Southey v Australian Press Council

[2020] NSWCATAD 241

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Southey v Australian Press Council [2020] NSWCATAD 241

Hearing dates:

10 September 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C A Ludlow, Senior Member

Decision:

Leave for the complaint to proceed is refused.

Catchwords:

EQUAL OPPORTUNITY - application for leave to proceed with complaint – victimisation – causation – lack of evidence

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Prakash v Bobb Borg Pty Ltd [1999] NSW ADT 73

Southey v The Australian Press Council [2020] NSWCATAD 177

Texts Cited:

None cited

Category:

Procedural and other rulings

Parties:

Claire Southey (Applicant)
Australian Press Council (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Respondent (No Appearance)

File Number(s):

2020/00253015

Publication restriction:

Nil

REASONS FOR DECISION

Background

1. Ms Southey, the applicant in these proceedings, seeks the leave of the Tribunal to proceed with a complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 26 January 2020 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from Ms Southey against the respondent, the Australian Press Council (APC). The applicant alleged that the respondent victimised her by releasing her name and other confidential information to journalists which resulted in her being identified in three articles published in The Australian newspaper.

2. The President declined the complaint on 27 July 2020 primarily because:

1. Ms Southey had not provided any information capable of establishing that the respondent released confidential information relating to her identity either because she had complained about discrimination or at all

2. She had not established actual detriment

3. She had not established causation.

3. On 17 August 2020 Ms Southey requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

4. The leave application was listed for hearing on 10 September 2020 at 11 am by telephone. There was no appearance by or on behalf of the respondent. The law firm listed on the papers as representing the respondent was contacted, was advised that the hearing was being conducted at that time and requested that the relevant solicitor dial into the telephone hearing. After waiting a reasonable period of time, I proceeded with the hearing in the absence of the respondent.

Legislation and principles governing the grant of leave

5. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act).

6. Section 92 provides:

“92 President may decline complaint during investigation

(1)   If at any stage of the President’s investigation of a complaint—

(a)   the President is satisfied that—

(i)   the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii)   the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii)   the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv)   another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v)   the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi)   the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii)   it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or

(b)   the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,

the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

(2)   The President, in a notice under this section, is to advise the complainant of—

(a)   the reason for declining the complaint or part of the complaint, and

(b) the rights of the complainant under sections 93A and 96.”

7. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A).

8. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).

9. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).

The nature of the complaint

10. Ms Southey is a member of a group called Rainbow Rights Watch. She complains that she was victimised by the respondent. The nature of the alleged victimisation is said to be that the respondent disclosed confidential information about her to The Australian newspaper because she had lodged discrimination complaints about the respondent with the Anti-Discrimination Board.

11. Section 50 provides:

“50 Victimisation

(1)   It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

(a)   brought proceedings against the discriminator or any other person under this Act,

(b)   given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c)   alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d)   otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2)   Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.”

12. In order for Ms Southey’s complaint to be upheld, she must show that the respondent subjected her to some detriment because she had done one of the things listed in s 50(1)(a) to (d).

Evidence and submissions of the applicant

13. Ms Southey submits that the relevant detriment was the public disclosure of her transgender status and other confidential information such as the number of complaints made, which was not a matter of public record. She says this led to her being attacked on the internet and having her transgender status raised in business dealings; and being described in the newspaper in derogatory terms, including that she was attacking media freedom and bullying the respondent.

14. There is no direct evidence before the Tribunal which shows that the APC provided the information to the newspaper. In fact there is some evidence to the contrary, in the form of emails between the newspaper and the APC where the APC’s public relations officer declines to provide information.

15. Ms Southey, however, submits that I should infer that the APC disclosed the information because:

1. The only other parties who had the information relating to the number of complaints made by her and the existence of a complaint lodged by her being in proceedings before this Tribunal were the Tribunal itself and the Anti-Discrimination Board.

