Le Roy v Brisbane City Council
[2025] QCAT 314
•19 August 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
Le Roy v Brisbane City Council [2025] QCAT 314
PARTIES:
MIREE LE ROY
(applicant)
v
BRISBANE CITY COUNCIL
(respondent)
APPLICATION NO/S:
ADL008-20
MATTER TYPE:
DELIVERED ON:
Anti-discrimination matters
19 August 2025
HEARING DATES:
19 February 2025
Final submissions 20 May 2025
HEARD AT:
Brisbane
DECISION OF:
Member Roney KC
ORDER/S:
1. The complaint is upheld.
2. A declaration is made that the Brisbane City Council unlawfully discriminated against the Applicant and the class members in respect of whom this proceeding is brought on the basis of her and their political belief and activity in passing its resolution dated 15 October 2019 and in the subsequent enforcement of it.
3. It is ordered that the Respondent cease enforcing its resolution of 15 October 2019 that it disallows Extinction Rebellion, its members, or affiliates from booking Council meeting facilities in the future and further that it cease enforcing its determination subsequently to no longer accept bookings for meeting rooms or other spaces for the ‘Extinction Rebellion Group’, or anyone looking to hold a meeting on their behalf.
4. The Respondent must, within 7 days of the making of these orders, give notice to the class members that it will not enforce its resolution of 15 October 2019 that it disallows Extinction Rebellion, its members or affiliates from booking Council meeting facilities in the future, and further that it cease enforcing its determination subsequently to no longer accept bookings for meeting rooms or other spaces for the ‘Extinction Rebellion Group’, or anyone looking to hold a meeting on their behalf, by uploading to the following Facebook pages/groups:
(a) "Extinction Rebellion Brisbane I Meanjin" -
(b) "Extinction Rebellion - Brisbane West" -
(c) "Extinction Rebellion Bramble Bay"-
5. I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.
CATCHWORDS:
HUMAN RIGHTS – ANTI-DISCRIMINATION – direct discrimination in the provision of goods and services on the basis of political belief or activity – where Applicant and those of the class that she represented wished to hold meetings in public library meeting rooms generally made available for meetings refused permission to do so, and existing bookings cancelled on the basis of the attribute of political belief or activity – where numerous bases and reasons for why a motion was put to Council to authorise the ban were advanced by speakers in the Council Chamber – where letter sent to a politically driven climate change organisation stating that it is no longer accepting bookings for meeting rooms or other spaces for the group, or anyone looking to hold a meeting on their behalf – whether a substantial reason for the motion passed, the notice letter and the ban was the Applicant’s personal and representative political belief and activity – meaning of political belief and political activity
Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 7(j), s 7(p), s 8, s 10(1), s 10(4)
Human Rights Act 2019 (Qld), s 22(1)
Peaceful Assembly Act 1992 (Qld)
Police Powers and Responsibilities Act 2000 (Qld)
Respect at Work and Other Matters Amendment Act2024 (Qld)Summary Offences Act 1988 (NSW)
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165
Bindaree Beef Pty Ltd v Riley (2013) 85 NSWLR 350
Brisbane City Council v Le Roy [2023] QCATA 90
Brown v Tasmania (2017) 261 CLR 328
Cairns Regional Council v Carey [2012] QCATA 150
Commissioner of Police (NSW) v Gabriel [2004] NSWSC 31
Commissioner of Police (NSW) v Lees [2025] NSWSC 858
CPS Management v Equal Opportunity Board [1991] 2 VR 107
Creek v Cairns Post Pty Ltd (2001) 112 FCR 352
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301
IW v City of Perth (1997) 191 CLR 1
Kovac v Australian Croatian Club Limited [2014] ACAT 41
Haines v Leves (1987) 8 NSWLR 442
Lattouf v Australian Broadcasting Corporation (No 2) [2025] FCA 669
Nestle v Equal Opportunity Board [1990] VR 805
Nevil Abolish Child Support v Telstra Corporation Limited [1997] VADT 44
Voitenko v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 355
Ritson v The Giving Network Pty Ltd & Anor [2021] QCAT 81
Patel v Mirza [2016] UKSC 42Sayed v Construction, Forestry, Mining and Energy Union (2015) 327 ALR 460
Shamoon v Chief Constable [2003] UKHL 11
Purvis v State of New South Wales (2003) 217 CLR 92
R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155
Waters & Ors v Public Transport Corporation (1991) 103 ALR 513APPEARANCES & REPRESENTATION:
Applicant
Self-represented
Respondent
D Quayle instructed by Wotton Kearney
Introduction
Conduct in the supply of goods and services
The relief sought
Orders making the matter a representative proceeding
The evidence and submissions before the Tribunal
The nature and activities and general character of Extinction Rebellion
What the Applicant said about Extinction Rebellion
The use to which Council meeting rooms in libraries were put by Extinction Rebellion
Whether meeting rooms were used to plan demonstrations and Rebellion Week
The Application form to book Library Meeting Room
International Rebellion week during 6–11 October 2019
Did the Respondent think Extinction Rebellion planned protest action in the libraries
The basis for and background to the 15 October 2019 council motion/resolution and the 16 October 2019 letter
The things said by the Mayor and Councillor Matic as to the basis for the motion
Was the activity of, membership of, and affiliation etc with Extinction Rebellion "political belief or activity'' within s 7(j) of the AD Act
Statutory and policy background to protest and civil disobedience
Whether Extinction Rebellion promoted and engaged in unlawful behaviour
What does the Respondent say was the illegal or unlawful behaviour in the context of protest or civil disobedience
Is Extinction Rebellion a legal person or association and does it matter if it isn’t?
The AD Act, fairness, and conduct directed to unlawful or illegal conduct
The comparator(s) and whether the Applicant and the represented class was treated less favourably than the comparator
Orders
REASONS FOR DECISION
Introduction
The Applicant, Ms Le Roy, alleges that she had been subjected to direct discrimination by the Respondent, Brisbane City Council, on the basis of political belief or activity in the area of the supply of goods and services.
She has sworn, and I find that she identified herself as a member and affiliate of what she calls the Extinction Rebellion global movement. She contends that Extinction Rebellion is a political movement with the purpose of encouraging governments to take action to prevent climate breakdown and the extinction of species. Extinction Rebellion is sometimes referred to in the material as XR.
The first critical event was that on 15 October 2019, when the Respondent passed a motion (‘the motion’) in the following terms:
That this Council: Notes Council's facilities, including libraries, are not suitable meeting places for organisations that advocate or incite illegal activities.
Further, considers that the Extinction Rebellion organisation falls into this category and disallows them from booking Council meeting facilities in the future.
By its clear terms it was a decision to disallow the Extinction Rebellion organisation from booking Council meeting facilities in the future.
The second critical event was that on 16 October 2019, when the Respondent (by the Council’s Manager of Library Services) sent an email (‘the 16 October 2019 letter’) to a member of Extinction Rebellion stating that Brisbane City Council is no longer accepting bookings for meeting rooms or other spaces for the group Extinction Rebellion, or anyone looking to hold a meeting on their behalf. The letter also notified that existing bookings at a couple of the Council's libraries were cancelled. This identifies the scope of the decision as relating to both meeting rooms or other spaces, and it was directed to the group Extinction Rebellion, or anyone looking to hold a meeting on their behalf. It also cancelled existing bookings even though the motion did not refer to that.
