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Commonwealth v Human Rights and Equal Opportunity Commission

Commonwealth v Human Rights and Equal Opportunity Commission

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FEDERAL COURT OF AUSTRALIA

DISCRIMINATION LAW - Sex Discrimination Act 1984 (Cth) - National Health Act 1953 (Cth) - availability of drug for treatment of osteoporosis restricted under the pharmaceutical benefits scheme (“PBS”) to a certain category of women - determination upholding complaints against the Commonwealth and Minister for Health and Family Services for discrimination on the ground of sex - whether the Commissioner erred in making the determination without hearing evidence relating to the circumstances in which the drug came to be listed under the PBS and reasons for the limited ‘indications’ listed - whether a factual inquiry is necessary to establish the causal relationship contemplated by s 5(1) of the Sex Discrimination Act - whether a factual inquiry is necessary to establish whether circumstances are the same or not materially different under s 5(1).

ADMINISTRATIVE LAW - judicial review - review of decision of Human Rights and Equal Opportunity Commission - whether decision reviewable.

National Health Act 1953 (Cth), ss 85(1), 85(2), 85(2A), 101.
Sex Discrimination Act 1984 (Cth), ss 3, 4, 5, 22, 26, 44, 81.
Therapeutic Goods Act 1989 (Cth), ss 3, 4, 6(1), 16, 20, 21.

Therapeutic Goods Regulations, reg 36(1), 36(2).

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, cited.

New South Wales Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559, cited.
Australian Medical Council v Wilson (1996) 137 ALR 653, cited.
Waters v Public Transport Corporation (191) 173 CLR 349, cited.
Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, cited.
Waterhouse v Bell (1991) 25 NSWLR 99, cited.
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301, followed.
James v Eastleigh Borough Council [1990] 2 AC 751, cited.
Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1993) 46 FCR 191, cited.
Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, applied.

COMMONWEALTH OF AUSTRALIA & ANOR v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ORS
NG 203 of 1997

SACKVILLE J
SYDNEY
18 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) NG 203 of 1997

)

GENERAL DIVISION )

BETWEEN:
COMMONWEALTH OF AUSTRALIA
First Applicant

MINISTER FOR HEALTH AND FAMILY SERVICES
Second Applicant

AND:
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
First Respondent

DAVID HAGAR
Second Respondent

DOUGLAS MORRISH
Third Respondent

VICTOR MARINARO
Fourth Respondent

JUDGE(s): SACKVILLE J.

PLACE: SYDNEY

DATED: 18 JULY, 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The decision of the Human Rights and Equal Opportunity Commission (“HREOC”), dated 19 February 1997, in relation to the complaints made by the second, third and fourth respondents against the applicants, be set aside.

The matter be remitted to HREOC, differently constituted, for determination according to law.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1997] FCA 664
Decision Date: 18 JULY 1997

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved a challenge by the Commonwealth and the Minister for Health and Family Services to a determination by a Commissioner of the Human Rights and Equal Opportunity Commission (HREOC) that the Commonwealth had discriminated against men on the ground of their sex by restricting the availability of a drug for the treatment of osteoporosis, Calcitriol, to a certain category of women under the pharmaceutical benefits scheme (PBS). The applicants sought a review of the Commissioner's decision, arguing that the Commissioner had erred in making the determination without hearing evidence relating to the circumstances in which Calcitriol came to be listed under the PBS and the reasons for the limited indications listed. The applicants contended that the evidence might demonstrate that the circumstances of men suffering from osteoporosis are materially different from those of women suffering from the condition, and that the drug may not be effective or safe for men with osteoporosis. The court considered the statutory language of the Sex Discrimination Act 1984 (Cth) and found that the Commissioner had erred in concluding that the evidence could not be relevant to the question of whether the applicants had discriminated against the complainants, within the meaning of s 5(1) of the Sex Discrimination Act. The court held that the evidence might lead to a different conclusion on the issue of whether the necessary causal relationship existed between the sex of the complainants and the less favourable treatment alleged by them. The court also found that the evidence might be relevant to the question of whether the less favourable treatment received by the complainants, when compared with a woman, took place in circumstances that are the same or not materially different. The court concluded that the decision of HREOC should be set aside and the matter remitted to HREOC, differently constituted, for determination according to law.

Orders