REASONS FOR DECISION
Nature of the Preliminary Application
1 Mr Carr alleges he is addicted to methadone. On 1 August 2002 he lodged a complaint with the President of the Anti-Discrimination Board (the Board) alleging disability discrimination in employment.
2 Subsequent to the lodging of this complaint, Mr Carr lodged a further complaint with the Board on 11 September 2002 alleging victimisation by both Respondents.
3 This is a preliminary application in effect seeking summary dismissal of Mr Carr's disability discrimination complaint and summary dismissal of part of his victimisation complaint. Since we have yet to hear any evidence, our decision is not based on an assessment of Mr Carr's case.
4 The Respondents seek relief pursuant to s111(1) of the Act. The relief sought is opposed by Mr Carr. Although strictly the respondent to the application, for convenience Mr Carr is referred to as the Applicant.
Background to the Complaint
5 At all relevant times, Mr Carr was employed by the City of Botany Bay Council (the Council) as a general labourer. From 31 January 2002 until 23 August 2002, Mr Carr's manager was Mr Michael Rowan, the Second Respondent.
6 Mr Carr has been on a registered methadone program for over 4 years. Since 2001 he has been under the care of Dr Chagule at the Regent House Private Clinic (the clinic). He is prescribed a daily dose of 25 ml of methadone syrup. On a weekly basis, three of the daily doses are administered at the clinic. The remaining four are administered as takeaway doses.
7 Mr Carr alleges that methadone addiction falls within para (e) of the definition of disability in s4(1) of the Anti-Discrimination Act 1977 (the Act). Further, and in the alternative, he alleges that he is opioid dependent, that this dependence manifests itself through his addiction to methadone and that opioid dependency is a disability within the meaning of the Act.
8 He alleges that sometime between approximately 28 June 2002 and 1 July 2002, two plastic jars of his methadone were discovered at his workplace. He had not previously advised the Respondents that he was addicted to methadone. He further alleges that following the discovery of his methadone use, he experienced a number of difficulties in the workplace. These alleged difficulties are set out in detail in para 13 of the Points of Claim filed on 3 February 2003:
(a) The Applicant's methadone was placed in his pigeon hole at work, on display to other members of staff, and clearly identifying the Applicant as a methadone user;
(b) The First Respondent's Human Resources Manager told the Applicant on 2 July 2002 that there was "a stigma attached to using methadone";
(c) The Second Respondent told the Applicant on 2 July 2002 that the discovery of the Applicant's methadone use had "blown all his trust" in the Applicant;
(d) The Applicant was not advised of, or invited to attend, a meeting of the First Respondent's Sydney Airport Maintenance Unit staff on 15 July 2002;
(e) The First Respondent's Sydney Airport Maintenance Unit staff were told of the Applicant's methadone addiction at the meeting on 15 July 2002;
(f) The First Respondent's Sydney Airport Maintenance Unit staff speculated about whether there was a risk of infection because of the Applicant's methadone addiction at the meeting on 15 July 2002;
(g) There was discussion between the Respondent's Sydney Airport Maintenance Unit staff at the meeting on 15 July 2002 about how they felt continuing to work with the Applicant;
(h) The Applicant was distressed when he learned that he had not been invited to the meeting, and that his methadone use had been discussed with his work colleagues. The Applicant was also distressed to discover that there had been speculation in the workplace about his possible transmission of the Acquired Immunodeficiency Syndrome or infection of staff with the Human Immunodeficiency Virus or Hepatitis viruses;
(i) Following the meeting on 15 July 2002, the Applicant was advised that he was to be transferred immediately from his work at the Sydney Airport International Terminal to the Domestic Terminal. No other member of the Sydney Airport Maintenance Unit staff was transferred at this time;
(j) Despite the transfer occurring on 15 July 2002, the Applicant was not given a reason for the transfer until 30 July 2002;
(k) The reason eventually given to the Applicant for the transfer was that the Second Respondent had arranged this to avoid any further dispute between the Applicant and another employee, Adam Reynolds, "and to assist with the smooth operation of the unit". However, the Applicant had been also advised that the First Respondent was unable to establish who was at fault in relation to the incident between the Applicant and Mr Reynolds on 5 July 2002, and would not take any action against either employee;
(l) There was no discussion with the Applicant about the decision to transfer him, and not Mr Reynolds, purportedly for a dispute for which the First Respondent had stated it was unable to establish fault on either side;
(m) In the circumstances, the Applicant viewed his transfer as being a punishment;
(n) On 16 July 2002, upon transfer to the Domestic Terminal, the Applicant's new supervisor brought the Applicant a needle disposal bucket for use at work. This action upset the Applicant;
(o) On 24 July 2002 the Applicant was telephoned at home and told that his hours had been cut to 28 hours per week, (from a previous total of approximately 56 hours per week). No explanation was given for this reduction in hours. The Applicant alleges that he had more hours cut at this time than any other member of the First Respondent's Sydney Airport Maintenance Unit. From this date, the Applicant was rostered less hours than the number of hours guaranteed to him in his employment contract;
(p) On 26 July 2002 a false accusation was made that the Applicant had failed to empty the bins at the Domestic Terminal;
(q) On 30 July 2002 the Applicant received a "First and Final" warning letter signed by the Second Respondent, in relation to the false accusation of 26 July 2002, and also in relation to a further false accusation that the Applicant was not at work on 27 July 2002. There was no investigation of the Applicant regarding the accusation of non-attendance, prior to issuing the warning.
