Clinch v Rep

[2020] ACAT 13

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

CLINCH v REP (Discrimination) [2020] ACAT 13

DT 6/2019

Catchwords:                DISCRIMINATION – vilification – victimisation – jurisdiction – can the Tribunal hear discrimination matters between parties from different states – gender identity – application to dismiss – meaning of incitement – material provided that was created after the referral from the Human Rights Commission

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 7

Australian Constitution s 75
Discrimination Act 1991 ss 7, 67A, 68
Human Rights Commission Act 2005 s 53A
Legislation Act 2001 ss 169A, 169B

Cases cited:Bailey v Bottrill(No 2) [2019] ACTSC 167

Bottrill v Sunol& Anor [2017] ACAT 81
Bottrill v Sunol [2018] ACAT 21
Burns v Corbett [2018] HCA 15
DLH v Nationwide News Pty Ltd(No 2) [2018] NSWCATAD 217
Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
May-Welby v Capital Q Pty Ltd [1997] NSWEOT (No 33 of 1997)
Lee v Wilson & Mackinnon [1934] HCA 60
Piscioneri v Brisciani [2015] ACTSC 106
Sunol v Collier (No) 2 NSWCA 44
Trkulja v Google LLC [2018] HCA 25
Webb v Bloch [1928] HCA 50

Tribunal:  Senior Member B Meagher SC

Date of Orders:  20 February 2020

Date of Reasons for Decision:         20 February 2020

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          DT 6/2019

BETWEEN:

BRIDGET CLINCH

Applicant

AND:

BETHANIE REP

Respondent

TRIBUNAL:Senior Member B Meagher SC

DATE:20 February 2020

ORDER

The Tribunal being satisfied as a preliminary question that a number of the posts complained of are capable of incitement contrary to section 67A of the Discrimination Act 1991 and some are capable of being regarded as victimisation contrary to section 68 of that Act the Tribunal orders:

1.The application to dismiss the proceedings, on the basis that there is no jurisdiction, is refused.

2.The proceedings are limited to conduct occurring between 25 July 2018 and 18 April 2019.

3.The application to dismiss the proceedings on the grounds that the complaint is vexatious or frivolous is refused.

4.The matter is listed for hearing of the substantial application on 22 and 23 April 2020 at 10:00am.

5.The Registrar is to provide a copy of these reasons to the Attorney-General and the ACT Discrimination, Health Services & Disability and Community Services Commissioner and draw their attention to paragraph 23.

6.The applicant is to file and serve within 14 days a schedule of allegations identifying with particularity and in chronological order each of the respondent’s acts said to contravene the Discrimination Act 1991 and attaching the relevant social media posts. The schedule should respond as far as it can to the schedule filed by the respondent and be capable of showing the context of the posts identified and respond to the arguments made by the respondent in her schedule.

7.Any further evidence concerning access to the posts in the ACT be filed by the applicant within 21 days and by the respondent within a further 14 days.

………………………………..

Senior Member B Meagher SC

REASONS FOR DECISION

Background

The proceedings

1.The proceedings have been commenced by a referral from the Human Rights Commission (HRC) to the Tribunal dated 13 May 2019 pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act). The section is as follows:

53AReferral of discrimination complaints

(1)     This section applies if—

(a)either—

(i)a complainant is given a discrimination referral statement under section 45 (2) (d); or

(ii)a statement under section 82 (1) is included in a final report in relation to a complaint; and

(b)within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT.

(2)     The commission must—

(a)refer the complaint to the ACAT; and

(b)tell the complainant and the person complained about in writing about the referral.

Note  The commissioner must also close the complaint (see s 78 (2) (d)).

2.The HRC had received a complaint from the applicant that has no date but was said by the HRC to have been received on 31 August 2018. The complaint is that the respondent has vilified and victimised the applicant in respect of her gender identity. It also identified a group, namely transgender people, who identify as female, as having been vilified. It was common ground that the applicant identified as a transgender person. She described herself as a transwoman.

3.The Discrimination Act 1991 (Discrimination Act or the Act) protects gender identity and does not, as is the case in NSW, refer specifically to transgender people. However, the Legislation Act 2001 defines transgender people as follows:

169AReferences to transgender people

(1)     A transgender person is a person who—

(a)identifies as a member of a different sex by living, or seeking to live, as a member of that sex; or

(b)has identified as a member of a different sex by living as a member of that sex;

whether or not the person is a recognised transgender person.