Ms Le Roy further contends that she is a member of a politically motivated group known as Grey Power and which she says is a group which joined the Extinction Rebellion as an 'affinity' group, thereby affiliating itself and its members with Extinction Rebellion. Ms Le Roy contends and there is no real controversy, and I find that persons affiliated with Extinction Rebellion booked and used meeting rooms in Council operated libraries. She contends that persons associated with Extinction Rebellion and Grey Power made those room bookings for regular public information sessions, since as early as early 2019. The Council disputes the factual contention that they did so and invited a finding that they involved organising unlawful or illegal activity. Ms Le Roy contends that the library information sessions are political in nature, and many issues relating to climate change involve political action.
On the most widely accepted account, the concept of civil disobedience is a public, non-violent and conscientious breach of law undertaken with the aim of bringing about a change in laws or government policies.[1] It has a long history. Henry David Thoreau is widely credited with coining the term civil disobedience. For years, Thoreau refused to pay his state poll tax as a protest against the institution of slavery, the extermination of Native Americans, and the war against Mexico. It has a significant history of use in Australia.[2]
[1] John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press. Revised edition, 1971) 320; and see ‘Civil Disobedience’, Stanford Encyclopedia of Philosophy (Web Page, 2 June 2021) < Hicks, 'Environmental Protest and Civil Disobedience in Australia’, Verfassungsblog on Matters Constitutional (Web Page, 1 August 2023) <>
There is no real dispute that Extinction Rebellion members (or affiliates as the Respondent refers to them) has engaged in acts of civil disobedience as one of its activities, although as I shall identify shortly, it is only one such activity.
The Respondent alleges that Extinction Rebellion is an organisation which describes itself as an international movement that uses non-violent, civil disobedience in an attempt to halt mass extinction and minimise the risk of social collapse. That much may be and is accepted.
The Respondent alleges in its contentions that in purported furtherance of its goals Extinction Rebellion conducts 'actions' which involve, amongst other things, acts of public disruption and disobedience, directed at causing inconvenience, delay, disruption, anger and provocation of the community and civil agencies generally, with a view to extracting concessions or change from governments and communities in furtherance of certain 'demands' which it makes. It contends that Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs and that that unlawful conduct so pervades Extinction Rebellion's activities that it might properly be identified as: (i) its raison d'être; or, in the alternative: (ii) at least a substantial purpose of the organisation or (iii) a substantial part of its activities.
Ms Le Roy rejects that proposition that such unlawful conduct pervades Extinction Rebellion's activities, while conceding that some civil disobedience has occurred in protests which she did not commit or countenance.
It is uncontroversial and I find that from July 2019, Mr Robert Keller, a member of the Extinction Rebellion, and various other persons as well, made various bookings for information sessions to be held at Brisbane City Council libraries, but that on 16 October 2019, he received the 16 October 2019 letter as an email from the Council's Manager of Library Services stating that Brisbane City Council ‘is no longer accepting bookings for meeting rooms or other spaces for the group Extinction Rebellion, or anyone looking to hold a meeting on their behalf’. The Applicant refers to this letter as a ban. The Council does not accept that characterisation. It says it was an ‘enactment of the decision (by the passing of the motion) which precluded Extinction Rebellion from using Council facilities’. So, it says it was not a ban, it was an act precluding something. The Macquarie Dictionary defines the word ‘preclude’ as meaning shut out or exclude, make impossible, debar. There is no material distinction that matters to the outcome of this case.
Ms Le Roy contends that the information sessions which were held in the libraries were in and of themselves political activity and politically motivated in nature and as well, many issues relating to climate change involve political action.
The proceeding is being dealt with as a representative proceeding. In the notice to class members from the Queensland Civil and Administrative Tribunal (‘QCAT’) indicating what the nature of the proceeding is, it was described as:
a complaint against the Brisbane City Council arising out of an alleged ban on the use of libraries and other public spaces by the Extinction Rebellion group from 16 October 2019 and the publication of minutes of a Brisbane City Council meeting related to that ban.
Miree Le Roy alleges that the Brisbane City Council has contravened s101 and s127 of the Anti-Discrimination Act 1999 (Qld). The allegations are denied.
Miree Le Roy seeks:
(a) a declaration that the Brisbane City Council has unlawfully discriminated against her on the basis of her political belief and activity, being her affiliation with the Extinction Rebellion movement; and
(b) orders that booking requests are not denied and that a press release is published confirming any person affiliated with Extinction Rebellion is not banned from booking or using the Brisbane City Council's facilities and an order for payment of her costs.
No award of compensation is sought.
Hence the tribunal itself previously characterised the conduct as a ban. However properly characterised, whether as notification of a ban, or an act precluding something, the 16 October 2019 letter constituted notice of a decision then and going forward indefinitely to the present time, that the Council would no longer accept bookings for meeting rooms or other spaces for the ‘Extinction Rebellion Group’, or anyone looking to hold a meeting on their behalf and that in effect they could not use the rooms for any purpose. The letter also notified that existing bookings at a couple of the Council's libraries were cancelled. For practical purposes, the 16 October 2019 letter notified that it was a ban on bookings for meeting rooms or other spaces for the ‘Extinction Rebellion Group’, or anyone looking to hold a meeting on ‘their’ behalf. It did not state any reason for the action.
Conduct in the supply of goods and services
The Respondent concedes that it made available meeting rooms in its libraries and some other facilities for hire by the public. It accepts, for the purpose of this proceeding, that doing so constituted the supply of goods and services within the terms of s 46 of the Anti-Discrimination Act 1991 (Qld) (‘AD Act’).
The relief sought
The relief Ms Le Roy seeks on behalf of the class, and of course herself, is a declaration that she has been unlawfully discriminated against on the basis of her political belief and activity, namely her affiliation with the Extinction Rebellion.
Despite a submission to the contrary from the Respondent, which was not supported by any identified foundation except by assertion in its written submissions that ‘the Tribunal is not conferred a power, by s 209 of the AD Act to make a declaration of the kind sought by the Applicant’, the Tribunal does have the power under s 60 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) to make declaratory orders. An example of a case where such an order was made can be seen from one of the authorities that the Respondent referred to for some other proposition, namely Ritson v The Giving Network Pty Ltd & Anor[3] (‘Ritson’). There are many examples one can find of such orders being made.
[3][2021] QCAT 81.
Ms Le Roy also seeks an order that the Council not deny any booking request for its facilities made by any person on the basis of that person's affiliation with the Extinction Rebellion movement and an order that the Council publish a press release stating that it is no longer banning any person affiliated with Extinction Rebellion from booking or using its facilities. That she was asking for a ‘Press Release’ was clear from the outset of this matter as is apparent from item 20(c), page 4 of the Applicant's Contentions dated 13 March 2020 and no resistance was raised to this relief in the intervening five years until the end of oral submissions at the hearing.
In addition, just before the hearing in the submissions filed 17 February 2025, the Respondent identified that the Applicant was seeking an order pursuant to s 209(1)(a) of the AD Act, that the Council cease enforcement of the decision; and an order pursuant to pursuant to s 209(1)(c) of the AD Act, that the Council publish a notice of the kind sought (styled a ‘press release’ by the Applicant) by the Respondent. In his opening at the hearing, counsel said, no doubt on instructions, that these orders were the orders that should be made if the Respondent was unsuccessful. But then by the end of argument it had thoroughly moved away from that position, submitting in its 28 February 2025 submission that the ‘order the Applicant seeks, in the event of success, could only rationally be to inform those persons on whom the decision operates, being the class, that the decision will no longer be enforced. A “press release” as that term would be used in ordinary parlance, is not required to achieve that purpose’.
