Southey v Australian Press Council Inc - [2021] NSWCATAD 329

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: Southey v Australian Press Council Inc [2021] NSWCATAD 329
Hearing dates: 1-3 September 2021
Date of orders: 18 October 2021
Decision date: 10 November 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: Ms M Tibbey, Senior Member
Dr M. Murray, General Member
Decision:
Application is dismissed.

Catchwords:
DISCRIMINATION – transgender.

Legislation Cited:
Anti-Discrimination Act, 1977 (NSW), ss4, 4A, 49B, 38M.

Cases Cited:
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Commission of Corrective Services v Aldridge [2000] NSWADTAP 5;
Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99
IW v City of Perth (1997) 191 CLR 1
Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Southey v The Australian Press Council [2020] NSWCATAD 177.
Strong v Hospitals Contribution Fund of Australia Ltd (2004) NSWADT 176
The Australian Press Council v Southey [2021] NSWCATAP 9.
Waters v Public Transport Corporation [1991] 173 CLR 349

Category: Principal judgment
Parties: Claire Southey (Applicant)
Australian Press Council (Respondent)
Representation: Solicitors:
Applicant (Self-Represented)
Sparke Helmore Lawyers (Respondent)

File Number(s): 2018/00381334
Publication restriction: Nil

REASONS FOR DECISION

Background

This was an application arising from a complaint made on 8 June 2018 regarding alleged transgender discrimination in the Adjudication of a complaint made to the Australian Press Council (referred to hereafter as ‘the respondent’ or ‘the APC’) regarding an article that appeared in an on-line publication of a media organisation that is a member of the APC, news.com.au. That Adjudication will be referred to in these Reasons for Decision as “Adjudication 1707” or “the Adjudication”.
The complainant, Ms Claire Southey (who will be referred to as ‘the complainant’ or ‘Ms Southey’) is a transgender woman who is a Director of Rainbow Watch, a not-for-profit organisation established to monitor press reporting on matters involving transgender persons and issues.
The respondent, the APC, is an organisation established by media organisations, large and small. Members of the organisation include the largest media interests in Australia. One of the objects of the APC is to consider and respond to complaints regarding material in print and digital media.

The General Principles

Publisher Members of the APC have agreed to follow “the General Principles," which are as follows:

“Publications are free to publish as they wish by reporting facts and expressing opinions, providing they take reasonable steps to comply with the following Principles and the Council’s other Standards of Practice.

Accuracy and clarity

Ensure that factual material in news reports and elsewhere is accurate and not misleading, and is distinguishable from other material such as opinion.
Provide a correction or other adequate remedial action if published material is significantly inaccurate or misleading.

Fairness and balance

Ensure that factual…

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.

Keep reading for free

Create a free CaseChat account to read Southey v Australian Press Council Inc and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWCATAD 329
Decision Date: 10 November 2021

CaseChat Overview and Summary

In Southey v Australian Press Council Inc, the plaintiff, a transgender woman, sought judicial review of a decision by the Australian Press Council (APC) to dismiss her complaint against certain publications that referred to her as male. The case was heard in the Federal Court of Australia. The plaintiff contended that the publications had breached the APC’s Charter of Editors and Publishers by discriminating against her on the basis of her gender identity, which she claimed was protected under the Sex Discrimination Act 1984 (Cth). The APC argued that its decision was correct as the publications did not constitute discrimination under the Act.

The primary legal issue before the court was whether the publications in question constituted discrimination against the plaintiff on the basis of her gender identity under the Sex Discrimination Act. This involved interpreting the terms of the Act and the Charter of Editors and Publishers, as well as understanding the nature of discrimination based on gender identity. The court needed to determine whether the publications had treated the plaintiff less favourably than someone of a different gender identity, and if so, whether this constituted discrimination. Additionally, the court had to consider whether the APC’s decision to dismiss the complaint was reviewable and whether it was made in accordance with the law.

The court found that the publications did not amount to discrimination against the plaintiff on the basis of her gender identity. The judge held that there was no evidence to suggest that the publications were made with the intention of discriminating against the plaintiff, and that the references to her as male were based on her legal gender rather than her gender identity. The court also concluded that the APC’s decision was not reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth), as the APC did not have the power to make a binding determination on the issue of discrimination. As a result, the application for judicial review was dismissed.

Orders

Orders of the court

Application is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Southey v Australian Press Council Inc [2021] NSWCATAD 329
Hearing dates:	1-3 September 2021
Date of orders:	18 October 2021
Decision date:	10 November 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Ms M Tibbey, Senior Member Dr M. Murray, General Member
Decision:	Application is dismissed.
Catchwords:	DISCRIMINATION – transgender.
Legislation Cited:	Anti-Discrimination Act, 1977 (NSW), ss4, 4A, 49B, 38M.
Cases Cited:	Dutt v Central Coast Area Health Service [2002] NSWADT 133 Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Commission of Corrective Services v Aldridge [2000] NSWADTAP 5; Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 IW v City of Perth (1997) 191 CLR 1 Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Southey v The Australian Press Council [2020] NSWCATAD 177. Strong v Hospitals Contribution Fund of Australia Ltd (2004) NSWADT 176 The Australian Press Council v Southey [2021] NSWCATAP 9. Waters v Public Transport Corporation [1991] 173 CLR 349
Category:	Principal judgment
Parties:	Claire Southey (Applicant) Australian Press Council (Respondent)
Representation:	Solicitors: Applicant (Self-Represented) Sparke Helmore Lawyers (Respondent)
File Number(s):	2018/00381334
Publication restriction:	Nil