Civil and Administrative Tribunal New South Wales Medium Neutral Citation: The Australian Press Council Inc v Southey [2021] NSWCATAP 9 Hearing dates: On the papers Date of orders: 18 January 2021 Decision date: 18 January 2021 Jurisdiction: Appeal Panel Before: Dr R Dubler SC, Senior Member Dr J Lucy, Senior Member Decision: (1) Leave to appeal is granted. (2) Appeal is dismissed. Catchwords: HUMAN RIGHTS – Anti-discrimination – transgender grounds – preliminary question – definition of 'services' – whether adjudication of complaint by private organisation, the Australian Press Council, is within the definition of 'services' Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 4; s 19; s 38B(1)(a) and s 38M Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071 Bickle v State of Victoria (Victoria Police) [2020] FCA 168 Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 Collins v Urban [2014] NSWCATAP 17 Commissioner of Police v Mohamed [2009] NSWCA 432 Commissioner of Police v Russell [2001] NSWSC 745 Contreras Ortiz v Commissioner Department of Corrective [2008] NSWADT 308 Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241 Djime v Kearnes [2019] VSC 117 Diri v Board of Studies, Teaching and Educational Standards [2015] NSWCATAD 120 Falun Dafa Association of Victoria v Melbourne City Council [2003] VCAT 1955 Farah v Commissioner of Police of the Metropolis [1998] QB 65 Gichura v Home Office [2008] EWCA Civ 697 IW v City of Perth (1997) 191 CLR 1 Savjani v Inland Revenue Commissioners [1981] QB 458 Southey v The Australian Press Council [2020] NSWCATAD 177 State of NSW v Whiteoak [2014] NSWCATAP 99 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Texts Cited: None Category: Principal judgment Parties: The Australian Press Council Inc (Appellant) Claire Southey (Respondent) Representation: Counsel: C Ronalds AO SC (Appellant) Solicitors: Sparke Helmore Lawyers (Appellant) Respondent (Self Represented) File Number(s): AP 20/33468 Publication restriction: None Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Citation: Southey v The Australian Press Council [2020] NSWCATAD 177 Date of Decision: 8 July 2020 Before: C A Mulvey, Senior Member A Limbury, General Member File Number(s): 2018/00381334 REASONS FOR DECISION Introduction 1. On 10 January 2017, an article was published on 'news.com.au' (the Article). The Article was titled 'Woman accused of terrifying 7/11 Axe Attack is transgender unionist once known as Karl'. The respondent submitted a complaint about the Article to the appellant, the Australian Press Council Inc (APC), on 17 January 2017 claiming that the emphasis on the transgender status of the accused was unwarranted. 2. On 2 May 2017, the APC dismissed the respondent's complaint. 3. The respondent alleges that the APC in dismissing the respondent's claim discriminated against her on transgender grounds in contravention of s 38M of the Anti-Discrimination Act 1977 (NSW) (ADA) having regard to s 38B(1)(a) of that Act. The Tribunal decided to determine as a preliminary matter whether the APC provided the respondent with 'services' within the meaning of s 38M of the ADA. 4. By its decision on 8 July 2020 (see Southey v The Australian Press Council [2020] NSWCATAD 177 (the Decision)), the Tribunal decided that the APC did provide 'services' to the respondent within the meaning of ss 4 and 38M of the ADA. 5. The issue on appeal is whether or not the Tribunal was correct in concluding that such 'services' were provided by the APC in relation to the respondent's complaint made to the APC on 17 January 2017. For the reasons which follow, we have decided to dismiss the appeal. Background The Article 1. The respondent alleges that the Article: 1. contained 15 references to the transgender status, gender transition and medical treatment for gender dysphoria of the accused in the body of the Article; 2. contained 6 separate references to the transgender status of the accused in the captions accompanying the photographs; 3. omitted the woman's current name from the headlines but referenced her former name; 4. contained prominent references to the transgender status of the accused in the headline, the sub-headline and the first sentence; 5. contained historical photographs of the woman before her gender transition along with more contemporary photographs after her gender transition. The complaint 1. On 17 January 2017, the respondent submitted a complaint about the Article to the APC claiming that the emphasis on the transgender status of the accused was unwarranted because her transgender status was wholly irrelevant to the incident of public interest. 2. The respondent did not claim that the information about the transgender status of the accused was inaccurate. Rather, the complaint objected to the prominence and emphasis given to such a deeply personal characteristic in the absence of a justified public interest purpose. 3. On 2 May 2017, the APC found in respect of the respondent's complaint that there had been no breech of the APC's General Principles and it dismissed the complaint. The Amended Points of Claim 1. The respondent filed an Amended Points of Claim dated 14 June 2019 to which the APC replied by way of points of defence on 9 August 2019. The principal allegation was that the APC discriminated against her on transgender grounds in relation to its handling of the complaint in respect of the Article in contravention of s 38M of the ADA, having regard to s 38B(1)(a) of that Act. 2. The discriminatory conduct was said to be in relation to the provision of services by the APC, being the service of complaint handling. 3. It was alleged that one of the functions of the APC is "to consider and deal with complaints and concerns about material in newspapers, magazines and other print and digital media". Further, that the APC has an established 'complaints handling process' which is documented on the APC's website. 4. The respondent claims that it has been a long-standing principle of the APC that member publishers should exercise great care not to place unwarranted emphasis on personal characteristics such as race, religion, nationality, country of origin, gender, sexual orientation, disability or age. 5. Elaborating on that point, the respondent points to a number of adjudications published by the APC upholding complaints about material that places unwarranted emphasis on the race, religion or gender of an accused or convicted person. 6. The respondent essentially alleges that the APC treated her complaint about unwarranted emphasis on transgender characteristics less favourably than it treats comparable complaints about unwarranted emphasis placed on other deeply personal characteristics that similarly contributed to substantial offence, stress, or prejudice of minorities. 7. In other words, it is alleged that the APC in the provision of its service of public complaint handling, treats transgender complainants less favourably than other complainants who are not transgender in circumstances which are not materially different. The evidence 1. The APC tendered the following material before the Tribunal below: 1. Application file 19 November 2019 (A1); 2. Affidavit of Mr John Pender, sworn 16 December 2019 (A2). 1. The Tribunal summarised the evidence of Mr John Pender as follows 37 Mr John Pender is the Executive Director of the APC and is appointed under its Constitution as the Chief Executive Officer overseeing day to day operations. He was appointed in this role in June 2014. 38 Mr Pender sets out that the APC is incorporated under the Associations Incorporations Act 2009 (NSW) and is a not for profit organisation. The objects of the APC are set out in section 3(1) of its Constitution, which include: 'To promote freedom of speech through responsible and independent print and digital media, and adherence to high journalistic and editorial standards …' 39 Section 3(1)(a) of the APC's objects and powers include: 'considering and dealing with complaints and concerns about material in newspapers, magazines, journals and other print and digital media'. 40 Mr Pender deposes that the APC determines its own complaints handling process which can vary from time to time. It is not a government agency and receives no government funding. The APC is funded vis-à-vis membership contributions which are paid by constituent bodies, including publishers and associations of publishers. Membership of the APC is voluntary. Mr Pender states an organisation can resign its membership at any time. The APC's publisher members include many mainstream and other publishers in Australia publishing both in print and online. Its membership does not include TV, radio or social media platforms. 41 The APC seeks to achieve its object of promoting freedom of speech by considering complaints concerning articles published by its members. The APC achieves other objects by making representations in public forums on matters concerning freedom of speech and access to information and undertaking research and consultation on such matters. In furtherance of its objective of freedom of speech and adherence to high journalistic and editorial standards the APC has developed a range of advisory guidelines on topics, which by its own observations, has determined are aspects of importance for which specific guidance should be provided to its members. This has included advisory guidelines on topics such as family and domestic violence reporting, religious terms in headlines and reporting of race. Mr Pender deposes that more recently, in consultation with members of the LGBTIQ community, the APC has prepared and issued an advisory guideline for publisher members entitled 'Reporting on Persons with Diverse Sexual Orientation, General Identity and Sex Characteristics'. 42 In dealing with complaints, the APC publishes information with respect to its complaint handling processes on its website. Complaints can be made by: (a) a primary complainant, that is, a person who has been personally identified or directly affected by published material; or (b) a secondary complainant, that is, a person who has not been personally identified or directly affected by published material. 