9 The President of the Board notified the Council of Mr Carr's complaint by letter dated 1 August 2002. He advised the Council that he was calling a compulsory conciliation conference to try and resolve the complaint. The conciliation conference was held on 9 August 2002. Both the Applicant and the Council were legally assisted.
10 Following the conciliation conference, Mr Carr alleges that he experienced further difficulties at work and that this occurred because he had made a discrimination complaint to the Board. As a consequence, he resigned from his employment on 26 August 2002.
11 He further alleges that the Council sent a letter to his home which caused him distress. The letter dated 27 August 2002, stated inter alia:
"We can only assume that you have commenced your claim in order to secure moneys from the Council which you would otherwise not be entitled to."
12 This letter formed part of Mr Carr's victimisation complaint lodged with the Board on 11 September 2002.
13 Mr Carr claims that the Council discriminated against him, in contravention of s49D(2) of the Act, on the ground of his methadone addiction and/or his opioid dependence.
14 He further claims that the Council discriminated against him, in contravention of s49D(2) of the Act, on the ground that because he is addicted to methadone, he was presumed to have Acquired Immunodeficiency Syndrome (AIDS) or to be infected by Human Immunodeficiency Virus (HIV) (hereafter HIV/AIDS infected) or to have Hepatitis.
15 He further claims that both the First and Second Respondents victimised him, in contravention of s50 of the Act, following the lodging of his original complaint with the Board.
Relief Sought
16 First, we are asked by the Respondents to dismiss the entirety of the disability discrimination complaint on the basis that:
"The complaint is misconceived or lacking in substance, or outside the Tribunal's jurisdiction as the Applicant does not have a 'disability' within the meaning of s4(1) of the Act."
17 Second, we are asked to dismiss the claim that the Applicant was presumed to be HIV/AIDS infected or to have Hepatitis as it was not part of either the complaint of 1 August 2002 or the complaint of 11 September 2002.
18 Third, we are asked to dismiss that part of the victimisation complaint which relies on the Council's letter of 27 August 2002, on the basis that the letter is inadmissible. The Respondents submit that the letter arose in the course of conciliation proceedings conducted between the parties and, therefore, that it is inadmissible pursuant to s94(1) of the Act.
Section 111(1) of the Act
19 Section 111(1) provides:
Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.
20 The Respondents' application has been made prior to the hearing of any evidence in the Applicant's case or the filing of any witness statements by the Respondents. We have determined the application on the basis of the following material:
· Report of the President of the Anti-Discrimination Board, dated 15 November 2002
· Statement of Stephen Carr, dated 31 January 2002
· Report of Dr Beena Chagule, dated 24 January 2003
· Report of Dr Andrew Byrne, dated 30 January 2003
· Report of Dr Stephen Jurd, dated 10 February 2003
· Points of Claim, dated 3 February 2003
21 In order to determine whether a complaint is "misconceived" or "lacking in substance", the Respondents concede that we must take the Applicant's case at its highest. This is consistent with the approach taken by the Tribunal when considering previous s111(1) applications. The approach was summarised in Tredinnick v Wentworth Area Health Service [2000] NSWADT 172 at [32] to [36] and approved in Bradley v State of New South Wales [2002] NSWADT 11 at [30]:
[32] The terms "misconceived" and "lacking in substance" have been considered by many courts and tribunals in the context of interpreting anti-discrimination legislation at both the State and the Commonwealth levels: see for example Assal v Department of Health Housing and Community Services (1992) EOC 92-409; State Electricity Commission of Victoria v Rabel & Ors (1998) 1 VR 102; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; and Khan v Macquarie University and Webster [1999] NSWADT 100.
[33] While there is no commonly accepted definition, we consider it is appropriate to describe a complaint as "misconceived" or "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit: see Langley v Niland & Anor at 107; Reyes-Gonzalez v Sydney Institute of Technology at 6.
[34] We are also of the view that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125; Tannock v State of New South Wales [1999] NSWADT 31 (11 May 1999)). The need for caution is even more apparent in cases where a s111(1) application is made prior to the adducing of the Applicant's evidence at the substantive hearing.
