On 18 March 1998 Mr Norman lodged a complaint with the Equal Opportunity Commission (the Commission). The complaint claimed that the Respondent had discriminated against Mr Norman in the provision of services on the basis of imputed disability and lawful sexual activity. Under s108 of the Equal Opportunity Act 1995 (the Act), the Commission declined to entertain the complaint because it was misconceived. Mr Norman required the complaint to be referred to the Anti-Discrimination Tribunal (ADT). The Commission, acting in accordance with that requirement and under s108 of the Act, referred the complaint to the ADT. The referral was dated 19 June 1998, but was received by the ADT on 24 June 1998.

On 1 July 1998 the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act) and the Tribunals and Licensing Authorities (Miscellaneous Amendments) Act 1998 (the Miscellaneous Amendments Act) came into operation. The effect of those Acts is, (among other things) to abolish the ADT, to create the Victorian Civil and Administrative Tribunal (VCAT), and to confer on VCAT the jurisdiction formerly exercised by the ADT under the Equal Opportunity Act 1995. The effect of Clause 9(1) of Schedule 2 of the Miscellaneous Amendments Act is that, if a proceeding was pending before the ADT on 1 July 1998 but the ADT had not begun to hear evidence on a material question of fact in that proceeding, the proceeding is to be taken to have been commenced before VCAT; anything done by the ADT or the parties in relation to the proceeding is taken to have been done by or in relation to VCAT; the procedure under the VCAT Act applies to that proceeding on and after 1 July 1998; and VCAT only has the powers functions and duties, in relation to that proceeding, that the ADT had before 1 July 1998. This complaint was referred to the ADT before 1 July 1998. Accordingly, I treat clause 9(1) as applying to that proceeding.

VCAT listed a Compulsory Conference in the proceeding to be held on 27 July 1998. That conference did not take place because, on 20 July 1998, the Respondent (Red Cross) applied under s75 of the VCAT Act to have the complaint dismissed or struck out. The application was made on all the grounds mentioned in that section - that is, that the complaint was frivolous, vexatious, misconceived, lacking in substance or was an abuse of process.

VCAT commenced to hear the application on 27 July 1998. It gave directions to enable the parties to file and serve written submissions. Those written submissions were subsequently filed and served.

On 28 September 1998 the Tribunal heard oral submissions from the parties. Mr Norman appeared in person. The Tribunal gave leave to Mr Chan of Counsel to appear for the Red Cross. Mr Norman did not object to this leave being granted.

I first set out the relevant provisions of the Act and the propositions applying to the determination of applications under s75 of the VCAT Act. I then discuss the relevant provisions of the Health Act 1958 (Vic) and the regulations made under that Act, and of the Therapeutic Goods Act 1989 (Cth) and some regulations and instruments made under that Act. The submissions made by the Red Cross are based on these pieces of legislation. I next summarise the material before me. Finally, I consider the submissions made by the parties.

2.1 Equal Opportunity Act 1995

I set out below the provisions of the Act applying to this case.

"discrimination" has the meaning given in Part 2;

(b) the presence in the body of organisms that may cause disease;

"lawful sexual activity" means engaging in o. not engaging in or refusing to engage in a lawful sexual activity;

The following are the attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 3-

(1) Discrimination means direct or indirect discrimination on the basis of an attribute.

(2) Discrimination on the basis of an attribute includes discrimination on the basis-

(a) that a person has that attribute or had it at any time, whether or not he or she had it at the time of the discrimination;

(b) of a characteristic that a person with that attribute generally has;

(c) of a characteristic that is generally imputed to a person with that attribute;

(d) that a person is presumed to have that attribute or to have had it at any time.

(1) Direct discrimination occurs if a person treats, or proposes to treat, someone with an attribute less favourably than the person treats or would treat someone without that attribute, or with a different attribute, in the same or similar circumstances.

(2) In determining whether a person directly discriminates it is irrelevant-

(a) whether or not that person is aware of the discrimination or considers the treatment less favorable;

(b) whether or not the attribute is the only or dominant reason for the treatment, as long as it is a substantial reason.

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice-

(a) that someone with an attribute does not or cannot comply with; and

(b) that a higher proportion of people without that attribute, or with a different attribute, do or can comply with; and

(2) Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including-

(a) the consequences of failing to comply with the requirement, condition or practice;

(b) the cost of alternative requirements, conditions or practices;

(c) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice.

(3) In determining whether a person indirectly discriminates it is irrelevant whether or not that person is aware of the discrimination.

In determining whether or not a person discriminates, the person's motive is irrelevant.

This Act does not prohibit discrimination if an exception in Part 3 (whether or not in the same Division as the provision prohibiting the discrimination) or Part 4 or an exemption under Part 4 applies.

42. Discrimination in the provision of goods and services

(1) A person must not discriminate against another person-

(a) by refusing to provide goods and services to the other person;

(b) in the terms on which goods and services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods and services to him or her.

(2) Sub-section (1) applies whether or not the goods and services are provided for payment.

(1) A person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of-

(b) an enactment, other than an enactment under this Act.

(2) For the purpose of sub-section (1), it is not necessary that the provision refer to discrimination, as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.

2.2 Victorian Civil and Administrative Tribunal Act 1998

75. Summary dismissal of unjustified proceedings

(1) At any time, the Tribunal may make an order summarily dismissing or striking out all, or any part, of a proceeding that, in its opinion-

(a) is frivolous, vexatious, misconceived or lacking in substance; or

Section 75 of the VCAT Act permits the Tribunal to dismiss strike out all or any part of a proceeding that, in its opinion, is frivolous, vexatious, misconceived, lacking in substance or an abuse of process. The order may be made on the application of a party or on the Tribunal's own initiative. If the Tribunal makes an order of this kind, it may also order the applicant (that is, the person who made the application, or at whose request the matter was referred, which originally invoked the Tribunal's jurisdiction), to compensate any other party for costs, expense, loss, inconvenience or embarrassment resulting from the proceeding.

It is possible to set out a number of propositions about the provision and applications under it -

(1) The scope or the power given by s75 to the Tribunal is similar to the power given to the Tribunal under s109(1) of the Equal Opportunity Act 1995 and which, in turn, is similar to the power give in s44C(1) of the Equal Opportunity Act 1984 (now repealed). Sections 109(1) and 44C(1) also use the words "frivolous, vexatious, misconceived or lacking in substance". Although they do not use the words "abuse of process", the Supreme Court has held that, in s109(1) of the Equal Opportunity Act 1995, the words "frivolous, vexatious, misconceived or lacking in substance" include the notion of abuse of process (Al-Hakim v Armstrong and Anor, Sup Ct of Vic, Byrne J, 22 October 1997). The principles set out in Rabel v State Electricity Commission of Victoria ([1998] 1VR 102) in relation to s44C(1) of the Equal Opportunity Act 1984 also apply to s75 of the VCAT Act.

