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Ritson v The Giving Network Pty Ltd

Ritson v The Giving Network Pty Ltd

Case [2021] QCAT 81 3 March 2021

Direct Discrimination

Political Belief or Activity

Unlawful Advertisement

Compensatory Damages

Victimisation

Anti-Discrimination Law

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Ritson v The Giving Network Pty Ltd & Anor [2021] QCAT 81

PARTIES: BRENDAN RITSON

(applicant)

v

THE GIVING NETWORK PTY LTD

TANIA BURSTIN

(respondents)

APPLICATION NO/S:

ADL034-19

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

3 March 2021

HEARING DATE:

12 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.   The complaint is amended to include an allegation that the respondents directly discriminated against Brendan Ritson by issuing a press release on 3 April 2019 saying that Fraser Anning and his supporters were ‘the antitheses of a safe space for fundraisers and donors to connect’.

2.   The respondents did directly discriminate against Brendan Ritson contrary to sections 10 and 46 of the Anti-Discrimination Act 1991 (Qld):

(a)    by on about 16 March 2019 prematurely closing down his fundraising campaign in support of Fraser Anning; and

(b)   in the terms of a press release issued on 3 April 2019.

3.   The respondents did not contravene the Anti-Discrimination Act 1991 (Qld) by issuing a discriminatory advertisement or by victimising Brendan Ritson as alleged in the complaint.

4.   Brendan Ritson is to be paid the sum of $5,500 as compensation for the contraventions which have been proved and The Giving Network Pty Ltd and Tania Burstin are jointly and severally liable to pay this amount.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – discrimination on the basis of political belief or activity – where the complainant’s fundraising campaign in support of Fraser Anning was closed prematurely by the supplier of the online services – where a press release was released by the supplier which was critical of Mr Anning and his supporters – whether the material circumstances of an actual comparator can be informed by the ‘reason why’ – whether less favourable treatment on the basis of political belief or activity – whether actionable in the services area

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – where defence to a complaint of discrimination – where respondents contend that the allegedly discriminatory acts were necessary to comply with other law – whether a defence of necessity is available in discrimination law in Queensland – whether section 106 of the Anti-Discrimination Act 1991 (Qld) provides a defence to this complaint

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – whether a press release released by the supplier of online services was a discriminatory advertisement

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – complaint of victimisation by acts done in the course of proceedings – whether victimisation – whether there was judicial proceedings immunity for the acts – whether the tribunal may consider judicial proceedings immunity if not raised by the parties

Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 46, s 106,
s 114, s 127, s 130, s 206

Equal Opportunity Act 2010 (Vic)
Racial and Religious Tolerance Act 2001 (Vic), s 15

Racial Discrimination Act 1975 (Cth)

Alexander v Home Office [1988] 1 WLR 968

Aston v The Martlet Group Limited UKEAT/0274/18
Cabassi v…

Grounds of appeal

[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.

Continue reading Ritson v The Giving Network Pty Ltd

Details

AGLC: Ritson v The Giving Network Pty Ltd [2021] QCAT 81
Case: [2021] QCAT 81
Decision Date

CaseChat Overview and Summary

The applicant, Brendan Ritson, brought this complaint under the Anti-Discrimination Act 1991 (Qld) (ADA) against The Giving Network Pty Ltd, a company which operates a web-based fundraising site called mycause. The complaint was also brought against the director of the company, Tania Burstin. Mycause provides a free service which fundraisers can use. A fundraiser can create a page on the mycause site, visible to prospective donors through the internet. In this way a fundraiser may use the services of mycause to run a fundraising campaign. The donated money is collected by mycause and remitted to the fundraiser. Mr Ritson created a page on the mycause site to raise money for Fraser Anning’s election campaign for re-election as Senator in the 2019 Federal Election. As was usual for such sites on mycause, the campaign had an end date. In this case the end date was 18 May 2019, the date of the election. Mycause closed the campaign earlier than this and issued a press release explaining why. Mr Ritson says there was direct discrimination under section 10 of the ADA by: (a) prematurely closing his campaign page; and (b) issuing a press release saying that he was the antithesis of a safe space for fundraisers and donors to connect. There is also an allegation that there was an unlawful advertisement, and a complaint of victimisation. The respondents say that what happened was legitimate because of the extremity of the views expressed by Mr Anning as adopted by Mr Ritson. In effect it is suggested that those views should not be protected by the ADA. It is also said that what was done was necessary to comply with other law. In that respect a defence of necessity or a defence of statutory authority under section 106 of the ADA is relied on. The respondents also rely on the terms and conditions of the use of the mycause website, which do not permit certain material to be used in campaigns, and give the operators of the site a right to remove material at their discretion. The Tribunal found that there was direct discrimination by the respondents by (a) prematurely closing down Mr Ritson’s campaign and (b) issuing a press release in the terms objected to. There was no discrimination in the press release as an advertisement, and the victimisation claims were dismissed. The Tribunal ordered that Mr Ritson be paid the sum of $5,500 as compensation for the contraventions which have been proved and The Giving Network Pty Ltd and Tania Burstin are jointly and severally liable to pay this amount.

Orders