That clearly is not what the Applicant was asking for since she was asking for it long before this became a representative proceeding. Instead, it suggested that if the complaint is upheld, the Tribunal would appropriately order that the Respondent cease enforcing the decision and the Respondent notify the class by way of a notice published to the Facebook pages/groups identified in the directions of Member Fitzpatrick of 16 February 2024 that the Applicant's application has been upheld and the decision will no longer be enforced.
That proposition is attendant with difficulty since what the Member ordered was not about what the Respondent would publish on those sites but what the Applicant would publish on them. The order was that:
The Principal Registrar must send the Notice to Class members, being attachment 'A' to these Directions, to Miree Le Roy for uploading to the following Facebook pages/groups:
(a) "Extinction Rebellion Brisbane I Meanjin" -
https:/ / "Extinction Rebellion - Brisbane West" -
https :// "Extinction Rebellion Bramble Bay" -
>
In the end I need not resolve the concerns around this issue because in her 1 March 2025 submissions the Applicant indicated she was prepared to accept the suggestion that there be Facebook notifications by the Respondent but asked that there be an order this matter also be placed on the agenda for the next public Council meeting and suitably minuted, acknowledging that the Applicant's application has been upheld and “that Brisbane City Council staff will no longer be enforcing the Library Ban” because it is appropriate that those who voted for or against the motion be appropriately informed in this way. I am disinclined to direct that anything is to go on an agenda, but it seems to me unnecessary to do that because as the Respondent has conceded the Tribunal's reasons when published, will be on record and available to the public. Councillors can debate that outcome as they see fit.
Orders making the matter a representative proceeding
In 2021, the Tribunal heard the application to have the complaint dealt with as a representative proceeding. The Council opposed Ms Le Roy's application. The parties filed affidavits and written submissions addressing that issue. Member Traves delivered her decision and reasons on 2 July 2021.[4] In her reasons the Member held:
In my view, it is clear from Ms Le Roy's description of her complaint that she is alleging that the Brisbane City Council has contravened the AD Act against a number of people, namely members of the Extinction Rebellion group, although she also had been affected as an affiliate of the group. This is not affected, in my view, by her statement at the commencement of the pro forma complaint form that she was making the complaint personally and not on behalf of someone else. The question is not in what capacity was the complaint made but what was alleged? While Ms Le Roy made the complaint in her personal capacity, she alleged that the AD Act had been contravened by the [Brisbane City Council] against all members of the Extinction Rebellion group, not just her.
Accordingly, I am satisfied that the relevant pre-condition in s 194 has been met.
[4] Le Roy v Brisbane City Council [2021] QCAT delivered 2 July 2021.
The Member accepted that Ms Le Roy is a member of a class of people, the members of which have been affected, or are reasonably likely to be affected by, the Council's conduct. The Member identified that Ms Le Roy contended that that she is a member of the Extinction Rebellion movement which has approximately 4,000 members in Queensland and 29,000 members Australia wide. She contends, as the evidence before me shows, that Ms Le Roy joined Extinction Rebellion at the beginning of October 2019 when Grey Power (another group to which she belonged) became an affinity group of Extinction Rebellion. The Member noted that ‘[t]the structure of Extinction Rebellion means that there is no one single group or organisational body however, groups are formed as “affinity groups” which identify as being part of, and contributing towards, the Extinction Rebellion movement.’
Ms Le Roy says that to qualify as a ‘member’ of the Extinction Rebellion movement, individuals may sign up to a global database to receive updates and information. I accept that evidence.
Ms Le Roy contends that she is affected by the Council's decision because she is unable to make use of Council facilities to hold education sessions and other activities associated with Extinction Rebellion and/or Grey Power and is unable to use the Council's facilities to hold meetings.
On the material before the Tribunal in 2021, and also before me, there were affidavits by four other people in support of the application for the complaint to be dealt with as a representative complaint filed. Each of the four deponents also claimed to be members of Extinction Rebellion Brisbane West and they that had been affected by the Council's conduct by being unable to make use of Council facilities to hold meetings and education sessions.
On the application to have the complaint dealt with as a representative proceeding, the Council submitted that Ms Le Roy had not identified the group or class of people she represents and that, even assuming she could, because of the amorphous and ever-changing nature of the group, its members were not readily identifiable and where it is unclear that anyone beyond Ms Le Roy wishes to pursue the complaint, it should not be dealt with as a representative complaint. The Council also made the submission that there is a difference between becoming a member and being an affiliate by virtue of being a member of an organisation that declares affinity which unlike membership, is essentially a unilateral act. Both of those submissions were rejected.
Member Traves, as she then was, held that on balance, she was satisfied that the matter should be dealt with as a representative complaint. She held:
It would be impractical for separate Queensland members of Extinction Rebellion to bring actions for unlawful discrimination in relation to the use of Council facilities or library meeting room bookings. All the members were potentially affected in the same way in that they were unable to use the facilities as Extinction Rebellion members. In my view, dealing with the complaint as a representative complaint is in the interests of justice by promoting the most efficient resolution of a dispute which concerns a class of persons with a common question of law or fact and which affects all the members.
Senior Member Traves then directed that the matter be dealt with as a representative complaint on behalf of the Queensland members of Extinction Rebellion, being those members resident in Queensland who had subscribed to the Extinction Rebellion official website either as an individual or as a member of an affiliate group from the date of the notification letter, 15 October 2019. That is the class on whose behalf the proceeding is brought. It mirrors those to whom the 16 October letter was directed.
The Council appealed from that decision. In Brisbane City Council v Le Roy [2023] QCATA 90 Judicial Member Forrest SC dismissed the appeal, finding:
[56] …I am satisfied that the Council's position was that one could not be a member of XR in the classic sense of joining an association, a club, a political patty, or similar organisation by paying a membership fee, subscribing to the rules or constitution and being accepted as a constituent member. I am also satisfied that the Member was conscious of that and considered that against the position contended for by Ms Le Roy. The Member, in [22] of her reasons, acknowledged correctly that it was important for Ms Le Roy to define the class she seeks to represent. The Member quoted Ms Le Roy's contention being that "the members of XR are definable by the database of individuals or groups (like Grey Power) who have signed the "Join the Rebellion" sign up form on the XR official website" and that there were approximately 4,000 XR members in south-east Queensland. Having acknowledged the Council's argument about this and correctly pointing out that the class of persons sought to be represented does not have to be static, I am not persuaded that the Member took into account a wrong principle, allowed irrelevant material to guide her, mistook the facts or did not take into account some material consideration. I am satisfied that the Member did not conflate Ms Le Roy's position of asserted 'membership' with one of formal 'membership' of the kind that I have mentioned above, the kind that the Council has apparently argued is the necessary kind to have to meet the need for sufficient particularity of identification, an argument I respectfully do not accept.
…
[59] … I do not accept Council's apparent submission that some form of formal membership of XR is necessary to adequately define the class Ms Le Roy seeks to represent, nor do I accept that the Member considered that is what she was dealing with when deciding Ms Le Roy's application, such that she could be said to have erred by defining the limits of the identified class as she did in [31] of her reasons. By that description, anyone can ascertain whether they are or are not a member of the group that Ms Le Roy was determined to represent. Are they resident in Queensland? Have they subscribed to the XR official website, either as an individual or as a member of an affiliate group, from 15 October 2019? If the answer to each of those questions is "yes", then they are a member of the group. If they do not consider themselves to be a part of XR, because, for example, they may have just subscribed to the website to get some information about XR, then they will be in a position to opt out of the proceedings if they want.