(2) Those principles may be summarised as follows -

• (a) The application is for the summary termination of the proceeding. It is not the full hearing of the proceeding.

• (b) The Tribunal may deal with the application on the pleadings or submissions alone, or by allowing the parties to put forward affidavit material or oral evidence. The Tribunal's procedure is in its discretion and will depend on the circumstances of the particular case.

• (c) If the Complainant indicates to the Tribunal that the whole of his or her case is contained in the material placed before the Tribunal, the Tribunal is entitled to determine whether the complaint lacks substance by asking whether, on all the material placed before it, there is a question of real substance to go to a full hearing. However, if a Complainant indicates to the Tribunal that there is other evidence that he or she can call to support the claim and the Tribunal, on the application, does not permit that evidence to be called, then the Tribunal cannot determine the application on the basis that the Complainant's material contains the whole of his or her case.

• (d) An application to strike out a complaint is similar to an application to the Supreme Court for summary dismissal of civil proceedings under RSC r23.01 (see also commentary on this rule by Williams, Civil Procedure Victoria). Both applications are designed to prevent abuses of process. However, it is a serious matter for a Tribunal, in interlocutory proceedings which would generally not involve the hearing of oral evidence, to deprive a litigant of his or her chance to have a claim heard in the ordinary course.

• (e) The Tribunal should exercise caution before summarily terminating a proceeding. It should only do so if the proceeding is obviously hopeless, obviously unsustainable in fact or in law, or on no reasonable view can justify relief, or is bound to fail. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action, or where a Respondent can show a good defence sufficient to warrant the summary termination of the proceeding.

• (f) On an application to terminate a complaint summarily, the Tribunal must clearly distinguish between the complaint itself and the evidence which is to be given in support of it. A complaint cannot be struck out as lacking in substance because it does not itself contain the evidence which supports the claims it makes.

• (g) The test for determining whether a complaint is frivolous, vexatious, misconceived or lacking in substance is different from that applied in other Australian Anti-Discrimination jurisdictions where the legislative context is different from Victoria. It is similar to that applied by the Supreme Court in civil proceedings for the purposes of RSC r23.01.

• (h) The Tribunal should not apply technical, artificial or mechanical rules in construing a complaint or coming to a view about the case a Complainant wishes to advance.

(3) In a number of cases, the ADT has set out some additional propositions in relation to s109(1). In my view, these also apply to s75 of the VCAT Act. They are -

• (a) Where the material before the Tribunal indicates that the parties are in dispute as to a fact or facts in issue, and the material does not assist the Tribunal to resolve that dispute, the Tribunal ought not to terminate the complaint summarily for lack of substance.
• (b) If the Tribunal is satisfied that a complaint lacks substance or is misconceived in respect of an element which, under the Equal Opportunity Act 1995, is required to be proved before a Complainant can substantiate the complaint at a full hearing, then the Tribunal would be entitled to terminate the complaint summarily.
• (c) If it is sought to terminate a proceeding summarily on the basis that the Respondent has a good defence, the Tribunal should not summarily terminate the proceeding on that basis unless satisfied that the defence so completely answers the claim that the claim is manifestly hopeless and untenable (Brooks & Ors v State of Victoria and Anor, ADT of Vic, 30 September 1997).

(4) There are some important differences between s109 of the Equal Opportunity Act 1995 and s75 of the VCAT Act which the Tribunal should bear in mind. They are -

(a) Section 109 of the Equal Opportunity Act 1995 is confined to the striking out of complaints. Section 75 of the VCAT Act applies to any proceeding, including a complaint referred to VCAT. "Proceeding" is defined to mean a proceeding in the Tribunal, and to include an enquiry, Compulsory Conference or mediation, but to exclude a referral under s156 of the Equal Opportunity Act 1995 (VCAT Act s4). A proceeding in the Tribunal is commenced by an application being made, or a matter being referred, to the Tribunal, or the Tribunal's jurisdiction being invoked in any other way authorised or required by legislation (VCAT Act ss43 48 67 69). This application concerns a complaint under the Equal Opportunity Act. That complaint has been referred under that Act to this Tribunal. Once the Tribunal's jurisdiction is invoked by the referral, its function is to hear the complaint referred, rather than to hear the referral. Similarly, under s75, where a party applies to have a proceeding which was commenced by the referral of a complaint summarily terminated, the application is to terminate the complaint rather than the referral of the complaint.

(b) Section 109 was amended by the Miscellaneous Amendments Act. In its form before that amendment, it only permitted a Respondent to apply to have a complaint struck out where the complaint was not being conciliated by the Commission, and before the Tribunal commenced to hear the complaint. In its amended form, it is even more limited. It applies only to complaints under the Equal Opportunity Act which have not been referred to the Tribunal. Section 75 of the VCAT Act is wider. It only applies to a proceeding. In the context of the Equal Opportunity Act, this means that it only applies to an application made, or a complaint referred, to the Tribunal under that Act. However, apart from this limitation, it applies at any time in the course of the proceeding, even in the course of the hearing.

(c) Section 109 only permits a complaint to be "struck out". In Rabel's case, it was suggested that this meant "dismissed" because the complaint was the initiating document in the proceeding. Section 75 of the VCAT Act permits the proceeding to be dismissed or struck out. In my view, these words would permit the Tribunal either to terminate the complaint simpliciter, or terminate it with a right of reinstatement.

(d) I have considered whether the differences between ss109 and 75 mentioned in paragraphs (b) and (c) indicate that the Tribunal should, in applications under s75 which relate to the Equal Opportunity Act 1995, follow the test formulated by Wilson P in Assal v Department of Health Housing and Community Services [1992] EOC 92-409 and Eames J in Rabel v SECV ([1995] EOC 92-743). That test was: does the material establish that there is a case to answer which should go to a full hearing? In my view, the Tribunal should continue to follow the test laid down by the Court of Appeal in Rabel's case. The Court of Appeal reversed the decision of Eames J. Although s75 is closer in its terms to the terms of Commonwealth Anti-Discrimination legislation, it still uses the same words as s109(1) of the Equal Opportunity Act. If Parliament had intended to change the test laid down by the court of Appeal, it would have indicated this more clearly than it has.