43 Mr Pender says that secondary complainants who later make a complaint about the same material are referred to as secondary co-complainants. 44 The complaints handling process pertaining to a secondary complainant is different to the process followed when a primary complainant makes a complaint. Mr Pender deposes that each of the complaints made by the applicant fall within the second complainant category. The complaints handling process specific to secondary complainants is found at page 61 of the annexure of Mr Pender's Affidavit. Paragraph 4 of that process does not always involve the ongoing consideration of the secondary complainant unless the APC's executive director decides it is desirable to do so. However, the secondary complainant is kept appropriately informed of the progress of and the final outcome of the complaint. 45 The APC has a broad discretion in considering secondary complaints. It is incumbent upon the executive director to decide which issues are to be considered by the APC's council in these circumstances. The consideration does not necessarily include, or be limited to, the matters which were raised by the complainant in the complaint. The APC may decline to consider, or further consider, a complaint at any point thereafter, including for resourcing reasons or, that it is more appropriate to refer a complaint for consideration by another organisation. 46 The only concern of the APC is whether there has been a breach of the relevant standards and not to decide a dispute between a publisher member and the complainant. The APC does not charge a fee to a complainant for the lodgement of complaints nor does it provide mediation of complaints. Mr Pender says that the APC has no powers over non-member publishers, but if a non-member publisher agrees, the APC will deal with a complaint against it. Secondary complainants have no ability to challenge decisions made in relation to their complaint, unlike the opportunity for primary complainants to do so. Members of the public have no enforceable rights against the APC, apart from primary complainants being able to challenge some decisions of the APC, for failing to accept a complaint for consideration, or, if they disagree with the APC's decision about a complaint. 47 Mr Pender was not required for cross-examination and his evidence was not challenged. The relevant provisions of the ADA The relevant provisions of the ADA are as follows: Section 38M Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds – (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the person is provided with those goods or services. Section 4 Definitions "Services" includes - (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. Section 38B What constitutes discrimination on transgender grounds (1) A person ('the perpetrator') discriminates against another person ('the aggrieved person') on transgender grounds if the perpetrator - (a) on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not transgender persons, or who do not have a relative or associate who is a transgender person, comply or able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply, or (c) treats the aggrieved person, being a recognised transgender person, as being of the person's former sex or requires the aggrieved person, being a recognised transgender person, to comply with a requirement or condition with which a substantially higher proportion of persons of the person's former sex comply or are able to comply, being a requirement or condition which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1)(a), something is done on the ground of a person being transgender if it is done on the ground of the person being transgender, a characteristic that appertains generally to transgender persons or a characteristic that is generally imputed to transgender persons. Leave to Appeal 1. By way of Notice of Appeal filed 5 August 2020, the APC seeks leave to appeal the Decision pursuant to s 80(2)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). 2. The APC accepts that its appeal is against a first instance interlocutory decision of the Tribunal in respect of which leave is required to appeal. 3. The APC submits that the Appeal Panel should grant leave to appeal because the matter involves issues of principle relating to the proper interpretation of ss 4 and 38M of the ADA. The APC submits these issues are of public importance and have a general application. 4. The APC also submits that a full hearing before the Tribunal below, based on a misinterpretation and misapplication of the provisions of the ADA, would be a waste of the valuable resources of the Tribunal and also the resources of the respondent and the APC. 5. The respondent opposed leave and submits that the matter does not have general application because the question of whether a person provides a 'service' is a question of fact that will turn on the individual circumstances of each case. 6. The principles relevant to the grant of leave to appeal from an interlocutory decision were considered in Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54. The Appeal Panel said at [35]: As stated in various decisions of the Tribunal and its predecessor, the Administrative Decisions Tribunal, the principles to be applied are to be derived from the principles applicable to leave applications in courts: see for instance, Johnston v Department of Education and Training (GD) [2007] NSWADTAP 6 and BHM v BHN & Ors [2014] NSWCATAP 26. These principles include the following: (1) It is unnecessary and unwise to lay down rigid rules of practice or exhaustive criteria governing the grant of leave to appeal: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 175; [1981] HCA 39; (2) However, the requirement for leave is a filter restricting access to the appeal process: Coulter v R (1988) 164 CLR 350; [1988] HCA 3 at 359 per Deane and Gaudron JJ; (3) Leave should only be granted where there are substantial reasons to allow an appellate review: Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] 104 FCR 564; (4) Circumstances justifying leave may be an error of principle resulting in substantial injustice: Minogue v Williams [2000] FCA 125. However, these concepts may not be cumulative; (5) There is a difference between the exercise of a discretion concerning a matter of practice and procedure and an exercise of a discretion that determines substantive rights: Adam P Brown per Aickin, Wilson and Brennan JJ at 177 citing with approval Jordan CJ in In re Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318 at 323; (6) Where an interlocutory decision effectively determines the substantive rights of the parties, that may be a significant factor in favour of granting leave to appeal: Eltran Pty Ltd v Westpac Banking Corporation (1991) 32 FCR 195 per Spender J at [14]-[15], referring to Ex parte Bucknell (1936) 56 CLR 221 at 225-6; (7) In connection with a matter of practice and procedure, restraint should be applied in reviewing such decisions, especially if an application for leave is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21], referring to Adam P Brown and in In re Will of FB Gilbert (dec); (8) Leave should not be granted unless a substantial injustice would result and the decision is attended with sufficient doubt to warrant it being reconsidered by the appeal body. What is sufficient is dependent on the particular case: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-9; (9) Lastly, subject to the above, the matters set out in Collins [v Urban [2014] NSWCATAP 17] at [84 (1)-(2)] are also relevant to the exercise of a discretion to grant leave. 1. In Collins v Urban [2014] NSWCATAP 17 at [84], the Appeal Panel considered the principles governing leave to appeal under s 80(2)(b) of the NCAT Act (which provides that leave is necessary if the appeal does not raise a question of law). At [84] the Appeal Panel indicated, relevantly, that it is appropriate to grant leave to appeal under s 80(2)(b) in respect of issues of principle and questions of public importance or matters of administration or policy which might have general application. Those are also circumstances which support a grant of leave to appeal from an interlocutory decision (see Champion Homes Pty Ltd v Guirgis [2018] NSWCATAP 54 at [35](9) above). 2. Whilst the nature of the services provided is a question of fact, whether or not the undisputed facts before the Tribunal constitutes 'services' under the ADA is a question of law. 3. The question of the breadth of the meaning of the term 'services' is not completely settled in the law. In particular, the question of whether or not an alleged service of complaint handling by a not-for-profit industry body, such as the APC is a 'service' is also not settled as the dispute before us demonstrates. In our view, this question does involve an issue of principle and a question of public importance. Further, the Tribunal's interlocutory decision determined the parties' substantive rights. 4. Accordingly, we have decided to grant leave to appeal. Determination of matter on the papers 1. Hearings are generally required in Tribunal proceedings, with some exceptions. Subsections 50(1) and (2) of the NCAT Act provide as follows: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except— (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. 1. To the extent that these proceedings concern an application for leave to appeal, a hearing is not required and we have not held a hearing of that application (NCAT Act, s 50(1)(a)). Having granted leave to appeal, the question arises as to whether we should hold a hearing of the appeal. 