Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Barry v Futter [2011] NSWADT 205 Hearing dates: 18 May 2011, 12 August 2011 Decision date: 30 August 2011 Jurisdiction: Equal Opportunity Division Before: R J Wright SC, Judicial Member A Lowe, Non-Judicial Member J Newman, Non-Judicial Member Decision: The Tribunal orders that: 1.the complaint be dismissed in whole. Catchwords: Discrimination - Transgender, Vilification - Transgender Legislation Cited: Anti Discrimination Act 1977 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Interpretation Act 1987 (NSW) Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) Transgender (Anti-Discrimination and other Acts Amendment) Act 1996 (NSW) Racial Discrimination Act 1975 (Cth) Cases Cited: McLeod v Power (2003) 173 FLR 31 Veloskey v Karagiannakis [2002] NSWADTAP 18 Category: Principal judgment Parties: Malcolm Jay Barry (Applicant) Heidi Futter (Respondent) Representation: M Barry (Applicant in person) No appearance (Respondent) File Number(s): 111006 REasons for decision 1EQUAL OPPORTUNITY DIVISION (R J WRIGHT SC, Judicial Member, A LOWE, Non-Judicial Member, J NEWMAN, Non-Judicial Member): This proceeding concerns a claim of unlawful transgender vilification under s 38S of Anti-Discrimination Act 1977 (NSW) (the ADA ) brought by the Applicant ( Mr Barry ) against a fellow employee, the Respondent ( Ms Futter ). 2At the relevant time in June 2010, both Mr Barry and Ms Futter were employed by Statewide Traffic Control Pty Ltd ( Statewide Traffic Control ), which provided traffic management and traffic planning services in situations where construction work was being carried out on or near roadways. 3Mr Barry's claim was only against Ms Futter and not against Statewide Traffic Control and, accordingly, there could be no claim in these proceedings of discrimination by an employer under s.38C of the ADA. Nor were there circumstances in the present proceedings that could have attracted the operation of any of the other discrimination provisions of divisions 2 or 3 of Part 3A of the ADA. Hearings 4The matter first came on for hearing before the Tribunal on 18 May 2011 but, on that occasion, Ms Futter did not appear and the Tribunal was concerned that neither the report of the President of the Anti Discrimination Board nor any other relevant document relating to the application had been served on Ms Futter. As a result, the hearing did not proceed on that day and the matter was stood over for directions to a later date to enable service to be effected by Mr Barry, at the direction of the Tribunal. 5The matter came on for hearing again on 12 August 2011 before the Tribunal. On that occasion, Mr Barry appeared representing himself but there was no appearance by or on behalf of Ms Futter. Service of Documents 6In the absence of any appearance by Ms Futter after she had been formally called, the Tribunal required Mr Barry to prove service of the documents, by which the application came before the Tribunal. 7In this regard, Mr Barry gave oral evidence that shortly after the hearing on 18 May 2011, he obtained access to the documents produced by Statewide Traffic Control in response to a summons issued by the Tribunal in the matter. Those documents included various addresses for Ms Futter and also a yellow post-it note which indicated that a friend of Ms Futter's known as Maydar or Maider, had a certain mobile telephone number and lived at a certain address. As a result of what he had been told while he, Ms Futter and Maydar were all working at Statewide Traffic Control, Mr Barry believed that Ms Futter and Maydar shared a house. 8Shortly after reading the post-it note on 18 May 2011, Mr Barry telephoned Maydar's mobile number and spoke to her. Without identifying himself, he had a conversation with Maydar: Mr Barry:Does Heidi Futter live with you, I'm trying to find her? Maydar:Yeah, she does. Mr Barry:Does she still live with you? Maydar:Yeah, she does. 9Maydar then identified her address by a street number and street name, which was the same as the address on the yellow post-it note which had been produced in answer to the summons. 10A short time after, Mr Barry addressed a large envelope to Ms Futter at the address on the yellow post-it note which had been confirmed by Maydar in the telephone conversation. Included in the material contained in the envelope was a copy of the President's report in relation to his complaint, which comprised 26 pages. Mr Barry then sent the documentation in that envelope by registered post, person to person, to Ms Futter. Mr Barry put before the Tribunal copies of the registered post receipt and a copy of the record from Australia Post which indicated that the envelope had been signed for and received some days after it had been posted. 