(2)     A transgender person includes a person who is thought of as a transgender person, whether or not the person is a recognised transgender person.

(3)     A recognised transgender person is a person the record of whose sex is altered under the Births, Deaths and Marriages Registration Act 1997, part 4 or the corresponding provisions of a law of a State or another Territory.

4.This complaint arose after an earlier complaint. There had been earlier Tribunal proceedings of a similar kind that had resulted in a mediated settlement. The agreement was that the respondent would make an apology in a form of words that were agreed. This was as follows:

I apologise for any hurt I have caused Bridget and for any way I have vilified or victimised her.

5.This was posted by the respondent on a social media site on 25 July 2018. Subsequently a number of posts have been made referring to the applicant that are critical of her. She says they amount to further vilification and victimisation of her. She holds the respondent responsible for the posts or at least for not removing them or shutting it down when they appeared. She also maintains that there are posts or ‘likes’ by the respondent that adopt them or some of them and may indicate further proscribed discrimination. It is not as clear as it might be how this has been put and this issue will be explored later.

6.After this occurred the applicant brought further proceedings in the civil dispute section of the tribunal for breach of the agreement but that was discontinued.[1]

The current application

[1] on 18 February 2019

7.The respondent has brought an interim application, dated 20 September 2019, to dismiss the proceedings in whole or in part for jurisdictional reasons; to determine as a preliminary matter whether any of the posts on social media are reasonably capable of constituting vilification or victimisation within the meaning of sections 67A and 68 of the Discrimination Act; to dismiss those that are not and order the applicant file a schedule with appropriate particularisation.

8.The parties have filed written submissions and made oral submissions at a hearing on 5 December 2019. Because of the volume of social media posts that are involved, the decision was reserved, and a transcript has been obtained. It was indicated at the hearing that the matter would not be dismissed for jurisdictional reasons and the task of sifting through the various posts would be attempted.

9.The sections of the Discrimination Act referred to are as follows:

67AUnlawful vilification

(1)     It is unlawful for a person to incite hatred toward, revulsion of, serious contempt for, or severe ridicule of a person or group of people on the ground of any of the following, other than in private:

(a)disability;

(b)gender identity;

(c)HIV/AIDS status;

(d)intersex status;

(e)race;

(f)religious conviction;

(g)sexuality.

Examples—other than in private

1screening recorded material at an event that is open to the public, even if privately organised

2writing a publicly viewable post on social media

3speaking in an interview intended to be broadcast or published

4actions or gestures observable by the public

5wearing or displaying clothes, signs or flags observable by the public

NoteSerious vilification is an offence under the Criminal Code, s 750.

(2)     However, it is not unlawful to—

(a)make a fair report about an act mentioned in subsection (1); or

(b)communicate, distribute or disseminate any matter consisting of a publication that is subject to a defence of absolute privilege in a proceeding for defamation; or

(c)do an act mentioned in subsection (1) reasonably and honestly, for academic, artistic, scientific or research purposes or for other purposes in the public interest, including discussion or debate about and presentations of any matter.

(3)     In this section:

HIV/AIDS status means status as a person who has the Human Immunodeficiency Virus or Acquired Immune Deficiency Syndrome.

68Victimisation

(1)     It is unlawful for a person (the first person) to subject, or threaten to subject, another person (the other person) to any detriment because—

(a)the other person, or someone associated with the other person—

(i)has taken discrimination action; or

(ii)proposes to take discrimination action; or

(b)the first person believes the other person, or someone associated with the other person—

(i)has taken discrimination action; or

(ii)proposes to take discrimination action.