2. On 18 August 2020, the Appeal Panel, constituted by Principal Member Suthers, made an order dispensing with a hearing of the appeal under s 50(2) of the NCAT Act. In its submissions dated 29 September 2020, and in its reply submissions dated 24 November 2020, the APC sought a hearing due to the complexity of the various matters being traversed. Ms Southey did not deal with this matter in her submissions of 8 November 2020. 3. Having had regard to the submissions of the APC and those of Ms Southey, we are satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the parties' written submissions and other documents lodged with or provided to the Tribunal. Although the legal issues have some degree of complexity, those issues are adequately traversed in both parties' submissions. 4. Further, we consider that determination of the matter on the papers would best facilitate the just, quick and cheap resolution of the real issues in the proceedings (NCAT Act, s 36(1)). Ms Southey's complaint relates to an article published in 2017. She filed points of claim in the Tribunal on 17 June 2019. In November 2019, the APC applied to have the preliminary matter of whether the APC provides services determined separately. It is important that the appeal from the Tribunal's decision on that issue be determined expeditiously so that Ms Southey's complaint may be determined. The most expeditious way of determining that appeal is for the matter to be determined on the papers. 5. For these reasons, we have decided not to disturb the order made by Principal Member Suthers, dispensing with a hearing of the appeal. Grounds of appeal 1. The APC identifies its grounds of appeal, in an attachment to its Notice of Appeal, as follows: 'The APC claims that the Tribunal below made the following errors: 1. In finding, in paragraph 77, that the APC: a. provided a "service" within the terms of section 38M of the Anti-Discrimination Act 1977 in providing a complaints handling process, b. provided a complaint handling service that "is a helpful or beneficial activity … to the … transgender community". 2. In finding, in paragraph 79, that "the applicant is a person subject to the provision of a service, whatever the outcome may deliver to her, or others" and hence comes within section 38M. 3. Paragraphs 1 and 2 demonstrate the errors of the Tribunal in its interpretation of the ambit and operation of sections 4 and 38M as those provisions only cover the person who "provides … services" in relation to "refusing to provide … those… services" or the "terms on which he or she provides the person with those … services" as the APC only provides services to its members as set out in its Constitution and not to the community at large where someone has merely elected to trigger the complaints handling process. 4. The Tribunal erred in law in failing to find that the Respondent did not provide to the Applicant a "service" for the purposes of the Act in receiving, considering and disposing of the complaint.' 1. The grounds of appeal were further developed in the APC's written submissions. Submissions of the appellant 1. The APC submits that the Tribunal erred in its finding that it provided a service within the terms of section 38M of the ADA in providing a complaints handling process. It submits the evidence of Mr Pender was unchallenged and established the following: 1. The APC's complaints handling activities are performed for the purpose of promoting freedom of speech through responsible and independent print and digital media and through adherence to high journalistic and editorial standards. 2. The APC is not obliged to accept a complaint or thereafter consider it. 3. The APC has broad discretion in this respect and may decline to consider or further consider a complaint at multiple points. 4. Any consideration of the complaint is limited to those alleged breaches of the APC's Standards of Practice as determined by the APC, as distinct from what the publisher or complainant may perceive as the issues between themselves. 5. Although a complainant may bring a matter to the APC's attention and 'trigger' the complaints process, the process itself is managed by the APC and may involve limited or no further participation by the complainant, at the APC's sole discretion. Secondary complainants, in particular, do not generally participate in the process beyond the submission of the complaint form. 6. The APC has no power to order correction, retraction, compensation, apology or any other remedial action for breaches of Standards of Practice. 1. The APC submits that Mr Pender's evidence established that the APC did not provide services to the respondent within the meaning of the ADA because: 1. the APC is an adjudicator of any complaints made to it and not a servant of complainants; 2. the APC's complaints handling activities are not performed for the purpose of benefitting transgender persons, but rather to fulfill functions in accordance with its Constitution; 3. the complainants have no ability to decide whether to accept or reject what is done through the complaints handling process or the outcome. 1. It cited in support IW v City of Perth (1997) 191 CLR 1 per Brennan CJ and McHugh J at 17–18; Bickle v State of Victoria (Victoria Police) [2020] FCA 168 at [18]-[19] per Snaden J and State of NSW v Whiteoak [2014] NSWCATAP 99 at [155]–[158], [180] and [211]. 2. The APC submits the Tribunal erred in finding that its complaints handling service is a helpful or beneficial activity to the transgender community as there was no evidence to support such a finding. 3. The APC also submits that the Tribunal erred in its interpretation of the ambit and operation of ss 4 and 38M of the ADA as the APC does not provide services to the community at large. In particular, it submits that the matter was analogous to the facts in Bickle v State of Victoria (Victoria Police) [2020] FCA 168 where Snaden J held that although an investigation process by police may benefit the victims of the conduct under investigation, this is not the purpose of an investigation process. 4. Similarly, APC submits, if the APC's complaints handling process may be said to benefit persons offended by material complained of, this is not the purpose of the complaints handling process. Further, although the decision makers in each of the cases cited by APC was considering the discharge of governmental functions or statutory duties, these principles are applicable and relevant to the performance of functions by a not-for-profit, member association acting in accordance with its Constitution. 5. Finally, the APC submits that the Tribunal erred in law in failing to find that the APC did not provide to the respondent a service for the purpose of the ADA in receiving, considering and disposing of the complaint. It submits that consistent with the authorities cited the following principles are relevant to the construction of the term 'services' for the purpose of the ADA: 1. First, where an activity involves a deliberative process, such that the respondent is an adjudicator and not the servant of the applicant, the activity cannot sensibly be described as a 'helpful activity' provided to the applicant, even where the activity confers a benefit on the applicant; 2. Secondly, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to 'services' provided to the person; 3. Thirdly, where the APC undertakes activities for a purpose other than to confer a benefit to the applicant or the class of persons to which the applicant belongs, the activities are unlikely to amount to 'services' provided to the applicant, even where the activities have contingent and consequential benefits for the applicant or the class of persons to which the applicant belongs; and 4. Fourthly, the ordinary meaning of the word 'services' does not include 'a fundamental integer of a system over which those affected have no or almost no control'. 1. The APC submits that in circumstances where the complaints handling process was deliberative in nature, the process was not intended to confer a benefit upon the respondent or transgender persons generally, and where she had no control over the process or its outcome, the Tribunal ought to have held that the APC does not provide 'services' for the purpose of the ADA. 2. In its submissions in reply, the APC submitted that, if it were found to provide a service (which it denies), that service would be limited to receiving and considering a complaint but not to delivering any particular outcome (including any particular outcome in an adjudication) nor to pursuing any specific remedy in the consideration of a complaint. Submissions of the respondent 1. The respondent analysed and distinguished the three principal cases relied upon by the APC: IW v City of Perth; State of NSW v Whiteoak; Bickle v State of Victoria. 2. The respondent cited in support of her proposition that the complaints handling process was the provision of 'services', the following cases: Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241; Falun Dafa Association of Victoria v Melbourne City Council [2003] VCAT 1955 at [36], Diri v Board of Studies, Teaching and Educational Standards [2015] NSWCATAD 120 at [40], [43] and AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071. 3. The respondent contends that the weight of authority supports the proposition that the APC's complaints investigation process constitutes 'services' within the meaning of s 4 and s 38M of the ADA. Consideration 1. First, we reject the submission of the APC that there was no evidence to support the finding of the Tribunal that the complaints handling service provided by APC "is a helpful or beneficial activity … to the … transgender community". This submission is grounded on the proposition advanced by APC that there was nothing in the evidence of Mr Pender before the Tribunal that would support the conclusion that the APC's complaints handling service is a helpful or beneficial activity to the transgender community. 