11Mr Barry also produced a copy of the relevant portion of the Australia Post Procedures Manual relating to registered post. This indicated that for an envelope sent by registered post, person to person, except in certain circumstances which are not relevant to the present case, the envelope would only be handed over to the named recipient after being signed for by that person. 12The Tribunal accepts Mr Barry's evidence concerning service of the documentation as it was consistent with the records provided by Australia Post and the Tribunal formed the view that Mr Barry was an honest and reliable witness. 13The Tribunal therefore finds that Mr Barry sent a copy of the President's report by which in effect the proceedings in the Tribunal were instituted by pre-paid post to the residential address of Ms Futter last known to Mr Barry. In addition, the Tribunal is satisfied that Ms Futter signed for the envelope containing the documents as recorded in the Australia Post record. 14S.138 of the Administrative Decisions Tribunal Act 1997 (NSW) (the ADTA ) provides, in part: 1) Service of documents and giving of notices For the purpose of this Act, a notice or document may be given to a person (or a notice or document may be served on a person): a) In the case of a natural person - by: i)delivering it to the person personally, or ii)leaving it at, or by sending it by pre-paid post to, the residential ... of the person last known to the person serving the document. 15In the circumstances, the Tribunal is satisfied that the President's Report was served on Ms Futter in accordance with s 138 of the ADTA on the date on which it was signed for as indicated in the Australia Post record. 16In addition to the material served by Mr Barry, the Registrar of the Tribunal also caused to be sent to Ms Futter by pre-paid registered, person to person, post a letter from the Registrar dated 17 June 2011 advising her that the matter had been set down for hearing on 12 August 2011 at 10:00am. There was in evidence before the Tribunal the Australia Post record of that letter having been signed for and received by the named recipient. 17Thus, the Tribunal is satisfied that the documentation constituting the proceeding and notice of the final hearing of the matter have been served on Ms Futter in accordance with s.138 of the ADTA and that the Tribunal has ensured that Ms Futter has been given a reasonable opportunity to present her case and to make submissions as required by s 70 of the ADTA. 18The Tribunal now turns to deal with the substance of Mr Barry's claim. The Complaint Evidence and the Facts 19Mr Barry complained to the Anti-Discrimination Board of New South Wales by a complaint form dated 29 August 2011. Ms Futter did not respond to the Board's requests or notice to respond and the President referred the matter to the Tribunal. The President's Summary of Complaint was filed in the Tribunal on 24 January 2011. Evidence and the Facts 20The Report of the President of the Anti-Discrimination Board in relation to Mr Barry's complaint was in evidence before the Tribunal. In addition, Mr Barry and Mr Bianco gave oral evidence, Mr Bianco by telephone. The Tribunal accepts Mr Barry's and Mr Bianco's evidence and notes that it was substantially consistent with the material attached to the President's report. 21Mr Barry is a female to male transgendered person and on the weekend of 19-20 June 2010, he was working as the crew leader of a traffic control crew responsible for traffic management in relation to construction work being carried out under the railway bridge at Narwee in Sydney. 22Mr Barry's crew were on the night shift from 7:00pm to 7:00am. Traffic management involved controlling the flow of traffic on Hannans Road and Broadarrow Road on the northern side of the road underpass under railway bridge and on Bryant Street and Broadarrow Road on the southern side of the road underpass. 23At the end of the night shift at about 7:00am on Saturday 19 June 2010, the day crew, which was to relieve Mr Barry's crew, arrived at the work site. That crew consisted of a supervisor, Craig, and five other workers including Ms Futter, Maydar, Matthew Bianco, Zak Russell and one other. Mr Barry had not met any of the relief crew before except Mr Russell, who was a friend of Mr Barry's. 24As part of the change over of crews, the crew leaders exchanged details and Mr Barry wanted to get all of the relief crew members to come over for a briefing. To do this, he radioed to one of his crew members, Ms Natasha Byers, who is also his girlfriend, to hurry the members of the relief team along to the briefing. Ms Byers radioed back to Mr Barry that there were two women coming over but not in any rush. He asked her to ask them to hurry up. As it transpired, these two women were Ms Futter and Maydar, whom Mr Barry had not met before. Eventually, the two women arrived for the briefing but Ms Futter was speaking crudely to Maydar and Mr Barry did not introduce himself. 