(2)     In this section:

discrimination action means any of the following:

(a)begin a proceeding in the ACAT or a court in relation to this Act;

(b)make a discrimination complaint;

(c)participate in or assist with, a criminal investigation in relation to an offence under the Criminal Code, section 750 (Serious vilification);

(d)give information or produce a document or other thing to a person exercising a function under the HRC Act in relation to a discrimination complaint;

(e)give information, produce a document or other thing or answer a question when required under the HRC Act in relation to a discrimination complaint;

(f)give evidence or produce a document or thing to the ACAT or a court in relation to this Act;

(g)reasonably assert any rights that the other person, or someone else, has under this Act;

(h)claim that a person has committed an act that is unlawful under this Act, or is an offence against the Criminal Code, section 750, other than a claim that is false and not made honestly;

(i)do anything else in accordance with this Act.

discrimination complaint means a complaint under the HRC Act about an unlawful act.

HRC Act means the Human Rights Commission Act 2005. (emphasis added)

10.There are definitions explaining gender identity and other concepts that are not in issue here. However, bearing in mind the content of some of the posts it should be understood that whatever the views of some of the commentators the expression ‘gender identity’ in the Discrimination Act:

means the gender-related identity, appearance or mannerisms or other gender-related characteristics of a person, with or without regard to the person's designated sex at birth.

Note  Gender identity includes the gender identity that the person has or has had in the past or is thought to have or have had in the past (see s 7 (2)).

11.Section 7 explains that protected attributes that include gender identity extend to characteristics that the person has, is presumed to have or generally have, including past characteristics.

12.In her statement, the applicant explains that she had been living as a man and had been a serving officer in the Defence Force. Some years ago, she had undergone a transitioning process with surgery and now lives as a woman.

Jurisdiction

13.The first argument articulated in the interim application was based on Burns v Corbett [2018] HCA 15. The case holds that it is unconstitutional and invalid for power to be given to a tribunal where it is to decide matters between residents of different states. It was common ground that the applicant is a Queensland resident and the respondent, a resident of the ACT. The decision held that the Commonwealth Constitution precludes the Parliament of a State from conferring jurisdiction in respect of a matter between residents of different States within section 75(iv) of the Constitution on a tribunal which is not one of the “courts of the States”.

14.In Bottrill v Sunol & Anor [2017] ACAT 81 (Bottrill No 1) this argument was rejected at [62]-[63]. The following was explained:

62.The short answer is that section 75(iv) of the Constitution does not apply to the Territories. This was explained by Justice McHugh in Scott v Bowden [2002] HCA 60 at [14] where he said:

There is no substance in the contention of the plaintiffs that the other defendants are also within the diversity jurisdiction of this Court because they are residents of the Northern Territory which, the plaintiffs allege, is a constitutional State for the purposes of s 75(iv) of the Constitution. The Constitution draws a clear distinction between States and Territories, and Territories are not mentioned in s 75(iv). Until the grant of self-government, the Territories were subject to federal law or federal control and ultimately still are. And, as a matter of history, when the Constitution was enacted, the settled doctrine of the United States courts was that the federal courts had no jurisdiction in cases concerning a resident of a State and a resident of a Territory.

63.Further Associate Justice Mossop (as he then was) said in Jausnik v The Nominal Defendant (No 5) [2016] ACTSC 306 at [85]

... the matter was said to be in federal jurisdiction because the Nominal Defendant was a resident of the ACT and suing Mr Hannaford (presumed to be a resident of NSW) and hence within the scope of s 75(iv) of the Constitution . This contention could not be correct because the Nominal Defendant is not a “resident” of “a State”. That is because the Australian Capital Territory is not a “State” and because the Nominal Defendant is not a natural person and hence not a “resident” for the purposes of s 75(iv): Crouch v Commissioner of Railways (Q) [1985] HCA 69; (1985) 159 CLR 22; British American Tobacco Australia Ltd v Western Australia [2003] HCA 47; (2003) 217 CLR 30 at [37].(My emphasis)

15.The respondent abandoned this argument and was correct to do so.

16.The second argument was that there was no territorial jurisdiction. This in effect was a submission that, properly construed, the two key sections do not extend to social media postings attributed to the respondent where the asserted victim was a resident of another jurisdiction and had downloaded the complained of material there. The argument relied principally on the decision in Bottrill No 1. There the alleged victim was an ACT resident and the respondent was a resident of NSW. His failure to remove the offending post was conducted in NSW. The offending material was downloaded in the ACT. In addition, there was evidence at the final hearing[2] that the material had been downloaded by others in the ACT. The decision relied on two points, firstly, that for someone to be capable of being incited that person would need to read/download the material (in the ACT) – where the respondent and his web page access was outside the ACT – and secondly, one of the important purposes of the Act was to seek to protect ACT residents.

