Anti-Discrimination Decisions

[2008] TASADT 07

Catchwords:

Equal opportunity - Articles in newspaper relating to Inquiry before Anti-Discrimination Tribunal - Whether articles emphasised complainant's sexuality and gender amounting to discrimination, prohibited conduct, inciting sexual harassment and victimisation - Anti-Discrimination Act 1998 (Tas) ss3, 14, 15, 16, 17, 18, 19, 20, 22, 55(c)(ii), 99(i)

Representation:

Reasons For Decision

1. This decision relates to an Inquiry that has been held in relation to a complaint under the Anti-Discrimination Act 1998 (the "Act"). The complaint involved allegations against Davies Bros Pty Limited as the printer and publisher of the The Mercury Newspaper and concern publications in The Mercury covering the Complainant’s case against Metro Tasmania Pty Limited (referred to as the Metro Case) before the Anti-Discrimination Tribunal. The publications cover the period 11 March 2004 – 8 May 2004 and also 24 December 2004 and follow the Inquiry conducted by the Tribunal.

2. In essence, it is the Complainant’s case that the publications contain gross inaccuracies and a biased focus and emphasis and amount to breaching the Act as discrimination, prohibited conduct, inciting hatred as well as sexual harassment and victimisation. The coverage emphasised the Complainant’s sexuality when that was not the focus of the Tribunal Inquiry which concerned workplace discrimination by management on the basis, principally, of gender.

3. The Complainant’s case is that the style and content of the publications relating to her case before the Tribunal portrayed her in a way that was unfair, demeaning and humiliating and that there was a theme of representing her as a lesbian who was sexually predatory in relation to other women in the workplace and who was pursuing a wholly outrageous workplace claim. These articles reinforced negative stereotypical views of homosexuals and had the effect of distracting attention from the important issue of workplace discrimination.

4. The Complainant asserts that she was treated in this way because of her attributes of sexual orientation, gender and relationship status and that people who are not female homosexuals would not have been treated as she was by the Respondent in the various publications under consideration. It is noted that as part of the Complainant’s case she has objected to the word "lesbian" in the context of the publications. Noting that objection, the Tribunal has adopted the term "female homosexual" rather than lesbian.

5. The complaint relates to the following publications:

• Day Bill entitled "Lesbian Bus Furore", dated 11 March 2004;
• Article entitled "Lesbian Bus Love Triangle - Woman Driver’s Affairs with Work Mates Girlfriend Ends in Legal Fight", (pages 1 and 2) dated 11 March 2004;
• Day Bill entitled "Metro Lover Tells of Hate", dated 12 March 2004;
• Article entitled "Metro Lover Tells of Hatred", (pages 1 and 2) dated 12 March 2004;
• Letters to the Editor with the heading "Brickbats and bouquets" dated 12 March 2004;
• Article entitled "Gays Want Work Abuse Probe", dated 13 March 2004;
• Article entitled "Call to test Metro Drivers", dated 13 March 2004;
• Article entitled "Metro Worker Tells of Jokes", dated 16 March 2004;
• Article entitled "Metro Lesbian Lovers Antagonised Older Drivers, Tribunal Told - Males Ribbed Over Romances", dated 6 April 2004;
• Article entitled "Bus Driver Used Drugs at Work, Tribunal Told", dated 7 April 2004;
• Article entitled "Metro Case for Conciliation Bid", dated 9 April 2004;
• Article entitled "Bus Driver Talks Fail", dated 21 April 2004; and
• Article entitled "Metro Denies Bias Against Homosexuals", dated 8 May 2004;
• Article entitled "Lesbian’s Payout for Toilet Graffiti", dated 24 December 2005.

6. The Complaint was lodged with the Anti-Discrimination Commissioner (the "Commissioner") on 6 May 2004 and investigated by the Commissioner. It was referred to the Tribunal for Inquiry by the Commissioner with a referral report dated 21 April 2005.

7. A number of directions conferences were held by the Tribunal commencing in August 2005 in order to address matters relating to the Inquiry. Mr Zeeman represented the Respondent and the Complainant was unrepresented as was the case at Inquiry.

8. At the commencement of the Inquiry a suppression order relating to the identity of certain individuals was made pursuant to section 88(1)(c) of the Act. That order is current and details of that order appear at the end of this decision.

9. The Inquiry then proceeded on 12 days and took a period of 8 months to conclude. There were various reasons why the matter did not proceed on consecutive dates or within a confined period of time as would ordinarily be the case including the fact that the case took considerably longer than anyone involved in the case anticipated and matters regarding availability and the readiness of the Complainant to proceed, the need for preparation time and the availability of one of the Respondent’s witnesses.

10. The Complainant’s case consisted of her evidence relating to a number of matters including background to the Metro Case, evidence about the newspaper reports the subject of the complaint in this case identifying inaccuracies in the evidence and incorrect emphasis. She also gave evidence about other events at the time of the Metro Case including an incident when the Respondent’s photographer attended her caravan where she lived and took a photograph of her outside her caravan which was then published and a conversation with a reporter, Ms Heather Low Choy, outside the hearing on the first day of the case and an appointment she made to see the Editor about the coverage of her case. The Complainant’s evidence was supplemented by a written document (C6) which provided additional information in relation to The Mercury reports and the history of events.

11. The Complainant also gave evidence about the impact of the Respondent’s conduct upon her and her standing and reputation and how she felt about the coverage and depression and anxiety suffered by her. The details of the effect of the Respondent’s coverage of her case included details of the Complainant’s background as a golf professional and were summarised in a document she handed to the Tribunal (C17) and supplemented by evidence she gave to the Tribunal. A medical report from Dr Neuberger (C19) was part of the Complainant’s case referring to consultations in relation to her stress reaction to her ongoing court cases against Metro and the proceedings in this case involving the Respondent. In particular, there was a reference to some significant aggravations of the Complainant’s anxiety disorders during the period close to the court cases but that as at the date of the report (11 July 2006) the Complainant’s condition was stabilising with medication.

12. As part of the Complainant’s case she called Rodney Croome, an advocate in relation to gay rights since 1988, to give evidence about the Respondent’s coverage of the Metro Case and articles published on 11 and 12 March 2008. A summary of Mr Croome’s evidence is as follows:

"As someone who has advocated for gay and lesbian human rights for 18 years at a local, national and international level, I have extensive experience of the impact of media reporting on community attitudes.

Because of this experience I was disappointed by the slant given to Ms Brinkley’s case in some of The Mercury’s reports*.

The Mercury’s emphasis on those aspects of evidence dealing with sexual relationships reinforced prevalent myths about homosexual women as highly sexualised, sexual predators, and sexually irresponsible.

Not only did such reporting distract from the important issues of workplace discrimination at stake. It also re-inforced the vulnerability of homosexual women.

Recent local and national research makes it clear that homosexual women are more likely than their heterosexual peers to experience self-loathing, social isolation and ostracism, and workplace and educational discrimination. This in turn leads to higher rates of drug and alcohol abuse, interpersonal conflict, and suicide ideation, especially amongst younger and older women, women living in rural areas, and those without close links to the lesbian community**.

I believe it likely that these risk factors were exacerbated by the Mercury’s reporting of Ms Brinkley’s case in March 2004.

I also believe this reporting to be inconsistent with the Mercury’s usual policy of balanced and fair reporting on homosexual issues.

*I understand Ms Brinkley has presented in evidence comments I made on my website about the offending Mercury reports at the time these reports were published. I confirm that I am the author of "A gossipy place", Sep 02, 04; "10 most eligible", Jul 06, 04: "Metro’s denial", May 08 04; "Tassie’s own Oscar Wilde?", Apr 07, 04; and, "A touch of the Sun", Mar 19, 04.

**The research which backs these assertions includes including the Hobart Women’s Health Centre study into lesbian health (Murray and Dunsford 1999), the Tasmanian Health Department’s LGBT health analysis (Blanche et al 2003), and the Australian Research Centre in Sex, Health and Society’s Private Lives report (Pitts et al 2006)." (exhibit C7)

13. Further, Mr Croome gave evidence referring to publications supporting the "risk factors" experienced by lesbian women and the way in which those factors are exacerbated by sensational reporting reinforcing anti-lesbian stereotypes:

"To back up this claim I refer to the following publications.

1. In its 1992 publication, "Discrimination - the other epidemic", the Anti-Discrimination Board of NSW states that, "Anti-gay violence is encouraged by public vilification of gay men, lesbians and people with HIV".

2. In its 1995 publication, "Out of the Blue: a survey of violence against gay and lesbian people in Sydney", the NSW Police Service states that perpetrators of anti-gay violence often cite the hate speech of public figures to justify their action.

3. According to the 1999 Working It Out report into sexual minority youth in NW Tasmania, fairer reporting of the issues facing gay people has led to a reduction of intolerance and ignorance in that part of the state.

Further to the risk factors referred to above, I have enclosed,

1. a summary of findings from Tasmanian research not yet submitted to the Tribunal which shows high levels of violence against same-sex attracted people, and

2. a table comparing Tasmanian and national statistics for abuse and violence against gay and lesbian people. This table shows that Tasmania’s statistics are consistently higher.

Further to the stereotypes referred to above, as well re-inforcing negative and unfounded stereotypes of lesbians as sexual predators, the Mercury’s reporting of Ms Brinkley’s case also re-inforced stereotypes of lesbians as excessive and irresponsible users of drugs and alcohol.

Lastly, a point not made in my original statement but worthy of note, is that the treatment of Debra Brinkley’s case by the Mercury may have the effect of deterring other citizens who face discrimination from seeking redress. They may fear that they too will have their allegations trivialised, sensationalised and turned against them." (Addendum to Statement of April 12, 2006, to the Anti-Discrimination Tribunal in the case of Brinkley v The Mercury exhibit C8)

14. Some factual matters have been agreed and these are set out in a memorandum:

"1. Debra Brinkley commenced employment as a bus driver with Metro Tasmania on 29 July 1998. She last performed active duties with Metro Tasmania on 15 February 2000.

2. On 28 March and 24 July 2000 Ms Brinkley lodged complaints with the Anti-Discrimination Commission ("the Commission") alleging unlawful discrimination due to her gender and/or her sexual orientation while she was working with Metro Tasmania.

3. The Commission investigated the complaints and referred them to the Anti-Discrimination Tribunal ("the Tribunal") in October 2002.

4. In 2004 the Tribunal held hearings in relation to the complaints commencing on March 10, and on other dates including March 11, 12, 15, April 5, 6, 7, 20, May 6 and 7 ("the Tribunal hearings’).

5. Davies Bros Ltd is the printer and publisher of The Mercury newspaper ("the Mercury").

6. The Mercury published articles relating to the Tribunal hearings in 2004 on March 11, 12, 13, 14, 16 and April 6, 7, 9, 21, May 8, and 24 December 2005.

7. On March 12 the Mercury published several letters to the Editor in relation to the report published on March 11.

8. The newspaper publications of March 11, 2004 entitled "Lesbian Bus Love Triangle" and of March 12, 2004 entitled "Metro Lover Tells of Hatred" were also published by Davies Bros Ltd electronically on its website.

9. Late in the afternoon on 3 May 2004, Debra Brinkley attended the offices of Davies Bros Ltd with Jamie Ronald Edgar and Gary Watson and signed their names in the visitor’s book in the reception area. At that time Debra Brinkley asked to see the Editor and after a few minutes an employee of Davies Bros Ltd spoke to her at which time Debra Brinkley indicated that she wished The Mercury to stop reporting the Tribunal hearings in a manner which Ms Brinkley described as "sensationalist propaganda". At the time Ms Brinkley also indicated to that person that she would make a claim to the Anti-Discrimination Commissioner about the manner of the reporting."

15. A significant matter of dispute between the parties is the accuracy of the Respondent’s reporting of the Metro case and the related question of whether the reports are a fair and balanced account of the evidence.

16. In essence, it was the Respondent’s case that the articles that are the subject of these proceedings were an accurate report of the evidence given in the Metro case before the Tribunal. According to the Respondent, the accuracy of the reports is revealed by a consideration of the transcript which shows that the content of the reports is supported by the evidence and that there was an appropriate emphasis of the issues in the case from the point of view of a reporter sitting in on the case and having access to the evidence that was presented.

17. Furthermore, it is the Respondent’s case that the balance and accuracy of the reporting is revealed by the evidence that was not reported on and that could have been published that would have shown the Complainant in a worse light than was the situation. It is the Respondent’s case that the Complainant’s conduct and the evidence she gave before the Tribunal added to the sensationalistic nature of the case. The reporting covered in good faith the evidence that was presented. There was evidence about the newspaper’s good record on responsible and fair reporting of gay and lesbian rights issues.

