Leslie v Barrister's Sickness & Accident Fund Pty Limited
[2003] NSWADT 216
•09/15/2003
CITATION: Leslie v Barrister's Sickness & Accident Fund Pty Limited [2003] NSWADT 216 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
Arthur Leslie
RESPONDENT
Barrister's Sickness & Accident Fund Pty LimitedFILE NUMBER: 021139 HEARING DATES: 01/05/2003 SUBMISSIONS CLOSED: 05/09/2003 DATE OF DECISION:
09/15/2003BEFORE: Grotte E - Judicial Member; Weule B - Member; McDonald O - Member APPLICATION: Age Discrimination - Goods and Services MATTER FOR DECISION: Principal matter LEGISLATION CITED: Anti-Discrimination Act 1977 CASES CITED: Sinnapan -v- Rizkalla [1993] 1VR 547
Rose -v- Secretary, Department of Social Security [1990] 92 ALR 521
AMP v Goulden (1986) 160CLR330REPRESENTATION: APPLICANT
In Person
RESPONDENT
G Flick, counselORDERS: Complaint dismissed
REASONS FOR DECISION
Complaint
1 Mr Arthur Leslie QC complained to the NSW Anti-Discrimination Board that the Barrister’s Sickness and Accident Fund Pty Limited discriminated against him unlawfully in the provision of goods and services. Mr Leslie complained that he was discriminated against on the ground of his age.
2 Relevantly section 49ZYN of the Anti–Discrimination Act (AD Act) 1977 provides:
3 Section 49ZYA of the AD Act describes what constitutes discrimination on the ground of age. It states:
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:
(a) by refusing to provide the other person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services.
4 Section 49ZYT of the AD Act provides:
(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of age if, on the ground of the aggrieved person’s age or the age of a relative or associate of the aggrieved person, the perpetrator:
(2) For the purposes of subsection (1)(a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that or age group or a characteristic that is generally imputed to persons who are that age or age group.
(a) treats the aggrieved person less favourably than in the same material circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
Inquiry
Nothing in this Part renders unlawful discrimination on the ground of age the terms on which any annuity, life assurance policy or accident or insurance policy or any other kind of insurance is offered or may be obtained if:
(a) those terms:
(i) are based on actuarial or statistical data from a source on which it is reasonable to rely or, if there are no such data, on such other data as may be available, and
(ii) are reasonable having regard to the data and any other relevant factors, and
(b) the sources on which the data are based and those relevant factors (if any) are disclosed to the Tribunal, if the Tribunal so requires.
5 At the Tribunal hearing Arthur Leslie QC (“Mr Leslie”) represented himself. The Barrister’s Sickness & Accident Pty Limited (“the respondent”) was represented by Geoffrey Flick SC.
6 The Tribunal admitted the report of the President into evidence.
7 Two days before the Tribunal hearing the respondent filed with the Tribunal two affidavits being the affidavit of Julie Faith Hart, solicitor for the respondent and the affidavit of David Julian Minty, actuary with Trowbridge Deloitte and Partner of Deloitte Touch Tohmatsu. The Tribunal heard from both Ms Hart and Mr Minty.
Background
8 On 2 August 2000 the Secretary of the respondent wrote to Mr Leslie informing him that “the Directors have resolved that going forward cover will not be extended to persons who have reached the age of 70, or who would be turning 70 during the year of cover. As a result of this decision, you will not be offered renewal of your policy on the expiry of your current cover on 30 April 2001”. Mr Leslie was also informed in that letter that “this decision does not affect your current cover which is in effect to 30 April 2001”.
9 On 9 August 2000 Mr Leslie wrote to the respondent requesting information as to “what actuarial or statistical data or other relevant factors justify the termination of a foundation membership extending continuously over a period of more than 38 years since the Fund was established?”
10 On 17 October 2000 the Secretary wrote to Mr Leslie stating that the Directors of the Fund do “not consider it appropriate to provide to members the actuarial advice on which their decision was based”. However it was indicated that the Directors were in the process of “reviewing their decision to limit cover to members under the age of 70.”
11 Mr Leslie then requested several times by letter to be provided with the particulars of the actuarial or statistical data or other relevant factors upon which the Fund relied but the Fund resisted the request and refused to provide the information.
12 On 28 February 2001 Mr Leslie wrote to the respondent referring to the Fund’s refusal to cover him and stated that he would be writing to the Sydney Morning Herald about the matter.
13 On 2 March 2001 the Fund wrote to Mr Leslie stating that “contrary to the assertion in your letter, the Fund has not refused your insurance cover. You have cover for the present period of insurance, which expires on 30 April next. That cover was renewed at your request last May. The purpose of our recent correspondence was to forewarn you of the possibility that renewal may not be offered in the future based on actuarial advice provided to the Directors”.
14 On 4 April 2001 the Secretary of the respondent wrote to Mr Leslie stating that “this Company has previously written to you foreshadowing that it may not offer renewal of insurance to present members of the Fund who have already attained the age of 70 years or who will attain that age during the ensuing insurance year. The foreshadowing of that course was prompted by the terms of the Trust Deed governing the operation of the Fund. In offering insurance cover, the Deed obliges the Trustee not to expose the Fund to any ‘unusual or exceptional’ risk. When considering the question of risk by reference to the age of members, recourse has been had both to actuarial advice and to legal advice provided to the Board of this Company as Trustee of the Fund. Based on that advice, the Board has resolved that insurance cover or insurance renewal will no longer be offered to barristers who have attained, or will in the ensuing twelve months attain, the age of 70 years. I am writing to inform you of this decision. As a consequence of it, you will not be offered renewal of your present cover expiring on 30 April 2001”.