[35] In the circumstances of the present case, in order to ascertain whether the complaint is "misconceived" or "lacking in substance", we propose to take the Applicant's foreshadowed evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act: see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18.
[36] In essence, if we are of the view that the conduct complained of could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint is either "misconceived" or "lacking in substance". If we are not so persuaded, clearly this ground of the Respondent's application under s111(1) of the Act must fail.
See also Crewdson v Niland [2002] NSWADTAP 5 at [31-38]; Commissioner of Police, NSW Police Service v Orr [2001] NSWADTAP 16 at [8] - [20].
22 The decision of the Appeal Panel in Commissioner of Police, NSW Police Service v Orr makes it clear that s111(1) can be relied on to dismiss part only of a complaint. At para [18] the Panel stated:
As noted above, much of the argument before the Tribunal below centred on whether s111 was available to dismiss anything less than the whole of the complaint referred from the Board. Section 111 of the AD Act speaks of dismissal of a complaint which is "frivolous, vexatious, misconceived or lacking in substance, or . . . for any other reason". The four specific descriptions which precede the catch-all ("any other reason") have been held to refer to an insufficiency or absence of merit in the factual basis of the allegations made in the complaint, whereas "for any other reason" is capable of referring to a want of jurisdiction: Langley v Niland & anor [1981] 2 NSWLR 104 at 107D-G. The Tribunal has previously utilised s111 in order to dismiss part only of a complaint, although the point was not argued in the proceedings: Wensley v Director General, Dept of Education and Training [2000] NSWADT 142. For our part, we see nothing objectionable in utilising s111 to dismiss part of a complaint in respect of which the Tribunal does not have jurisdiction, but on one view, there need be no resort to s111 because what is sought to be dismissed was never properly before the Tribunal in the first place (see Phillpot v The Spastic Centre of NSW, unreported, 2 May 2001).
Legislative Provisions
23 "Disability" is defined in s4(1) of the Act as:
(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.
The Applicant relies on para (e).
24 Section 49A of the Act provides:
A reference in this Part to a person's disability is a reference 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).
25 Relevantly, s49B provides:
(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 the disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, 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 disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have the disability or a characteristic that is generally imputed to persons who have that disability.
(3) . . .
(4) A reference in this section to persons who have a disability ('the particular disability') is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
26 Section 49D(2) provides:
It is unlawful for an employer to discriminate against an employee on the ground of disability:
(a) in the terms or conditions of employment which the employer affords the employee, or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or
(c) by dismissing the employee, or
(d) by subjecting the employee to any other detriment.
27 Section 49PA was inserted as an exception to Part 4A of the Act by the Anti-Discrimination Amendment (Drug Addiction) Bill 2001. It commenced operation on 15 April 2002 and provides:
(1) This section applies to the provisions of Division 2 (Discrimination in work), other than sections 49H, 49I and 49J.
(2) Nothing in those provisions renders unlawful discrimination against a person on the ground of disability if:
(a) the disability relates to the person's addiction to a prohibited drug, and
(b) the person is actually addicted to a prohibited drug at the time of the discrimination.
(3) However, nothing in this section makes it lawful to discriminate against a person on the ground of the person having hepatitis C, HIV infection or any medical condition other than addiction to a prohibited drug.
(4) In this section:
prohibited drug means a prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, but does not include:
(a) methadone or buprenorphine, or
(b) any other drug that is declared by the regulations not to be a prohibited drug for the purposes of this section.
Is the Applicant's methadone addiction a disability within the meaning of the Act?
28 The Respondents submit that there is no evidence from either the Applicant or the medical experts to support the contention that methadone addiction as it applied to him in the particular circumstances of the case is a "disability" within the meaning of the Act.
29 They submit that there is no material to support the Applicant's claim that he suffers from a "disorder". They further submit that even if the Applicant does have a disorder, he does not have a disability within the meaning of the Act because at the time of the alleged discrimination he did not demonstrate any of the manifestations which are required to determine that he has a "disability".
30 The Respondents rely on para 13 of Mr Carr's Statement dated 31 January 2003 where he states:
"Basically, methadone controls my life. If I get my daily dose I am fine. I feel calm and relaxed with the world, and able to cope. I can work when I have had my methadone dose. I feel that I have a tolerance to the methadone, so that it does not really affect my day to day life."
31 The Respondents submit that the Applicant's statement above is consistent with the views expressed by Dr Chagule. She reports that if a person is stable on methadone, they aim for a life of normal functioning so that there is "no affect on thought processes, perceptions of reality, emotions or judgment, or disturbed behaviour."
32 We understand the Respondents to be submitting that because the Applicant was under a stable treatment regime during the period in question, and did not manifest any altered thought processes, perceptions of reality, emotions or judgement or disturbed behaviour, his addiction to methadone is not a disability for the purposes of the Act.