2. The Tribunal and the Anti-Discrimination Board were unlikely to have disclosed the information to the newspaper.

3. The newspaper has a representative on the board of the respondent.

Evidence and submissions of the respondent

16. In the absence of any appearance or submissions by the respondent I have considered the material it provided to the Anti-Discrimination Board. The respondent submitted that the evidence does not establish that the APC disclosed any of Ms Southey’s personal information and the APC denies that it did so, other than as may have been necessary to deal with her complaints as part of the complaint handling process

17. Further, all the information contained in the articles is either publicly available or could easily have been obtained from other sources. Ms Southey’s relationship to the Tribunal proceedings was published on the internet in the hearing lists at least once. She made a submission in her own name to the Australian Senate where she identified herself as a transgender Australian

18. Finally the APC’s complaint handling process allows it to disclose information about the complaint to the publisher against whom the complaint was made and Ms Southey is taken to have agreed to the terms of the process by making the complaint (to the APC).

Consideration

19. In order for the complaint to succeed, Ms Southey must show that she was subjected to a detriment on the ground that she had done one of the acts in s 50(1) of the AD Act. Her case should be taken at its highest. In Prakash v Bobb Borg Pty Ltd [1999] NSW ADT 73 at [35] it was said that:

“ …the appropriate way forward is to take the Complainant's evidence at its highest point or in other words, and for the purposes of this exercise to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination”.

20. The APC accepts that Ms Southey made a complaint about the conduct of the APC under the AD Act which has been referred to this Tribunal. This would come within s 50(1)(a),(c) or (d). I note that in Southey v The Australian Press Council [2020] NSWCATAD 177 the Tribunal has dealt with an initial legal issue in the complaint by Ms Southey against the APC.

21. I have reviewed the articles in The Australian referred to by Ms Southey. One article refers to the proceedings in the Tribunal but states that it was brought by Rainbow Rights Watch, not Ms Southey. Ms Southey states this is an error. Ms Southey is referred to as a director of the group and described as “Claire Southey, a technical integration manager” and the article states this is sourced from “documents filed with the corporate regulator.”

22. A second article refers to Rainbow Rights Watch, but does not mention Ms Southey. The third article again mentions Ms Southey as a director of the group and a technical integration manager but says the information about her occupation is sourced from Linked In.

23. This article also says that the group has lodged numerous complaints with the APC over the portrayal of transgender people in the media. Ms Southey says that the APC must have informed The Australian about the number of complaints as that information was not publicly available. She says, however that she filed the complaints, not the group.

24. The article also states that “one of Rainbow Rights Watch’s directors has complained to the NSW Anti-Discrimination Board that the Press Council has treated the group’s concerns less favourably than equivalent complaints by people who were not transgender.” It states that the complaint has been referred to this Tribunal. This is information which Ms Southey says must have been disclosed by the APC.

25. The conduct which is relied upon to establish victimisation - namely, the disclosure by the APC to The Australian - has not been established. There is no evidence that the APC disclosed the information to The Australian and there is evidence that in fact it declined to provide information about the name and number of complainants to the newspaper when requested by email in February 2019. The refusal provided a statement from the APC that complaints about the APC to the Anti-Discrimination Board are confidential and the APC was not in a position to make further comment.

26. Ms Southey conceded that she could not establish the disclosure on which she relies without evidence from the newspaper’s representative on the APC which supported her case. There is nothing to indicate that his evidence would support her case, however. Her case relies on the Tribunal drawing an inference from the available facts. In my view the facts do not logically support such an inference where the newspaper has resources to investigate factual matters and Ms Southey’s transgender status is not expressly identified in the article. The fact that the newspaper erroneously reported that the group made the complaint when she claims that she made the complaint, does not support drawing an inference that the APC provided the information.

27. Moreover, there is no evidence that would indicate the alleged disclosure, even if it occurred, was made because she had made a complaint or allegation or had commenced proceedings against the APC. Ms Southey could not identify that any such evidence was likely to be produced or obtained. Again it would be necessary to infer such a connection. In my view such an inference would not be reasonable.

28. For the above reasons I conclude that the complainant has not established that it is just or fair for leave to be granted and the complaint lacks substance.

Order

1. Leave for the complaint to proceed is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 02 October 2020