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.