33 The Applicant rejects the Respondents' submissions. He submits that the evidence demonstrates that he has a recognised mental health disorder, opioid dependence, for which he receives daily treatment. He further submits that a disorder which affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour should not cease to be a "disability" under the Act because the effects of the disorder are presently alleviated by medical treatment.
34 The Applicant further submits that the Act operates so as to prevent the making of stereotypical assumptions adverse to people with disabilities and to promote the treatment of people on the basis of their capacities. He submits that the definition of disability propounded by the Respondents would severely restrict the very protection the Act is designed to afford and would produce absurd results. For example:
· A person refused employment because they have epilepsy which is stabilised by medication would not have a "disability" within the meaning of the Act unless they actually experienced a seizure at the time of the refusal.
· A person with schizophrenia controlled by a treatment regime so as to allow them to work without restriction, who was dismissed because the fact of their condition was discovered in the workplace, would not have a "disability" within the meaning of the Act.
· A student with Attention Deficit Disorder controlled by Ritalin, would have no protection against disability discrimination under the Act, until such time as they ceased the treatment and their disturbed behaviour returned.
35 The Applicant further submits that the restricted interpretation of the legislative definition of "disability" advanced by the Respondents is inconsistent with the beneficial nature of the Act. Reliance is placed on s33 of the Interpretation Act 1987; IW v City of Perth (1997) 191 CLR 1 at 11 - 12, 18, 22 - 23, 58; Cosma v Qantas Airways Ltd [2002] FCAFC 425; Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 at [87] per Spigelman CJ.
36 The Applicant says that he considers himself to be addicted to methadone and that if he does not receive his daily dose he gets incredibly strong cravings for the drug, and is a complete mess. In para 12 of his Statement he says:
"If I do not receive my daily dose of methadone each day by about 10:00am or 10:30am, I get incredibly strong cravings for the drug. If I do not receive my daily dose of methadone I may experience numerous reactions, which occur in the following order:
· I get a runny nose and eyes;
· I get an uncomfortable feeling all over my body. Even my fingernails and eyelashes being [begin] to feel achy;
· I sweat heavily;
· I become depressed and all my emotions return;
· I become angry;
· I experience vivid recollections of depressed times from my childhood;
· I cannot sleep;
· I have a burning feeling in my stomach, and cough up a steady flow of green bile;
· I go into convulsions;
· I have the sensation of pin pricks like small electric shocks under my skin, up and down my arms and legs and across my body;
· I do not want to talk to anyone about anything else than getting my hit of methadone. I just become focussed on getting the drug, and nothing else matters;
· I go into uncontrollable fits of anger and rage. Even when members of my family or other people try to comfort me or assist me, I lash out and cannot accept their help;
· I go into fits, and fall over twitching. Sometimes I black out;
· I ache in pain all over my body. If I go as long as 24 hours without methadone, I genuinely feel that I am about to die.
· I do not experience all of the above reactions every time I am late taking my methadone dose. The reactions that I experience depend upon how long it is before I get my next dose of methadone."
37 The Applicant's evidence clearly demonstrates that if he does not treat his opioid dependence, he suffers disturbed behaviour, and there is a severe effect on his thought processes, perception of reality, emotions or judgment. This conclusion is consistent with the views expressed by Dr Jurd in his report. Dr Jurd is the Area Medical Director for Drug and Alcohol Services, Northern Sydney Health, and the Director of Drug and Alcohol Services at Royal North Shore Hospital. He states in his report:
"Nearly every opioid dependent person I have seen over the past twenty years has manifested disturbance in each one of these areas [thought processes, perception of reality, emotions or judgment, or disturbed behaviour]. Opioid dependent people think obsessively about their substance, how to get it and how to escape any consequences of its use."
38 Based on the unchallenged medical evidence, we are of the view that the Applicant is addicted to methadone and that he satisfies the diagnostic criteria for opioid dependence set out in the American Psychiatric Association's Manual entitled "Diagnostic and Statistical Manual of Mental Disorders", 4th Edition 2000 (DSM-IV). DSM-IV is a standardised manual used for diagnostic purposes in Australia by Members and Fellows of the Royal Australian and New Zealand College of Psychiatrists.
39 Based on assumed facts consistent with those set out in the Applicant's Statement, Dr Jurd reports:
"A patient on 25 ml (125 mg) of methadone has physical dependence on that methadone . . . the energy required to remain on methadone, i.e. 3 times weekly visits to the clinic and the obsession with obtaining the next dose when deprived, constitute a third symptom of the 7 symptoms of dependence described in DSM-IV. Thus this person satisfies criteria to have the diagnosis of opioid dependence."