(e) Under s75, the Tribunal may summarily terminate a proceeding on application by a party or on its own initiative. Under s109, it may only summarily terminate a complaint on the application of the Respondent. Section 75(1) permits the Tribunal to terminate a complaint summarily if "in its opinion" the complaint is frivolous, vexatious, misconceived, lacking in substance or an abuse of process. In Rabel's case, the Court of Appeal indicated that the onus to satisfy the Tribunal under s109(1) was on the Respondent. I have considered whether the different wording of s75 changes this onus. In my view, the correct position is that, if the Tribunal initiates the order, it must consider all the material before it. If a party applies for the order, the Tribunal must also consider all the material before it, but the onus is on the applicant to satisfy it that the application is made out.

This complaint claims discrimination in the provision of services. The basis of the claim is lawful sexual activity and imputed impairment. The lawful sexual activity is that Mr Norman is a homosexual. The imputed impairment is HIV.

The Act only prohibits discrimination in specified areas of activity and on the basis of specified attributes. Lawful sexual activity is an attribute (ss4 and 6). Among other things, "lawful sexual activity" means to engage in lawful sexual activity. The ADT has held that male to male sexual activity, if lawful, falls within this definition (Macgregor v Maztan Pty Ltd, ADT of Vic 23 July 1997).

"Impairment" is an attribute specified in the Act (ss4 and 6). It includes the presence in the body of organisms that may cause disease. The ADT has held that this phrase covers the Human Immuno-deficiency virus or HIV (Schlipallius v Petch, ADT of Vic, 4 April 1996).

Section 7 of the Act makes it clear that discrimination includes direct and indirect discrimination. Discrimination can be based on an attribute itself, on a presumed attribute, or on a characteristic that a person with an attribute generally has or is generally imputed to have (s7(2)). Mr Norman claims that, having been informed by him that he was a homosexual, the Red Cross either imputed to him the impairment of HIV, or dealt with him on the basis that homosexual men were more likely to have HIV. The Red Cross does not argue that this way of characterising the basis of the alleged treatment is not capable of falling under s7(2) of the Act.

Direct discrimination occurs if one person treats someone with an attribute less favorably than he or she would treat a person without that attribute or with a different attribute in the same or similar circumstances. The attribute need not be the sole or dominant reason for the treatment, but must be a substantial reason for it (s8). Mr Norman claims that, by not allowing him to donate blood, the Red Cross treated him less favorably that it would have treated a person whom it did not know was a homosexual and to whom it did not impute HIV. The Red Cross does not argue that the allegations in Mr Norman's claim are not capable of constituting direct discrimination.

Indirect discrimination occurs if one person imposes on another a requirement, condition or practice with which a person with an attribute does not or cannot comply, a higher proportion of people without that attribute or with a different attribute do or can comply, and which is not reasonable (s9). One way of characterising the allegations in Mr Norman's claim is that the Red Cross imposed on him a condition or requirement that, if it is to accept donations of his blood, he must not be a practicing homosexual; that he could not comply with that requirement because he was a homosexual; that a higher proportion of the community (who are not homosexuals) do or can comply with this requirement; and that this requirement or condition is not reasonable. The Red Cross does not suggest that the allegations in Mr Norman's claim are not capable of being characterised so as to fall under s9.

The Act only prohibits discrimination in specified areas of activity. Mr Norman's claim relates to the provision of services. That area is dealt with in s42 of the Act. Section 42 prohibits one person from discriminating against another -

• By refusing to provide services;
• In the terms on which "services are provided to the other person";
• "By subjecting the other person to any other detriment in connection with the provision of...services to him or her".

Services is defined in s4 inclusively and not exhaustively. It was not suggested before me that the service the Red Cross Blood Bank provides fell within any of the express inclusions in "services" in s4 of the Act. The dictionary definition of "services" includes any act of helpful activity, or an act performed at the request or desire of a person (see also IW v City of Perth [1997] HCA 30; [1997] 146 ALR 696). IW's case shows how careful the Tribunal must be to identify the service correctly. In that case, it was held that the Tribunal had been wrong to identify the refusal to grant a planning permit as a refusal of a service, where the municipal council had a clear discretion to grant or refuse a permit (see particularly the judgements of Dawson and Gaudron JJ and Gummow J). However, IW's case also indicates that, where discrimination occurs in the consideration and disposition of an application for a planning permit, this may amount to discrimination in the terms of the provision of a service.

The ADT has held that s42 prohibits discrimination by service providers against recipients or potential recipients of the services (Tanglemeyer V FAI Workers Compensation (Vic) PL, ADT of Vic, 17 July 1998). This section may be contrasted with s92 of the Act, which clearly applies to providers and recipients of services and relates to sexual harassment.

The Red Cross relies on s69 of the Act. As the ADT pointed out in Bolton v State of Victoria (ADT of Vic, 31 December 1997), s69 is wider than s39(e) of the Equal Opportunity Act 1984. Both cover conduct necessary to comply with an Act or enactment, other than the Equal Opportunity Act. The meaning of this expression was considered in Waters v Public Transport Corporation ([1991] EOC 92-390). Some of the judgements in that case indicate that conduct will not be necessary to comply with legislation where there are non-discriminatory alternative means of compliance available. Some of the judgements in that case also indicate that the other legislation must, by referring to discrimination, show that it is its clear intention to override anti-discrimination legislation.

Section 69 also applies to conduct authorised by an Act or enactment other than the Equal Opportunity Act. The section makes it clear that the other Act or enactment need not refer to discrimination. "Enactment" means "a rule, regulation, by-law, local law, Order, Order in Council, proclamation or other instrument of a legislative character". The Interpretation of Legislation Act 1984 defines "Act" as "an act of the Parliament of Victoria", but this is subject to a contrary legislative intention (s38).

The effect of s12 of the Act is that, if an exception provision in Part 4 of the Act applies, the conduct which it covers is not prohibited by the Act. Section 69 is part of Part 4 of the Act. If the Tribunal is satisfied that s69 applies to Red Cross' conduct, that conduct will not be prohibited by the Act. The section applies to conduct necessary (that is, required) to comply with an enactment - that is, where the enactment could not be complied with by an alternative non-discriminatory act. The section also applies to conduct authorised by an enactment. The enactment need not mention discrimination. I do not think that the section is limited to enactments of the Victorian Parliament. It would also cover an enactment of another legislature that has force in, or is part of the law of, Victoria.