18. The witnesses called on behalf of the Respondent were Ms Heather Low Choy, the reporter who covered the Metro Case, and Mr Garry Bailey, Editor of the Respondent Newspaper. Mr Bailey was on leave at the time of the Metro Case during March but he gave evidence about various matters including the matter of an appointment made by the Complainant. His account was that while an appointment was made for the Complainant to see him she did not keep the appointment.

19. There is a dispute about the detail of the Complainant’s conversation with the reporter, Heather Low Choy, on 11 March 2004 about the Day Bill and it is the Respondent’s case that the account given by Heather Low Choy should be preferred and it showed that the Complainant was not troubled by the reporting of her case.

20. There was also evidence given by Ms Heather Low Choy about a conversation with the Complainant on 10 March 2004 regarding organising a photograph of the Complainant for the next day’s edition of the newspaper.

21. After the evidence was concluded, the Complainant and Mr Hudson made extensive submissions. Written submissions were provided to the Tribunal (see Complainant’s written submissions in two documents – Submissions: Debra Brinkley provided on 10 November 2006 and Part B Document 24 November 2006 and Mr Zeeman’s written submissions totalling 88 pages). Oral submissions were also made.

22. A significant portion of Ms Brinkley’s evidence consisted of her analysis of the reports in question with reference to the transcript and identifying errors, inaccuracies and biases. It is noted that the transcripts are relied on by the parties as an aid with the tapes of the proceedings being the accurate and ultimate record of what transpired in the Metro Case. It is noted that both parties have relied extensively on the transcript of the proceedings.

23. To a large extent Ms Brinkley’s evidence involved an analysis of documents in evidence (the transcript and the publications) of the kind that could be done as part of a closing address. Sometimes evidence was given as part of this analysis about other matters such as the content of her complaints regarding Metro or events extraneous to the Metro Case. Some of the Complainant’s evidence (including the contents of C6) was strictly speaking submissions about evidence, rather than evidence, but it was convenient to allow it to be stated during the Complainant’s case rather than requiring a strict adherence to a distinction between closing address material and evidence.

24. However characterised, Ms Brinkley’s evidence analysing the transcript and the articles was helpful to the Tribunal in understanding her case and her complaint and concerns about the Respondent’s publications. The totality of her evidence and her closing submissions have been taken into account and the Tribunal has used both her evidence and her submissions as a reference in analysing the articles. The comparison of the articles and the evidence in the Metro case is a large part of the Complainant’s case against the Respondent. The Complainant and Respondent are in dispute about what this comparison discloses and whether it is supportive of the Complainant’s case or whether it vindicates the Respondent’s coverage of the Metro case. The Respondent’s case about the articles and the support for their content in the evidence is revealed in cross-examination of the Complainant’s witnesses and Mr Zeeman’s closing address.

25. The Tribunal will analyse the evidence and the articles and articulate the findings in relation to the articles. However, first the Tribunal will identify the relevant parts of the legislation that need to be considered.

26. There is a range of provisions that could apply to the Respondent’s alleged conduct. These provisions have been identified by the Commissioner in the referral report and are as follows: inciting hatred contrary to s19, prohibited conduct (breach of s17) and victimisation of the complainant (s18), discrimination –direct and indirect (sections 14 and 15) and promotion of discrimination and prohibited conduct (s20).

27. Conduct amounts to "inciting hatred" if it satisfies the elements of s19 of the Act which provides as follows:

28. "Sexual orientation" is the relevant attribute in this case and that is defined in s3 of the Act as follows:

29. A "public act" is defined in section 3 of the Act to include:

30. In the event that a person’s conduct amounted to inciting hatred it is not prohibited by the Act if it falls within the "public purpose" exception in s55 of the Act. Section 55 of the Act provides:

31. In this case the Respondent’s position is that its conduct does not amount to inciting hatred but that even if it did it falls under this exception because the press coverage was a public act done in good faith for a purpose in the public interest under s55(c)(ii).

32. In relation to all conduct prohibited by the Act other than inciting hatred the Act only has application if there is conduct that falls within an area of activity set out in s22 of the Act. Section 22 provides:

33. Section 22 was amended in a significant way by Act no. 44 of 2004 commencing on the date of Royal Assent – 16 November 2004. Section 22 in its original form applies to all the publications in this case except the article published on 24 December 2005. The relevant part of the section in that original form stated as follows:

34. The amendment to that section extended the application of the Act to other conduct that is described with reference to the actions of complainants as well as respondents:

35. The areas of activity relied upon by the Complainant are employment (s22(1)(a)), provision of facilities, goods and services(s22(1)(c)) and administration of any law of the State or any State program (s22(1)(f)).

36. The Complainant contends that the publications are discriminatory as direct discrimination or indirect discrimination. Direct discrimination is defined in s14 as follows:

37. Indirect discrimination is defined in s15:

38. The attributes relied upon by the Complainant are those of gender, sexual orientation and relationship status and these are covered in s16 of the Act:

39. It should be noted that the public purpose exception in s55 of the Act only applies to inciting hatred and not discrimination or prohibited conduct.

40. The Complainant’s case is that the Respondent’s conduct also amounts to a breach of the Act as prohibited conduct contrary to s17(1), sexual harassment, victimisation and the promotion of discrimination.

41. Section 17(1) prohibits certain conduct in the following terms:

42. Sexual harassment is also set out in s17:

43. Victimisation is defined in s18 in the following terms:

44. In Tasmania, conduct that promotes discrimination or prohibited conduct is also prohibited. Section 20 of the Act sets out the elements of such conduct in the following terms:

45. The Respondent has raised a preliminary point in relation to the application of the Act and argues that s22 requiring the conduct fall within an area of activity does not apply. It is noted that if this submission is correct the only provision that the Complainant could invoke is s19, inciting hatred. It is convenient at this early stage to consider whether this argument is correct.

46. It is noted, as detailed above, that s22 of the Act was amended with effect from 16 November 2004 and that in this case the earlier version of s22 applies to all the articles except the article published on 21 December 2005. By virtue of that earlier version of s22, the Act applied to activities that were defined with reference solely to complainants and their activities rather than the conduct of respondents.

47. The Complainant submitted that in line with Supreme Court authorities, s22 should be interpreted broadly and that she was engaged in an activity in relation to her "employment". Further, that s22(1)(c) and (f) had application.

48. The submissions made on behalf of the Respondent were that the Tribunal lacked jurisdiction to hear the complaint of discrimination because s22(1) of the Act did not apply as the Complainant was not engaged in any one of the areas of activity set out in s22. It was submitted in particular, that "as a claimant and witness before the Tribunal it cannot be said that Ms Brinkley was engaged in or undertaking any activity in connection with employment" (written submissions page 9). Further, it was submitted that while the Complainant was pursuing a complaint of discrimination before the Tribunal involving the way she was treated in the place of her employment that was not an activity "in connection" with her employment.

49. Section 22 has received judicial consideration. In Burton v Houston (2004) TASSC 57 Blow J noted the breadth of the section:

"19. One would expect that a piece of anti-discrimination legislation concerned with accommodation would be intended to prohibit discriminatory behaviour by landlords against tenants or prospective tenants on grounds such as race, sexual orientation, and family responsibilities. No doubt s22(1)(d) achieves that, at least when the victim of discrimination is engaged in an activity in connection with accommodation, such as looking for a residence to rent. But if the Tribunal’s interpretation of s22(1) is correct, Pt5 of the Act applies not just to persons in positions of power, but to anyone who has any contact with someone who is engaged in or undertaking an activity that has some degree of connection with one of the matters listed in s22(1). For example, if a tenant is undertaking an activity in connection with accommodation by doing some gardening in the front yard of his or her rented home, and a passer-by makes an unwelcome comment of a sexual nature in circumstances in which a reasonable person would have anticipated that the tenant would be offended, Pt5 would apply if the Tribunal’s interpretation is correct. Since s22(1)(c) makes Pt5 applicable in relation to prohibited conduct against a person undertaking any activity in connection with the provision of goods and services, it would seem that it would similarly apply to prohibit similar comments to a customer shopping in a supermarket, or a person buying a drink in a bar. Since s22(1)(a) covers prohibited conduct against a person undertaking an activity in connection with employment, Pt5 would similarly apply in relation to people travelling to and from work.

20. At first glance, it might seem that such a wide interpretation of s22(1) would produce absurd results that Parliament could not have intended. However it is clear that Parliament has limited the scope of Pt5 to certain areas of activity by reference to victims, rather than to offenders. If Pt5 had been intended to apply only to offenders engaged in certain classes of activities, s22(1) could have been worded differently. Because it has been worded by reference to the activities of victims, I think its purpose was the protection of victims, regardless of the role or status of offenders. Having regard to the classes of activity referred to in s22(1), it would seem that it was intended to protect individuals undertaking the basic activities of everyday life, such as employment and education. One might wonder why any restriction on the scope of Pt5 was imposed at all. Why, for example, should it apply to an unwelcome comment of a sexual nature made to someone shopping in a supermarket or buying a drink in a bar, but not when that same person is sunbaking on a beach, or walking to the home of an elderly relative? However Parliament did restrict the scope of Pt5, and it did so by reference to the activities undertaken by victims of discrimination and of prohibited conduct that might have nothing to do with discrimination."

50. In Lindisfarne R & SLA Sub-Branch and Citizens’ Club Inc & Anor v Buchanan (2004) TASSC 73 Evans J considered the phrase "in connection with" in the context of s22:

"20. Whilst the phrase "in connection with" has a wide operation, it must be considered within the confines of s22(1). In Minister for Immigration and Multicultural Affairs v Singh & Ors [2000] FCA 845; (2000) 175 ALR 503, the court considered the phrase "in connection with" as it appears in the Migration Act 1958 (Cth), s476(i)(a). Black CJ, Sundberg, Katz and Hely JJ said in their joint judgment at 509:

"The case law on the phrase ‘in connection with’ indicates that it is an expression of wide connotation that merely requires a relation between one thing and another: eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581; Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144; Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280. But in Burswood at 146 the Full Court quoted with approval a statement made by Davies J as follows:

‘Expressions such as "relating to", "in relation to", "in connection with" and "in respect of" are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute …The terms may have a very wide operation by they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear.’

The phrase ‘in connection with’ does not necessarily require a casual relationship between the matters said to be connected: Perrett (supra), and phrases such as ‘having to do with’ are sometimes referred to as a useful synonym: re Nanaimo v Community Hotel Ltd [1994] 4 DLR 638. But so too are phrases such as ‘in the course of’, or ‘forming part of’, Dawson v Hoffman Brick and Potteries Ltd [1924] VLR 208. As the Full Court emphasised in Burswood (supra) at 146 reference to reported cases is of little assistance, because the nature of the relationship between one thing and another which is encompassed by the phrase ‘in connection with’ depends so much upon the statutory context in which the words appear."

51. In assessing the statutory context the intention of Parliament is to be considered and as noted by Blow J in Burton v Houston s8A(1) of the Acts Interpretation Act (Tas) 1931 must be borne in mind:

"21. The Acts Interpretation Act 1931, s8A(1), requires an interpretation that promotes the purpose or object of the Act to be preferred to one that does not. That provision must be borne in mind when considering what degree of connection is necessary between an activity engaged in or undertaken by a complainant and one of the matters, such as accommodation, listed in s22(1), in order for the provisions of the Act as to discrimination and prohibited conduct to apply. In my view a very wide interpretation of s22(1) would promote the objects and purposes of the Act relating to discrimination and prohibited conduct. In those circumstances, I cannot see any appropriate basis for giving s22(1) a narrower interpretation than that adopted by the Tribunal."

52. Accordingly, even though the section is clear, there is a question regarding the ambit of the phrase "in connection with" and in determining the ambit of that phrase there should be consideration given to the objects of the legislation.

53. Noting the wide interpretation of s22(1) required by the Supreme Court decisions, the question is whether the Complainant was engaged in an activity in connection with employment. At the relevant time the Complainant was engaged in pursuing her complaint before the Tribunal arising from her employment with Metro Tasmania Pty Ltd. Her complaint concerned the treatment she received while employed by Metro and included allegations of harassment and discrimination by her co-workers and management. The Complainant maintained that at the relevant time of her Metro Case she was still employed by Metro Tasmania Pty Ltd and she sought a return to active duties.

54. The Tribunal considers that the complaint and Inquiry proceedings before the Tribunal in the Metro Case were closely associated with the Complainant’s employment. Indeed the Complainant’s experience as an employee was the entire focus of her complaint before the Tribunal and central to the remedy she was seeking. In these circumstances, the Tribunal concludes that the Complainant was engaged in an activity in connection with her employment and that the link between her activity and employment is not remote.

55. Noting that s22 of the Act applies to this case there is, as a consequence, a range of provisions that may have application to the alleged conduct. The Tribunal must consider whether the conduct is inciting hatred, discrimination, prohibited conduct, sexual harassment, promoting discrimination, or victimisation.

56. Noting the various provisions in the Act that need to be considered by the Tribunal there are a significant number of questions that need to be decided.

