Munday v Commonwealth of Australia

The facts 6 The evidence is largely uncontroversial. Neither Ms Day nor Mr Munday was required for cross-examination. The following account is derived from their affidavits and the documents tendered without objection by the Commonwealth.

Background 7 Ms Day began fertility treatment in the United States in early 2009. She was then 39 years old. She was fertilised with donor eggs. Eleven embryos were produced, two of which were transferred. The remaining nine were frozen. 8 Ms Day returned from the US pregnant, but she miscarried. Although arrangements were made for four of the frozen embryos to be transported to Australia and for the transfers to take place locally, on no occasion did transfer resulted in a pregnancy. 9 The treatment was funded by the applicants and cost them around $200,000 (including donor fees and compensation, medical and transport costs). 10 In early 2010 Ms Day began new treatment with a local fertility specialist, Dr Nicole Sides, in preparation for a return trip to the US to access the frozen embryos there. It was Dr Sides who suggested that Ms Day might be able to meet the additional costs by obtaining access to her superannuation. Dr Sides told Ms Day that she had helped other patients to do the same. There is, however, no evidence about the situations in which these patients were placed to enable any useful comparison to be made, assuming it to be relevant. 11 In August 2010 the applicants returned to the US for the procedure, only to learn that the remaining five embryos had been lost during the thawing process.

The first application 12 On 3 November 2010 Ms Day applied to APRA for the early release of $60,000 from her superannuation fund. In the application she indicated that her purpose was to help pay for medical treatment (past and future) which was needed "to alleviate acute or chronic mental condition". She also indicated that she wanted the money to help pay for transport to the treatment. She described her experience of not having children and undergoing unsuccessful fertility treatment as "the most devastating thing [she has] ever been faced with" and said that she was "constantly … obsessing about it". She said that she had become "completely desperate, distressed and irrational". 13 The application was accompanied by information from an IVF clinic about the costs of the treatment and letters from Dr Sides and Ms Day's general practitioner, Dr Kumari Fonseka. 14 Dr Sides wrote: Catherine Day has been a patient of mine since March 2010. She has previously been undertaking treatment for her current medical condition for several years before this with her partner Michael Munday. They are unfortunately needing to seek treatment in the United States of America as Australia does not provide the treatment that is required here. They are obtaining donor egg with her partner's sperm to create embryos, and have them placed. IVF treatment is expensive anyway even with Australian subsidies. It is expensive without Australian subsidies, and even more expensive in the United States. As there is no way they can obtain a donor in Australia, they therefore have to access the United States system and donors must be paid there. This has added to·their expenses. As they must travel to the United States of America by plane, both members of the couple need to go, they need to have accommodation, need to attend Doctors, Speciality Clinics and undergo testing, this is likely to be a very expensive exercise. In fact it has depleted all of their savings, all the equity on their home, all their credit cards. They only have a limited time frame in which to undergo this treatment. They therefore need urgent access to superannuation to fund this required medical treatment. Although it is unusual that I make this request, I certainly support their bid to have release of funds for the purpose of becoming parents. 15 Dr Fonseka expressed the opinion that Ms Day was suffering from chronic depression as a result of infertility. Dr Fonseka said that the IVF treatment she required to alleviate her depression was not available through the public hospital system. 16 It appears that no action was taken about the complaint for more than three weeks. On 29 November 2010 a person known only as Adaem made a file note which merely recorded that he had placed the file in "SRA Q" and that he had spoken to Chloe (whoever she might be), who agreed with him that the matter "should be assessed by SRA due to IVF element". Mr Munday invited me to infer that "SRA" was the acronym for senior review assessor. In the absence of any suggestion by the Commonwealth to the contrary, it seems reasonable to make that assumption. "Q" is presumably an abbreviation for "queue". 17 The next day, 30 November 2010, the application was declined on the ground that Ms Day did not meet a condition of release. The delegate explained: (1) Ms Day had not provided written confirmation from a registered medical specialist relevant to the condition she had advised her IVF was required to treat (an acute or chronic mental illness). There was no indication that she was receiving psychiatric treatment for this condition; that psychiatric treatment had been unsuccessful to treat it; or that IVF was the most appropriate form of treatment. (2) It was possible that further failed treatment would put Ms Day's mental condition at further risk and there was no guarantee that the proposed treatment would alleviate or treat her mental illness. (3) As Ms Day had indicated she had assets of $400,000, the delegate could not be satisfied that she lacked the financial capacity to meet the expense by other means. (4) There was no medical explanation as to why Ms Day could not undergo the treatment in Australia: You have indicated that this is a personal choice as there are more options in America in regards to choosing a donor that matches your personality and appearance. However, I understand that IVF by donor is available in Australia, and cannot be satisfied that travelling to obtain treatment in America is necessary to treat your condition. 18 The delegate continued: Why can't you access your own superannuation? The Australian Government wants all members of the community to have enough money to self-fund their retirement through superannuation. This is why the law states that superannuation benefits should only be accessed in very limited circumstances. A release is only permitted where a person's circumstances fall into one of the grounds specified in sub regulation 6.19A (1) of the Superannuation Industry (Supervision) Regulations 1994 (The SIS Regs). Your circumstances do not fit within any of the specified grounds. This is why your application for early release has been declined. 19 The delegate noted that APRA had no discretion (inferentially to waive the criteria) or to make any special allowance because the law limited the grounds on which early release of superannuation benefits could be approved. 20 The letter itself does not record the name of the delegate but, as it is based on file notes made by one "Yumi", it is reasonable to infer that (s)he was the delegate.

The application for review 21 On 10 February 2011 Ms Day wrote to APRA requesting a review of the decision. She forcefully (and eloquently) advanced a case to demonstrate the weakness of the delegate's reasons. In response to the fourth reason provided by the delegate she wrote: The delegate's comments regarding Reason 4 provide an indication of just how little the delegate understands about my reproductive condition and the restrictive laws in Australia regarding donor IVF. It is illegal to advertise my need for an egg donor here in Australia. Sure, routine IVF treatment is available in Australia and portions of the treatment are covered by the public health system, but any treatment is impractical without the basic building blocks (ova). … [M]y chromosomal disorder prevents me from producing ova. I can only get ova from a donor who is willing to undergo a fairly onerous medical procedure. Besides being illegal to let people know that I need ova, it is also illegal in Australia to compensate someone for the ordeal that they must go through to donate to me. Because I do not have a female family member who can voluntarily go through this ordeal for me, I am forced to engage in a commercial arrangement. Rather than be imprisoned as a criminal in Australia, I have engaged a fertility clinic in America where commercial trading of ova is not illegal. 22 The application for reconsideration was declined on 7 March 2011. The delegate said that she was unable to change the decision because Ms Day had not provided any supporting documents to address any of the reasons for the refusal of the application. 23 The application was then forwarded to an Independent Review Officer ("IRO") for further consideration. The IRO was not satisfied that a release could be made and, after meeting with "Legal Services", advised Ms Day that the decision to decline her application would be upheld. The oral reasons he provided to Ms Day were incorporated in a letter sent to her on 5 May 2011 which reads: I am not satisfied that a release for IVF treatment to treat your mental condition is warranted. IVF treatment does not fit easily within the specified compassionate grounds administered by APRA. These grounds allow APRA to consider a release for medical treatment necessary to treat either a life threatening illness or injury, acute or chronic pain, or an acute or chronic mental illness, where the treatment is not readily available through the public health system. To approve a release for IVF treatment APRA needs to be satisfied that treatment of a mental illness cannot occur without access to IVF treatment. This involves gaining an understanding from a person's specialist (generally a psychiatrist) of the treatment already received, the major cause of a person's mental illness, whether unsuccessful IVF treatment would pose further risk to a person's mental illness, and confirmation the applicant is aware of the risk that IVF treatment may not be successful. This is to confirm that the condition has been considered by a relevant specialist, and that they consider IVF treatment the most appropriate treatment for the mental illness. As you have not presently sought treatment from a specialist in the area of mental health I am not satisfied IVF treatment is necessary to treat your condition. A further complication to your application is that you are applying for treatment which is not be permitted by Australian law. In 2002 the Australian government legislated on the unacceptable practices associated with reproductive technology. Subsection 21(1) of the Prohibition of Human Cloning for Reproduction Act 2002 states: "A person commits an offence if the person intentionally gives or offers valuable consideration to another person for the supply of a human egg, human sperm or a human embryo." As you intend to pay a donor for the provision of a human egg the treatment you are seeking is prohibited by Australian law. As such I am not satisfied a release for this treatment is permissible under the Superannuation Industry (Supervision) Regulations 1994.

The second application 24 On 6 August 2011 Ms Day lodged a second application with APRA. This time she attached additional reports from Dr Sides and a psychiatrist, Dr Emma Adams. 25 Dr Sides confirmed that her diagnosis was infertility and that treatment had failed. She asserted that Ms Day and Mr Munday had no option other than to access treatment in the US as there was no facility for them to access donor eggs in Australia. She also stated that Ms Day had been suffering "depression linked to infertility" and expressed the opinion that treatment of her infertility with the successful outcome of a child through the donor egg program would help to alleviate "this condition". 26 Dr Adams reported that Ms Day had a depressive condition exacerbated by "the extreme difficulty in accessing medical treatment which is not yet available in Australia". Dr Adams wrote that, regardless of the success of the IVF treatment, "access to it, and the hope that this will engender will be a significant factor in improving Ms Day's depression". 27 Yet, APRA declined the application. In the letter informing Ms Day of the decision, dated 18 August 2011, the delegate explained that she was not satisfied that a release of superannuation benefits to fund her IVF program involving the purchase of donor eggs could be considered a lawful decision. She continued: It is illegal in Australia to receive or make any type of payment for human tissue, including donated eggs. I acknowledge that you intend to procure donor eggs and undertake following IVF procedures overseas, where it is legal; however APRA has a responsibility to make decisions about applications under Australian law. As the expense for which you are applying is prohibited by Australian law, I cannot be satisfied that a release for this treatment is permissible under the Superannuation Industry (Supervision) Regulations 1994. … A release is only permitted where a person's circumstances fall into one of the grounds specified in sub regulation 6.19A(1) of the Superannuation Industry (Supervision) Regulations 1994 … Your circumstances do not fit within any of the specified grounds. This is why your application for early release has been declined. 28 Ms Day was once again advised of her review rights, but on this occasion she did not seek review.

Attempts to have the decision reversed 29 On 29 November 2011 Ms Day complained to the Commonwealth Ombudsman. The Ombudsman advised her that she could seek judicial review of the regulator's decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and suggested she seek legal advice if she were considering that option. 30 On 27 February 2012 Mr Munday contacted the relevant Minister with responsibility for the administration of the early release of superannuation benefits program. The matter was then referred to a departmental officer and Craig Boyd, the national manager responsible for the program, telephoned Mr Munday and undertook to review the matter. 31 On 14 March 2012 Mr Boyd advised Mr Munday that, after reviewing the matter, "the outcome remained unchanged". 32 The next day Mr Munday contacted the Minister again but was told that the decision would not be overturned. Once again, however, Mr Munday was advised that he could seek judicial review of APRA's decision under the ADJR Act. 33 The applicants elected not to apply for judicial review. Rather, on 28 March 2012 Mr Munday lodged a complaint with the Human Rights Commission claiming that the Commonwealth (more specifically, the Department of Human Services) had unlawfully discriminated against Ms Day on the ground of her disability.

