ANU v State of NSW

ANU v State of NSW - [2011] NSWCA 412 - NSWCA 2012 case summary — Zoe

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Legal basis of complaint 4Ms ANU complains that the SLHD has refused to provide her with a service or has provided her with a service on certain terms. The conduct is said to breach s 49M of the AD Act: 49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. 5Services are defined, non-exhaustively, in s 4 to include: "services" includes: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 6SLHD's conduct is said to be unlawful because it discriminates against Ms ANU on the ground of her son's disability (HIV positive status). The kind of discrimination alleged in this case is 'direct' disability discrimination as defined in s 49B(1)(a): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, (Emphasis added.) 7A central issue in this case is whether a "relative" in the phrase "the disability of a relative or associate of the aggrieved person" must be alive at the time the alleged discrimination took place. The words "relative" and "associate" are defined separately in s 4: "relative" of a person means any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person. "associate" of a person means: (a) any person with whom the person associates, whether socially or in business or commerce, or otherwise, and (b) any person who is wholly or mainly dependent on, or a member of the household of, the person. 8As long as one of the reasons for doing an allegedly discriminatory act is the disability of the relative or associate, the act is taken to be done for that reason even if it is not the dominant or a substantial reason for doing the act: AD Act, s 4A. 9"Disability" is defined to include: "the presence in a person's body of organisms causing or capable of causing disease or illness": s 4. Section 49A extends the definition of "disability" to include existing, presumed, past, presumed past, future and presumed future disabilities. 10To substantiate her complaint, Ms ANU would have to satisfy the Tribunal that: (1) the SLHD provides people in her situation with an identifiable service; (2) the SLHD refused to provide her with that service or provided her with that service on certain terms; (3) Ms ANU's son is her "relative" and he has a "disability"; (4) in refusing the service or providing the service on certain terms, SLHD treated her less favourably than in the same circumstances, or in circumstances which are not materially different, it treats or would treat a person who does not have a "relative" who has a "disability"; (5) at least one of the reasons for that treatment is the "disability" of her "relative". 11If Ms ANU satisfies the Tribunal of each of these matters, SLHD may have a defence if it can prove that "the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health": AD Act, s 49P and s 104. 12In addition, the SLHD submitted that it is not liable for any breach of the AD Act by virtue of s 35 of the Human Tissue Act 1983.

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15An aggrieved person, such as Ms ANU, must be alive at the time of the alleged discrimination. Whether a "relative" whose disability is the ground for discrimination, must also be alive, is unclear. In Sydney Local Health Network v QY & QZ [2011] NSWCA 412, the Court of Appeal (Young, Macfarlan and Campbell JJA) unanimously decided that an "associate" whose disability is the ground for the alleged discrimination must be a living person at the relevant time. In accordance with the same policy on the reconstruction of bodies that is in issue in this case, the Department of Forensic Medicine did not reconstruct Mr B's body because he was HIV positive when he died. Ms QY and Mr QZ, who were Mr B's friend and de facto partner respectively, complained that they had been discriminated against on the ground of their associate's disability. 16All three Justices agreed that the complaint should be summarily dismissed. Macfarlan JA and Campbell JA came to that conclusion on narrower grounds than Young JA but all regarded the use of the present tense in the definition of "associate" ("any person with whom the person associates") as significant. Young JA said at [143] - [145] that: Friendships do not necessarily last forever. Some are terminated by rifts, some by long absences, others by death. The definition of "associate" uses the present tense and, in my view, means that a person is only an associate so long as the relationship continues. 17At [76] Macfarlan JA agreed with Young JA's view on the meaning of "associate", saying that: . . . s 49B does not extend to discrimination in connection with disabilities of persons who have been in the past, but are not at the time of the discrimination, relatives or associates of the aggrieved person. I have concluded that the present tense used in the section and in the definition of "associate" in s 4 requires that conclusion. 18Campbell JA's more detailed reasoning on this point includes the following passage at [51]: The definition of "associate" uses the present tense, but it is not the timeless present tense. When it talks of "any person with whom the person associates" it is talking about an activity of associating, which is being carried on at the time in question. A can be someone with whom B associates, at any particular time, even if they associate only intermittently, but it is still necessary that the relationship of being an associate has not come to an end through lapse of time or a rift in the friendship or death. 19While it was not strictly necessary to do so, Young JA and Campbell JA also offered their views on the meaning of "relative". Young JA determined the appeal on the broad ground that a deceased person is not a "person" under the AD Act. Macfarlan JA did not express a view on that point. Campbell JA disagreed with Young JA. His Honour was not persuaded that only a living person can be a "person" within the meaning of the AD Act. In remarks at [43], Campbell JA distinguished between relatives and associates: . . . in some circumstances it is possible for a "relative" of a person aggrieved to be a person who is dead, within the meaning of "relative" in s 4 of the Act (relevantly, "any person to whom the person is related by blood"). I see no difficulties as a matter of ordinary English in saying I am related by blood to my great-grandfather, notwithstanding that my great-grandfather is dead. 20As the law stands, when interpreting the definition of discrimination in s 49B, both the aggrieved person and an associate of the aggrieved person must be alive at the time of the alleged discrimination. I am not bound to make a decision in accordance with any of the Justices' views as to the meaning of "relative" because they are obiter dicta and, in any case, inconsistent. The existing state of the law is not affected by the High Court's decision to refuse special leave to appeal against the Court of Appeal's decision: QZ v Sydney South West Area Health Service [2012] HCA Trans 164. The High Court's decision is not binding and it is not specific enough to provide me with any guidance.

