Cairns v ANZ Banking Group Limited

Background

1. Mr Cairns was a customer of the first respondent, ANZ Banking Group Limited ("ANZ"). On about 2 September 2005, ANZ sent Mr Cairns a letter, offering him life insurance under a policy called "EasyCover Life". The policy was issued by the second respondent ("OnePath"), which was then known as ING Life Limited. The two companies were related.
2. In its letter, ANZ informed Mr Cairns: Unlike other full life insurance products, we won't ask you questions about your health and we won't demand any medical examinations. As an ANZ customer who is a Permanent Australian Resident and aged between 21 and 59, your acceptance is guaranteed.
3. As indicated, Mr and Mrs Cairns were both born in New Zealand. From 2004, they had resided permanently in Australia. The letter invited Mr Cairns to read an enclosed product disclosure statement, which contained the following: Permanent Residents of Australia aged 21 to 59 are eligible to take out cover under EasyCover Life.
4. The letter invited Mr Cairns to arrange cover by completing and signing an attached form. That form contained a declaration that the persons applying for cover 'are Permanent Residents of Australia and are aged between 21 and 59'.
5. On 18 September 2005, Mr and Mrs Cairns, considering themselves to be permanent residents of Australia, signed the declaration. By an agreed statement of facts summarised below, the parties admit that Mr and Mrs Cairns were at that time not permanent residents of Australia as defined in the policy, but were the holders of special category visas by operation of section 32 of the Migration Act (Cth). That is a form of temporary visa which is valid so long as a person remains a New Zealand citizen. It is not suggested that Mr or Mrs Cairns knew this in 2005, and there is no evidence to suggest they did.
6. They sent the completed form to OnePath.
7. On 1 October 2005 OnePath issued the EasyCover Life policy, naming Mr and Mrs Cairns as the lives insured. That policy contained the following exclusion clause: [The insurer] will not pay the Benefit … if the Life Insured was not aged between 21 and 59 years and a Permanent Resident of Australia on the Policy Commencement Date.
8. 'Permanent Resident of Australia' was defined in the policy to mean, 'an Australian citizen or a person in possession of a Permanent Resident's Visa'. The policy commencement date was defined in the policy schedule as 1 October 2005.
9. Mr Cairns paid premiums under the EasyCover Life policy until 2015. In 2014, he suffered a stroke.
10. On 28 March 2015, a financial planner (the Cairns' daughter-in-law, Katherine Cairns), informed OnePath that New Zealanders living in Australia, including Mr and Mrs Cairns, were not permanent residents of Australia, but held visas under a special category visa system. The Tribunal understands that such visas are unique to New Zealand citizens, enabling them to remain in Australia indefinitely with no work limitation or other conditions, so long as they remain New Zealand citizens.
11. On 9 April 2015, OnePath advised her as follows. We take this opportunity to advise that Charles & Judith Cairns would not be covered from commencement of the policy as they are not citizens or permanent residents of Australia. Therefore, the only option available is to cancel the policy from inception. Please send a signed written request from the client requesting the policy to be cancelled from inception and all premiums refunded to the Bank Account (Reason not a citizen or permanent resident).
12. On 13 April 2015, Mr and Mrs Cairns replied: On the basis that you pointed out that we are not covered under the policy due to not being a citizen or permanent resident, please arrange for all premiums from inception to be refunded to my nominated bank account on file with you.
13. After receiving this request, OnePath cancelled the policy and refunded all premiums paid in accordance with the request.
14. In August 2015, there were discussions between Mr and Mrs Cairns on the one hand and OnePath's Head of Life Insurance, Mr Kerr, on the other, about providing Mr and Mrs Cairns with life insurance, given that Mr Cairns had now suffered a stroke, and would be caught by exclusions for pre-existing conditions if he took out a new life policy. On 7 August 2015, ANZ offered Mr and Mrs Cairns life insurance under the SecureLife policy which had superseded the EasyCover Life policy, and to waive the 5-year exclusion period for the effects of pre-existing conditions.