There were other but related grounds of appeal which were also rejected.
The evidence and submissions before the Tribunal
The Applicant relied on an affidavit from herself dated 28 September 2020, and a document entitled ‘Additional Evidence submitted by Miree Le Roy’ dated 27 August 2024 and affidavits of other persons who said they identified as members of Extinction Rebellion, Geraldine Holmes (dated 11 August 2020), Paul Grace (dated 11 August 2020), Robin Keller (dated 13 August 2020) and Susan Melloy (dated 14 August 2020). She relied on submissions dated 14 February 2025, 1 March 2025, 26 May 2025 and 29 May 2025.
In the affidavit of Mr Keller, he refers to the Applicant as ‘a fellow activist who is similarly involved in campaigns and actions to alert the public and our government to the urgency of the climate crises’. I do not consider his characterisation of her as implying that she condones unlawful conduct or participates in it.
None of the Applicant’s witnesses were cross-examined or challenged on their evidence as to how the decision adversely affected them. The Applicant was cross-examined at length. I found her to be intelligent, responsive in her answers, careful with the way she expressed herself to ensure accuracy. She demonstrated that she developed and held her views in a conservative way. She was not a ‘militant’ member of Extinction Rebellion but was certainly an activist for it. I broadly accept her evidence, including where it conflicts with that of Mr Evans.
The Respondent relied on submissions dated 17 and 28 February 2025, 8 and 28 May 2025 to which I have given careful consideration.
The only witness for the Council was Geoffrey Evans, a solicitor employed by the Council who swore an affidavit to various things some of which he did not appear to have had and did not say he had any direct knowledge of, but rather researched or read and collated documentary material from various sources. He swore at a level of generality that for the purposes of making his affidavit, he had read and was familiar with the Council's records relating to this matter. He swore that unless stated otherwise, the documents exhibited to his affidavit are documents he located in the Council's records. Some that he exhibited he found on the internet.
The record of the Council debates on the motion suggests that only one document was referred to by the two relevant persons who spoke in favour of the motion. None of the others Mr Evans exhibited were referred to in the debate on the motion.
The nature and activities and general character of Extinction Rebellion
As was said in Cairns Regional Council v Carey[5] (‘Carey’) at [90], it will be necessary to determine the matters on which the decision to disallow library use was based, and then to characterise them in accordance with what the authorities say falls within the notions of political belief or activity. In Carey at [104] it was said that the essential questions are ‘what was the substantial reason or reasons for the (decision) and should it or they be characterised as discrimination?’
[5][2012] QCATA 150.
Orders were made on 12 May 2020 that the parties deliver a Statement of Contentions and a Response to the Statement of Contentions. The pleadings that recorded the parties’ position at the time of the hearing were the Amended Statement of Contentions dated 18 June 2020 and the Amended Response to the Statement of Contentions dated 14 May 2020.
The Respondent also put in issue whether the Applicant has, at all material times, identified herself as a member and affiliate of the Extinction Rebellion global movement, which she pleaded is, amongst other things, a political movement with the purpose of encouraging governments to take action to prevent climate breakdown and the extinction of species. The Applicant gave evidence to that effect and there is other objective evidence that this was so and I accept that evidence.
The Respondent also put in issue whether, as the Applicant contends, since on or about 5 October 2019, a group, known as Grey Power, of which the Applicant was allegedly a member, officially joined the Extinction Rebellion global movement as an ‘affinity’ group, thereby affiliating itself and its members with the movement. The Applicant gave evidence to that effect and I accept that evidence.
The Respondent put in issue whether due to its structure, the Extinction Rebellion movement comprises many groups, which identify as being part of, and contribute towards, the Extinction Rebellion movement. The Applicant gave evidence to that effect and there is other objective documentary evidence that this was so and I accept that evidence.
The Applicant swore that Extinction Rebellion is a community collective of like-minded individuals who believe in man-made climate change. It is not a formal organisation and therefore this decision affects each and every one of the people who have the same political belief. I accept that evidence.
The Applicant swore that prior to October 2019, she was a member of Grey Power, an environmentalist group. Grey Power has approximately 500 members within the South-East Queensland region. In the beginning of October 2019, she joined the Extinction Rebellion, which she said was a global movement, when Grey Power became an affinity group of Extinction Rebellion. The Applicant swore that she has been and remains a member of Extinction Rebellion. Cross-examination concerning a document in the hearing book at page 218 demonstrated that as at September 2019, she was not a member of Extinction Rebellion but was a member of Grey Power. She swore that she joined in October 2019, although she was familiar with all of those involved with before then. Her description of having become a member or joining in October 2019, was a reference to her signing up to be on the mailing list, not actually her being issued with any kind of membership per se. I accept that evidence also.
The Applicant said, and there is other objective documentary evidence to support the proposition that Extinction Rebellion is a global movement which is, amongst other things, a political movement with the purpose of encouraging governments to take action to prevent climate breakdown and the extinction of species. Extinction Rebellion has three demands and ten principles which all members and associated groups promote. I accept that evidence.
The Applicant said, and there is other objective documentary evidence to support the proposition that Extinction Rebellion is an organisation which describes itself as an international movement that uses non-violent, civil disobedience in an attempt to halt mass extinction and minimise the risk of social collapse. The Applicant said that the structure of Extinction Rebellion means that there is no one single group or organisational body however, groups are formed as ‘affinity groups’ which identify as being part of, and contributing towards, the Extinction Rebellion movement. She estimated that there are approximately 4,000 members of Extinction Rebellion within the South-East Queensland region. I accept that evidence also.
The Applicant said, and there is other objective documentary evidence to support the proposition, and I accept, that as a member of Grey Power and Extinction Rebellion she has used library facilities provided by the Respondent to hold education sessions, known as ‘heading for extinction talks’. I accept that evidence also.
As I observed at paragraph 10 of these reasons, the Respondent alleges that in purported furtherance of those goals Extinction Rebellion conducts 'actions' which involve, amongst other things, acts of public disruption and disobedience, directed at causing inconvenience, delay, disruption, anger and provocation of the community and civil agencies generally, with a view to extracting concessions or change from governments and communities in furtherance of certain 'demands' which it makes. In that regard, and to a limited degree in support of it, reference may be made to one of the documents referred to by the mayor during debate on the motion was a publication, the author of which was not identified, and it was not put into evidence here which said:
We are a complex web of small autonomous groups across the world who are evolving and growing together.
We promote, train and participate in peaceful direct action.
We transform our despair tactics into tactics of rebellion. The third world war, that of profit versus life, is well under way. We break the rules to convey to those who profit from the destruction of our future that we are serious and unafraid
The reference to peaceful direct action is consistent with what the Applicant said. She did not adopt the proposition that central to Extinction Rebellion’s activities is to break the rules.
