Ritson v The Giving Network Pty Ltd & Anor [2021] QCAT 81
- Type of outcome
Queensland Civil and Administrative Tribunal decision
- Year
2021
- Contravention
Discrimination
- Attribute/s
Political belief or activity
- Area
Supplying goods or services
- Outcome
Complaint upheld; Compensation of $5,500 awarded
Summary
Mr Ritson created a page on a web-based fundraising site, called mycause, to raise money for the campaign for Fraser Anning to be re-elected in the 2019 federal election. The site closed the campaign before its end date, and issued a press release explaining why and saying that Fraser Anning and his supporters are the antithesis of a safe space for fundraisers and donors to connect.
Mr Ritson made a complaint under the Anti-Discrimination Act 1991 (the Act) against the company that operated the fundraising site and its director (the respondents). The respondents claimed that what happened was legitimate because of the extreme views expressed by Mr Anning, that is was necessary to comply with other laws, and that they had the right to remove material at their discretion as the terms and conditions of the use of the website do not permit certain material to be used in campaigns.
Discrimination
The tribunal said there was no doubt that closing the fundraising campaign early was less favourable treatment. It was also a failure to supply services and unfavourable treatment of Mr Ritson in connection with the supply of services. The question then was the reason for the closure of the campaign. The director gave different reasons at different times, and the tribunal was satisfied that the reasons for the closure were those stated in the press release, which was the most contemporaneous. The press release included:
Following the horrific attack on mosques in Wellington, New Zealand and the subsequent media coverage of Fraser Anning’s remarks, mycause has decided to shut down all fundraising pages that are raising funds for Fraser Anning and his party’s candidates for the upcoming federal election.
The press release also quoted the director as saying:
In the wake of the attacks and the Senator’s follow up comments, we believe his views and those of his candidates and party do not align with the mycause brand ethos.
The tribunal considered it was clear from the press release that the reason for the early closure of the campaign was the views of Mr Anning and his supporters, and it did not accept that the terms and conditions of mycause had anything to do with the decision.
The tribunal found that in the context of the press release as a whole, and in the circumstances generally, the following quote of the director constituted direct discrimination of Mr Ritson:
We [mycause] offer a space for fundraisers and donors to connect and we feel that the Senator and his supporters are the antithesis of that, so we have promptly taken action.
Although the press release did not refer to Mr Ritson personally but rather to a class of persons, the tribunal considered it is possible for an individual to be treated less favourably by an act that affects a class of persons where there is a specific impact on the individual. The tribunal considered the words went further than disagreeing with Mr Anning’s views, and suggested that Mr Anning and his supporters created an unsafe space in the online fundraising world. This was a deleterious comment about certain people, including Mr Ritson.
Given that at the time that Mr Anning expressed his views he was standing for the Senate, having previously been a Senator, and was commenting on a serious incident that had occurred, the tribunal concluded that the views which mycause found unacceptable were ‘political belief’. The tribunal considered that political belief or activity does not have to be that of the person who received the less favourable treatment – it can be the political belief or activity of others (associative discrimination).
The tribunal considered there was an actual comparator, Senator Molan, who was seeking re-election as a Senator in the same federal election and had a fundraising campaign started at about the same time as Mr Ritson started the campaign for Mr Anning’s re-election. Senator Molan did not hold Mr Anning’s political belief and his campaign was not prematurely closed by mycause.
The tribunal also considered a hypothetical comparator would be a person with a campaign to raise funds for an election candidate whose views aligned with the mycause brand and ethos, or whose views were not those held by Mr Anning. Such a person would not have had their campaign closed prematurely, and there would not have been a press release issued in the terms objected to. The less favourable treatment was therefore on the basis of political belief or activity.
Defences
As to the respondents’ claim that the fundraising campaign breached the terms and conditions of the website, the tribunal said that any terms and conditions must be read as subject to the Act, and it is not a defence to show that the contravention was required or permitted by a private contract. The respondents also claimed it was fair and reasonable to close the campaign, however there is no defence of reasonableness in the case of direct discrimination.
The respondents also claimed that as a national system employer and as a provider of goods and services, they were required to comply with various State, Territory and Federal anti-discrimination legislation, and in removing the fundraising page and issuing the press release, they were complying with the obligations on them to prevent discriminatory conduct.
The tribunal considered this defence under sections 103 and 106 of the Act, which provides that it not unlawful to do an act that is necessary to comply with, or is specifically authorised by, an existing provision of another Act. Existing provisions are those that were in existence as at 30 June 1992 (and another Act means another Queensland Act).
The tribunal then discussed whether the common law defence of necessity might apply. Without deciding whether the defence of necessity is available, the tribunal considered whether any of the Acts referred to by the respondents would invoke a defence of necessity. One provision was identified that might put the respondents in jeopardy, however the jeopardy could only be extinguished by removing the page altogether. As this did not happen, and was not the less favourable treatment complained of, a defence of necessity could not apply.
Discriminatory advertising
Mr Ritson also claimed that the press release was discriminatory advertising in contravention of section 127 of the Act.
The tribunal found that for a contravention of section 127, the notice must indicate an intention to act in a way that contravenes the Act in the future, not merely to report that this has happened in the past. Read as a whole, the press release did not indicate an intention to do something in the future, and section 127 did not apply to the press release.
Victimisation & judicial proceedings immunity
Mr Ritson also claimed that statements made by the respondents in the documents filed in the proceedings, and the director describing his as a vexatious litigant in an email to the tribunal, were acts of victimisation.
The tribunal considered the statements in the contentions were honestly and reasonably relied on by the respondents in responding to the complaint, and although they upset Mr Ritson, they were not a detriment under section 130 of the Act, and therefore not acts of victimisation.
The tribunal had a different view with respect to the email that referred to Mr Ritson as a vexatious litigant. The comment was not required for or relied on in the defence of the complaint, and Mr Ritson found it hurtful. Objectively it was a detriment, and if not for judicial proceedings immunity, it would be an act of victimisation.
Judicial proceedings immunity applies to things said and done in the course of court and tribunal proceedings. It derives from public policy that witnesses, parties, judicial officers, and advocates should be free to make statements in the course of and with reference to judicial proceedings, without fear of subsequent harassing or vexatious litigation, and to prevent re-litigating issues by means of later actions.
The tribunal considered a number of English cases where judicial proceedings immunity has been held to apply, and concluded that the comment was covered by judicial proceedings immunity.
Compensation
The tribunal considered that an appropriate award for the two acts of discrimination that were found proved was $5,000. Aggravated damages of $500 was also awarded because of the conduct of the proceedings in describing Mr Ritson as a vexatious litigant.