Complaints of discrimination

1. Before the Tribunal, the applicants were represented by their agent, Mr Faulkner, who had made the complaint to the President on their behalf, and corresponded with Mr Kerr on their behalf. Points of Claim were provided to the Tribunal. They were refined by Mr Faulkner in his oral submissions. He summarised his clients' case in the following way. 1. OnePath discriminated against the applicants on the grounds of their New Zealand nationality or origin, or a characteristic of their nationality or origin (the holding of a special category visa) in the provision of insurance services, by providing them with life insurance which contained an exclusion clause applying to them because they did not hold permanent residency visas - a characteristic which flowed from their being persons of New Zealand nationality or origin. 2. By providing Mr Cairns with marketing material - namely, a brochure and product disclosure statement for EasyCover Life which assured him that he was eligible for cover, and failed to reveal that holders of special category visas were potentially excluded from cover by the exclusion clause - ANZ discriminated against Mr and Mrs Cairns on the same grounds. 3. By marketing the policy, ANZ aided and abetted the discriminatory conduct of OnePath.
2. Mr Faulkner submitted that OnePath discriminated against his clients both directly and indirectly. In terms of the direct discrimination claim, he relied on hypothetical comparators only. The Tribunal had some difficulty eliciting precisely the hypothetical comparators relied on. However, doing our best to understand Mr Faulkner's submissions, it is alleged that, by providing Mr and Mr Cairns with life insurance subject to the exclusion clause referred to above, OnePath treated them less favourably than it would have treated policy holders who were not New Zealand citizens or born in New Zealand and who otherwise satisfied the eligibility requirements.
3. In terms of indirect discrimination by OnePath, the applicants say that OnePath imposed a requirement with which the Cairns could not comply - namely, that applicants must hold Australian citizenship or a permanent residency visa. The base pool, Mr Faulkner submitted, is those ANZ customers who received the marketing material from ANZ in September 2005 and were interested in purchasing the life insurance offered. That pool is to be divided into two groups: those who were born in New Zealand and those who were not. In respect of the second group, a greater proportion were likely to have satisfied the eligibility requirement of Australian citizenship or holding a permanent residency visa than the proportion of those in the first group.
4. As indicated, the applicants allege that, by marketing the EasyCover Life product, ANZ aided and abetted OnePath in perpetrating this discrimination, both direct and indirect.
5. In respect of the alleged direct discrimination by ANZ, they rely on a hypothetical comparator only - namely, ANZ customers: 1. who were Australian citizens permanently residing in Australia, 2. who, in 2005, received the same marketing material about EasyCover Life, and 3. who met the eligibility requirements for cover and were interested in obtaining it, whether or not they applied for or obtained it.
6. The applicants claim that, by causing them to be misled, ANZ treated them less favourably than it would have treated the hypothetical comparators, because the latter would not have been misled into thinking they would be covered by the policy when in fact they would not. In his submissions, Mr Faulkner summarised his clients' position as follows: … it was the implicit misinformation that you were a permanent resident and therefore eligible when the underlying policy meant that you were not. So it's only a New Zealand[er] would have been misled in effect, in fact, by that. If you're comparing a New Zealander to an Australian, no Australian would have been misled by that.
7. They also say that ANZ indirectly discriminated against them. The base pool and sub-groups for comparison are the same as in respect of the allegations against OnePath. The requirement which forms the basis of the indirect discrimination, was defined by Mr Faulkner in his closing oral submissions in the following way: To correctly decide whether one is eligible to apply as permanent residents of Australia or as a permanent resident of Australia without knowing the definition of this term up front, whilst also being told as an Australian customer who is a permanent Australian resident and aged between 21 and 59 your acceptance is guaranteed.
8. The meaning of this is unclear. The ANZ did not require the Cairns to decide their own eligibility, even though, in the fine print, it warned them to make sure the insurance was suitable for them. It told them they were eligible. Doing our best to understand Mr Faulkner, we interpret him to mean that ANZ required its customers who received the material to hold Australian citizenship or permanent residency visas in order to be eligible for cover. That is essentially the same requirement as alleged against OnePath.
9. In the course of extensive oral and written submissions, Mr Faulkner relied on a number of authorities, but primarily on two decisions of the former Administrative Decisions Tribunal at first instance: Sydney University Postgraduate Representative Association (SUPRA) v Minister for Transport Services [2006] NSWADT 83, and Faulkner v Ace Insurance Limited [2011] NSWADT 36. In SUPRA, the Tribunal found that, in providing concessional fares to Australian students and declining to provide concessional fares to full fee paying overseas students, the State Transit Authority and others had directly discriminated against three postgraduate students of Chinese and Spanish nationality at Sydney University. It found at paragraph [77]: The STA and the SRA discriminated against the applicants on the ground of their race (in this case, their nationality) in the terms upon which they were provided with public transport services because they were charged higher fares than similarly placed people of Australian nationality.
10. The facts in that case were distinguishable from this case because, among other things, there was a stark difference in the terms on which the transport was provided to the different groups under consideration. For the reasons set out below, we are not satisfied that marketing or insurance services were or would have been provided to any persons not of new Zealand nationality or origin on any different terms from those afforded to the Cairns.
11. In Faulkner v Ace Insurance, the advocate for the Cairns in this case, Mr Faulkner, represented himself before the Administrative Decisions Tribunal. He complained that an insurer had refused to provide him with insurance on the grounds of his New Zealand nationality - an attribute of 'race' - by restricting cover to Australian citizens, holders of permanent visas, and 'protected' special category visa holders, in circumstances where he held a special category visa, but not a 'protected' special category visa as defined in the Social Security Act. The Administrative Decisions Tribunal found that he had been directly discriminated against by the insurer, because by confining cover only to the above categories of persons, it had refused him cover actually or constructively, and because persons not of New Zealand citizenship, including Australian citizens, would not have been refused cover in the same circumstances. Those facts were different from this case, as we have found (below) that both marketing services and insurance cover were in fact provided by ANZ and OnePath respectively, and in the circumstances of the instant complaints of direct discrimination the appropriate comparators are persons of New Zealand nationality or origin and persons who are not.