The Respondent alleged that Extinction Rebellion accepts and promotes such actions as being either wholly or partially unlawful, ‘as is apparent from literature it publishes’. I will deal with that literature and what is says, in context, but the Respondent says that it is to be found in:
i. A flyer promoting International Rebellion Week between 6 – 11 October 2019, under the heading ‘Take Part in An Action’ appears the words ‘Plan a non-violent disruptive action with friends ... Arrestable and non-arrestable roles available’;
ii. A flyer promoting International Rebellion Week for each of 8 – 11 October 2019, in the ‘Brisbane Rebellion Week Event Schedule’ appears an entry ‘Swarming Flash Mob’ to occur from 7.30am until 10.00am [coinciding with peak hour traffic];
iii. A flyer promoting International Rebellion Week noted that ‘on 7 October 2019, civil disobedience in Brisbane will escalate for Rebellion Week. Thousands of rebels will descend on the Queensland capital over the period to take part in major actions, rebellions and disruptions- every day’ and ‘on Friday 11 [October 2019] we will conclude the week with a public occupation and shutdown of the William Jolly Bridge’;
iv. A flyer entitled ‘Despair Ends & Tactics Begin - How can social change happen at the monumental pace & scale that is now required to address the climate crisis? Come find out’, listed workshops to occur between 12 and 26 September 2019 at each of the Nundah, Indooroopilly, Brisbane Square, New Farm and Toowong Public Libraries;
v. A flyer entitled ‘Civil Disobedience & Why It Works’ observes that ‘We do not want or need everyone to get arrested-as individual's situations differ and do not always permit this- but we do want everyone involved to support non-violent civil disobedience as a tool.’;
vi. A flyer promoting a security workshop to occur on 15 September 2019 noted that ‘Security and privacy is always a concern in these times of mass surveillance and increasing police powers ... especially if you are planning on partaking in civil disobedience against the state.’
What the Applicant said about Extinction Rebellion
The cross-examination of the Applicant was directed to ascertaining precisely what, if any, common ideas, themes, concepts or behaviours she considered to be elemental features of what Extinction Rebellion stood for. The cross-examination also sought to have her agree that one of those essential elements, and if not essential, certainly a feature was the notion of engaging in unlawful, or as it was called in some of the questions, illegal conduct.
As her evidence made clear and I accept, it is not part of the policies or practices of Extinction Rebellion as she engaged with them to engage in unlawful activity, or to in any way, promote speaking, used among other tools, tactics and practices, non-violent direct action to promote its causes for government to act. Some may break laws when protest occurs. That she explained was not what she believed. I accept her evidence. There is however clear evidence that civil disobedience was part of the way Extinction Rebellion affiliated promoted it.
As she explained it a part of what Extinction Rebellion stood for was to engage in peaceful protest, but that was not the only way in which it engaged the public and it’s political and other leadership. She said, and I accept, that she strongly believed that the world generally faced a climate emergency, and that this was a belief shared by scientific bodies.
She spoke to having a passionate belief that the world faced a potential catastrophe, a climate emergency of an existential character. She said, and I accept, that she believed that the consequences of inaction were dire. She saw the actions of the political cohort, ignoring the problem, and perhaps, even making it worse by providing subsidies to fossil fuel providers. She saw the domination of media by a relatively few entities as part of her concerns, because the problem which she identified was not being recognised in that media.
She said, and I accept, that the essential feature of the activity of Extinction Rebellion was to provide information sessions, to let the public know what was in fact going on. She conceded that ultimately, the problem could not be resolved by individual action, but had to be resolved by government action. She said, and I accept, that the actions of Extinction Rebellion were ultimately about provoking government action.
It was put to her that what she and Extinction Rebellion were about was that once they had tried all the usual ways such as writing to politicians and speaking to people, they had to try more extreme measures or perhaps illegal conduct. She entirely rejected that proposition, and her evidence in that regard was not undermined.
She used the analogy of concert goers taking illegal drugs at a concert and it being the individual responsibility of the patrons, not the performer.
She said, and I accept, that in terms of organised protests in ‘International Rebellion Week’ from 6 to 11 October 2019, none of the planning that went around the holding of those protests occurred in any library context. She gave evidence that to the extent that there were arrests during protests that this arose out of disobeying police directions and highlighted that these were minor, insignificant offences, which often never went beyond protesters being escorted to a police wagon, and then released or alternatively being issued with a $70 fine.
Counsel for the Respondent repeatedly suggested to her that some sort of illegal or criminal activity must necessarily have been involved in these protests although he did not identify any criminal activity in particular that actually took place. He sought to focus upon the number of arrests identified in media reports, but which in turn, were only in evidence because of media reports exhibited to a solicitor's affidavit. I have elsewhere in these reasons summarised what the offences or arrests for offences were said in those reports to have been.
It was suggested that because of the climate change emergency, Extinction Rebellion took a stance that it was appropriate to take more extreme measures. The Applicant rejected that proposition, insisting that they only engage in legal protests. Her evidence as to this was not undermined during cross-examination.
Ms Le Roy swore, and I accept, that the stance that she personally and Extinction Rebellion took was that it engaged in nonviolent direct action. This can include things such as slowing down traffic by slow marching or other conduct, which was disruptive of peak hour traffic, with a view to drawing attention to the climate change emergency and putting pressure on politicians to act.
To the extent that there were arrests, reported in the media, she rejected the proposition that Extinction Rebellion had any advance notice of any proposed unlawful conduct. I accept her evidence as to this.
One proposition put to her in cross-examination and later adopted in the Respondent’s submissions was that the Tribunal could infer pre-organised, or premeditated unlawful activity at the protests, or if not pre-planned, then at least evidence of illegality. The Council did not condescend to identify what offences were or may have been committed during that week of protests. Counsel could do no more than repeat the proposition that the existence of arrests by the police established that proposition.
During the week of organized protests in ‘International Rebellion Week’ from 6 to 11 October 2019 week, the Applicant attended only one protest and it was one in respect of which a police permit to march had been issued. All police directives issued in her march were obeyed, although in some cases individuals chose to disobey those directives. But as was elicited in cross-examination, her evidence, which was not undermined was that the core principle for which Extinction Rebellion stood was to engage in nonviolent action. She rejected the notion that Extinction Rebellion condoned illegality. Nothing was suggested to her to demonstrate otherwise, or for that matter to demonstrate unlawful acts were either planned or actually carried out. I accept that evidence.
The Applicant rejected the proposition that Extinction Rebellion held itself out on its website as promoting activity which would work where the usual steps to influence climate change outcomes had not worked. She explained the language to be found there as engaging in nonviolent acts to demand government action immediately.
She admitted she had in 2022 once been arrested herself, three years after the events of 2019 for unfurling a banner in parliament and for which she pleaded guilty to some minor offence of disturbing the legislature, and for which no conviction was entered.
I am not persuaded to the view that based on what the Applicant said in her evidence under cross-examination that Extinction Rebellion and its members and affiliates engage in large scale, coordinated and premeditated unlawful activities, in furtherance of that organisation's aims and beliefs or that that unlawful conduct so pervades Extinction Rebellion's activities.
Nor do I accept that her evidence showed that unlawful conduct was the raison d'être or, in the alternative, at least a substantial purpose of the organisation or a substantial part of its activities.
Even if the contrary had been found, I find that the Applicant did not embrace or condone that unlawful conduct and I accept her evidence to that effect.
The use to which Council meeting rooms in libraries were put by Extinction Rebellion
The Respondent put in issue in its contentions whether persons affiliated with the Extinction Rebellion movement were holding regular public information sessions at Brisbane City Council libraries by making room bookings which reserved meeting rooms for the sessions, since at least as early as 2019. It seems the issue is not whether those rooms were booked but whether they were only used for information sessions rather than planning protests.
The Respondent admitted that it owned or operated various community facilities which included public libraries and specifically the Nundah, Indooroopilly, Brisbane Square, New Farm and Toowong Public Libraries. It admitted it made available meeting rooms within such libraries for hire by community groups, not for profit organisations and other such groups subject to certain conditions and procedures.
