Southey v The Australian Press Council

Statutory Framework

1. Section 92 of the Act provides (relevantly) that: "92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint - (a) the President is satisfied that (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance … the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint."
2. I note in a decision of SM Tibbey in Southey v The Australian Press Council (2003) NSWCATAD 29 the following recital of the relevant statutory framework is set out which I adopt at paragraphs [17] to [23]: "17 A complaint will be 'lacking in substance' if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is 'not reasonably arguable': Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Limited (2006) NSWCATAD 282 at [22]. The Tribunal is obliged to consider the complainant's evidence at its highest. 18 Having received the declination and reasons for it, the complainant sought that her matter be referred to the Tribunal under s 93A of the Act. 19 Section 96 of the Act provides that a complaint referred pursuant to s 93A is not permitted to proceed without leave of the Tribunal. 20 The Tribunal has considered whether the Tribunal should permit leave for the complainant to proceed with the claim. 21 Section 96(1) of the Anti-Discrimination Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors (2009) NSWSC 143 at 25. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at 57 and Ekermawi v ADT & Ors (2009) NSWSC 143 at 32. 22 The question of leave involves evaluating whether it is fair or just to grant or refuse leave in the particular circumstances of a case: Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors (2009) NSWSC 143. 23 In deciding whether or not to grant leave the Tribunal may have regard to the grounds which the President or Anti-Discrimination NSW may take into account in deciding a complaint under s 92 of the Act, and as stated in Jones v Ekermawi [2009] NSWCA 388 at 60."

Why did Anti-Discrimination NSW decline the complaint?

1. Anti-Discrimination declined the complaint on 26 July 2022, for the following reason: 1. The complainant has not provided sufficient information capable of supporting a conclusion either that she was refused a service by the APC, or that it handled her complaint less favourably than other complaints which do not involve transgender issues, or which were lodged by individuals who were not transgender. 2. The complainant has not provided sufficient information to establish that her complaint would have been dealt with differently if it related to gratuitous reporting of a different characteristic. 3. The Tribunal has examined the Respondent's complaints handling process and found no discrimination, on the balance of probabilities (Southey v Australian Press Council Inc [2021] NSWCATAD 329). The Complainant has not demonstrated that the APC deviated from its usual complainant processes in this instance and so there is no reason to anticipate a different outcome with respect to this complaint.
2. I also note in the decision of SM Tibbey in Southey v The Australian Press Council (2023) NSWCATAD at 29 the following was said which I also adopt: "29 In Dutt v Central Coast Area Health Service [2002] NSWADT 133 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 position" where the comparator is a hypothetical comparator, as it is in this case. As stated in Dutt: "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." 30 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]). 31. A person may also experience indirect discrimination if a requirement operates differentially on a person with a particular characteristic, in this case being a transgender person. That will also constitute indirect discrimination. 32. The applicant bears the onus of proof that the applicant was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to her (or the victim of the attack referred to in the article) being a transgender person (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56]). 33. 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].) 34. It is not the case that because a person is a transgender person and experiences something perceived as "adverse" to herself, that the conduct is discriminatory simply because the person is a transgender person. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the transgender status of the person or that the transgender status was one of the reasons for the conduct. 35. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned the fact that the complainant is a transgender person or that her complaint concerned a transgender person."

What if an allegedly discriminatory act is done for more than one reason?

1. Section 4A of the ADA 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.
2. Thus, so long as discrimination on the grounds of transgender status is one of the reasons for the impugned conduct, the complaint may be made out.

Was the report complained of discriminatory?

1. The Applicant argues that the article is one of a large number of published articles that contain prominent, lurid and excessive emphasis on the transgender status and private medical treatment of the accused. She contends that the stated reference to "Arthurell plans to undergo a sex change as soon as possible, and the Court heard Arthurell identified as transgender." was wholly gratuitous and the article established no public interest in the information. The article only makes one reference to the accused as being transgender. There is no lurid, nor, excessive emphasis on the transgender status of the person.
2. The articles are a report on the parole hearing concerning Reginald Arthurell, who was identified by the State parole Authority in its report dated 22 October 2022 to identify as transgender. The articles report on a history of murder and manslaughter committed by them in the 1990's, whereby they received a sentence of 24 years in gaol. The article refers to a report of the evidence heard in open proceedings and the finding in the determination which is on the public record.
3. I find the report and the references in that report do not treat Reginald Arthurell less favourably than others who were not transgender persons. The article was a report of a publicly available determination of the Parole Hearing and the evidence adduced at that hearing. The reference to their transgender identity was not gratuitous, but had relevancy to the evidence before the parole hearing and the subsequent determination.

Consideration of the Evidence regarding failure to refer the complaint for adjudication

1. There is no evidence that the applicant was treated less favourably in the consideration of her complaint because she is a transgender person. There are no documents or records of conversations or any other evidence that would assist in establishing this.
2. I have considered in putting the case at its highest and considering the evidence at its highest, whether the applicant would have a reasonable prospect or real prospect of succeeding in her claim that the complaint was dealt with less favourably (by dismissal rather than referral for adjudication) because it concerned an article that dealt with transgender issues rather than, for example, race, sex or other category of protected attribute.
3. The Applicant has included, in this application and other applications of a very similar nature, other adjudications in evidence as comparators on the basis that this matter ought to have been referred to adjudication and would have been likely to have been so referred if it concerned another protected attribute.
4. In this application, and in other similar applications, the Respondent argues that the correct comparator would have been cases that were dismissed without adjudication, rather than those that were adjudicated.
5. The Applicant could seek to establish her case on the basis of using other adjudications as comparators. She is not precluded from doing so.
6. When considered at their highest, I am not satisfied that the adjudications relied upon by the applicant establishes that, when comparing those matters are which involve transgender grounds, there is evidence of any different decision-making practice by the Respondent, demonstrating that less favourable treatment is accorded to complaints of transgender discrimination.
7. In terms of the complaint-handling process, the Tribunal has already examined the Respondent's process in Southey v Australian Press Council [2021] NSWCATAD 329 was not discriminatory. There is no evidence that the Respondent has not followed its usual complaints handling process as it relates to this complaint and this application, or that it undertook a different process which could be seen as less favourable treatment due to transgender grounds.
8. The statistics provided by the Respondent as to the relatively small proportion of matters that have been referred for adjudication in recent years tells against a finding that in failing to refer the complaint for adjudication this complaint was dealt with in a way that was different from the usual complaint-handling processes or less favourable because it concerned a transgender person
9. The "differential treatment" is not established and, even if there had been differential treatment, "causation" is not established.

Conclusion

1. I am not satisfied that the applicant has provided evidence sufficient to establish that it would be fair or just for the complaint to be permitted to proceed.
2. Considering the case at its highest, I find that, considering the likely time and expenditure involved in defending this complaint, balanced against the opportunity for the applicant to present the case, it is not fair or just to permit this application to proceed further.
3. The Tribunal therefore declines leave for the complaint to proceed.

Orders 1. Leave to proceed with the complaint of transgender discrimination 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: 23 May 2023