[2] [2018] ACAT 21 (Bottrill No 2) at 75

17.The respondent argued here that the conduct complained of happened in Queensland because that was where the applicant read it. She also relied on the defamation cases where the place of publication is said to be the place where the internet material is accessed. In defamation, the tort occurs on publication. It should be borne in mind that the wrong here is a statutory one and relies on the ACT Discrimination Act for its existence.

18.In any event, the Tribunal indicated that the preliminary view, it took, was that there was territorial jurisdiction. It seems that the respondent has equated where the applicant read the material with where the conduct occurs. This is not what was decided in Bottrill No 1. Firstly, the proposition was that there was such conduct where the potential ‘incitees’ read it and it did not decide that there was not such conduct occurring where the posts or failure to remove them occurred. Secondly, there the problem was that the respondent was not an ACT resident. Here she is and another object of the Act was to regulate the conduct of ACT residents.

19.In addition to these points, the applicant said she knew there were ACT residents that had read the posts in the ACT. The respondent argued that this had not been previously stated and that the directions of the Tribunal had been that all material needed to have been filed. There was a direction to that effect on 1 July 2019 and the applicant has filed considerable material in compliance with that direction. It was directed at the substance of the complaint and not to jurisdiction. The direction should not be taken to exclude the provision of material about jurisdiction. In any event the Tribunal is required to ensure that the matters are conducted with a minimum of technicality and especially where a party is unrepresented as the applicant is here.[3] The respondent is represented by an able legal practitioner, Ms Kerr from the Feminist Legal Clinic.

[3] ACT Civil and Administrative Tribunal Act 2008 section 7

20.In such circumstances where the complexities of the jurisdictional issue are not clear, the applicant should be allowed to adduce such evidence at a hearing. In addition, it seems probable in the absence of contrary evidence that the social media site is regularly accessed in the ACT.

21.It should also be borne in mind that interim applications to dismiss proceedings are not lightly upheld. This was recently explained in Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47 at [14]-[20].

22.There, President Neate said:

The Tribunal should not lightly strike out any application. Counsel for the ACTPLA acknowledged that his client accepted the high onus and that orders of this kind are made sparingly. He referred the Tribunal to the judgments of the High Court of Australia in General Steel Industries Inc v Commissioner for Railways (NSW) - (General Steel) and the ACT Supreme Court in Galovac Pty Limited v Australian Capital Territory (Galovac).[references omitted]

23.In Bottrill No 1 the issue was argued by the ACT Attorney-General and the ACT Human Rights Commissioner. I direct the Registrar to inform both of them that this issue has arisen and to provide a copy of these reasons to them in case they wish to intervene or assist. This is not to be seen as any expectation that they might, but merely to enable them to have an opportunity to do so if they wished. In case it is not clear, in the absence of further argument, I would have no difficulty in concluding that there is territorial jurisdiction especially if there is evidence led that others had accessed the posts in the ACT.

A third argument about jurisdiction

24.This was an argument that the posts should be limited to any matters that are taken to have been part of the referral. There was no argument that this must be so as it is a statutory process that confers jurisdiction. There was some argument about what might be covered by this requirement. The Tribunal articulated a form of words that described the posts covered and both parties accepted that as covering the situation.[4] It is proposed to make an order that so describes what is taken to have been referred. The posts are the matters (excluding the apology) between 25 July 2018 and 18 April 2019.[5] This includes all posts that were made before the HRC concluded the matter and referred it.

[4] Transcript of proceedings 5 December 2019 pages 23-25

[5] This is the date that the HRC told the applicant it was closing the file. On 23 April 2019 the applicant asked for it to be referred to ACAT. Ms Kerr thought there had not been any posts the subject of complaint here after 18 April but there is one dated 23 April. Strictly speaking that is after the HRC had closed the matter and should be excluded.

25.It should be observed that evidence of any later conduct might be admissible in respect of any appropriate remedy but not of the occurrence of the wrong.

Responsibility

26.There was also some argument about what conduct the respondent is responsible for. There have been a number of cases in defamation matters about what liability a publisher has for posts or comments and other material inserted into its publication. In defamation, this is affected by a defence of innocent dissemination.