57. The Tribunal will consider the evidence in the Metro Case and whether it provides support for the publications. The Tribunal will look at whether the articles were accurate and whether the emphasis and focus of the articles highlighted the Complainant’s attributes particularly attributes of sexual orientation and gender and if so to what extent. This analysis will be taken into account by the Tribunal in determining whether the publications incited hatred and whether the Complainant was subjected to discrimination on the ground of her attribute/s. Related to this question is the question of how other people who did not have the Complainant’s attribute/s might have been dealt with by the Respondent. These questions will require a close examination of the publications and related Day Bills. Indeed this evidence is central to the Complainant’s case.

58. In ascertaining the reasons for the Respondent’s conduct and whether any conduct was ‘on the basis’ of the Complainant’s attributes, there is other evidence that will need to be considered such as evidence from the reporter, Ms Heather Low Choy, about reasons she provided for the content of the reports and her conversations with the Complainant. The conduct of the Respondent in other instances in relation to the Metro case showing any restraint and in relation to reporting regarding homosexuals generally will also be considered. The Complainant’s own conduct during the Metro case, including the nature of her evidence, and her conduct in connection with the Case, including conversations with representatives of the Respondent, is relevant to the question of the reason for the Respondent’s conduct and whether the Complainant promoted the type of coverage her case received.

59. Once the evidence has been considered and observations and findings about the evidence have been stated, the Tribunal will then turn to a consideration of the particular provisions in question in the Act and findings about whether the Act has been breached.

60. It is important to note that it is not the Tribunal’s function to ascertain whether the reporting is appropriate, fair or balanced from some perspective other than the perspective of whether the provisions of the Act have been breached.

61. It is noted that the Complainant’s objections to the publications of 11 and 12 March 2004 are more extensive and substantive than in relation to publications after that date.

62. The Day Bill states as follows:

63. The Complainant’s case in relation to the Day Bill is that she objects to the description of herself as "lesbian" and that the Day Bill is inaccurate and there was no furore. In relation to the use of the word "lesbian" the Complainant asserts that it was used in this context and reports of the case for sensationalist mass appeal.

64. The Respondent’s case is simply put and it is that the Day Bill is fair and reasonable in light of the evidence on 10 March.

65. A summary of the Complainant’s complaint about this article are as follows. The Complainant again objects to the word "lesbian". It is the Complainant’s case that the evidence before the Tribunal in the Metro case was that there was no affair at all and no affair with a workmate’s girlfriend as reported and the Complainant was not part of a "love triangle". The evidence before the Tribunal referred to the co-worker’s jealousy but that evidence related to the Complainant’s belief about his phobia that the Complainant was having an affair with his girlfriend but there was no truth in the phobia. The only relevance of the phobia was as the reason for the allegations that had been acted on by management. Indeed, the Complainant had told others she had not had an affair with the colleague’s girlfriend (see page 266 of the transcript).

66. Furthermore, it is the Complainant’s case that in focussing on the evidence about the so-called affair, the coverage focussed on a matter that was incidental to the complaint. The central fact in the Metro Case was that management had pulled her off the road acting on allegations made by two drivers a month after the event and refused to give her a breath test. This central fact was not covered at all in the publications.

67. The Complainant’s case is that the sub-heading suggests that the affair was the reason for the Complainant’s legal fight with Metro when in fact this was totally contrary to the evidence. The transcripts reveal that there was no evidence of an affair and any such affair was not the motivation for the Complainant’s legal fight.

68. The Complainant also asserts that the quote attributed to the Complainant in paragraph 3 is inaccurate and omitted reference to the male colleague’s belief and suggested the belief was fact.

69. The Complainant’s position is that the reference to her work life having "collapsed" when management received a letter from her jealous male colleague in December 1998 was inaccurate. In fact, the evidence was that her work life collapsed when Mr Sims pulled her off the road (see page 114 of the transcript) and in fact the letter was not received at that time and that was produced to management approximately a month later and well after the Complainant had been suspended on the basis of verbal allegations.

70. The Complainant also objected to the photograph and the caption underneath depicting her as isolated and unpopular.

71. The Respondent’s case is that the reference to "lesbian" was appropriate and in fact the Complainant referred to herself as a lesbian in the Metro Case.

72. In relation to the accuracy of the report about an affair with the work-mate’s colleague the Respondent relies heavily on page 127 of the transcript of the Metro Case which indicates that the Complainant had the affair. There is a dispute between the parties about the effect and meaning of this page of the transcript. Page 127 provides:

"A: "You’re the only one who knows the truth here" and I said "Well look I’m being honest I’m saying these two people aren’t lying but it’s got nothing to do with me being in Metro uniform, this is my private face, my private life" he said "But these are serious, serious, serious you know things that you’ve just been honest about" and I’ve gone "Well I guess so" and he said "Well you’re the only one who can prove it, we can’t prove it against you" and I said "No but I don’t have a problem being honest, these people have made a complaint even though its about my private life I don’t mind that" and so Mr Hansen then started to speak about them so I pulled Mr Hansen up and he said "This is a loyal employee, Mr … "A’s" a loyal employee making this allegation of alcohol and drugs before work", I said "A loyal employee, he’s made this allegation and had to actually be go and found to make these statements and they’re a month old, that is no loyal employee, a loyal employee would’ve reported it the next day, that day and* the reason why Mr … "A" has actually reported it a month late is because no he can use it for his own jealousy that’s fuelling the fact that he thinks I’m having sex with his girlfriend" and Mr Hansen said "You can’t say you’re having sex with his girlfriend that is a rumour about those two" I said "It’s not rumour about … "B" and … "A" at all, he told me he was bonking her, she told me she was bonking her and he’s jealous that I’m bonking her" and that’s basically what I said to Mr Hansen, he said "Oh I can read between the lines, I can read between the lines" I said "No need to I’m a lesbian the man’s jealous I’m bonking his girlfriend mate don’t read between the lines" and that’s exactly in that break that we had that’s exactly why its not written down, I think Mr Hansen in hindsight was rather embarrassed about having it written down I don’t know but it wasn't put down in the transcript of evidence, I think Mr Hansen wasn’t prepared to even think that it could’ve been from a jealous boyfriend he was just ready to jump on the alcohol and drug bandwagon even though Metro has no hard…"

73. The Respondent maintains that a consideration of the transcript supports the report about the Complainant’s work life collapsing after management received a letter from the jealous male colleague (pp 111-113,115, 125-6). Having listened to the tape of this part of the evidence there is an error in the transcript – the words "I said" were spoken by the Complainant where the asterisk appears.

74. The article continued on page 2 as follows:

75. The Complainant’s objection in relation to this article is principally that the heading suggests that her complaint against Metro related to an affair with a colleague’s partner when in fact that is completely inaccurate and her complaint against Metro before the Tribunal for Inquiry actually involved management acting on an allegation that she had been consuming alcohol without investigating it. The Complainant stated that the Respondent presented rumours as facts and indeed the evidence about an affair had no real link to the complaint and the issues that the Tribunal were considering. In summary, the Complainant asserts that the heading is inaccurate, unfair and humiliating.

76. The Complainant holds some other concerns about this article including the quote denying she went to work "stoned" not being supported by the evidence and a failure to cover her concerns about Metro’s failure to carry out a breath test and the repetition of the derogatory comments in the workplace about her sexuality.

77. The Complainant claims that aside from the inaccuracy of the reporting, the angle adopted by the Respondent focussed on her conduct as sexually irresponsible and thereby promoted a stereotypical view of female homosexuals. Mr Croome’s evidence noted that prevalent myths about lesbians were that they were highly sexualised and that the articles promoted those myths and notions of lesbians being aggressive, irresponsible and dysfunctional and distracted from the issue of workplace discrimination.

78. A consideration of the transcript of 10 March reveals a number of matters that are relevant when assessing the accuracy of the transcript. The 10 March was the first day of the Metro Case. The Complainant commenced her evidence in chief but did not give a significant amount of evidence on that day. A significant amount of court time was taken up with preliminary matters. The Complainant was not legally represented and did not provide an opening address or outline of her case before the Tribunal. The Complainant’s evidence presupposed a knowledge of her two complaints lodged with the Anti-Discrimination Commissioner and her evidence referred to them but did not reveal the detail of her complaints. The Complainant tried to tender her complaints at the beginning of her case but that was objected to by the Respondent’s Counsel. The Tribunal deferred the tender of the complaints for consideration at a later stage. It is noted that the complaints were not tendered at a later stage and were therefore not exhibits that the media had access to. The complaints were useful as background material for the Tribunal and if they had been tendered, may have served the purpose of informing the media (if they had chosen to look at them) about the central issues and the chronology of events. Of course, that is not a consideration taken into account by a Court or Tribunal when considering whether documents should be tendered and the timing of tender.

79. In the Complainant’s evidence on 10 March she recounted her grievance about management and the failure to investigate the co-worker’s false allegations regarding drinking and taking drugs and driving. She asserted that a male driver would not have been treated in that way. She recounted a conversation she had had with management during which she told management that the reason for the making of the false allegations by her male co-worker was because he believed she was having a sexual relationship with his girlfriend.

80. It is noted that while the central matter of complaint was outlined by the Complainant during her evidence, a significant portion of court time was taken up with evidence and questions and discussion about the jealous belief held by the co-worker. It is apparent to the Tribunal that this evidence of the jealous belief had some prominence in the proceedings on that day. Turning to the individual publications the following observations are made.

81. The Tribunal considers that the Day Bill is an accurate reference to the case although it is obviously sensationalist in tone.

82. It is the Tribunal’s view that the word "lesbian" is not inappropriate as it is a word used by homosexuals in our community and given that the Complainant’s sexuality was one of the attributes that was relied on in her case against Metro.

83. The Tribunal considers that the passages of the transcript relied on by the Respondent in the Metro case do in fact suggest that the evidence was that the Complainant had an affair with her male colleague’s girlfriend. When the evidence recorded on page 127 is considered the reader is left with a clear impression that the affair had occurred and that that the co-worker’s belief is true. There is a reference to "he’s jealous that I’m bonking her" and then "Oh I can read between the lines, I can read between the lines" I said "No need to I’m a lesbian the man’s jealous I’m bonking his girlfriend mate don’t read between the lines…".

84. While it is noted that there is no explicit statement by the Complainant as to the truth or otherwise of the co-worker’s belief the weight of the Complainant’s evidence appears to contain an implicit acceptance of the fact that there had been an affair. There are other aspects of the transcript that tend to support this view of the evidence: (reference to the Complainant’s evidence regarding "who kissed who" at page 143).

85. However, it is noted that on a careful examination of the evidence in the Metro Case, the Complainant did not explicitly state that there was any truth in her co-worker’s jealous belief. Indeed as pointed out by the Complainant she stated in her evidence "he thinks" I’m having sex with his girlfriend rather than "I’m having sex with his girlfriend". Further, the Complainant spoke of assumptions made by people when they discovered that the Complainant and the co-worker’s girlfriend were flat-mates: page 143. The Tribunal accepts that this is a reference to false assumptions made by people. The Tribunal accepts after a close examination of the evidence the Complainant did not state that there had been an affair or that the jealous belief held by her co-worker was true.

86. However, it must be remembered that when the press are reporting on court cases they are not analysing the evidence and closely examining the evidence as the Tribunal has done in this case. The press do not generally, and this case did not, have access to the transcript of proceedings. They are reporting on the evidence as they have heard it in oral form.

87. I have listened to the tape of that portion of the evidence and the clear impression is given to the listener that the Complainant was acknowledging an affair with her work colleague’s partner

88. In relation to the Complainant’s reference to page 266 of the transcript and her comment recorded that "there was nothing going on" it is noted that that evidence was given the next day and the reporter did not have that evidence when reporting on the Metro Case on 10 March.

89. It is important to understand that the Complainant’s perspective when hearing the evidence in her case against Metro is entirely different from that of a reporter’s perspective sitting in the press gallery on 10 March. The Complainant’s understanding of the evidence and her perspective was informed by her own knowledge that the jealous belief was not true and her awareness of her documents that gave background to her complaint under the Act. Her complaint lodgement form revealed the real issues in the case and the nature of her grievance about Metro but as noted earlier, this document was not part of the evidence on 10 March and the reporter therefore did not have access to it. By comparison with the Complainant, the reporter heard the evidence given on 10 March in a vacuum. It is understandable that a reporter would hear, understand or infer that the affair was fact and that it had some centrality to the case. It certainly had a link to the attribute of sexuality.

