Southey v The Australian Press Council

NCAT Administrative and Equal Opportunity|2022-11-16

REASONS FOR DECISION

Before me is a complaint of transgender discrimination under s 38M of the Anti-Discrimination Act, NSW 1977 ('the Act'). The complaint is made by Ms Claire Southey ('the Applicant') against the Australian Press Council ('the Respondent').
The complaint relates to allegations made by the Applicant that on 11 January 2020, the Daily Telegraph reported on a convicted paedophile who was sentenced for breaching extended supervision orders. The offender identified as transgender but was referred to in the article using male pronouns and by her former name.
The Applicant contends that the article included references to the offender's transgender status which was not a matter of public interest and that it perpetuates discrimination against transgender Australians. The conduct complained of is alleged by the Applicant to be wholly gratuitous and in breach of the Standards of Practice in that the publisher publishes material in placing unwarranted or excessive emphasis on certain personal characteristics in the article with insufficient public interest in doing so.
The particular reference complained of included: "Paedophile Scott Lee Irwin, who a court was told has identified as transgender and was now known as Sheryl, has breached his ESO 11 times since 2014 and was sentenced to 18 months' jail with a 13-moth non-parole period in Wollongong Local Court last year."
The Applicant alleges that when she complained to the Respondent on 21 December 2020, the Respondent's executive director exercised a discretion to summarily dismiss the complaint in full, before referring it to adjudication on the basis that the complaint was lacking in merit.
The Applicant said that the decision sustains and perpetuates discrimination against transgender Australians. She asserts that if the article had made such prominent references to an offender's race or sexual orientation, the Australian Press Council would not have hesitated to refer the matter to an adjudication panel for examination. The Applicant submits that the handling of the complaint cannot be reconciled with the Press Council's previous treatment of similar articles that overemphasise the race or sexual orientation of an offender. In these circumstances the Respondent has treated the Applicant's complaint less favourably than it has treated equivalent complaints about gratuitous reporting on race, sexual orientation, and religion previously.

Statutory Framework

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."
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?

Anti-Discrimination declined the complaint on 20 December 2020, 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 the respondent did not follow its usual complaint-handling process in dealing with her complaint, or that it deviated from its usual processes because of the complainant's transgender status or because it reported on transgender issues. 3. The respondent has provided sufficient information to demonstrate that it will at times uphold complaints on reporting of transgender issues, including complaints lodged by the complainant. It will also dismiss complaints relating to gratuitous reporting once on other characteristics. This supports a conclusion that the respondent deals with complaints on their merits and doesn't discriminate against transgender people or transgender issues.
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?

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.
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?

The Applicant argues that the article is one which places excessive emphasis on the transgender status of the offender. Nothing in the article established any reference whatsoever between the offenders transgender status and the crimes they were convicted of. There was no public interest necessitating the use of inappropriate pronouns. There was no public interest in the references to the person's former name.
By associating the persons transgender status with criminal acts, the article sustained negative stereotypes about transgender Australians. The applicant identified a significant amount of material published which used the article, and others like it, to give legitimacy to negative stereotypes about transgender people, in and of themselves, being sexual predators.
The article reports on various offenders breaching supervision orders. The reference complained of in my view does gratuitously mention the offenders transgender status. That reference has no relevance to the article and in my view it is of no public interest. The offender's gender appears to be unrelated to their offending and could lead some readers to conclude their gender was either the cause of, or a factor in, their offending and could contribute to substantially prejudice the transgender community.
At its highest, I find the report and the references in that report may treat the person less favourably than others who were not transgender persons.

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

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.
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 by the executive director rather than referral for adjudication) because it concerned an article that dealt with transgender issues rather than, for example, race, sexual orientation or another category of protected attribute.
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.
The Respondent argues that the correct comparator would have been cases that were dismissed without adjudication, rather than those that were adjudicated. It argues that where the executive director of the respondent summarily dismisses complaints, the facts and findings of those complaints are not publicly available. It is difficult in those circumstances for the applicant to rely on them as a comparator if they are not publicly available.
In a statement of Yvette Lamont dated 15 November 2022, a number of published adjudications have been annexed. They include adjudicated decisions made by the Respondent where findings for and against complaints made in relation to other protected attributes which have been considered. The outcomes find both in favour of a complaint and against. Adjudication 1650 in 2015 related to gender. I have also considered the adjudications at Annexure "E" of the respondent's reply to Anti-Discrimination NSW concerning transgender issues, where the adjudications were upheld. I find this evidences that the Respondent has a process in place for dealing with complaints and it has found in favour, and against, some complaints relating to this protected attribute.
I have also considered the Respondent's advisory guideline about how its member publishers should consider when reporting on transgender issues.
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.
Where the executive director summarily dismisses a complaint, I accept the Applicant's contention that the Tribunal has not reviewed the process of the Respondent in dealing with a complaint which is disposed of in that way. This was not examined in the Tribunal's decision in Southey v Australian Press Council [2021] NSWCATAD 329. Notwithstanding this, 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. I accept the oral submission of the Respondent that as part of its complaint handling process, the Respondent's Executive Director has discretion to deal with the complaint summarily. The Applicant's argument that the executive director exercising a discretion to summarily dismiss a claim, which is a matter not yet examined by this Tribunal, does not of itself amount to evidence that the Respondent refused to send the complaint to an adjudication because it involved a 'transgender' ground. At its highest, there is no evidence of differential treatment. The Applicant is required to put on some evidence that it is 'fair and just' for the complaint to be considered by the Tribunal. She has not done so.
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.
The requirement of "differential treatment" is not established and, even if there had been differential treatment, "causation" is not established.
I have also considered the Applicant's submission that s36B(1)(b) of the Act, of indirect discrimination. The Applicant is required to put on some evidence of there being "an unreasonable condition or requirement" being imposed by the respondent which a "substantially higher proportion of persons who are not transgender persons….comply or are able to comply". She has not done so. The respondent contends there is no such condition or requirement. In the absence of evidence of the same, I accept the Respondent's submission.

Conclusion

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.
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.
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

At a glance

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Judgment (8 paragraphs)

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Cases Cited (4)