The evidence from Mr Evans for the Respondent, which I accept, is that Extinction Rebellion booked a meeting room at the Council's Kenmore Library on 11 August 2019, 13 August 2019, 29 August 2019 and 3 October 2019, at the Council's Indooroopilly Library on 7 July 2019, 27 July 2019, 15 September 2019 and 13 October 2019, and at the Council's New Farm Library on 30 July 2019, 28 August 2019 and 25 September 2019.
The Respondent put in issue whether during these sessions, Extinction Rebellion taught members of the public about climate change facts and how to become involved in the Extinction Rebellion movement and that Facebook events were made to advertise the sessions. The Respondent also put in issue the allegation put forward by the Applicant as to whether the sessions are political in nature as, she says many issues relating to climate change involve political action. It is not apparent why it is necessary to resolve the factual issue of whether the sessions are or if permitted would be political in nature.
Whether meeting rooms were used to plan demonstrations and Rebellion Week
The case pleaded for the Respondent was that the actions between 30 September 2019 and 11 October 2019 were in whole or in part planned and arranged at the Extinction Rebellion meetings which occurred in the libraries owned or operated by the Respondent.
It was put in cross-examination of the Applicant that there were hundreds if not thousands who participated on the protests and that there must have been a lot of planning. The Applicant rejected the idea that this group was connected around a single issue or that it was not a body that stood for particular things or that the ideas of members were black and white.
I have referred already to the article, exhibit GJE-14, from August 2019 in which a police superintendent is quoted the saying that protesters were committing ‘unplanned, disruptive activity’. This is evidence which is inconsistent with the Respondent’s contention that it was planned in the libraries.
Ms Le Roy was taken to exhibit GJE-3, a flyer entitled ‘Welcome to International Rebellion Week’, which was posted on the Extinction Rebellion Brisbane/Meanjin Facebook page on 7 October 2019. There were other similar documents exhibited to the Evans affidavit. Many were not copied so as to be legible. This flyer actually refers to planning ‘a non-violent disruptive action with friends’ and in that context ‘pre-planned actions’ occurring daily with participants meeting in a park at the beginning of each day for the day’s events. Much was made of its reference to taking part in an action ‘arrestable and non-arrestable roles available.’
In cross-examination the Applicant was taken to this document that identified that participants would meet at the gardens, and that individuals could be involved in arrestable and non-arrestable things. She said in response not that she had anything to do with that but that none of the planning occurred in any Council library. Her evidence as to this was not challenged or undermined. In cross-examination, the Applicant said she had nothing to do with the creation of that flyer.
Taken as a whole, the flyer spoke only of planning ‘a non-violent disruptive action’ but also identified as some of the many ways to be involved in that week, volunteering to sign up people for workshops, hand out flyers, work on stalls and enjoying other ways. On the reverse side was an event schedule. Nothing on the reverse side is relied on by the Respondent as suggesting law breaking was planned. A legible copy of exhibit GJE-5 does not mention any unlawful activity or getting arrested.
I am prepared to accept that there were other documents or publications issued by Extinction Rebellion produced relating to that week and other times. They were set out in the Respondent’s contentions.
A flyer promoting a security workshop to occur on 15 September 2019 noted that ‘Security and privacy is always a concern in these times of mass surveillance and increasing police powers ... especially if you are planning on partaking in civil disobedience against the state.’
In a flyer entitled ‘Civil Disobedience & Why It Works’, it is observed that ‘We do not want or need everyone to get arrested-as individual's situations differ and do not always permit this- but we do want everyone involved to support non-violent civil disobedience as a tool.’
In a flyer entitled ‘Despair Ends & Tactics Begin - How can social change happen at the monumental pace & scale that is now required to address the climate crisis? Come find out’, listed workshops to occur between 12 and 26 September 2019 at each of the Nundah, Indooroopilly, Brisbane Square, New Farm and Toowong Public Libraries. Nothing was said there about planning International Rebellion Week.
A flyer promoting International Rebellion Week noted that ‘on 7 October 2019, civil disobedience in Brisbane will escalate for Rebellion Week. Thousands of rebels will descend on the Queensland capital over the period to take part in major actions, rebellions and disruptions- every day’ and ‘on Friday 11 [October 2019] we will conclude the week with a public occupation and shutdown of the William Jolly Bridge’.
In a flyer promoting International Rebellion Week for each day of 8–11 October 2019, in the ‘Brisbane Rebellion Week Event Schedule’ appears an entry ‘Swarming Flash Mob’ to occur from 7.30am until 10.00am [coinciding with peak hour traffic].
Ms Le Roy gave plausible evidence, which I accept, that whatever nonviolent direct action was planned to occur in ‘International Rebellion Week’, occurred in private homes and never at any Council library meeting rooms. It was put to her that this was in some way illogical, and in oral submissions described as having no ‘currency’. She rejected this and went through all of the records of booking forms for library use to demonstrate, and I accept, that the evidence does establish, that what was presented there was a standard PowerPoint presentation about what is happening in climate change, what governments are not doing about it and the existence in general terms of the purpose of nonviolent action to pressure government.
She gave evidence under cross-examination, which I accept, that the Grey Power and eventually the Extinction Rebellion group in Southeast Queensland was very small group of individuals which developed around Stop Adani and Lock the Gate. When she moved across to Extinction Rebellion, she knew the individuals who made the bookings at the libraries and did the presentations in the library meeting rooms in 2019, partly because she knew them all, since they were a tight-knit community.
On those forms the meetings were identified as information sessions, and while the topics covered included nonviolent direct action at a general level, it was not with respect to those specific protests or indeed any specific protest action in International Rebellion Week or at any other time. I accept her evidence that she knew all individuals who ran these sessions, what the subject matter of their presentations was, or what they would have been. I reject the submission made for the Council that I should find as a fact on the evidence that unlawful or illegal actions were planned for International Rebellion Week or at any other time at any of those information sessions or in Council libraries. Apart from one reference in the description of the group ‘including activities’, (almost illegible on the material filed), in one of the booking forms for one meeting for a group described as an ‘information meeting’ for a ‘climate crisis protest group nonviolent direct action re climate crisis’ on 23 July 2019 well before International Rebellion Week. Almost all others referenced talks about climate change, PowerPoint presentations, information sessions, talks, giving a talk on a projector, introduction talk, environmental talks, for climate crisis activists for a ‘cause environmental’.
No evidence was called by the Council from any person who ever attended any of these meetings to say that unlawful or illegal actions were planned for International Rebellion Week or at any other time at any of those information sessions.
When the Council chamber debated the resolution, one councillor demanded proof that the rooms were being used to plan unlawful or illegal actions. The mayor was asked a question about how many library bookings Extinction Rebellion made and had there been any problems with those bookings whatsoever. He was asked where was his evidence to justify the motion and this was properly a matter for the police to ensure that there is no illegal behaviour happening. None was produced or identified.
As I noted earlier in these reasons, meetings were held on 11 August 2019, 13 August 2019, 29 August 2019 and 3 October 2019, at the Council's Indooroopilly Library on 7 July 2019, 27 July 2019, 15 September 2019 and 13 October 2019 (actually after International Rebellion Week, and at the Council's New Farm Library on 30 July 2019, 28 August 2019 and 25 September 2019. International Rebellion Week started on 6 October. There was one meeting three days before on 3 October, two in September, four in August. This infrequency is inconsistent with the intense planning Counsel for the Respondent suggested to the Applicant would have been necessary to organise all the things that happened in International Rebellion Week.
