VCAT concluded that talkback is not a service to callers for the purpose of s 44 of the Act and that the claim should be dismissed for want of prosecution, in this instance being brought at least seven years after the events complained of.
VCAT states
John Casley claims the Respondents discriminated against him in breach of the Equal Opportunity Act 2010 (the EO Act), on the grounds of his political belief or activity and religious belief or activity. He says the discrimination occurred in the delivery of a service to him as a talkback caller on ABC radio.
Mr Casley, the Applicant, was for many years a frequent caller to ABC talkback radio. He was referred to by the radio presenters as ‘John of Brighton’. He says he has not called the morning show on ABC radio operated by the First Respondent, since 2010, when he says that he was banned. He says this occurred after a call to the presenter Jon Faine, the Second Respondent. Mr Casley also claims that in the years 1997 to 2010 Mr Faine discriminated against him in the way he spoke to him.
Mr Casley’s claim was made to the Victorian Civil and Administrative Tribunal (VCAT) in December 2017. The Respondents applied for the claim to be dismissed. The Respondents said that the claim should be dismissed for want of prosecution under section 76 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) (and Clause 18 of Schedule 1 to that Act) because it was made so long after the last of the events about which Mr Casley complains. Alternatively, they said the claim should be dismissed as an abuse of process under section 75 of that Act because the events complained of occurred so long ago and because they have been considered in other actions brought by Mr Casley. Thirdly, they said that the claim should be dismissed because it is not covered by the EO Act.VCAT in addressing whether the Act applies to the claim states
The EO Act prohibits discrimination based on attributes listed in the EO Act, such as race, physical appearance, sex, marital status, gender identity, political belief or activity, religious belief or activity and other listed attributes.
Discrimination based on these attributes is only prohibited in the areas of life set out in the EO Act. Those areas include the provision of goods and services, employment, education and accommodation.
In other areas, the EO Act does not apply. So, for example, a person voting in an election can choose who to vote for based on the candidate’s political views, sex, marital status or even physical features. The voter might or might not be exercising good judgement, but they would not be breaching the EO Act. Similarly, a person deciding whether to purchase a book can do so based on the author’s political or religious beliefs without breaking any law.
Mr Casley claims that the Respondents discriminated against him in the provision of a service. Section 44 of the EO Act provides:
(1) A person must not discriminate against another person— (a) by refusing to provide goods or services to the other person; or (b) in the terms on which goods or services are provided to the other person; or (c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.
(2) Subsection (1) applies whether or not the goods or services are provided for payment.
Mr Casley referred in his Particulars of Claim to talkback as a service to callers.[4] He did not rely on any of the other areas of life in the EO Act and I could not see any other area upon which he might have relied. Accordingly, if the Respondents were not providing services to Mr Casley, then any discrimination, if it did occur, was not a breach of the EO Act.
Mr Casley claims that the Respondents treated him unfavourably because of his political belief or activity when they refused to provide him with the service of speaking on the talkback segment of Mr Faine’s radio program. This occurred when the ABC informed Mr Casley that he was banned from talkback calls to Mr Faine’s program. Mr Casley also claims that Mr Faine discriminated against him in the way he treated him during talkback calls beginning in 1997.
In a document filed after the hearing, Mr Casley said that the Respondents in delivering a service treated him unfavourably by “informing the public that I am racist against Jews and other ...slurs”.
The Respondents submitted that the Applicant should not be allowed to re-characterise his claim at this point. However, this characterisation still concerns the same events and I can see from the Particulars of Claim that this allegation has always been at the base of the Applicant’s claim. He continues to seek an opportunity to deny that he is racist. He says he is anti-Zionist but not anti-Semitic.
The Respondents say they do not provide services to talkback callers.
“Services” is defined in section 4 of the EO Act as follows:
“services” includes, without limiting the generality of the word—
(a) access to and use of any place that members of the public are permitted to enter;
(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;
(c) provision of entertainment, recreation or refreshment;
(d) services connected with transportation or travel;
(e) services of any profession, trade or business, including those of an employment agent;
(f) services provided by a government department, public authority, State owned enterprise or municipal council— but does not include education or training in an educational institution. ...