The response to, and disposition of, the complaint to the Human Rights Commission 34 On 29 May 2012 Glyn Fiveash of the Department wrote to the Commission responding to the complaint. He denied that the Department had unlawfully discriminated against Ms Day. 35 At the outset Mr Fiveash pointed out that Ms Day's applications for early release were initially considered and reviewed by APRA and that it was not until 1 November 2011 that the Department took responsibility for administering these claims. He said that, in undertaking its review, the Department agreed with the position taken by APRA. He also said that, in making its decision not to approve the early release of Ms Day's superannuation funds, APRA did not take into account Ms Day's disability. Rather, he submitted, APRA made its decision in accordance with the legislation and the relevant guidelines and properly took into account the purpose for which the funds were to be used. He submitted that APRA denied Ms Day's request because it had concluded that she intended to use the money for a purpose that was contrary to Australian law. He contended that, if any other person made a request to APRA for early release of his or her superannuation in order to spend the money for a purpose which was illegal under Australian law, the Department's position would be no different. Consequently, he submitted that Ms Day had not been treated less favourably than another person without her disability in similar circumstances and so it could not be said that she had been subjected to unlawful discrimination. He contended that it was the Department's view that the allegation of unlawful discrimination was misguided. 36 On 7 December 2012 Susannah Luck-Cameron from the Department responded to a query from the Commission about whether the Department was imposing a condition on Ms Day that the purpose for which she wanted to use the monies was lawful. Ms Luck-Cameron said that the decision to release superannuation early was a discretionary decision based on statute and policy. She continued: If the condition imposed relates to the lawfulness of the use which will be made of those monies, the department has taken the view, based on public policy, that in order for it to approve the early release of Ms day's superannuation, the purpose for which the money should be used must be legal under Australian law. The department submits that this condition is reasonable and the department draws the Commission's attention to the fact that ensuring that an approved superannuation release does not allow a person to pay for an expense or activity which contradicts the government's position on that matter is a relevant consideration across each of the specified compassionate grounds. (Original emphasis.) 37 On 20 December 2012 a delegate of the President of the Commission terminated the complaint under s 46PH(1)(c) of the Australian Human Rights Commission Act 1986 (Cth) ("AHRC Act") on the ground that she was satisfied that it was lacking in substance.

The proceeding 38 The termination of the complaint by the Commission meant that an "affected person in relation to the complaint" was entitled to bring proceedings in this Court (or the Federal Magistrates Court as the Federal Circuit Court was then known) alleging unlawful discrimination: AHRC Act, s 46PO. Accordingly, on 19 February 2013 the applicants filed an originating application in this Court. 39 Mr Munday has appeared for himself throughout the proceeding and was given leave by Foster J to appear for his wife as well. 40 An amended originating application was filed on 5 August 2013, accompanied by affidavits from each of the applicants. That application made the following claims: (1) The Commonwealth (through the acts, omissions and/or practices of its employees) unlawfully discriminated against Ms Day in the assessment of her application, in the way it was reviewed and in its reassessment. (2) The original decision-maker did not assess the application impartially. Rather, he/she "provided a self opinionated and uninformed decision that applied additional and more stringent assessment criteria" than those prescribed under reg 6.19A of the Superannuation Industry (Supervision) Regulations 1994 (Cth) ("SIS Regulations"). On the basis of additional information provided by Ms Day, which was not "originally sought or clarified", her application was rejected, "despite the recommendation by two medical specialists … that Ms Day's anxiety and depression would be improved by the intended fertility treatment". (3) The Commonwealth erred in law by applying more stringent release criteria to the application than that which were prescribed in the SIS Regulations and by this action failed to make reasonable adjustments to ensure that Ms Day was not treated any less favourably than any other person who might apply to have their superannuation released to treat an underlying medical condition. (4) The Commonwealth applied a general policy to deny the application where its intended purpose "may in part be considered illegal in Australia (regardless of where the treatment occurs)" and "[t]he arbitrary application of this policy … results in a class of people being treated less favourably than any other person who might need similar treatment but does not need to compensate a donor in order to undertake that treatment". (5) The continuing conduct of the Commonwealth in adhering to its decision together with "belittling comments" made demonstrates "a significant degree of Bad Faith" on its part. (6) The request by a Commonwealth employee for "an in-house legal opinion specific to Ms Day's disability and her treatment" and his/her refusal and the refusal of other employees administering the Commonwealth's early release of superannuation on compassionate grounds program to obtain an independent legal opinion "regarding the appropriateness of applying additional more restrictive conditions of release on a program that ought reasonably be governed by compassion" amounts to unlawful discrimination. 41 By a further amended originating application dated 3 July 2014 (styled "second additional amended originating application") the applicants relied on the same grounds specified above and sought the following relief (without alteration): (1) A determination regarding the legality of "cherry picking" non-related pieces of legislation that can be appended to legislated Conditions of Release identified in Regulation 6.19A is sought; and (2) A determination regarding the legality of Ms Day's treatment regimen; and (3) A determination regarding the appropriateness of applying local legislative restrictions to the actions of an individual undertaken in another legal jurisdiction; and (4) A determination regarding the Respondent's refusal to make reasonable adjustments when considering Ms Day's treatment regimen and her need to have treatment in the location where she is most able to obtain the specific medical treatment that she requires; and (5) An Order of specific performance be made requiring the Respondent to write to Ms Day formally apologising for the unreasonable interference in the fulfilment of her human and natural right to bear children (this document is to be personally signed by Ms Kathryn Campbell); and (6) An Order requiring the Respondent to acknowledge in writing that Ms Day's original application for the Early Release of Superannuation on Compassionate Grounds was not impartially assessed in accordance with the legislated Conditions of Release, but was treated less favourably due to her application being associated with IVF as a treatment for her mental disturbance; and (7) An Order requiring the Respondent to pay Ms Day compensation for her being forced to make decisions (including her decision to resign her paid employment) in order to fund treatment that would alleviate the mental disturbance diagnosed by a specialist Perinatal Psychiatrist; and (8) Any other Order/s that the Court sees fit. 42 The only substantive changes made by this document were the addition of the order for compensation and the removal of the relief previously claimed (which included orders setting aside the original decision and requiring the Commonwealth to reconsider Ms Day's application). 43 The Commonwealth opposed leave being granted to rely on the second additional amended originating application, arguing that it would not be in the interests of justice to permit the addition of "an unquantified and unparticularised claim for financial compensation, after the evidence has closed and shortly before trial". I nonetheless granted the applicants leave to amend but on conditions that they pay any costs incurred by the Commonwealth by reason of the late amendment and that the question of relief be dealt with as a separate question, should it be necessary, after judgment on the question of liability. At that point directions could be made for further particulars and additional evidence, if appropriate.

The legislative context FOR THE DECISIONS 44 The SIS Regulations were made under the Superannuation Industry (Supervision) Act 1993 (Cth) ("SIS Act"). The main object of the SIS Act is to make provision for the prudent management of certain superannuation funds, approved deposit funds and pooled superannuation trusts and for their supervision: s 3(1). Consistent with that purpose, s 31 allows for the making of regulations for the prescription of standards for the operation of regulated superannuation funds. The SIS Regulations contain such standards. "Payment standards" are provided for in Part 6. It was common ground that the Public Sector Superannuation Scheme (Ms Day's superannuation fund) is a regulated superannuation fund within the meaning of s 19 of the SIS Act. 45 Division 6.3 of Part 6 of the SIS Regulations, which includes reg 6.19A, deals with the "Cashing of Benefits". Regulation 6.18 states that the preserved benefits of a member of a regulated superannuation fund may be cashed on or after the satisfaction by the member of a condition of release. Regulation 6.19 makes similar provision for cashing restricted non-preserved benefits. There are ceilings on the amount that may be cashed but the ceilings are presently irrelevant. 46 Regulation 6.19A was inserted into the SIS Regulations by the Superannuation Industry (Supervision) Regulations (Amendment) 1997 (Cth) (No 152 of 1997). This amendment was followed not long afterwards by another amendment of the same name (No 343 of 1997). The Explanatory Statement to this second amendment records: At present, superannuation benefits are generally required to be 'preserved' in the superannuation system until retirement on or after the age of 55. However, subject to the governing rules of the superannuation fund, early release of 'preserved' benefits is permitted under the Principal Regulations in certain restricted circumstances including severe financial hardship' or 'compassionate' grounds. 47 At all material times reg 6.19A (entitled "Release of benefits on compassionate grounds") relevantly provided: (1) A person may apply to the Regulator for a determination that an amount of the person's preserved benefits, or restricted non-preserved benefits, in a superannuation entity may be released on the ground that it is required: (a) to pay for medical treatment or medical transport for the person or a dependant; or (b) to enable the person to make a payment on a loan, to prevent: (i) foreclosure of a mortgage on the person's principal place of residence; or (ii) exercise by the mortgagee of an express, or statutory, power of sale over the person's principal place of residence; or (c) to modify the person's principal place of residence, or vehicle, to accommodate the special needs of the person, or a dependant, arising from severe disability; or (d) to pay for expenses associated with the person's palliative care, in the case of impending death; or (e) to pay for expenses associated with a dependant's: (i) palliative care, in the case of impending death; or (ii) death; or (iii) funeral; or (iv) burial; or (f) to meet expenses in other cases where the release is consistent with a ground mentioned in paragraphs (a) to (e), as the Regulator determines. (2) The Regulator must determine, in writing, that the person has satisfied, for the purposes of subregulation 6.18(1) or 6.19(1), a condition of release on a compassionate ground if the Regulator is satisfied that: (a) the release is required on a ground mentioned in subregulation (1); and (b) the person does not have the financial capacity to meet an expense arising from that ground. (3) The Regulator cannot be satisfied that money is required for medical treatment unless 2 registered medical practitioners (at least one of whom must be a specialist) certify that: (a) the medical treatment is necessary to: (i) treat a life threatening illness or injury; or (ii) alleviate acute, or chronic, pain; or (iii) alleviate an acute, or chronic, mental disturbance; and (b) the treatment is not readily available to the person, or the dependant, through the public health system. … (7) In this regulation: medical transport means transport, for medical attention, by land, water or air. 48 According to the Explanatory Statement to the Superannuation Industry (Supervision) Regulations (Amendment) 1997 (Cth) (No 343 of 1997), para (1)(f) was introduced to provide a qualified discretion to approve cases that "almost fall within the boundaries of the objective criteria" in paras (1)(a)-(c) but which, before the amendments, could not be approved because they did not "strictly meet the letter of the criteria". (It is likely that the reference in the Explanatory Statement to subpara (c) should read (e).) 49 Ms Day relied on reg 6.19A(1)(a). 50 "Regulator" is not defined in the SIS Regulations but, at the time of Ms Day's first and second applications, the SIS Act provided that the regulator was APRA (see ss 6(1)(b) and 10). On 1 November 2011 the Superannuation Legislation Amendment (Early Release of Superannuation) Act 2011 (Cth) ("Amendment Act") came into force. One effect of those amendments was to transfer to the Chief Executive Medicare regulatory responsibility for the early release of superannuation on compassionate grounds. The Chief Executive Medicare is an employee of the Commonwealth, more particularly an SES (senior executive service) employee in the Department: Amendment Act, Sch 1 Pt 1 cl 10; Human Services (Medicare) Act 1973 (Cth), s 4; Acts Interpretation Act 1901 (Cth), s 19A(3); Public Service Act 1999 (Cth), s 7.

