QT v Sydney South West Area Health Service

Anti-Discrimination Act 1977 LEGISLATION CITED : Disability Discrimination Act 1992 (Cth) Interpretation Act 1987

Jones & Anor v Ekermawi [2009] NSWCA 388 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 Woolworths Limited v Pallas Newco Pty Limited (2004) 61 NSWLR 707 Stephenson v Human Rights & Equal Opportunity Commission (1996) 68 FCR 290 IW v City of Perth (1997) 191CLR 1 CASES CITED: X v Commonwealth (1999) 200 CLR 177 New South Wales v Amery (2006) 80 ALJR 753 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 Cuna Mutual Group Ltd v Bryant (2000) 102 FCR 270 Commonwealth of Australia v Wood [2006] FCA 60 Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232

APPLICANT I Chaterjee, solicitor REPRESENTATION: RESPONDENT L Clegg, counsel F Menniti, solicitor

ORDERS: Leave for the complaint to be the subject of proceedings before the Tribunal is refused.

1 QT complains that the Sydney South West Area Health Service (SSWAHS) has discriminated against him in breach of the Anti-Discrimination Act 1977 (AD Act). The State Coroner, Deputy Chief Magistrate Jerram, directed the Department of Forensic Medicine (DOFM), which is part of the SSWAHS, to perform a post-mortem examination on the body of QT's partner. QT's partner had been infected with the Human Immunodeficiency Virus (HIV) and DOFM has a policy of not reconstructing HIV affected bodies for occupational health and safety reasons. QT alleged that as a result of that policy he lost the opportunity to view his partner's body and pay his last respects.

2 The legal basis for QT's complaint is that DOFM has refused to provide him with a service, or provided that service on unfavourable terms, on the ground of the HIV positive status of his partner: AD Act, s 49M. Discrimination on the ground of disability includes treatment on the ground of the disability of a relative or associate of the aggrieved person: s 49B. The President of the Anti-Discrimination Board declined the complaint as lacking in substance. The basis for that decision was that a full autopsy was not done on the deceased's body and the body was reconstructed and made available for viewing prior to being released to the funeral directors. In those circumstances, QT had not suffered any detriment as a result of DOFM's policy. When a complaint is declined by the President, the applicant needs to obtain the Tribunal's permission (or leave) before the complaint can be the subject of proceedings: Anti-Discrimination Act, 1977 (AD Act), s 96.

3 The Tribunal has a discretion to grant or not to grant leave. That discretion must be exercised in a fair and just manner. In exercising that discretion the Tribunal may have regard to the bases on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

4 The Crown Solicitor's Office, representing the respondent, submitted that leave should not be granted because:

a) it is an essential pre-requisite or 'jurisdictional fact' for an inquiry under the AD Act that the person with a disability is alive at the time when the allegedly unlawful act occurred; and/or b) the respondent is not providing 'services' to the applicant.

5 SSWAHS did not rely on the ground on which the President declined the complaint, namely that QT had not suffered any detriment as a result of the application of DOFM's policy. We have not taken that matter into account because findings of fact would have to be made about what occurred after the Coroner directed that a post mortem examination be performed.

6 A jurisdictional fact is a criterion or essential requirement, satisfaction of which enlivens the power of the decision maker to engage in the decision making process: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at [28]. It is distinguishable from a fact that can be determined in the course of the hearing on liability if the Tribunal has jurisdiction to inquire into the complaint. Whether or not a fact is jurisdictional depends upon the construction of the statute conferring jurisdiction: Woolworths Limited v Pallas Newco Pty Limited (2004) 61 NSWLR 707 per Spigelman CJ at [6]. In this case, the question is whether the existence of a living 'relative' or 'associate' at the time the allegedly unlawful act took place is a jurisdictional fact. There is no dispute that QT's partner was not alive at that time.

7 Since there is no authority directly on point I should be guided by the intention of Parliament as it may be discerned from the legislation: Stephenson v Human Rights & Equal Opportunity Commission (1996) 68 FCR 290 at 296 to 297 per Wilcox J. However, it is not easy to discern that intention. It has often been said that the AD Act, like its federal counterparts including the Disability Discrimination Act 1992, is remedial legislation and should be interpreted liberally and beneficially: IW v City of Perth (1997) 191 CLR 1 at 12 (Brennan CJ and McHugh J). However, despite that general principle, the High Court has regularly overturned decisions favourable to complainants at first instance. In dissent Kirby J, in particular, has been critical of those decisions: IW v City of Perth (1997) 191 CLR 1 at 52; X v Commonwealth (1999) 200 CLR 177 at 211; New South Wales v Amery (2006) 80 ALJR 753 at 769. My task is to interpret the relevant legislative provisions in context keeping in mind that it is the intention of Parliament that people who have been discriminated against on the ground of the disability of a relative or associate should be able to bring proceedings. However, that does not allow this Tribunal to give the AD Act a construction which it cannot bear.

8 The allegedly unlawful conduct in this case is a breach of s 49M: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services.

9 Section s 49B(1) of the AD Act defines 'direct' discrimination in the following terms:

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person , the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability (Emphasis added.)