90. The other point made by the Complainant about the reporting of the so-called affair relates to the prominence given to this matter compared with the central matter of her complaint. The Tribunal accepts that the Respondent gave no attention at all to the Complainant’s central matter of grievance and honed in on evidence that was peripheral to her case. It is noted that the evidence of the so-called affair is salacious and more dramatic than the core issue in the complaint. The evidence of Metro’s mismanagement is not covered at all. It would seem that that evidence is less newsworthy than the evidence of the reasons behind that conduct. In the Respondent’s favour it is not disputed that one of the attributes relied upon by the Complainant in her case against Metro is the attribute of sexual orientation and there is a link between the evidence about the so-called affair and this attribute that gives this evidence some relevance from the media’s perspective. Notwithstanding this point, it is unfortunate that the report lost sight of the matter of complaint against Metro referred to in the Complainant’s evidence.

91. In considering the prominence given by the Respondent to the jealous belief it is noted that from the perspective of a reasonable reporter hearing the evidence given by the Complainant on 10 March the Complainant would have seemed very open and forthcoming about the so-called affair. According to her evidence it was even something that she had discussed with her employer.

92. In this context, Mr Zeeman’s submission is noted that the jealous belief was important as it was the genesis of the co-worker’s allegations about the Complainant which led, according to the Complainant, to the mishandling of her situation by management and the unfair treatment in deciding she should not drive. Mr Zeeman also submitted that the conduct of the person who held the jealous belief in making allegations about the Complainant was part of her complaint before the Tribunal. While that does not seem to be the case it is a fair interpretation of the Complainant’s case from a reporter’s point of view. On this interpretation the jealous belief is not merely incidental.

93. In relation to the sub-headline on the front page, it is suggested that the so-called affair was driving the legal fight with Metro and such a suggestion is not accurate. However, while a false impression is created the headline is not strictly speaking inaccurate because in a general sense the affair has been followed by the legal fight before the Tribunal.

94. The quote in the third paragraph of the front page article is not an accurate quote of the Complainant’s evidence but it is not an inaccurate interpretation of the effect of her account at page 127 of the transcript.

95. A consideration of the evidence reveals that the reference to her work life collapsing when management received the letter is not accurate and the correct summary of this aspect of the Complainant’s evidence is that that occurred when she was taken off the road (page 114 of the transcript)..

96. The Tribunal considers that the headline "Metro accused over bus love triangle" is not accurate and the Complainant’s complaint before the Tribunal for Inquiry was not about such a matter. As noted previously, it is accepted by the Tribunal that the evidence regarding the belief about the affair was incidental to the complaint. However, as previously noted, the focus should be on the evidence that reporters heard and had access to by the close of the hearing on 10 March. As previously noted, the evidence surrounding the jealous belief about an affair was a prominent issue in the case on that date.

97. Again, it is noted that there was not an overview or outline of the Complainant’s case before the Tribunal on 10 March and the documents that might have provided the Respondent with an accurate context for her evidence on 10 March were not before the Tribunal as exhibits.

98. It is noted that the photograph of the Complainant together with the text underneath suggested the Complainant was isolated and disadvantaged. The denial given by the Complainant in relation to being stoned was supported by the transcript and the denials given by the Complainant regarding the employee’s statement were also supported by the transcript: pages 139-140, 146.

99. The repetition of the Complainant’s allegations and the insulting terms referring to her sexuality are reflected in the evidence and were an aspect of the complaint against Metro before the Tribunal for Inquiry (pages 109-110). The Tribunal considers that the reporting of the insults was not done in a way that was inaccurate or showed any bias against the Complainant.

100. The Complainant is aggrieved about the Day Bill for 12 March which was as follows:

101. The Complainant has a number of objections to the Day Bill:

-it is a reference to the inaccurate story on 11 March and to her as having had an affair with a colleague’s partner. The Day Bill reference to the "Metro Lover" is a reference to the Complainant and a reference to the affair covered in the story on 11 March. It is the Complainant’s case that the transcript does not support the report about the affair.

-the reference to "Hate" in this context to suggest that the Complainant generated workplace hatred as a consequence of her sexual conduct.

102. The Respondent’s case is that there was reference to hatred and hate in the Complainant’s evidence at page 186 and that the Day Bill is accurate and supported by the evidence.

103. The Complainant concedes that her evidence did refer to homophobia but that the evidence did not establish a link to any sexual behaviour or affair involving the Complainant and her work colleague’s partner. The Day Bill links her complaint about homophobia in the workplace to an affair that did not occur and in so doing suggested the hatred was in consequence of that affair and raised in the reader’s mind the notion that such hatred was a reasonable feeling.

The Tribunal’s Assessment of the Day Bill

104. The Tribunal considers that reading the Day Bill in the context of the story of the previous day it is a reference to that story and to the Complainant as someone who had had an affair with her colleague’s partner. As noted previously that story was inaccurate. In the Tribunal’s view the Day Bill suggests, on one interpretation that the homophobia or hatred experienced by the Complainant was a consequence of the affair. The Tribunal notes that the evidence did not support that connection.

105. The Tribunal notes that while that suggestion is made by the Day Bill there other interpretations. It is ambiguous and it doesn’t necessarily convey such a connection.

106. It is noted too that there was at page 185 of the transcript of 11 March a reference to the situation with the affair in the context of the homophobia. While it does not establish or even support a connection the reference may have helped perpetuate the erroneous view taken in relation to the evidence of the day before.

107. A question arises as to whether the evidence on 12 March clarified the situation regarding the affair or supported the interpretation of the affair having taken place. There was further evidence from the Complainant about the relationship. The Complainant made it clear during cross-examination that she denied the affair to the male colleague involved and at the time she made the denial it was correct and while the evidence is not clear, it suggested that the affair occurred at some stage (page 265). It must be said that while the evidence of 12 March did not add any real support to the fact of an affair leading to the allegations brought by colleagues about the Complainant’s driving the evidence did not show the falsity of that evidence either.

The front page story

108. The Complainant also objects to the story on the front page:

109. The Complainant’s objections to this report are as follows:

· The headline is inaccurate for the same reasons as the Day Bill of 12 March

· The photograph is unfavourable and makes her look shifty and the caption "attack" promotes a negative view of the Complainant as butch.

· The Complainant objects to the first paragraph of the article on the front page. The Complainant’s contention is that her evidence did not represent her former partner as formerly heterosexual – "this is inaccurate, there is no proof and the transcripts give no direct support for this content." (Complainant’s written submission page 14). The Respondent’s submission is that the paragraph is supported by page 186 of the transcript.

· The Complainant raises concerns with respect to the 2nd paragraph of the front page story on the basis that it is inaccurate for the same reasons that the report the day before was inaccurate and the evidence did not support the proposition that her workplace discrimination was in consequence of a sexual relationship with a male colleague’s wife.

· The Complainant objects to paragraph 3 of the front page story. While the evidence establishes that she became involved in a relationship with a female colleague, it is clear that the identity of this person was not the person referred to as a male colleague’s wife. The placement of this paragraph 3 after the 2nd paragraph referring to the male colleague’s wife clearly suggests that the female colleague was the same person as the person referred to in paragraph 2.

110. The Tribunal considers that the observations made about the Tribunal’s assessment of the Day Bill of 12 March apply to the headline on this page as well.

111. In relation to the Complainant’s objection to the photograph the Tribunal notes that the sideways look captured by the photograph does create an impression that the Complainant may not be direct and straightforward. The Complainant’s expression, in particular, her frown suggests she is dissatisfied with some aspect of the proceedings. However, the evidence does not support the inference that the Respondent deliberately selected this photograph of the Complainant in order to present her in this way. The photograph of the Complainant underneath the headline does identify the Complainant as the "Metro Lover". The caption underneath the photograph and the word "Attack" is not unduly negative of the Complainant.

112. In relation to the first paragraph of the article, the Tribunal accepts that the Complainant did not give evidence that her partner was formerly heterosexual or represent her in this way. The reference in the transcript relied upon by the Respondent concerns merely homophobia in the workplace. The Tribunal has carefully considered the transcript to see if there is any basis for this assertion in the first paragraph. There was evidence that the Complainant’s partner had 3 children (page 208). Of course, while that suggests that she had been in a heterosexual relationship in the past (although this need not necessarily have been the case) it may be that her former partner was and had been bisexual and not formerly heterosexual. The Complainant’s allegations were that there was joke telling in the workplace regarding her and her partner’s sexuality. The content of the jokes (transcript page 192) indicate that the Complainant’s former partner was regarded as previously being heterosexual. Of course, the jokes may have been without foundation.

113. In conclusion, while there are suggestions that the Complainant’s former partner may have been previously heterosexual there are other explanations for that evidence and it seems that assumptions have been made by the Respondent. The Complainant’s evidence in the Metro case was that people at work said that she was trying to change another one and her argument before this Tribunal is that the Respondent perpetuated this perception of the Complainant as sexually predatory. The Tribunal considers that the assumption made in relation to this paragraph that the Complainant’s partner was formerly heterosexual is not supported by the evidence but it is an assumption made regarding a peripheral issue that is consistent with lack of thought about the issue rather than deliberately casting the Complainant in a particular light.

114. In relation to the Complainant’s concerns with respect to the 2nd paragraph of the front page story, it is noted that this is a reference to the evidence from the day before. As noted previously this report is inaccurate – the Complainant did not give evidence on March 10 that she had had sex with a male colleague’s wife.

115. Furthermore, the Tribunal considers that the evidence of 11 March did not provide support for this aspect of the report. The Complainant gave evidence that they were living together (page 177 of the transcript relied on by the Respondent to substantiate this story) and evidence that certainly hinted at a sexual relationship (page 265) at some stage but the evidence given on 11 March does not clarify the situation and certainly provides no fresh evidence clearly indicating that the story of 10 March is correct. Furthermore the Complainant’s case in relation to this paragraph is that she did not relate her workplace discrimination to occurring after or in consequence of a sexual relationship with a male colleague’s wife. This contention is correct and the transcript of both 10 and 11 March do not support this aspect of the article.

116. In relation to the Complainant’s objection to paragraph 3 of the front page story the transcript supported the paragraph to a limited extent namely, that co-workers and supervisors became unhelpful towards her (see page 180). The Tribunal accepts the Complainant’s submission that the juxtaposition of the two threads of the story promotes the notion of the Complainant’s wrongdoing and sexual relationship with a male colleagues’ wife, causing the adverse reaction of people being very unhelpful, when this was not the case.

117. The Complainant also objects to the follow on article on page 2 of The Mercury of 12 March:

118. In particular the Complainant states that the 3rd column 5th paragraph in describing her partner as a recent Metro recruit is inaccurate.

119. The Complainant refers extensively to other aspects of the articles on pages 1 and 2. Her submission is that while the coverage of these particular aspects of the evidence is accurate, it creates an adverse impression of the Complainant when presented in the same article as the inaccurate information about her relationship with a male colleague’s wife and casting her partner as previously heterosexual and a new recruit. In other words, the false information not supported by the evidence coloured the entire article so references to the evidence that are accurate assist in creating a false impression of the Complainant. Further, the Complainant’s case is that this has the affect of trivialising or making her complaint appear ridiculous. Her complaint regarding stereotypical and homophobic views in the workplace appear valid when covered alongside paragraphs perpetuating inaccuracies about her relationships. Examples of these paragraphs are paragraphs 4 and 5 on page 1, and on page 2 paragraph 6, column 1 and in column 2 paragraphs 1, 2, 3 and column 3 paragraph 4. Thus, for example the reference to the Complainant’s case concerning the graffiti describing the Complainant as a "dyke" was endorsed by the themes of the article which assigned to her anti-social characteristics – see the Complainant’s written submissions in response at page 9. Repeating this word "dyke" contributes to the reader’s impression of the Complainant as predatory of women and propounds the notion of an outrageous workplace claim. As a further example, the reference to the petition canvassed by the female supervisor appears to relate to the Complainant’s behaviour concerning the former colleague’s wife when it was the Complainant’s case that that conduct was based on humiliating gossip not because she was harassing other women employees.

120. According to the Complainant, this had the dual impact of undermining the complaint she was making against Metro and invoking contempt and ridicule for her and her case.

121. Finally, in relation to these articles and all others the Complainant objects to the word "lesbian". In essence, the Complainant’s case is that while the term is not offensive by itself, the term derives its meaning from the context and in view of the negative stereotypical themes promoted by the articles and the content denigrating of the Complainant the word "lesbian" takes on negative connotations. These negative connotations then permeate the subsequent articles.

Tribunal’s Assessment of Publication on 2nd Page

122. The report is inaccurate in that it refers to the Complainant’s partner as "a recent Metro recruit". The Respondent’s case is that that paragraph is supported by page 202 of the transcript. That page records evidence of the graffiti and does not support the description of "recent Metro recruit". The Tribunal has checked the transcript for 11 March and there is no reference to the Complainant’s partner as a recent employee of Metro.

123. The publications on 12 March perpetuate the inaccuracy of the report the day before regarding an affair with the work colleague’s partner. A careful reading of the transcript shows that the Complainant did not concede that she was having an affair and she merely stated the beliefs of her co-worker. However, a reporter hearing the live evidence as it unfolded may have thought that the Complainant expressly or implicitly conceded she had the affair under discussion.