40 Dr Jurd's views are consistent with those expressed by Dr Byrne. Dr Byrne has been involved in treating drug addiction for over 15 years. He reports:
"A person who is enrolled in a methadone treatment service is, by definition, opioid dependent, presuming that they attend for doses on a regular basis . . . Opioid dependence is a recognised condition under most psychiatric classifications. This includes heroin, methadone or other types of opioids."
41 Similarly, Dr Chagule, the Applicant's treating doctor, expresses the view in her report that the Applicant is dependent on methadone and that she considers dependence on opiates for daily functioning a disorder (though not a disease or disability).
42 We note that the disorder "opioid dependence" includes both untreated illicit heroin addiction as well as addiction to prescribed drugs such as methadone. It is well recognised that methadone is a synthetic compound used as a substitute in the management of heroin addiction. Dr Jurd states in his report that methadone, as a long half-life drug, requires dosing at only 24-hour intervals to maintain reasonably stable blood levels and to avoid withdrawal symptoms. Heroin, on the other hand, has a short half life of 3 to 4 hours, and is usually injected 2, 3 or 4 times a day to avoid withdrawal symptoms.
43 We understand that the Applicant is on a methadone maintenance program because of a prior addiction to heroin. His disability is claimed to be methadone addiction rather than heroin addiction. (The significance of this is discussed later in this decision.) This claim is consistent with the views expressed by Dr Byrne. He states in his report that it would be incorrect and even misleading to say that a person who is regularly enrolled in a methadone treatment program (and therefore "actually addicted to methadone") was "actually addicted to heroin".
44 It is clear from the medical evidence that regular compliance with a methadone maintenance program enables persons formerly addicted to heroin to lead more stable, less erratic, and less chaotic lives, as their days are not spent seeking the next dose of heroin to avoid the symptoms of withdrawal.
45 We are satisfied that the Applicant's disability is methadone addiction, and that it would be incorrect to describe it as heroin addiction. In reaching this view we have attached particular importance to the following:
· The Applicant has been on a registered methadone program for many years and his treatment is considered to be stable.
· The Applicant's compliance with the program is tested by weekly urine specimens. If he were to test positive for heroin or other drugs, his takeaway doses would be withdrawn.
46 We turn now to discuss the Respondents' submission that because the Applicant did not manifest any altered thought processes, perceptions of reality, emotions or judgment, or disturbed behaviour at the time of the alleged discrimination, he cannot be said to have a "disability" within the meaning of the Act. They maintain that this submission is consistent with the approach adopted by the Federal Court when interpreting the equivalent disability provision of the Disability Discrimination Act 1994 (Cth) (hereafter DDA) - viz para (g) of the definition of disability in s4(1). The Applicant refutes this contention and submits that the Federal Court has made it clear that the DDA equivalent of the definition of disability in the NSW Act provides protection to persons who are discriminated against because they have a relevant disorder, regardless of whether the symptoms of that disorder are manifested at the time of the discrimination.
47 In Marsden v Human Rights and Equal Opportunity Commission [2000] FCA 1619, Branson J declined to uphold the tentative view of the Inquiry Commissioner at first instance that the applicant's opioid dependence did not constitute a disability within the meaning of the DDA. In that case the applicant had been a regular user of prescribed methadone for approximately seven years. He was formerly addicted to heroin. After stating that the alleged disability was the applicant's dependence on methadone, the Inquiry Commissioner observed that although methadone was taken to "relieve against the symptoms of heroin withdrawal", methadone itself was addictive and had accordingly rendered the applicant opioid dependent.
48 As noted by Branson J in Marsden v Human Rights and Equal Opportunity Commission at [54], the Inquiry Commissioner went on to indicate tentative support for the view that a person who suffers a disorder, illness or disease of the kind described in para (g) does not suffer a disability within the meaning of the DDA if the appropriate treatment regime gives relief against the consequences of the disorder, illness or disease even though the treatment itself creates a condition of dependence which may be permanent.
49 The Inquiry Commissioner's construction of the legislative definition of "disability" was expressly rejected by Branson J at [55]:
"In ordinary usage, the words "disorder, illness or disease" encompass a medical condition the symptoms of which can be, and are, alleviated by treatment. Certain disorders are amenable to treatment such that, while taking appropriate treatment, the person suffering from the disorder feels normal and is able to lead a normal life. There are psychiatric conditions, for example, which fit into this category. Nonetheless, in ordinary parlance, the person still suffers a disorder. There is nothing in the DDA which suggests that the words "disorder, illness or disease" in sub-paragraph (g) of the definition of "disability" are not intended to bear their usual meaning."