2. In our view, the proposition is supported by the general nature of the complaints handling service without there needing to be any specific evidence to that effect by a witness such as Mr Pender. The evidence of APC's complaints handling service demonstrates that it is a helpful or beneficial activity to any group, such as 'the transgender community', where the nature of the alleged breach of journalistic standards impacts upon or affects that community. 3. Next, we analyse the authorities in question. IW v City of Perth (1997) 191 CLR 1 1. The appellant, IW, was a member of People Living With Aids (WA) Inc (PLWA), an incorporated association. PLWA submitted an application to the Perth City Council for approval of a drop-in centre for persons with HIV. The application was refused, with a number of councillors refusing the application on the basis of 'the AIDS factor'. 2. This gave rise to a complaint of discrimination in the provision of services under s 66K(1)(a) of the Equal Opportunity Act 1984 (WA). The provisions in the Equal Opportunity Act 1984 are substantially similar to the ADA. 3. Brennan CJ and McHugh J held the Council did not provide a service for the purpose of s 66K. Their Honours noted the broad meaning of services, the fact the Equal Opportunity Act 1984 was an inclusive list, and that it was important to construe the meaning of words in a manner which promotes the objects of the Act citing s 18 of the Interpretation Act 1984 (WA): see 11-12. Their Honours noted a council provides many services, such as garbage collection, provision of facilities, etc. They also said: 'Furthermore, the Act is not necessarily inapplicable to a council activity because the Council, acting as a deliberative body, makes a decision refusing to provide the relevant service or because the refusal is made in the exercise of a statutory power or duty.': at 12. 1. Their Honours considered a number of English and Canadian cases in which public bodies, such as the Inland Revenue were held to be providing services, seemingly agreeing with a distinction drawn in the cases between the provision of duties and services. They also warned not to act on a presumption that any discriminatory conduct fell within the scope of the Act, and that the first question that needed to be answered was, was a service provided: at 13-14. 2. Their Honours went on to say (at 15): 'Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act. This is particularly so when councillors are acting as representatives of their constituencies in making by-laws or resolutions that will have the force of law throughout the municipality or borough. Such "legislative" acts have to be contrasted with the acts involved in making operational decisions as to whether a particular service should be provided to certain individuals or to a section of the community. Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual. This is likely to be the case where the council, before making a decision, is required to consider matters that affect the public interest. In such a case, the Council may be providing a "service" in a very general sense because its ratepayers ultimately benefit from the process. But that may not be sufficient to bring the process within the scope of Pt IV A of the Act.' (emphasis added). 1. Their Honours held it was important to characterise the alleged service being provided before stating at 17: 'The appellant does not assert, and the Tribunal did not find, that the relevant service which the City provides was the consideration of an application for approval. There was clearly no refusal to provide such a service. Rather, the appellant asserts that it was the refusal to approve the application that was the refusal of the service which the Council provided. However, the City did not provide any service of giving approvals. Conversely, it did not provide any service of refusing approvals. The Council, acting on behalf of the City, merely had a duty to consider applications and a discretionary power to refuse or approve those applications unconditionally or on conditions.' 1. Their Honours also stated the following at 18: 'The process by which the Council considers applications for approvals is not in our view arguably describable as a service that it provides to applicants for planning approval. Rather it is a power to process applications for the protection and general benefit of the residents of the City. If the Council delays making its decision for more than sixty days, it is deemed to have refused the application. A process that can lead to such a result can hardly be described as providing a service to the applicant.' 1. The APC placed particular reliance on the reasons given by Brennan CJ and McHugh J at 15. However, a critical part of their reasoning was that the Council was called upon as a deliberative body to act in a quasi-judicial role in exercising a statutory power or duty. This distinguishes the case from the complaints handling process provided by the APC. Further, their construction of the term 'services' was narrower than that adopted by the other members of the majority. 2. All members of the Court agreed with the proposition that the term should not be given a narrow construction. Also, the reasoning of the majority turned on the complaint being one of refusal to provide services, not an allegation of discrimination in the act of deliberation. 3. Dawson and Gaudron JJ (agreeing in the outcome) took a broader view of what constituted the providing of a 'service'. Their Honours stated that as the legislation concerned the protection of human rights the sections regarding the provision of goods and services 'should be construed as widely as their terms permit. In particular, "services", a word of complete generality, should not be given a narrow construction unless that is clearly required by definition or by context.': at 22-23. 'The word "services", in its ordinary meaning, is apt to include the administration and enforcement by the City of Perth of the Planning Scheme. That being so, the Tribunal was correct in holding that "in administering a town planning scheme ... , regulating the use of land ... , securing provision for traffic ... , and generally implementing or enforcing measures directed to the amenity of the area, ... the City of Perth [was] providing a service to residents".': at 23. 1. However, their Honours held that the identified service that was provided was the exercise of a discretion by the Council to grant or withhold planning approval. In making this identification it could not be seen that the Council refused to provide that service contrary to s 66K(1)(a), because it needed to be shown that the Council failed to consider whether to exercise its discretion or not. 'The appellant's argument that the first respondent's refusal of planning approval was a refusal to provide a service cannot be sustained. Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established simply by showing that there was a refusal of planning approval. Rather, it is necessary to show a refusal to consider whether or not approval should be granted. And that case is foreclosed by the very matter of which the appellant complains, namely, the Council's refusal to grant approval.': at 24. 1. Toohey J (dissenting in the outcome) also held that a service was provided by the Council. Like the other justices, his Honour noted that 'a generous construction' of the words to promote the objects of the Act was appropriate: at 26-27. 2. Gummow J (agreeing with the outcome) held that the Council did provide a service. His Honour referred to s 18 of the Interpretation Act 1984 (WA) regarding construction of legislation to promote the objects of the Act 35-36. However, it was acknowledged that the legislation was not a comprehensive prohibition on discrimination (at 39). His Honour noted that there was an 'issue of characterisation involved', before stating: 'There is no reason in logic or good sense to deny the proposition that the Council may be engaged in the provision of services, not only to the community as a whole, but also to individual applicants who invoke the exercise of the powers of the Council under the town planning law. There is no dichotomy here between the discharge of statutory functions and the provision of services to those seeking the discharge of these functions.': at 44. 1. His Honour seemingly characterised the service being provided as the consideration of the application. His Honour then applied the provisions of s 66K(1) to this understanding of the service (at 45): 'In the present case, the Council did not refuse to provide services. It did not, for example, refuse to accept or to deal with the application by PLWA in respect of the premises at Walcott Street, North Perth. Section 66K(1)(a) could have no application. It deals with refusal to provide services. Accordingly, the appellant's primary submission should be rejected. However, in its application to the facts of this litigation s 66K(1)(C) looks to "the manner" in which the Council discharged its statutory obligations under the town planning law. That section made it unlawful for the Council to discriminate against an impaired person in the manner in which it provided that person with services. In a broad sense, the manner in which the Council went about its task with respect to the Walcott Street premises involved discrimination within the sense of the Act.' 1. Kirby J (dissenting as to the outcome) also held a service was provided. His Honour cited the definition of 'services' in the Macquarie and Oxford dictionaries before stating, 'The concept of "services" is therefore an extremely wide one' (at 70). Bickle v State of Victoria (Victoria Police) [2020] FCA 168 1. The applicant claimed to have had an altercation with the principal of his school, amongst others. Some months later the applicant's mother made a complaint to the respondent, the Victoria Police. 