124. The Tribunal concludes that the Complainant’s grievance about the publications on 10 March and 11 March is entirely understandable from her perspective. The true nature of her complaint is not presented and the articles focus to a substantial extent on a peripheral matter.

125. Furthermore, the inaccuracies portray the Complainant in a negative light. They contribute to an adverse impression of the Complainant and her case. These inaccuracies and the prominence given to peripheral matters and the lack of focus on wrongs done to the Complainant combine to trivialise the Complainant’s grievances. The prominence given to the publications, suggesting on the one hand that this was a high profile, meritorious case and yet dwelling on matters suggesting the Complainant was the wrongdoer was bound to promote an indignant attitude from the reader regarding the Metro Case and the Complainant.

126. The Tribunal does not regard the word "lesbian" as inappropriate. If the publications are inaccurate or unbalanced and hence colour people’s perceptions of female homosexuals then the criticism should be of the publications for the inaccuracies and lack of balance rather than of a word that is neutral in meaning and contains no negative connotations.

Brickbats and Bouquets

127. The Complainant is concerned that this page appearing in the paper on 12 March duplicates the photograph from the front page of 11 March articles. Her concerns in relation to the photograph have been outlined already.

128. The Complainant has other concerns in relation to the publication of the letters to the Editor. Her position is that while the letters are critical of the Respondent’s coverage of her case and are relied upon by her to show the coverage is not fair, the letters do not address the accuracy of the reports.

129. The Complainant’s submission is that these letters have little impact compared to the convincing front page articles and that the front page article on 12 March reinforces the themes presented the day before while the letters to the Editor confine the criticisms to the previous day.

130. Furthermore, the Complainant’s position is that the letters to the Editor are relatively minor subjective criticisms of the articles and are given far less exposure than the articles on pages one and two of the paper published on 12 March. In this way, the impact of the letters is diminished because readers will already have formed negative views of the Complainant by the time they reach the letters.

The Tribunal’s Assessment of Letters to the Editor

131. The Tribunal considers that the photograph does not create a negative impression of the Complainant in the context of the Letters. The Tribunal accepts that there is a vast difference between the prominence given to the Letters to the Editor and the publications regarding the Complainant on 12 March. As criticisms of the publications the day before the letters reduce to some extent the negative impact of the publications on 12 March. The letters may also have the effect of reducing the negative impact of the publications on 11 March in some reader’s minds. However, not all hypothetical readers of 11 March publications will read the Letters published on 12 March.

132. The letters are clearly critical of the sensationalist style of the publications and the focus on the salacious details and the prominence allocated to those details. As criticisms of the Respondent’s reporting style they provide some counter or balance and in a general sense undermine the Respondent’s approach to the reporting of the Metro Case. However, the publication of these letters does not correct any of the inaccuracies in the reports or counter the information with facts endorsing the Complainant’s point of view.

133. The Complainant’s objections to later articles are limited compared to her concerns in relation to the articles on 11 March and 12 March.

13 March

134. The Complainant’s case related to two articles on 13 March. One of the articles is in the following terms:

135. Mr Croome gave evidence about this article. He explained that the article was a result of his press release and coverage of the Metro Case was included at the end of the article. The purpose of the press release was to focus on workplace discrimination which in his view needed highlighting. His press release was issued in the context of the Metro Case and as a response to concerns about the reporting of the Complainant’s case that had reinforced negative stereotypes and overshadowed substantive issues of discrimination in the workplace.

136. Mr Croome stated that the report provided good coverage of the media release and gay rights issues.

137. The Complainant’s evidence was that if it was not for the 11 and 12 March articles she would not necessarily have a problem with the 13 March article.

Tribunal’s Assessment of 13 March Article

138. The Tribunal considers that this report linked to the statements from Mr Croome endorses the Complainant’s case against Metro.

139. The Complainant also gave evidence expressing concern about another article on the same page of March 13 newspaper:

140. The Complainant gave evidence that The Mercury was representing her as irresponsible instead of representing her as pro-active about breath-testing. The Complainant referred to evidence she gave speaking of the duty of care to customers and of her demands for breath-testing and complaining about the fact that a breath test was not administered. While the Complainant does not assert the coverage contained inaccuracies, her concerns relate to a lack of balance in the article.

Tribunal’s Assessment of call to test Metro Drivers 13 March Article

141. While the Complainant may have preferred that other evidence in her case be highlighted the Tribunal considers that the reference to her case does not reveal a bias against her and has a justification in light of the angle of the story as a whole.

16 March

142. The next article complained about by the Complainant appeared on page 7 of The Mercury newspaper on 16 March as follows:

143. The Complainant in her evidence drew attention to "who is a lesbian" in paragraph 3 and noted the connotations of that word "lesbian" created by previous articles. She stated that the manner in which the article was written was denigrating. In paragraph 3, column 3 she noted that her partner was referred to as her "female lover". In the circumstances, it was not appropriate for her partner to be described as her lover. The next paragraph referred to her partner and the impression was created that her partner and lover were two different people when this was not the case.

144. Mr Zeeman submitted that the passages do not expressly state that the Complainant was in a relationship with two different people and an alternative interpretation is equally open that the references were to the same person.

Tribunal’s Assessment of the 16 March Article

145. The Tribunal considers that the paragraphs objected to by the Complainant are ambiguous and could be interpreted as either referring to two people or the same person. The ambiguity could have been avoided by consistency of terminology but there are any number of innocuous reasons why the ambiguous statement appears in the final copy. The Tribunal observes that it does not seem apt for the report to refer to the Complainant’s partner as her lover and it would seem far more usual to refer to the other person in such a relationship as a partner given the there was nothing clandestine about the relationship.

146. The use of the word "lover" in this context seems in the Tribunal’s view a relatively minor issue of concern.

6 April

147. The next article was published on page 9 of The Mercury on 6 April:

148. The Complainant noted the two headings and the description of "lesbian lovers" compared with "male romances" which has less of a sexual connotation. Certainly, "lovers" is more sensational that a more usual term like "couple".

149. The Complainant drew attention to paragraph 2, column 2 as a reference to the inaccurate information that she had been involved with a female bus driver married to a male colleague and that this perpetuated the inaccuracy in the first two articles.

Tribunal’s Assessment of the 6 April Article

150. In relation to paragraph 2, column 2 the Tribunal notes earlier conclusions that this was inaccurate and refers to the observations made in that context about the lack of clarity concerning the evidence (e.g. see transcript at page 127)

151. It is noted that while there were comments by Counsel for Metro and by the Tribunal Member in the Metro case clearly identifying the error in the report of 11 March made regarding the affair with the male colleague’s wife: page 915 on 8 April, that occurred after this report was published.

152. The heading is suggestive of a different approach taken to references to homosexual compared with heterosexual relationships in the workplace but in the context of the article it is not a marked difference. The content of the publication is reasonably innocuous from the Complainant’s point of view and in the Tribunal’s assessment does not advance her case of bias or slant against her as a female homosexual.

7 April

153. The next article complained about is a report at page 9 of The Mercury published the next day, 7 April:

154. The Complainant referred to the 4th column and the reference to her not accepting what her former partner had said while in reality she had contested that evidence. The Complainant also noted the degree of detail allocated in the report to evidence from her former partner and submitted that that showed a slant or emphasis against the Complainant.

155. The Complainant again objects to the word "lesbian" in this article for the same reasons as stated before.

Tribunal’s Assessment of the 7 April Article

156. The Tribunal notes that it is apparent from the article that there is a dispute between the Complainant’s account and that of her former partner and that the article also provides information from Ms Crowley, endorsing the Complainant’s case and critical of Metro. The Tribunal considers that, contrary to the Complainant’s submission the report seems balanced.

9 April and 21 April

157. In relation to reports published in The Mercury on 9 April and 21 April the Complainant again objects to the word "lesbian" for the same reasons that as a consequence of the previous articles the word has negative connotations. The report published on 9 April is in the following terms:

158. The report published on 21 April is as follows:

159. Mr Zeeman’s submissions drew attention to the Complainant’s use of the word lesbian in the Metro case and referred to herself as lesbian in those proceedings: page 30 of Mr Zeeman’s written submissions.

Tribunal’s Assessment of Articles on 9 and 21 April

160. The Tribunal notes earlier comments regarding the Tribunal’s view of the word "lesbian" and that the use of the word is not a legitimate matter of complaint. The Tribunal considers that both reports are balanced without any suggestion of bias against the Complainant and indeed the content of the report on 9 April is favourable to the Complainant.

Article on 8 May

161. The Complainant gave evidence that on 3 May she went into The Mercury office and spoke to the Editor and asked them to cease their reporting as sensationalistic, unfair and inaccurate. The Complainant relied on two subsequent articles to show a complete change in the Respondent’s manner of reporting the case. The report published in The Mercury on 8 May was relied upon as illustrating the change and as the first report about the case that was not partial or prejudiced against her. That report is in the following terms:

Tribunal’s Assessment of 8 May

162. While the Tribunal accepts that the report is factual and balanced the Tribunal does not consider that there was a dramatic alteration in style and approach after 3 May. In fact, the Tribunal considers that the article of 8 May is similar in style to the reports published in April.

Article on 24 December

163. The final report that the Complainant addresses in her case was published on 24 December 2004 (exhibit C5) as follows:

164. The Complainant’s case is that the report invokes contempt for her and ridicules her complaint. The report vilified lesbians and influenced the attitudes of readers and is a continuation of conduct commencing with the March 10 article. Furthermore, the report did not point out that Metro was in contravention of s104 of the Act.

Tribunal’s Assessment of 24 December Article

165. It is relevant to note that the article was a brief report relating to a decision delivered by the Tribunal that was 40 pages long and covered a significant number of factual and legal issues. The media report could not adequately cover all matters and the Tribunal considers that the failure to cover the finding that Metro had contravened s104 does not reveal a bias against the Complainant. It is also apparent from the Complainant’s evidence before this Tribunal that she was dissatisfied with the outcome of the decision and that may have coloured her perception of this article. The Tribunal does not accept that there is merit in the Complainant’s objections and submissions regarding this article.

ADDITIONAL MATTERS RELIED UPON BY THE RESPONDENT IN RELATION TO THE REPORTS AND QUESTION OF ACCURACY AND EMPHASIS/SLANT

166. Mr Zeeman made a submission that it is evident that the reports were fair reports by considering the evidence not reported that would have shown the Complainant in a worse light. It is apparent that there was certainly damaging evidence about the Complainant that was not covered by the reports or highlighted. Some of the matters noted in Mr Zeeman’s submissions would not have been suitable for publication. Notwithstanding those matters, there remain clear examples of evidence that could have been included in reports, and if they had been, would have cast the Complainant in a negative light. Even though such evidence was in dispute and not accepted by the Complainant it could still have been covered by the reports. For example, there was evidence that the Complainant’s former partner had taken out a restraint order against her (page 804) and evidence suggesting the Complainant was someone who harassed women and flaunted her sexuality (page 694, 647). There was other evidence such as the fact that her former partner joined in the telling of homosexual jokes which if published would have trivialised her complaint about the jokes.

167. Certainly the Tribunal accepts that it is clear given the nature of the evidence in the Metro Case that there was evidence that could have provided material for reports more sensationalistic in style and negative of the Complainant than the reports that were published. This fact is suggestive of some restraint being exercised by the Respondent.

SURROUNDING EVENTS

168. There are some events occurring beyond the Metro Inquiry that are relevant. There are conversations between the Complainant and The Mercury journalist assigned to the Metro case, the taking of a photograph of the Complainant outside her caravan by a Mercury photographer which was published on 11 March, and an appointment that the Complainant had with Mr Garry Bailey on 3 May.

169. The witnesses relating to these events are the Complainant and Heather Low Choy and Garry Bailey. There are areas of dispute between the Complainant’s case and the Respondent’s case and in resolving those issues I make the following observations about the witnesses.

The Complainant

170. I found the Complainant to be a truthful witness. She struck me as someone who made her best endeavours to be fair. As an example of her conscientious approach in presenting her case, I note her evidence that she believed the person she spoke to was Garry Bailey on 3 May 2004. Then later during cross-examination she agreed that it was possible she was mistaken and then on a subsequent date in re-examination made a concession that the person she spoke to was not Garry Bailey.

171. I note that there are a number of factors that have affected her memory of the surrounding events including the demands of being involved in the Metro case. Further, as she conceded, her medical condition has had a bearing on her memory.

Heather Low Choy

172. I found Ms Heather Low Choy an honest witness and I found her evidence to be reliable. She did not purport to have a memory of all that was said between herself and the Complainant and on which day and indeed, that is to be expected of a truthful witness given that at the time of those conversations there was then no apparent need to commit them to memory and given that the conversations occurred over two years beforehand.