2.2 The Health Act 1958 and related legislation

The Red Cross relies on some provisions of Part VI of the Health Act 1958 (the Health Act) to authorise the conduct complained of by Mr Norman. It is necessary to make some brief comments about the provisions of that Part and the regulations have effect for the purpose of those provisions.

Part VI of the Health Act, in its present form, was introduced into the Health Act by the Health (General Amendment) Act 1988. That Act also amended the Equal Opportunity Act 1984 to include in the definition of "impairment" a paragraph relating to the presence in the body of organisms that cause disease - a provision carried forward, in similar terms, to the Equal Opportunity Act 1995. Part VI of the Health Act is headed "Management and Control of infectious diseases". Division 1 contains some interpretive material. That material includes s119. Section 119 provides -

The following principles apply for the purposes of the application, operation and interpretation of this Part -

(a) the spread of infectious diseases should be prevented or limited without imposing unnecessary restrictions on personal liberty and privacy;

(b) a person at risk of contracting or being infected with an infectious disease must take all reasonable precautions to avoid contracting or being infected with the disease;

(c) a person who suspects that he or she has an infectious diseases must ascertain -

• (i) whether he or she is infected ; and

• (ii) what precautions should be taken to prevent others being infected;

(d) a person with an infectious disease must take necessary measures to ensure that others are nit unknowingly placed at risk of becoming infected;

(e) a person with an infectious disease or at risk of contracting or being infected with an infectious disease has a right -

(i) to be protected from unlawful discrimination; and

(ii) to have his or her privacy respected; and

(iii) to receive information about the medical and social consequences of the disease and any proposed treatment; and

(iv) to have access to available and appropriate treatment -

so long as those rights do not infringe on the well-being of others.

"Infectious disease" is defined by s3 to mean a disease or condition prescribed by the regulations to be an infectious disease. The Health (Infectious Diseases) Regulations 1990 (the Health Regulations) provide, by regulation 5, that the list of infectious diseases in contained in Schedule 1. That Schedule includes, as an infectious disease, "human retrovirus infections, including those caused by HIV types I and II".

Division 2 of Part VI of the Health Act creates an offence of knowingly or recklessly infecting another person with an infectious disease. Division 2A imposes a number of requirements where an incident has occurred in which certain health professionals or custodians may have become infected with certain specified infectious diseases. The division gives power, in certain circumstances to the, Secretary of the Department of Human Services to order compulsory testing for named infectious diseases, and contains a number of immunity provisions for those who carry out or receive information about those tests.

Division 3 gives power to the Secretary of the Department of Human Services to make orders if satisfied that a person is, or is reasonably likely to be, infected with an infectious disease and (if infected) is likely to transmit the disease, and the orders are in the public interest. The orders include compulsory examination, testing and counselling and, if counselling does not result in a behaviour change, restriction on movement or isolation of the person.

Division 4 concerns emergency powers. It enables the Governor in Council to declare an emergency for the purpose of stopping, limiting or preventing the spread of an infectious disease. In the area to which the declaration applies, the Secretary to the Department of Human Services may make orders restricting movement of people into, out of or within the area, and (in specified circumstances) permitting the detention of people, and the seizure of land or goods.

Division 5 relates to autopsies. Division 6 is headed "special provisions relating to the human immuno-deficiency virus". That division sets out a number of requirements about what information must be given to people who request or are required to take a test for HIV. It sets out some provisions to protect the confidentiality of information concerning those tests. It imposes on the Secretary of the Department of Human Services and on health professionals who carry out HIV testing a number of record keeping requirements.

Division 7 is headed "Blood and Tissue donations". I deal with the provisions in it relating to blood donation shortly. Division 8 gives some immunities from action to Pathologists who disclose information relating to infectious disease as required by the Part. Division 9 contains additional regulation - making powers.

I now deal with division 7. As I have said, it relates to blood and tissue donations. I deal only with the provisions concerning blood donations, which are relevant to this case. Section 131 defines "donor" in relation to blood as "a person who gives blood at premises or a vehicle of the society or at a hospital ward". "Society" is defined as the Australian Red Cross Society. I deal only with those provisions of the division applying to the society. Section 132 relevantly provides -

(1) This section applies to an action brought by or on behalf of -

• (a) a person who claims -
  • (i) to have been infected with HIV or Hepatitis C because he or she was given, or in any way dealt with, blood supplied by the Society...or a blood product derived from blood so supplied; or

(b) a dependant of a person who died as a result of having been infected with HIV or Hepatitis C as mentioned in paragraph (a).

(2) In an action to which this section applies brought against a person specified in column 1 of an item in the Table to this section it is a defence to prove the facts or matters specified in column 2 of that Table unless any of the facts or circumstances mentioned in column 3 of that Table apply.

There follows the table referred to in s132(2). Column 1 is headed "Person against whom action brought". Column 2 is headed "Defences". Column 3 is headed "Exception to defences". I deal only with those items in the table that are relevant to the society. Item 1 of the table provides -

The Society, a hospital or an employee, agent or voluntary worker of the Society or a hospital.

(a) before taking the blood from a donor obtained a statement from the donor in the prescribed form; and

(b) before supplying the blood or a blood product-

• (i) caused a sample; or
• (ii) in the case of a blood product, caused a sample of each unit of blood from which the product was derived-

to be tested in an approved manner for the presence of HIV or Hepatitis C (as the case may be); and

(c) obtained a negative result from that test or each of those tests.

After the Society or hospital supplied blood, the Society or hospital had reasonable grounds for believing that the blood was likely to contain HIV or Hepatitis C (as the case may be) and did not take all reasonable steps-

1. to find out whether the blood, or a blood product derived from that blood had been given to a person; and
2. to ensure that any remaining part of the blood, or a blood product derived from that blood, is not given to any person.

The effect of Item 1 in relation to the Red Cross is this. The Red Cross or its employee, agent or voluntary worker, has a good defence to an action brought by or on behalf of a living person who claims to have been infected with HIV or Hepatitis C through being given or having dealt with blood supplied by the Red Cross or a blood product derived from that blood, or to have been infected by another person who was given or who dealt with that blood or blood product. There is also a good defence to an action brought by or on behalf of a dependant of a person who died as a result of becoming infected in these circumstances. The good defence involves 3 elements. The first is that, before taking the blood from the donor, the Red Cross must have obtained from the donor a statement in the prescribed form. The second is that the Red Cross must have tested (in a manner approved by the Secretary of the Department of Human Services) for the presence of HIV or Hepatitis C a sample of blood and a sample of each unit of blood from which a blood product is derived, before supplying that blood or blood product. The third is that the Red Cross must obtain a negative result from each of those tests.

