Did ACE Directly Discriminate Against Mr Faulkner?
63Having found that ACE refused to supply to Mr Faulkner services relating to insurance under the AERP Policy, the Tribunal now turns to consider whether ACE directly discriminated against Mr Faulkner on the ground of race in so doing.
64The first issue which is required to be considered in this context is what is included in the statutory term "race". "Race" in the ADA includes "colour, nationality, descent and ethnic, ethno-religious or national origin" and Mr Faulkner contends that he was directly discriminated against on the ground of his nationality, being a New Zealand citizen.
65It has been held by the Full Court of the Federal Court in Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202 at 211 that, in the context of the Racial Discrimination Act 1975 (Cth), nationality should be construed as equivalent to citizenship but was different from "national origin". This approach of treating the terms "citizenship" and "nationality" as synonymous has been adopted by the Tribunal in relation to the ADA in a number of decisions including: SUPRA [2006] NSWADT 83 at [62] and [63] and Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [66]. Accordingly, if there is differential treatment of Mr Faulkner on the ground of his New Zealand citizenship this will amount to direct discrimination on the grounds of race under s 7(1)(a) of the ADA.
66The second issue is differential treatment, sometimes referred to as the comparator issue. Was Mr Faulkner treated less favourably than in the same or not materially different circumstances ACE would have treated a person of a different race or, more particularly in the present case, of different citizenship?
67In this regard the Respondent first submitted that there was "no act of direct discrimination". The argument was that the wording of s 7(1)(a) required Mr Faulkner to be "treated" in some way by ACE. Since Mr Faulkner made no application to ACE and could not have made an application for cover under the AERP Policy because he did not hold a David Jones American Express card, ACE had not considered the application or done anything else with regard to Mr Faulkner. In short, it was submitted that ACE had not "treated" him in any way at all.
68Effectively, this is the same argument as the Respondent relied upon to support the contention that there was no "refusal" within s 19(a) of the ADA, which has been dealt with above. For substantially the same reasons, the Tribunal rejects the Respondent's submission that there was no act which could amount to direct discrimination. We are satisfied that by stating that cover under the AERP Policy was restricted to categories of persons which excluded Mr Faulkner and by making clear that it would not alter the policy wording to allow Mr Faulkner to be covered by the AERP Policy, there were acts which might amount to direct discrimination, if the other requirements were satisfied. Refusal to provide services (such as insurance cover), whether actual or constructive, amounts to treatment for the purposes of s 7(1)(a), especially where the unlawfulness of the conduct falls to be considered under s 19(a) of the ADA.
69Mr Faulkner, a New Zealand citizen, was refused cover under the AERP Policy. From the terms of the policy wording and from the correspondence which passed between Mr Faulkner and ACE in September 2009, it is clear that persons not of New Zealand citizenship, such as Australian citizens, would not have been treated in this way by ACE. It has not been suggested that there are any circumstances applicable to Mr Faulkner or his situation, for example, his credit record, employment history or similar matters, that would have rendered him ineligible for a David Jones American Express Card and cover under the AERP Policy. The Tribunal concludes that Australian citizens, in the same circumstances, or circumstances not materially different, would not have been refused cover under the AERP Policy by ACE.
70This finding is sufficient to establish that Mr Faulkner was treated less favourably than a person of a different citizenship or nationality. The circumstance that other non-Australian citizens, for example those with permanent visa status or protected SCV holders, would not have been treated as Mr Faulkner was treated does not prevent a finding that he was not the subject of less favourable treatment than a person of another nationality, and hence, race - see the discussion in Contreras-Ortiz v Commissioner, Department of Corrective Services [2008] NSWADT 308 at [70] to [74].
71Nor does the Tribunal accept that the "same circumstances" in this case requires the comparator not to be an Australian citizen who is entitled to remain in Australia permanently but to be a non-Australian citizen who holds only a temporary visa. Just because Mr Faulkner is only an SCV holder, which is only a temporary not a permanent visa (see ss 30 and 32 of the Migration Act), it does not follow that the comparator cannot be someone entitled to reside permanently in Australia. Section 7(a) establishes that the relevant comparator is to be "a person of a different race" which, in the present context, refers to a person of a different nationality. An Australian citizen is a person of a different nationality from a New Zealand citizen and is a permissible comparator in this case - applying, in the context of racial discrimination, the comments of Gummow, Hayne and Heydon JJ in Purvis v State of New South Wales (2003) 217 CLR 92 at [213] in relation to disability discrimination. The comparison that is to be made under s 7(1)(a) is of the treatment given to Mr Faulkner and the treatment of a person of a different nationality, such as an Australian citizen, "in the same circumstances, or in circumstances that are not materially different" - once again applying the reasoning in Purvis v State of New South Wales (2003) 217 CLR 92 at [214]. This is the comparison that the Tribunal has made.