Garry Bailey

173. I found Mr Bailey was an honest and reliable witness. His evidence was very narrow in compass and related to the appointment with the Complainant on 3 May but he had particular reasons for recalling what had occurred and I found his account about the appointment convincing.

174. I found Ms Heather Low Choy’s conversation with the person accompanying the Complainant in the morning break on 10 March not relevant to the issues in this case.

175. In relation to the conversation about the Day Bill, there is common ground between the Complainant and Ms Heather Low Choy about the substance of what was said by the Complainant. According to both accounts, the Complainant said to Ms Heather Low Choy on and about 11 March that she would like a copy of the poster on the street, she referred to as a souvenir and that it was "one for the wall" and Ms Heather Low Choy gave her a copy of the Day Bill at the time of that comment.

176. I find that from Ms Heather Low Choy’s point of view this was a pleasant conversation with the Complainant giving no hint of any dissatisfaction with the coverage with the Complainant seeming to approve of the Day Bill. The Complainant may not have expressly stated that she liked the poster but it is understandable that that was inferred from her actions and comments.

177. I also accept the Complainant’s account that she was seeking a copy of the Day Bill for her friends not herself. The Complainant may have pointed to her friend when she made the request but that was not noticed by Ms Heather Low Choy.

178. As to the comment in dispute about whether the Complainant said that she was pleased the truth had come out about Metro I accept that the Complainant made a comment along similar lines but not necessarily referring to the proceedings of the previous day. By way of example, the comment could have been that she was pleased that the truth was coming out or would come out about Metro. From the Complainant’s point of view any such comment was not an approval of what was published in The Mercury.

The taking of the photograph

179. There is no material dispute between the Complainant and Ms Heather Low Choy about what occurred in relation to the taking of the photograph. Both the Complainant and Ms Heather Low Choy agree that the following occurred. At the end of the proceedings on the first day Ms Heather Low Choy requested the Complainant’s telephone number so that The Mercury could contact her for a photograph to accompany the story in the edition the following day. The Complainant gave her mobile telephone number and directions so that the photographer could find her. During that conversation the Complainant referred to her "broken down campervan". Ms Heather Low Choy rang at about 5:30pm as a follow up about the photographer.

180. The Complainant’s position is that she was duped in relation to the taking of the photograph and that unbeknown to her the photographer zoomed into her bedroom. She did not expect a close up of her and the inside of her campervan. She thought the photograph would simply show her and the exterior of her campervan. The Complainant was challenged about this in cross-examination and asked why she posed for the photograph and she replied "in good faith". She agreed that she posed for the photograph at the door of her campervan.

181. I accept the Complainant did not expect that the photograph would be a close up of her and the inside of her campervan. On the other hand she did not make any request of the photographer as to what should or should not be photographed. I conclude that the taking of the particular photograph and the publishing of it does not reveal any bias against the Complainant.

182. I have checked the photograph in an edition of the newspaper. The photograph is in colour and the interior of the Complainant’s campervan is clearly visible with the Complainant’s personal items such as food, bedclothes or clothing on the floor and the bed clearly visible. The photograph seems to invade the privacy of the Complainant and is suggestive of an up close and personal approach. However, the photograph fits with a fairly typical approach of the media (at times) to invoke interest in a person or story by adopting a personalised angle in relation to the story. It is not indicative of a particular bias concerning women or homosexuals or any other marginalised group of society.

The appointment with Garry Bailey

183. Matters are agreed as set out in paragraph 9 of the agreed statement of facts. The Complainant initially gave evidence that she thought the person she spoke to was Garry Bailey. She later conceded that it was not, but maintained that she had thought the person she had seen was the Editor. There is no dispute in relation to that meeting.

184. Mr Bailey gave evidence that an appointment was made for the Complainant to see him sometime after 3 May but she did not keep the appointment. The Complainant disputes that this was the case.

185. Mr Bailey’s evidence was that there is a record of telephone call with the Complainant in the Day Book for 3 May. That reveals that she telephoned for an appointment and spoke to a staff member who would have made the appointment and then called her back. The relevant page of the Day Book was tendered (exhibit R1) and there is on that page a reference to the Complainant and her telephone number. Mr Bailey was adamant that within days he had an appointment with the Complainant at his office. He was anxious to meet her and he "described dashing in and out of his office to see if she had arrived".

186. I found Mr Bailey was convincing about his expectation of an appointment with the Complainant.

187. I found that the Complainant’s challenge of Mr Bailey’s evidence regarding the appointment also convincing.

188. I accept that Mr Bailey was informed that he had an appointment with the Complainant as he had stated in his evidence. However, I also accept that the Complainant was genuinely unaware of the appointment. It is not necessary for me to rationalise these accounts but one explanation that is open is that the Complainant rang for an appointment and the staff member made an appointment informing Mr Bailey but overlooked telling the Complainant.

CONDUCT OF THE COMPLAINANT AND THE RESPONDENT RELEVANT TO THE QUESTION OF THE REASON FOR THE NATURE OF THE REPORTING

189. There is other evidence relevant to the question of why the Respondent portrayed the Metro case as it did. This is evidence of the conduct of the Complainant during the Metro case which Mr Zeeman submits had a bearing on that portrayal and there is also evidence of the conduct of the Respondent in other instances revealing whether there was a bias against homosexuals.

The conduct of the Complainant

190. The Complainant was representing herself and at an early stage of the Inquiry aspects of the Complainant’s personality and style were evident. The observations I make are not criticisms of the Complainant. Indeed, the Complainant was courteous during the Inquiry and I note, selflessly concerned about the interests of others drawn into the proceedings and the need to suppress the names of people whose reputations may be affected by publicity associated with the proceedings. By contrast, in terms of her own interests she appeared to be robust. There was no indication that she was concerned with the publicity that the case attracted. The Complainant gave an explanation for that during her evidence that is not disputed. The Complainant referred to the fact that she was representing herself and had a lot more important things on her mind than complaining about something she couldn’t do anything about. I accept the Complainant’s explanation as genuine although of course the explanation was not apparent to the Respondent at the relevant time.

191. Her style was forthright and at times there was an irreverent quality to her evidence and comments. At times she asked questions that contained a shock value and could be described as attention grabbing. She was inclined to give her evidence and pose questions that were sensationalist. Sometimes this evidence and questioning was gratuitous. She gave more information than required about her private life at times creating a negative impression. She was even self denigrating at times. This was done with the media present and continued after the first day, with the knowledge that the reporting was inclined to focus on the sensational pieces of information.

192. In making these comments I am conscious that the Complainant did not have a lawyer to represent her. I am also conscious that during her evidence the Complainant needed to relate conversations that she had had during which she had spoken in a forthright manner outside the court proceedings and that in those cases, obviously, that forthright language needed to be repeated in order to be honest about events (as an example see page 127 of transcript on 10 March). Nonetheless, there were many examples of her evidence that were gratuitous and where her evidence did not need to be self denigrating or sensationalist.

193. Examples of this style of evidence and questioning can be given. However, it is not a matter of analysing individual questions and answers rather, it is the overall impression that is important. In the Metro Case the clear impression was given to the Respondent at a very early stage that the Complainant was a robust person and not adverse to the media attention.

194. Of course, it is now apparent from this Tribunal hearing that the outwardly robust manner exhibited by the Complainant belied her vulnerability and that the publications had an adverse affect upon her.

195. Mr Zeeman made submissions regarding the comments made by the Complainant during the proceedings about the publications and whether a suppression order should be made. The comment made by the Complainant was as follows:

"DB I am not worried about publication at all, no I am not worried about publication at all I just want to put forward a point that when is Mr Hudson going to be asked to stop trying to make my private life into the public life when there is actually no evidence that it’s the same" (transcript page 901)

196. This comment was made on 8 April. It was put to the Complainant that that comment revealed that she was not concerned about the publications. The Complainant rejected that explanation stating that she was concerned and that was why she had been to see the person she thought was the Editor on 3 May. As observed by the Tribunal during final submissions, I regard the fact that the Complainant did not seek a suppression order or closed hearing to be a neutral factor noting Ms Brinkley was unrepresented. It is also noted that the Complainant’s attendance at The Mercury office on 3 May supports her case that she was concerned about the tenor of the reports.

The Respondent’s conduct

197. In terms of the publications themselves, Ms Heather Low Choy gave convincing evidence that she genuinely regarded the reports as being in accordance with the evidence. Further, it was apparent that she believed that the transcript supported the facts as reported.

198. However, it is noted that she did not have access to the transcript at the time of the reports and all she can really assert is that according to her recollection and belief that she had reported the case accurately. The Tribunal accepts that her evidence in this regard was honest and genuine.

199. The evidence showed that Ms Heather Low Choy was not responsible for the Day Bills or headlines. The Tribunal does not have direct evidence of the reason and explanation for the wording and style of those aspects of the publications. The Editor, Garry Bailey, gave evidence that he was away for the month of March and the person responsible was not called as a witness. The Tribunal is left to draw inferences about the reason for the wording of these publications. The Tribunal turns to other evidence relevant to the inferences that should be drawn.

200. The Respondent relies upon other examples of front page reports (exhibit R2). The sample relate to the period dates from 7/1/04 -23/3/06 and reveal that court cases are given prominent focus and frequently appear as front page stories. The Complainant provided to the Tribunal a detailed analysis of those front page articles distinguishing them from the articles in this case. She made various submissions about the articles such as, that the tone of the articles covering the Metro Case were similar to the focus and tone used when reporting criminal proceedings.

201. The Complainant relies on a change of tone and emphasis in the reporting after her attendance at The Mercury office on 3 May. The Tribunal notes that while there is an alteration in style and a toned down, factual approach is seen in some of the reports that change is evident before that date of 3 May and so it appears to the Tribunal that the Complainant’s attendance was not the reason for the alteration. There could be a number of reasons for that change including an acknowledgment that the articles were sensationalist, the influence of the letters to the Editor, a concern that the Complainant might be affected by the reports or a change in content of evidence before the Tribunal i.e. the content was less sensational.

202. The fact that Mr Croome’s media release was published on 13 March and that the manner of reporting it lent endorsement to the Complainant’s position suggested a balanced and even handed attitude and approach with respect to that report.

203. In Mr Croome’s evidence, he spoke highly about the general approach of The Mercury when reporting on issues involving sexual minorities. He described the reporting in The Mercury as overall fair and balanced which is why he decided to act in relation to the Complainant’s case. These other stories involving gay and lesbian rights and prominence given to issues of concern to that community suggest an unbiased attitude to homosexual people. This evidence tended to suggest that the Respondent would not seek to consciously cast female homosexuals in a negative light.

204. The Tribunal turns now to a consideration of the statutory provisions dealing first with inciting hatred and discrimination as arguably the most applicable provisions in the circumstances of this case.

INCITING HATRED

205. It is conceded by the Respondent, correctly in the Tribunal’s view, that the publications of the Respondent amount to a public act as defined in s3.

206. The issue for consideration in this case is whether the publications "incite hatred", "serious contempt" and "severe ridicule". The Act does not define the words "incite", "hatred", "contempt" or "ridicule" appearing in s19. However, s19 is similar to provisions in equal opportunity legislation from other jurisdictions in Australia and these provisions have been considered extensively in case-law from those jurisdictions.

207. Mr Zeeman made comprehensive submissions in relation to the elements of inciting hatred under the Act and applicable case-law. Mr Zeeman referred the Tribunal to the following cases: Wagga Wagga Aboriginal Action Group & Ors v Eldridge (1995) EOC 92-701; Western Aboriginal Legal Service Limited v Jones & anor (2000) NSWADT 102; Harou-Sourdon v TCN Channel Nine Pty Limited (1994) EOC 92-604; and John Fairfax Publications Pty Ltd v Kazak (EOD) [2002] NSW ADTAP 35

208. The Tribunal has considered those cases and additional authorities including: Burns v Dye (2002) NSWADT 32; Turner v State Transit Authority & nor (2004) NSWADT 8; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Burns v Radio 2UE Sydney Pty Ltd & Ors (2004) NSWADT 267; Velosky & Anor v Karagiannakis & Ors (EOD) NSWADTAP 18, and Burns v Laws (No. 2) (2007) NSW ADT 47.

209. The principles derived from the cases concerning issues relevant to this case are now well-settled and non-contentious. They are summarised in the following paragraphs (refer TASADT decision of Wood v N.D. Gerke delivered 2 April 2007 paragraph 85):

(i) The word "incite" should be given its ordinary and plain meaning, namely, to urge, spur on, stir up, animate, stimulate or prompt to action.

(ii) It is not necessary to prove that there was an intention to "incite" or that people were actually incited to hatred, serious contempt or severe ridicule. Rather the test is whether the public act was capable of inciting others to feel hatred or serious contempt or severe ridicule. Merely engaging in conduct that conveys hatred or expresses serious contempt or severe ridicule is not unlawful.