This defence does not apply if, after supplying the blood, it had reasonable grounds to believe that it was likely to contain HIV or Hepatitis C and did not take all reasonable steps to find out whether the blood, or a blood product derived from it, had been given to a person and to ensure that any remaining blood, or blood product derived from it, is not given to a person.

The other defences set out in the table cast some light on the meaning of Item 1. If blood supplied by the Red Cross or a blood product derived from that blood is administered to a person by a hospital, another body, or by or on behalf of a registered medical practitioner, those people or bodies have three alternative defences.

The first is that, when the blood or blood product was administered, there was attached to its container a certificate purporting to be from the laboratory which tested the relevant sample stating that the test was conducted in the manner approved by the Secretary for the Department of Human Services and that each sample tested for the presence of HIV or Hepatitis C gave a negative result. The second alternative defence is that the Red Cross took the 3 steps which I have earlier mentioned as forming a good defence by it to an action in respect of blood supplied by it or a blood product derived from it. The third alternative defence is that, if the blood or blood product is likely to deteriorate rapidly and had to be used urgently, the blood from the donor had, within the last 6 months, been tested (in a manner approved by the Secretary for the Department of Human Services) for the presence of HIV or Hepatitis C and those test results were negative.

There are some circumstances in which these alternative defences do not apply. They do not apply if, before or during administration of the blood or blood product, the hospital, body or registered medical practitioner had been informed that the blood or blood product is likely to contain HIV or Hepatitis C and did not take reasonable steps to ensure that it was not administered to any person (see table items 2 and 3).

Section 134 is an evidentiary provision. Section 135 gives the donor of blood a civil and criminal immunity from action where a person has been infected with HIV or Hepatitis C by the administration of blood from that donor or a blood product derived from blood from that donor, unless the donor has been found guilty of making a false statement prohibited by s136. Section 136 makes it an offence for a donor, in a statement given under the division, to include a statement that is false in a material particular. This would include false information given in a prescribed statement that the Red Cross may use for the purposes of a defence under s132(2). The maximum penalty for this offence is $5,000 or 2 years imprisonment.

The Health Regulations prescribe the form of statement which the Red Cross must obtain if it is to satisfy one of the elements of the defences under s132(2). Regulation 20 provides that the prescribed form is the form in Schedule 6. Schedule 6 provides -

There are some people in the community who MUST NOT donate blood because it may transmit infections to patients who receive it.

You must complete this form if you want to donate blood. If you do not know how to answer any of the questions please check with the interviewing nurse before ticking the answer to that question. If you answer yes to any question, this will require further discussion, but may not exclude donating.

It is against the law to knowingly make a false or misleading statement. If you do, you may receive a heavy penalty.

To the best of my knowledge my answers to the following questions are true.

(Note: Partner is defined as any person with whom you have had sexual contact in the last 12 months).

1. Have you or your partner any reason to believe that you have been infected with HIV, the virus that causes AIDS?

3. Have you or your partner had sexual activity in the last 5 years with any person whom you know to have been exposed to HIV, the virus that causes AIDS?

4. Have you had sexual activity with a person with haemophilia in the last 5 years?

5. Have you or your partner been a male or female sex worker (prostitute) here or overseas in the last 5 years?

6. Have you had sexual activity with a male or female sex worker (prostitute) here or overseas in the last 5 years?

7. Have you had male to male sexual activity in the last 5 years?

8. Have you had sexual activity with a male in the last 12 months who has had sexual activity with another male in the last 5 years?

9. Have you or your partner EVER injected yourself, or been injected with any drug not prescribed by a doctor?

10. Have you or your partner EVER shared needles and/or syringes?

11. Have you been injured with a used needle in the last 12 months?

12. Have you been tattooed within the last 12 months?

13. Have you received a blood transfusion or treatment with human blood products in the last 12 months?

I am signing this Statement in the presence of a member of the staff of the Blood Transfusion Service or Hospital I am attending.

Signature of Donor....................................

Signature of Witness.................................

The Red Cross also relies on the Therapeutic Goods Act 1989 (Cth) (the Therapeutic Goods Act) and some instruments in force under that Act to authorise its conduct. I next say something about the scheme of that legislation.

The Commonwealth Therapeutic Goods Act and the Therapeutic Goods (Victoria) Act 1994 (Vic) are complimentary pieces of legislation. The Commonwealth Act makes it clear, by its objectives, that it is intended to facilitate a national scheme of controls relating to the "quality, safety, efficacy and timely availability" of therapeutic goods (s4). The controls which that Act then establishes are mirrored in the Victorian legislation. In the context of both Acts, "therapeutic goods" include (among other things) goods "that are represented in any way to be, or that are, whether because of the way in which the goods are presented or for any other reason, likely to be taken to be" for therapeutic use or for use as an ingredient or component in the manufacture of therapeutic goods. Broadly, "therapeutic use" means use in connection with preventing diagnosing curing or alleviating a disease, ailment, defect or injury in humans or animals; influencing, inhibiting or modifying a physiological process in humans or animals; or testing the susceptibility of humans or animals to any disease or ailment. "Manufacture" has a broad meaning and includes producing, or any part in the process of producing, therapeutic goods (s3).

Both the Commonwealth and Victorian Therapeutic Goods Acts include controls on the manufacture of therapeutic goods. The Commonwealth Act deals with the manufacture of therapeutic goods in Australia. The State Act deals with the manufacture of therapeutic goods in Victoria. Each prohibits a person from knowingly or recklessly taking part in the manufacture of therapeutic goods for supply for use in humans unless the goods are exempt from the provisions concerning licensing or are manufactured under licence (Commonwealth and Victorian Acts, Part 4).

Section 34 of the Commonwealth Act permits the regulations under that Act to exempt therapeutic goods or classes of therapeutic goods from the operation of Part 4. The Victorian Act exempts goods exempted under Part 4 of the Commonwealth Act from Part 4 of the Victorian Act in relation to manufacturing.

Regulation 17(1) of the Commonwealth therapeutic goods regulations provides that the therapeutic goods specified in Schedule 7 of the regulations are exempt from the operation of Part 4 of the Commonwealth Act, unless the goods are specified as pharmaceutical benefits. Item 18 of Schedule 7 includes in that exemption "human blood and components prepared by a blood donation centre from human blood other than plasma supplied by a manufacturer to another manufacturer for the manufacture of blood components".

