that may disadvantage them or cause them to suffer embarrassment. The practice of the Administrative and Equal Opportunity Division of NCAT, unless otherwise ordered, is to permit its decisions to be published on Australasian Legal Information Institute and NSW Caselaw, which are freely and readily accessible through the Internet. Given the principle of open justice enshrined in the NCAT Act and the importance of justice being administered openly and in public, in our opinion, the power contained in s 64 should be exercised sparingly. [89] The practice in the Administrative and Equal Opportunity Division of the Tribunal as to what the Tribunal publishes about proceedings, including hearing lists, and how a party may apply to have a confidentiality order made, is stated in the Division's Guideline "Confidentiality, privacy and publication". An application under the GIPA Act is not included in the list of matters arising under community welfare legislation where the identity of a party is as a matter of course not disclosed. In such matters, the Guideline states that a request for a confidentiality order should be made before the start of the hearing, setting out the reasons and attaching evidence to support the application. In the absence of any earlier request by the applicant for a confidentiality order, the hearing lists published by the Tribunal have already disclosed her name. It is likely therefore that any order under s 64 may not have the effect sought by the applicant. However, the Tribunal notes that in Dezfouli the Appeal Panel noted at [94] that the fact that the name of the relevant person was already in the public domain by reason of publication of earlier reasons, did not make continuation of the anonymization order a futile exercise.
The substance of the anonymisation application is framed in terms of her transgender status and a history of medical treatment and gender dysphoria being deeply personal matters, and, not matters of public interest and public discussion. We accept her submission in this regard as it being a general statement. However, the applicant has freely disclosed her transgender status in other areas which are found on public record. Evidence of this is the submission the applicant made to the Senate of the Parliament of Australia concerning the government's consideration of the draft Marriage Amendment (Same Sex Marriage) Bill. We accept the APC's submissions that the applicant did not attempt to distance herself from that information being placed on public record. Further, the anonymisation application has been made at a very late stage in the proceedings. The Tribunal has already published the applicant's name in its listing arrangements. The Australian Newspaper and other media outlets have reported on the application and revealed publicly the identity of the applicant. Whilst not fatal to the anonymisation application, we consider that it weakens the applicant's overall argument in favour of anonymisation.
Whilst we, and most probably a large proportion of the Australian population, empathise with the difficulties that members of the LGBTI community may have in travelling to countries overseas, we find that it is in the interests of open justice that the anonymisation application be refused.
The substantive application raises both private and public interests. The Tribunal accepts that public disclosure of the fact that complaints of discrimination on transgender grounds raise the prospect of damage to reputation or embarrassment affecting the applicant. However, the applicant has not identified how there is, or provided evidence to substantiate that there is, a real risk that the decision may be used in a way detrimental to her that is different to her disclosing her transgender status in the Senate of the Australian Parliament which is in the public domain.
We have carefully weighed the effect that publication of the applicant's name may have on her personally with the matters which are set out by the Appeal Panel in Dezfouli. As found by Principal Member Pearson in Winn: As discussed in Dezfouli, there must be good grounds to make an order under s 64, and the prospect of damage to reputation or embarrassment affecting a participant in the proceedings will not generally provide sufficient grounds for a suppression order. There may be circumstances where an applicant's private interests may override the public interest in seeing justice done openly, however good reasons are required to do so.
We have especially considered the effect that the publication of the applicant's name might have on her mental health in terms of this application. This itself is of course a serious matter. However, the applicant must have been aware of this possibility before she lodged the application in this Tribunal and when she made complaints to the Anti-Discrimination Board. In that regard the applicant made a choice to proceed with her application and did not seek an order under s 64 at an earlier stage. The authorities are clear that damage to reputation or embarrassment to the applicant are not matters in themselves which warrant the making of an anonymisation order.
As set out above, the applicant made no application seeking an order under s 64 of the NCAT Act until a late stage in the proceedings. The Tribunal has already published her name which has attracted some media attention and public interest in the application. We are not satisfied that the applicant has demonstrated good grounds which enables us to exercise a discretion to make the anonymisation order as sought. The matters submitted by both the applicant and the APC in our view weigh in favour of refusing the anonymisation application so that open justice and public access to the decision of the Tribunal is achieved. We are not satisfied that an anonymisation order is necessary to secure the proper administration of justice. We are not satisfied the evidence demonstrates that it is desirable at this stage in the proceedings to make the order sought.