Respondents' case

1. The respondents say that all the complaints should be dismissed, because they are moot, in the sense that all possible issues arising from any alleged discrimination have been resolved. That is because: 1. the EasyCover Life policy has been reinstated on precisely the same terms as in 2005 (except, presumably, the exclusion clause), 2. all premiums paid up to 2015 have been refunded, 3. payment or repayment of all premiums payable up to December 2016 (totalling $25,390.25) has been waived, 4. the terms of EasyCover Life policies issued from 2009 onward do not exclude New Zealanders from cover, and 5. all policy holders prior to 2009 have been informed that New Zealand citizens are covered.
2. In respect of the claim of direct discrimination against both respondents, the latter say as follows: 1. The fact that a person holds a temporary visa (and is therefore not an Australian citizen or the holder of a permanent residency visa) was not generally attributable to persons of New Zealand nationality or origin, or generally imputed to them, because: 1. there is no evidence that most New Zealanders, or New Zealanders generally, held temporary visas in 2005, and 2. the holding of a temporary visa is a feature of immigration status, which forms no part of the definition of 'race'.
3. In respect of the complaint that ANZ discriminated against the Cairns in the provision of marketing services, the respondents say as follows. 1. Unsolicited marketing of the kind provided in this case is not a 'service' for the purposes of section 19 of the Anti-Discrimination Act 1977. Even if it was, the ANZ did not decline that service, but provided it in the same way that it provided the service to all its other customers targeted in the particular marketing campaign. 2. The marketing was not provided on any particular terms or conditions. It was simply provided. 3. The claim in direct discrimination requires proof of both differential treatment and causation: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In this case, the applicants must show that in providing the marketing material to them, ANZ treated them less favourably than persons who were not of New Zealand origin or citizenship in the same circumstances or circumstances that are not materially dissimilar, and that a reason for doing so was their New Zealand origin or citizenship. The only relevant act is the act of providing the marketing material. The same material was provided to all recipients, regardless of national origin. 4. The Tribunal lacks power to determine whether the material was misleading or actually misled the applicants, because it lacks jurisdiction to determine matters arising under statutes of the State (apart from the Anti-Discrimination Act 1977) or Commonwealth. 5. In any event, the effect of the material upon the Cairns - eg, whether they were misled by it - is irrelevant. The Tribunal must determine whether, in providing the alleged service of marketing, the ANZ treated the Cairns less favourably than it would have treated persons without the protected characteristic. As the same material was provided to all recipients, it did not and would not have done so. 6. Causation is not made out, because there is no evidence that the ANZ knew that the Cairns were from New Zealand when it sent the marketing material, and there was no evidence that national origin was taken into account when determining who was to receive the material. On the evidence, the only reason the Cairns were selected for the marketing campaign was that they, like all other persons selected, held accounts of a certain nature with the bank, and were within the targeted age group. 7. There is no evidence that ANZ knew that the Cairns were born in New Zealand. Even if, by reason of its commercial relationship with Mr Cairns, ANZ knew that he had been born there, ANZ did not know that neither of the Cairns held permanent residency visas.
4. In respect of the claim of direct discrimination against OnePath, the respondents say as follows: 1. The relevant 'service' is the provision of life insurance to the Cairns under the terms of the EasyCover Life policy. 2. There was no refusal to provide life insurance. The Cairns were provided with life insurance on the terms of the EasyCover Life policy. 3. There was no differential treatment in the terms on which the insurance was provided. The same terms applied to all persons who applied for the insurance. 4. Even if the exclusion clause did allow the insurer to avoid cover on a claim being made, it was never relied on by the insurer, because no claim was ever made. 5. A person cannot discriminate on the ground of a protected characteristic if they have no knowledge of it: Tate v Rafin [2000] FCA 1582; Matthews v Hargreaves (No 4) [2013] FMCA 4. OnePath cannot have discriminated against the Cairns 'on the grounds of' their national origin, because there is no evidence that it was aware of it. Neither could it have been aware that they were excluded from cover by reason of holding what amounted to temporary or 'special category' visas applicable to New Zealanders because, in issuing the policy, it accepted the truth of the Cairns' declarations that they were Permanent Residents of Australia - understanding that to mean holders of permanent residency visas as defined in the policy - and eligible for cover. 6. Even if differential treatment and causation could be proven, which is denied, the complaint is moot for the reasons outlined above.
5. In respect of the complaint of indirect discrimination by OnePath, the respondents say as follows: 1. To prove indirect discrimination, the applicants must show that they were unable to comply with a requirement or condition imposed by OnePath upon the provision of life cover, and that a substantially higher proportion of applicants for that cover who were not of New Zealand origin or citizenship were able to comply, than the proportion of applicants of New Zealand origin or citizenship. 2. Among the requirements for cover was a requirement that applicants declare themselves to be Australian citizens or Permanent Residents of Australia. If they had not made the declaration they did, the policy would not have been issued. However, they did make the declaration, and the relevant service - the provision of life insurance - was provided. 3. In any event, Mrs Cairns was capable of providing the declaration because, from 1990 until 1 September 1994, persons entering Australia with a New Zealand passport did not require an entry permit, and Mrs Cairns first entered Australia in 1993. 4. There is no evidence that a substantially higher proportion of applicants for EasyCover Life insurance who were not born in New Zealand were capable of providing the declaration than the proportion of other applicants. 5. It was reasonable for the insurer to require such a declaration, because the premiums were set having regard to the actuarial data of Australian Insured Lives Mortality Table IA 90-92 developed by the Institute of Actuaries of Australia, which contained Australian data only.
6. In response to the claim of indirect discrimination against ANZ, the respondents say that no condition was imposed on the applicants in relation to the provision of marketing material, save that they be within a certain age group and held certain kinds of account with ANZ, both of which conditions were satisfied by Mr Cairns.
7. In response to the complaint that ANZ aided the alleged discriminatory acts of OnePath by marketing its life insurance, the respondents say as follows: 1. As OnePath did not contravene the Act, the claim of aiding such a contravention fails. 2. Even if some form of discrimination on the part of OnePath were proven, there is no evidence that ANZ played any role in the selection of the policy wording, or that it knew the terms of the policy could breach the Act.
8. The respondents apply to be heard on costs and on damages.

Legislation

1. In September 2005, racial discrimination was defined by section 7 of the Anti-Discrimination Act 1977 relevantly as follows. (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or … (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) …, something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
2. "Race" was defined in section 4 to include nationality and national origin, among other things.
3. "Services" was defined to include services 'relating to … insurance'.
4. Section 19 provided: It is unlawful for a person who provides (whether or not for payment) … services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those … services, or (b) in the terms on which the other person is provided with those … services.
5. Section 52 provided: It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.