25After handing over to the day shift crew, Mr Barry drove around in his ute with Ms Byers to each of the positions that members of his crew had been occupying on the four major roads to ensure that they had all been relieved and had been able to go home. This was about 7:30am. 26Driving around, Mr Barry reached the place where one of his crew members, Miriam, was posted. She was not returning for the night shift on the following night and accordingly, she required a docket signing her off from the job. It was Mr Barry's responsibility to give her such a docket. Mr Barry had been aware that he did not have any dockets left in his docket book and had requested his supervisor to provide him with a new docket book when he collected his ute before commencing the night shift at 7:00pm on 18 June 2010. Unfortunately, the new docket book had not been provided. 27Mr Barry went over to speak to Miriam, who was with Ms Futter and Maydar. Mr Barry told Miriam that he would make sure that she would get paid even though he did not have the paperwork for her at that time. Then he said to Ms Futter and Maydar: Unless you two girls have a docket book that I can use. 28It appeared to Mr Barry that Ms Futter and Maydar were looking at him angrily and Ms Futter yelled in response to his inquiry: You're fucking night shift, you should have your own fucking docket book. 29Mr Barry was shocked. He replied: Where do you get off speaking to someone like that? Who do you think you are? 30As Mr Barry moved away, he yelled back: Get fucked. 31When he arrived home, Mr Barry called up his manager, Claudia, and reported the incident. 32The next incident which took place in the middle of the afternoon on Saturday 19 June 2010 did not involve Mr Barry as a participant but was a conversation between Ms Futter and Mr Bianco. Mr Bianco was a member of the day shift crew who worked at the Narwee underpass controlling the traffic on Saturday 19 June 2010. 33In the middle of the afternoon on that day, Mr Bianco was at his traffic control post outside the Narwee Hotel. He was standing in the middle of the road which had been closed to traffic and was not on the footpath. There were no other members of the Statewide Traffic Control crew or any of the construction workers near Mr Bianco at that time. 34Ms Futter came up to Mr Bianco and spoke with him. Ms Futter and Mr Bianco were fellow employees of Statewide Traffic Control who were working as part of the same crew. At one point in the conversation, Ms Futter was complaining about a 'trannie', to use Mr Bianco's expression, which we take to refer to a transgender person. Ms Futter appeared to Mr Bianco to be upset that a 'trannie' was working for Statewide Traffic Control at the Narwee site. Mr Bianco described Ms Futter as speaking firmly and aggressively at this time and she seemed to be fired up about something. Ms Futter went on to say to Mr Bianco: It's a fucking trannie taking hormones but still got tits and a box. I'll fucking punch its head through its own car window, cunt. 35Mr Bianco did not know about whom Ms Futter was speaking. He just ignored it and let it go. Throughout that conversation, Mr Bianco was the only person around to hear what Ms Futter said. There were no other persons within hearing range. There were no cars passing by, as the road was closed. Mr Bianco said there might have been cars pulling in or out of the hotel car park but he couldn't remember if that was the case or if anyone was standing outside. 36Some couple of weeks later, Mr Bianco worked with Mr Barry and Ms Byers on night shifts. He was joking about the fact that some of the persons with whom they work at Statewide Traffic Control were, as Mr Bianco described it, "idiots". As an example, Mr Bianco mentioned the conversation he had had with Ms Futter to Ms Byers. The only other person Mr Bianco told about his conversation with Ms Futter was his supervisor at Statewide Traffic Control when he provided to Statewide Traffic Control his signed statement, which is included in the material in the President's report. 37Later on Saturday 19 June 2010 at about 6:30pm, Mr Barry and Ms Byers arrived at Narwee as part of the night crew to take over from the day shift crew. Mr Russell, a member of the day shift crew, was stationed near the corner of Broadarrow Road and Mercury Street, Narwee. Mr Barry parked the ute and he and Ms Byers got out. Ms Byers spoke to Mr Russell while Mr Barry was getting equipment from the ute. Ms Byers told Mr Barry that Ms Futter and Maydar had made comments to Mr Russell about Mr Barry being transgender. Apparently Mr Russell said that Ms Futter had come over by herself and said to him that Ms Byers was a whining bitch and Ms Futter did not think that Mr Barry's and Ms Byers' relationship was right and she didn't care if people were gay, straight or anything else, but "it and its girlfriend thing is wrong", referring to Mr Barry and Ms Byers. 