Southey v The Australian Press Council [2023] NSWCATAD 121

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Southey v The Australian Press Council [2023] NSWCATAD 121 Hearing dates: 16 November 2022 Date of orders: 25 May 2023 Decision date: 25 May 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: (1) Leave to proceed with the complaint of transgender discrimination pursuant to s38B(1)(a) of the Anti-Discrimination Act 1997 is granted. (2) Leave to proceed with the complaint of transgender discrimination pursuant to s38B(1)(b) of the Anti-Discrimination Act 1997 is refused. Catchwords: HUMAN RIGHTS – equal opportunity – whether leave should be given – principles applying to grant of leave. Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Southey v The Australian Press Council (2003) NSWCATAD 29 Southey v Australian Press Council Inc [2021] NSWCATAD 329 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones & Anor v Ekermawi [2009] NSWCA 388 Ekermawi v ADT & Ors (2009) NSWSC 143 Texts Cited: Nil Category: Procedural rulings Parties: Claire Southey (Applicant) The Australian Press Council (Respondent) Representation: Solicitors: Applicant (Self-represented) HWL Ebsworth Lawyers (Respondent) File Number(s): 2022/00338378 Publication restriction: Nil

REASONS FOR DECISION 1. Before me is a complaint of transgender discrimination under s 38M of the Anti-Discrimination Act, NSW 1977 ('the Act'). The complaint is made by Ms Claire Southey ('the Applicant') against the Australian Press Council ('the Respondent'). 2. The complaint relates to allegations made by the Applicant that on 14 November 2020, the Daily telegraph published a letter to the editor relating to an article concerning Reginald Arthurell, who was convicted in the 1970s and 1980s of multiple counts of manslaughter and murder. The letter read: "With reference to the serial murderer Reginald Arthurell wanting taxpayers to fork out for his sex change operation, my husband said he'd perform this procedure absolutely free." And "A 75-year-old serial killer due for imminent release from prison wants a taxpayer-funded sex change operation. (Fiend's sex op on you, 21/10). It may not be a good look but you can be certain that on release she will be wearing a killer outfit". 1. During the period of incarceration, the offender has identified as transgender. 2. The Applicant contends that each of the "articles" included references to the offender's transgender status and their private medical diagnoses and in respect of the first "article" a thinly-veiled reference to mutilating the persons genitals. The second letter openly ridicules the individual on the basis of their transgender status. The Applicant contends the references to their transgender status and personal medical treatment were gratuitous and was not in the public interest. 3. The Applicant submitted that the letters breached the Respondent's General Principles because (a) the references to the persons transgender status, and personal medical treatment were gratuitous, and (b) the "articles" flippant jokes about genital mutilation were not in the public interest and cause material harm and offence. By including gratuitous references, demeaning the individuals transgender status, using crude outdated terms, using inappropriate pronouns, using the person's former name instead of their current name, and flippantly joking about serious violence, the "article" normalised and sustained prejudice and violence already experienced by transgender Australians. 4. The Applicant alleges that when she complained to the Respondent on 6 January 2021, the Respondent resolved to dismiss the complaint saying: "that the letter was intended as morbid humour and most readers would recognise this" and "Accordingly, the Council considers that General Principal 6 was not breached." 5. The Applicant said that the decision sustains and perpetuates discrimination against transgender Australians. 6. Like other applications made by the Applicant to this Tribunal, the Respondent handled the complaint in accordance with its complaints handling process. The Respondent contends that the complaint was not dealt with differently because it concerned transgender issues. 7. 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.