Section 36 of the Commonwealth Act permits the Minister to determine principles to be observed in the manufacture of therapeutic goods for use in humans. In the Act, these are called "the manufacturing principles". They may include codes of good manufacturing practice, specifications, standards, quality assurance procedures, and any other matter relevant to the quality safety and efficacy of the goods (s36(2)). The instrument setting out the manufacturing principles is a disallowable instrument for the purposes of s46A of the Commonwealth Interpretation of Legislation Act 1901 (s36(4)). The effect of applying that section is that a number of provisions that apply to regulations will also apply to the instrument containing the manufacturing principles. These include a provision permitting the instrument to incorporate other material (see Cth Acts Interpretation Act 1901 ss48 48A 49 49A). The manufacturing principles are also mentioned in the Victoria Therapeutic Goods Act (s3).

Under both the Commonwealth and the Victorian Acts, one of the conditions which may be included in a licence to manufacture therapeutic goods granted under the Act is that the licence holder must observe the manufacturing principles (Victorian and Commonwealth Acts, s42). An application for a licence may also be refused if the applicant will be unable to comply with the manufacturing principles (Commonwealth and Victorian Acts, s40).

Under s36 of the Commonwealth Act, the Minister has determined a code of manufacturing practice for blood and blood components. The code, as in force as at March 1998, is exhibited to the affidavit of Dr Coghlan, which is included in the submissions made by the Red Cross.

The code deals with many aspects of the taking, storage and testing of blood donations. The introduction to the code states -

"The code has been written in a style intended to be readable rather than regulatory, so that it may be used both for inspection and self-audit. Some clauses are written using the term "should", which indicates the requirements that are expected to apply...Where "must" is used, the requirement is mandatory...".

Section 904 of the code requires each donor to be interviewed and to sign a form of declaration which must also be signed and witnessed by the interviewer. Clause 905 states that the health assessment of the donor "should" be validated on the day of donation. It states that the "NBTC guidelines for selection of donors are the minimum requirements to be followed, together with any legislation relevant to the State or Territory in which the donation is taking place". "NBTC " is the National Blood Transfusion Committee.

The NBTC guidelines for the selection of blood donors (dated April 1994) are also exhibited to Dr Coghlan's affidavit. The introduction to the guidelines states that their purpose is "to assist in determining the suitability of potential donors to donate blood and the purpose for which those donations should be used". They state that the decision to accept a donation takes account both of the donor and "the safety for a person to receive that donation". They state that the selection of blood donors is made on answers to a questionnaire and limited physical examination. They state that consideration should always be given to the collection of by donation, even if all components cannot be used for transfusion (section 102).

Sections 103 and 104 deal with the requirement to be interviewed, and mention the requirements under State laws to complete certain declarations.

Section 301 makes it clear that "the basic principle governing the selection of blood donors is the avoidance of risk -

(a) to the donor; and

(b) to the recipient of the blood; and

(c) to blood bank staff".

At page 10, the guidelines deal with HIV. They state -

"Prospective donors should be permanently deferred from donating blood or blood components for transfusion if -

• there is clinical or laboratory evidence of infection with HIV;
• they have donated the only unit of blood or blood component transfused to a person who developed laboratory evidence of infection with HIV and who has received no other blood component or derivative known to transmit these infections and who has no other identifiable risk factor;
• Men must not give blood if they have -
  • AIDS or are HIV positive;
  • had sex with another man in the last twelve (12) months;
  • ever injected themselves with drugs not prescribed by a medical practitioner;
  • had sex in the last twelve (12) months with a woman whom they knew to have AIDS or to be HIV positive;
  • had sex in the last twelve (12) months with a woman whom they knew had ever injected herself with drugs;
  • had sex in the last twelve (12) months with a woman (other than their usual partner) from a geographical high-risk area.

• Women must not give blood if they have -
  • AIDS or are HIV positive;
  • had ever injected themselves with drugs not prescribed by a medical practitioner;
  • had sex in the last twelve (12) months with a man whom they knew to have AIDS or to be HIV positive;
  • had sex in the last twelve (12) months with a man whom they know to have had sex with another man;
  • had sex in the last twelve (12) months with a man whom they know to have hemophilia;
  • had sex in the last twelve (12) months with a man whom they know ever to have injected himself with drugs;
  • had sex in the last twelve (12) months with a man (other than their usual partner) in a geographical high-risk area."

• the complaint;
• the written submissions made by the parties in relation to this application (including an affidavit by Dr Coghlan and exhibits to that affidavit);
• the oral submissions made by the parties in relation to the application.

The material before the Tribunal is not in dispute.

The Australian branch of the then British Red Cross Society was founded in 1914. In 1941 it became incorporated by royal charter under the name of the Australian Red Cross Society. That charter expresses its primary objects as "the furnishing of aid to the sick and wounded irrespective of nationality; the rendering of assistance in case of any great public disaster, calamity or need; and the improvement of health and the prevention of disease and the mitigation of suffering in Australia and elsewhere". Its powers in this charter expressly mention the promotion of blood transfusion services (paragraph 12).

The Red Cross operates a blood service or "blood bank'. It obtains blood from voluntary donors. The donors do not pay to have their blood accepted. Nor do they receive payment for their donation. The donated blood is tested. 2.5% of the donated blood is used in this testing. Of the rest, approximately 99% is processed to separate the plasma from its other parts. Approximately 80% of this plasma is supplied to the Commonwealth Serum Laboratories (CSL). CSL fractionates and processes the plasma and, from it, manufactures blood components. The remaining 20% of the plasma is distributed by the blood bank to hospitals and medical institutions throughout Australia, for use in medical treatment. The parts of the blood left after the separation of the plasma are used as platelet and red cell concentrates, and distributed by the blood bank to hospitals and medical institutions, mainly for use in blood transfusions. The remaining 1% of blood that is not separated into plasma and component parts is kept as whole blood, and is distributed by the blood bank to hospitals and medical institutions throughout Australia, for use in medical treatment.

At the point of donation, the blood bank is unaware of the purpose for which the donated blood will be used. More than 95% of it will be turned into plasma, and 80% of that will be supplied to the Commonwealth Serum Laboratories.

On 12 January 1998 Mr Norman went to the Red Cross blood bank at the Warnambool hospital to donate blood. He completed and signed a form of declaration. That declaration contains all the questions set out in Schedule 6 of the Health Regulations, and a number of other detailed questions about medical conditions, medication and general health. To question 7 concerning male/male sexual activity within the last 5 years, Mr Norman answered "yes". To question 8 concerning sexual activity with a male in the last 12 months who, in the last 5 years, had had sexual activity with another male, Mr Norman also answered "yes". To all the other questions set out in Schedule 6, Mr Norman answered "no".