THE DISABILITY DISCRIMINATION ACT 51 APRA is not a party to the proceeding. For the purposes of the DDA, however, the Commonwealth is taken to be the employer of all Commonwealth employees (DDA, s 124); a "Commonwealth employee" includes a person who is employed by a public authority of the Commonwealth (DDA, s 4), and the definition of "public authority of the Commonwealth" in s 4 of the DDA includes APRA, being "a body incorporated … for a public purpose by a law of the Commonwealth … being a body corporate employing staff on its own behalf" (Australian Prudential Regulation Authority Act 1998 (Cth) s 13). During the course of the hearing, the Commonwealth conceded that, for the purpose of this proceeding, if any of its employees whose conduct was impugned by the applicants contravened the DDA, then the Commonwealth will also be taken to have engaged in that conduct: see DDA s 123(4). 52 The application is based on s 29 of the DDA, which provides: It is unlawful for a person who performs any function or exercises any power under a Commonwealth law or for the purposes of a Commonwealth program or has any other responsibility for the administration of a Commonwealth law or the conduct of a Commonwealth program, to discriminate against another person on the ground of the other person's disability in the performance of that function, the exercise of that power or the fulfilment of that responsibility. 53 "Disability" for the purposes of the DDA is broadly defined in s 4 to mean: (a) total or partial loss of the person's bodily or mental functions; or (b) total or partial loss of a part of the body; or (c) the presence in the body of organisms causing disease or illness; or (d) the presence in the body of organisms capable of causing disease or illness; or (e) the malfunction, malformation or disfigurement of a part of the person's body; or (f) a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or (g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour; and includes a disability that: (h) presently exists; or (i) previously existed but no longer exists; or (j) may exist in the future (including because of a genetic predisposition to that disability); or (k) is imputed to a person. To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability. (Original emphasis.) 54 The term "discriminate" also has a defined meaning. That meaning appears in ss 5 and 6 of the DDA. Section 5, which is entitled "Direct disability discrimination", reads as follows: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and (b) the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different. (3) For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments. (Original emphasis.) 55 The Act recognises, however, that people may appear to be treated equally but where one is disabled and the other not the treatment may have a discriminatory effect on the disabled person. Section 6, upon which the applicants also rely, deals with this situation. It is entitled "Indirect disability discrimination". As Dawson and Toohey JJ explained in Waters v Public Transport Corporation (1991) 173 CLR 349 ("Waters") at 392: Both direct and indirect discrimination … entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable. 56 Section 6 states: (1) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and (c) the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability. (2) For the purposes of this Act, a person (the discriminator) also discriminates against another person (the aggrieved person) on the ground of a disability of the aggrieved person if: (a) the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition; and (b) because of the disability, the aggrieved person would comply, or would be able to comply, with the requirement or condition only if the discriminator made reasonable adjustments for the person, but the discriminator does not do so or proposes not to do so; and (c) the failure to make reasonable adjustments has, or is likely to have, the effect of disadvantaging persons with the disability. (3) Subsection (1) or (2) does not apply if the requirement or condition is reasonable, having regard to the circumstances of the case. (4) For the purposes of subsection (3), the burden of proving that the requirement or condition is reasonable, having regard to the circumstances of the case, lies on the person who requires, or proposes to require, the person with the disability to comply with the requirement or condition. 57 The use of the conjunction "because" in ss 5 and 6 means there must be a causal connection between the alleged disability and the less favourable treatment. It is, however, unnecessary to show that the discriminator had any intention or motive to discriminate (Waters at 359, 382; Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 ("Purvis") at [160]), although motive or purpose may be relevant to the question of causation (Purvis at [236]). 58 Section 10 of the DDA provides that if an act is done for two or more reasons and one of those reasons is a person's disability, then, irrespective of whether the disability is the dominant or substantial reason, the act is taken to be done for that reason. 59 While the starting point in any consideration of whether discrimination has occurred must be the reasons the alleged discriminator gives, it is not the end point. The given reasons may disguise the true or real reason. The task of the Court is to discern whether the true or real reason includes the person's disability: see Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 ("Banovic") at 176 (Deane and Gaudron JJ). 60 The Act does provide for exceptions. It is not unlawful, for example, for a person to discriminate against another person on the ground of disability if avoiding the discrimination would impose an unjustifiable hardship on the discriminator: DDA, s 29A. But there was no suggestion that s 29A was relevant in the present case. 61 Still, conduct, even if directly or indirectly discriminatory, will not be unlawful if it is done by a person in direct compliance with a prescribed law of the Commonwealth: DDA, s 47(2), (5). The SIS Regulations are not included in the prescribed laws: see Disability Discrimination Regulations 1996 (Cth), reg 2A, Sch 1. Consequently, even if the conduct in question discriminated against Ms Day on the ground of her disability, it will not be unlawful if the Commonwealth's decisions were made in direct compliance with the SIS Regulations. 62 The relief the Court may order in a case of unlawful discrimination is set out in s 46PO of the AHRC Act. Section 46PO(4) provides: If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect: (a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination; (b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant; (c) an order requiring a respondent to employ or re-employ an applicant; (d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent; (e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant; (f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

Preliminary issues 63 Two preliminary matters arise for consideration. 64 The first concerns the parameters of the application, the second the question of Mr Munday's standing.

The parameters of the application 65 In large part the originating application (in all its forms) suggests that the gravamen of the applicants' grievance is with the limits of the Commonwealth's power to refuse the early release of superannuation and with the manner in which it exercised that power. Yet, while the allegations are redolent of an application for judicial review, Mr Munday has repeatedly insisted that the applicants do not seek judicial review and (despite having been given ample opportunity) declined to amend their application to do so. 66 In his affidavit of 2 August 2013 Mr Munday referred to the Ombudsman's observation about the possibility of judicial review. He insinuated, however, that it was wrong because both APRA and Medicare had told the applicants that there was no right to appeal. But an application for judicial review is not an appeal. Judicial review is concerned with the legality of decisions and the decision-making process. It is about declaring and enforcing the law determining the limits and governing the exercise of the decision-maker's power: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-6 (Brennan J). If the applicants had taken up the suggestion of the Ombudsman to seek legal advice, no doubt they would have been told as much. 67 It seems likely that the applicants misunderstood the nature of judicial review, confusing it with an appeal or review on the merits. 68 It is difficult to understand why the applicants laboured under this misconception. Not only the Ombudsman but also the Department had told them they could seek judicial review. And the very Guidelines upon which they rely in this proceeding advise of the availability of judicial review. Paragraph E1 of both the 2009 and the 2010 Guidelines states: A decision made by [an assessor] under regulation 6.19A(2) of the SIS Regulations is not currently a reviewable decision within the meaning or regulation 1.03 of the SIS Regulations. It is therefore not open to an applicant to seek an external review of an assessor's decision by the AAT or the Federal Court based on the merits of the assessor's decision. However, it is possible for an applicant to seek a [legal review] of a decision by the Federal Court on the basis of an error of law. This is what happened in [Flanagan v APRA [2004] FCA 1321]. (Emphasis added.) 69 Furthermore, in November last year the Commonwealth wrote to the applicants referring to the possibility of judicial review both under the ADJR Act and also under s 39B of the Judiciary Act 1903 (Cth) and invited them to consider amending their originating application to add a claim for judicial review. A cursory reading of the ADJR Act would have revealed that it provided for review for reasons such as error of law or want of jurisdiction, failure to observe procedures required by law to be observed in connection with the making of decisions and for the exercise of discretionary powers in bad faith or in accordance with a rule or policy without regard to the merits of the particular case: see ADJR Act, ss 5 and 6. It is too late now for such an amendment to be made and the applicants did not seek it. Nor did they invite the Court to treat their case as one of judicial review. 70 As the Commonwealth submitted, broadly speaking that means that the only issue requiring resolution in this proceeding is whether there has been unlawful discrimination. 71 It follows that, in order to succeed, the applicants must prove that the Commonwealth discriminated against Ms Day on the ground of her disability in the performance of a function or the exercise of a power relating to the administration of the SIS Act and Regulations or the conduct of the early access to superannuation on compassionate grounds program. One unfortunate implication of the applicants' election not to seek judicial review is that the applicants may fail even if the Commonwealth misunderstood its obligations under the SIS Regulations, misconstrued the Prohibition of Human Cloning for Reproduction Act 2002 (Cth), was actuated by bad faith, or dealt with Ms Day's applications in a way that was procedurally unfair.

Does Mr Munday have standing? 72 The Commonwealth contended that Mr Munday has no standing to bring an application, himself, because he was not "an affected person in relation to the complaint" within the meaning of s 46PO of the AHRC Act. For this reason, the Commonwealth argued that Mr Munday's application should be dismissed and he should be ordered to pay the Commonwealth's costs of resisting his application. Ultimately, however, the Commonwealth indicated that it would not press its application for costs if it were ultimately demonstrated that there had been unlawful discrimination against Ms Day. 73 The right to bring proceedings in this Court (or, for that matter, the Federal Circuit Court) is given to "any person who was an affected person in relation to the complaint [to the Commission]": AHRC Act, s 46PO. "Affected person in relation to a complaint" is defined in s 3(1) of the AHRC Act as "a person on whose behalf the complaint [to the Commission] was lodged". 74 The Commonwealth submitted that Mr Munday lodged the complaint on behalf of Ms Day, as was his right under s 46P(2)(c), but that he was neither a person aggrieved by the alleged unlawful discrimination nor an affected person in relation to the complaint within the meaning of those expressions in the AHRC Act, and so was not a proper applicant in this proceeding. They drew attention to the letter of complaint written by Mr Munday about the treatment of his wife's applications (which did not complain that Mr Munday had himself been discriminated against), and the notice of termination from the Commission to Mr Munday which noted that the complaint had been brought by Mr Munday on Ms Day's behalf. 75 Mr Munday, on the other hand, submitted that he did not state in his complaint that he was lodging the complaint on behalf of his wife. He submitted that he lodged the complaint under s 46P(2)(a) of the AHRC Act, which entitles a person aggrieved by the alleged unlawful discrimination to lodge a complaint on that person's own behalf or on behalf of that person and any one or more other persons who are also aggrieved by the alleged unlawful discrimination. 76 The critical question, as Collier J explained in Access for all Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 ("Hervey Bay") at [34], is whether Mr Munday is a person aggrieved within the meaning of s 46P: It is clear on any consideration of the regime established by the [Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("HREOC Act"), now the AHRC Act] and the DD Act that in determining whether the applicant has standing to sue, the critical question is whether the applicant is "a person aggrieved" in terms of s 46P of the HREOC Act. The regime established by these Acts clearly extends to conduct in breach of s 32 of the DD Act and any disability standards formulated pursuant to s 31 of the DD Act. The statutory scheme, and the entitlement of any person to seek any remedy under that scheme, is predicated upon a person being "aggrieved" by unlawful conduct. Statutory rights are created in favour of a person who is aggrieved. Such a person may seek remedies in accordance with the legislation as of right provided they can satisfy the Court that they are, in truth, "aggrieved". 77 The absence of the phrase "on behalf of" in Mr Munday's letter is not determinative of the capacity in which he made the complaint. Nor is its presence in the Commission's letter. 78 "Aggrieved person" is not a defined term in the AHRC Act. Although the words appear in many statutes, their meaning will always depend on the context in which they are used: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 183-4 (Gibbs CJ). But as Collier J pointed out in Hervey Bay (at [44]), it is generally accepted that the term should not be given a narrow interpretation. Even so, it will be necessary to identify the nature of the person's interest. 79 Collier J also observed in Hervey Bay at [41]: [I]n order for a person to be "aggrieved" the test is objective, not subjective. A person does not qualify merely because he or she feels aggrieved by the conduct. He or she, in the judgment of the Court, must, in truth, be aggrieved by that conduct (Cameron v Human Rights and Equal Opportunity Commission 46 FCR at 515) and not merely have an intellectual or emotional concern in the subject matter of the proceedings (Australian Conservation Foundation 146 CLR at 547-548). The words do not include "a mere busybody who is interfering in things which do not concern him: but they do include a person who has a genuine grievance because an order has been made which prejudicially affects his interests": Attorney-General (Gambia) v N'Jie [1961] AC 617 at 634, Gibbs CJ in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 185. It is not sufficient that a person voices a particular concern and regards the actions of another as injurious to the object of that concern (Stephen J in Australian Conservation Foundation 146 CLR at 539, Gibbs CJ in Onus v Alcoa of Australia 149 CLR at 37). 80 In Cameron v Human Rights and Equal Opportunity Commission (1993) 46 FCR 509, however, French J (as his Honour then was) said (at 519) that there was no principle that only persons directly affected by unlawful conduct could seek redress for it as persons aggrieved for the purposes of s 22 of the Racial Discrimination Act 1975 (Cth). His Honour said that it was "at least arguable that derivative or relational interests" would suffice and referred specifically to the spouse or other relative of a victim of discrimination as a person who might be a person aggrieved for the purposes of the section. Section 22(1) of the Racial Discrimination Act was in similar terms to s 46P(2) of the AHRC Act, enabling a complaint to be made to the Commission by persons aggrieved by an unlawful act. Wilcox J cited these remarks with apparent approval in Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 at 545. 81 Mr Munday's interest in the proceedings is greater than that of an ordinary member of the public. He is no "mere busybody". Nor is he simply a person with an intellectual or emotional concern in the subject matter of the proceeding. The denials of Ms Day's applications affected Mr Munday in a deeply personal way, by depriving him as well as his wife of a source of funds to assist in conceiving their child. While it is understandable that the Commission regarded the complaint as having been brought on behalf of Ms Day, Mr Munday had a personal interest in its resolution. He was his wife's agent but he was also aggrieved himself. 82 For these reasons I consider that Mr Munday is an "affected person" within the meaning of s 3 of the AHRC Act. Accordingly, I reject the Commonwealth's contention that Mr Munday has no standing to bring his own application.