2. It was the conduct of the Victorian Police in handling the complaint that gave rise to a claim of unlawful discrimination contrary to the Disability Discrimination Act 1992 (Cth). The case concerned an interlocutory application by the respondent to have a number of points in the applicant's pleadings struck out for want of a reasonable cause of action. The provisions in the Disability Discrimination Act 1992 are substantially similar to the ADA. 3. Snaden J held 'by conducting itself as it did by way of investigation of the applicant's Police Complaint, Victoria Police was not providing, nor declining to provide, a service to the applicant. Insofar as his case proceeds upon the contrary premise—and it was not in question that it does—it cannot succeed.' (at [5]). His Honour noted that whilst the investigation of alleged criminal wrongdoing would provide a benefit to the complainant, 'conduct does not qualify as a service merely because it is of benefit to one or more people': at [17], citing Brennan CJ and McHugh J in IW v Perth City Council. 4. His Honour then referred to the New South Wales Court of Appeal decision of Commissioner of Police v Mohamed [2009] NSWCA 432 ("Mohamed") (see below) and the English case of Farah v Commissioner of Police of the Metropolis [1998] QB 65. In those cases it was held that a service was provided by the police. His Honour then went on to say at [18]-[19]: '[18] …With respect, such reasoning might readily be understood: in responding (by way of "initial investigation") to a call for assistance—and, thereby, delivering would-be victims of criminal offending from harm's way—police act in a manner that confers benefits uniquely upon those would-be victims in their capacities as such. [19] The same is not true in respect of subsequent investigation processes and the decisions that arise therefrom as to what, if any, action should be taken against those accused of criminal conduct. The investigation of alleged wrongdoing and the prosecution (or otherwise) of alleged wrongdoers are not functions that the police undertake so as to benefit alleged victims. They are undertaken because orderly civil society and the proper administration of criminal justice requires that they be undertaken. Plainly, that is of benefit to the community as a collective, as well as individually to those who might be the victims of particular wrongdoing. But those functions are discharged in satisfaction of a duty with which the police are entrusted; not so as to confer a benefit upon any particular individual (including those claiming to be the victims of the conduct under investigation). 1. In support of this, his Honour relied upon the decision of Djime v Kearnes [2019] VSC 117 at [130] and the obiter comments of Handley AJA in Mohamed at [87]. His Honour said at [22]: 'Conduct engaged in by police in the process of investigating alleged criminal wrongdoing is not conduct that amounts to the provision of a service, whether at large or to those who claim to have been the victims of particular wrongdoing. The same is true of the decisions that are made—and the conduct in which police engage in consequence of the decisions that are made—about how or if those investigations should proceed to the laying of charges or the prosecution of offenders.' 1. It appears that the applicant's counsel conceded this distinction. His Honour held that the allegations of criminal conduct reported to police were 'entirely historical' and therefore there was no threat posed to the complainant: at [26]. The fact that the police described a number of their functions as 'services' was not itself decisive of the issue: at [27]. His Honour also doubted that an interview conducted by police with the complainant amounted to the provision of services, however, this issue was not raised by the respondents: at [34]. 2. The APC seeks to place emphasis on the statements that investigation of crime and prosecution of alleged criminals by police does not amount to the provision of 'services'. It thereby suggests that there is a logical connection between the investigation and prosecution of criminal acts by police officers and the consideration of complaints by a private not-for-profit industry self-regulatory body, such as the APC. In our opinion, the two matters are not logically connected. 3. In Bickle, Snaden J held that a Police Department provides a service to a member of the public when it responds to a request for emergency assistance, but not when it investigates and prosecutes crimes. The essential reasoning in Bickle is that the criminal justice system is concerned with actions which are harmful and dangerous to society as a whole. Prosecution and investigation of crime is pursued by the State pursuant to a statutory function and duty and as such the police department is concerned with protecting society as a whole. It is not acting as a servant to victims of crime. 4. This is different to the function performed by the APC, a private corporation, where it accepts and considers complaints about material published by members of the APC. State of New South Wales v Whiteoak [2014] NSWCATAP 99 1. Mr Whiteoak made a complaint under the ADA alleging that the appellant, the State of New South Wales, through Corrective Services, discriminated against him on the ground of his race with regards to a number of decisions relating to his classification as an inmate. 2. It was noted that the ADA does not prohibit all discrimination, only in circumstances prescribed by the Act: [134]-[138]. The words 'goods or services' in s 19 were words of limitation: [139]. The Tribunal's then President, Wright J, noted at [145]-[146] that the definition in s 4 was an inclusive definition, and was seemingly expanded by the inclusion of paragraph (f). 3. Wright J then stated at [156]: 'Although, when "services" are provided, the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to "services" provided to that person. Neither the definitions referred to above nor the illustrations given in s 4(1) support the conclusion that merely carrying out activities which may, but also may not, have a consequence which is beneficial for a person should always be said to amount to providing services to that person. Indeed, if such an approach to the construction of "services" were adopted, it might well lead to the error, referred to above, of construing s 19 so broadly that every instance of discrimination constituted by differential, detrimental treatment on the ground of race would be unlawful under that section and the remaining prohibitions in Part 2 of the AD Act would be unnecessary. It could also lead into the error of ignoring the word used in the statute, namely "services", and substituting for them an imprecise definition of "services" such any activity which is helpful or beneficial. Thus, answering the question whether classification of inmates can be said to be helpful or beneficial will not, by itself, determine whether classification of inmates constitutes "services" within the meaning of s 19.' 1. Wright J then considered the definition of "provide," saying at [158]: 'Both of these meanings convey the essential notion of making something available. They do not suggest in any way that "provide" includes imposing something on a person. Thus, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances.' 1. The President concluded his analysis on the definition of providing services for the purpose of s 19 of the ADA at [160]: 'Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided". Subject to any contrary requirement or approach in the authorities, providing "services" should be construed accordingly.' (emphasis added) 1. Wright J proceeded to consider the decision of IW in more detail: [163]-[176]. It was noted that the High Court in IW had failed to consider the distinction between 'service' and 'services': [169]. It seems the President was emphasising the judgments of Brennan CJ and McHugh J. 2. The President found that the classification of inmates was not for the benefit of the inmates, and even if it was only incidentally beneficial to the inmates, this would not have been the provision of services. Further, classifying inmates was a statutory duty with the outcome imposed upon the inmates who had no choice to accept or decline it: at [233]. Professor Chesterman, Principal Member, dissented. 3. In our view, a critical part of the reasoning in Whiteoak was, firstly, that the classification of inmates was both the exercise of a statutory power and a statutory duty, and, secondly, that the classification was an activity imposed upon the inmates not an activity offered them. The activity alleged to constitute services in the present case was offered by a private corporation on its own initiative. The Tribunal in its Decision distinguished Whiteoak: at [74]-[75]. We agree that Whiteoak can be distinguished on the basis that the APC's complaints handling process is not imposed upon complainants. It is offered to them and complainants are free to choose whether, when, and how, they exercise the complaints process, if at all. It also was not the exercise of a statutory power or duty. Commissioner of Police v Mohamed [2009] NSWCA 432 1. Ms Rehab Mohamed and her family were at their home in Blacktown. They claimed that they were abused and assaulted by members of a neighbouring family. Ms Mohamed rang police and two officers attended at the family home. However, it is alleged that the officers were rude to the family and failed to take their complaint seriously. It was said that the police took no action against those said to have been responsible for the abuse and assaults: at [2] 2. Basten JA (with whom Spigelman CJ agreed), cited IW v City of Perth in holding that the ADA does not prohibit all forms of discrimination: at [23]. It was noted that the definition of 'services' in s 4 of the ADA was inclusive rather than exclusive. His Honour then went on to state: 'Taken in the abstract, there is no reason to suppose that the police force does not, at least in some of its functions, provide services. Indeed, for much of its recent history, the New South Wales Police Force has been known as the New South Wales Police Service.' (at [30]) 1. His Honour set out the definition of 'police services' found in s 6 of the Police Act 1990 (NSW), which provides: police services includes: (a) services by way of prevention and detection of crime, and (b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and (c) the provision of essential services in emergencies, and (d) any other service prescribed by the regulations. 