50 The Applicant submits that the Respondents' present contention is, in effect, that advanced by the Inquiry Commissioner in Marsden . He submits that we should adopt Branson J's interpretation. We understand the Respondents to be submitting that the present case can safely be distinguished from Her Honour's decision in Mar s den on the basis that the Applicant's methadone dependence in that case was only held to be a "disability" within the meaning of the DDA because the Applicant had actually manifested the symptoms of his alleged disorder at the time of the alleged discrimination. We do not accept this submission. There is nothing in Her Honour's reasoning to suggest that she took such a restricted view of the legislative definition of "disability" or that her comments in para [55] were confined to the particular facts of the case. On the contrary, Her Honour specifically states that there is nothing in the DDA to suggest that the words "disorder, illness or disease" in the definition of "disability" are not intended to bear their usual meaning. Thus, the fact that a person who suffers from a disorder feels 'normal' and is able to lead 'a normal life' while taking appropriate treatment does not mean that he or she no longer has a disability within the meaning of the DDA.
51 The Applicant submits that the approach taken by Her Honour in Marsden is consistent with other Federal Court decisions eg Tate v Rafin [2000] FCA 1582; Purvis v State of New South Wales (Department of Education and Training) [2002] FCAFC 503 (currently under appeal to the High Court). The Respondents submit that these authorities are consistent with their primary submission (set out at [32] earlier in this decision).
52 In Purvis v State of New South Wales (Department of Education and Training) the appellant, a student, had an intellectual disability which manifested itself in repetitive anti-social and violent conduct. The Full Court upheld the decision of Emmett J as to the application of para (g) of the definition of "disability" in s4(1) of the DDA in respect of a disorder which affects thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour. The Full Court observed at [37]:
"It is only a . . . disorder . . . that is manifested in certain symptoms that will constitute a disability. Thus, it is the disorder . . . that is the disability. It is not the symptom of that condition that is the disability."
53 In accordance with the above view, the Full Court held at [28], that the appellant's behaviour:
". . . was a consequence of the disability rather than any part of the disability within the meaning of s4 of the Act. This is made quite explicit in subs (g), which most appropriately describes the disability in question here and which distinguishes between the disability and the conduct which it causes."
Similar reasoning was adopted by Wilcox J in Tate v Rafin at [66] - [68].
54 Unless it is caught by the exception in s49PA, we are of the view that the Applicant's methadone addiction is a disability for the purposes of the Act. Since methadone is an opioid, the Applicant's disability can also be defined as opioid dependence, which manifests itself through his methadone addiction (as distinct from his former heroin dependence). It is, however, simpler to define his disability as methadone addiction.
The exception in s49PA
55 The Respondents submit that the Applicant's claimed disability falls within the exception in s49PA. They rely on the Second Reading Speech to the Anti-Discrimination Amendment (Drug Addiction) Bill 2001. This is the Bill which introduced the amendment which became the current s49PA.
56 Section 49PA is set out in full in [27] above. On its face, the section operates as follows:
· Section 49PA is an exception to the general disability discrimination provisions contained in Part 4A of the Act;
· The exception only applies to those areas covered by sections 49D, 49E, 49F, 49G and 49K;
· Because of the exception, it is not unlawful disability discrimination in any of the areas covered by those sections, if both:
(i) the disability in question relates to the person's addiction to a prohibited drug; and
(ii) the person is actually addicted to a prohibited drug at the time of the discrimination;
· The exception does not apply to discrimination on the ground of hepatitis C, HIV infection or any other medical condition. It only applies to addiction to a prohibited drug;
· A "prohibited drug" means any prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985; but expressly does not include methadone or buprenorphine.
57 The Applicant submits that there is no permissible basis for the Tribunal to rely upon the Second Reading Speech. He submits that the meaning of the text inserted as Division 4 of Part 4A of the Act is clear on the face of the legislation, that none of the terms is obscure, and that there is nothing to suggest that the ordinary meaning of the provision would produce a manifestly absurd or unreasonable result. He further submits that a Second Reading Speech may be used as an aid where the meaning of a provision is unclear, but it cannot otherwise be relied upon, and cannot be used as a substitute for the clear text of the legislation.
58 This principle has been applied many times. The leading Australian authority is the joint judgment of Mason CJ, Wilson and Dawson JJ in the High Court of Australia in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518. Their Honours confirm the principle that:
"The words of a Minister must not be substituted for the text of the law . . . It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of parliament as expressed in the law."
59 Kirby J in Pyramid Building Society (in liquidation) v Terry (1996-1997) 189 CLR 176 at 206, cited Re Bolton and confirmed that:
"The Court's duty is to ascertain the purpose of the Parliament as expressed in the language it has used. No attempt to give effect to an inferred purpose authorises a court to neglect the Act's language."
Similarly, Dawson J in Mills v Meeking (1990) 169 CLR 214 at 236-237 cited Re Bolton as authority for the proposition that parliamentary speeches may not be substituted for the text of the law. See also Khan v Commissioner, Department of Corrective Services & Anor (EOD) [2001] NSWADTAP 1 at [40]; Lembecke v SAS Trustee Corporation [2003] NSWCA 136 at [7] per Meagher JA.