The Evidence concerning the preliminary question concerning whether the APC provided 'services' to the applicant

The APC, tendered the following material:

Application filed 19 November 2019 (A1)
Affidavit of Mr John Pender, sworn 16 December 2019 (A2)

The Tribunal notes the Points of Claim and the Amended Reply to the Points of Claim filed by the APC on 9 August 2019.
The applicant and the APC both relied upon written submissions which were handed up together with relevant authorities. The Tribunal adjourned the matter part-heard and made directions for the filing of further written submissions. Further submissions were filed which formed part of the material which was before us for determination.

The Relevant Provisions of the ADA

The applicant alleges that the APC discriminated against her on the grounds of being transgender in respect of the way in which the APC handled the complaint. Discrimination in respect of being transgender in relation to the supply of good and services is unlawful pursuant to s 38M of the ADA. 38M Provision of goods and services 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 terms on which the person is provided with the goods or services.
The applicant's claim only relates to an allegation that she was discriminated against on the basis of the APC providing services.
Section 4 of the ADA defines 'services' as follows: Services includes (a) services relating to banking, insurance and the provisions of grants, loans, credit or finance, (b) services relating to entertainment, recreational refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
Section 38B of the ADA sets out 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 does not think was a transgender person, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, comply or able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply, or (c) treats the aggrieved person, being a recognised transgender person, as being of the person's former sex or requires the aggrieved person, being a recognised transgender person, to comply with a requirement or condition with which a substantially higher proportion of persons of the person's former sex comply or are able to comply, being a requirement or condition which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (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.

