Southey v Australian Press Council [2023] NSWCATAD 307

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Southey v Australian Press Council [2023] NSWCATAD 307 Hearing dates: On the papers Date of orders: 05 December 2023 Decision date: 05 December 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: M Tibbey, Senior Member Decision: The application for summary dismissal is dismissed. Catchwords: HUMAN RIGHTS – equal opportunity – whether to summarily dismiss application made pursuant to s38B(1)(a). Legislation Cited: Anti-Discrimination Act, 1977 Cases Cited: Burns v Smith [2019] NSWCATAD 56 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Dee v Commissioner of Police and Anor [2003] NSWADT 217 Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Han v NSW Department of Health [2006] NSWADT 113 Langley v Niland & Anor (1981) 2 NSWLR 104 Southey v The Australian Press Council [2023] NSWCATAD 121 Texts Cited: Nil Category: Procedural rulings Parties: Claire Southey (Applicant) The Australian Press Council (Respondent) Representation: Applicant (Self-represented) HWL Ebsworth Lawyers (Respondent ) File Number(s): 2022/00338378 Publication restriction: Nil

REASONS FOR DECISION

Background 1. This is an application for summary dismissal of a complaint. 2. The applicant, Ms Claire Southey ('the complainant') lodged a complaint with Anti-Discrimination NSW on 16 August 2021 in relation to the handling of an adjudication in relation to a letter published in the Daily Telegraph on 14 November 2020. 3. The applicant stated in her letter of complaint to Anti-Discrimination NSW that in November 2020, the NSW State Parole Authority resolved to parole a person convicted of multiple homicides in the 1970's. The offender had commenced steps in custody towards transitioning gender, from male to female. The gender transition was not a contributory factor in the Parole Authority's decision to parole the offender. Nevertheless, there was significant coverage of the person's transgender status in the Australian press. 4. On 14 November 2020 the Daily Telegraph published a letter to the editor which was as follows: "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!" 1. The applicant complained to the Australian Press Council ('the respondent') about publishing this letter, stating that publication breached the standards of practice of the Australian Press Council, particularly General Principle 6, which requires a publication to take reasonable steps to avoid causing or contributing materially to substantial offence, distress or prejudice, or a substantial risk to health or safety, unless doing so is sufficiently in the public interest. 2. The respondent dismissed the complaint, stating as follows: "The Council notes that publications must comply with the Council's Standards of Practice in relation to letters they select and edit for publication, while acknowledging that letters to the editor are very much an expression of the letter writer's opinion. The Council does however recognise that passive or incidental promotion of violence and prejudice against transgender persons, including in the guise of humour, could breach the Council's standards of Practice and those choosing and editing letters for publication should be aware of the need for care. The Council considers that in this instance, rather than being a serious call to violence, the letter very much reflects the strong disapproval of the writer at the crimes of the convicted person and what the letter writer considers in the circumstances to be an unjust use of community money to fund the person's transition. The Council also considers that the letter was intended as morbid humour and most readers would recognise this. Whilst some readers would regard the letter as offensive, distressing and prejudicial, the Council considers that in context it did not reach the level of the publication failing to take reasonable steps to avoid substantial offence, distress or prejudice. Accordingly, the Council considers that General Principle 6 was not breached."