Issues 83 As the applicants' written submissions paid scant regard to the terms of the DDA, I asked Mr Munday to prepare a table setting out the impugned conduct, identifying the responsible individuals, the nature of the alleged discrimination (whether direct or indirect) and the reasons for it, cross-referenced to the evidence. A typed version of that table is annexed to this judgment. 84 The Commonwealth does not dispute that the impugned conduct occurred in the performance of functions or the exercise of powers under a Commonwealth law or for the purposes of a Commonwealth program within the meaning of s 29 of the DDA. 85 The following issues consequently arise for determination. (1) What was the disability suffered by Ms Day at the relevant times?

In each instance where the applicants allege direct discrimination under s 5(1): (2) Did the Commonwealth treat Ms Day less favourably than it would treat a person without her disability in circumstances that are not materially different? (3) If so, was that less favourable treatment because of her disability?

In each instance where the applicants allege direct discrimination under s 5(2): (4) Did the Commonwealth fail to make reasonable adjustments, or propose not to make reasonable adjustments, for Ms Day? (5) Did any failure to make reasonable adjustments have, or would it have had, the effect that Ms Day was treated less favourably than a person without her disability in circumstances that are not materially different? (6) If so, was any such treatment because of her disability?

In each instance where the applicants allege indirect discrimination under s 6(1): (7) Did the Commonwealth require, or propose to require, Ms Day to comply with a requirement or condition? (8) If so, was such a requirement or condition reasonable, having regard to the circumstances of the case? (9) If not, did Ms Day not comply, or was she unable to comply, with the requirement or condition because of her disability? (10) If so, has the requirement or condition the effect, or is it likely to have the effect, of disadvantaging people with Ms Day's disability?

In each instance where the applicants allege indirect discrimination under s 6(2), in addition to (7) and (8) above: (11) Because of her disability, would Ms Day be able to comply with the requirement or condition only if the Commonwealth made reasonable adjustments for her but the Commonwealth did not, or proposes not to, make those adjustments? (12) Did the failure to make reasonable adjustments have, or would it be likely to have, the effect of disadvantaging people with Ms Day's disability?

What is the disability? 86 In his complaint to the Commission Mr Munday did not identify the nature of Ms Day's disability but the evidence before me establishes (and it is not in dispute) that she has two disabilities within the meaning of the DDA. The first is Turner syndrome, a genetic chromosomal disorder, which causes under-developed ovaries as a result of which she cannot produce ova. That is a disability as it is a malfunction of her body (DDA, s 4). The second is depression, which would also satisfy the definition in s 4 of "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment…".

the processing of the first application 87 Mr Munday made a number of allegations about the actions and inactions of those responsible for processing Ms Day's first application. 88 He submitted that the conduct of Adaem and Yumi on 29 November 2010 and 30 November 2010 respectively contravened the DDA. 89 In the first instance Mr Munday argued that, on 29 November 2010, by identifying the application as belonging to a class (IVF) whose applications should be treated differently, Adaem discriminated against Ms Day because of her infertility. Noting that Ms Day's application was for early release of superannuation to "alleviate an acute, or chronic, mental disturbance", Mr Munday submitted that Adaem must have been acutely aware of the need to treat IVF-related claims differently from other "mental disturbance" claims. As the Guidelines then in force did not make such a distinction, Mr Munday said that he and his wife "assume[d] that the agency was so focused on IVF elements relating to applications that it created a new quasi category in the grounds for release. That is, people suffering from a mental disturbance who are also undergoing IVF treatment". 90 In the second instance Mr Munday submitted that Yumi ignored all instructions provided in the Guidelines as well as the SIS Regulations by determining Ms Day's application (on 30 November 2010) based on her request for IVF treatment. He argued that Yumi was motivated to reject the application and consequently denied Ms Day the opportunity to strengthen her claim by obtaining further information from her. He submitted that Yumi did not act in good faith as required by the Guidelines because she spent "a minimum amount of time" on the application, having "already formed the basis of her decision focused solely on IVF elements relating to the application". 91 The conduct of both Adaem and Yumi is said to amount to direct discrimination on the ground of Ms Day's infertility within the meaning of s 5(1) of the DDA. That proposition must be rejected. 92 The underlying premise of the applicants' case is that Ms Day was treated differently because she had sought the funds to pay for IVF treatment. The evidence does indicate that the decision-makers took particular action based on this circumstance. But that of itself does not render the action unlawful under the DDA. It is not unlawful merely to differentiate or distinguish between the ways in which particular cases should be handled. For the purposes of the DDA, difference is not enough. In Waters, which was also a case of alleged disability discrimination, Mason CJ and Gaudron J emphasised (at 363) that the Equal Opportunity Act 1984 (Vic) was concerned with discrimination against, rather than discrimination between, persons with different characteristics. And so it is with the DDA. 93 The applicants have not demonstrated that Adaem's recommendation in the file note made on 29 November 2010 that the matter be assessed by a senior review assessor "due to IVF element" discriminates against Ms Day or, more precisely, treats her less favourably than a person without her disability in circumstances that are not materially different. The opposite inference is equally open. At best the recommendation is neutral. 94 The applicants submitted that Yumi failed to take a number of steps she was required to take under the 2009 Guidelines: failing to consider Ms Day's application on its merits, with due regard to natural justice, contrary to para A10; failing to ensure that there was evidence on the file that the assessor applied the legislative criteria properly to the facts of the application and that there was an adequate evidentiary basis to decide the outcome, contrary to para A11; failing to act in good faith, contrary to para A12; failing to request further information to properly assess whether Ms Day was capable of meeting the conditions for a release, contrary to paras A15 and B2; failing to act in a fair, consistent and impartial manner, contrary to para A20; failing to record the evidence relied on and her reasons in coming to her decision, contrary to para A28; and failing to make a decision on the basis of Ms Day's "net [financial] position", contrary to para B7. Mr Munday also referred to para D14, but para D14 appears to be irrelevant to his submission. 95 Mr Munday submitted during oral argument that, if Yumi was not satisfied that Dr Sides provided "exactly the right wording she needed", then she should have contacted either Ms Day or Dr Sides and asked for more information. The applicants invited the Court to infer that these failings, either individually or collectively, prove that Ms Day was the victim of unlawful discrimination on the ground of disability. They asserted that a person with a mental disturbance which was not "IVF-related" would have been treated more favourably. Finally, based only on the date of publication of the new Guidelines (December 2010), which make specific reference to IVF-related claims in para D16, the applicants submitted that Yumi would, or should, have been aware of the content of the new Guidelines on 30 November 2010 and erred by failing to follow them, by not seeking further clarification as those Guidelines required. They argued that she could not have reached the decision she did "without prejudice", which I take to mean in good faith. 96 There are a number of difficulties with these submissions. 97 In the first place, a mere failure to adhere to the Guidelines does not amount to discriminatory conduct under the DDA. Nor, without more (and assuming for present purposes that it is relevant), does it demonstrate bad faith. As the Full Court observed in SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 at [19]: An allegation of bad faith is a very serious one. Bad faith in this context implies a lack of an honest or genuine attempt to undertake the task and involves a personal attack on the honesty of the decision maker: NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 at [107]-[108]. 98 While the context here is different, it seems to me that the implication in this case is the same. 99 For these reasons a finding of bad faith will not lightly be made: Evidence Act 1995 (Cth), s 140; Briginshaw v Briginshaw (1938) 60 CLR 336 ("Briginshaw"). "[I]nexact proofs, indefinite testimony, or indirect inferences" will not suffice: Briginshaw at 362 (Dixon J). The circumstances in which a court will find that an administrative decision-maker acted in bad faith are "rare and extreme": SBBS v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749; [2002] FCAFC 361 at [44]. As the Commonwealth submitted, where, as here, the evidence at least reasonably admits of a different conclusion, such as carelessness, inattention or mistake, an inference of bad faith ought not be drawn. 100 Mere error, even irrationality, does not of itself demonstrate bad faith and "[b]ad faith is not to be found simply because of poor decision-making": SBBS at [45]. In Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 at [8] Heerey and Kiefel JJ observed: The inquiry is directed to the actual state of mind of the decision-maker. There is no such thing as deemed or constructive bad faith … Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision-maker's duty. 101 The material upon which the applicants relied does not support the assertion that the assessor acted in bad faith nor, as alleged in the originating application, does it demonstrate partiality. 102 Secondly, while it is no doubt desirable that decision-makers follow the Guidelines, as a matter of law they are not bound to do so: Flanagan v Australian Prudential Regulation Authority (2004) 138 FCR 286 at [57] (Sackville J). 103 Thirdly, there is no reason to infer that Ms Day's application received any different, let alone less favourable, treatment than would have been afforded to any other application made by a person without her disability in circumstances that were not materially different from hers. That is abundantly clear from the reasons given in the rejection letter. In this case, as a matter of law it was not open to the decision-maker to release the funds unless two medical practitioners certified that the treatment was necessary to alleviate an acute or chronic mental disturbance. Only the GP did that. Dr Sides did not even mention a mental disturbance. In any case, while it is not clear from the terms of the regulation, it is reasonable to construe the reference to a specialist in reg 6.19A(3) to be a reference to a specialist in the relevant field. 104 While it may be doubted whether it is necessary for an applicant to provide evidence that the proposed treatment would in fact alleviate the mental disturbance, as the delegate appears to have assumed, there is nothing to indicate that the delegate made that assumption because Ms Day was infertile or, more particularly, because she was unable to produce ova. 105 Furthermore, it is plain from the terms of reg 6.19A that, before superannuation funds can be released on any of the grounds upon which an application can be made, the regulator must be satisfied that the person seeking the funds lacks the financial capacity to meet an expense arising from that ground. In her application Ms Day volunteered that she had assets of more than $400,000 (not $400,000 as the delegate stated). That circumstance was relevant to her capacity to finance the treatment herself, although it was not a complete answer. 106 In short, the applicants have not proved that the way in which the application was processed or the decision was reached occurred because of Ms Day's disability. The proposition that a person with a mental disturbance which was not "IVF-related" would have been treated more favourably is mere conjecture. 107 In any event, with one exception, I am not persuaded that Yumi did in fact fail to follow the 2009 Guidelines. There is no reason to conclude that what she did record on the file was not the sum total of the matters and evidence she took into account in assessing the application. The file includes the letter of 30 November 2010, which records the legislative criteria applied to the application. Equally, there is no reason to conclude that Yumi did not consider Ms Day's application on its merits, with due regard to natural justice, or that she did not act in a fair, consistent or impartial manner. 108 For the above reasons, no case is made out that Yumi failed to act in good faith. Furthermore, it is far from clear whether the obligation to request further information was triggered in this case. Paragraph A15 states: An assessor is required to assess an application in the light of the evidence provided by an applicant. Often the applicant will provide only very scant supporting evidence. Where this occurs, the assessor should request further information to properly assess whether an applicant can meet the conditions for a release. The evidence should be sufficient to satisfy a reasonable person that the person has met the conditions for a release. Where this test cannot be satisfied a release should not be approved. The onus is on each applicant to provide sufficient evidence to satisfy an assessor that the conditions for a release are met. Until an assessor is so satisfied, a release should not be approved. 109 It is doubtful whether it could be said that the information Ms Day provided was "very scant". It seems to me that the assessor was entitled to infer that the information Ms Day had supplied was the best she had or could muster. 110 The exception relates to the determination of financial capacity. Paragraph B7 of the Guidelines requires a determination to be made of an applicant's net position, that is, after taking into account liabilities as well as assets and also income and expenditure. It does not seem that the delegate paid any attention to this paragraph. But I am unable to conclude on the evidence that this oversight is attributable in any way to Ms Day's infertility, as the applicants contended. 111 The contention about the 2010 Guidelines is based on para D16 which reads: Where an applicant is applying for a release to obtain funds for cycle/s of IVF treatment the assessor may consider having the following points addressed by the treating specialist, generally a psychiatrist, to be satisfied that a release is warranted: 1. There is evidence that the person to receive treatment (either the applicant or the applicant's dependant) has received treatment (the duration should be specified) from the specialist for the condition but the treatment has not been effective; 2. the major cause of the person's mental condition is infertility; 3. access to an IVF program will produce a positive mental health outcome for the person; 4. the specialist states that the person's participation in an IVF program will not put their mental condition at further risk (through possible failure of the treatment); and 5. The GP and specialist state in writing that the person is aware of the risks associated with an IVF program (that is, the risk that pregnancy or a full term pregnancy will not be achieved). 112 The contention must be rejected for two reasons. First, it is based on the supposition that Yumi knew about the 2010 Guidelines, although they had not been published at the time she assessed Ms Day's application. There was no direct evidence of Yumi's state of mind and no evidence from which it might be inferred. In particular, there was no evidence about when the 2010 Guidelines were first circulated or to whom. Second, para D16 gives the assessor a discretion to obtain the information referred to; contrary to the applicants' submission, it does not impose a duty to do so. 113 In their written submissions the applicants also argued that it is apparent that the assessors routinely applied more stringent criteria than the SIS Regulations required in some cases where applicants were seeking early access to superannuation funds to pay for medical treatment or transport to alleviate a mental disturbance. Their point is based on the delegate's concerns about the absence of evidence about psychiatric treatment or its effects. They contended, in effect, that, in requiring psychiatric treatment or an opinion from a treating psychiatrist, "assessors, like Yumi, have disadvantaged an entire class of people who may be suffering from a mental disturbance which … is not actively being treated by a psychiatrist". Whether that is so of assessors other than Yumi is irrelevant for present purposes. In Yumi's case, she did not require that Ms Day undergo psychiatric treatment. Read fairly, what she required was some evidence from "a registered medical specialist relevant to … mental illness" that IVF was the most appropriate form of treatment for Ms Day's mental disturbance. The references to psychiatric treatment were illustrative, not determinative. What Yumi required was an opinion from a psychiatrist; she was not insisting that Ms Day undertake psychiatric treatment. Even if she was imposing more stringent criteria, the evidence does not suggest that they were applied in a way that discriminated against Ms Day on the ground of her disability. Mr Munday withdrew an earlier assertion that Yumi's conduct amounted to indirect discrimination.

