Southey v The Australian Press Council [2023] NSWCATAD 115

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Southey v The Australian Press Council [2023] NSWCATAD 115 Hearing dates: 14 September 2022 Date of orders: 23 May 2023 Decision date: 23 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: (1) Leave to proceed with the complaint of transgender discrimination 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): 2022/00243167 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. At the hearing, it was apparent that the President has attached the incorrect complaint to the referral bundle sent to the Tribunal. After the hearing the parties sent to the tribunal the correct original complaint and explained the probable reasons why the incorrect complaint was attached. I am satisfied I have the correct original complaint which is referred to by all parties, and the President of Anti-Discrimination NSW. 3. The complaint relates to allegations made by the Applicant that on 22 October 2020, ten publishers in Australia published materially similar articles concerning the New South Wales State Parole Authority granting parole to Reginald Arthurell, who was convicted in the 1970s and 1980s of multiple counts of manslaughter and murder. 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 historical/future treatments they may undergo. The reference complained of is alleged by the Applicant to be wholly gratuitous. The Applicant contends the article established no public interest in the information and referred to the offender using male pronouns, despite female pronouns being used in the written decision of the State Parole Board. 5. The particular reference complained of included: "Arthurell plans to undergo a sex change as soon as possible, and the Court heard Arthurell identified as transgender." 1. The Applicant alleges that when she complained to the Respondent on 6 January 2021, the Respondent resolved to dismiss the complaint during the early stages of its investigation, finding that it was unlikely that a breach had occurred. She cites the reasons for dismissal of her complaint was that the information was disclosed in the proceedings of the Parole Board. 2. The Applicant said that the decision sustains and perpetuates discrimination against transgender Australians. She asserts that if the article had made such prominent references to an offender's race or sexual orientation, the Australian Press Council would not have hesitated to refer the matter to an adjudication panel for examination. The Applicant submits that the handling of the complaint cannot be reconciled with the Press Council's previous treatment of similar articles that overemphasise the race of an offender. In these circumstances the Respondent has treated the Applicant's complaint less favourably than it has treated equivalent complaints about gratuitous reporting on race, sexual orientation, and religion previously. 3. Anti-Discrimination NSW declined the complaint pursuant to s92 of the Anti-Discrimination Act 1997 (referred to herein as 'the Act'). The Applicant sought that the complaint be referred to the Tribunal pursuant to s93A of the Act and seeks leave to continue with the complaint.