None of the materials put together and exhibited to Mr Evans' affidavit made reference to, suggested, or even hinted at the suggestion that unlawful or illegal actions were planned for International Rebellion Week or at any other time at any of those information sessions or that people should attend them for that purpose.
The Respondent alleged that it was a reasonable inference that the protest and other unlawful conduct by actions between 30 September 2019 and 11 October 2019 were in whole or in part planned and arranged at the Extinction Rebellion meetings which occurred in the libraries owned or operated by the Respondent. I reject that assertion as implausible and contrary to the direct evidence which I accept from the Applicant.
The Application form to book Library Meeting Room
The uncontroversial evidence, which I accept is that between approximately October 2018 and October 2019, on 10 occasions Extinction Rebellion hired Council meeting rooms in libraries owned or operated by the Respondent including the Kenmore Library, the Indooroopilly Library and the New Farm Library. It says that in the relevant booking forms for the hire of the Council meeting rooms on those occasions there were variously described the activities carried out in those rooms identified as ‘information session’, ‘cause- environmental’, ‘talk’, ‘education about the climate crisis’, ‘climate crisis protest group, non-violent direct action re climate crisis’, ‘climate crisis activists’. The ‘Description of group/activities’ was given as variously ‘Environment education’, ‘Environment’, ‘Climate campaigners/community’.
The Respondent relied upon a form meeting room users had to fill out entitled ‘Application for Library Meeting Room Booking’ (‘Application form’). It said that it required the hirer to abide the conditions imposed by the Respondent set out in a document provided upon the approval for any application for hire, entitled ‘Conditions for Booking and Use’ (‘Conditions form’). It involved the Respondent determining what, if any, hire fee to impose on any Applicant for hire by reference to a document used by the Respondent's staff entitled ‘For Staff Use Only - guide to assist with assessment of groups - meeting room fees’ (‘the guideline’). The Application form, amongst other things posed certain questions including ‘What is the use of the room on the occasion/s listed above?’ and ‘Is your event/program linked to a commercial business/parent organisation/government department?’.
The hire fee guide on the form provided as follows:
i. In relation to hirers who are Community groups that ‘Note: meeting rooms are not suitable for activities which advocate or incite illegal activity such as trespass, vandalism, theft, violence or hate speech’;
ii. In relation to hirers who are Not-for-Profit associations and organisations including registered charities that ‘Note: meeting rooms are not suitable for activities which advocate or incite illegal activity such as trespass, vandalism, theft, violence or hate speech’.
The precise status of this guideline was not the subject of any evidence, although assertions were made about the fact that it existed and enforced as a basis to give effect to the decision of the chamber. There is no evidence that this guideline was known about in Council circles, ever previously enforced or how it was enforced. There is no evidence that it has ever been interpreted or enforced in a way.
The Respondent says that the presence of this guideline shows the Applicant was treated no less favourably than others on the basis of her beliefs or activities and founds its argument on the comparator point. The Respondent could have but elected not to lead evidence to show that this guideline was known about in Council circles, ever previously enforced or how it was enforced.
The High Court revisited the issue in Waters & Ors v Public Transport Corporation[33] (‘Waters’).
[33](1991) 103 ALR 513.
In examining the extent to which a causal connection existed between the basis for the relevant act and alleged direct discrimination, members of the court differed. Mason CJ and Gaudron J (Deane J agreeing) held under the heading ‘Section 17(1): does it require an intention or motive to discriminate?’ at pages 520–1 as follows:
There is some force in the suggestion that the expressions “on the ground of the status” and “by reason of the private life” in s 17(1) look to an intention or motive on the part of the alleged discriminator that is related to the status or private life of the other person: see Department of Health v Arumugam [1988] VR 319, per Fullagar J at 327. However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objects is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose: Ontario Human Rights Commission v Simpsons-Sears Ltd, at 547; see also Street, at CLR 487, 566. In the present case, the statutory objects, which are stated in the long title to the Act, include, among other things, “to render unlawful certain Kinds of Discrimination, to promote Equality of Opportunity between persons of different status”. It would, in our view, significantly impede or hinder the attainment of the objects of the Act if s 17(1) were to be interpreted as requiring an intention or motive on the part of the alleged discriminator that is related to the status or private life of the person less favourably treated. It is enough that the material difference in treatment is based on the status or private life of that person, notwithstanding an absence of intention or motive on the part of the alleged discriminator relating to either of those considerations. A material difference in treatment that is so based sufficiently satisfies the notions of “on the ground of” and “by reason of”.
McHugh J differed with this approach, distinguishing between the tests to be applied as to motive, intent and causation depending on whether the discrimination was direct or indirect. He said at 552–3:
The words “on the ground of the status or by reason of the private life of the other person” in s 17(1) require that the act of the alleged discriminator be actuated by the status or private life of the person alleged to be discriminated against. I am unable to accept the statement of Lord Goff of Chieveley in R v Birmingham City Council; Ex parte Equal Opportunities Commission [1989] AC 1155 at 1193–4, and the statements of Deane and Gaudron JJ (at CLR 176-7) in Banovic concerning intention or motive to discriminate if they are intended to suggest that it is not a necessary condition of liability that the conduct of the alleged discriminator (the discriminator) be actuated by status or private life in a provision such as s 17(1). With great respect to Deane and Gaudron JJ, I think that the examples given by them in Banovic as to intention or motive not being a necessary condition of liability are cases which are caught by the concept of indirect discrimination which fall within section 17(5). The words “on the ground of” and “by reason of” require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of that act (the victim). The status or private life of the victim must be at least one of the factors which moved the discriminator to act as he or she did. Of course, in determining whether a person has been treated differently “on the ground of” status or private life, the Board is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of status or private life, then “the ground of” the act of the discriminator was the status or private life of the victim: see Umina Beach Bowling Club Ltd v Ryan [1984] 2 NSWLR 61, per Mahoney JA at 66. But if the discriminator would have acted in the way in which he or she did, irrespective of the factor of status or private life, then the discriminator has not acted “on the ground of the status or by reason of the private life” of the victim. Likewise, if the discriminator genuinely acts on a non-discriminatory ground, then he or she does not act on the ground of status or private life even though the effect of the act may impact differently on those with a different status or private life.
In Purvis, the High Court considered these authorities in the context of a claim of disability discrimination.
In that case, the relevant Act stated that it was unlawful for an educational authority to discriminate against a student ‘on the ground of’ the student's disability. It stated that a person discriminates against another person on the ground of that person's disability if, ‘because of’ the person's disability, the discriminator treats him or her less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
Chief Justice Gleeson said that:[34]
In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the "true basis" for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in Birmingham regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective – the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the "true basis" for the act in question is in fact sex.
[34](2003) 217 CLR 92, [157].
After referring to the judgements referred to above from Waters, of Mason CJ and Gaudron J and that also of McHugh J, the Chief Justice said at [159]–[160]:
However, McHugh J's misgivings were more the result of the ambiguous use of the words "intention" and "motive" in Birmingham and Banovic than any real difference of approach with that of Deane and Gaudron JJ.
[160] The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.
After referring to later authority he said:
[166] The weight and course of authority no longer accepts that the "but for" test is the accepted test of causation in the context of anti-discrimination legislation. That is because that test focuses on the consequences for the complainant and not upon the mental state of the alleged discriminator. Although the Commissioner said that he was applying the "but for" test, the extract referred to from the reasons of Kirby J in IW v City of Perth is not expressed as a "but for" test. Correctly, it focuses on the "real reason" for the alleged discriminator's act.
