Rep v Clinch

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.