27.In Bailey v Bottrill(No 2) [2019] ACTSC 167 (Bailey) the Court was required to examine the issue of liability for the content of hyperlinks. The appellant was found liable. As explained there the High Court had said in Trkulja v Google LLC [2018] HCA 25 at [39] (Trkulja) the test for whether a person has published defamatory material is whether the defendant has participated in the publication. A person will have ‘participated’ in the publication if it is shown that the person is in some degree accessory to the communication of the defamatory material.[6] “All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication.”[7]

[6] Webb v Bloch [1928] HCA 50 (Webb) at 363-4; Lee v Wilson & Mackinnon [1934] HCA 60 at 287 per Dixon J

[7] Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [121] per McColl JA, citing Webb at 364 per Isaacs J

28.It is important to bear in mind that the wrong here is not constituted by publication as such but by the ‘incitement’[8] in the case of section 67 or to subject or threaten the person in the case of section 68.

[8] Which need not be successful, as explained in Bottrill No 1, but be something that might do so.

29.In Bailey the Court further explained at [27]-[28]:

27.    Participation in the publication of defamatory matter in any degree must be deliberate, in the sense of intentionally lending assistance (Webb at 363–364), although all degrees of participation in the publication are publication: Trkulja at [40]. Any person who knowingly participates in the communication of defamatory material, in whatever degree, is a publisher and is therefore exposed to potential liability under the tort of defamation: Godfrey v Demon Internet Ltd [2001] QB 201, 207.

28.    If, by words or conduct, a person draws the attention of another to defamatory words then there has been primary, or at least secondary, participation in the publication: Bolton v Stoltenberg [2018] NSWSC 1518 (Bolton) at [169]; Duffy at [133] per Kourakis CJ, citing Hird v Wood (1894) 38 Sol J 234.

30.The Court explained that there might be primary or secondary participants and said at [29]-[30]:

29.    … the nature of one’s participation may critically affect a person’s ultimate liability. The participant may play a primary or secondary role.

30.    If the participant is found to play a secondary role, the defence of innocent dissemination may be available. The defence is not available to primary participants in a publication, as they are presumed to know all that the publication contains: see the useful discussion in Duffy at [88]– [93].

31.Obviously, the defence of innocent dissemination is a statutory defence directed at defamation. Here the defences are as stated in the sections quoted. A simpler approach is to consider whether the respondent knew of the relevant posts and took no action to remove them. Here there was a complaint by the applicant at an early time and the posts were not removed. There may in addition have been an adoption by the respondent of some of the posts by liking them and there may have been her own posts included in the matters complained of.

32.In Bottrill Nos 1 and 2 this was the approach taken, relying on Piscioneri v Brisciani [2015] ACTSC 106 at [45]:

I think it is necessary for me to determine whether the defendant can be held liable for the matter published on ZGeek, given that much of the material complained of is written by people other than the defendant. Internet content hosts can, in some circumstances, be vicariously liable for matter published by others, by virtue of the failure to remove from public display defamatory material published by the third party. In order to be vicariously liable, the host must have failed to remove the material after being notified of its existence, and the host must be a publisher, as opposed to a mere passive facilitator of the material: see Godfrey v Demon Internet [2001] QB 201; Bunt v Tilley [2006] EWHC 407; [2006] 3 All ER 336. In this case, I note that the defendant personally authored some of the ZGeek posts, indeed he initiated the discussion regarding the plaintiff in 2005, and was the owner and administrator of the site ZGeek at all relevant times during which other users posted relevant material on the website. The defendant gave evidence that, as the administrator and owner of ZGeek, he had the ability to moderate and remove any content that was posted on ZGeek[9]

[9] Bottrill No 1, footnote 26

33.The applicant here initially confused the Tribunal and the respondent during the oral hearing by asserting she was only relying on direct posts by the respondent. As she was not legally represented such statements should be treated with caution and for the purpose of an application to dismiss, a case most favourable to the applicant must be assumed. However, strictly, the respondent may be found responsible for all the posts complained of by not removing them when asked. When the applicant’s material is examined there is good reason to confine what is to be argued, as she has. The referral had approximately 85 pages of posts. Many were by her or some who agreed with her. Not all were significant for the case. In her submissions the applicant has confined the posts and sent screen shots of those relied on.