the processing of the REVIEW application 114 In this case the applicants complain about the conduct of another Commonwealth employee who is identified in the evidence only as "Dan". Dan was the independent review officer to whom Ms Day's review application was sent after the decision to reject the review application was made on 7 March 2011 by an assessor (known only as "Maureen"). That decision is not alleged to be discriminatory, although in their written submissions the applicants complained that by rejecting the application without seeking additional specialist medical evidence Maureen failed to comply with para C11 of the 2010 Guidelines. As that is not an issue in the proceeding, it is unnecessary to deal with the complaint. 115 Dan's conduct is impugned in three respects. 116 The applicants' first contention is that on 21 March 2011 Dan directly discriminated against Ms Day on the ground of her infertility, contrary to s 5(1) of the DDA, by recording in the file that the review would focus on the legality of the treatment and not Ms Day's mental disturbance to which Ms Day had referred in her review application. The applicants submitted that Dan was motivated "not to independently assess Ms Day's application, but to fabricate a better excuse than which Yumi was able to come up with". 117 In their written submissions the applicants also argued that Dan's insistence, as reflected in the file, that Ms Day provide medical certification from a relevant medical specialist "disadvantaged Ms Day as it would any other person seeking a release based on mental disturbance and IVF" and "is not supported by the release criteria defined in the legislation". 118 For the following reasons, the first contention and the additional submission must be rejected. 119 The file note reads: I am not satisfied a release can be made. The applicant has not provided medical certification from a relevant medical specialist, and as she is not seeking such treatment I cannot be satisfied access to IVF treatment is needed to alleviate her condition. A further consideration is whether the treatment being sought is actually permissible under Australian law. Will seek meeting with Legal Services to discuss. 120 This note does not suggest that the review will focus on the legality of the treatment to the exclusion of Ms Day's mental disturbance. The question of legality is merely "[a] further consideration". There is no apparent connection between the attack on Dan's motivations and the claim of unlawful discrimination. In any event, the submission that Dan had an ulterior motive to reject Ms Day's application is not made out on the evidence. There is no foundation for the innuendo that Dan considered the application in bad faith. 121 In a case of direct discrimination on the ground of disability based on s 5(1) of the DDA, a comparison must be made between the treatment by the alleged discriminator of the aggrieved person and the way the alleged discriminator would treat a person without the aggrieved person's disability (the comparator) "in circumstances that are not materially different". If that comparison discloses that the aggrieved person was treated less favourably than the comparator, the aggrieved person must show that it is more probable than not that this occurred because of her disability. As Gummow, Hayne and Heydon JJ emphasised in Purvis at [223], this requires first, that the circumstances attending the treatment given or to be given be identified and second, that there be an examination of "what would have been done in those circumstances if the person concerned was not disabled" (original emphasis). 122 The circumstances in which Ms Day was treated include the fact that she was seeking the funds in order to pay for medical treatment but without a report from a specialist certifying that the treatment was necessary for one of the purposes specified in reg 6.19A(3)(a) ("the first circumstance"). The circumstances in which Ms Day was treated also included the fact that she was applying to use her superannuation for a purpose which she contended at the time was unlawful under Australian law ("the second circumstance"). So how, in those circumstances, would the Commonwealth (on the balance of probabilities) have treated a person without Ms Day's disability? The onus is upon the applicants to show that Ms Day was treated less favourably than others without her disability (in this case, infertility) who also did not provide a specialist opinion to support their stated reason for seeking access to their superannuation and who also wished to use their superannuation for a purpose which they accepted was unlawful under Australian law. 123 So the question is whether the applicants have proved that, in the circumstances referred to in the preceding paragraph, it is more probable than not that the Commonwealth treated Ms Day less favourably because of her disability than it would have treated someone without her disability who made an application for access to superannuation on compassionate grounds in order to pay for medical treatment but who did not submit with the application any evidence to show that the treatment was necessary. The answer is no. 124 Dan, in common with the earlier assessors, was not satisfied that the proposed treatment was necessary to alleviate Ms Day's depression based only on a GP's opinion. (At this point in time Dr Sides had not offered her opinion on the subject and Ms Day had not provided an opinion from a psychiatrist.) That position is unremarkable, particularly when the GP's opinion was unsupported by little, if any, reasoning. In a court an opinion of this kind would normally be given little weight because it cannot be tested or independently evaluated: Davie v Lord Provost, Magistrates and Councillors of the City of Edinburgh 1953 SC 34 at 39-40, cited with approval by Heydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [59]. In any case, reg 6.19A(3) of the SIS Regulations states that the regulator cannot be satisfied that money is required for medical treatment unless two registered medical practitioners, at least one of whom is a specialist, certify that the treatment is necessary, among other things, to alleviate an acute, or chronic, mental disturbance. 125 As to the first circumstance, it was certainly open to the assessor to contact Ms Day to ask her to provide a specialist opinion. But the evidence does not indicate that in not doing so Dan treated her any differently from anyone else who failed to provide sufficient evidence to meet the regulatory criteria. Nor was Dan obliged to. As I observed above at [111]-[112], para D16 of the 2010 Guidelines, upon which the applicants relied, states only that "the assessor may consider" having certain points addressed by the treating specialist (emphasis added). 126 As to the second circumstance, there is no evidence to indicate that the policy was applied in a discriminatory way. To the contrary, the evidence rather suggests that the Commonwealth took a policy position of refusing any application for early access to superannuation on compassionate grounds where the purpose of the application is to apply the funds towards something which is unlawful in Australia. Ms Day's circumstances are not materially different from those of a person distressed by intractable pain who seeks early access to her superannuation to finance assisted suicide or purchase illicit drugs to ease the pain or, for that matter, anyone else seeking access to superannuation for any other unlawful purpose. There is no reason at all to conclude that Ms Day has been treated less favourably than such a person would be or have been. 127 Ms Luck-Cameron made this clear in her correspondence with the Commission which the applicants tendered. She said that the same position would be taken in the case of a bankrupt who sought early release of superannuation in order to prevent the trustee in bankruptcy from selling their home. It will be recalled that the second of the grounds listed in reg 6.19A(1)(b) is where the money is required to enable the person to make a payment on a loan to prevent foreclosure of a mortgage on the person's principal place of residence or exercise by the mortgagee of a power of sale over the person's principal place of residence. Ms Luck-Cameron explained: An example of this can be seen with the 'mortgage assistance' ground. The program considers releases required to prevent the forced sale of a person's principal place of residence (PPR) by the mortgagee. Under the 'consistent with' ground [that is reg 6.19A(1)(f)], consideration may be given to release funds to prevent a creditor/agency capable of forcing the sale of the person's PPR. A common example of this is a person applying for overdue council rates which if they remain unpaid will result in the forced sale of the home. In the event however, that a bankrupt person applied for a release to prevent the bankruptcy trustee from selling their home, an application on this basis would be declined. As superannuation is protected by law from the bankruptcy trustee, a release of superannuation to discharge bankruptcy debt would subvert the instruction of law. The Bankruptcy Act indicates that superannuation is intended to be retained for retirement, even where this restriction on its use may lead to a person's home being sold by a bankruptcy trustee. Given the explicit protection of superannuation under the Bankruptcy Act, a release of superannuation to pay the trustee would be inconsistent with Australian law. 128 Ms Luck-Cameron said that in early 2011 APRA denied the early release of funds to a person who was seeking to use those monies to buy a human organ in an overseas country. 129 Ms Luck-Cameron acknowledged that the relevant legislation did not expressly deal with situations where the purpose for which the funds were to be applied was illegal in Australia, so that there was "no clear statutory barrier to releases being made in these circumstances". But she said that the Department (and APRA before it) had a policy position to generally decline applications where it was clear that the release of benefits, in whole or in part, would be used to pay for a procedure or other conduct which would be illegal in Australia. She explained that the policy rationale was that the Commonwealth would generally want to avoid encouraging people to engage in conduct which was illegal here. She said that the Commonwealth Government would potentially be subject to significant political criticism if it was seen to be complicit in funding actions or procedures which were illegal in Australia, though legal overseas, and the outcome was negative (such as if the applicant died or was badly injured). She added that to approve the early release of superannuation for purposes that are unlawful under Australian law would be contrary to the Public Service Act, which requires the Australian Public Service to serve the government of the day and provide impartial support to delivering the government's policies. In this context she also referred to the Australian Public Service Code of Conduct. 130 Mr Fiveash similarly told the Commission, in a letter also tendered by the applicants, that if any other person sought early release of their superannuation for a purpose which was illegal under Australian law, the Department would not authorise the release. 131 The applicants' second contention is that between 21 and 27 April 2011 Dan indirectly discriminated against Ms Day contrary to s 6(1) of the DDA by imposing a requirement or condition that the funds would be put to a purpose that was lawful in Australia. They contended that Ms Day was unable to comply with the requirement because she had to purchase ova and she needed to travel to a jurisdiction where she could do so "without the legal question mark over her head". 132 On one view, the Commonwealth did not impose a requirement or condition but merely interpreted "medical treatment" in reg 6.19A to mean medical treatment that is lawful in Australia. It might have accepted that this was a requirement or condition but denied that the Commonwealth (as opposed to the Parliament) had imposed it. But the Commonwealth did not advance such an argument. Rather, it conceded that it had imposed a requirement or condition as alleged. The concession that this was a requirement or condition is a proper one. Consistently with the objects of anti-discrimination legislation such as this, the composite expression "requirement or condition" should be construed broadly to cover any form of qualification or prerequisite: Banovic (1989) 168 CLR 165 at 185 (Dawson J), at 195-7 (McHugh J); Waters at 393 (Dawson and Toohey JJ) and at 406-7 (McHugh J). The Commonwealth also conceded that Ms Day was unable to comply with the requirement or condition that the funds be applied for a purpose that was lawful in Australia. There does not appear to be any issue that the requirement or condition (which from now on, for convenience, I will refer to as "the requirement") has the effect of disadvantaging Ms Day and others like her who wish to use their superannuation to fund the purchase of ova because they cannot produce eggs of their own and are unable to find a voluntary donor. 133 There are, then, two remaining questions. 134 First, was the requirement reasonable? The onus of proof on this question rests with the Commonwealth. 135 Second, if the requirement was not reasonable, was Ms Day unable to comply with it because of her infertility (there being no suggestion that the discrimination occurred because of her depression)? The onus of proof on this question lies with the applicants. 136 I turn first to the question of the reasonableness of the requirement. "Reasonable" in this context means "reasonable in all the circumstance of the case": cf. Waters at 379 (Brennan J), 383-4 (Deane J), 395-6 (Dawson and Toohey JJ), 410 (McHugh J). That means that it may be necessary to consider the position of the putative discriminator, as Brennan J put it in Waters (at 379). 137 The Commonwealth declined to put any argument to support the proposition that the requirement or condition was reasonable. The Commonwealth submitted that it was unnecessary to decide this question because the applicants had been unable to demonstrate that it was because of Ms Day's disability that she did not or was not able to comply with the requirement. It follows that the Commonwealth has not discharged its onus of proof and I will therefore proceed on the basis that the requirement or condition is not reasonable. 138 I now turn to the second question - whether the applicants have proved that Ms Day is or was unable to comply with the requirement because of her infertility, in particular, her inability to produce ova. On this question I am not satisfied that the applicants have discharged their onus of proof. 139 Section 10 of the DDA, it will be recalled, provides that if an act is done for two or more reasons and one of them is the disability of the person, then the act is taken to be done for that reason, regardless of whether the disability is the dominant or a substantial reason. Section 4(2) provides that, for the purposes of the Act, refusing or failing to do an act is taken to be the doing of the act and a reference to an act includes a reference to a refusal or failure to do an act. 140 Mortimer J observed in Watts v Australian Postal Corporation [2014] FCA 370 ("Watts") at [263] that it is unclear whether s 10 informs the meaning of "because of" in s 5(2). The same is true of s 6(2). Neither party made any submissions on the point and there is no authority one way or the other. Here, as in Watts, however, it is unnecessary to decide the matter because the evidence discloses that there was only one reason. 141 In her review application Ms Day wrote: [M]y chromosomal disorder prevents me from producing ova. I can only get ova from a donor who is willing to undergo a fairly onerous medical procedure. Besides being illegal to let people know that I need ova, it is also illegal in Australia to compensate someone for the ordeal that they must go through to donate to me. Because I do not have a female family member who can voluntarily go through this ordeal for me, I am forced to engage in a commercial arrangement. Rather than be imprisoned as a criminal in Australia, I have engaged a fertility clinic in America where commercial trading of ova is not illegal. (Emphasis added.) 142 As the Commonwealth submitted, women with exactly the same disability as Ms Day, who sought access to their superannuation to fund IVF treatment but who had access to a voluntary donor, would have been able to comply with the requirement. It follows that the applicants have not proved that Ms Day did not, or was unable to, comply with the requirement because of her infertility. 143 At one point in his oral submissions Mr Munday appeared to submit that Dan also discriminated against Ms Day because he failed to obtain a legal opinion (on what Mr Munday did not say). This, he contended, was a failure to make a reasonable adjustment contrary to s 6(2) of the DDA. The submission was not developed and, for the following reasons, I reject it. I note that Mr Munday did not argue in this proceeding, as he did in his complaint to the Commission, that the Commonwealth failed to make reasonable adjustments by refusing to approve the release of some funds. 144 "Reasonable adjustment" is defined in s 4(1) of the DDA in the following way: [A]n adjustment to be made by a person is a reasonable adjustment unless making the adjustment would impose an unjustifiable hardship on the person. 145 As Mortimer J recently observed in Watts at [22], this definition "has effect as a deeming provision". That is to say, an adjustment is deemed to be reasonable unless making it would impose an unjustifiable hardship on the alleged discriminator. The burden of proving unjustifiable hardship lies with the Commonwealth in this case: DDA, s 11(2). For the purposes of the DDA, in determining whether a hardship would be an unjustifiable one, s 11(1) provides that all relevant circumstances of the particular case must be taken into account and lists a number of them. But the question of unjustifiable hardship does not arise in this case, not least because the Commonwealth did not suggest that it would suffer any hardship by making the suggested adjustment. The issue here is whether obtaining an independent legal opinion is an adjustment within the meaning of the DDA. 146 The Act does not define "adjustment". As Mortimer J said in Watts at [22], left undefined, "'adjustment' … is to be given its ordinary meaning as 'an alteration or modification'". The words must also be read in the context of the legislative history. The Disability Discrimination and Other Human Rights Legislation Amendment Bill 2008 (Cth) (being the bill that inserted the current ss 5(2) and 6(2)) was introduced into the Commonwealth Parliament on 3 December 2008. Mortimer J pointed out in Watts at [19] that Australia became a party to the Convention on the Rights of Persons with Disabilities on 17 July 2008. Her Honour observed at [18] that the concept of "reasonable adjustment" is drawn from the Convention. The relationship between the Convention and the amendment was explicitly recognised in the Explanatory Memorandum to the Bill which stated at [29] that the definition of "reasonable adjustment" is consistent with the definition of "reasonable accommodation" in Article 2 of the Convention. Article 2 defines reasonable accommodation as: necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms 147 Importantly, ss 5(2) and 6(2) speak of adjustments "for the person". Mortimer J held in Watts (at [23]) (which concerned discrimination in employment) that an adjustment was an alteration or modification for the person which operates on his or her ability to do the work he or she was employed or appointed to do. She said (at [24]) that the range of disabilities covered by the DDA is such that the range of modifications for a particular person may be very specific to that person: it "may involve only technology, or it may involve only human interactions, or something in between". 148 In a case such as this, involving the conduct of a Commonwealth program, the adjustments with which ss 5(2) and 6(2) are concerned would be alterations or modifications to the program in order to accommodate a person's disability and so facilitate equal access to it for those with the disability and those without. Obtaining a legal opinion about whether Ms Day's treatment would be lawful in Australia does not seem to me to answer this description. Nor does obtaining a legal opinion about whether it would be lawful to impose a requirement or condition which is not expressly mentioned in the SIS Act or Regulations. How would obtaining a legal opinion accommodate Ms Day's disability? In what way is obtaining a legal opinion an alteration or modification to the conduct of a Commonwealth program or, for that matter, to the administration of a Commonwealth law? Mr Munday did not answer either of these questions. Even if it could be characterised as an alteration or modification to the administration of a Commonwealth law or the conduct of a Commonwealth program, merely obtaining an opinion on either or both questions would do nothing to accommodate Ms Day's disability. Nothing would change unless the opinion was to the effect that treatment would be lawful in Australia or that it was unlawful for the Commonwealth to impose a requirement or condition not expressly mentioned in the legislation. Although Mr Munday submitted that, on his construction of the Prohibition of Human Cloning for Reproduction Act, Ms Day's proposed treatment would not be unlawful in Australia, he did not contend that the legal opinion would inevitably reflect his construction. Similarly, Mr Munday submitted that it was unlawful for the Commonwealth to impose a requirement or condition not expressly mentioned in the legislation but he did not contend that the legal opinion would be to the same effect. 149 For these reasons I am not satisfied that Dan's failure to obtain a legal opinion amounts to a failure to make a reasonable adjustment within the meaning of s 6(2). 150 The applicants' third contention is that between 14 April and 4 May 2011 Dan went on a "fishing" expedition, conducting internet searches with the intention of finding any evidence to deny Ms Day's application based on the treatment for which she sought the funds, rather than applying the prescribed release criteria, and acted "contrary to all instructions" provided in the Guidelines. This is put as a case of direct discrimination on the ground of Ms Day's infertility. 151 In my view this is an unfair characterisation of what Dan did. The question of unlawful purpose was squarely raised by Ms Day in her review application. Dan could have accepted what she said and perhaps avoided the applicants' criticism. He did not. On 14 April his file note shows that he met with Legal Services, was advised to seek state and territory legislation relating to the purchase of body tissues, and obtained the legislation. On 20 April he determined that this legislation was inapplicable. His file note went on to record: Nonetheless IVF information sites consistently state that payment for Oocytes is restricted under Australian law. Given the weight of evidence and time taken for review I will contact client to provide an update of the decision. 152 On 27 April Dan contacted Ms Day. He advised her that the decision to decline the application would be upheld. He explained that he could not be satisfied that IVF treatment was necessary to treat her condition as she had not been reviewed by a specialist in the area of mental health. He also explained that, as the treatment is not permissible under Australian law, he could not be satisfied a release was permissible in the circumstances. 153 On 4 May Dan noted in the file: [O]btained information sheet from Monash IVF clinic. [Web address given.] This points to subsection 21(1) of the Prohibition of Human Cloning for Reproduction Act 2002. Checked legislation, am satisfied this affirms position on the lawfulness of the treatment. Finalised review per decision notes. 154 The following day the letter providing formal notification of the decision and the reasons for it (presumably written by him), was sent to Ms Day. 155 It is plain that Dan conducted an internet search in order to confirm that the proposition advanced by Ms Day (that the proposed treatment was illegal in Australia) was correct. The suggestion that he did so for any unlawful or nefarious purpose is without foundation. Nor is there any basis for concluding that in his attempts to verify the accuracy of what he had been told or in the nature of his research Dan treated Ms Day's case any differently from, let alone less favourably than, the way in which he would have treated any other application for access to superannuation for a purpose the applicant asserted was unlawful in this country. 156 It follows that Dan's conduct during the period between 14 April and 4 May 2011 inclusive did not contravene the DDA.