Issues for determination

1. The issues for determination may be summarised as follows: 1. Whether in 2005 the holding by a person of a special category visa (with the consequence that they held neither Australian citizenship nor a permanent residency visa) appertained generally, or was generally imputed, to persons of New Zealand nationality or origin. 2. Whether ANZ provided marketing services to Mr and Mrs Cairns. 3. If so, whether ANZ treated the Cairns less favourably than it would have treated persons not of New Zealand nationality or origin by refusing to provide those marketing services, or in the terms on which they were provided, in the same or not materially dissimilar circumstances. 4. If so, whether it did so on the ground of their New Zealand nationality or origin. 5. Whether OnePath provided life insurance services to the Cairns. 6. If so, whether OnePath treated the Cairns less favourably than it would have treated persons not of New Zealand nationality or origin by refusing to provide life insurance, or in the terms on which the insurance was provided, in the same or not materially dissimilar circumstances. 7. If so, whether it did so on the ground of their New Zealand nationality or origin. 8. Whether, as a condition of providing marketing services, the ANZ imposed a requirement with which the Cairns were not able to comply. 9. If so, whether a substantially higher proportion of the recipients of that material (or recipients who were interested in purchasing EasyCover Life insurance) and who were not of New Zealand nationality or origin were able to comply with that requirement than the proportion of those who were not of New Zealand nationality or origin. 10. Whether, as a condition of providing life insurance, OnePath imposed a requirement with which the Cairns were not able to comply. 11. If so, whether a substantially higher proportion of applicants for that cover and who were not of New Zealand nationality or origin were able to comply with that requirement than the proportion of those who were not of New Zealand nationality or origin. 12. Whether, by marketing life insurance to the Cairns, ANZ aided and abetted OnePath to contravene the provisions of the Anti-Discrimination Act 1977 in the ways alleged. 13. Whether the complaints should be dismissed, or relief declined, because the complaints have been satisfactorily addressed by the reinstatement of the EasyCover Life policy, with waiver of premiums to December 2016.

Evidence of Gerard Kerr

1. Mr Kerr gave written and oral evidence for the respondents. His evidence was interposed at the start of the hearing, to suit his availability.
2. Mr Kerr explained that he is an employee of ANZ, which is the ultimate holding company of OnePath. As part of his duties for ANZ, he has been the head of Life Insurance at OnePath since 2013. From July 2008 to November 2013, he had been its head of Retail Risk Insurance.
3. He said that OnePath had first issued the Easycover Life policy in 2004, before he commenced work there. It was then known as ING Life Limited, and was a wholly owned subsidiary of ING Australia Limited. Forty-nine per cent of the latter company was owned by ANZ, and the remainder by ING Group. In 2010, ANZ acquired all of the shares in ING Australia Limited, and OnePath changed its name to OnePath Limited.
4. In 2009, he said, eligibility for cover under the EasyCover Life policy was changed to include New Zealand citizens. He did not know why. He explained that, as the terms of a contract of life insurance were those described in the policy when it was first taken out, for persons who had entered into the contract of life insurance before 2009, like Mr and Mrs Cairns, the exclusion clause for persons who did not possess Australian citizenship or permanent residency visas continued to apply.
5. In 2010, he said, OnePath ceased to offer life insurance under the EasyCover Life policy. Only existing policy holders continued to be covered under the terms of that policy, so long as they paid their premiums.
6. The EasyCover Life product, Mr Kerr said, was a form of direct insurance, which is purchased directly by an insured from the insurer. It is distinguishable from group insurance, which is provided as part of some other service, such as superannuation, and from individual insurance, which is tailored to cover the particular risks desired by the client, and is assessed by an underwriter - for instance, by way of interview and medical examination - in order to gauge the level of risk and set an appropriate premium.
7. Direct insurance does not involve the assessment process that characterises individual insurance. In the case of the EasyCover Life product, Mr Kerr said, the insurer relied on the insured declaring that they met the eligibility criteria, and set the premium by having regard to the Australian Insured Lives Mortality Table IA 90-92, a copy of which he produced. He said that the eligibility criteria for EasyCover Life reflected the data used in the Table.
8. However, in cross-examination, he admitted that he did not know whether the table included persons residing in Australia who held New Zealand citizenship. He was unable to shed any light on why the persons who drew the policy wording had confined eligibility to persons holding Australian citizenship or permanent residency visas, as opposed to persons who were permanently residing in Australia. He, of course, was not employed by OnePath until 2008, and had not been employed in its direct insurance department.
9. He said that in January 2016, after becoming aware that New Zealand customers holding the EasyCover Life policy were without cover, and after extensive consideration and consultation with appropriate stakeholders, the insurer introduced a 'business rule', which was announced to staff in January 2016 and to about 47,000 policyholders in September 2016. This rule amounted to a unilateral concession by the insurer, that it would provide life cover to New Zealand citizens who took out life insurance under the EasyCover Life policy (and its immediate predecessor) up to 2009.
10. In September 2016, he said, after discussion with the Cairns, the insurer reinstated the EasyCover Life policy from its inception for the benefit of Mr and Mrs Cairns, extending cover to them under the terms of that policy, notwithstanding their visa status at policy commencement and thereafter.

Evidence of Mr Cairns

1. Mr Cairns gave evidence by way of a written statement. He said that he and his wife were born in New Zealand and are New Zealand citizens. When he declared on 18 September 2005 that he and Mrs Cairns were permanent residents, they were both in fact permanently resident in Australia. He said, he 'did not think other than permanent residents of Australia'.
2. He took the ANZ's letter of 2 September 2005 as a clear representation that he was a permanent resident of the kind required by the policy within the required age group. He recalled having used his New Zealand passport in order to open his bank account with ANZ, and so considered that ANZ was well aware of his New Zealand citizenship.
3. He said that he did not closely inspect the policy documents which OnePath provided to him after he had purchased the cover: 'because I was wasn't expecting it to contain conditions that were any different to those in the product disclosure statement and other material sent to me by the ANZ. There were only two eligibility criteria and it appeared plain to me that we met both of them. I never dreamt that the ANZ would sell insurance that did not cover New Zealanders. In fact, the main reason I opened an account with the ANZ rather than another bank is that I believed they would look after New Zealanders.'
4. He said that it was not until 2015, when he attended a superannuation seminar - apparently, the seminar delivered and referred to by Ms Katherine Cairns (below) - that he discovered that New Zealanders were automatically issued with special category visas on entering Australia. He did not previously know that he held a visa of any kind.
5. He asked Ms Cairns to review his life insurance, and discovered 'that we were never covered by our EasyCover life insurance policies'. He described his reaction as one of disbelief, anger and despair that his wife was not entitled to any payment if he had died. He described the cancellation of his life policy as 'humiliating'. He was worried at the prospect that, given his medical conditions including stoke, he would not be able to find replacement cover, putting his and Mrs Cairns' financial security at serious risk.

