Political belief or activity case studies

The political belief or activity case summaries are grouped into two categories: court and tribunal decisions, and conciliated outcomes.

Court and tribunal decisions are made after all the evidence is heard, including details of loss and damage. The full text of court and tribunal decisions is available from:

Conciliated outcomes are where the parties have reached an agreement through conciliation at the Queensland Human Rights Commission.

Court and tribunal decisions

Fundraising campaign closed down by web-host

Type of outcome Queensland Civil and Administrative Tribunal decision
Contravention Discrimination
Attribute Political belief or activity
AreaSupplying goods or services
Outcome Complaint upheld
Compensation $5,500.00
Year 2021

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.

Ritson v The Giving Network Pty Ltd & Anor [2021] QCAT 81  (3 March 2021)

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Former politician denied job in public hospital

Type of outcome Queensland Civil and Administrative Tribunal decision
Contravention Discrimination
Attribute Political belief or activity
Area Applying for work
Outcome Complaint upheld
Compensation $1,450,771.69
Year 2019

Summary: The complainant was a doctor and a former member of parliament and Assistant Minister for Health. He was sacked as Assistant Minister for Health and resigned from parliament and from the Liberal National Party. He had been critical of the government of the time, being involved in a very public dispute over employment contracts of public hospital doctors. Before going into politics he had been employed in public hospitals throughout Queensland as a physician and geriatrician, and at one stage he was the State President of the Australian Medical Association.

After leaving politics, Dr Davis applied for an advertised position as a specialist geriatric medicine senior medical officer for the Royal Brisbane and Women’s Hospital, and was the only applicant for the position. The standard recruitment procedure was not followed, and Dr Davis was eventually informed that the position had been withdrawn.

The tribunal found that departure from the standard recruitment process by notifying the Board (via the chief executive) would have occurred in the case of an application from any person with a high profile, and accordingly was not less favourable treatment of Dr Davis.

However, the tribunal found that the decision of the CEO to cease the recruitment process and not appoint the complainant amounted to less favourable treatment of him. An inference that the decision was made because of the complainant’s political belief or activity was open on the evidence, and there was no innocent explanation for the decision.

As a consequence of the discrimination, the complainant said he lost dignity, lost his standing in the profession, and lost self-esteem as he had been reduced from a medical director of a major academic clinical department to a clinician incapable of securing a public hospital position. He suffered considerable distress and isolated himself, which resulted in his not applying for further public hospital clinical jobs. He had minimal opportunity to practice his professional skills or engage in professional development that is integral with public hospital clinical practice.

The tribunal found that the discrimination caused the complainant to change from a confident, high achieving medical professional capable of taking responsibility for the management and direction of an entire department of a major public hospital to an anxious, despondent, socially isolated person who demonstrates a lack of purpose, self-worth and drive. The tribunal found the deleterious impact had been long lasting and was ongoing.

Although the complainant did not rely on medical evidence that he sustained a diagnosed psychological disorder, the tribunal found that the impact on his functioning caused by the discrimination is not dissimilar to, and has had serious and debilitating consequences in common with the effects of a diagnosed psychological disorder. The tribunal adopted the reasoning used in Green v State of Queensland as to assessment of damages and considered that in the absence of psychological injury the tribunal should consider the persuasive influence of the Full Court of the Federal Court in Richardson v Oracle . The tribunal considered the impacts of contraventions and awards of damages in the QCAT cases of Green , STU , and Carey , and concluded that the impact on Mr Green and STU were significantly greater than the impact on Dr Davis. The tribunal awarded damages totalling $1,450,771.69 comprised of:

General damages: $50,000.00
Interest on general damages: $4,410.00
Past economic loss: $830,824.83
Lost superannuation: $78,928.35
Interest on past economic & super: $78,784.62
Future economic loss: $407,823.89

As the people responsible for the decision were no longer with the health service, the tribunal found there was no utility in directing executive level officers to undergo education in anti-discrimination, and that is was not warranted on the facts available to the tribunal.

