This was a complaint of transgender discrimination under s38M of the Anti-Discrimination Act, NSW 1977 ('the Act') made by Ms Claire Southey ('the Applicant') against The Australian Press Council ('the Respondent').
The applicant alleges that on 27 March 2020 the Daily Telegraph published a report on a woman who was assaulted by 15 teenagers and left unconscious in the Sydney suburb of Dee Why. The victim of the assault was reported as being a transgender woman.
The applicant contends that the report featured prominent reference to the transgender status in the headline and subline, further references to it in the body of the article and in captions accompanying the photographs. She alleges that the repeated and prominent references to the transgender status of the victim were excessive and gratuitous and that such unwarranted emphasis on the transgender status of the victim treated the victim less favourably than others who were not transgender but had other characteristics such as race, religion, nationality, gender, sexual orientation, marital status, disability, illness or age.
Further, the applicant alleges that when she complained to the respondent on 27 March 2020 about this reporting, the respondent resolved to dismiss the complaint rather than referring it for adjudication. The applicant argues that this treated her complaint less favourably than it had treated equivalent complaints about gratuitous reporting on race, sexual orientation and religion in the past.
The article was headlined "Transgender woman bashed unconscious by 15 men near Dee Why Surf Club". Under a photograph of the surf lifesaving club is the caption "Police are hunting a pack of 15 male teenagers who "cowardly" assaulted a transgender woman in a night-time attack near the Dee Why Surf Club."
A caption under a second photograph stated "The reserve near the Dee Why Surf Life Saving Club where a transgender woman was attacked by a mob of 15 males in their late teens."
A third photograph of a police office in uniform was captioned "Northern Beaches Police crime manager Michael Boutouridis said officers were keen to hear from anyone who knew the identity of the attackers".
The article itself stated as follows:
"Police are hunting a pack of about 15 male teenagers who "cowardly" assaulted a transgender woman in a night-time attack in a busy public carpark on the northern beaches.
The woman, in her late 20's, was knocked unconscious when she was set upon by the mob near the Dee Why Surf Life Saving Club.
She was punched and kicked to the ground in the targeted attack on the grass near the surf club about 8.30pm last Friday.
Now police want to speak with the youths, all in their late teens, involved in what they described as "the cowardly attack".
The victim, who was living in her vehicle in the carpark, was struck repeatedly.
She was left concussed and suffered numerous cuts and bruises.
Since the attack police have been helping her to find alternative accommodation.
A Dee Why resident commented on the Northern Beaches Police Facebook page that a group of youths regularly congregate in James Meehan Reserve, behind the surf club.
"Numerous people have complained about harassment and threats," the resident said. "One person has been followed and even had their car tampered with."
Northern Beaches crime manager Michael Boutouridis said investigations into the assault on the woman were continuing.
"Police are keen to speak with any person who witnessed the incident, or were involved in the incident", Chief Inspector Boutouridis said.
"Anyone who can help us identify those involved is asked to call the Dee Why station 9971 3399 or Crime Stoppers on 1800 333 000."
The applicant argued in her complaint that:
"The article established no connection between the victim's transgender status and the matter of public interest. The information about the victim's transgender status was included for gratuitous purposes"
and
"nothing in the article suggested that the person's transgender status was a contributing factor to the attack. Nothing suggested that the attack was an anti-transgender hate crime"
and
"LGBTI Australians merely want to participate freely in society without the constant concern that a deeply and personal aspect of their identity will be gratuitously and prominently reported upon if they ever find themselves caught up in a newsworthy event".
Further, she said that:
"If the article had made such prominent and gratuitous references to a person' race or religion, the Australian Press Council would not have hesitated to refer the matter to an Adjudication Panel for examination…the Australian Press Council treated my complaint less favourably than equivalent complaints about gratuitous reporting on race, sexual orientation and religion previously".
The respondent replied by email on 28 April 2020 denying discrimination against the applicant and denying that it had determined the complaint less favourably than would have been the case if other characteristics were involved, rather than transgender status.
The respondent argued that:
1. the article referred to the transgender status of the victim in the context of a report on the attack;
2. there was no victim-blaming;
3. there was no identification of the victim;
4. there is a public interest in reporting on the serious issue of violence against transgender people and that the decision was open to it, not affected by discrimination and
5. the complaint was dealt with in line with its general complaints handling processes, where, between 1 July 2019 and 30 June 2020 only 20 of the 868 complaints that were closed were resolved by referral to adjudication.
The respondent also argued that the applicant was seeking, in effect, to appeal the decision to dismiss the complaint but that the question for the Tribunal is whether the decision to dismiss the complaint was affected by discrimination. The respondent submitted that there was no such evidence of discrimination and the complaint should therefore be dismissed.
The applicant did not accept this in her submission in response.
Anti-Discrimination NSW declined the complaint pursuant to s92 of the Anti-Discrimination Act 1977 (referred to here as 'the Act') and the applicant sought that it be referred to the Tribunal, where she sought leave to continue 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.
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 Ltd [2016] NSWCATAD 282 at [22]. The Tribunal is obliged to consider the complainant's evidence at its highest.
Having received the declination and reasons for it, the complainant sought that her matter be referred to the Tribunal under s93A of the Act.
Section 96 of the Act provides that a complaint referred pursuant to section 93A is not permitted to proceed without the leave of the Tribunal.
The Tribunal has considered whether, whether the Tribunal should permit leave for the complainant to proceed with the claim.