Affidavit of Mr John Pender

Mr John Pender is the Executive Director of the APC and is appointed under its Constitution as the Chief Executive Officer overseeing day to day operations. He was appointed in this role in June 2014.
Mr Pender sets out that the APC is incorporated under the Associations Incorporations Act 2009 (NSW) and is a not for profit organisation. The objects of the APC are set out in section 3(1) of its Constitution, which include: 'To promote freedom of speech through responsible and independent print and digital media, and adherence to high journalistic and editorial standards …'
Section 3(1)(a) of the APC's objects and powers include: 'considering and dealing with complaints and concerns about material in newspapers, magazines, journals and other print and digital media'.
Mr Pender deposes that the APC determines its own complaints handling process which can vary from time to time. It is not a government agency and receives no government funding. The APC is funded vis-à-vis membership contributions which are paid by constituent bodies, including publishers and associations of publishers. Membership of the APC is voluntary. Mr Pender states an organisation can resign its membership at any time. The APC's publisher members include many mainstream and other publishers in Australia publishing both in print and online. Its membership does not include TV, radio or social media platforms.
The APC seeks to achieve its object of promoting freedom of speech by considering complaints concerning articles published by its members. The APC achieves other objects by making representations in public forums on matters concerning freedom of speech and access to information and undertaking research and consultation on such matters. In furtherance of its objective of freedom of speech and adherence to high journalistic and editorial standards the APC has developed a range of advisory guidelines on topics, which by its own observations, has determined are aspects of importance for which specific guidance should be provided to its members. This has included advisory guidelines on topics such as family and domestic violence reporting, religious terms in headlines and reporting of race. Mr Pender deposes that more recently, in consultation with members of the LGBTIQ community, the APC has prepared and issued an advisory guideline for publisher members entitled 'Reporting on Persons with Diverse Sexual Orientation, General Identity and Sex Characteristics'.
In dealing with complaints, the APC publishes information with respect to its complaint handling processes on its website. Complaints can be made by: 1. a primary complainant, that is, a person who has been personally identified or directly affected by published material; or 2. a secondary complainant, that is, a person who has not been personally identified or directly affected by published material.
Mr Pender says that secondary complainants who later make a complaint about the same material are referred to as secondary co-complainants.
The complaints handling process pertaining to a secondary complainant is different to the process followed when a primary complainant makes a complaint. Mr Pender deposes that each of the complaints made by the applicant fall within the second complainant category. The complaints handling process specific to secondary complainants is found at page 61 of the annexure of Mr Pender's Affidavit. Paragraph 4 of that process does not always involve the ongoing consideration of the secondary complainant unless the APC's executive director decides it is desirable to do so. However, the secondary complainant is kept appropriately informed of the progress of and the final outcome of the complaint.
The APC has a broad discretion in considering secondary complaints. It is incumbent upon the executive director to decide which issues are to be considered by the APC's council in these circumstances. The consideration does not necessarily include, or be limited to, the matters which were raised by the complainant in the complaint. The APC may decline to consider, or further consider, a complaint at any point thereafter, including for resourcing reasons or, that it is more appropriate to refer a complaint for consideration by another organisation.
The only concern of the APC is whether there has been a breach of the relevant standards and not to decide a dispute between a publisher member and the complainant. The APC does not charge a fee to a complainant for the lodgement of complaints nor does it provide mediation of complaints. Mr Pender says that the APC has no powers over non-member publishers, but if a non-member publisher agrees, the APC will deal with a complaint against it. Secondary complainants have no ability to challenge decisions made in relation to their complaint, unlike the opportunity for primary complainants to do so. Members of the public have no enforceable rights against the APC, apart from primary complainants being able to challenge some decisions of the APC, for failing to accept a complaint for consideration, or, if they disagree with the APC's decision about a complaint.
Mr Pender was not required for cross-examination and his evidence was not challenged.

