Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: Southey v Butler [2024] NSWCATAD 146 Hearing dates: On the papers Date of orders: 28 May 2024 Decision date: 28 May 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: P Roney KC, Senior Member
Dr F Duffy, General MemberDecision: The Applicant’s complaints of transgender vilification are dismissed.
Catchwords: ANTI-DISCRIMINATION — transgender vilification — whether a media article concerning a petition created in a womens’ prison concerning a transgender prisoner was conduct which offends, humiliates, intimidates, insults, or ridicules another person on the basis of gender identity — incite serious contempt and severe ridicule.
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Anti-Discrimination Act 1991 (QLD)
Cases Cited: Burns v Cunningham [2011] NSWADT 240
Comensoli v Passas [2019] NSWCATAD 155
Ekermawi v Jones (No 3) [2014] NSWCATAD 58
John Fairfax Publications Pty Ltd v Kazak [2002] NSWADTAP 35
Jones v Trad (2013) 86 NSWLR 241
Kazak v John Fairfax Publications Limited [2000] NSWADT 77
Lamb v Campbell [2021] NSWCATAD 103
Malenha v Sullivan [2017] NSWCATAD 222
Margan v Manias [2015] NSWCA 388
Qantas Airways Ltd v Gama (2008) 167 FCR 537
Riley v State of NSW (Department of Education) [2019] NSWCATAD 223
Southey v Australian Press Council [2023] NSWCATAD 145
Sunol v Collier (No 2) [2012] NSWCA 44
Valkyrie and Hill v Shelton [2023] QCAT 302
Veloskey v Karagiannakis [2002] NSWADTAP 18
Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Wotton v Queensland [No 5] (2016) 352 ALR 146
Texts Cited: None cited
Category: Principal judgment Parties: Claire Southey (Applicant)
Mark Butler (First Respondent)
Keiran Rooney (Second Respondent)
Sam Weir (Third Respondent)
Herald and Weekly Times Pty Ltd (Fourth Respondent)Representation: Applicant (self-represented)
News Corp Australia Editorial Legal (Respondents)
File Number(s): 2023/00184343 Publication restriction: Nil
Reasons for the DecIsion
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Ms Southey is a highly qualified data scientist with a significant number of post graduate qualifications. She is also a director of an organisation called Rainbow Rights Watch. The organisation’s mission is the elimination of discrimination, violence and hate crimes perpetrated against transgender Australians. It is in pursuit of that function that she has brought the present matter to this Tribunal. She has done so previously against another party, Australian Press Council arising out of a newspaper article; see Southey v Australian Press Council [2023] NSWCATAD 145.
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Her complaint concerns a media article that she contends amounts to vilification of transgender persons. At page 4 of the Applicant’s complaint of 28 January 2023 she claims to rely on section 38T of the Anti-Discrimination Act 1977 (NSW) (the AD Act) as the foundation for the complaint. This is an error since 38T concerned itself with establishing the criminal offence of serious transgender vilification. It has been repealed. We will treat the complaint relevantly as relying on s 38S of the AD Act and that is how the Respondents have treated it.
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There is no dispute that the Applicant is a…
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- AGLC
- Southey v Butler [2024] NSWCATAD 146
- Case
- [2024] NSWCATAD 146
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the content of Butler’s media article constituted conduct that was offensive, humiliating, or insulting to the applicant on the basis of gender identity. This required the court to interpret the scope of the term "vilification" under the Sex Discrimination Act and to determine if the specific language used in the article could be considered vilifying. The court needed to assess whether the article incited serious contempt or severe ridicule, which are hallmarks of vilification under the Act.
The court concluded that the article did not reach the threshold of conduct that offends, humiliates, intimidates, insults, or ridicules another person on the basis of gender identity. The language used by Butler, although critical and contentious, did not constitute the kind of serious contempt or severe ridicule that would amount to vilification. The court found that the article was a legitimate expression of opinion on a matter of public interest, and therefore, the applicant's complaints were dismissed.
Orders
Orders of the court
The Applicant’s complaints of transgender vilification are dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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