Mark Latham loses attempt to excuse barrister in NCAT homosexual vilification and sexual harassment case

Former NSW One Nation leader Mark Latham has lost an attempt to recuse a barrister presiding over a harassment and vilification case against him, after arguing her views on transgender people could affect her ability to be neutral. Independent Sydney MP Alex Greenwich has launched proceedings against Mr Latham in the NSW Civil and Administrative Tribunal over allegations of homosexual vilification and sexual harassment. At the centre of a case is a homophobic tweet made by Mr Latham, as well as further comments he made in interviews for a newspaper, radio, and on Twitter (now known as X). The proceedings in the NCAT come just months after the Federal Court in defamation proceedings ordered Mr Latham to pay $140,000 to Mr Greenwich over the homophobic tweet and further defamatory comments in question. Mr Greenwich’s lawyers had argued in the Federal Court that the primary tweet could be understood to mean the MP “engages in disgusting sexual activities” and that he “is not a fit and proper person to be a member of the NSW parliament because he engages in disgusting sexual activities”. The Federal Court found the first point was conveyed and defamatory, but not the second, and dismissed defences of honest opinion and common law qualified privilege by Mr Latham’s lawyers. Mr Latham was ordered to pay Mr Greenwich $100,000 for non-economic loss, and a further $40,000 for aggravated damages. Appearing at NCAT on Monday, Mr Latham pushed for one of the two senior legal members presiding over the case, Mandy Tibbey, be recused from the case over concerns her views on transgender people could affect her impartiality. Taking the stand, he pointed to an academic lecture by Ms Tibbey, which examined issues of the acceptance of transgender people in the Anglican Church, and the potential role of anti-discrimination laws in church laws surrounding sex, gender and sexuality. In the academic piece published online, Ms Tibbey called suggestions that being a transgender person, or having treatment or gender reassignment surgery is “not the Christian way” are “misguided”, among other statements and analysis. Mr Latham argued the NCAT case involved “identity politics”, a topic which he claimed both Mr Greenwich and Ms Tibbey were advocates for, but that stands against and claims is “divisive”. Mr Latham asked how Ms Tibbey could “possibly be neutral on this matter”, and said he was in a state of “disbelief” that she had been allocated the case. “I would’ve thought it’s not so hard for NCAT to ensure … those hearing the matter are absolutely neutral,” Mr Latham said. His impassioned submission was interrupted at one stage, where Ms Tibbey reminded the court this was “not an opportunity for Mr Latham to grandstand and foreshadow his argument”. Mr Latham’s lawyer Zali Burrows further argued documents tendered about Mr Latham opposing Mr Greenwich’s equality bill – which was referred to as the transgender bill in court – could lead Ms Tibbey to have a negative view of her client. “The main concern is that your views are potentially going to be perceived by the fair minded person more in line with the applicant … as opposed to the respondent,” Ms Burrows said. Ms Tibbey told the court the case had “nothing to do with transgender people”, and later determined it wasn’t appropriate for her to recuse herself. Mr Latham’s legal team is expected to seek an application for dismissal on the basis of jurisdiction, with Ms Burrows suggesting the primary tweet was made in the ACT. “I know it’s late, but it’s something that came to my mind in the middle of the night,” Ms Burrows told the court. Ms Tibbey said determining the jurisdictional issue was “vital”. Mr Greenwich’s barrister, Prue Bindon, delivered her opening submission on Monday afternoon, explaining the elements of homophobic vilification alleged in the case hinge on the public act, claiming Mr Latham’s comments had incited hatred, contempt or severe ridicule. She said the sexual harassment allegations were in relation to unwelcome conduct of a sexual nature in circumstances where a reasonable person would’ve anticipated it to cause humiliation or intimidation, and was not to do with unwanted sexual advances. Ms Bindon also anticipated the defence would claim Mr Greenwich’s reputation was to some extent not damaged. Another central claim to the case is that it’s unlawful for a member of parliament to harass a workplace participant or another member at their workplace, which Ms Bindon expected would be rebutted with claims Mr Latham was not a member of parliament at the time of the statements.