38It should be noted at this point that the Tribunal asked Mr Barry specifically whether he was relying on what Ms Futter had allegedly said to Mr Russell as part of his vilification claim. Mr Barry expressly denied relying on this conversation as part of that claim and said that he only relied upon it as a lead up to what followed. Given that neither Mr Russell nor Ms Byers gave evidence concerning this incident, the Tribunal was content for Mr Barry to proceed on this basis. 39Mr Barry was upset as a result of what he had been told Ms Futter had said. As a result, he went down Broadarrow Road to Bryant Street to speak to Ms Futter. Ms Futter and Maydar were sitting together in a Statewide Traffic Control ute about 50-60 metres down Bryant Street and as Mr Barry approached, Ms Futter got out of the passenger side door, although Mr Barry did not know at this stage which of the two women was Ms Futter. 40When he was a significant distance away from the two women, considerably more than 15 metres, he yelled out: Who's been talking about my fucking personal life at work? 41It was at this point that Ms Futter stepped out of the passenger side door. When they were about 15 metres apart, Ms Futter said: What's your problem? What are you talking about? 42Mr Barry then yelled a second time: Who's been talking about my fucking personal life at work? 43Whilst this was going on, Ms Byers had been walking down next to him or just slightly behind Mr Barry on his left. When Mr Barry came face to face with Ms Futter, they were about 2 metres apart. Mr Barry said: Who's been talking about my personal life? Zak told me everything. What is your problem? Why do you need to talk about me like that? 44Ms Futter came up to Mr Barry and pointed two fingers in his face and moved them back and forth so that they were only about 10-15cm from his face and said: Where are you getting your facts from? Look at yourself. You are a fucking idiot. 45Mr Barry pushed Ms Futter's hands out of his face and said: I'll sue you. That's not right. You can't out people at work like that. 46Ms Futter yelled back: Where are you getting your facts from? 47Mr Barry was speaking firmly but not yelling when he was close to Ms Futter but she was angry and yelling. At the same time, Ms Byers and Maydar were also having an argument and standing quite close to Mr Barry and Ms Futter. Ms Byers: Who was calling me a whining bitch? 48Maydar said she didn't know. At this point, Mr Barry said to Ms Byers: Let's go, this is getting nowhere. 49That same night, Mr Barry reported this incident to his supervisor, Claudia, by telephone. 50Claudia informed Mr Barry that she would pull Ms Futter in and that Mr Barry should not worry about it. Within the next couple of days, Mr Barry, Ms Byers and Mr Russell were asked to write out an account of what occurred and provide it to their employer. 51It appears that Ms Futter complained to the Police about Mr Barry's conduct and as a result Mr Barry was charged with assault. When this occurred, Mr Barry's understanding was that the employer decided that it should not deal with the matter further until the Police charges had been dealt with. The Tribunal notes that it was informed that the assault charge was eventually dismissed. 52Mr Barry complained about this decision by the employer and said, in an email, to the Human Resources Department of Statewide Traffic Control that it was not an adequate response to let the Police deal with it because the discrimination element also needed to be resolved. 53The Human Resources Department accepted that this was the case and required all of the statements which had previously been provided to be signed by the various witnesses. In addition, Mr Barry asked Mr Bianco to provide a signed statement at about this time. All of the signed statements are included in the President's Report. 54As Mr Barry understands it, Ms Futter was requested to give her version of events and to come in and discuss the matter with the Human Resources Department but she failed to do so. As a consequence, Mr Barry understands that she was dismissed by Statewide Traffic Control. 55Mr Barry's complaint is that Ms Futter engaged in transgender vilification which was unlawful as a result of the operation of s 38S of the ADA. He relies upon the conversation between Ms Futter and Mr Bianco but does not rely upon any conversation between Ms Futter and Mr Russell, in this regard. 