Section 96(1) of the Anti-Discrimination Act 1977 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 para 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].
The question of leave involves evaluating whether it is fair or just to grant or refuse leave in the particular circumstances of the case: Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors [2009] NSWSC 143.
In deciding whether or not to grant leave the Tribunal may have regard to the grounds which the President of Anti-Discrimination NSW may take into account in declining 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 NSW declined the complaint as lacking in substance under s92(1)(a)(i) on the basis that the complainant had not provided sufficient information capable of supporting a conclusion that
1. the respondent handled her complaint less favourably than similar complaints which do not involve transgender persons or
2. which are lodged by persons who are not transgender or which involve gratuitous reporting on a different characteristic and that
3. there is no evidence that the complaint-handling process of the APC has been affected by discrimination.
The applicant sought that the complaint be transferred to the Tribunal pursuant to s93A(1) of the Act.
[4]
What is required in order to establish discrimination?
In order to establish a claim of discrimination, the applicant needs to establish that at least one of the reasons she was treated less favourably than others in the same or similar position (sometimes referred to as 'differential treatment') was "on the grounds of" her being a transgender person (sometimes referred to as 'the causation question'); she may also wish to establish, on the basis of probabilities, that the complaint she made was treated less favourably than other complaints that were not complaints on the basis of transgender discrimination.
The respondent argued that the applicant is not at liberty to argue that other complaints made on the basis of race or religion were treated more favourably than this one but must establish that this complaint was treated less favourably as compared with complaints made by those who are not transgender or where the basis of the complaint does not concern transgender issues.
Whilst the applicant is at liberty to determine who she chooses as the comparator group, it is a matter of law for the Tribunal to determine whether or not that is a valid comparator group.
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."
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]).
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.
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]).
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].)
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.
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.
[5]
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.
[6]
Consideration of the evidence regarding whether the report in the Daily Telegraph was discriminatory
The complainant argues that there was undue emphasis in the article on the transgender status of the person attacked in the car park. In the body of the article itself, there is only one reference to the fact that the person attacked was a transgender woman. The article does not provide graphic detail but indicates that police are resolutely investigating the matter and assisted the victim of the attack to find alternative accommodation.
The article also suggests that other residents are unhappy with the antisocial and criminal conduct of the group who apparently undertook the attack, a group which has also harassed, threatened and stalked other people in the area. This adds to a picture of a community abhorring such violence and being very critical of those who were perceived to be the perpetrators of it.
The photographs and captions to the article are proportionate and to the same effect. Whilst the word "transgender" was used in the captions under two of the three photographs, it was not used in the third. In the first two captions, it was made clear that such an attack was cowardly.
The article does not present the victim of the attack as other than a victim and does not seek to blame her in any way for the attack. It indicates that others in the community are also adversely affected by the antisocial and criminal conduct of the alleged perpetrators of the attack and that police stand with the transgender victim to investigate the crime and to actively assist her with finding better accommodation.
The applicant argues that there is no evidence in the article that the attack was a hate crime against transgender woman because of her transgender status, so her transgender status should not have been referred to and to refer to it was "excessive" and constituted discrimination.
I find that in the report, including the headlines and captions, the victim of the attack was not treated less favourably than others who were not transgender persons. The tone of the article was respectful towards her and created an impression of a community, including police, "closing ranks" to protect her safety and to deal with the alleged perpetrators of the attack.
The reference to the fact that the victim of the attack was a transgender person was not gratuitous, but had significance for the reading public as an instance of violence against those of minority status, including transgender status.
[7]
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 also need to determine whether, putting the case at its highest and considering the evidence at its highest, 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.
The applicant has submitted 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 argued that the correct comparator would have been cases that were dismissed without adjudication, rather than those that were adjudicated.
I find that, at its highest, the applicant could seek to establish her case on the basis of using other adjudications as comparators. She is not precluded from doing so. However, the adjudications she has presented are few in number and are over a significant period. The entirety of the adjudications over the period was not in evidence.
There was no attempt to present all adjudications within a given period, which would have enabled a more balanced consideration of all results of adjudications rather than "cherry-picking" a few adjudications to attempt to show that by comparison this complaint was not treated as favourably as others due to it being a transgender-related complaint.
Considered at their highest, the small number of the adjudications relied upon by the applicant does not establish that, when those matters are compared with matters involving transgender status, there is a different pattern of decision-making so that less favourable treatment is accorded to complaints of transgender discrimination.
The respondent alleged that between 1 July 2019 and 30 June 2020 only 20 of the 868 complaints that were closed were resolved by referral to adjudication and thus, non-referral was quite common. That information was not contested by the applicant.
In terms of the complaint-handling process, 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
Nor was there any documentary or other evidence that the way in which this complaint was handled differed from the ways in which other complaints were handled and that this was due to the transgender issues involved in this complaint. The "differential treatment" was not established and, even if there had been differential treatment, "causation" was not established.
[8]
Conclusion
From the written submissions and oral argument at the leave hearing and having regard to all of the written material that is before the Tribunal in the President's Report, 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.
The applicant sought that this complaint be joined with another complaint made in file number 2022/00259002. It follows from this decision that the application for joinder is dismissed.
[9]
Orders
1. Leave to proceed with the complaint of transgender discrimination is refused.
2. The application for the joinder of this complaint with the complaint made in matter number 2022/00259002 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
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Decision last updated: 03 February 2023