Catchwords: APPEAL – discrimination – vilification on basis of gender identity – victimisation – social media posts – whether the Human Rights Commission and ACAT lacked jurisdiction because the complainant resided in Queensland – whether the posts constituted unlawful vilification – nature of vilification – whether a party can be responsible for the posts by others – whether the posts constituted unlawful victimisation – whether compensation can be ordered for intangible loss – whether injunctive orders by the Original Tribunal were excessively broad
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Rep v Clinch (Appeal) [2021] ACAT 106
Case
[2021] ACAT 106
Decision Date
CaseChat Overview and Summary
In the matter of Rep v Clinch, the Australian Human Rights Commission (AHRC) appealed against a decision of the Administrative Appeals Tribunal (AAT). The appeal concerned a complaint that Beth Rep made a series of posts on social media that were allegedly discriminatory and vilifying towards Chloe Clinch, on the basis of gender identity. The dispute was about the interpretation of the Anti-Discrimination Act and whether the tribunals had the jurisdiction to hear the complaint as Ms Rep resided in Queensland. The case also involved determining whether the posts constituted unlawful vilification and victimisation, whether Ms Rep could be held responsible for the posts made by others, whether compensation could be ordered for intangible loss, and whether the injunctive orders by the tribunal were excessively broad.
The primary legal issues before the court were whether the tribunals had the jurisdiction to hear the complaint, whether the posts constituted unlawful vilification and victimisation, whether Ms Rep could be held responsible for the posts made by others, whether compensation could be ordered for intangible loss, and whether the injunctive orders by the tribunal were excessively broad. The court needed to determine whether the posts made by Ms Rep were discriminatory and vilifying on the basis of gender identity and whether they constituted unlawful victimisation. The court also needed to determine whether Ms Rep could be held responsible for the posts made by others and whether compensation could be ordered for intangible loss.
The court found that the tribunals had jurisdiction to hear the complaint as Ms Rep's posts were accessible to people in South Australia, where Ms Clinch resided. The court held that the posts numbered 1.1, 1.2 (first part), 1.4, 1.6, 1.8, 1.13, 1.17, 4 and 31 in exhibit A4 in the Original Tribunal proceedings were vilification, and therefore Ms Rep must remove those posts from any website, social media or other publication of any type that she owns or controls, and in particular her Facebook page “Beth Rep.” The court found that Ms Rep not repeat or continue the publication of those posts, or posts in substantially the same terms. The court held that Ms Rep was responsible for the posts made by others and that the posts constituted unlawful victimisation. The court found that Ms Rep must pay to Ms Clinch the sum of $5,000 by way of compensation. The court found that the injunctive orders by the tribunal were not excessively broad.
The Tribunal orders that the appeal is upheld in part, the orders made by the Original Tribunal on 8 September 2020 are set aside and replaced by the following orders, Ms Rep must remove the posts from any website, social media or other publication of any type that she owns or controls, and in particular her Facebook page “Beth Rep.” Ms Rep not repeat or continue the publication of those posts, or posts in substantially the same terms. Ms Rep must pay to Ms Clinch the sum of $5,000 by way of compensation.
Orders
Orders of the court
The Tribunal orders that:
1.
The appeal is upheld in part.
2.
The orders made by the Original Tribunal on 8 September 2020 are set aside and replaced by the following orders.
3.
The posts numbered 1.1, 1.2 (first part), 1.4, 1.6, 1.8, 1.13, 1.17, 4 and 31 in exhibit A4 in the Original Tribunal proceedings are vilification, and therefore Ms Rep (the respondent in the Original Tribunal proceedings and appellant in this appeal) must remove those posts from any website, social media or other publication of any type that she owns or controls, and in particular her Facebook page “Beth Rep.”.
4.
Ms Rep not repeat or continue the publication of those posts, or posts in substantially the same terms.
5.
Ms Rep pay to Ms Clinch (the respondent in the Original Tribunal proceedings and this appeal) the sum of $5,000 by way of compensation.