Are the posts capable of being vilification or victimisation?

Some legal principles

34.The respondent has, in her filed submissions in respect of the substantive application, analysed the 52 screen shots that are relied on by the applicant. She referred to DLH v Nationwide News Pty Ltd (No 2) [2018] NSWCATAD 217 at [10] where there is a useful summary of principles as follows:

10.The operation of the provisions of the Act which make vilification unlawful on the grounds of race, transgender and homosexuality, has been considered by the NSW Court of Appeal, most recently in Sunol v Collier and anor (No 2) [2012] NSWCA 44 (Sunol), Jones v Trad [2013] NSWCA 389 (Jones) and Margan v Manias [2015] NSWCA 388 (Margan). The following statement of principles may be distilled from those authorities:

(1)An objective test must be used to determine whether a public act had the capacity to incite hatred towards, serious contempt for, or serious ridicule of a person or group, on the ground of the protected characteristic of the person or group (race, transgender, homosexuality): Jones at [53].

(2)The word “incite” in the unlawful vilification provisions of the Act means “to rouse, to stimulate, to urge, to spur on, to stir up or to animate and covers conduct involving commands, requests, proposals, actions or encouragement”: Sunol at [41]; Margan at [11].

(3For a contravention it is not necessary to establish that anyone was incited: Sunol at [41], or that there was an intention to incite: Sunol at [41]; Margan at [12].

(4)It is not sufficient that the impugned public act conveys hatred towards, serious contempt for, or serious ridicule of the person or group of persons with the protected characteristic. It must be capable of inciting those reactions in an ordinary member of the class to whom the act is directed/the audience or likely audience: Sunol at [41]; Margan at [76].

(5)The assessment of the capacity of the public act to incite the relevant reaction must be undertaken by reference to the context in which it occurred: Sunol at [61].

(6)In making that assessment, the particular class of persons to whom the act is directed, the audience or likely audience must be identified and considered: Sunol at [34]; [61]; Jones at [62], [63].

(7)The assessment of the capacity of the public act to incite must be made by reference to the "ordinary” member of the relevant audience: Sunol at [34]; Margan at [76]; (cf. Sunol at [61]; Jones at [61], [62]).

35.As the name of the defendant suggests, the tribunal was considering ordinary members of the public that read the Daily Telegraph.

36.The article in that case was intended to be mildly humorous but the tribunal thought it was deeply offensive to transgender people and in poor taste. It dismissed the complaint on the basis that an ordinary reader of the paper would not be so lacking in intelligence or taste that he or she would be incited to serious contempt. This is a view that is not binding and frankly I don’t agree with it. Moreover, the words ‘would be’ are inapt and should read ‘could be’. Nonetheless, it is illustrative of the need to consider the general principles.

37.The respondent included other cases and references to overseas cases and debate. It would be fair to say they reflect a “high bar”.[10] In respect of vilification the words ‘serious’, ‘severe’ and ‘revulsion’ are indicative of this. Some of the cases appear to be impacted by the unsympathetic activity of the complainant such as an axe attack or insisting on a Brazilian wax from a female beauty worker. Some were less extreme, like a wrong use of pronouns. One was in the course of an acrimonious debate about transsexuals taking over a transgender centre.[11] None of the examples are binding but are useful to understand what tests to apply.

[10] An expression used by Ms Kerr in oral argument

[11] May-Welby v Capital Q Pty Ltd [1997] NSWEOT (No 33 of 1997) page 5

38.There are assertions about the likely readers of the posts. This is a factual matter and at this stage can’t be assumed to be correct.

39.There are also submissions about freedom of speech and debate about matters of public interest. The legislature has sought to draw a line that balances these matters and there can be a defence in an appropriate case. Here all that is being considered is whether the posts complained of are capable of being incitement or victimisation. The Tribunal notes that there is still room for discussion about sexuality as explained by Allsop P in Sunol v Collier (No) 2 [2012] NSWCA 44 [63]-[65].

40.Turning to the schedule of screen shots helpfully compiled by Ms Kerr, the last few posts fall outside the timeline. They are items 48-59. They are excluded.