56His conversation or argument with Ms Futter shortly after 6.30 pm on Saturday 19 June 2010 does not appear to contain material that could amount, of itself, to transgender vilification. Ms Futter did say: "Where are you getting your facts from? Look at yourself. You are a fucking idiot." This, however, does not make any reference to Mr Barry's transgender status nor is it necessarily referring to that status. Given what was occurring at the time, it could have been a reference to what Mr Barry was doing and saying. Further, the Tribunal notes that this conversation or argument between Ms Futter and Mr Barry was not identified in the Report of the President of the Anti-Discrimination Board as a basis for Mr Barry's complaint of transgender vilification. 57Accordingly, the Tribunal will determine whether the conversation between Ms Futter and Mr Bianco constituted transgender vilification. Relevant Statutory Provision 58The statutory provision which renders transgender vilification unlawful and which is relied upon by Mr Barry is found in s 38S of the ADA. It provides as follows: 38S Transgender vilification unlawful (1)It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of: (a)a person on the ground that the person is a transgender person, or (b)a group of persons on the ground that the members of the group are transgender persons. (2)Nothing in this section renders unlawful: (a)a fair report of a public act referred to in subsection (1), or (b)a communication or the distribution or dissemination of any matter on an occasion that would be subject to a defence of absolute privilege (whether under the Defamation Act 2005 or otherwise) in proceedings for defamation, or (c)a public act, done reasonably and in good faith, for academic, artistic, scientific, research or religious discussion or instruction purposes or for other purposes in the public interest, including discussion or debate about and expositions of any act or matter. 59In order for s 38S to become operative there must be a " public act " which term is given an inclusive definition in s 38R as follows: 38R Definition In this Division: "public act" includes: (a)any form of communication to the publi c, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, or (b)any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, or (c)the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of: (i)a person on the ground that the person is a transgender person, or (ii)a group of persons on the ground that the members of the group are transgender persons. 60The definition of " transgender person " is found in s 38A of the ADA which provides: 38A Interpretation A reference in this Part to a person being transgender or a transgender person is a reference to a person, whether or not the person is a recognised transgender person: (a)who identifies as a member of the opposite sex by living, or seeking to live, as a member of the opposite sex, or (b)who has identified as a member of the opposite sex by living as a member of the opposite sex, or (c)who, being of indeterminate sex, identifies as a member of a particular sex by living as a member of that sex, and includes a reference to the person being thought of as a transgender person, whether the person is, or was, in fact a transgender person. Elements Constituting Unlawful Transgender Vilification 61In the present case, not only is Mr Barry a person who identifies as a member of the opposite sex by living as a male but also he is a person who was thought of as a transgender person by, amongst others, Ms Futter. Accordingly, the Tribunal finds that Mr Barry was a transgender person for the purposes of the application of s 38S. 62From the terms of s 38S it emerges that unlawful transgender vilification involves the following elements: 1)a public act; 2)which incites; 3)hatred towards, serious contempt for, or severe ridicule of a person; 4)on the ground that the person is a transgender person. 63It is appropriate for the Tribunal to consider each element in turn. A Public Act 64As has been noted, " public act " is given an inclusive definition in s 38R. Where the conduct in question is a conversation, that is communication by speaking directly to another person, s 38R(a) indicates that it will constitute a " public act " only if it is a form of communication to the public. The provisions of s 38R(b) and (c) do not appear to apply where the impugned conduct is communication by speaking. 65In ordinary English usage, communication to the public can be contrasted with a private communication. This suggests that s 38R should be construed so that " public act " does not include a private conversation or communication. Further, given the exclusion of forms of communication referred to in s 38R(a) from the operation of s 38R(b), it should be irrelevant whether or not the spoken communication occurred in a public place, provided it can be properly characterised as a private communication. 