Southey v The Australian Press Council [2023] NSWCATAD 117

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Southey v The Australian Press Council [2023] NSWCATAD 117 Hearing dates: 16 November 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): 2022/00301817 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 11 January 2020, the Daily Telegraph reported on a convicted paedophile who was sentenced for breaching extended supervision orders. The offender identified as transgender but was referred to in the article using male pronouns and by her former name. 3. The Applicant contends that the article included references to the offender's transgender status which was not a matter of public interest and that it perpetuates discrimination against transgender Australians. The conduct complained of is alleged by the Applicant to be wholly gratuitous and in breach of the Standards of Practice in that the publisher publishes material in placing unwarranted or excessive emphasis on certain personal characteristics in the article with insufficient public interest in doing so. 4. The particular reference complained of included: "Paedophile Scott Lee Irwin, who a court was told has identified as transgender and was now known as Sheryl, has breached his ESO 11 times since 2014 and was sentenced to 18 months' jail with a 13-moth non-parole period in Wollongong Local Court last year." 1. The Applicant alleges that when she complained to the Respondent on 21 December 2020, the Respondent's executive director exercised a discretion to summarily dismiss the complaint in full, before referring it to adjudication on the basis that the complaint was lacking in merit. 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 or sexual orientation 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.