The applicant's submissions as to whether the APC provides her a service

The applicant contends that 'news.com.au' is a member publisher of the APC. She asserts that it is not in dispute that on 10 January 2017, 'news.com.au' published an article entitled 'Woman accused of terrifying 7-11 axe attack is transgender unionist known as Karl'. It is common ground that the applicant submitted a complaint about the article to the respondent on 17 January 2017.
The applicant does not dispute the settled position that 'services' must be identified with 'sufficient precision to relate them to the facts of the case and the issues which arise for determination' citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at [405]-[407].
The applicant refers to IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at [23] in joint reasons given by Brennan CJ and McHugh J that the term 'services' has a wide meaning. The submissions go on to provide the following quote at [12]: "It is to be given 'a fair, large and liberal' interpretation rather than one which is 'literal or technical' (40). Nevertheless, the task remains one of statutory construction. Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term 'service', read in the context of the Act and its object, is capable of applying to an activity is a 'service' for the purposes of the Act."
The applicant submits that an activity may be less likely to be a 'service' if the activity is imposed on the claimant, leaving them no opportunity to refuse (citing the decision of the Appeal Panel in this Tribunal in State of New South Wales v Whiteoak [2014] NSWCATAP 99). The applicant asserts that in IW v City of Perth, the majority agreed that in 'some cases' the performance of statutory duties may amount to a 'service' to some individuals. She sets out a number of decisions where courts and tribunals have previously recognised a very broad range of activities within the community that can be termed as services (see Tassone v Hickey [2001] VCAT 47, Phillips v Andrews (Human Rights) [2018] VCAT 1714; Commissioner of Police, New South Wales Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745; Fernley v Boxing Authority of New South Wales [2001] FCA 1740; (2001) 191 ALR 739 and others).
The applicant refutes the proposition put forward by the APC that 'promoting freedom of speech and high journalistic standards may align with the general public interest, but that does not make it a service'. She refers to a number of decisions which include Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241 where Barr J of the New South Wales Supreme Court, found that the Department provided a service to an applicant when it considered and refused an application to be a foster carer. She distinguishes between the objective of the APC, being 'promoting freedom of speech through responsible and independent print …' with the APC 'considering and dealing with complaints …' which she says is an activity of the APC and therefore can be considered a service. The applicant says that the APC's complaints handling process is offered to the public at large. Any person who feels aggrieved by deceptive, unethical or unfair reporting by member publishers can submit a complaint to the APC. This is denied by the APC. The applicant says that the complaint handling activity by the APC provides redress to complainants by vindicating their grievances and publicly recognising unfair forms of reporting that may have harmed individuals by breaching reporting standards. In carrying out its complaints handling process, the applicant says that the APC affords a particular benefit to minorities affected by deceptive, unethical or unfair reporting.
The applicant has referred to the APC's complaints form where it states: 'The Australian Press Council's complaint process seeks to be as informal, prompt and economical as possible, and serves as an alternative to litigation'. The complaint form was not in evidence. However, no point was taken by the APC as to the stated text of the complaint form. The applicant contends that the APC's complaints service provides an alternative to individuals harmed by unethical reporting who are unable or unwilling to exercise litigation.
The applicant disputes that the APC's complaints handling process is solely directed to the benefit of a publisher member or other member of the APC. She says that it is also a reciprocal service that concurrently provides benefits to both its members and complainants. (Referring to Falun Dafa Association of Victoria Inc. v Melbourne CC [2003] VCAT 1955, Bowman J where he considered that the Moomba Parade in Melbourne involved reciprocal services to both the spectators and the participants.) Similarly, the applicant says that the New South Wales Supreme Court adopted a similar approach in MM where Barr J held at [41], that the service was reciprocal in nature, saying 'the fact that a person provides a service directly for the benefit of one person does not mean that the service is not also provided for anyone else.'
In conclusion, the applicant says that the APC conducts an activity of complaints handling. That activity includes the processing and consideration of complaints by the staff and members of the APC. She says it is irrelevant whether the APC levies a fee for its service. It does not matter that the complaints handling service can be characterised as a 'reciprocal' service that also benefits some additional or subsidiary persons. She says that the APC provides a benefit and service of complaint handling, and that it provided that service to her.

The APC's submissions that it did not provide the applicant with services

The APC refers to Brennan CJ and McHugh J's decision in IW v City of Perth at [16]-[17] which is authority for the proposition that the applicant is required to plead the alleged services provided to her with precision. The APC also relies upon the decision of Waters v Public Transport Corp (1991) 173 CLR 349 where McHugh J said at [4]-[5] 'The relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination'.
The APC refers to the applicant's pleaded case that the alleged 'service' is the APC's 'complaints handling and deliberative functions' and that this is a service provided to the 'general public'.
The APC says that this is not correct. It does not accept and consider 'complaints about material published in Australian newspapers, magazines and associated digital outlets' as deposed by Mr Pender are matters for the general public. The APC submits that its complaints handling process relates only to the publications of its members, although non-members, if they wish, may have a complaint dealt with by the APC. It therefore follows that the APC 'is not obliged to accept complaints or thereafter consider it.'
The APC says that the service as pleaded does not fall within the non-exhaustive list as found in section 4 of the ADA. In such circumstances we should find that, in receiving and considering the applicant's complaint, the APC did not provide a service to her.
The APC also relies upon the following further matters as to why it should not be determined that it provides a service to the applicant:

The APC is not a Government agency providing services to the public but rather a not for profit organisation.
The APC's object, as enshrined in its Constitution, is to promote freedom of speech through responsible and independent print and digital media and through adherence to higher journalistic and editorial standards.
Receiving, considering and dealing with complaints is identified by the Constitution as one of a number of ways in which the APC seeks to achieve its objects. Other ways include reviewing and where appropriate challenging developments that might threaten the public's right to know, making representations in public forums on matters concerning freedom of speech and access to information and undertaking research and consultation on such matters.