10 In summary, to constitute direct discrimination in relation in breach of s 49M the respondent must have: a) been providing services to QT; b) refused to provide those services or provided them on unfavourable terms; c) treated QT less favourably than it treats or would have treated a person who did not have a relative or associate who was HIV positive; and d) engaged in that conduct on the ground of the HIV positive status of QT's partner.

11 The word 'person' is used in s 49M to describe both the service provider (the perpetrator) and the aggrieved person. The definition of direct discrimination in s 49B also uses the word 'person' to describe the perpetrator and the aggrieved person. Section 49B makes it clear that the discriminatory conduct can be on the ground of the aggrieved person's disability or on the ground of the relative's or associate's disability. If the aggrieved person is a 'person', then it follows that the relative or associate must also be a 'person'.

12 In addition, disability is defined in s 4 of the AD Act by reference to a 'person'. In this case, being HIV positive comes within the following meaning of disability: 'the presence in a person's body of organisms causing or capable of causing disease or illness': AD Act, s 4. Similarly, disability is defined in s 49A by reference to a 'person'. For example, a 'reference to a person's disability is a reference to a disability that a person had in the past': s 49A(c). The complainants argued that a deceased person could be regarded as a person who had a disability in the past.

13 The word 'person' is defined in the Interpretation Act 1987 to include "an individual, a corporation and a body corporate or politic". A corporation may be an 'aggrieved person' if discrimination has occurred by reason of the race of associates or members of the corporation: Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 236; Access For All Alliance (Hervey Bay) Inc v Hervey Bay City Council (2007) 162 FCR 313 at 329-330. In this case, the discrimination is alleged to have been on the ground of the disability of an individual, as distinct from a corporation or body corporate or politic. An 'individual' is defined in the Interpretation Act as a 'natural person': s 21. The Macquarie Dictionary, 3rd edition, The Macquarie Library, defines a 'natural person' as 'an individual human being (as opposed to an artificial being)'.

14 There is no direct authority relating to this issue at either the federal or state level. The closest factual situation can be found in the decision of Cuna Mutual Group Ltd v Bryant (2000) 102 FCR 270. In that case the alleged discrimination occurred after the person with the disability to whom it related had died. Section 69 of the Disability Discrimination Act 1992 (Cth) (DDA) allows a complaint to be brought by one or more persons aggrieved by the act and by a person on behalf of another person aggrieved by the act: DDA, s 69. Branson J held that the deceased's siblings did not come within the first category because they were not persons who were aggrieved by the alleged act of discrimination. Branson J's reasons for concluding that they did not come within the second category, set out in s 69(1)(c), appear at [49]: I am not persuaded that the Act discloses an intention that a person may lay a complaint on behalf of a deceased individual where the alleged act of discrimination occurred after the death of that individual . I have referred above to the evident purpose of s69(1)(c) which is to allow one person to lay a complaint on behalf of another person where the second person is by reason of his or her disability an inappropriate complainant under the Act. If the paragraph were intended to achieve the additional, and quite exceptional, purpose of allowing a person to lodge a complaint about discrimination occurring after the death of the alleged target of the discrimination, one would have expected this purpose to be more explicitly revealed by the wording of the paragraph.

15 Branson J did not need to determine the precise issue arising in this case, that is whether an aggrieved person can lodge a complaint where the relative or associate is deceased at the time. However, the facts in that case are analogous. In the present case, as in Cuna, the alleged act of discrimination occurred after the person whose disability prompted the allegedly discriminatory conduct had died. In Cuna that person was the 'aggrieved person'. In this case, that person was the 'relative' or 'associate' of the aggrieved person. Neither the DDA, nor the AD Act, expressly or impliedly extends the scope of a complaint to cover such an exceptional situation.

16 The other authorities, which are not directly relevant, relate to circumstances where the complainant was alive when the discrimination was alleged to have occurred but died either before or after a complaint had been lodged. The courts have held, pursuant to comparable legislation, that a complaint made at either of those times can be made or continued after the person has died: Commonwealth of Australia v Wood [2006] FCA 60 at [43]; Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 at 298. In New South Wales, the law is clear that a complaint can continue even if the complainant dies after having lodged a complaint with the Anti-Discrimination Board: AD Act, s 93. That situation arose in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [2].

17 I have concluded that for complaints on the ground of the disability of a relative or associate, the existence of a living 'relative' or 'associate' at the time the allegedly unlawful act took place, is a jurisdictional fact. There is no dispute that QT's partner was not alive at that time. It follows that the Tribunal has no jurisdiction to inquire into a complaint brought by an aggrieved person on the ground of the disability of a relative or associate if, at the time the alleged contravention occurred, the relative or associate was dead. For that reason, it is fair and just that leave for the complaint to proceed be refused.

18 SSWAHS also submitted that the refusal to reconstruct the deceased's body was not the refusal of a 'service' within the meaning of that word in s 49M. That is an additional reason, they said, for refusing leaving. Having heard the submissions from both parties on that issue, I am not persuaded that it is fair and just to refuse leave on that basis. Nevertheless, having reached the conclusion expressed in the previous paragraph leave for the complaint to be the subject of proceedings before the Tribunal is refused.

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