66Such an approach to the construction of s 38R is supported by the Second Reading Speech in relation to the Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) by which the definition of " public act " was first introduced into the ADA. By that Act, a new s 20B was inserted into the ADA and it provided a definition of " public act " which is the same as the definition in s 38R, except that in subs (c) the ground referred to relates to race and not to the person or groups of persons being transgender. The Attorney-General in his speech (NSW Parliament, Legislative Assembly 4 May 1989 Hansard p 7489) said: Proposed section 20B of the bill defines the term "public act" for the purposes of the new division. "Public acts" includes spoken and written communications to the public, actions and gestures observable by the public, the wearing and displaying in public of signs and emblems and the distribution of matter to the public with knowledge that the matter vilifies a person or group on the ground of race. The conduct encompassed by the bill is intended to be limited to "public acts" and does not include private communications or other conduct in private. 67When the specific provisions rendering transgender vilification were introduced by the Transgender (Anti-Discrimination and other Acts Amendment) Act 1996 (NSW), the Second Reading Speech (NSW Parliament, Legislative Assembly 1 May 1996 Hansard p 643) simply said: The bill will also provide for the creation of an offence of transgender vilification. This is consistent with existing provisions which make it unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of a person, or group of persons, on the ground of race, homosexuality, or HIV-AIDS. 68This serves to confirm that the similar wording of the definitions of " public act " in various sections of the ADA were intended to have a consistent operation. 69Further support for this approach to the construction of " public act " and, in particular, that a private conversation even in a public place, should not be treated as falling within that expression is also provided by decisions under federal anti-discrimination legislation. The Racial Discrimination Act 1975 (Cth) contains an anti-vilification provision in s 18C which provides: (1)It is unlawful for a person to do an act, otherwise than in private , if: (a)the act is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or a group of people; and (b)the act is done because of the race, colour or national or ethnic origin of the other person or of some or all of the people in the group. (2)For the purposes of subsection (1), an act is taken not to be done in private if it: (a)causes words, sounds, images or writing to be communicated to the public; or (b)is done in a public place; or (c)is done in the sight or hearing of people who are in a public place. (3)In this section: " public place " includes any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place. 70Instead of the requirement that there be a " public act " as found in the ADA, the federal legislation requires that the act be done " otherwise than in private " and s 18C(2) provides instances of when an act is to be taken not be done in private. Nonetheless, as the purposes of the ADA and the federal Act are essentially the same, the approach taken in application of the federal Act can give some assistance, noting however the differences in language, in construing the ADA. In the Second Reading Speech relating to the federal Act (quoted by Brown FM in McLeod v Power (2003) 173 FLR 31 at [45]), the Minister said: The bill does not prohibit people from expressing ideas or having beliefs, no matter how unpopular the views may be to many other people. The law has no application to private conversations." 71Moreover, Brown FM in McLeod v Power (2003) 173 FLR 31 at [50] and [51] held: 50.Thirdly, the applicant must establish that the act complained of was done "otherwise than in private". In my view it is not sufficient that the applicant establish that the act complained of occurred in a public place. He needs to establish that it did not occur in private. I accept the interpretation of section 18C(2) provided by Korczac ([[2000] EOC 93-056]) and that the various matters set out in sub section (2) are examples that may fall within the definition but are not in themselves definitive. 51.A private conversation does not become a public one merely because it takes place in a public street or in a place to which members of the public have a right to admission or access. Again, whether or not an act occurs "otherwise than in private" depends on the context of the situation and must be interpreted from the overall intention of the legislature in enacting Part IIA of the RDA. That purpose was to prohibit and provide a civil remedy for behaviour based on racial hatred and to prevent persons being threatened because of their particular racial, colour, national or ethnic origins. (underlining added) 72The purpose of the vilification provisions of the ADA, which include vilification on transgender grounds, is to reduce the incidence of violence and abuse, whether physical or verbal, against certain persons or groups, without at the same time unduly restricting the rights of members of society to hold and express views including those which are unpopular or which some might find offensive. This consideration also supports construing " public act " in s 38S, in the light of s 38R, as applying to spoken communications to the public but not to private conversations or discussions even if they occur in a public place. 