1. His Honour then said that 'services' in the Police Act was used in the same general sense as it is in the ADA: at [32]. It was noted that the submission of the applicant was in essence that the police rendered a 'public service' as opposed to a service to individuals. 2. His Honour said there was 'nothing surprising' in holding that police owed a duty to individual members of the community to act in a non-discriminatory manner, before stating at [36]: 'Indeed, the fact that an authority is required to provide a public service implies that the service is to be provided without discrimination across all sectors of the community. To withdraw such a service from a particular group on the basis of a characteristic protected under human rights law is not to default on any obligation to the public at large, but in relation to members of that group. There is no reason why members who suffer individually as a result of such conduct should not have a basis for complaint under appropriate legislation, including the Anti-Discrimination Act.' 1. Handley AJA went through the provisions in the Police Act, and the decisions of Farah v Commissioner of Police of the Metropolis [1998] QB 65 and Gichura v Home Office [2008] EWCA Civ 697, holding that those decisions should be applied: see [74]-[86]. His Honour held that the initial investigation of complaints is a provision of services to the victims, however 'that does not mean that the later stages of an investigation and decisions whether or not to prosecute or arrest the alleged perpetrators are also services to them': at [87]. His Honour then noted that the boundaries of when the service of the investigation is no longer rendered to the complainant would turn on the facts of the case, and the court should not attempt to define such circumstances: at [88]-[89]. It was then stated at [90]: 'This does not mean that a general policy or practice of not prosecuting alleged offenders of a particular race or for particular crimes or classes of crime such as so called honour killings might not be discrimination in the provision of services within s 19. Again such a decision could only be made after a full investigation of the facts'. 1. In our view, this Court of Appeal decision generally supports or at least allows for, the proposition that on the facts of this case, the provision of a complaints handling process by the APC is a 'service' within the meaning of the ADA. Director-General, Department of Community Services v MM and Another [2003] NSWSC 1241 1. The respondents, MM and AM were a married couple who applied to become foster parents. After attending a number of 'information nights' and being in contact with the Department of Community Services, their application was refused on the basis that MM suffered from bi-polar disorder. 2. Barr J held that services had been provided by the department. His Honour mentioned the approach taken in IW with regard to interpreting the meaning of services in order to give effect to the objects of the Act: at [24]-[26]. His Honour referred to how the justices in IW dealt with interpreting the meaning of 'services' (see [28]-[31]) whilst saying it was 'capable of broad application': at [28]. 3. His Honour noted that in IW the decision of Brennan CJ and McHugh J was the 'narrowest view' of its meaning: at [30]. His Honour said that whilst the Department was providing services to the foster children, that did not mean they could not also be considered as providing services to others simultaneously: at [41] citing Commissioner of Police v Russell [2001] NSWSC 745. His Honour then characterised the nature of the desire of foster parents, and that the benefit being conferred by the Department's provision of services was the privilege of having a child or at least the chance for the privilege: at [42]. 4. His Honour then concluded at [43]-[44]: 'As part of its process of selecting suitable persons to foster its children the Department conducts courses at which it disseminates information to those who would foster them. It uses other avenues of communication as well. It is well established by the cases I have reviewed that such an activity may amount to providing services. I think that the Department provided a service to the respondents when it gave them information at the "training weekend". I think that when the Department receives and deals with applications from those who wish to be foster carers it provides a service to the applicants in much the same way as a Local Government authority provides a service in dealing with development applications. I think that in dealing with the respondents' application the Department provided a service to them.' 1. His Honour then refused to read down the ADA to exclude its application to the foster care scheme: at [45]-[63]. 2. The decision of Barr J is generally supportive of two propositions. First, that activities which involve deliberation can amount to the provision of services and, secondly, that whilst the APC was providing services to its members that did not mean it could not also be considered as providing services to complainants simultaneously. Other cases 1. Several other authorities have held that activities which involve deliberation can amount to the provision of services. This includes Falun Dafa Association of Victoria v Melbourne City Council [2003] VCAT 1955. That case concerned a candidate's application to participate in the Moomba Parade Sydney Festival. The respondent in that case contended that the Parade was provided for the benefit of its spectators and was not, properly characterised, a service for participants. The Tribunal rejected this false dichotomy and found that the Parade involved reciprocal services to both spectators and participants: at [36]. 2. The Tribunal held in Diri v Board of Studies, Teaching and Educational Standards [2015] NSWCATAD 120 that an educational standards board provided a service when it deliberated upon an application for formal recognition of prior learning. The Tribunal found that "the NSW Institute of Teachers clearly provided a service to the applicant when it assessed her eligibility to be accredited as a teacher": at [43]. 3. In AB v Registrar of Births, Deaths and Marriages [2006] FCA 1071 the Federal Court of Australia held that consideration of an application to amend a Birth Certificate was part of a composite service. 4. The above cases demonstrate the fact that an activity which involves deliberation or 'adjudication' does not preclude it from constituting a service within the meaning of s 4 and s 38M of the ADA. Conclusion 1. In our view, where a private organisation offers a complaints handling service to members of the public who are affected by its activities, this generally would come within the ordinary meaning of the word 'services'. For example, if a bank or insurance company offers to its customers or clients a complaints handling service in respect of that organisation's activities, this will be a 'service' within the meaning of s 4 and s 38M of the ADA. This is particularly so, given not only the ordinary meaning of the word 'services' but also in light of the well-established principle that such term should be given a broad and liberal interpretation. 2. In substance, this is what the APC does on behalf of its members who publish material in newspapers, magazines, journals and other print and digital media. Such publications have the potential to cause harm to or otherwise impact members of the public who may wish to complain about the content of the publications in question. Section 3(1)(a) of the APC's objects and powers include: 'considering and dealing with complaints and concerns about material in newspapers, magazines, journals and other print and digital media'. This provision indicates that the members of the APC in substance 'outsource' to the APC the complaints handling process that otherwise may just as easily be performed by the individual publishers. 3. The fact that this process may be of benefit to its members and be for the purpose of upholding the principle of freedom of speech, does not prevent the service also being of benefit to readers and members of the public impacted by the activities of APC's publisher members. The APC accepted that services could be provided for the benefit of more than one person. 4. The submission of the APC that the complaints handling process of the APC is there to uphold journalistic standards and not to be of benefit to readers and those affected by publications of its members introduces a false dichotomy. The complaints handling process can be designed to uphold journalistic standards as well as being of benefit to aggrieved complainants. The exhibit JBP1 to the affidavit of Mr John Pender set out some of the 'remedial actions' the APC can take in response to complaints. It was stated that: "where a complaint is upheld, the adjudication may also include a reprimand or censure, and may explicitly call for [but not required] apologies, retractions, corrections, or other specified remedial actions by the publisher. The Council may also call for specific measures to prevent recurrence to the type of breach in question … many complaints result in a correction, apology or some other form of action being taken due to the involvement of Council staff." 1. Plainly, the complaints handling service of the APC benefits persons who are aggrieved by the publication the subject of the complaint. 