Separate reasons by each member of the Court, each concurring as to the orders made.
1. APPELLANT’S APPEAL AGAINST AMBROSE J.'S ORDERS 1, 2, 3 AND 4 DISMISSED.
2. APPELLANT'S APPEAL AGAINST AMBROSE J.'S ORDERS 5, 6 AND 7 ALLOWED AND IN LIEU:
(A)
ORDERS MADE BY THE TRIBUNAL SET ASIDE.
(B) ISSUE OF INDIRECT DISCRIMINATION BY THE SECOND RESPONDENT GK REMITTED TO THE TRIBUNAL FOR REHEARING ON THE EVIDENCE ALREADY CALLED AND SUCH FURTHER EVIDENCE AS MAY BE PERMITTED BY THE TRIBUNAL; AND TO BE DETERMINED IN ACCORDANCE WITH THESE REASONS.
(C)
ISSUE OF WELFARE MEASURES UNDER S.104 OF THE ANTI- DISCRIMINATION ACT 1991 TO BE HEARD ON THE EVIDENCE ALREADY CALLED AND SUCH FURTHER EVIDENCE AS MAY BE PERMITTED BY THE TRIBUNAL AND DETERMINED ACCORDING TO LAW.
3. NO ORDER AS TO THE COSTS OF THIS APPEAL.
CATCHWORDS:
DISCRIMINATION LAW - appeal from Anti-Discrimination Tribunal - whether respondents unlawfully discriminated against appellant by failing to supply a service of artificial insemination - interpretation of Anti-Discrimination Act 1991 - what was the real reason for the second respondent’s refusal of treatment - meaning of "lawful sexual activity" in s.7(1)(l) - whether the refusal of treatment constituted direct discrimination pursuant to s.10 - whether the decision of the Tribunal was an error of law or fact - whether discrimination on the basis of absence of a certain sort of sexual activity can be held to be discrimination on the basis of sexual activity - whether the refusal of treatment constituted indirect discrimination pursuant to s.11 - whether Tribunal considered all the relevant circumstances of the case - factors relevant to determining whether requirement that a form be signed by a male partner was reasonable - whether first respondent vicariously liable - whether second respondent was the agent of the first respondent - whether appropriate to permit the respondents to raise the applicability of s.104, the welfare measures exception, on the further hearing before the Tribunal - factors relevant to decision whether to remit matter to Tribunal pursuant to s.218.
Australian Broadcasting Tribunal v. Bond (1990) 170 C.L.R. 321 Donnelly v. Victims’ Compensation Fund (1995) 82 A.Crim.R. 55 Minister for Immigration and Ethnic Affairs v. Pochi (1980) 31 A.L.R.
Mrs. D. J. Richards for the appellant Mr. P. L. O'Shea for the first and second respondents
Solicitors:
Nall Payne for the appellant Corrs Chambers Westgarth for the first and second respondents
Hearing Date:
19…
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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AGLC
JM v QFG and KG [1998] QCA 228
Case
[1998] QCA 228
Decision Date
CaseChat Overview and Summary
In JM v QFG and KG, the Court of Appeal was called upon to review the decision of the Anti-Discrimination Tribunal in relation to an appeal made by the appellant against the respondents. The appellant alleged that the respondents unlawfully discriminated against her by refusing to supply the service of artificial insemination, in breach of the Anti-Discrimination Act 1991. The respondents were a fertility clinic and a medical practitioner, who had declined to provide the artificial insemination treatment to the appellant due to her marital status and the clinic's policy of requiring a male partner to sign a form as a prerequisite to treatment.
The legal issues before the Court of Appeal were whether the respondents' refusal to provide the service constituted direct or indirect discrimination under the Anti-Discrimination Act, and whether the Tribunal had erred in its decision. The Court had to consider the meaning of "lawful sexual activity" in section 7(1)(l) of the Act, and whether the refusal of treatment could be held to be discrimination on the basis of sexual activity. Additionally, the Court had to determine whether the requirement for a male partner to sign a form was a reasonable condition, and whether vicarious liability or agency applied in this case.
The Court of Appeal found that the Tribunal had erred in its interpretation of the Anti-Discrimination Act. The Court held that the refusal of treatment constituted direct discrimination under section 10 of the Act, as the appellant was treated less favourably than a person who was in a de facto relationship. The Court also held that the requirement for a male partner to sign a form was not a reasonable condition, and that the refusal of treatment constituted indirect discrimination under section 11 of the Act. Furthermore, the Court found that the Tribunal had not considered all the relevant circumstances of the case, and that it was appropriate to remit the matter to the Tribunal for further hearing.
The Court of Appeal made orders for the matter to be remitted to the Tribunal for reconsideration in light of the Court's decision. The Court held that it was not appropriate to permit the respondents to raise the applicability of section 104, the welfare measures exception, on the further hearing before the Tribunal. The Court also held that the factors relevant to determining whether the requirement that a form be signed by a male partner was reasonable, and whether vicarious liability or agency applied, should be considered by the Tribunal in its reconsideration of the matter.