The leading judgment in Purvis was delivered by Gummow, Hayne and Heydon JJ. For present purposes, relevantly, they identified the issue under consideration here as the ‘second issue’ in the appeal, identified as being whether the Commissioner’s conclusion that the student’s behaviour occurred as a result of his disability and that ‘in this case, Daniel's behaviour is so closely connected to his disability that if … less favourable treatment has occurred on the ground of Daniel's behaviour then this will amount to discrimination on the ground of his disability’. They did not reference in their reasons the cases discussed by the Chief Justice on how to identify the ‘true basis’ for the act or decision.
The question was posed in these terms by reference to what was required to show direct discrimination:
[224] The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the "discriminator". It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.
Hence those judges held that the ‘circumstances referred to in section 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person’ by the alleged discriminator.
In Purvis, the circumstances in which the student was treated as he was included, but were not limited to, the fact that he had acted as he had. His violent actions towards teachers and others formed part of the circumstances in which it was said that he was treated less favourably than other pupils were. Accordingly, the comparator was a student who was not disabled, but who had acted in the same violent manner as Daniel had. Callinan J agreed with Gummow, Hayne and Heydon as to the circumstances that were to be ascribed to the comparator.
The judgement of the dissenting judges McHugh and Kirby JJ, on the issue of the appropriate comparator and as to the causation issue are informative. As to the former they said:
[130] Provisions that extend the definition of discrimination to cover the characteristics of a person have the purpose of ensuring that anti-discrimination legislation is not evaded by using such characteristics as "proxies" for discriminating on the basic grounds covered by the legislation. But the purpose of a disability discrimination Act would be defeated if the comparator issue was determined in a way that enabled the characteristics of the disabled person to be attributed to the comparator. If the functional limitations and consequences of being blind or an amputee were to be attributed to the comparator as part of the relevant circumstances, for example, persons suffering from those disabilities would lose the protection of the Act in many situations. They would certainly lose it in any case where a characteristic of the disability, rather than the underlying condition, was the ground of unequal treatment.
As Justice McHugh said in Waters ‘on the ground of’ and ‘by reason of’ require a causal connection between the act of the discriminator which treats a person less favourably and the status or private life of the person the subject of ‘the victim’.
Hence the protected attribute to use the language of the Queensland Act, in this case, the Applicant’s political belief or activity, must be at least one of the factors which moved the discriminator to act as he or she did. And as his Honour said, of course, in determining whether a person has been treated differently ‘on the ground of’ that matter, this Tribunal is not bound by the verbal formula which the discriminator has used. If the reason for the use of the formula was that it enabled a person to be treated differently on the ground of sex, then ‘the ground of’ the act of the discriminator was the sex of the victim.
The Respondent submitted that that the appropriate comparator is a person who is not a member of or affiliated with Extinction Rebellion (the relevant political belief or activity/attribute), but who is a member of or affiliated with an organisation which has a ‘similar propensity and history as Extinction Rebellion to engage in unlawful activities’.
As I mentioned earlier, the Respondent says that the presence of the council guideline shows the Applicant was treated no less favourably than others on the basis of her beliefs or activities because applying the guideline meant that any other person who is a member of or affiliated with an organisation which has a ‘similar propensity and history as Extinction Rebellion to engage in unlawful activities’ would also have been prohibited from using Council libraries.
Identifying one comparator here is an all but impossible task because of the numerous bases for the passing of the motion.
It would, first, be any person who was not a member of Extinction Rebellion who wished to book a room for information sessions on climate change and engaging with government over it. Extinction Rebellion affiliates and members would be disallowed use but others would not be prohibited from making a booking. The Applicant was treated less favourably than those others.
Critically the ban was not on the use of rooms contrary to any policy in the guideline about doing unlawful things in the library rooms or planning them there, it disallowed use to the group for any purpose at all.
Otherwise, other examples of comparators would be:
I.A person who is not a member or affiliate of Extinction Rebellion who engages in civil disobedience and/or breaks the law.
II.A person who is not a member or affiliate of Extinction Rebellion who incites people to break the law.
III.A person who is not a member or affiliate of Extinction Rebellion who promotes, trains others in and participates in peaceful direct action.
IV.A person who transforms despair tactics into tactics of rebellion and who says they break the rules to convey that they are serious and unafraid.
V.A person who is not a member or affiliate of Extinction Rebellion who has caused damage and inconvenience to people throughout Brisbane.
VI.A person who is not a member or affiliate of Extinction Rebellion who is seen as doing things that amount to political belief or activity that should not be supported in some form or fashion by the resources of the Council.
VII.A person who is not a member or affiliate of Extinction Rebellion who is seen as doing things that amount to political belief or activity whereby it is seen that the rates that people pay to provide those services should not be utilised for activities which are illegal, for activities which cause inconvenience, and for activities which obviously are contrary to the guidelines.
I find that it is nothing more than what it is described as, which is a guideline for what is suitable. It does not create a policy prohibiting anything or anyone. It could not be breached or contravened. It has not been shown that individuals had ever been prohibited from using these library rooms because of any of the features it describes or that anyone who, for example, advocated for unlawful activity had been prohibited from using big rooms.
The express terms of the resolution focus upon not the use to which the rooms are proposed to be put, but specifically to persons booking on behalf of, or identifying as being, Extinction Rebellion. It is that feature and that feature alone that administrators were to use to decide to disallow or not to permit a booking.
There is no evidence to suggest that the council ever previously asked what rooms will be or have been used for, or whether they involved this so-called propensity and history. There is no evidence of any practice of enforcing the guideline so as to be able to ascertain what the history of treatment of such individuals was. The Respondent does not seek to establish on the evidence that there had ever been such a person and as to how those persons were treated. The Respondent does not advance any case on the evidence as to its differential treatment of persons who used these meeting room.
In my view, using any of the comparators listed above, and I do not suggest they are a complete set, the Applicant, and the class she represents, were not treated no less favourably than the comparators and indeed were treated less favourably than any of those would have been because they would not have been, and were not subjected to the prohibition on library use.
The Applicant has made out her case for the relief I identified earlier as that which, in a modified form, she seeks.
Orders
For the reasons that I have given, the complaint is upheld.
A declaration is made that the Brisbane City Council unlawfully discriminated against the Applicant and the class members in respect of whom this proceeding is brought on the basis of her and their political belief and activity in passing its resolution dated 15 October 2019 and in the subsequent enforcement of it.
It is ordered that the Respondent cease enforcing its resolution of 15 October 2019 that it disallows Extinction Rebellion, its members, or affiliates from booking Council meeting facilities in the future and further that it ceases enforcing its determination subsequently to no longer accept bookings for meeting rooms or other spaces for the ‘Extinction Rebellion Group’, or anyone looking to hold a meeting on their behalf.
The Respondent must, within 7 days of the making of these orders, give notice to the class members that it will not enforce its resolution of 15 October 2019 that it disallows Extinction Rebellion, its members or affiliates from booking Council meeting facilities in the future, and further that it cease enforcing its determination subsequently to no longer accept bookings for meeting rooms or other spaces for the ‘Extinction Rebellion Group’, or anyone looking to hold a meeting on their behalf, by uploading to the following Facebook pages/groups:
(a) "Extinction Rebellion Brisbane I Meanjin" -
https:/ / "Extinction Rebellion - Brisbane West" -
https :// "Extinction Rebellion Bramble Bay" -
>
I grant the parties liberty to apply in respect of any other consequential or other orders which might be required to be made.
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