The Respondents also referred to section 79A of the Australian Broadcasting Corporation Act 1983. Sub-section 79A (1) relevantly provides: "Subject to this Act, the Corporation may determine to what extent and in what manner political matter or controversial matter will be broadcast by the corporation".
The rest of that section goes on to make special provision for broadcasting political matter “at the request of another person”.
The Respondents submitted, and I agree, that section 79A amounts to a statutory entitlement to the ABC to determine political content of a broadcast. The Respondents argued such an entitlement is directly at odds with the idea that the ABC offers a service to those who wish to make political or other comments on talkback programs and must give all of them an opportunity to be heard. I agree.
An obligation to give everyone an opportunity to be heard would produce a very different kind of broadcast, removing the presenter’s function of conducting a conversation about current issues which the listeners want to hear. Programs would become a recitation of the various opinions, some interesting, some not, some nonsensical or banal, of everyone who wants to call the radio station. Unedited, they would not be entertaining or informative. This practical need to edit calls to suit the program indicates that the taking of calls is not a service.
The Respondents do not provide a service to talkback callers. Accordingly, the EO Act does not apply to the Respondents’ actions in choosing talkback callers or in how it treats them, and the claim is not covered by the prohibition of discrimination in the EO Act. Section 75 of the VCAT Act empowers VCAT to dismiss or strike out proceedings which are misconceived. Because the EO Act does not apply to the circumstances in this proceeding, it is misconceived and must be dismissed.VCAT goes on to state
Mr Casley’ claim concerns events between 1997 and 2 July 2010, the date when Mr Casley was told he was “banned” from talkback calls to Mr Faine’s program. Between 1997 and 2010, Mr Casley did not raise the allegation that the Respondents in their treatment of him had discriminated in breach of the EO Act (or its predecessor the Equal Opportunity Act 1995). Similarly, from 2010 to November 2017, Mr Casley did not raise the question of discrimination in relation to being banned.
Turning to Mr Casley’s reasons for the long delay in making this application, he mentioned that for much of the time he had been pursuing other avenues: making a direct complaint to the ABC itself, then to the Australian Communications and Media Authority, then bringing a claim of defamation in Victoria’s Supreme Court. That claim was unsuccessful because it was out of time. Mr Casley appealed to the High Court and that determination was upheld finally on 19 November 2014, as far as I can tell from the Applicant’s material.
Then, Mr Casley said, until November 2017 he was unaware that he could make a claim under the EO Act. He attributed responsibility for this to his lawyers at the time. Further, he said, he was exhausted by the process of conducting litigation.
While all this explains from Mr Casley’s viewpoint why he did not bring the present action until late 2017, it does not excuse the long delay, given the other issues raised by that delay.
It was the Applicant’s choice to pursue other avenues. If that was due to advice he received, the choices were still made on his side of the dispute. Even if he should have had different advice, responsibility for the delay still lies with him as opposed to the Respondents. He should not be punished for ignorance, but ignorance cannot be a complete answer when the other proceedings were so thoroughly pursued, putting the Respondents to considerable trouble as they must have done, and when he had legal advice.
Mr Casley submitted that the Respondents were responsible for the delay. I was unable to follow his reasoning at this point, but doing the best I can, it seems he argued that the Respondents were responsible because they never gave a proper explanation for accusing him of making racist statements. This does not advance his position – it is another way of saying that the Respondents were responsible because they were a party to the dispute. I do not accept that the Respondents did anything to cause the delay.
Mr Casley submitted that since he has recordings of his radio talkback calls, which are not compromised by the passage of time, the quality of evidence is unaffected by the delay.
It is 21 years since the beginning of the period when he says the Respondents began discriminating against him and now it is eight years since the last talkback call he made to the Respondents. Had this claim been brought soon after the events which lead to it, the position would have been different.
