Southey v The Australian Press Council

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

Southey v The Australian Press Council [2023] NSWCATAD 121

Hearing dates:

16 November 2022

Date of orders:

25 May 2023

Decision date:

25 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

(1) Leave to proceed with the complaint of transgender discrimination pursuant to s38B(1)(a) of the Anti-Discrimination Act 1997 is granted.

(2) Leave to proceed with the complaint of transgender discrimination pursuant to s38B(1)(b) of the Anti-Discrimination Act 1997 is refused.

Catchwords:

HUMAN RIGHTS – equal opportunity – whether leave should be given – principles applying to grant of leave.

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Southey v The Australian Press Council (2003) NSWCATAD 29

Southey v Australian Press Council Inc [2021] NSWCATAD 329

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Jones & Anor v Ekermawi [2009] NSWCA 388

Ekermawi v ADT & Ors (2009) NSWSC 143

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Claire Southey (Applicant)
The Australian Press Council (Respondent)

Representation:

Solicitors:
Applicant (Self-represented)
HWL Ebsworth Lawyers (Respondent)

File Number(s):

2022/00338378

Publication restriction:

Nil

REASONS FOR DECISION

1. Before me is a complaint of transgender discrimination under s 38M of the Anti-Discrimination Act, NSW 1977 (‘the Act’). The complaint is made by Ms Claire Southey (‘the Applicant’) against the Australian Press Council (‘the Respondent’).

2. The complaint relates to allegations made by the Applicant that on 14 November 2020, the Daily telegraph published a letter to the editor relating to an article concerning Reginald Arthurell, who was convicted in the 1970s and 1980s of multiple counts of manslaughter and murder. The letter read:

“With reference to the serial murderer Reginald Arthurell wanting taxpayers to fork out for his sex change operation, my husband said he’d perform this procedure absolutely free.”

And

“A 75-year-old serial killer due for imminent release from prison wants a taxpayer-funded sex change operation. (Fiend’s sex op on you, 21/10). It may not be a good look but you can be certain that on release she will be wearing a killer outfit”.

3. During the period of incarceration, the offender has identified as transgender.

4. The Applicant contends that each of the “articles” included references to the offender’s transgender status and their private medical diagnoses and in respect of the first “article” a thinly-veiled reference to mutilating the persons genitals. The second letter openly ridicules the individual on the basis of their transgender status. The Applicant contends the references to their transgender status and personal medical treatment were gratuitous and was not in the public interest.

5. The Applicant submitted that the letters breached the Respondent’s General Principles because (a) the references to the persons transgender status, and personal medical treatment were gratuitous, and (b) the “articles” flippant jokes about genital mutilation were not in the public interest and cause material harm and offence. By including gratuitous references, demeaning the individuals transgender status, using crude outdated terms, using inappropriate pronouns, using the person's former name instead of their…