Evidence of Katherine Cairns

1. Ms Katherine Cairns gave evidence for the applicants, by way of a written statement. She said that she was a financial planner, and indicated how she became aware that the EasyCover Life product did not cover New Zealanders by virtue of their visa status. She said in 2014 she had to advise a widow whose husband had held life insurance about the insurer's refusal to pay the policy on the basis that the insured had been a New Zealand citizen and did not satisfy the criteria for Australian permanent residency or citizenship. Ms Cairns then began to give seminars in Perth for New Zealanders warning them about their potential exposure to the use of such eligibility criteria.
2. In March 2015, her parents-in-law, Mr and Mrs Cairns, attended one of her seminars and asked her to review their life policy. She obtained the product disclosure statement, which revealed the eligibility requirements for Australian citizenship or the holding of a permanent residency visa. She contacted OnePath about it, and received the response dated 9 April 2015 set out at the beginning of these reasons.
3. On 16 April 2015, the insurer confirmed that the policy was cancelled. Premiums totalling $19,423.96 were refunded on 25 April 2015.
4. On 7 August 2015, she said, ANZ offered Mr and Mrs Cairns life insurance under a new policy, called SecureLife Plan, which was a direct insurance policy which had replaced the earlier EasyCover Life policy. They offered to waive the 5-year exclusion for the effects of pre-existing conditions.

Evidence of Professor Kukutai

1. Professor Kukutai gave evidence by way of statement, and oral evidence. She holds a doctorate in Sociology from Stanford University, and is the Professor of Demography at the National Institute of Demographic and Economic Analysis (NIDEA) at the University of Waikato, New Zealand. She examined two tables of data from the 2006 Australian Census of Population and Housing, which were produced in evidence by the Cairns. They were: 1. Australian population by Australian citizenship status, and 2. New Zealand born in the Australian population by Australian citizenship status.
2. She confirmed that the data had been accurately assembled from the census data by replicating it with Table Builder Pro - an on-line software tool provided under license from the Australian Bureau of Statistics. To the question as to whether the responder was an Australian citizen, Professor Kukutai noted a non-response rate of 6.69%.
3. She interpreted the data in each table, excluding non-responders, as follows: 1. In 2006, 92.3% of the 'usually resident population' in Australia (which excludes Australian residents who were temporarily overseas on census night) reported that they were Australian citizens. 2. In 2006, 36.8% of the usually resident population in Australia who were born in New Zealand reported that they were Australian citizens.

Evidence of Professor Bedford

1. Professor Bedford gave evidence by way of a statement and oral evidence. He holds a doctorate in Human Geography (Migration Studies) from the Australian National University, is (among other things) Emeritus Professor and Research Associate in NIDEA at the University of Waikato, President of New Zealand's National Academy, and Chair of the Social Science Experts Panel of the New Zealand Government's Social Policy Evaluation and Research Unit.
2. He, too, examined the two tables referred to in the evidence of Professor Kukutai, and confirmed their authenticity using an online table-building tool. In cross-examination, he admitted that he had used a slightly longer period when interrogating the on-line database, and therefore obtained higher figures than the table as he would expect, but he was nevertheless satisfied that the data in the table accurately reflected the contents of the online database.
3. He admitted that he had not been able to verify certain immigration data because he did not have the relevant permissions (login) to interrogate the government databases, but he said that Professor Kukutai had that permission, and had informed him that she had been able to reproduce the immigration data.
4. In his statement, he observed that the census had been conducted in August 2006, when the data showed there were 389,465 persons usually resident in Australia who had been born in New Zealand. Of these, he said, 35.8% stated that they were Australian citizens, 61.6% stated that they were citizens of other countries, and 2.6 per cent did not reveal their citizenship.
5. He said the data showed that as at August 2006, there were 19,855,287 persons usually resident in Australia. Of these, he said, 86.1% were Australian citizens, 7.2% were citizens of other countries, and 6.7% did not state their citizenship. He concluded: Almost 62 per cent of those born in New Zealand, who were living in Australia at the time of the census, were not Australian citizens - a much higher share than usual resident in the total population who were not Australian citizens.
6. We consider that Professor Kukutai and Professor Bedford are amply qualified to give the opinions which they expressed. We accept that the data relied upon by the Cairns is an accurate reflection of the Australian census data collected in August 2006. Even though the census data relied on responses collected in August 2006, the respondent did not argue that this did not reflect the position in September 2005. In the absence of any evidence that there was any significant change between the two dates, we are prepared to accept, for the purposes of these reasons, that the position as at September 2005 was essentially the same, namely: 1. Of the usually resident population in Australia, about 86% are likely to have been Australian citizens. 2. Of the usually resident population in Australia who were born in New Zealand, only about 36% are likely to have been Australian citizens. 3. It follows that, within the usually resident population of Australia, the proportion of persons not born in New Zealand who were Australian citizens was substantially higher than the proportion of those who were.

Agreed facts

1. The parties helpfully tendered a Statement of Agreed Facts (exhibit F). In summary, they agreed: 1. that on 2 September 2015 ANZ send to Mr Cairns a brochure, product disclosure statement and application form for EasyCover life insurance; 2. that the applicants completed the form on or about 18 September 2005 and submitted it to OnePath; 3. that OnePath accepted their application and on 22 September 2005 issued them with life cover and a policy schedule with a policy commencement date of 1 October 2005; 4. that the Cairns were then, and had been, residing in Australia by virtue of temporary visas, namely Special Category Visas within the meaning of section 32 of the Migration Act (Cth); 5. that neither of the applicants was then, or had been, a permanent resident of Australia as defined in the policy; and 6. that around April 2015, both disclosed that they were not permanent residents, as defined in the policy, to OnePath.