Davis v Metro North Hospital and Health Service & Ors [2019] QCAT 18 (31 January 2019)

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Political party excluded from meeting at hotel

Type of outcome Queensland Civil and Administrative Tribunal decision
Contravention Discrimination
Attribute Political belief or activity
Area Supplying goods or services
Outcome Complaint upheld
Compensation $2,500
Year 2017

Summary: Ms Vuga is the founder member and President of the Love Australia or Leave party and she wanted to hold a meeting in Hervey Bay.  A party member arranged for attendees to meet for drinks at the Beach House Hotel before going to a meeting elsewhere, the location for which would be disclosed at the drinks.

The party prepared a flyer which was widely distributed, including in the hotel.  When the hotel manager saw the flyer the day before the intended drinks and meeting, he made some enquiries and then contacted Ms Vuga.  He had concerns about the possible size of the gathering for drinks in the main bar and the impact on other patrons.  He told Ms Vuga she could not have the meet for drinks at the hotel, and the hotel did not want to be associated with the party. The manager hired security for the intended event and people wearing tee shirts with Love Australia or Leave printed on them were denied entry to the hotel.

The tribunal found there were two substantial reasons why the manager decided not to allow the meet for drinks to take place – one was the impracticality of the arrangements and the way the party had organised them, and the other was the dislike of Ms Vuga’s political views and disagreement with those of the party.

Discrimination on the basis of an attribute happens if the attribute is a substantial reason for the less favourable treatment.

It was direct discrimination when the hotel manager did not permit the gathering at the hotel and when he told Ms Vuga that the hotel did not want anything to do with the party and it was not welcome at the hotel.

The tribunal found that the safety of hotel staff was not a substantial reason for the decision not to allow the gathering to take place, and the tribunal was not satisfied that the decision was reasonably necessary to protect the safety of the staff.

Ms Vuga was awarded damages of $2,500 for the offence she felt when told of the hotel’s decision, that it wanted nothing to do with her party, and that the party was not welcome at the hotel.

Vuga v Persal & Co. Trading Pty Ltd [2017] QCAT 368  (31 October 2017)

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Dismissal because of political belief or activity

Type of outcome Queensland Civil and Administrative Tribunal decision
Contravention Discrimination
Attribute Political belief or activity, and
Association
Area Work
Outcome details Complaint upheld
Compensation $368,033.06
Year 2011

Summary: This was a complaint of discrimination on the basis of political belief or activity, and association with a person with the attribute of political belief or activity, against four local government councillors and the Cairns Regional Council. The complainant's contract of employment was terminated, with no reason being given for termination.

The four individual respondents were councillors of the Douglas Shire Council before it became part of the new Cairns Regional Council in March 2008. The Cairns Regional Council inherited the liabilities of the Douglas Shire Council upon the amalgamation.

The complaint was made out against the Council but dismissed against the individuals because the Local Government Act protects councillors acting in their capacity as elected representatives, except in the case of dishonesty or negligence.

The complainant was engaged by the Council as a general manager for community and corporate services. From 2006 to 2008 the Council was divided by disputes about environmental issues, and was so dysfunctional that after a series of investigations, the local government minister proposed dissolving it. The disputes were largely between the Mayor on one side and the four individual respondents and the Council CEO on the other. The Mayor was supported by Roison Allen, an environmental activist who regularly attacked the four in the local press and council chambers. The complainant was in a de facto relationship with Ms Allen at the time.

During the final term of the Council, the Mayor was critical of the performance of the CEO and eventually the CEO's employment was terminated, and was not reinstated despite efforts by the four to do so.

At a meeting held shortly before the council amalgamation, and while the complainant was on sick leave, the four respondents voted in favour of terminating the complainant's contract, and this was done. The issue of the termination had not been on the agenda and no reasons were given for the termination.

The tribunal found on the evidence that the complainant's contract was terminated 'as an act of political retribution' either as 'political payback against a political opponent', or because of the complainant's association with Ms Allen. Although the respondents had filed documents in the tribunal alleging there were issues with the complainant's performance, they did not give evidence at the hearing.

The tribunal also found that although the contract allowed for termination for any reason on six months' notice (or payment in lieu), this did not allow termination for a discriminatory reason. In effect, parties cannot contract out of the Anti-Discrimination Act 1991 .

Total damages of $368,033.06 was awarded to Mr Carey, which included amounts for past and future economic loss, loss of opportunity, general damage of $30,000 and medical expenses.

Carey v Cairns Regional Council [2011] QCAT 26, 21 January 2011.

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