The APC relies upon the decision of State of New South Wales v Whiteoak at [156] per Wright J; 'It does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to 'services' provided to that person'. Reference is made by the APC to the findings made in Rainsford v Victoria [2007] FCA 1059; the service must be 'helpful or beneficial to a relevant class of persons to which the person alleging discrimination belongs'. Similarly, the APC relies upon the decision of Bromberg J in Winters v Fogarty [2017] FCA 51 where it was held that the equivalent of s 38M in the Disability Discrimination Act was 'confined to protecting those persons who are the subject of the provision or potential provision in question'. It says that it is not sufficient that the activity be for general public benefit. The APC says that it does not charge any fee for processing of a complaint and it has a broad discretion whether to accept and consider a complaint. Reasons such as resourcing or the appropriateness of its complaint process are matters which the APC may consider as to whether it should entertain or decline a complaint. When handling complaints the APC considers them against its standards of practice which are binding on all members and can be varied at any time by the APC. In doing so the APC determines its own complaints process as it deems appropriate. The APC says that when it decides to consider a complaint, members are required to comply with its processes. Secondary complainants do not participate in the process beyond lodging a complaint form. The only concern of the APC is whether there has been a breach of the relevant standards and it does not decide a dispute between publisher and complainant.
An appeal type process is not available to a secondary complainant concerning the APC's decision where it is available to a primary complainant. Redress does not allow the APC in determining a complaint to award compensation to the complainant or compulsorily impose any remedial action on a member, such as retraction or correction. The APC may require a publisher member to publish the APC's adjudication decision in terms of whether or not the APC's standards of practice have been breached.
The APC says that all of these matters are such that support the characterisation of the complaints handling process as an internal mechanism directed at fulfilling the APC's constitutional objects, rather than provision of a service to any other particular person or class of persons such as the applicant. Specifically in reply to the applicant's submissions concerning whether the APC provides her a service it relies on the following.
The APC's complaints process is not concerned with, or directed at, righting any 'wrong' done to the applicant, but rather with maintaining standards of journalism as embodied in the standards of practice. The APC has no power to provide any redress or even vindication to the applicant and no power to order correction, compensation or apology for breaches of standards of practice.
Whilst a secondary complainant may trigger the complaint process, its involvement with the APC is largely confined to the making of the complaint itself. The APC says that its complaints process is distinguishable from litigation processes, citing the procedural basis upon which litigation takes and a successful plaintiff generally being entitled to redress or remedy.