41.The first item relates to a Reddit page. The copy I have is not self-explanatory. If the applicant wants to rely on it, she should provide particulars of what it is, what is the complaint and why it constitutes vilification or victimisation.

42.The second item commences with the apology and has typing by the applicant indicating what was liked by the respondent and what was not. The first ‘like’[12] seems innocuous. To shorten the conclusions, it is proposed to say yes or no to the assumed question as to whether it is capable of constituting a breach of section 67A or section 68. So the response here is “No”.[13]

[12] Item 2.1 in the respondent’s document

[13]I have not repeated the posts as some are extremely offensive

43.The second liked comment – item 2.2R – seems to refer back to the action taken by the applicant in pursuing the respondent, the first time, and makes crude remarks about the applicant which challenge her identification as a woman and accuse her of being a bully. Ms Kerr submitted that this relates to her being a bully not to sexual identity. It might be argued that it was not capable of inciting the extreme reaction that section 67A envisages. In isolation it might be forgiven but it is not and it appears to be at least capable of offending both sections.

44.The next two comments – items 2.3-2.4 – start on the right-hand side and the answer is yes in respect of section 67A. The next two comments on the right side 2.5-2.6, the answer is no.

45.Next on that page are comments under the heading “Selected comments …incited”. They are given numbers 2.7 – 2.19. 2.11 is evidence that there has been incitement. All are capable of offending the relevant sections except 2.17.

46.Having said that, it is explained by the respondent that these comments are not in chronological order and should be understood in context. The thrust of the argument is that the item promoted abuse against some feminists by use of an expression seen as derogatory – TERFS – and that subsequent responses were provoked.

47.The respondent submits she is not responsible for all the comments as the discussion took on a life of its own. This relates to what responsibility she has for them. She did not ‘like’ many. The contrary argument is that whilst there are legitimate matters that might be discussed about the concerns that some feminists – and some males for that matter – have about the way that males transitioning to females are to be accommodated, if the discussion becomes extreme it should be shut down and the offending items removed. In any event, it is clear from that short examination of the posts that:

(a)many are capable of breaching the sections;

(b)a number are not;

(c)the items are not in context;

(d)dealing with them in any methodical way is made unsatisfactory as the applicant, without the benefit of professional assistance, has not assisted in their presentation; and

(e)the respondent’s lawyer has done her best to assist the Tribunal in analysing the posts in some sort of methodical manner and the Tribunal is appreciative of her efforts.

48.The last order sought by the respondent seeks to address this and it should be made. Any further dissection of the posts here will only add to the confusion but hopefully the items dealt with so far, give some shape to what to expect.

49.I should add that some of the points made by Ms Kerr are relevant also to what orders if any should be made assuming that a breach of the law is established.

50.As she says it is the Facebook of a private citizen who has followers who are sympathetic to her point of view, the applicant might choose not to read it. The applicant has also added her own posts on the site which didn’t quell the situation, but if anything, added to the problematic content. She also did, and has in her submissions used, strong language about the respondent and her followers. She might say that she was reacting to the comments of others. No doubt they made her angry.

51.I have read the comments of many of the contributors to the Facebook page. Whilst some have used regrettable language, they also feel under attack from males and many rightly point out the significant abuse and harm caused to women by males. In addition, there are still complexities caused by reassignment of gender identity such as women’s changing facilities, sporting contests, and the like and they are legitimate matters for civilised discussion. Also, a recurring theme is the prominence given by the Facebook contributors to the biological indicators of gender and an unwillingness to accept the statutory approach of protecting those who identify as women but started off as men. This focus seems to distort the point of anti-discrimination legislation. As a general matter, if someone chooses to undergo life changing surgery and face the emotional hardships that such a step might bring, then surely the biology should not assume such importance. Both groups involved here deserve support and protection and it would be a better world if they supported each other.

52.Whilst these reasons refuse to strike out the matter on the basis that these posts are not capable of breaching the section, I have not decided at this stage that they do breach the sections. I am conscious that a careful examination of each post has not been undertaken with the parties present and having an opportunity to be heard. Some are not included as they are outside the time period.