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Defined meaning and textual context 21The word "relative" must be construed according to its defined meaning and in the context of s 49B(1) and the whole of the AD Act. It is defined to mean "any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person." The statutory context of the word "relative" is that it appears in the phrase "the disability of a relative or associate of the aggrieved person" in the definition of direct disability discrimination: AD Act, s 49B(1)(a). It also appears in the definition of indirect discrimination and in each definition of discrimination on other grounds including sex, race, transgender, homosexuality and age discrimination. 22In Sydney Local Health Network v QY [2011] NSWCA 412, Campbell JA distinguished between relatives and associates on the basis that the definition of relative uses the timeless present tense ("is related") while the definition of associate does not ("with whom the person associates"). The timeless present tense is used when the situation does not change. Campbell JA gave the following examples: "water freezes at 0C", "Paris is the capital of France", "Shakespeare is the author of Hamlet". Campbell JA regarded blood relatives as always being related even if one person died. His Honour acknowledged that divorce ends the relationship between a married couple. 23I accept that, as a matter of ordinary English usage, a person who is related by blood to another person continues to be related to that person even if he or she dies. That is one strong argument in support of Ms ANU's case. But there are other equally legitimate arguments which support the opposite view. 24Pearce and Geddes have emphasised that the legislature assumes that rather than interpreting a word in isolation, a reader will read the whole phrase or section, indeed the whole Act in which the word appears: Pearce DC and Geddes RS, Statutory Interpretation in Australia, LexisNexis 2006, 6th edition, [4.20]. That is the case regardless of whether a word is defined in the statute. It is also a general assumption that a word is used consistently throughout an Act: Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450 at 452 (Hodges J). 25In context the words "relative or associate" describe various kinds of personal, domestic, social and business relationships one human being can have with another. Those relationships are relationships arising from blood, marriage, de facto partnership, affinity (ties other than blood), adoption, social or business connection, dependency or household membership. Regardless of whether a person is an aggrieved person's relative or associate, discrimination on the ground of the disability of that person is unlawful in certain circumstances. 26It is also relevant that a person may be both a relative and an associate of an aggrieved person. For example, a natural or adopted child of an aggrieved person who is dependent on or a member of the household of the aggrieved person, will fall into both categories. Similarly, a business associate may also be a relative of the aggrieved person. Prior to the amendment of the AD Act in 2008 to add "or the de facto partner of the person" to the definition of relative, an aggrieved person would have had to rely on the fact that their de facto partner was their associate: Miscellaneous Acts Amendment (Same Sex Relationships) Act 2008 No 23, Schedule 1. That was the case for Mr QZ in Sydney Local Health Network v QY [2011] NSWCA 412. Although he was the de facto partner of Mr B, he relied on being his associate rather than his relative because the definition of relative had not been amended at the relevant time. 27The defined meaning and the textual context of the word "relative" do not give a clear answer to the question of whether a "relative" must be alive at the relevant time.

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Purpose of the AD Act 28In Sydney Local Health Network v QY [2011] NSWCA 412, Campbell JA noted that the dual purposes of the AD Act as expressed in the short title are to "render unlawful racial, sex and other types of discrimination in certain circumstances" and "to promote equality of opportunity between all persons". While one purpose of the AD Act is to protect living persons from discrimination, Campbell JA expressed the view at [58] that, at a more general level, its aim is to affect societal standards. His Honour highlighted various provisions of the AD Act including those involving the power of the Tribunal to order certain remedies (s 108) and the role of the Anti-Discrimination Board (ss 119 and 120). Campbell JA's conclusion was that the dual objectives of the AD Act "do not provide any reason for doubting" the conclusion that a relative can be dead at the time of the alleged discrimination. 29In IW v City of Perth (1997) 191 CLR 1 at [12] the High Court was interpreting the word "services" in the Equal Opportunity Act 1984 (WA). Brennan CJ and McHugh J applied the Western Australian equivalent of s 33 of the Interpretation Act 1987 and acknowledged that, like many anti-discrimination statutes, the definition of discrimination and the activities which cannot be the subject of discrimination are defined in a "rigid and often highly complex and artificial manner." Their Honours concluded that, as a result, "conduct that would be regarded as discriminatory in its ordinary meaning may fall outside the Act." The task is one of statutory construction. 30Geddes has urged decision makers to be cautious about general statements contained in legislation as to its purpose or objects: RS Geddes, "Purpose and Context in Statutory Interpretation" in Statutory Interpretation, Principles and pragmatism for a new age, Judicial Commission of NSW Education Monograph 4 - June 2007 p 127 at 153. In that article, the author highlights the High Court's decision in Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797. Heydon J (with whom McHugh ACJ, Gummow, Kirby and Hayne JJ agreed) endorsed Spigelman CJ's view in the Court of Appeal that no legislation pursues its purpose at all costs. It is not the case that whatever furthers the primary objective of the statute must be the law: Rodriguez v United States 480 US 522 (1987) 525-526. 31The consequences of interpreting the word "relative" differently from the word "associate" is that an aggrieved person could obtain a remedy for discrimination on the ground of the disability of a deceased person with whom they have one kind of relationship but not another. Where a person falls within both definitions, an aggrieved person could fail to obtain a remedy by describing the person as an associate rather than a relative. 32Even when the purpose of the legislation is identified, there is no clear cut answer to the question of whether one interpretation of the word "relative" promotes the purpose of the Act while the other interpretation does not: Interpretation Act 1987, s 33.

