Southey v The Australian Press Council

NCAT Administrative and Equal Opportunity|2022-10-12

Background

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').
This complaint arose from a report in the Daily Mail Australia dated 21 December 2018 that was headlined "Transgender sex worker who knowingly affected a man with HIV during unprotected sex has her jail sentence slashed to four years." The Daily Mail article was a report about, and based upon, the judgment of the Court of Appeal (WA) in Palmer v The State of Western Australia [2018] WASCA 225, an appeal by CJ Palmer as to severity of her sentence.
The applicant is a transgender woman. Both parties accept that she has standing to make an application to Anti-Discrimination NSW.
There was some confusion when the matter was considered by Anti-Discrimination NSW as to which of two articles was referred to by the applicant, as she had also lodged a complaint about another article regarding the same subject matter and in similar terms.
The applicant confirmed to Anti-Discrimination NSW that the article about which she complained in this complaint is the one that was printed in the Daily Mail Australia dated 21 December 2018. It will be referred to as "the article".
The applicant complained to the respondent regarding the article. After an investigation, the respondent dismissed her complaint rather than referring it for adjudication by a panel.
The applicant set out her complaint in a letter to Anti-Discrimination NSDW dated 14 February 2021, stating (in part) that: "The matter of public interest behind the article was one of judicial sentencing. The offender's transgender status was not a contributing factor to the Court's review of the sentence duration. The fact that the offender is gay or transgender is not, of itself, a matter of public interest. It is a personal, and often very private, aspect of a person's identity. The article contained repeated, gratuitous and overly prominent references to the offender's transgender status in the headline, three times in the sub-headlines, and again in the first and second sentences of the article. The emphasis is unwarranted…. On 30 April 2020, following an investigation period spanning 16 months, the Australian Press Council resolved to dismiss the complaint during the early stages of its investigation, finding that it was unlikely that a breach had occurred. … The decision sustains and perpetuates discrimination against transgender Australians. 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 handling of my complaint cannot be reconciled with the Press Council's previous treatment of similar articles that over-emphasise the race of an offender. The Australian Press Council has treated my 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.
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 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]. It should consider the evidence of the applicant at its highest.
As stated by Hennessy DP (as she then was) in Xu v Sydney West Area Health Service [2006] NSWADT 215 at [17] in relation to s96(1) of the Act: "…the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims."

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.

What is required in order to establish discrimination?

In order to establish a claim of discrimination, the applicant needs to establish, on the basis of probabilities, that the complaint she made to the respondent 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 persons 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]) or that the complaint was treated less favourably because it involved an article about transgender issues.
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. In this case, to establish a claim of discrimination, the applicant needs to prove either that she was discriminated against as a transgender person in the way her complaint was handled or that the complaint was treated less favourably because it concerned transgender issues.
To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned was the fact that the complainant is a transgender person or that her complaint concerned a transgender person.
To establish a claim of indirect discrimination, the applicant needs to prove, on the balance of probabilities that a test or requirement put in place by the respondent had a discriminatory effect on the applicant or the complaint made by the applicant and that the test or requirement was not reasonable in the circumstances.

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.

What is the applicant seeking to establish?

The possible ambit of this complaint is, on one view, unclear. The summary of the bases upon which Anti-Discrimination NSW rejected the claim indicates the possible dimensions of the complaint, including that the complaint was handled either less favourably than complaints which do not involve transgender people or complaints which are not lodged by transgender people or complaints which involve gratuitous reporting on a different characteristic. Anti-Discrimination NSW was not satisfied that one any of these bases there was sufficient evidence to warrant referral to the Tribunal.
They also found that there was insufficient evidence that the complaint handling process was vitiated by discrimination in the failure to refer the complaint for adjudication to warrant referring the matter to the Tribunal.
Whilst the precise ambit of the complaint is, on one view, unclear, that summary by Anti-Discrimination NSW of possible readings of the ambit of the complaint is helpful and will also be considered in this decision.
At the end of her submissions seeking leave dated 8 October 2022, the applicant states that she seeks to prove either of the following: " i. differential treatment, an initial inference of causation, or ii. an unreasonable condition or requirement in which a substantially higher proportion of people who are not transgender, are able to comply" and that "the facts alleged, if taken at their highest, disclose a cause of action for transgender discrimination pursuant to Section 38M of the Anti-Discrimination Act."
Thus, the applicant seeks to prove, on the balance of probabilities that either direct or indirect discrimination occurred in the handling of her complaint to the respondent about the article.