After a private discussion with the nurse on duty (during which Mr Norman felt that the nurse was embarrassed at having to say the word "homosexual"), the nurse told him that the Red Cross would not allow him to donate blood because of his affirmative answers to these 2 questions. Mr Norman then telephoned a doctor at the Red Cross blood bank, who confirmed this decision, saying that homosexuality between males was regarded as a high-risk activity. Mr Norman explained that he did not practice anal sex and only practiced safe sex, but the decision of the Red Cross remains unchanged.

Mr Norman claims that, by not allowing him to donate blood, the Red Cross is discriminating against him on the basis of his homosexual activity and on the basis that, because he is a homosexual, it presumes that he will have a higher risk of contracting HIV. He claims that the Red Cross would not have dealt with a heterosexual or a female homosexual in the same way. He claims that the Red Cross should have taken into account the individual particulars of his case, including the fact that he does not practice anal sex and that he practices safe sex. He claims that the Red Cross should make its decisions on the basis of blood testing and screening rather than on the basis of the stereotyping of homosexual males.

4.1 Does the Red Cross provide a service to Mr Norman?

Under heading 2.1, I have said that s42 of the Act only prohibits discrimination by a service provider in refusing to provide services, or in providing services, to the recipient or potential recipient of those services. It does not prohibit discrimination by the recipient of services against the provider of them.

Red Cross submits that it provides no service to Mr Norman or to any other blood donor. It only provides a service to those who need the blood - to those people to whom it is administered by hospitals and doctors. Mr Norman disagrees with this.

In my view, to say that the Red Cross blood bank only provides a service to those who ultimately are administered the blood it collects is to define what it does too narrowly. It conducts a blood bank. That includes a number of operations. It includes the collection of blood from donors, its storage, its separation (where appropriate) into its component parts, its distribution to hospitals and to the CSL. The fact that the Red Cross does not pay those who donate blood to it is irrelevant for the purposes of s42 of the Act, which covers services whether or not provided for payment. For those who wish to donate blood, the Red Cross provides them with the means and opportunity to do so, including premises at which, and facilities and equipment with which the blood can be collected, and the staff to carry out that procedure. It provides a centralised, co-ordinated and organised facility where people who wish to may attend and donate blood. It cannot be said that it is impossible to characterise this arrangement as a service, both to those who wish to donate blood and to those who ultimately receive those donations.

4.2 Does s69 of the Act apply to the Red Cross' conduct?

It was submitted for the Red Cross that its conduct was authorised by the combined effect of s132(2) of the Health Act, the form in Schedule 6 of the Health Regulations, the manufacturing principles for blood and blood components determined under the Commonwealth Therapeutic Goods Act and the documents incorporated in those principles. I have commented on this legislation under headings 2.2 and 2.3.

The question is one of some difficulty. I have come to the conclusion that the Red Cross is correct in its submissions.

I first consider the Health Act and the Health Regulations. Part VI of the Health Act contains a number of specific and far-reaching provisions about what measures may be taken to control the spread of infectious disease. Those provisions relate to individuals and classes of people. They specifically cover such things as isolation, compulsory testing and examination, and the restriction of movement of people from one place to another. Where the provisions are ambiguous, s119 is an aid to their interpretation (see also Interpretation of Legislation Act 1984, s35). While that section indicates, as a principle applying to that interpretation, that the spread of infectious disease should be prevented without unnecessary restriction on liberty and privacy, and that people who are or who are at risk of being infected with an infectious disease have rights to access to treatment and information and a right to be protected from unlawful discrimination, it also indicates that those rights are qualified and that they are balanced by equivalent responsibilities. The responsibilities include the responsibility of a person with an infectious disease to take precautions to ensure that other people do not unknowingly become infected with it, and the responsibility of a person at risk of contracting an infectious disease to take precautions to avoid contracting it. The qualifications on rights include the qualification that a person who is or is at risk of being infected with an infectious disease only has the right to be protected against unlawful discrimination so long as that right does not infringe on the well being of others. It is to be anticipated, then, that Part VI might contain some provisions that qualify the right to be protected against unlawful discrimination in some way - for example, by authorising certain conduct which might otherwise amount to discrimination.

Section 132 of the Health Act must be read in the context of s119. That section creates statutory defences for the Red Cross, hospitals and other bodies, and medical practitioners, where (among other things) a person has become infected with HIV after having been administered blood donated to the Red Cross or a blood product made from that blood. The statutory defence available to the Red Cross is dependant on the Red Cross obtaining a prescribed statement from the potential blood donor, testing samples of the blood before supplying it to others, and obtaining an HIV negative result from those tests. One of the statutory defences available under that section to the hospital or other body or a medical practitioner who administers blood supplied by the Red Cross or a blood product derived from that blood is that the Red Cross has obtained a prescribed statement from the potential donor, tested the blood before supplying it, and obtained a HIV negative result from those tests. The statutory defence is not available to the Red Cross if, after it supplied the blood, it reasonably believes the blood to have been infected with HIV and does not take reasonable steps to find out whether the blood has been given to any person and to ensure that it is not given to anyone in the future. Hospital or body or medical practitioner loses the statutory defence if, after being informed that the blood is likely to contain HIV, the hospital body or practitioner does not take reasonable precautions to ensure that the blood is not administered to anyone.

The rationale for these defences and the limited circumstances in which they apply is, in my view, that they provide a basis on which a person supplying or administering blood can assume that the blood does not contain HIV. If that basis does not exist because the person supplying or administering the blood knows that it is likely to contain HIV, the statutory defence does not apply.

The prescribed statement (Schedule 6 to the Health Regulations) contains a number of questions. The giving of false answers to these questions is an offence under s136 of the Health Act and attracts a heavy penalty. The form makes it clear that some people "must not" donate blood, but that an affirmative answer to any of the questions does not necessarily exclude the person from donating blood. The questions begin by directly asking the person whether he or she has HIV, and then asking whether the person has a number of symptoms that might indicate HIV. There follows a series of questions that, in my view, go to the likelihood that a person may have contracted HIV because of engaging in kinds of behavior specified in the questions. This specified behavior ranges from sexual activity with a person who may have been exposed to HIV or is an injecting drug user or sex worker, to male to male sexual activity within the last 5 years.