The PROCESSING of the second application 157 Ms Day lodged her second application on 6 August 2011. It was dismissed 12 days later. The applicants submitted that the assessor, known only as Jenna, was "involved" in the review conducted by Dan and therefore approached her task with a closed mind. In other words, she was biased. They contended that she refused the application based exclusively on her previous knowledge, ignoring the new evidence provided by Ms Day and disregarding the instructions in the Guidelines by failing to obtain a legal opinion. They describe this as a case of both direct discrimination and indirect discrimination, on the ground of Ms Day's two disabilities. There is a good authority for the proposition that the same conduct cannot amount to both direct and indirect discrimination. McHugh J expressed this view in Waters at 400-2 and Dawson and Toohey JJ expressed a similar view at 392-3. Sackville J discussed the authorities in Australian Medical Council v Wilson (1996) 68 FCR 46 at 55 and held that the provisions relating to direct and indirect discrimination in the Racial Discrimination Act 1975 (Cth) should be regarded as mutually exclusive. The allegations in the present case should therefore be taken to have been made in the alternative. 158 Whether or not Jenna was biased is not directly in issue, although, if this allegation is made out, it may support an inference that the decision was made for an ulterior purpose, which in theory at least, could include a discriminatory reason. In relation to the claim of direct discrimination, the issues are: Did Jenna treat Ms Day less favourably than she would have treated anyone else in circumstances that were not materially different? If so, did she do so because of Ms Day's disability? Alternatively, did Jenna fail to make a reasonable adjustment the effect of which was that, because of her disability, Ms Day was treated less favourably than a person without the disability in circumstances that are not materially different? 159 In relation to the claim of indirect discrimination, the issues are: Did Jenna require Ms Day to comply with a requirement or condition with which, because of her disability, she did not or could not comply and which had the effect or likely effect of disadvantaging people with her disability? Alternatively, did Jenna require Ms Day to comply with a requirement or condition with which, because of her disability, she would or could only comply if the Commonwealth made reasonable adjustments for her which it did not make? If so, did the Commonwealth not, or propose not to, make such adjustments and did such failure have, or was it likely to have, the effect of disadvantaging persons with Ms Day's disability? In either case, has the Commonwealth proved that the requirement or condition was reasonable? 160 Before answering any of these questions, it is necessary to decide whether Jenna was, indeed, biased as alleged. 161 The allegation of bias is a serious one. Allegations of this kind must be "distinctly made and clearly proved": Jia at [69] (Gleeson CJ and Gummow J). Proof may be achieved by direct inference from established facts but (as with the allegation of bad faith) not by indirect inference, inexact means, indefinite testimony or worse, still, assumption or conjecture. There is an important difference between inference and conjecture. The former is a deduction from the evidence, the latter "a mere guess": Bell IXL Investments Ltd v Life Therapeutics Ltd (2008) 68 ACSR 154; [2008] FCA 1457 (Middleton J) at [14]. 162 A decision-maker may be biased for any one of a number of reasons. Here, however, the allegation is bias in the nature of prejudgment. 163 A mind affected by bias in the nature of prejudgment is "one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72] (Gleeson CJ and Gummow J). 164 The gist of the applicants' argument was that Jenna reviewed Dan's decision in May 2011 and that, having been involved in the making of the decision to reject the review application, it follows that she had prejudged the outcome of the new application. Mr Munday also suggested that she may have signed the rejection letter from APRA dated 5 May 2011 (because the signature on that letter looks like the signature that appears on the rejection letter of 18 August 2011). 165 I do not accept that the signatures on the two letters are the same. There are several points of difference and there is no expert evidence to suggest that they are written by the same hand. It is true, however, that the name of the reviewer on 5 May 2011 was Jenna and the assessor on 18 August 2011 was also called Jenna. In the absence of any evidence to suggest otherwise, it is reasonable to infer that they were one and the same person. The Commonwealth could have called evidence to dispel the inference but chose not to. It is a legal maxim that in deciding issues of fact in civil matters, "all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted": Blatch v Archer (1774) 98 ER 969 at 970 (Lord Mansfield). I am therefore prepared to accept that the person who reviewed the decision made by Dan (the independent reviewer) on 5 May 2011 was the same person who decided to reject the second application. I accept that it would have been better if the second application had been considered by a fresh pair of eyes. But whether this circumstance shows that Jenna had approached the determination of the second application with a closed mind, incapable of persuasion despite the evidence or any new argument, is a different matter. 166 There is no evidence to indicate one way or another whether Jenna carried out any research of her own into the legality of the proposed treatment. But even if she did not, that would not prove that she had made up her mind to refuse the application before she had even considered it. At best it may prove that she assumed that the proposed treatment was illegal. She may have made that assumption on the basis of what Ms Day, herself, said. In any case, even if she had made the assumption, that does not prove that she was not open to reasonable argument that the illegality of the treatment was not an obstacle to the release of the funds, based on a proper construction of the SIS Regulations. Nor does it demonstrate that, if an argument had been put to her that Ms Day was misinformed and that the Prohibition of Human Cloning for Reproduction Act did not in truth outlaw the proposed treatment in Australia, Jenna was not open to persuasion. 167 The proposition that Jenna ignored the new evidence cannot be accepted in the face of the file note Jenna made on 18 August: I note that there is considerable information to take into account regarding clt's diagnosis, any conventional forms of past treatment they have had (if any) the success of which, not to mention the failure of past IVF treatment they have had, and the resulting consequences and detriment to clt's condition. [File] is related to previous app 10/14898 which was declined for the above reason, including concerns of whether the intended treatment was necessary to treat clt's condition. Clt has now provided info (including info from a psychiatrist) to address part of the reasoning for the original decline. (Emphasis added.) 168 Ultimately, Mr Munday's submission was to the effect that, while she noted the information, she did not consider it. I am not persuaded that that is so. Rather, as the file note illustrates, Jenna considered the information, was satisfied that it established that the intended treatment was necessary to treat Ms Day's condition but, despite that, decided that the application should be refused. The view that Jenna took that the treatment was illegal under Australian law was decisive. There was, of course, no new evidence touching upon this question. 169 I am not satisfied that Jenna was biased. In the absence of any new evidence or even argument to demonstrate that the treatment would or even might not have been illegal in Australia, there was no apparent reason to reach a different decision. 170 I now turn to the issues arising on the claim of direct discrimination. 171 As discussed above at [121], the applicants must show that, because of either of Ms Day's disabilities, Jenna treated or proposed to treat her less favourably than she would have treated anyone without the disability in circumstances that are not materially different. The applicants have not done this. Mr Munday argued, however, that by focussing on the legality in Australia of the proposed treatment, Jenna directly discriminated against Ms Day because she failed to make a reasonable adjustment, that adjustment being to seek an independent legal opinion or, indeed, any legal opinion. He also complained that in this regard she did not follow the Guidelines. 172 There was no dispute that Jenna failed to seek a legal opinion before rejecting Ms Day's application. For the reasons given at [146]-[148] above, however, I do not accept that this was a failure to make a reasonable adjustment within the meaning of the DDA. Nor do I accept, assuming it to be relevant, that this was a breach of the Guidelines. 173 The 2010 Guidelines for assessing applications state at para B4, under the heading "Applying the legislation": Sometimes guidance might be needed in difficult cases. This should be sought in accordance with Contact Centre procedures. Advice may need to be sought from Legal Services where there is a novel or complex issue and this should be sought through the designated Policy contact in accordance with Contact Centre procedures. Any legal advice obtained must be recorded in writing and attached to the relevant file. (Emphasis added.) 174 The only obligation imposed by the Guidelines with respect to legal advice is that, if it is obtained, it must be recorded in writing and attached to the correct file. Paragraph B4 contains an observation that advice from Legal Services (not an independent lawyer) may be necessary if there is a novel or complex issue. At its highest this amounts to a recommendation to seek advice in certain cases. Whether to do so in any given case is a matter for the judgment or discretion of the assessor. As this is not an application for judicial review, questions about whether that discretion was exercised unreasonably do not arise. 175 Mr Munday argued, too, that this was also a case of indirect discrimination under s 6(1) because the regulator required Ms Day to comply with a requirement or condition that the treatment for which she sought the funds was legal in Australia. Once again, for the reasons given above at [126]-[142], this argument must be rejected. 176 Accordingly, I am not satisfied that Jenna discriminated against Ms Day because of her disability.