Our Consideration

In s 38M, "services" in the plural is used not the singular form of the word. The term "services" is capable of broad application. The Macquarie Dictionary (Online Ed) gives only one relevant definition of the plural form: "12. (often plural) the performance of any duties or work for another; helpful activity: medical services.". That dictionary does provide the following relevant definitions of "service": "1. an act of helpful activity. 2. the supplying or supplier of any articles, commodities, activities, etc., required or demanded. 3. the providing of, or a provider of, a public need, such as communications, transport, etc. ... 5. the supplying or a supplier of water, gas, or the like to the public. ..."
Dawson and Gaudron JJ in IW v City of Perth at [23] said that "services" should not be given a narrow construction unless that is clearly required by definition or context. Section 4 of the ADA provides an inclusive definition, not what is excluded. Since the matters included in the definition all fall within the ordinary notion of services the definition is to be taken as signifying everything which falls within that notion. And as neither the terms nor the content of s 38M(1) of the ADA provide any contrary indication, "services" is to be read as having its ordinary and broad meaning: IW v City of Perth at [23]. We adopt these reasons.
A useful summary of relevant decisions relied upon by the parties is provided by Barr J in MM, which we also adopt: [30] In IW v City of Perth the majority considered that the process by which a city council considered applications for planning approval and granted or withheld approval constituted the provision of services for the purposes of the Equal Opportunity Act of Western Australia. That Act defined the term inclusively in a manner quite like that in s 4 of the New South Wales Act. Brennan CJ and McHugh J, who took the narrowest view, distinguished between the exercise of a quasi-legislative role and a role of providing services. They considered that a "service" properly described as a deliberative process was not a service for the purposes of the Act. [31] The other members of the High Court took a broader view. Dawson and Gaudron JJ considered that the term "services" was apt to include the administration and enforcement of a planning scheme. So, too, did Toohey J. Gummow J considered that the term "service" and its variants were of wide and varied meaning. His Honour referred to the work of a public servant as serving the State or community in a particular capacity: at 41. Kirby J considered that the concept of "services" was extremely wide and that its meaning was to be derived from the context. He thought it wide enough to cover the administration and performance of statutory functions: at 75. [32] In Commissioner of Police, NSW Police Service v Estate Edward John Russell and Ors [2001] NSWSC 745 Sully J was concerned with the meaning of "services" for the purposes of s 19 of the Act, which deals with discrimination on the ground of race. On the occasion giving rise to the complaint a number of constables of the New South Wales Police Service had pursued and arrested the complainant. The question for the Court was whether during the course of that pursuit and arrest the constables had provided a "service". The Police Service Act defines police services as including services by way of the prevention and detection of crime and the protection of persons from injury or death and property from damage, whether arising from criminal acts or in any other way. His Honour held it to follow that such services, provided by serving police officers, were services provided by a public authority for the purposes of s 19. His Honour considered that the officers who pursued the complainant and those who arrested him were performing services. As soon as he had been arrested, the arresting officers and any other officer who had any part in the way he was handled or who witnessed the way in which he was handled became charged with a public duty to provide him services by way of protection of his person from injury or death and the protection of his property from damage. [33] In Ferneley v Boxing Authority of NSW (2001) 191 ALR 739 Wilcox J observed, obiter, that the activity of registering or refusing to register a boxer could be characterised as a service. [34] In Australian Education Union v Human Rights and Equal Opportunity Commission and State of Tasmania (1997) 80 FCR 46 Merkel J considered whether trustees performing functions under the Superannuation Act 1938 (Tasmania) and the Retirement Benefits Act 1970 (Tasmania) and the Retirement Benefits Act 1993 (Tasmania) were performing services for the purpose of the Sex Discrimination Act. His Honour observed that the activities and functions of the trustees involved the provision of services within the ordinary meaning of that word as discussed in IW v City of Perth. [35] The performance of a public function has been treated as a service: Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502 (CA). There is no suggestion that the fact that the function is a public one should lead to any different enquiry about the meaning of the term "services". [36] In Attorney General (Canada) v Cummings [1982] FC 122 the Department of National Revenue of Canada was said in assessing taxes under the relevant income taxation act to have been engaged in the provision of services within the meaning of the relevant human rights Act. [37] In Savjani v Inland Revenue Commissioners [1981] QB 458 the Court of Appeal of England decided that the Inland Revenue was providing services to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction and in disseminating and giving advice to taxpayers to enable them to claim tax relief. [38] In R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818 the House of Lords held by a majority of three to two that a clearance officer who vetoed aspiring immigrants to the United Kingdom was not providing a service within the meaning of the relevant section of the Sex Discrimination Act 1975 (UK). The officer was said instead to have been performing his duty of controlling would-be immigrants. The judgment in Savjani was explained as meaning that the Inland Revenue had two functions, a duty of collecting revenue, which was not a service, and a service of providing taxpayers with information, which was. [39] In Farah v Commissioner of Police of the Metropolis [1998] QB 65 the English Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute services to the public for the purposes of the Race Relations Act 1976 (UK).