It seems to me that the form contemplates that the Red Cross may exclude from donating blood a person who answers "yes" to one or more of these questions. The heavy penalties attaching to false answers to the question leads me to the conclusion that Red Cross can base its assessment of whether to accept a blood donation on the answers given. Those aspects of behavior that are the subject of the questions are determined, not by the Red Cross, but by the regulations themselves. In the context of Part VI of the Health Act, and the statutory defences under s132, the questions are designed to cover those aspects of behavior which may be relevant to the risk of contracting HIV. If the questions in the statement are answered "no" and the results of subsequent blood tests are HIV negative, then (unless there is something else to indicate that HIV infection is likely) Red Cross and those who administer the blood will not be liable if the recipient becomes infected with HIV. If the answer to a question in the statement is "yes", that answer may found a reasonable belief that HIV infection might be likely, and, unless reasonable precautions were taken to ensure that the blood was not administered to anyone, the statutory defences would be lost. A number of the questions concern impairment and lawful sexual activity. It is hard to see why the obtaining of the statement is an element of to the statutory defence if (because of the operation of the Equal Opportunity Act) the Red Cross must effectively ignore affirmative answers to the questions. If it ignores affirmative answers to the questions, it might then have to take precautions to ensure that the donated blood was not administered to any person, because the affirmative answers might form a foundation for a reasonable belief that the blood was likely to contain HIV. If the Red Cross did not do this, it would lose its statutory defence under s132. This might be so because, even if the blood were tested for HIV, the tests might not reveal the presence of the infection.

I do not think that s132 and the Health Regulations are intended to operate in this way. Not only can the Red Cross use the prescribed statement for the purposes of its statutory defence, but it can also act on the information in the statement. It is not obliged to act on that information. But it is authorised to act on it. It may send the blood for testing if the answer to the questions is negative. It may refuse to accept the donation if the answer to any of the questions is affirmative. This interpretation of how the information in the statement may be used is consistent with the principles applying to the interpretation of Part VI of the Health Act set out in s119. The right of protection against unlawful discrimination is qualified where it infringes on the well being of others.

Section 132 does not expressly authorise the Red Cross to refuse a blood donation where a person has advised it that he has had male to male sex in the last 5 years and that his male partner has had male to male sex in the last 5 years. However, the overall scheme of s132 and the Health Regulations authorises this refusal, by

necessary implication. The conduct of the Red Cross is therefore authorised in the terms of s69 and, by virtue of s12, does not constitute prohibited discrimination. The Respondent has a complete answer to the claim and the complaint should be struck out.

Commonwealth Therapeutic Goods legislation is consistent with this conclusion, although its requirements are somewhat narrower than those indicated by the questions in Schedule 6 of the Health Regulations. The NBTC guidelines state that a man must not donate blood if he has had sex with another man in the last 12 months. Like the questions in Schedule 6 of the Health Regulations, the guidelines also state that people must not donate blood if they have engaged in a number of other forms of specified behavior. The guidelines are incorporated in the manufacturing code for blood and blood components, which is part of the manufacturing principles determined under s36 of the Therapeutic Goods Act. Inability to comply with the manufacturing principles will result in refusal of a license application, and compliance with the manufacturing principles can also be made a condition of a licence under Part 4 of the Therapeutic Goods Act. On the material before the Tribunal, it appears that CSL, as a manufacturer, is obliged to comply with the manufacturing principles. Those principles must, therefore, be a condition of CSL's licence to manufacture blood components.

The Red Cross is not itself obliged to comply with the manufacturing principles in respect of that part of the blood donated to it that it does not send to CSL to be manufactured into blood components (Therapeutic Goods Regulations (Cth) Schedule 7). However, if it does wish to send blood to CSL to be manufactured into blood components, it must be able to assure CSL that the blood does not come from a donor who has male to male sex within the past 12 months. CSL will be in breach of its license if it uses blood of such a donor in the manufacture of blood components.

It is implicit in this statutory regime that a donation centre like the Red Cross must be able to refuse donations from males who have had sex with other males in the last12 months so that the donated blood can be accepted by manufacturers to be made into blood components without contravention of the conditions of the manufacturers' license. The donation centre must be able to do this as a general policy because, at the time of blood donation, it will not be able to identify which and how much blood will be sent to the manufacturers, and which and how much blood it will retain.

My conclusion as to the conduct of the Red Cross is strengthened by the Commonwealth Therapeutic Goods legislation which, as part of a national scheme and by virtue of the Therapeutic Goods (Victoria) Act 1994, applies and is recognised in Victoria. It is implicit in the scheme of that legislation that a body, like the Red Cross, which sends part of the blood donated to it to manufacturers of blood components, must be able to refuse blood donations from people whose blood the manufacturers, under their licenses, are unable to use in the manufacture of blood components.

Mr Norman submitted that, instead of taking into account his answers to the questions in the prescribed statement, the Red Cross should have taken into account the fact that he did not practice anal sex and that he practiced safe sex. He submitted that it should have taken into account that, because of this, the risk of his contracting HIV was much less than the risk of infection of homosexual men who did not take these precautions.

I do not accept this submission. The combined effect of the scheme in s132 of the Health Act and of the prescribed statement in the Health Regulations and of the Commonwealth and Victorian Therapeutic Goods legislation is to impliedly authorise the Red Cross to refuse to allow any man who has sexual activity with another man to donate blood. It authorises this in general, irrespective of the circumstances of a particular individual. Because the legislation authorises the application of a general policy, it is unnecessary for the Tribunal to determine whether the circumstances in an individual's case justify the application of that policy. Indeed, it would be a misapprehension of the Tribunal's role if the Tribunal did undertake this task (HL Heinz Company Ltd v Turner, Sup Ct of Vic, Court of Appeal, 1 July 1998).

For these reasons, I conclude that this complaint is misconceived because, by virtue of s69 of the Act, the Respondent's conduct does not constitute prohibited discrimination.

Under s75 of the VCAT Act, the Tribunal may strike out or dismiss a complaint on this ground. On the material before me, there seems no reason why I should choose to strike out the complaint with a right of reinstatement. Mr Norman has made written submissions and has appeared before the Tribunal and made oral submissions on the application. Although he was not legally represented, he has expressed his claim clearly to the Tribunal. I conclude that the complaint should be dismissed.

The Respondent did not seek costs. There is no order as to costs.

Finally, I emphasise that the Tribunal has decided this application by reference to the operation of the relevant legislation. It expresses no view as to the policy underlying that legislation. This is not its task.

On an application by the Respondent under section 75 of the Victorian Civil and Administrative Tribunal Act 1998 and on reading the complaint and the material filed by the parties in relation to the application and on hearing the Complainant in person and Mr Chan of Counsel for the Respondent this Tribunal does order-

1. Pursuant to section 75 of that Act, that this complaint is dismissed.