The subsequent conduct of the department 177 The applicants contended that the refusal of senior management in the Department (specifically Craig Boyd and Sheila Bird) to seek an independent legal opinion about the validity of the proposed treatment under Australian law (as Mr Munday had requested) amounted to indirect discrimination on the ground of Ms Day's infertility. 178 The evidence relied upon to support the contentions is said to be contained in a letter from the Ombudsman and paras 29-31 of Mr Munday's affidavit of 2 August 2013. 179 In para 29 Mr Munday stated: While at work I sought intervention in this issue form (sic) very senior managers with the Department. In response the Senior Executive Service (SES) Manager of the team that process (sic) the [Early Release of Superannuation] benefits made personal comments to me saying words to the effect of "I understand what your (sic) trying to do is have more children". This when relayed to Ms Day caused her much anguish. Ms Day mentioned to me that she feels the Department's view is that her relationship with my estranged 18 year old son, should be good enough for her to get over the desire to be a mother. (Original emphasis.) 180 The SES Manager was Mr Boyd. 181 When objection was taken to the paragraph on the ground of relevance Mr Munday submitted that this remark went to his allegation of bad faith, but he made no submissions in support of the allegation and, for the reasons given above at [97]-[100], the evidence falls far short of what is needed to make out such a case. In the absence of any evidence that would place Mr Boyd's remark in context, it is difficult to reach any conclusion about its legal significance. At its highest, it was insensitive. 182 Paragraph 31 was objected to and rejected. 183 Paragraph 30 reads: I cautioned Mr Craig Boyd, the SES Manager, saying: "so even though the Ombudsman has said this needs to be tested in Court, you are not even willing to seek an independent legal opinion". To which Mr Boyd replied: "No". 184 All this establishes is that the Department declined to seek an independent legal opinion. It does not prove that the departmental officers in question discriminated against Ms Day in not doing so. For the reasons given above at [146]-[148], I am not satisfied that the failure to seek a legal opinion is a failure to make a reasonable adjustment. 185 The letter from the Ombudsman takes the matter no further. In an email sent on 29 February 2012 (which I take to be the letter referred to) the author, who was a senior investigation officer with the Ombudsman, observed that the Department appeared to have interpreted "treatment" in the SIS Regulations to mean "treatment that is lawful in Australia" and accepted that there may be other possible interpretations. She said that only a court could reach a definitive conclusion on this matter. But she told Ms Day that the approach taken by the Department was not "administratively unreasonable". As I have already mentioned, she flagged the possibility of judicial review under the ADJR Act and she "strongly encouraged" Ms Day to seek legal advice. But she made no adverse comment about the Department and did not suggest that the Department should have sought an independent legal opinion. 186 The applicants also contended that Mr Fiveash and Ms Luck-Cameron provided misleading information to the Commission's investigators "in order to justify the discrimination that resulted in the adverse decisions being made". They alleged that this showed "a clear commitment to not act in line with [the principles in s 3 of the DDA]". This, too, is alleged to amount to indirect discrimination on the ground of Ms Day's infertility. 187 The evidence to support this contention is said to be contained in two annexures to Mr Munday's affidavit of 2 September 2013 (MJM 7 and MJM 9). 188 Mr Fiveash was the Acting General Counsel for the Department, working in its legal division. It will be recalled that he was the author of the letter to the Commission responding to Mr Munday's complaint. That letter is annexure MJM 7. Mr Munday submitted that Mr Fiveash deliberately provided information to the Commission which he knew or ought reasonably to have known was wrong with the intention of misleading the Commission. The information said to be wrong was that the Department assumed responsibility for administering claims under the scheme for early release of superannuation benefits on 1 November 2011. 189 There is no apparent error in Mr Fiveash's letter to the Commission. As I pointed out at [50], it was on 1 November 2011 that regulatory responsibility was transferred from APRA to the Chief Executive Medicare. That delegates of APRA may have worked in the Department before that time does not mean that Mr Fiveash was wrong to claim that the Department assumed responsibility for administering claims of this kind on 1 November 2011. 190 Even if it were wrong, there is no basis to infer that it was written with the intention of misleading the Commission. That is a serious allegation. It is an offence to give information or make a statement to the Commission knowing that it is false or misleading in a material particular: AHRC Act, s 46PN. Accordingly, the principles in Briginshaw apply to the determination of this question. When I pressed Mr Munday to explain why he claimed that the statement was deliberately misleading and not just a mistake, he replied: Because he is the senior counsel for the department. He would know. He would have read the annual report. He would definitely know that that's not true. 191 This was no more than speculation and the annual report was not in evidence. The allegations made against Mr Fiveash are baseless. 192 In any event, how this conduct, if proved, could amount to unlawful discrimination was never explained. 193 In his submissions in reply, Mr Munday also argued that Mr Fiveash told the Commission that "during this entire process, they never once considered Ms Day's disability and never once considered Ms Day's mental disturbance". Mr Munday submitted that this assertion was not only not supported by the evidence, it was a lie. 194 Mr Fiveash did say to the Commission that "APRA did not consider … Ms Day's infertility disorder or her psychological disorder (her disability) in reaching its decision". And it is tolerably clear that APRA had regard to both. But Mr Munday's contention, that this was contrary to the evidence and a lie, must be rejected. Mr Fiveash's assertion was part of a response to a question from the Commission. The question was in the following terms: If Ms Day's request to have part of her superannuation funds released was rejected, please provide reasons. Please comment specifically on whether her disability was a reason. 195 After setting out the reasons given by the various decision-makers, Mr Fiveash wrote: In response to the second part of the Commission's question, the department advises that in respect to both of Ms Day's applications for early release of her superannuation monies, APRA did not consider of (sic) Ms Day's infertility disorder or her psychological disorder (her disability) in reaching its decision. APRA declined Ms Day's applications because the purpose for which the monies were intended to be used for would be illegal under Australian law. It should be noted that when considering an application under the relevant legislation, it is required to adhere to the criteria set out in subregulation 6.19A(1). We draw the Commission's attention to the criteria in 6.19A(1)(f) which provides for monies to be released "to meet expenses in other cases"; however, releasing monies under this criteria still needs to be "consistent with a ground mentioned in paragraphs (a) to (e), as the Regulator determines". Accordingly, and consistent with precedents set in relation to other decisions made on compassionate grounds, the department is required to consider, together with appropriate supporting evidence, the purpose for which those moneys will be used. (Original emphasis.) 196 The statement that APRA did not consider Ms Day's disability or disabilities was merely a clumsy way of saying that APRA did not reject Ms Day's application because of her disabilities. As I have already explained, the evidence bears this out. 197 The proposition that Ms Luck-Cameron, in outlining the Department's position to the Commission, provided erroneous information with the intention of deliberately misleading the Commission is equally without foundation. 198 The error Ms Luck-Cameron was alleged to have made is that in her email to the Commission of 7 December 2012 she indicated that the Commonwealth had a discretion to refuse an application. Mr Munday submitted: She has provided an email that basically says, "Yes, what we're doing is not strictly in accordance with the guidelines, and it's not supported by legislation, but it's our policy and we have discretion - " which they don't, according to their letters 199 The reference in Mr Munday's submission to the Commonwealth's letters is a reference to the assertion in those letters that the regulator had no discretion to approve a release of the funds where the criteria in reg 6.19A(1) had not been met. It has nothing to do with the point here. 200 Ms Luck-Cameron did not say that the Commonwealth had a discretion to refuse to release benefits where the statutory criteria had been made out. It is possible that she believed it did. That is certainly one inference that might be drawn from the email. Alternatively, she may have considered that the SIS Act or Regulations implicitly included that requirement - that medical treatment meant medical treatment that was lawful in Australia - which is the way the Ombudsman interpreted the Commonwealth's position. As the Commonwealth conceded, however, it is reasonable to proceed on the basis that the Commonwealth acted on the basis that it had a discretion. The notion that the Commonwealth had a discretion to withhold the release of any funds where the statutory criteria had been made out is, at least, questionable. The better view, in my opinion, is that it is not. 201 Provided that the regulator is satisfied that early release is required on a ground mentioned in reg 6.19A(1) and that the applicant does not have the financial capacity to meet an expense arising from that ground, the regulator is obliged to make a determination that the applicant has satisfied, for the purposes of reg 6.18(1) or reg 6.19(1) (as the case may be), a condition of release on a compassionate ground. This much is clear from the use of the word "must" in reg 6.19A(2). There are limits on the regulator's capacity to be satisfied that money is required for medical treatment but those limits do not include the fact that the treatment is lawful in Australia. Once the regulator determines in writing that a condition of release is satisfied, there appears to be no scope for withholding payment from the fund member. The only scope for the exercise of a discretion is in reg 6.19A(1)(f), which gives the regulator some latitude to release funds where the purpose does not strictly meet the criteria. 202 Yet, even if my reading of the Regulations is the right one and even if the proper inference from Ms Luck-Cameron's email is that she wrongly believed that the Department had a discretion to withhold funds despite fulfilment of the criteria, there is no evidence that Ms Luck-Cameron deliberately provided misleading information "in order to justify the discrimination that resulted in the adverse decisions being made". First, the premise for the applicants' contention is not made out. The evidence does not show that "discrimination resulted in the adverse decisions being made". Second, there is no proper basis for an inference that Ms Luck-Cameron deliberately intended to mislead the Commission. She may have been mistaken in her assumption that the regulator had a residual discretion. But, for the reasons given above at [97]-[100], a mistaken view of the law is not enough. Third, as with Mr Fiveash, even if she did set out to mislead the Commission, that would not prove that the Department had in fact discriminated against Ms Day, albeit indirectly, within the meaning of s 6 of the DDA. 203 I note that in their submissions the applicants stated that in recent times Ms Day has been invited to make another application for the early release of her superannuation on compassionate grounds and has been encouraged to believe that a new application would be assessed more favourably. It is a shame she has not taken up the invitation.