Consideration and findings

1. The agreed facts are consistent with the oral and written evidence, and we make findings in accordance with the agreed facts as summarised above.
2. The evidence of Mr Kerr, Mr Cairns and Ms Katherine Cairns as summarised above is un-contradicted. We accept it as accurate, and make findings in accordance with it.

1. Whether holding a special category visa appertained generally, or was generally imputed, to New Zealanders in 2005

1. As indicated, 'race' is defined in the Act to include nationality or origin. Mr and Mrs Cairns were both of New Zealand nationality and origin. They complain that the respondents directly discriminated against them 'on the grounds of' their nationality or origin, and that their nationality or origin formed at least part of the reason for the discriminatory conduct.
2. The exclusion clause, they say, enabled the insurer to decline payment of a benefit under the EasyCover Life policy if they were not Australian citizens or holders of permanent residency visas. They say that, as they held special category visas, they were neither Australian citizens nor holders of permanent residency visas, and were therefore susceptible to the exclusion clause.
3. They say that in 2005, when the actions complained of occurred, the holding of a special category visa (with the consequence that the visa holder was neither an Australian citizen nor the holder of a permanent residency visa) appertained generally, and was generally imputed, to New Zealanders because, from 1 September 1994, all persons entering Australia with a New Zealand passport had been automatically accorded a special category visa, whether they knew it or not, and New Zealand citizens entering before then were deemed to hold special category visas.
4. In their very helpful submissions, the respondents indicated that, from 1 September 1994, all non-citizens were required to hold a visa, and section 26A of the Migration Act provided for the issue of special category visas to (among others) New Zealand citizens who hold and show to an officer a New Zealand passport. They also indicated that, by operation of regulation 17(1) of the Migration Reform (Transitional Provisions) Regulation 1994, subject to certain exceptions which are not relevant, New Zealand citizens who were lawfully in Australia immediately before 1 September 1994 were 'taken to have been granted a special category visa on 1 September 1994'.
5. This satisfies us that, in 2005, the holding of a special category was a characteristic generally attributable to persons in Australia of New Zealand nationality or origin who had not taken up citizenship or permanent residency.
6. However, the evidence of Professor Bedford establishes that a significant proportion of New Zealand-born persons in Australia in 2006 (almost 37%) had taken up Australian citizenship. It is silent as to how many others had obtained permanent residency visas. The holding of a special category visa cannot have been generally attributed to New Zealanders who had obtained Australian citizenship or permanent residency visas.
7. Section 7(2) requires the applicants to prove that the characteristic on which they rely - here, the holding a special category visa - is one 'that appertains generally to persons of that race or … that is generally imputed to persons of that race'. It is not enough to show, for instance, that the characteristic appertains generally to a subset of persons of a race, such as those New Zealanders who have entered Australia by virtue of a special category visa (or who are deemed to hold one) and who have taken up neither Australian citizenship nor permanent residency. Such a subset excludes New Zealanders: 1. in Australia who have taken up Australian citizenship or permanent residency, and 2. those living outside Australia who do not hold special category visas.
8. While it is not necessary to show that all persons of New Zealand origin or nationality held special category visas in 2005, it is necessary to show that this characteristic appertained generally to persons of New Zealand origin or nationality, not just to a group of them who had entered Australia and had not acquired Australian citizenship or permanent residency. The evidence does not go so far as to show that the characteristic appertained generally to persons of New Zealand origin or nationality, as distinct from New Zealanders who had entered Australia and had not obtained Australian citizenship or permanent residency visas, and we cannot be satisfied that it does.
9. The same can be said of the submission that the characteristic was generally imputed to persons of New Zealand nationality or origin. There is, in addition, no evidence of how or by whom any such characteristic was 'imputed' to such persons.
10. For those reasons, the claims of direct and indirect discrimination against both respondents fail.

(2) Whether ANZ provided marketing services to Mr and Mrs Cairns

1. As indicated, section 4 defined 'services' to including services relating to insurance. A similar definition of 'services' in the Equal Opportunity Act 1984 (WA) was considered by the High Court in IW v City of Perth (1997) 191 CLR 1. Noting that the dictionary definition of service included 'an act of helpful activity', the Court found [per Brennan CJ at 11ff] that the provision of services by a local council, such as garbage collection, water, gas and electricity supply, were services, but that the determination by a council of an application for planning approval in exercise of statutory power - either by granting or refusing the application - was not.
2. To constitute a 'service' for the purposes of the legislation, it is not sufficient that the activity be helpful or beneficial to any person, but that it be 'helpful or beneficial to the relevant class of persons to which the person alleging discrimination belongs': Rainsford v Victoria [2007] FCA 1059.
3. In this case, the relevant class of persons to whom the Cairns belonged, which caused them to be targeted in the marketing campaign by ANZ, was customers of the ANZ within a certain age group who held certain forms of account with the bank, and who lived in Australia. We accept that making an offer of life insurance to such a group, or perhaps more correctly, the act of alerting them to its availability as ANZ did, was a beneficial or helpful activity to the members of that group.
4. For those reasons, we are satisfied that, in providing marketing material to Mr Cairns about the EasyCover Life policy, ANZ provided him with services relating to insurance, even though the material was unsolicited.

