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 14 November 2020, the Daily telegraph published a letter to the editor relating to an article concerning Reginald Arthurell, who was convicted in the 1970s and 1980s of multiple counts of manslaughter and murder. The letter read:
"With reference to the serial murderer Reginald Arthurell wanting taxpayers to fork out for his sex change operation, my husband said he'd perform this procedure absolutely free."
And
"A 75-year-old serial killer due for imminent release from prison wants a taxpayer-funded sex change operation. (Fiend's sex op on you, 21/10). It may not be a good look but you can be certain that on release she will be wearing a killer outfit".
During the period of incarceration, the offender has identified as transgender.
The Applicant contends that each of the "articles" included references to the offender's transgender status and their private medical diagnoses and in respect of the first "article" a thinly-veiled reference to mutilating the persons genitals. The second letter openly ridicules the individual on the basis of their transgender status. The Applicant contends the references to their transgender status and personal medical treatment were gratuitous and was not in the public interest.
The Applicant submitted that the letters breached the Respondent's General Principles because (a) the references to the persons transgender status, and personal medical treatment were gratuitous, and (b) the "articles" flippant jokes about genital mutilation were not in the public interest and cause material harm and offence. By including gratuitous references, demeaning the individuals transgender status, using crude outdated terms, using inappropriate pronouns, using the person's former name instead of their current name, and flippantly joking about serious violence, the "article" normalised and sustained prejudice and violence already experienced by transgender Australians.
The Applicant alleges that when she complained to the Respondent on 6 January 2021, the Respondent resolved to dismiss the complaint saying: "that the letter was intended as morbid humour and most readers would recognise this" and "Accordingly, the Council considers that General Principal 6 was not breached."
The Applicant said that the decision sustains and perpetuates discrimination against transgender Australians.
Like other applications made by the Applicant to this Tribunal, the Respondent handled the complaint in accordance with its complaints handling process. The Respondent contends that the complaint was not dealt with differently because it concerned transgender issues.
Anti-Discrimination NSW declined the complaint pursuant to s92 of the Anti-Discrimination Act 1997 (referred to herein as 'the Act'). The Applicant sought that the complaint be referred to the Tribunal pursuant to s93A of the Act and seeks leave to continue with the complaint.
[2]
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."
[3]
Why did Anti-Discrimination NSW decline the complaint?
Anti-Discrimination declined the complaint on 26 July 2022, for the following reason:
1. The complainant has not provided sufficient information which demonstrate 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 are not transgender.
2. 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.
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."
[4]
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.
[5]
Was the report complained of discriminatory?
The Applicant argues that the "article" is one which includes flippant jokes about genital mutilation.
The letters are an opinion or commentary from members of the public. At least the comment referring to the persons husband "perform this procedure absolutely free" goes further than black humour. The reference is gratuitous and at its highest could infer calls for violence against transgender people by untrained persons conducting necessary and technical medical procedures.
[6]
Consideration of the Evidence regarding referral of the complaint for adjudication
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 because it concerned an "article" that dealt with transgender issues rather than, for example, race, sex or another category of protected attribute.
[deleted]
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The Applicant could seek to establish her case on the basis of using other adjudications as comparators. She is not precluded from doing so. I have considered the proposed comparators included in the statement of Yvette Lamont (15 November 2022) from the respondent.
I have considered the Respondents conclusions in the adjudication:
"rather than being a serious call to violence, the letter very much reflects the strong disapproval of the writer at the crimes of the convicted person and what the letter writer considers in the circumstances to be an unjust use of community money to fund the person's transition."
It is important to remember that the Tribunal when considering a leave application is not undertaking merits review, but rather, it is a gatekeeper to decide whether it is fair and just for the complaint to proceed further.
Briefly, in the twenty seven word "article" there is mention of the community use of money to fund the person's transition. These words implied in the adjudication by the Respondent might suggest that state funded medical treatment should be denied to the individual, specifically on the basis of their transgender status.
When considered at its highest, I am satisfied that the comparators relied upon by the Applicant establishes that, when comparing those matters which involve transgender and non-transgender grounds, there is prima facie evidence of a different decision-making practice by the Respondent, demonstrating that less favourable treatment is accorded to a complaint of transgender discrimination.
I have also considered the Applicant's submission that s36B(1)(a) 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. Leave to appeal on this ground is refused.
The "differential treatment" element is established and leave is granted on that basis.
[7]
Conclusion
I am 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 fair and just to permit this application to proceed further.
The Tribunal grants leave for the complaint to proceed.
[8]
Orders
1. Leave to proceed with the complaint of transgender discrimination pursuant to s38B(1)(a) of the Anti-Discrimination Act 1997 is granted.
2. Leave to proceed with the complaint of transgender discrimination pursuant to s38B(1)(b) of the Anti-Discrimination Act 1997 is refused.
Delete paragraph [19], [20]
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
[10]
Amendments
20 June 2023 - Amended administrative errors in response to letter received 9 June 2023.
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: 25 July 2023