72For these reasons, the Tribunal finds that the differential treatment limb of s 7(1)(a) has been satisfied.
73The final issue arising for the purposes of s 7(1)(a) is causation - whether the differential treatment of Mr Faulkner was "on the ground of race [or more particularly in this case, nationality or citizenship]". Or, to put another way, was there a causal connection between the differential treatment and Mr Faulkner's race, in the sense of nationality or citizenship?
74It has been held in a number of cases that the phrase "on the ground of" in anti-discrimination legislation does not require an examination of intention or motive - Purvis v State of New South Wales (2003) 217 CLR 92 at [235] and footnote 164. Nonetheless, in Purvis, Gummow, Hayne and Heydon JJ held at [236]:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, 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. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".
75In addressing the question of why Mr Faulkner was treated as he was, regard should be had to the evidence of the Respondent on why it limited eligibility for cover to Australian Residents as defined in the AERP Policy. In Ms Ponsonby's email to Mr Faulkner of 18 September 2009, ACE notes that "the Involuntary Unemployment benefit under the policy requires claimants to register with Centrelink, and it is our understanding that, in order for New Zealanders to do so, they must be Protected SCV Holders".
76This reason for inclusion of the restriction was further elaborated upon by Mr Nisbet in his affidavit evidence. Mr Nisbet was not the manager of ACE responsible for inclusion of the definition of Australian Resident in the AERP Policy and ACE did not call the person who was responsible. No explanation of this failure was given. Nonetheless, Mr Nisbet says that from his experience and knowledge of ACE's policies, practices and procedures, the definition of "Australian Resident" was primarily included in the AERP Policy because of the Involuntary Unemployment Benefit available under the policy. In order to make a claim for that benefit a policy holder was required to obtain written evidence from an Australian Government Agency such as Centrelink to prove that the holder was involuntarily unemployed in Australia and was seeking reemployment in Australia. The definition in the AERP Policy was, according to Mr Nisbet, taken from the Social Security Act definition cited above.
77From this it appears that, whether or not ACE was misguided in its reason for doing so, the real reason why Mr Faulkner was treated differently was not his nationality or citizenship, and thus his race, but because his status under the Social Security Act as a non-Protected SCV holder was thought to render him and others in the same position ineligible to be registered with Centrelink. Most if not all New Zealand citizens resident in Australia were likely to have been entitled to reside here because they held an SCV. Some New Zealand citizens resident in Australia were eligible for cover under the AERP Policy, some were not. It depended upon whether they had "protected" status under the Social Security Act.
78The Respondent submitted that the differential treatment was on the ground of visa status not citizenship or nationality. This may be accepted as partially correct in that it was not on the ground of citizenship or nationality that Mr Faulkner was treated differently. He was not, however, treated differently because he was an SCV holder, that is, because of his visa status. It was in reality his lack of "protected" Social Security Act status which led to the differential treatment. If this is accepted, Mr Faulkner would fail in his claim of direct discrimination.
79To overcome this difficulty, Mr Faulkner sought to rely upon s 7(2) of the ADA which provides:
For the purposes of subsection (1) (a) and (b), 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.
80He submitted that the ability to become an SCV holder was a characteristic that appertains generally to New Zealanders. Then it was argued, given that SCV holder status is a characteristic that generally appertains to non-Australian citizens who are New Zealand citizens, it therefore followed that, by adopting a general eligibility policy condition for insurance services which included all Australian nationals, but which excluded resident SCV holders who did not meet the conditions of "protected SCV holder" status, the Respondent treated Mr Faulkner less favourably than it would an Australian citizen because of a characteristic that generally appertains to non-citizens who are of New Zealand nationality.
81This reasoning is problematic. While it might be accepted for the sake of argument that the ability to become an SCV holder is a characteristic that appertains generally to New Zealanders, given the nature and characteristics required for the issue of an SCV under the Migration Act, Mr Faulkner was not treated differently because he was an SCV holder. He was treated differently because he was not a "protected" SCV holder. All SCV holders who also had "protected" status under the Social Security Act were eligible for cover under the AERP Policy. To be able to rely upon s 7(2) in the present context, Mr Faulkner would have to make good the proposition that non-protected SCV holder status was a characteristic which applied generally to New Zealand citizens. While it is true by definition that all non-protected SCV holder are New Zealand citizens, it does not follow nor has it been established in this case that New Zealand citizens are all or even generally non-protected SCV holders. Accordingly, s 7(2) of the ADA does not provide any assistance to Mr Faulkner in the present case.
82In summary, therefore, the Tribunal concludes that although Mr Faulkner was the subject of differential treatment this was not "on the ground of race [in the sense of nationality or citizenship]". Thus, he has failed to make out a case of direct discrimination under s 7(1)(a) of the ADA in respect of the AERP Policy.