2. Further, the authorities referred to by the APC do not mandate a different result as they can be readily distinguished, including on the following grounds, as we have indicated above: 1. First, the APC is not exercising a statutory power or duty. 2. Secondly, it is not exercising any quasi-judicial power of any kind. 3. Thirdly, the alleged 'adjudication' of the complaints by a private body in respect of the activities of its members does not take the case outside the ordinary meaning of the term 'services'. 4. Fourthly, the APC's complaints handling process is not imposed upon complainants. 1. Individuals who are aggrieved or harmed by media ethics abuses are free to exercise, or not, the complaints handling process of the APC as an industry self-regulatory body. It is an activity offered to aggrieved individuals, not one imposed upon them. 2. The reasoning of the Tribunal below was set out in paragraphs [66]-[79]. It is worthwhile setting out those paragraphs in full: 66 In s 38M, "services" in the plural is used not the singular form of the word. The term "services" is capable of broad application. The Macquarie Dictionary (Online Ed) gives only one relevant definition of the plural form: "12. (often plural) the performance of any duties or work for another; helpful activity: medical services.". That dictionary does provide the following relevant definitions of "service": "1. an act of helpful activity. 2. The supplying or supplier of any articles, commodities, activities, etc., required or demanded. 3. the providing of, or a provider of, a public need, such as communications, transport, etc. ... 5. the supplying or a supplier of water, gas, or the like to the public. ..." 67 Dawson and Gaudron JJ in IW v City of Perth at [23] said that "services" should not be given a narrow construction unless that is clearly required by definition or context. Section 4 of the ADA provides an inclusive definition, not what is excluded. Since the matters included in the definition all fall within the ordinary notion of services the definition is to be taken as signifying everything which falls within that notion. And as neither the terms nor the content of s 38M(1) of the ADA provide any contrary indication, "services" is to be read as having its ordinary and broad meaning: IW v City of Perth at [23]. We adopt these reasons. 68 A useful summary of relevant decisions relied upon by the parties is provided by Barr J in MM, which we also adopt: [30] In IW v City of Perth the majority considered that the process by which a city council considered applications for planning approval and granted or withheld approval constituted the provision of services for the purposes of the Equal Opportunity Act of Western Australia. That Act defined the term inclusively in a manner quite like that in s4 of the New South Wales Act. Brennan CJ and McHugh J, who took the narrowest view, distinguished between the exercise of a quasi-legislative role and a role of providing services. They considered that a "service" properly described as a deliberative process was not a service for the purposes of the Act. [31] The other members of the High Court took a broader view. Dawson and Gaudron JJ considered that the term "services" was apt to include the administration and enforcement of a planning scheme. So, too, did Toohey J. Gummow J considered that the term "service" and its variants were of wide and varied meaning. His Honour referred to the work of a public servant as serving the State or community in a particular capacity: at 41. Kirby J considered that the concept of "services" was extremely wide and that its meaning was to be derived from the context. He thought it wide enough to cover the administration and performance of statutory functions: at 75. [32] In Commissioner of Police, NSW Police Service v Estate Edward John Russell and Ors [2001] NSWSC 745 Sully J was concerned with the meaning of "services" for the purposes of s 19 of the Act, which deals with discrimination on the ground of race. On the occasion giving rise to the complaint a number of constables of the New South Wales Police Service had pursued and arrested the complainant. The question for the Court was whether during the course of that pursuit and arrest the constables had provided a "service". The Police Service Act defines police services as including services by way of the prevention and detection of crime and the protection of persons from injury or death and property from damage, whether arising from criminal acts or in any other way. His Honour held it to follow that such services, provided by serving police officers, were services provided by a public authority for the purposes of s 19. His Honour considered that the officers who pursued the complainant and those who arrested him were performing services. As soon as he had been arrested, the arresting officers and any other officer who had any part in the way he was handled or who witnessed the way in which he was handled became charged with a public duty to provide him services by way of protection of his person from injury or death and the protection of his property from damage. [33] In Ferneley v Boxing Authority of NSW (2001) 191 ALR 739 Wilcox J observed, obiter, that the activity of registering or refusing to register a boxer could be characterised as a service. [34] In Australian Education Union v Human Rights and Equal Opportunity Commission and State of Tasmania (1997) 80 FCR 46 Merkel J considered whether trustees performing functions under the Superannuation Act 1938 (Tasmania) and the Retirement Benefits Act 1970 (Tasmania) and the Retirement Benefits Act 1993 (Tasmania) were performing services for the purpose of the Sex Discrimination Act. His Honour observed that the activities and functions of the trustees involved the provision of services within the ordinary meaning of that word as discussed in IW v City of Perth. [35] The performance of a public function has been treated as a service: Tejani v Superintendent Registrar for the District of Peterborough [1986] IRLR 502 (CA). There is no suggestion that the fact that the function is a public one should lead to any different enquiry about the meaning of the term "services". [36] In Attorney General (Canada) v Cummings [1982] FC 122 the Department of National Revenue of Canada was said in assessing taxes under the relevant income taxation act to have been engaged in the provision of services within the meaning of the relevant human rights Act. [37] In Savjani v Inland Revenue Commissioners [1981] QB 458 the Court of Appeal of England decided that the Inland Revenue was providing services to the public in carrying out a statutory duty to determine whether a taxpayer was entitled to a deduction and in disseminating and giving advice to taxpayers to enable them to claim tax relief. [38] In R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818 the House of Lords held by a majority of three to two that a clearance officer who vetoed aspiring immigrants to the United Kingdom was not providing a service within the meaning of the relevant section of the Sex Discrimination Act 1975 (UK). The officer was said instead to have been performing his duty of controlling would-be immigrants. The judgment in Savjani was explained as meaning that the Inland Revenue had two functions, a duty of collecting revenue, which was not a service, and a service of providing taxpayers with information, which was. [39] In Farah v Commissioner of Police of the Metropolis [1998] QB 65 the English Court of Appeal held that those duties of a police officer that involve assistance to or protection of the public constitute services to the public for the purposes of the Race Relations Act 1976 (UK). 69 When examining the term "services" Wright J in State of New South Wales v Whiteoak said: 156. Although, when "services" are provided, the person to whom they are provided receives a benefit, it does not follow that in every case where activities happen to result in a benefit to a person those activities must amount to "services" provided to that person. Neither the definitions referred to above nor the illustrations given in s4(1) support the conclusion that merely carrying out activities which may, but also may not, have a consequence which is beneficial for a person should always be said to amount to providing services to that person. Indeed, if such an approach to the construction of "services" were adopted, it might well lead to the error, referred to above, of construing s 19 so broadly that every instance of discrimination constituted by differential, detrimental treatment on the ground of race would be unlawful under that section and the remaining prohibitions in Part 2 of the AD Act would be unnecessary. It could also lead into the error of ignoring the word used in the statute, namely "services", and substituting for them an imprecise definition of "services" such any activity which is helpful or beneficial. Thus, answering the question whether classification of inmates can be said to be helpful or beneficial will not, by itself, determine whether classification of inmates constitutes "services" within the meaning of s 19. 157. Furthermore and as noted above, "services" in s 19 only occurs as something that is or could be provided. The word "provide" is defined in the Macquarie Dictionary as: 1. to furnish or supply. 2. to afford or yield ... 158. Both of these meanings convey the essential notion of making something available. They do not suggest in any way that "provide" includes imposing something on a person. Thus, if a governmental function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that services are being provided in those circumstances. 159. Finally, the provisions of s 19 read together with s 7 of the AD Act establish that: (1) It is the alleged perpetrator, to use the language of s 7, who must provide the services; and (2) The services must be provided to the class of persons who are in the same circumstances as, or circumstances which are not materially different from, those of the aggrieved person. 160. Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided". Subject to any contrary requirement or approach in the authorities, providing "services" should be construed accordingly. 