(iii) The words "hatred", "contempt" and "ridicule" are to be given their ordinary meaning noting that the latter two are qualified by the adjectives "serious" and "severe" respectively. Thus 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 extreme derision of a person or group of persons. The conduct must be capable of arousing reactions at the extreme end of the scale.

(iv) The aspect of the conduct complained of must be assessed within the context of the entire statement or publication.

(v) In determining whether the public act is capable of inciting others to feel hatred a question arises as to the characterisation of the audience. The proper approach is to consider the impact upon the ordinary, reasonable person. The range of people captured by this test includes people who are not immune from susceptibility to incitement but excludes those who hold prejudiced views or are malevolently inclined.

(vi) It must be established that the offending public act must incite hatred towards, serious contempt for or severe ridicule of a person or a group of persons on the ground of one of the attributes listed in sub-paragraphs (a) - (d) of s19 of the Act. The phrase "on the ground of" means a "significant factor", "a substantially contributing factor" and "a casually operative effect" or "an operative ground". There must be a casual connection between the attribute and the feelings of hatred, serious contempt or severe ridicule that are incited by the public act.

210. In the case of Burns v Laws (No 2)(2007) NSWADT 47 there was some refinement of the principle set out at paragraph (ii) above. The Administrative Decisions Tribunal framed the issue as whether the relevant "public act" had the "effect" of inciting, in the sense of urging or prompting, a hypothetical "ordinary reasonable person" to experience one or more of the relevant reactions towards one or more homosexual people (as identified by the Complainant), on the ground of their homosexuality (para 111). Nothing turns on that refinement in this case.

211. For the sake of completeness the Tribunal notes the meaning of "ridicule" and synonyms referred to in the cases namely, "mockery", "derision", "make fun of" and "laugh at". As for the qualifier of "severe" the Administrative Decisions Tribunal in Burns v Laws (No 2) recognised that there is no sharp dividing line between "ridicule" and "severe ridicule" and that in any case where the issue arises, a value judgment must be made (para 120, quoted with approval in Burns v Laws (EOD) 2008 NSWADTAP 32). Finally, it may be added to the well-settled list of principles that the Complainant bears the onus of proving the matters required to be shown under s19 of the Act: Burns v Laws (No 2) para 127.

212. Mr Zeeman’s submission in relation to inciting hatred was that all the publications have been supported by the evidence and that the reports merely convey a fair description of the proceedings. The Complainant’s submission is that the theme of a homosexual furore in the workplace is provoking of ridicule in readers’ minds and the reports generally place the Complainant in a contemptible light. Furthermore, the version of facts presented in the publications does not conform with the evidence.

213. Having regard to the publications on 11 March first of all, reference is made to the Tribunal’s observations regarding the accuracy of the report and the slant or emphasis evident in the report. The Complainant’s central grievance against Metro is not covered and is completely buried by the information regarding the so-called affair with the work colleague’s female partner. The alleged affair dominates the report. There is no detail at all regarding the Complainant’s grievance and the impression is given of the Complainant as wrong-doer. The Complainant’s sexuality also dominates the report and is highlighted in the message in the headline and the Day Bill. The photograph is intrusive. I have looked at a copy of the newspaper and the front page story is highly prominent. The prominence given to that front page report and headline combined with the impact of the Day Bill sensationalises the content of the report to maximum effect.

214. In relation to the publications on 12 March, the Tribunal has had regard to them individually and as a whole and also in the context of the publications that preceded it. The publications on 12 March are a follow on story from 11 March and they should not be viewed in isolation. In essence the Day Bill and reports on page 1 and continued page 2 continue the same themes and contribute to the same impressions created the day before. The publications are prominent and the Day Bill and headlines are sensationalistic.

215. The letters to the Editor published on 12 March could not be regarded as examples of inciting ridicule of the Complainant. They are scornful of the Respondent’s reporting of the case and undermine the legitimacy of the reports. In the Tribunal’s view they do not add to the negative messages regarding the Complainant created by the reports. The fact that the Respondent published the letters suggests some balance in the approach taken by the Respondent but they do not redress the inaccuracies and the poor impression given of the Complainant and her case.

216. In relation to the other publications after 12 March they are far more moderate, less sensational in style and less prominent. In isolation they could not be viewed as inciting ridicule or contempt. The most that could be said is that some of the publications reinforce to some extent negative themes and messages contained in the publications of 11 and 12 March.

217. As noted in the summary of the relevant legal principles set out above, the conduct must be capable of arousing reactions at the extreme end of the scale. The Tribunal finds that the publications on 11 and 12 March are denigrating of the Complainant and her case and that they are capable of inciting scorn or ridicule towards the Complainant. As an obvious example, the Day Bill "Lesbian bus love triangle" is ridiculous - it is attention grabbing because of that ridiculous quality and sexual connotations. The humour is at the expense of female homosexuals. Because the reports regarding the Complainant also cover behaviour of the Complainant that conforms with negative stereotypical biases in the community regarding female homosexuals the publications are capable of inciting scorn or ridicule towards that group.

218. However, the Tribunal finds that the level of emotion that the publications are capable of inciting is not of the intensity required by the Act. In the Tribunal’s view the publications on 11 March and 12 March in isolation or viewed together and having regard to the cumulative effect of reading those publications together would not be capable of inciting an ordinary, reasonable person, not immune from susceptibility to incitement, to serious contempt or severe ridicule of in particular, female homosexuals. Furthermore, the publications are not capable of inciting hatred of lesbians.

219. Section 55 provides an exception to the application of s19 of the Act so that certain conduct of inciting hatred is not unlawful. This section reflects the compromise between the boundaries of inappropriate and unacceptable areas of public conduct and freedom of expression as a fundamental tenet of the common law (Discrimination Law and Practice, Ronalds and Pepper, 2nd ed. page 104, Bropho v Human Rights & Equal Opportunity Commission (2003) EOC 93-259 at 77,156 and Brown v Classification Rev Bd 154 ALR 67).

220. The considerations that apply to s55 presuppose that there has been a breach of the Act and the question that arises is whether the Respondent has established that its conduct was a report done in good faith for any purpose in the public interest. In this case there is no need to consider s55 of the Act. Section 55 operates as an exception to conduct breaching the Act. Publications that amount to ridicule as opposed to severe ridicule are not regulated by the Act and so not only is the balancing act involved in a consideration of s55 not necessary but it cannot be sensibly carried out in this case.

INDIRECT DISCRIMINATION

221. In the Tribunal’s view the conduct of the Respondent could not attract s15 of the Act. The Complainant argued that the publications "have repeated and continued a practice of assigning Dyke characteristics imputed to all Lesbians and that this amounts to a "practice" for the purpose of s15".

222. Section 15 cannot be extended to give it that meaning. As stated by the Sex Discrimination Tribunal in Louden v Department of Education, Training, Community and Cultural Development and Department of Premier and Cabinet delivered 2 September 1999 in the context of a complaint concerning gender:

"Section 15, like statutory provisions in other anti-discrimination legislation, addresses conduct which does not necessarily involve different treatment of men and women and so is known as conduct which as "facially neutral" (see Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR at 175) but which in fact has a disparate impact on men and women. The provision applies to acts or decisions made by reference to criteria or standards which are apparently non-discriminatory but which have a discriminatory effect: Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR at 175 (dealing with the Anti-Discrimination Act 1977 (NSW)), Waters v Public Transport Corporation (1991) 173 CLR 349 at 392 (dealing with the Equal Opportunity Act 1984 (Vict.), Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission and Another 150 ALR 1 at page 20 (concerned with the Sex Discrimination Act 1984 (Cth)).

Because of the nature of indirect discrimination, it often does not exclusively affect a particular gender or individuals with a particular attribute. This factor disguises the discriminatory nature of the conduct. Clearly, the object of the section is to prohibit this form of discrimination."

223. These comments apply equally to s15 of the Act. Indirect discrimination requires a consideration of how the practice affects a member of the group compared to non-members of the group and thus the practice must have been one that was applied to people other than the group sharing the attribute under consideration. Conduct, that targets or affects individuals with an attribute under s16 or a particular group sharing that attribute, whether or not that conduct amounts to a practice or an isolated example, is dealt with by s14 of the Act.

224. This is not a case involving the imposition of a condition, requirement or practice which has the effect of disadvantaging the Complainant as a member of a group of people sharing an attribute.

DIRECT DISCRIMINATION

225. The Complainant submits that the conduct of the Respondent amounts to less favourable treatment by virtue of her sexual orientation and gender. The Complainant submits that the reports centre on her as a female homosexual and depict her as less of a person than other people whose cases are reported. There is no reporting of their sexual orientation as an object of denigration. The Complainant further submits that the Respondent would not have singled out or treated heterosexuality as an object of discrimination and denigration against a female heterosexual. A woman with the prescribed attribute of being a heterosexual would not have had the fact she is attracted to the opposite gender promoted, sensationalised, repeatedly and continually referred to and expected to sell newspapers.

226. Furthermore, the Complainant submits that the Respondent would not treat male homosexuality in the same negative and denigrating way. The Respondent would not have used male homosexuality or sensationalised men having sex with men to sell newspapers.

227. Mr Zeeman submitted that the Metro case was solely about the Complainant’s treatment at the hands of Metro Tasmania on the basis of her sexual orientation and that was the subject matter that the Respondent was entitled to report on.

228. The Complainant does not accept that the sole attribute under consideration in the Metro Case was sexual orientation and as previously noted she states that central to her case was the attribute of gender which got lost in the Respondent’s reporting of the matter.

229. There are two aspects of the direct discrimination provision that are important in this case. First, the treatment under consideration must be "on the basis" of a prescribed attribute. Second, the Complainant must demonstrate that she was treated less favourably than the way someone would be treated without that attribute.

230. Section 14(3)(a) is relevant to a consideration of the reason for the treatment. It is noted that it is not necessary that the prescribed attribute be the sole or dominant ground for the unfavourable treatment. This provision was considered by the Tribunal in the case of Houston v Burton (2003) TASADT 3.

231. As noted by the Tribunal in that decision, s14(3) is not the same as other legislation. In Victoria, Queensland and South Australia the direct discrimination section requires that if a person acts on a number of grounds, the prescribed attribute must be a "substantial reason" for the unfavourable treatment. In the Commonwealth legislation and the equal opportunity legislation in New South Wales, Western Australia and the Australian Capital Territory it is stated that the attribute does not have to be the dominant or substantial reason for the act. The Anti-Discrimination Act (NT) s20 is in similar terms to the Act in Tasmania (para 138 of Houston v Burton).

232. The Tribunal in Houston v Burton went on to observe that various interpretations of s14 were open. It might be argued that the basis of the treatment must be a significant reason or it might be sufficient if the prescribed attribute merely influences, to some extent, the treatment. It is clear from the words of the section that, at least, the attribute must have influenced the treatment and been an operative factor. This is clear from the requirement in s14 that the treatment be "on the basis" of the attribute. If the attribute did not influence the treatment or operate as a cause then clearly the taken in this case. In this case, like Houston v Burton, it is not necessary for the Tribunal to determine a more precise test for when treatment or conduct qualifies as being "on the basis" of an attribute.

233. In Purvis v New South Wales (2003) HCA 62 the High Court considered a provision involving direct discrimination similar to s14, and the words "on the ground of" and "because of". The High Court considered the "true basis", the ‘genuine basis’ (Gleeson CJ at para 13), and the "real reason" for the alleged discriminator’s act (McHugh and Kirby JJ at para 166) and the question "why was the aggrieved person treated as he or she was?" (Gummow, Hayne and Heydon JJ at para 236).

234. The Tribunal adopts the approach taken in Purvis and applies that approach to the requirement in s14 that the treatment be "on the basis" of the prescribed attribute. Section 14 also requires that the person must have been treated less favourably than a person without that attribute. Section 14 of the Tasmanian Act is different from the provision considered by the High Court in Purvis and similar provisions in other equal opportunity legislation in Australia. Section 14 does not stipulate that the person without the attribute must be placed in "circumstances that are the same or are not materially different". The Tasmanian provision is similar to legislation in the United Kingdom (see discussion in Purvis para 114 and footnote 60.) Of course, the Tribunal must still undertake some sort of comparative exercise by asking how would a person without that attribute have been treated? The Tribunal considers that the other person is simply a notional person similarly placed as the Complainant but without the attribute and in like circumstances enabling identification of whether the reason for the conduct was the attribute. Arguably, the Tribunal may be permitted to take a broad-brush approach to the question of how another person may have been treated. While not expressing a concluded view about the significance of the difference between the Tasmanian legislation and other legislation in Australia it is arguably the situation in Tasmania that the exercise of defining the comparator and the precise circumstances to be taken into account undertaken by the High Court in Purvis need not be undertaken by the Tasmanian Tribunal. There is support for this generalised approach in a decision of this Tribunal in Lawler, John v The Mercury (Davies Bros Ltd) (2006) TASADT 7 at para 151.