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Mr X did not have a "disability" 38A further alternative submission put by SLHD was that Mr X did not have a "disability" as defined in s 4(1), s 49A, s 49B and s 49M of the AD Act. At first instance in QY & QZ v Sydney South West Area Health Service, unreported 15 December 2009 at [26] I decided that a deceased person cannot have a disability. SLHD agrees with that conclusion. The Court of Appeal did not decide the issue: Sydney Local Health Network v QY and QZ at [139]. 39SLHD submitted that the dictionary definitions of "disability" assume the existence of life. For example, the Oxford English Dictionary defines disability as "1. Lack of ability (to discharge any office or function); inability, incapacity; weakness. 2. A physical or mental condition that limits a person's movements, senses or activities." 40"Disability" is defined, in part, in s 4 to mean: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. 41In s 49A that definition is extended to refer to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability). 42SLHD submitted that, apart from s 4(b), each part of the definition can only apply to a living person. Paragraph (b), on which Ms ANU relies in this case, must be read in the context of the whole definition. According to SLHD, under s 4(b) not only must there be an organism present in a person's body, but that organism must be "causing or capable of causing disease or illness." SLHD interprets that phrase as applying to the person with the disability. The organism must be capable of causing disease or illness in that person, not in another person. An organism will not be capable of causing disease or illness in the subject person if that person is dead. 43Ms ANU's submission was that it is sufficient for the purpose of s 4(b) if there is an organism present which is capable of causing disease or illness in a third person. 44SLHD also submitted that if Ms ANU's argument were accepted, every deceased person would have a disability because every death is caused by a malfunction of some kind. 45I refuse to summarily dismiss Ms ANU's complaint on the ground that no deceased person has a disability. While I may ultimately have to make a decision about that issue, the arguments put by SLHD do not persuade me that the complaint should be dismissed at this stage as not disclosing a contravention of the AD Act.

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SLHD is not liable for any breach of the AD Act by virtue of s 35 of the Human Tissue Act 1983 49The final basis for summary dismissal of Ms ANU's complaint was that SLHD is not liable for any breach of the AD Act by virtue of s 35 of the Human Tissue Act 1983. That provision states that: 35 Exclusion of liability of persons acting in pursuance of consent or authority (1) Where: (a) a person carries out a procedure, and (b) a consent or authority under this Act is sufficient authority under this Act for the person to carry out the procedure, the person is not liable to any other person in respect of anything done or omitted to be done by the firstmentioned person in the carrying out of the procedure. (2) Subsection (1) does not relieve a person from liability for negligence in respect of anything done or omitted to be done by the person in the carrying out of a procedure. 50It appears that a "procedure" in s 35 includes the carrying out of a post mortem examination and that the "Authority for Non-Coronial post mortem examination" originally signed by Ms ANU was "a consent or authority under the Human Tissue Act" sufficient for the person to carry out the procedure. 51A similar provision was in issue in Sydney Local Health Network v QY. Young JA, in obiter remarks from [158] found that s 52A of the then Coroners Act 1980 exempted the medical practitioners involved in a post mortem from liability under the AD Act. That provision states that: Nothing done by a medical practitioner or other person in good faith for the purposes of making a post mortem examination, or a special examination or test, pursuant to a direction under this Act subjects the person personally to any action, liability, claim or demand. 52Young JA held that s 52A "endeavours to cover the field" and a claim against a medical practitioner is an "action". His Honour concluded at [160] that a medical practitioner conducting a post mortem examination "may commit an act of discrimination against a person, but, if that discrimination occurs, the medical practitioner will not be liable for the consequences." Furthermore, as the medical practitioner is not liable, SLHD cannot be vicariously liable for his or her acts. 53SLHD submitted that the operation and effect of s 35 of the Human Tissue Act is the same as that of s 52A of the Coroners Act and that the conclusions of Young JA, although obiter, are correct. Ms ANU's response was that no procedure was ever carried out in this case, nor was any person identified who was to carry out the procedure. The effect of that submission appears to be that SLHD is not liable if it carries out the procedure but is liable if it declines to do so. That is a very strange situation indeed. 54Again, there are arguments for and against SLHD's submission that s 35 of the Human Tissue Act excludes it from liability. Given the uncertainty, I refuse to summarily dismiss the complaint on that basis.

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