The Respondents submitted they are unable now to gather evidence to defend the claim. Now, they said, they are unable to test Mr Casley’s recordings against any of their own, because they have not kept any (except two recordings which they happen to have).
The Respondents submitted, and I accept, that they are not now able to call evidence about surrounding events or other broadcasts not recorded by Mr Casley. Recordings are no longer available to them and time must they say have affected the memories of any witnesses who are still available. The memory of the producers and presenter involved must, they submitted, be affected by the passage of time. I agree.
Mr Casley claims that a key issue is the allegation that he engaged in racist speech. He says he has never done so and refers to his long history of talkback calls. Although Mr Casley has some recordings, the full history is not available in the way it would have been at the time. Neither party is now able to give conclusive evidence about that disputed matter.
I accept that the Applicant’s conduct in waiting until 2017 to make this claim was not wanton or cavalier (as he put it). However, his explanations for the delay are not adequate. The delay is inordinate. It is too great in proportion to all the other issues, including the prejudice to the Respondents and the seriousness of the claim, to now allow the claim to proceed. It would not be in the interests of justice to do so.
While the Applicant sees “justice” as the obtaining of a hearing about the substantive issues, it is my task to consider whether a hearing can be fair at this distance of time from the events. I consider it almost impossible that a fair hearing could be held in these circumstances. The quality of justice must be affected when people’s evidence (including evidence about what was said) is required and the last events relevant to the claim occurred more than seven years before the application was made, particularly as some of them occurred up to 21 years ago.
All of this indicates that the making of a claim after such a long delay amounts to an abuse of process and it should be dismissed for that reason. It is also relevant that the Applicant has already pursued the Respondents at the Australian Communications and Media Authority and via his unsuccessful defamation action.
As Deputy President McKenzie said in Burrows:
While one of the objectives of the [former] Equal Opportunity Act is to provide redress for the victims of discrimination and those making complaints should not be unfairly shut out from pursuing a claim, this must be balanced against matters such as the need for finality and the unfairness to a respondent which is caused by lengthy uncertainty as to whether or not a claim will be brought.
In the defamation proceeding, the Applicant said that the Second Respondent’s statement on air that he was banned because he made racist remarks was defamatory. In the present case, he says he was excluded from talkback because of his political or religious views expressed when (in the Applicant’s own words) he “used the occasion to criticize Zionist racism and praise anti-Zionist Jews” and this “triggered” the ban.
Victoria’s Court of Appeal determined there was no reason to extend the time for the defamation claim beyond the one-year limit set in the Limitation of Actions Act 1958. That was upheld by the High Court. It is in my view logically almost impossible for this Tribunal to overlook a much longer delay in bringing another claim about the same events characterised in a different way. While, as the Applicant put it, VCAT is not subject to all the strict rules which apply in the courts, the logic of those rules must affect the Tribunal’s decisions.
For these reasons, the claim is also an abuse of process because it has been dealt with in earlier proceedings.
Mr Casley said in his Particulars of Claim that the litigation to date has been expensive and time consuming. That is also true for the Respondents. Once the High Court finally determined that the matter was out of time, the Respondents were entitled to expect that the Applicant would not bring a further claim about the same events three years later.In Casley v The Age Company Pty Ltd (Human Rights) [2018] VCAT 1496 earlier in the month a claim by Casley of discrimination in context of advertising services was also dismissed.
VCAT states
This proceeding concerns Mr John Casley’s attempts to place two advertisements for publication with The Age Company Pty Ltd (the Age).
Mr Casley is the Secretary of the Protector Party. The Protector Party has a website which includes a page said to contain its constitution. Membership of the Protector Party is free, and applications must be made in writing. The website has a number of pages which set out policies including about housing, animal cruelty and about worldwide conspiracies led by various governments and groups. ...
The Age’s evidence was that it refused to publish the first advertisement because it regarded it as being confusing, provocative, and potentially insensitive or offensive to some readers of the Age. It was also concerned the language may invoke anti-Semitic feelings.