Consideration of evidence as to whether the article itself is discriminatory

The applicant suggests that the article contains "gratuitous" references to the transgender status of the offender and suggests that in printing information about the offender's transgender status the respondent treats the offender, CJ Palmer, less favourably than others who were not transgender would have been treated.
The headline in the article refers to the transgender status of the sex worker, the text of the article refers to "a transgender sex worker" and sets out that she has been moved to a special protection unit within the prison, where she can now access gender neutral toiletry products and female underwear, that she knowingly failed to advise a sexual partner that she had tested HIV positive and that after the sexual relationship that resulted in the criminal proceedings she had moved to NSW and continued to work as a transgender sex worker.
Two photographs appear in the article, apparently taken for the internet where CJ Coulson advertised her services. The first photograph has a caption "Clayton James Palmer, known as CJ (pictured) has had her prison sentence for infecting a man with HIV slashed from four to six years" (which, according to the decision of the Western Australian Supreme Court, Court of Appeal should say "six to four years").
In the second photograph there is a close up of her face with a caption "HIV Escort in court" and "transgender prostitute accused of infecting man". Also in the photograph with the article is the name of a website, which is partly obscured, but appears to say " escort….com" The word "escort" is clearly visible. Under the article the caption says "CJ (pictured) has also been moved to a new unit inside prison where she has access to gender neutral toiletries and is supplied with female underwear."
The applicant argues that details about the transgender status of CJ Palmer are gratuitous and not necessary to the article. By providing them, the applicant argues, the respondent treats CJ Palmer less favourably because of her status than a person who was not transgender would be treated ('the direct discrimination claim' in relation to the article itself).
The information contained in the article comes from a decision of the Western Australian Supreme Court, Court of Appeal on an appeal by CJ Palmer as to severity of her sentence.
There are details contained in the decision of the Court that are not included in the article, notably that for the whole of her adult life CJ Palmer (whose trial took place using her male name in the title to the proceedings but using a female pronoun throughout) has identified as a woman and taken female hormones.
Other information contained in the judgment that is not repeated in the article includes statements that CJ Palmer began using methamphetamines and that, as stated in paragraph [34] of the Court's decision, "over time the sex work and drug use became intertwined." The Court found that an assessment that her dependence on methamphetamines overrode any concern that her sexual partner may acquire HIV, although she had been told that she was HIV positive, and that she continued advertising her services in NSW after the interactions with the person who became infected with HIV after unprotected sex with her. There was evidently some restraint in the article in not referring to those parts of the judgment.
If the word "transgender" had been deleted from the headline and the text of the article, the content would still have been newsworthy, on a number of bases: that it reflected a court decision of the Western Australian Court of Appeal, involved a criminal charge of knowingly inflicting a person with HIV and raised questions as to the severity of sentencing at trial. It was not simply the transgender status of CJ Palmer that made the article newsworthy.
However, I find that not to refer to the transgender status of the offender in the article would have been to omit, in the news report of the judgment, a matter that was of significance in the sentencing decision.
It is clear from the decision of the Court that CJ Palmer was a transgender sex worker. The implications of her being a transgender person are discussed in the Court's decision, which takes into account the effect upon CJ Palmer of being likely to be housed in a male prison in spite of the recommendations of an expert that she ought to be housed in a female prison.
I find that the transgender status of the offender is a matter seen by the Court as relevant to sentencing and is featured in the article. The terms of the Court's decision provide the context for the article, which is a news report about a sentencing appeal.
In light of the terms of the sentencing judgment, I find that it is not gratuitous to refer to CJ Palmer's transgender status in a news report about the decision of the Court. Such reporting follows from the terms of the sentencing judgment of the Court.
I have also considered whether the fact that in the article the words "Clayton James Palmer, who identifies as a woman and is known as CJ" are used of itself treats CJ Palmer less favourably on the basis of her transgender status, in that persons who are not transgender nominate the way in which each wishes to be known, rather than being referred to by their birth name, as in this case (which has been referred to as "dead naming") using a name and gender by which, presumably, the person does not wish to be known if they have chosen to identify as a person of another sex.
Given that CJ Palmer was tried as 'Clayton James Palmer' I do not find that referring to that name is, of itself discriminatory, especially as elsewhere in the article, CJ Palmer is referred to as "Palmer", "she" and "CJ" and the article follows, conformably with the Court's decision, forms of address that would each be consistent with CJ Palmer's chosen gender identity and therefore more respectful of her choices and wishes than referring to her by her birth name.
If, in the article, she had consistently been referred to in the article by her birth name, that may have constituted discrimination (as, arguably, using a form of address rejected by a person when those who are not transgender are addressed in ways that are acceptable to them may constitute less favourable treatment because of, or due to, transgender status). As that is not the case, it is not necessary to express a concluded view on the matter.
The photograph of CJ Palmer in the article with captions including the words "prostitute" "escort" reflect the work she did and advertised herself as doing, as referred to in the judgment of the Court at paragraph [23]. The fact that she was quite public about her work, advertising her services online, is a matter that is relevant to whether use of those words was to treat her less favourably on the basis of her transgender status. I find that, given her own advertising of her services as an escort, there is insufficient evidence that it was discriminatory to use those words.
The photographs in the article were apparently taken from the internet, from CJ Palmer's own advertising. In those circumstances, to use the photographs is not to treat CJ Palmer less favourably than others due to her transgender status.
Given the context of the article being a report on findings of a superior Court, where the parts of the article reflect parts of the judgment, considered together with the fact that CJ Palmer publicly advertised her services, the article itself is not directly discriminatory and the references to the transgender status of the offender could reasonably be found by the respondent not to be gratuitous.
Considering the evidence at its highest, there is insufficient evidence that CJ Palmer was treated less favourably than others on the basis of her transgender status in this article to warrant granting leave for the complaint to continue in the Tribunal to a full hearing.
Considering whether the applicant may be able to establish indirect discrimination in the terms of the article, the applicant has not indicated what "test" or "requirement" there may have been with which CJ Palmer could not or did not comply or with which other "base groups" could or did comply.
That failure to provide such articulation of any indirect discrimination claim results in insufficient evidence having been provided to satisfy the Tribunal that, considered at its highest, the evidence is capable of establishing indirect discrimination in the article itself.