73Accordingly, the Tribunal concludes that "public act " in s 38S, having regard to the provisions of s 38R, does not include a private conversation even if that conversation takes place in a public place. Whether a spoken communication amounts to a private conversation or a communication to the public will depend upon all the circumstances in which the communication occurs. 74Whilst it is not possible to identify in advance all the types of circumstances that may be relevant in determining whether a communication by speaking is public or private, there are a number of factors that may indicate that the communication is to the public rather than a private communication and that might be relevant in the present case. First, where a speaker addresses an audience irrespective of whether there is any pre-existing relationship between the members of the audience and the speaker, the communication is more likely to be to the public. In that case, it is often appropriate to conclude that the speaker is addressing them in their capacities as members of the public and not because of their relationship. By way of contrast, speaking only to a family member, friend or acquaintance, fellow employee or co-participant in a joint activity, in that capacity, may be more likely to involve a private communication rather than a " public act ". 75Secondly, the size of the audience may also indicate whether the communication is public or private. A speaker addressing a group of people is more likely to be communicating to the public than a speaker who is having a one on one conversation with another person. Nonetheless, a person who speaks to a series of people individually and seeks to communicate essentially the same message may be seen as speaking to a wider audience and not just engaging in private conversations. 76Thirdly, the nature of the communication, the intentions of the parties to the communication and the circumstances giving rise to it may also give some indication of whether the communication is properly characterised as a public communication or a private conversation. 77In the present case, the relevant conduct was one conversation between Ms Futter and Mr Bianco. They were work colleagues who were both part of the day shift crew who were managing the traffic while construction work was carried out on the Narwee railway underpass. Ms Futter was talking to Mr Bianco about another employee who worked on same site as they did. There was no other person who could hear, or even overhear, their conversation. There was no other conduct observable by any member of the public which would have conveyed to such a member of the public the content of the conversation between Ms Futter and Mr Bianco. All that would have been observed was a conversation between two members of the traffic control crew. 78In these circumstances, the Tribunal concludes that what occurred was a private conversation between Ms Futter and Mr Bianco. There is nothing to indicate that Ms Futter was intending to express her views to the public at large, as opposed to talking to a fellow worker about a co-worker. Apart from the fact that the conversation occurred in a public place, there were no other factors that would point to what Ms Futter said being a communication to the public. Accordingly, the Tribunal finds that Ms Futter's conduct did not amount to a " public act " within the meaning of s 38S, having regard to s 38R, of the ADA. 79This finding would be sufficient to dispose of the proceedings. Nonetheless, in case we are wrong in that conclusion, the Tribunal will briefly address the other relevant elements of transgender vilification. Incitement 80If there was, contrary to our finding above, a " public act " by Ms Futter constituted by her conversation with Mr Bianco, the next issue is whether what Ms Futter said incited hatred, contempt or ridicule. 