60 Section 34(1) of the Interpretation Act permits the Tribunal to rely upon extrinsic material (including a Second Reading Speech) to determine the meaning of a provision, only in the circumstances where a provision is ambiguous or obscure, or if the ordinary meaning conveyed by the text of the provision leads to a result that is manifestly absurd or is unreasonable.
61 In the circumstances of the present case, where the Applicant is addicted to methadone, there is no confusion caused by the language of s49PA. The provision in s49PA(4) means that the exception set out in s49PA(2) does not apply, as methadone is not a "prohibited drug" for the purposes of the exception.
62 There is nothing unclear about the operation of s49PA. Methadone and buprenorphine, which are both used in the treatment of heroin addiction, are expressly excluded from the definition of a "prohibited drug" for the purposes of the exception. There is nothing to suggest that the operation of the section on its clear terms produces an absurd or unreasonable result. We are of the view that no permissible basis has been established for the Tribunal to have regard to the Second Reading Speech.
63 If this view is wrong, in either event we accept the Applicant's submission that the Speech itself provides no basis for the Tribunal to do anything other than apply the provisions of s49PA in the manner set out in [56] above.
64 The Speech commences with a clear recognition of the impact of the Marsden decision on the definition of disability under the Act, and a statement from the Attorney General that the Government of the day does not believe that drug addiction should be treated as a disability. However, the Bill itself then goes on to make no effort to legislate to remove the impact of the Marsden decision, or to exclude substance-related disorders such as opioid dependence from the definition of disability.
65 The Government could have introduced a Bill which amended the definition of disability in s4(1) to state that disability does not include drug addiction or dependence disorders. However it chose not to do so.
66 The inclusion of s49PA as an exception, which applies only to direct employment relationships and not to all of the relevant areas protected against disability discrimination, confirms that despite the Attorney's comments, there was no express intention to legislate Marsden out of application. Marsden was a case of disability discrimination in the area of membership of a club. The disability was opioid dependence, and the drug of addiction was methadone. Branson J's decision in Marsden would have been entirely unaffected by the amendments included in the NSW Bill.
67 We do not understand the Attorney's comments in the Second Reading Speech to mean that prior to the inclusion of s49PA, the Act did not generally include drug addiction or opioid dependence within the definition of disability. Otherwise, as submitted by the Applicant, the amendments introduced by the Attorney would be meaningless. For example:
The Attorney confirms that methadone and buprenorphine are excluded from the definition of "prohibited drug" in the Bill and that they are important forms of treatment for heroin addicts.
However, if drug addiction was already excluded from the existing definition of "disability" in s4(1), the specific exclusion of methadone and buprenorphine by s49PA(4) would be entirely nugatory. This is a most unlikely result.
The Attorney confirms that "[t]he exception in the Bill will apply only when the person is actually addicted to a prohibited drug at the time of discrimination. This will ensure that employers cannot discriminate against person who have overcome their addictions".
The Attorney's words confirm that drug addiction or dependence must be capable of falling within the general definition of disability in s4(1), and that in fact s49PA is, as it reads, a limited exclusion in specific areas.
68 We decline to dismiss the disability discrimination complaint under the provisions of s111(1) of the Act.
Is the imputed disability claim outside the Tribunal's jurisdiction?
69 The Respondents submit that because the claim that the Applicant was presumed to be HIV/AIDS infected or to have Hepatitis (the imputed disability claim) was not part of the originating complaint to the Board, the Tribunal has no jurisdiction to hear and determine the claim. Accordingly, para 7 of the Points of Claim should be dismissed. The Applicant refutes the Respondents' contention and submits that para 7 of the Points of Claim does not introduce a new complaint. Instead, it simply particularises what was contained in the initiating complaint.
70 The Applicant's letter of complaint is a one page handwritten document. It makes no reference to the relevant provisions of the Act and only briefly outlines the alleged unfair treatment the Applicant was receiving from the Respondent as a result of the discovery of his methadone use. It states inter alia:
"work mates are starting telling stories"
71 The Applicant submits that the Points of Claim at para 13(h) do no more than particularise what these stories were:
"There had been speculation in the workplace about the possible transmission of the Acquired Immunodeficiency Syndrome or infection of staff with the Human Immunodeficiency viruses or hepatitis viruses."
72 We are satisfied that we have jurisdiction to hear and determine the Applicant's imputed disability claim. In reaching this conclusion, we have taken into account the following:
· The Applicant was unassisted when he wrote his originating complaint.
· The complaint makes reference to workmates telling stories as a consequence of the Council's discovery of the Applicant's methadone use.
· The Applicant does not seek to widen his complaint by now alleging a different ground of discrimination (such as race or age) to that contained in his complaint.