161. At this point, it is necessary to consider whether the authorities, including those referred to in grounds 3 and 5 of the appellant's notice of appeal, require a different conclusion to that reached in the preceding paragraph as to the proper construction of "services" in s 19. … 176. Although the majority who dismissed the appeal did not all agree on the construction and application of the word "services", the reasons for judgment of Brennan CJ and McHugh J, Dawson and Gaudron JJ and Gummow J and their conclusions in that particular case do not require a different conclusion on the proper construction of s 19 to be reached from that set out above. 70 Of particular importance in this application is the absence of any statutory public authority, statutory body or quasi-statutory body, which bodies may be constrained in carrying out their functions based on a legislative construct. The APC is an incorporated not for profit organisation. Its objects and functions are clearly identified by Mr Pender and embodied in its Constitution. Unlike the type of organisations referred to in IW v City of Perth, State of New South Wales v Whiteoak, MM, Waters v Public Transport Corporation and the other cases involving statutory based organisations, the activities, benefits and/or the way in which the APC carries on its business is not imposed on it by statute or regulation. Its complaints handing process can therefore be distinguished from the cases which have found that a statutory body, exercising a statutory function, are not providing activities which fall within the definition of "services" under the ADA, or similar legislation. 71 We accept that it does not follow in every case where activities happen to result in a benefit to a person that those activities must amount to "services" provided to that person. However, the APC through its complaints handling process makes available to its members and first and secondary complainants, an opportunity for the APC to invoke, or to be part of, its complaints handling process. The APC may then decide whether to proceed with an investigation or not to do so. Mr Pender sets out the many options available to the APC in administering the complaint process. 72 It is without doubt that the APC provides "services" to its publisher and association members. Obviously, to provide a complaint handling process and other benefits is to provide services. The provision of these benefits to members are clearly set out in the APC's Constitution. 73 Importantly, when looking at whether a service is for the sole benefit of one person (in this case a publisher member), the discussion of Barr J in MM is apposite: "the fact that a person provides a service directly for the benefit of one person does not mean that that service is not also provided for anyone else. As Sully J found in Commissioner of Police v Russell, police officers may in relevant ways provide a service to the community at large as well as to individuals." 74 In New South Wales v Whiteoak, Wright J at [160] found: Having regard to all of these matters, it can be concluded that the specific area of social activity identified by s 19 (insofar as it refers to services and not goods or public access) is where the alleged perpetrator (whether for payment or otherwise) makes available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons. 75 The same reasoning can be applied to s 38M of the ADA. When examining Wright J's findings, the distinguishing feature in this application is that the APC is not required to administer a governmental function or perform a statutory duty and there is no outcome that is imposed on, rather than just being made available to, the applicant, which would render it unlikely that "services" are being "provided". 76 Mr Pender sets out the APC's objectives as being: promoting freedom of speech through responsible and independent print and digital media, and adherence to high journalistic and editorial standards (see s 3(1) of the APC's Constitution - page 2) are the objects of the APC. It does so by, inter alia, "(a) considering and dealing with complaints and concerns about material in newspapers, magazines, journals and other print and digital media…". 77 We accept that the APC in considering complaints concerning articles published by its publisher members is but one of the ways that the APC seeks to achieve its object of promoting freedom of speech. It is no coincidence that members of the general public, including the applicant, may also seek that the APC and its publisher members promote and adhere to the same. It is through the APC's complaints handing process that this can be achieved and that to confer it, or the chance of it, is to provide a service within the meaning of s 38M of the ADA. The APC in providing a complaints handling process is a helpful or beneficial activity to the relevant class of persons to which the applicant alleging discrimination belongs, being the transgender community. It is therefore a service. 78 The APC referred us to the decision of Bromberg J in Winters v Fogarty, whilst not binding on this Tribunal it is instructive. [49] Whilst the existence of a legal obligation is not the necessary touchstone, a sufficient nexus between the provider and the person provided for or who has sought the provision of the goods, services or facilities, is nevertheless required. The text to which I have referred contemplates a nexus between the provider and the recipient or potential recipient and a nexus must have been intended as a mechanism for marking out the limits of the area of activity covered by s 24. [50] It could not have been intended that every person who may be assisted or advantaged or who may take some benefit from the provision by one person of a good, service or facility to another person, is included in the protective field marked out by s24. In other words, the requisite nexus is not the mere obtaining of a benefit or advantage. If it were, the protective field would be absurdly broad. It would, to take one example, include the general public in relation to the provision of a good or service by one person to another which has an incidental public benefit. For instance, the provision of solar panels to a householder in the context of the environmental benefit to the general public of that supply. Such a result is not supported by the text of s 24 or by any discernible policy or purpose of that provision. [51] To my mind, the reach of s 24 is confined to protecting those persons who are the subject of the provision or potential provision in question. Of course, the provision of a good, service or facility may be directed to multiple persons so that, for example, the subjects of the provision of a bus designed to carry passengers may include the passengers to be carried and not be confined to the person who hired the bus. But, the person who was advantaged by the provision of the bus because she was relieved of driving her relative to the bus's intended destination was not the subject of the provision of the bus and has not been provided with a good or a service within the meaning of s24. Third persons who happen to be advantaged, assisted or benefited merely as an incident of the provision of a good, service or facility by one person to another or toothers, are not within the protected field contemplated by s 24 of the DDA. 79 Winters v Fogerty can be distinguished on the facts of this matter. The applicant, through the APC's complaints handling process, was an active participant in that activity. The APC's complaints handling process allows first and secondary complainants to make a complaint which activates the complaints process in accordance with the APC's Constitution. In these circumstances the applicant is more than an unintended person deriving a benefit. She is a secondary complainant who is a participant in the provision or potential provision in question, that being the APC's complaints handling process. As a secondary complainant, the path she takes through the APC's complaints handling process, and, any outcome achieved, is a matter at the sole discretion of the APC confined by its Constitution. But nevertheless, the applicant is a person subject to the provision of a service, whatever the outcome may deliver to her, or others, as deposed by Mr Pender." 1. With respect, we agree with and adopt these reasons. 2. We now turn to the APC's reply submission that, if it were found to provide a service, that service would be limited to receiving and considering a complaint but not to delivering any particular outcome. That was not identified as a ground of appeal and Ms Southey has not had an opportunity to deal with the submission. That is sufficient reason to reject it. 3. We make, however, the following observations. It is for the complainant to identify the relevant service. As Brennan CJ and McHugh J said in IW at [17], "it is necessary to identify with precision … what service or services the alleged discriminator provides." The Tribunal stated that Ms Southey "does not dispute the settled position that 'services' must be identified with 'sufficient precision to relate them to the facts of the case and the issues which arise for determination' citing Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at [405]-[407]" (Southey v The Australian Press Council [2020] NSWCATAD 177 at [49]). 4. Ms Southey identified the service as being complaint handling. We consider that she has identified the service with sufficient precision and the APC did not contend otherwise on appeal. A complaint handling process includes the determination of a complaint or, to use the APC's language, the delivery of an outcome. As we see it, that is part of the benefit or service provided to persons such as Ms Southey. 5. Accordingly, we reject and dismiss the appeal. Orders 1. The orders of the Appeal Panel are: 1. Leave to appeal is granted. 2. Appeal is dismissed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 January 2021