3. Whether ANZ treated the Cairns less favourably than it would have treated persons not of New Zealand nationality or origin by refusing to provide marketing services, or in the terms on which they were provided

1. As we have found, the ANZ provided marketing services to Mr Cairns. There was no refusal to do so.
2. It did not provide those services to him on any terms. They were unsolicited. They were provided without fee or conditions. He was free to read the material or dispose of it, or both, as he wished.
3. For those reasons, it cannot be said that the ANZ treated him less favourably, in the terms on which it provided the material, than it would have treated any other person to whom it sent the material, whether on the grounds of race or otherwise.
4. The applicants say that the effect of the material was to mislead Mr and Mrs Cairns into thinking that they were eligible for cover by reason of their permanent residency of Australia. Of course, they were permanent residents in the colloquial sense because they resided here permanently, even if for the purposes of migration law they were classed as temporary residents by reason of their holding special category visas. As the terms of the policy ultimately showed, permanent residency in the colloquial sense was not enough to avoid the effects of the exclusion clause. To do that, they had to hold permanent residency visas, not special category visas.
5. The respondents submitted, as we understand it, that the Tribunal lacks power to determine whether they were misled, or whether the material was innately misleading, because those are facts potentially relevant to findings under statutes, Commonwealth and State, in respect of which the Tribunal has no jurisdiction. In our view, the Tribunal has power to make any finding of fact relevant to a determination as to whether any provision of the Anti-Discrimination Act 1977 has been breached, whether or not such a finding of fact is also relevant to determinations which might be made under other legislation.
6. Assuming in favour of Mr and Mrs Cairns, without finding, that they were misled by the marketing material into thinking that they would not be caught by an exclusion clause within the policy, which describes an effect upon them of the material itself. It is not a term of providing the marketing material. As indicated, the marketing service was provided without terms. Nor was there a refusal to provide the service. On the contrary, the service - being the provision of marketing material - was provided.
7. For those reasons, the complaint that ANZ discriminated against the applicants or either of them in the provision of marketing services fails.

4. Whether ANZ treated the applicants less favourably on the ground of their New Zealand nationality or origin

1. Having regard to the preceding finding, it is strictly speaking unnecessary to decide causation, but in deference to the applicants' submissions on the issue, we consider it below.
2. To satisfy the requirement for causation, a complainant must show that the protected characteristic formed part of the reason or motivation for the discriminatory conduct. As the High Court of Australia observed in Purvis v NSW (Department of Education and Training) (2003) 217 CLR 92 at 161: The answer to the question presented by treatment "because of" disability does not determine the separate, comparative question which must be asked: how would the discriminator treat or have treated a person without the disability in the relevant circumstances?
3. And at 163: ... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. It would be a mistake to treat those words as substitutes for the statutory expression of "because of".
4. The reasoning in Purvis was considered by the Appeal Panel of the Administrative Decisions Tribunal in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The Panel observed [at 28]: The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motive and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.
5. In this case, it is at least possible that ANZ had corporate knowledge that Mr Cairns was of New Zealand origin because, on his evidence, he had produced his New Zealand passport as proof of his identity when opening an account with the bank.
6. However, even if, by reason of its banking relationship with Mr Cairns, ANZ knew he was a person of New Zealand nationality or origin, there is no evidence that it knew he held a special category visa in 2005 and was thereby susceptible to an exclusion clause within the policy. For all it knew, he could have obtained Australian citizenship or permanent residency status.
7. There is no evidence that ANZ or its officers who were responsible for executing the marketing campaign knew that the policy contained an exclusion clause which the insurer could rely on, if it wished, to deny a benefit to holders of special category visas. It is highly unlikely that it knew that he held a temporary visa attracting the operation of the exclusion clause, because it declared to him in its letter: As an ANZ customer who is a Permanent Australian Resident and aged between 21 and 59, your acceptance is guaranteed.
8. On the evidence of Mr Kerr, Mr Cairns was selected to receive the marketing material because he was a customer of the bank with a certain type of account, he was within the target age group, and (we readily infer) he resided in Australia. There is no evidence of any other reason for ANZ providing him with marketing services.
9. We are not satisfied that his New Zealand nationality or origin, or his holding of a special category visa with the consequences outlined previously in these reasons, formed any part of the grounds for ANZ providing him with marketing material. The causation element is not satisfied. On that basis also, the claim of direct discrimination against ANZ fails.

(5) Whether OnePath provided life insurance services to Mr and Mrs Cairns

1. As indicated, 'services' is defined to include services relating to insurance. The provision of life insurance to an applicant is a 'service' for the purposes of the Act. In issuing the EasyCover Life policy to Mr and Mrs Cairns in 2005, OnePath provided them with services relating to insurance.
2. The fact that, unknown to the parties at the time, an exclusion clause was available to the insurer by which it could have denied a claim does not negate the fact that a contract of insurance was entered into. There was no refusal to do so.
3. As no claim was ever made, none was refused. Whether it would have been refused would depend on whether the insurer decided to rely on its exclusion clause. It would not have been bound to do so. It could decide to pay the benefit and not rely on the exclusion clause if it wished. Whether it would have relied on the exclusion clause if a claim were made is a hypothetical question. It is not an issue for determination in these proceedings; because we are called on to decide only whether there was direct discrimination by OnePath in 2005, either by refusing to provide insurance services, or in the terms on which it provided them. As indicated, we are satisfied that it provided insurance services by entering into a contract or contracts of life insurance with Mr and Mrs Cairns.

6. Whether OnePath treated the Cairns less favourably than it would have treated persons not of New Zealand nationality or origin by refusing to provide life insurance, or in the terms on which the insurance was provided.

1. As we have found (above), there was no refusal to provide life insurance.
2. The terms on which the insurance was provided were the same terms provided to all other applicants for life insurance. There is no evidence that any different, or more favourable, terms were or would have been provided to applicants not of New Zealand nationality or origin, or to applicants not holding special category visas.
3. As indicated above, the fact that an exclusion clause might have been relied on to defeat a claim which either of them might have made (but did not) is a hypothetical issue, and does not form part of the issues for determination.
4. The terms on which the insurance was provided were the same to all applicants, regardless of nationality, national origin, or the possession of a special category visa.
5. For all these reasons, the complaints of direct discrimination against OnePath fail.

7. Whether any differential treatment by OnePath was done on the ground of their New Zealand nationality or origin

1. There is no evidence that OnePath knew in 2005 that Mr or Mrs Cairns held special category visas, or that they were of New Zealand nationality or origin. They simply declared to OnePath that they were permanent residents of Australia.
2. We are not satisfied that the provision of life insurance to them, in the terms on which it was provided, was done on the ground of race.