When examining the term "services" Wright J in State of New South Wales v Whiteoak said: 156. Although, when "services" are provided, the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to "services" provided to that person. Neither the definitions referred to above nor the illustrations given in s 4(1) support the conclusion that merely carrying out activities which may, but also may not, have a consequence which is beneficial for a person should always be said to amount to providing services to that person. Indeed, if such an approach to the construction of "services" were adopted, it might well lead to the error, referred to above, of construing s 19 so broadly that every instance of discrimination constituted by differential, detrimental treatment on the ground of race would be unlawful under that section and the remaining prohibitions in Part 2 of the AD Act would be unnecessary. It could also lead into the error of ignoring the word used in the statute, namely "services", and substituting for them an imprecise definition of "services" such any activity which is helpful or beneficial. Thus, answering the question whether classification of inmates can be said to be helpful or beneficial will not, by itself, determine whether classification of inmates constitutes "services" within the meaning of s 19. 157. Furthermore and as noted above, "services" in s 19 only occurs as something that is or could be provided. The word "provide" is defined in the Macquarie Dictionary as: 1. to furnish or supply. 2. to afford or yield ... 158. Both of these meanings convey the essential notion of making something available. They do not suggest in any way that "provide" includes imposing something on a person. Thus, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances. 159. Finally, the provisions of s 19 read together with s 7 of the AD Act establish that: (1) It is the alleged perpetrator, to use the language of s 7, who must provide the services; and (2) The services must be provided to the class of persons who are in the same circumstances as, or circumstances which are not materially different from, those of the aggrieved person. 160. Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided". Subject to any contrary requirement or approach in the authorities, providing "services" should be construed accordingly. 161. At this point, it is necessary to consider whether the authorities, including those referred to in grounds 3 and 5 of the appellant's notice of appeal, require a different conclusion to that reached in the preceding paragraph as to the proper construction of "services" in s 19. … 176. Although the majority who dismissed the appeal did not all agree on the construction and application of the word "services", the reasons for judgment of Brennan CJ and McHugh J, Dawson and Gaudron JJ and Gummow J and their conclusions in that particular case do not require a different conclusion on the proper construction of s 19 to be reached from that set out above.
Of particular importance in this application is the absence of any statutory public authority, statutory body or quasi-statutory body, which bodies may be constrained in carrying out their functions based on a legislative construct. The APC is an incorporated not for profit organisation. Its objects and functions are clearly identified by Mr Pender and embodied in its Constitution. Unlike the type of organisations referred to in IW v City of Perth, State of New South Wales v Whiteoak, MM, Waters v Public Transport Corporation and the other cases involving statutory based organisations, the activities, benefits and/or the way in which the APC carries on its business is not imposed on it by statute or regulation. Its complaints handing process can therefore be distinguished from the cases which have found that a statutory body, exercising a statutory function, are not providing activities which fall within the definition of "services" under the ADA, or similar legislation.
We accept that it does not follow in every case where activities happen to result in a benefit to a person that those activities must amount to "services" provided to that person. However, the APC through its complaints handling process makes available to its members and first and secondary complainants, an opportunity for the APC to invoke, or to be part of, its complaints handling process. The APC may then decide whether to proceed with an investigation or not to do so. Mr Pender sets out the many options available to the APC in administering the complaint process.
It is without doubt that the APC provides "services" to its publisher and association members. Obviously, to provide a complaint handling process and other benefits is to provide services. The provision of these benefits to members are clearly set out in the APC's Constitution.