· The alleged imputation is directly linked to the discovery of the Applicant's methadone use.
73 The finding we have made in [72] above is consistent with a line of well established authority which makes it clear that a written complaint does not serve the purpose of a formal pleading, that it needs only to enable the identification (either directly or indirectly) of the alleged contravention of the Act, and that consideration must be given to the fact that a lay person may have difficulty in articulating the complaint beyond a simple allegation of unfair treatment.
74 In Commissioner of Police, NSW Police Service v Orr the Appeal Panel held at [16] that:
"A failure to provide particulars of a complaint made in writing to the Board does not invalidate that complaint, nor does it deprive the Tribunal of jurisdiction if that complaint is referred for an inquiry; it may prompt a request for particulars and an application under s111 of the AD Act, if they are not forthcoming, but the Tribunal's jurisdiction has been properly invoked, albeit by the referral of a complaint devoid of any factual context."
75 In Reyes-Gonzalez v Sydney Institute of Technology [1998] NSWEOT (6 March 1998), the Equal Opportunity Tribunal of New South Wales held [at 3.9 - 3.10] that:
"A written complaint does not serve the purpose of a formal pleading. Rather, the purpose of a written complaint is to identify (directly or indirectly) an alleged contravention of the Act . . . [F]or practical purposes it is not necessary that a complaint contain a statement of facts or particulars showing how the claim arises. It would be quite contrary to the purposes of the Act if a complainant (who may be a legally unassisted person of non-English speaking background) was to be restricted by an inadequacy in the terms of the complaint."
76 See also Langley v Niland [1984] 2 NSWLR 104 at 108. Simplot Australia Pty Ltd v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 per Merkel J at 93.
77 We decline to dismiss the imputed disability claim set out in para 7 of the Points of Claim.
Is the letter referred to in paras 21 and 30 of the Points of Claim inadmissible?
78 The Respondents submit that the letter dated 27 August 2002 which forms part of the Applicant's victimisation complaint is inadmissible pursuant to s94(2) of the Act as it arose in the course of conciliation proceedings convened by the President of the Board under s92 of the Act. The Applicant refutes this submission and contends that the letter in question had nothing to do with the conciliation proceedings convened by the President.
79 Section 92 relevantly provides:
(1) Where the President is of the opinion that a complaint, other than a complaint that the President has declined to entertain under section 90(1), may be resolved by conciliation, the President shall endeavour to resolve the complaint by conciliation.
(2) The President may, by notice in writing, require the complainant and the respondent, or either of them, to appear before the President, either separately or together, for the purpose of endeavouring to resolve the complaint by conciliation.
80 Section 94(2) provides:
Evidence of anything said or done in the course of conciliation proceedings under s92 shall not be admissible in subsequent proceedings under this Part relating to the complaint (emphasis added).
81 It is widely accepted that the public policy behind the rationale of s94(2) is to ensure that conciliation can be open and free between the parties without any adverse impact arising later. Conciliation is designed to encourage the parties to settle their differences and, for example, to make concessions as to fact or law or to make offers of settlement including compensation. We accept the Respondents' submission that if there were no protection afforded by s94(2), the conciliation process would be seriously hampered.
82 The Applicant's first complaint was lodged with the President of the Board on 1 August 2002. On the same day, the President wrote to the Council, advising it of the complaint and that a compulsory conciliation conference would be held on 9 August 2002.
83 The complaint was not resolved at that conference. We accept the Respondents' submission that at all times after this conference and before the complaint was referred to the Tribunal, the relationship between the parties was governed by the operation of s92(1) of the Act; and that the term conciliation in s92 refers not only to a conciliation conference but to a range of different methods of conciliation (as the practice of the Board demonstrates).
84 The Respondents further submit that the Council's letter of 27 August 2002 was sent to the Applicant at a time when the "course of conciliation proceedings" was continuing. The Applicant refutes this submission and submits that there was no attempt made by the Council to tie its letter into the conciliation proceedings. He relies on the following:
· Although the parties were legally represented before the Board, the letter was sent directly to the Applicant by the First Respondent;
· The letter was not written by or copied to the First Respondent's legal representative;
· A copy was not provided to the Applicant's representative;
· The correspondence was not copied to the President or the Board;
· The correspondence took place after the Applicant had resigned his employment from the First Respondent; and
· The First Respondent did not seek to claim any confidentiality in the letter. Rather, the letter expressly commences "we wish to state for the record . . ."
85 We are satisfied that the Council's letter arose independently of the conciliation proceedings, rather than in the course of them. Accordingly the letter is not inadmissible pursuant to s94(2) of the Act. We decline the Respondents' application to dismiss this part of the victimisation complaint.
Orders
86 The Respondents' application is dismissed.
87 The matter is listed for a case conference on a date to be fixed.