Conclusion 204 The applicants have been unable to prove any of their allegations of unlawful discrimination. The application must therefore be dismissed. There is no reason why costs should not follow the event. 205 There will be orders accordingly. I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.

Associate: Dated: 21 October 2014 Annexure Table of allegedly discriminatory conduct Conduct Name Date Direct/ Disability Affidavit ref Indirect Identified application as belonging to a class of people whose application should be treated differently Adaem 29.11.10 Direct Infertility CAD 2 Aug 2013 [17] Ignored all instructions provided in Guidelines [established] by [Department] & [Legislation] to determine Ms Day's application based on her [request] for IVF treatment Yumi 30.11.10 Direct Infertility CAD 2 Aug 2013 [18]-[19] [Makes] record identifying review will focus on legality of treatment receiving for IVF, not mental disturbance provided in letter seeking review Dan 21.3.11 Direct Infertility CAD 2 Aug 2013 [27]-[29] Annexure CAD3 [Without] evidence to support decision decides to disallow review because of treatment options Dan 21.4 - 27.4.11 Indirect Infertility CAD 2 Aug 2013 [30] Fishing via Google [with] intention of finding any evidence regardless [of] how remote to deny application based on treatment rather than prescribed release criteria & contrary to all instructions provided in Guidelines Dan 14.4 - 4.5.11 Direct Infertility CAD 2 Aug 2013 [32] Annexure MJM 11 Following on from her involvement [with] Dan's review, Jenna refused Ms Day's application based solely on her prior knowledge of issue [with] Dan [without] any consideration of any supporting evidence provided. Jenna disregarded all instructions provided in Guidelines Jenna 16.8.11 Direct & Indirect Mental Disturbance [&] Infertility CAD 2 Aug 2013 [41]-[46] Senior [Management] of DHS refused as suggested by Commonwealth Ombuds[man] to seek ind[ependent] legal opinion re validity despite direct request regarding concerns raised by Mr Munday Craig Boyd, Sheila Bird Indirect Infertility Letter from Ombudsman & MJM 2 Aug 2013 [29]-[31] DHS provided misleading information to HREOC investigators in order to justify the discrimination that resulted in the adverse decisions being made. This demonstrates a clear commitment to not act in line [with] Act principle in section 3 Glyn Fiveash & Susanna Luck-Cameron 29.5.12 & Dec 2012 Indirect Infertility Annexure MJM 7, 9