53.To assist the parties, I will make some preliminary remarks that might provide a focus on what issues to address. It would be sensible for the applicant to adapt the schedule provided by the respondent and organise her material so that the posts can easily be seen, and the context and respective arguments are clear. The order made deals with this but does not confine the applicant to only what the respondent has done.

54.The need for some precise particulars is clear. Whilst I am making an order that requires the applicant to do this, I am not hopeful that this will completely achieve its purpose. The first group of posts are from 25 July 2018 to 30 July 2018. They start with the apology. The apology can’t be seen as itself being an inciting. I accept that the more florid posts were triggered by a provocative post later that day by someone critical of feminists who might follow the page. Some of the posts that followed are extreme and expose their targets – namely transgender people, including the applicant, being those who now identify as women – to ridicule that might be seen as severe, and in some cases revulsion and hatred. Not all the posts are as bad as the worst and if appearing by themselves may be forgiven, but in context once they appeared, arguably, it might be thought that it might be clear to the respondent how the followers of the page might react. Arguably at least once a complaint had been made, she might be able to avert their continued presence on the page.

55.The next matter seems to commence on 30 July 2018. The respondent says she was reacting to a news item about a transgender person in a women’s change room. She posted a cartoon that was intended to be funny. It might well be seen as relatively harmless, but it does focus on genitalia in a way that might encourage some worse responses. If it had not been preceded by the earlier posts then the respondent might well say that she was not inciting anything. That is arguable, but so is the contrary. There are later posts that fall into a similar category.

56.Not much attention seems to have been addressed to what, if any, orders the Tribunal might make assuming a breach or breaches if the Act are established. It may be assumed that an apology could be ordered. The Act isn’t clear that this is so and unless it is volunteered, it is unlikely to be sincere or effective. An order could be made that material be removed. An order could be made in the form of an injunction to seek to avert it reoccurring. Damages of a compensatory nature could be ordered but from the crowd funding posts provided, the respondent may have a limited capacity to pay. There may be some benefit in a ruling that provides clarity for the parties and others.

57.Finally, I have seen a post by the respondent of 12 July 2019 that postdates the referral. It is critical of ACAT about some prior case and saying it is aiding the applicant and concludes that it is patriarchy at work. On the next day the respondent says, “Maybe we can consider some political action when a hearing has been set”. The applicant has in her statement referred at length to a number of supporters of the respondent attending an earlier hearing, one with eggs. The respondent has eschewed any involvement in that occurring and has expressed dismay that it did. The respondent did attend with Ms Kerr at the hearing of this application and conducted herself impeccably. As Ms Kerr would tell her, ACAT is obliged to provide a full and fair hearing to both sides and its membership is diverse. It is to be hoped that there is no repeat of the earlier event.

58.The orders, directions and findings that will be made are as follows:

1.       The application to dismiss the proceedings, on the basis that there is no jurisdiction, is refused.

2.       The proceedings are limited to conduct occurring between 25 July 2018 and 18 April 2019.

3.       The application to dismiss the proceedings on the grounds that the complaint is vexatious or frivolous is refused.

4.       The Registrar is to provide a copy of these reasons to the Attorney-General and the ACT Discrimination, Health Services & Disability and Community Services Commissioner and draw their attention to paragraph 23.

5.       The applicant is to file and serve within 14 days a schedule of allegations identifying with particularity and in chronological order each of the respondent’s acts said to contravene the Discrimination Act 1991 and attaching the relevant social media posts. The Schedule should respond as far as it can to the Schedule filed by the respondent and be capable of showing the context of the posts identified and respond to the arguments made by the respondent in her Schedule.

6.       Any further evidence concerning access to the posts in the ACT be filed by the applicant within 21 days and by the respondent within a further 14 days.

7. As a preliminary question a number of the posts complained of are capable of incitement contrary to section 67A of the Discrimination Act 1991 and some are capable of being regarded as victimisation contrary to section 68 of that Act.

………………………………..

Senior Member B Meagher SC

HEARING DETAILS

FILE NUMBER:	DT 6/2019
PARTIES, APPLICANT:	Bridget Clinch
PARTIES, RESPONDENT:	Bethanie Rep
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	Feminist Legal Clinic
TRIBUNAL MEMBERS:	Senior Member B Meagher
DATES OF HEARING:	5 December 2019