81It has been held that: (a)The word "incite" in this context has its ordinary English meaning, namely, to urge, spur on, stir up, animate, stimulate or prompt to action - Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; (b)It is not sufficient if words merely convey hatred or express serious contempt or severe ridicule - Veloskey v Karagiannakis [2002] NSWADTAP 18 at [21]; (c)Section 38S does not require any intention to incite on the part of the respondent to the complaint, nor is it necessary that the complainant prove that anyone was actually incited by the public act to respond in the requisite manner - Veloskey v Karagiannakis [2002] NSWADTAP 18 at [24] and [25]; (d)What is required is that the public act is capable, in an objective sense, of inciting others to feel hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of their being transgender - Veloskey v Karagiannakis [2002] NSWADTAP 18 at [26]; (e)The question therefore to be addressed is could the ordinary, reasonable hearer understand from the public act that he or she is being incited to hatred towards or serious contempt for, or severe ridicule of a person or persons on the ground of their being transgender? The question is not, could the ordinary reasonable reader reach such a conclusion after his/her own beliefs have been brought into play by the public act? - Veloskey v Karagiannakis [2002] NSWADTAP 18 at [28]. Hatred, Serious Contempt or Severe Ridicule 82What must be incited, for the purposes of s 38S is " hatred towards, serious contempt for, or severe ridicule of " transgendered persons. 83In Veloskey v Karagiannakis [2002] NSWADTAP 18 at [29], it was held (albeit in the context of s 20C of the ADA): 29The words "hatred", "contempt" and "ridicule" are to be given their ordinary English meaning, but the latter two are qualified by the adjectives "serious" and "severe" respectively. Thus, in the context of s 20C, the public act must be capable of inciting intense dislike or hostility towards a person or group of persons, or grave scorn for a person or group of persons, or extreme derision of a person or group of persons: [citations omitted]. The use of the adjectives "serious" and "severe" call for an evaluative judgment on the part of the tribunal of fact, within a broad discretion: Tenzin Dhayakpa v The Minister for Immigration and Ethnic Affairs (1995) 62 FCR 556. On The Ground That The Person Is A Transgender Person 84Finally, there must be a causal connection between the reactions aroused by the communication to the public and the fact that the person is a transgender person. Adapting what the Appeal Panel of the Tribunal said in Veloskey v Karagiannakis [2002] NSWADTAP 18 at [30] to the provisions of s 38S, the fact that the person is a transgender person must be a substantially contributing factor to the incitement. Application of the Principles on the Assumption of a "Public Act" 85In the present case, there is some force in the argument that what Ms Futter said was doing no more than conveying her hatred or contempt for the transgender person about whom she was speaking. This would be particularly so if the comments were made in a private conversation. On the assumption, however, that the comments were made in a communication to the public, the Tribunal is of the view that Ms Futter's comments can be seen as going further than merely expressing her private views. Her words can be seen as expressing and encouraging the view that the transgender person of whom she was speaking was in reality no more than hormones and some body parts rather than being a complete human being entitled to the dignity and respect that that entails. Further, the comments about punching that person's head suggested that such a transgender person could be physically abused without any other reason for so doing beyond their being transgender. In total, the comment could be seen as tending to encourage members of the public who heard the comments to treat transgender persons as less than fully human and to suggest that physical abuse of such persons was justifiable. 86If there were a " public act ", the Tribunal is satisfied for the reasons set out in the previous paragraph that what Ms Futter said was capable, in an objective sense, of inciting others to feel hostility or a strong aversion to or scorn or contempt for the person on the ground of their being transgender. The likely response to the terms in which the views were expressed was also such as to be capable of being characterised as serious, harsh or extreme. 87As a result, the Tribunal would conclude, were it required to decide this matter (and it is not), that the conduct was capable of inciting hatred towards and serious contempt for a person on the ground that the person is a transgender person. Conclusion 88The Tribunal has found that Ms Futter's spoken communication with Mr Bianco did not constitute or involve a " public act " within the meaning of s 38S. There was no other relevant conduct that was relied upon as constituting transgender vilification. 89Accordingly, the Tribunal concludes that the complaint of transgender vilification has not been made out and the Tribunal proposes to order under s 108(1)(a) of the ADA that the complaint be dismissed in whole. ********** 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: 30 August 2011