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

There is no evidence that the respondent has dealt with this complaint in a manner that treats the complaint by a transgender person (the applicant) less favourably than the respondent would treat a complaint by a person who was not transgender.
The nub of the applicant's complaint is, rather, that because the complaint concerns events that affect a transgender person, rather than a person with other attributes such as being from a racial minority, the complaint was treated less favourably by not being referred to an adjudication.
It is necessary to determine whether, considering the evidence of the applicant at its highest, the applicant would have an arguable case and therefore a 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 seven 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 attribute that is referred to in the Act.
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 seven adjudications she has presented is a very small sample and a sample over a significant period. Some of those adjudications uphold the complaint in question and others do not. This small sample is not sufficient to indicate that the applicant has a realistic prospect of establishing, on the balance of probabilities, that by deciding not to refer it for adjudication the respondent gave differential and less favourable treatment to the complaint on the ground of, or due to, the article concerning a transgender person.
There was no attempt by the applicant 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.
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 and there was no evidence as to the contrary.
Considered at their highest, the small number of the adjudications relied upon by the applicant does not have realistic prospects of establishing that, when those matters are compared with matters involving transgender status, less favourable treatment is accorded to complaints of transgender discrimination.
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 tell 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. Thus, "differential treatment" was not established and, even if there had been differential treatment, "causation" was not established.
In her submissions regarding leave dated 8 October 2022, the applicant invites the Tribunal to draw an "inference" of causation. The Tribunal has considered, in a number of cases, the circumstances in which inferences may be drawn. As set out in Dutt at [70], the Tribunal has identified considerations in the drawing of inferences as follows: A causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts 1. An inference must be reasonably drawn on the basis of the primary facts 2. An inference can be drawn from a combination of facts, none of which viewed alone would support that inference. 3. A fact relied on as the basis of an inference need not be proved to the requisite standard of proof 4. It is not enough that the inference is a mere possibility: it must be one of "probably connection" 5. The inference must be a logical one, and no supposition 6. An inference cannot be made where more probably and innocent explanations are available on the evidence.
In this case, there is no persuasive evidence supporting the drawing of an inference that the fact that the complaint was not referred to adjudication was due to a discriminatory reason because there are other reasons which would more probably support a decision not to so refer it, namely, that the reporting was not gratuitous and not discriminatory. It would have been reasonable for the respondent to reach those conclusions and to dismiss the complaint on either or both of those bases.
Nor is there any articulated basis for considering that there may have been indirect discrimination in failing to refer the complaint for adjudication, even considering the evidence at its highest.

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 applicant's 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.

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 2022/00259012 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: 09 February 2023

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (6)