Importantly, when looking at whether a service is for the sole benefit of one person (in this case a publisher member), the discussion of Barr J in MM is apposite: "the fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in Commissioner of Police v Russell, police officers may in relevant ways provide a service to the community at large as well as to individuals."
In New South Wales v Whiteoak, Wright J at [160] found: Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons.
The same reasoning can be applied to s 38M of the ADA. When examining Wright J's findings, the distinguishing feature in this application is that the APC is not required to administer a governmental function or perform a statutory duty and there is no outcome that is imposed on, rather than just being made available to, the applicant, which would render it unlikely that "services" are being "provided".
Mr Pender sets out the APC's objectives as being: promoting freedom of speech through responsible and independent print and digital media, and adherence to high journalistic and editorial standards (see s 3(1) of the APC's Constitution - page 2) are the objects of the APC. It does so by, inter alia, "(a) considering and dealing with complaints and concerns about material in newspapers, magazines, journals and other print and digital media…".
We accept that the APC in considering complaints concerning articles published by its publisher members is but one of the ways that the APC seeks to achieve its object of promoting freedom of speech. It is no coincidence that members of the general public, including the applicant, may also seek that the APC and its publisher members promote and adhere to the same. It is through the APC's complaints handing process that this can be achieved and that to confer it, or the chance of it, is to provide a service within the meaning of s 38M of the ADA. The APC in providing a complaints handling process is a helpful or beneficial activity to the relevant class of persons to which the applicant alleging discrimination belongs, being the transgender community. It is therefore a service.
The APC referred us to the decision of Bromberg J in Winters v Fogarty, whilst not binding on this Tribunal it is instructive. [49] Whilst the existence of a legal obligation is not the necessary touchstone, a sufficient nexus between the provider and the person provided for or who has sought the provision of the goods, services or facilities, is nevertheless required. The text to which I have referred contemplates a nexus between the provider and the recipient or potential recipient and a nexus must have been intended as a mechanism for marking out the limits of the area of activity covered by s 24. [50] It could not have been intended that every person who may be assisted or advantaged or who may take some benefit from the provision by one person of a good, service or facility to another person, is included in the protective field marked out by s 24. In other words, the requisite nexus is not the mere obtaining of a benefit or advantage. If it were, the protective field would be absurdly broad. It would, to take one example, include the general public in relation to the provision of a good or service by one person to another which has an incidental public benefit. For instance, the provision of solar panels to a householder in the context of the environmental benefit to the general public of that supply. Such a result is not supported by the text of s 24 or by any discernible policy or purpose of that provision. [51] To my mind, the reach of s 24 is confined to protecting those persons who are the subject of the provision or potential provision in question. Of course, the provision of a good, service or facility may be directed to multiple persons so that, for example, the subjects of the provision of a bus designed to carry passengers may include the passengers to be carried and not be confined to the person who hired the bus. But, the person who was advantaged by the provision of the bus because she was relieved of driving her relative to the bus's intended destination was not the subject of the provision of the bus and has not been provided with a good or a service within the meaning of s 24. Third persons who happen to be advantaged, assisted or benefited merely as an incident of the provision of a good, service or facility by one person to another or to others, are not within the protected field contemplated by s 24 of the DDA.
Winters v Fogerty can be distinguished on the facts of this matter. The applicant, through the APC's complaints handling process, was an active participant in that activity. The APC's complaints handling process allows first and secondary complainants to make a complaint which activates the complaints process in accordance with the APC's Constitution. In these circumstances the applicant is more than an unintended person deriving a benefit. She is a secondary complainant who is a participant in the provision or potential provision in question, that being the APC's complaints handling process. As a secondary complainant, the path she takes through the APC's complaints handling process, and, any outcome achieved, is a matter at the sole discretion of the APC confined by its Constitution. But nevertheless, the applicant is a person subject to the provision of a service, whatever the outcome may deliver to her, or others, as deposed by Mr Pender.

Orders 1. The Respondent provided 'services' to the applicant for the purposes of ss 4 and 38M of the Anti-Discrimination Act 1977 in relation to her complaint made to the applicant on 17 January 2017. 2. The application for an order under s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the disclosure of the applicant's name, is refused.

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: 08 July 2020

Administrative Decisions Tribunal Act 1997(NSW)

Associations Incorporations Act 2009(NSW)

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