235. The difference in the provisions is not material in this particular case and would not result in a different outcome. It seems that the application of s14 of the Tasmanian Act will most often be resolved in practice by a consideration of the reason for the conduct and whether the true reason was due to the attribute. In reality, the difference between the provisions may not be particularly significant as cases will most often resolve on the question of the true reason for the conduct (see Shamoom v Chief Constable of the RUC (2003) 2 All ER 26 per Lord Nicholls at 31).

236. Finally, in relation to legal principles regarding direct discrimination the Tribunal proceeds on the basis that the Complainant bears an onus of proof on the balance of probabilities that she was discriminated against on the basis of an attribute or attributes. The Tribunal applies the approach established by Briginshaw v Briginshaw (1939) 60 CLR 336 at 362. For a more detailed consideration of the authorities reference is made to the Tribunal decisions of Rogers v Hanusiewicz Medical Pty Ltd (2004) TASADT 14 paragraphs 35-37.

237. A critical question that must be asked is about the true reason or reasons for the Respondent’s conduct and whether it was related to the Complainant’s attributes of sexual orientation, gender or relationship status. An important first step is to ascertain the reason or reasons by a consideration of the evidence and all the surrounding circumstances. The Complainant submits that an inference can be drawn from a consideration of the evidence that the true reason for the Respondent’s conduct was her attribute/s.

238. There is an explanation expressly stated by the Respondent in relation to some of the conduct. A reason has been given relating to the accuracy of the content of the reports. As indicated, the Tribunal accepts the explanation of the journalist that she considered the information in the reports was accurate and that the evidence provided support for the reports. As noted there were reasons why a reporter hearing the evidence on the first day of the case may have understood the evidence as she did; establishing that the genesis of the false allegations against the Complainant, leading to her grievance, against management, was that she had been having an affair with a co-worker’s partner. The Tribunal accepts that the other inaccuracies in the reports resulted from genuine error or misunderstanding. The true reasons for the inaccuracies in the reports are unrelated to the Complainant’s sexual orientation or gender.

239. It is also understandable, bearing in mind the observations previously made by the Tribunal, that the so called affair appeared to be a prominent issue in the case and that the core issues from the Complainant’s point of view were less evident. While the affair was not such a prominent issue in the 2nd day of the hearing, prominence of that issue had been established by the report on the first day and the coverage of the second day was, in part, a continuation of that report.

240. Still dealing with the reasons for the Respondent’s conduct and the reason why the Metro Case was given such prominence, the Tribunal notes that according to the evidence of Ms Heather Low Choy, a significant factor relating to the newsworthy value of the story was that the claim was an Anti-Discrimination Claim against Metro Tasmania (see proof of evidence of Heather Low Choy R3). The Tribunal accepts that evidence as well.

241. The question arises as to the reasons for the emphasis and slant in relation to the reports, the reasons for the sensationalised headlines and the provocative Day Bills. A number of factors are noted: the high profile employer, the apparent prominence of the affair in the Metro Case, the Complainant’s robust presentation and her own style of giving evidence that at times was sensationalised. This was a case that to a reporter had some attention grabbing and dramatic aspects to it and those aspects were being spelt out in a public forum and from the Respondent’s point of view were being reported as such.

242. In relation to evidence that the articles highlighted anti-social conduct of the Complainant such as the taking of drugs and alcohol (noting the evidence of Mr Croome that highlighting this conduct reinforced negative stereotypes of female homosexuals) this evidence was supported by the transcript and was relevant to the proceedings in the Metro Case. The Tribunal finds that the reason for highlighting this evidence was unrelated to the Complainant’s sexual orientation.

243. Pausing at this stage, the Tribunal concludes that it is not persuaded that a reason for the coverage under consideration in this case was the Complainant’s sexual orientation or gender.

244. Turning to the question of whether the Complainant was treated less favourably than a person without her attribute/s the following matters are noted. In like circumstances involving salacious details such as a workplace affair and circumstances involving a high profile employer it appears to the Tribunal that a person without the Complainant’s attributes would have been dealt with in the reports in a similar fashion. By way of example, the Tribunal considers that a heterosexual person or a male homosexual in such circumstances would have received like treatment and that the treatment that the Complainant received was not less favourable.

245. To expand upon this comparative exercise further, in such circumstances, the Tribunal considers that the Respondent would have dealt with a heterosexual person in a similar fashion, focussing on the salacious information and highlighting this information in the headlines and the Day Bill. Clearly, the terminology used would have been different because a heterosexual or male homosexual person would have been involved. Indeed, it is unlikely that the person’s sexuality would have been mentioned if they were heterosexual. However, the coverage may have been just as unfavourable, targeting the affair and trivialising the complaint with the theme that it was lacking in merit and presenting such a person as a wrongdoer. The reference to "lesbian" in the headline and the Day Bill, a point of difference if the Complainant had been a heterosexual, is not enough on its own to amount to less favourable treatment.

PROMOTING DISCRIMINATION

246. The other provision that could arguably apply to the conduct under consideration is s20 of the Act prohibiting conduct promoting discrimination and prohibited conduct.

247. Section 20 is similar in some respects to provisions in other equal opportunity legislation prohibiting certain advertisements and in some instances defining "advertisements" to include signs and notices (for example, see Sex Discrimination Act 1984, Disability Discrimination Act 1992, Anti-Discrimination Act 1977 (NSW) and Equal Opportunity Act (WA)). In this case, the Day Bills may arguably be part of a sign or advertising material of the Respondent Company displayed by the Respondent Company. It is clear that the Day Bills do not express or depict discrimination or prohibited conduct. The question is whether the Day Bills displayed "promotes" discrimination or prohibited conduct. The ordinary meaning of "promotes" in this context involves the concept that a sign must encourage discrimination or prohibited conduct. The Shorter Oxford English Dictionary definition of the word "promotes" includes "to further the growth, development, progress, or establishment of (anything); to further, advance, encourage, 1515 (Oxford University Press, third edition, 1980).

248. There appear to be no Tasmanian cases on this particular provision and in light of the differences between the Tasmanian provision and the provisions dealing with advertisements in other equal opportunity legislation in Australia, any cases from other jurisdictions would be of limited assistance. It is noted that the same provision was in the Tasmanian Sex Discrimination Act 1994 but it appears that the section did not attract judicial consideration.

249. The meaning of s20 is not ambiguous. It is clear from the terms of the section that it requires a close link with discrimination or prohibited conduct. It is not sufficient that a sign or advertisement under consideration merely promotes discriminatory attitudes or attitudes towards others that may underlie prohibited conduct such as sexual harassment. If Parliament had intended to prohibit advertisements that may encourage discriminatory attitudes within the community it would be expected that Parliament would have expressly indicated that indication.

250. In this case, the publications do not promote discrimination or prohibited conduct. The publications endorse and may promote a sensationalistic focus on female homosexuals and to that extent may treat them as different or marginalised in our community but that is not sufficient to fall within s20 of the Act. Even accepting that the Day Bills promoted a homophobic attitude to female homosexuals that could not be sufficient to amount to a breach of s20. At most it could be said in this case that the Day Bills promoted attitudes towards female homosexuals that underlie or may contribute to discrimination of female homosexuals or prohibited conduct towards female homosexuals. That is not sufficient to attract the application of s20 of the Act.

251. The Complainant relied on the public display of the front pages of 11 and 12 March editions of The Mercury on the Internet web-site. The Tribunal considers that such a publication does not amount to a sign, notice or advertising matter.

252. In light of the Tribunal’s conclusions in relation to s20 of the Act it is not necessary to consider whether the Complainant by her own conduct promoted discrimination or prohibited conduct in relation to the Day Bills.

PROHIBITED CONDUCT

253. The Respondent’s conduct was clearly humiliating and ridiculing to the Complainant. Section 17(1), just like s14 of the Act, requires that the conduct was on the basis of the attribute and requires ascertainment of the true reason for the conduct. As already noted, the Tribunal is not satisfied that the Complainant’s attributes were a reason for the Respondent’s conduct.

254. It is noted that s17(1) is narrower in application than s14 and that the attributes referred to in s17(1) are limited to those set out in s16(e), (g), (h), (i) or (j), namely, gender, pregnancy, breastfeeding, parental status, or family responsibilities. The attribute of "sexual orientation" is not included. The only attribute that is referred to in s17 that could potentially apply here is "gender".

255. The Complainant also relied on "relationship status" and argued that that attribute applied. It is not sufficient for the Complaint to show that the publications referred to gender or relationship status. Section 17(1) requires that the true reason for the conduct be that attribute.

256. The Complainant has not shown that gender or relationship status were a true reason for the Respondent’s conduct.

SEXUAL HARASSMENT

257. The meaning of sexual harassment is set out in s17(3) of the Act. This section has a wide application. The only three subsections of s17 that could conceivably apply to this case are (c), (d) or (e). However, having considered this provision the Tribunal concludes that this provision does not apply to the conduct of the Respondent involving publications that are circulated to the general public. This is not a case involving the public display of a statement that has broad exposure so that the Complainant will read it or find out about it. Publications circulated by the media as reporting of a court case to the general public do not qualify as harassment.

258. Having regard to the particular sub-sections of s17 it is plain that they do not apply to the Respondent’s conduct. Sub-section (c) is limited to remarks or statements made to another person or directed to that other person or about another person in that person’s presence. Sub-section (d) is limited to unwelcome gesture, action or comments. An unwelcome comment involves the notion that the comment is directed to a person. Further, reading s17(2) and (3)(d) as a whole, the sexual harassment must be of the complainant. A statement directed to the general public as the audience could not qualify as an unwelcome comment amounting to harassment of the Complainant. It might be successfully argued that in cases involving a statement made in a public forum or given public exposure as the means of directing the statement to a complainant that the provision could apply but that is not the situation here. The only audience is the general public.

259. Sub-section (e) refers to "conduct of a sexual nature in relation to another person". By virtue of the inclusive definition of "conduct of a sexual nature" in s3 of the Act it would include:

260. The subsection would extend to written statements made to a person or in the presence of a person. The Respondent did not make any comment to the Complainant or about her in her presence.

261. That definition is a clear indication of the intention of Parliament that it is necessary for the harassing conduct to be directed at an individual who is subjected to that conduct. To argue that conduct involving publications to the general public falls within sub-section (e) is a distortion of the terms of that section. It requires conduct "in relation to another person."

262. The section is clear – it does not apply to this factual situation. Having regard to the notion of harassment as it is generally understood, it is an inherent aspect of that conduct that it is directed at an individual. Parliament has not shown an intention to abandon that ordinary meaning.

VICTIMISATION

263. Having considered s18 of the Act it is clear that this is not a case involving victimisation as defined in the Act. In particular, it is an essential ingredient of victimisation that one of the paragraphs of s18 be the cause of the detrimental treatment. Those paragraphs do not apply in this case as a reason for victimisation. Section 18 requires that a person must not victimise another person because that other person has acted in one of the ways set out in paragraphs (a) – (d). To expand upon this further, it is not enough that a complainant suffers detriment and that the same complainant made a complaint under the Act. A complainant must have been treated in that way, victimised, because, they made such a complaint. That is not the Complainant’s case. The Complainant’s case is that the detrimental treatment she suffered was a consequence of her attributes not the bringing of proceedings under the Act.

CONCLUSION

264. The Tribunal is not satisfied that the publications amount to a breach of the Act. Even though the complaint before the Tribunal has not been substantiated the Complainant has highlighted a number of matters by bringing these proceedings. Her evidence and the evidence of Mr Croome have been accepted by the Tribunal. The Complainant has shown that the nature of the publications have affected her in a detrimental way. Mr Croome has reinforced the important role of the media in reporting on sexual minorities in our community and he has drawn out how easily negative stereotypical views of these minorities can be unwittingly reinforced by the manner of reporting. He has also placed before the Tribunal general information regarding the potential consequences for individuals of negative reporting in the media and the impact of reinforcing homophobic attitudes within the community. Mr Croome has highlighted the progress that can be achieved in dismantling these attitudes when the reporting is balanced and sensitive. The Tribunal also heard that there is a risk that reporting that has the effect of reinforcing negative attitudes will discourage people coming forward with complaints of discrimination. These are matters that have been usefully highlighted in this case. The Tribunal also considers that the case has drawn out the importance of the media having access to accurate information regarding court cases and the issues under consideration. The Tribunal will refer the decision in this case to the Administrator of Courts so that these remarks can be considered and any appropriate reforms implemented. For example, it may be that a practice should be developed of providing the media at the outset of all Inquiries with an outline of the case and the issues to be considered by the Tribunal.

Order

265. The Tribunal is not satisfied that the Respondent has breached the Act in any respect and accordingly finds that the complaint is unsubstantiated and it is dismissed pursuant to s99(1) of the Act.