8. Whether, as a condition of providing marketing services, the ANZ imposed a requirement with which the Cairns were not able to comply

1. As we have found, ANZ provided marketing services to Mr Cairns in the form of marketing material. The material was provided without request, gratis, and without conditions. We are not satisfied that the ANZ imposed any requirement on him.
2. Even if one characterises the reasons for Mrs Cairns being targeted as part of the campaign as 'requirements' - that is, that he fell within a certain age group, that he was a customer of the bank with certain kinds of account, and that he resided in Australia - those were all requirements with which he was manifestly able to comply, and did comply.
3. Mr Faulkner's submission that ANZ required its customers who received the material to hold Australian citizenship or permanent residency visas in order to be eligible for cover is irrelevant to the issue as to whether ANZ imposed a requirement on the Cairns for the provision of its marketing services. As we have found, it did not.
4. For those reasons, the complaint of indirect discrimination against ANZ fails.

9. Whether a substantially higher proportion of the recipients of that material (or recipients who were interested in purchasing EasyCover Life insurance) and who were not of New Zealand nationality or origin were able to comply with that requirement than the proportion of those who were not of New Zealand nationality or origin.

1. As we have found that ANZ imposed no requirement for the receipt of marketing material with which Mr Cairns was unable to comply, it is unnecessary to consider the issue of proportionality. However, to succeed on this element, the applicants would need to show that a substantially higher proportion of recipients interested in obtaining cover who were not or New Zealand nationality or origin held Australian citizenship or permanent residency visas than the proportion of those who were or New Zealand nationality or origin.
2. The evidence does not go so far. It establishes only that, within the usually resident population of Australia, the proportion of persons not born in New Zealand who held Australian citizenship was substantially higher than the proportion of those who were. The base group - within the usually resident population of Australia - is entirely different from the base group which we are required to consider - namely, persons in receipt of the marketing material who were interested in obtaining cover. It is not possible to infer that the proportion of New Zealand born in one base group who satisfy the requirement is the same as the proportion of New Zealand born in the other base group.
3. Even if a requirement of the kind alleged had been imposed, we are not satisfied that the elements of proportionality are made out.

10. Whether, as a condition of providing life insurance, OnePath imposed a requirement with which the Cairns were not able to comply.

1. As we have found, OnePath provided insurance services to Mr and Mrs Cairns by entering into a contract of life insurance with them. The Cairns argue that it imposed a condition on them, namely, that they be Australian citizens or the holders of permanent residency visas - a condition with which they were unable to comply.
2. In fact, OnePath did not impose any such condition prior to the issue of the policy. It required them only to declare either that they were Australian citizens or Permanent Residents of Australia (those three words being capitalised as indicated) prior to issuing the policy. It did not require them to declare that they held permanent residency visas.
3. Though there is no evidence eon the point, it may be that the capitalisation of the phrase, 'Permanent Residents of Australia', was intended to reflect the definition of that phrase in the EasyCover Life policy. In the absence of any evidence to that effect, we make no finding on it. Even if it was so intended, however, the definition in the policy was not reproduced in the declaration form itself, or in the marketing material provided with it. In those circumstances, the Cairns were able truthfully to declare that they were permanent residents, because they permanently resided here. There was no special definition of 'Permanent Resident of Australia' in the form or the material provided with it, requiring a declarant to hold a permanent residency visa. It follows that the requirement to sign the declaration (truthfully) was a requirement with which the Cairns were able to comply, and did comply.
4. The policy itself, of course, contained an exclusion clause which the insurer might have relied to defeat a claim (if one were ever made) by persons who were not Australian citizens and did not hold permanent residency visas. In the events which occurred - and possibly, by mistake - OnePath did not impose a requirement that an applicant be an Australian citizen or the holder of a permanent residency visa prior to the issue of a policy. In the case of the Cairns, it issued the policy without evidence that they held permanent residency visas.

11. Whether a substantially higher proportion of applicants for life cover and who were not of New Zealand nationality or origin were able to comply with the requirement than the proportion of those who were not of New Zealand nationality or origin.

1. As we have found that no such requirement as alleged was imposed, it is unnecessary to consider the issue of proportionality. Even if such a requirement was imposed, for the reasons already given, the evidence does not demonstrate that the proportionality requirements of the legislation are made out. To succeed, the applicants must show that, of the base group of applicants for life cover - which is essentially the same as the base group in respect of the complaint against ANZ - a substantially higher proportion of them who were not or New Zealand nationality or origin held Australian citizenship or permanent residency visas than the proportion of those who were or New Zealand nationality or origin.
2. As the expert evidence concentrates on a quite different base group - i.e., the usually resident Australian population - it is not possible to draw the inference required. On this ground also, the complaint of indirect discrimination against OnePath fails.

12. Whether, by marketing life insurance to the Cairns, ANZ aided and abetted OnePath to contravene the provisions of the Anti-Discrimination Act 1977 in the ways alleged.

1. As the complaints of discrimination by the respondents have not been proven, the allegation that ANZ aided and abetted breaches of the Act also fails.

13. Whether the complaints should be dismissed, or relief declined, because the complaints have been satisfactorily addressed by the reinstatement of the EasyCover Life policy, with waiver of premiums to December 2016.

1. As the complaints and allegations against the respondents have not been proven, it is unnecessary to consider this defence.

Conclusion

1. For the reasons given, we are not satisfied that Mr and Mrs Cairns or either of them were discriminated against directly or indirectly by ANZ in the provision of marketing services, or by OnePath in the provision of insurance services.

Orders 1. The complaints of direct and indirect discrimination against the first respondent are dismissed. 2. The complaints of direct and indirect discrimination against the second respondent are dismissed. 3. The complaint that the first respondent aided and abetted the second respondent to breach the Anti-Discrimination Act 1997 is dismissed. 4. The parties are to file and serve applications for costs, if any, with supporting submissions, by 14 July 2018.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 June 2018