15 On 17 April 2001 Mr Leslie complained to the Anti-Discrimination Board of “age discrimination by the Barrister’s Sickness and Accident Fund Pty Ltd, in refusing, by its letter of 4 April 2001 to renew my sickness and accident insurance cover expiring on 30 April 2001”.
16 On 12 September 2002 the Respondent wrote to the Anti-Discrimination Board stating “the decision of the Board of the Fund not to offer renewal of sickness and accident insurance policies to members over 70 was made in the light of the advice received by the Fund from its actuaries that the prevalence of disability increases rapidly with increasing age and that insurance of older members was likely to result in significant losses for the Fund. In light of the terms of that advice, it would have been open to the Board to set an age limit of 65, or perhaps even lower, but the Board was anxious to supply coverage for as long as was reasonably possible. However, with the incidence of disability increasing rapidly with age the Board took the view that in light of its duties to other members and to preserve the assets of the Fund, it could not responsibly insure members over 70. The approach taken by the Fund, is, as we understand it, consistent with that taken in industry as a whole as the actuaries advised that few disability insurance policies are offered to those over 65”. Copies of the following documentation were enclosed in this letter:
17 At the Tribunal hearing the following material was taken into evidence on behalf of the Respondent:
(i) Letter dated 27 June 2000 from Tillinghast-Towers Perrin;
(iii) Draft letter dated 5 December 2000 from Tillinghast-Towers Perrin;
(iv) Draft Letter dated 27 February 2001 from Tillinghast-Towers Perrin
(v) Report of Tillinghast-Towers Perrin dated 20 March 2001 (introductory pages and pages 1 and 33-34 only).
18 The annexures to Ms Hart’s affidavit were as follows:
(i) Affidavit of Julie Faith Hart sworn 24 April 2003 together with annexures;
(ii) Affidavit of David Julian Minty sworn 28 April 2003.
19 David Minty gave evidence to the Tribunal. He is an Actuary with Trowbridge Deloitte and a partner of Deloitte Touche Tomatsu specialising in general insurance including management information systems, long tail classes of insurance business and provision of advice on insurance and risk management to corporations and other organisations. In addition, according to his affidavit Mr Minty qualified as a Fellow of the Institute of Actuaries of Australia in 1982 and was an actuary with Manufacturers’ Mutual Insurance Limited for five years before joining John Trowbridge Consulting Pty Ltd in 1989. He has also worked as a life insurer and for a superannuation consultancy.
(i) Copy of the original Deed of Trust dated 23 March 1962;
(ii) Copy of the Deed of Amendment to Trust Deed dated 27 April 2001;
(iii) Copy of the Directors Declaration of the Trustee company dated 12 September 2002;
(iv) Copy of Minutes of meetings of the Board of Directors of the Respondent dated 10 May 2000 and 14 June 2000;
(v) Copy of a letter from Tillinghast-Towers Perrin to the Respondent dated 27 June 2000;
(vi) Copy of Minutes of meeting of the Board of Directors of the Respondent dated 12 July 2000;
(vii) Copies of correspondence between the Respondent and the Applicant dated 2 August 2000, 9 august 2000, 27 September 2000 and 27 September 2000;
(viii) Copy of Minutes of meeting of the Board of Directors of the Respondent date 11 October 2000;
(ix) Copy of a facsimile dated 16 October 2000 from the Respondent to Tillinghast-Towers Perrin;
(x) Copy of a letter dated 17 October 2000 from the Respondent to the Applicant;
(xi) Copy of a letter dated 25 October 2000 from the Respondent to Tillinghast-Towers Perrin;
(xii) Copy of Minutes of meeting of the Board of Directors of the Respondent dated 21 November 2000;
(xiii) Copy of a letter dated 22 November 2000 from the Chairman of the Respondent to the Applicant;
(xiv) Copy of Minutes of meeting of the Board of Directors of the Respondent dated 21 March 2001;
(xv) Copy of a letter from the Respondent to the Applicant dated 4 April 2001;
(xvi) Copy of Minutes of meeting of the Board of Directors of the Respondent dated 11 April 2001;
(xvii) Copy of a letter from the Respondent to Tillinghast-Towers Perrin dated 21 June 2001;
(xviii) Copy of Minutes of meeting of the Board of Directors of the Respondent dated 13 December 2000;
(xix) Copies of correspondence between the Applicant and the Respondent dated 15 December 2000, 18 December 2000; 20 December 2000 and 21 December 2000;
(xx) Copy of Minutes of meeting of the Board of Directors of the Respondent dated 14 February 2001;
(xxi) Copies of correspondence between the Applicant and the Respondent dated 28 February 2001 with enclosures and 2 March 2001;
(xxii) Copy of Minutes of meeting of Respondent’s Board of Directors dated 7 March 2001;
(xxiii) Copy of letter from Tillinghast-Towers Perrin to the Respondent dated 2 July 2001;
(xxiv) Copy of letter to Respondent from Tillinghast-Towers Perrin dated 21 March 2001 enclosing June 2000 review of the Reserves and Premium Rates for the Respondent.
20 Mr Minty stated that he has provided actuarial advice to the Respondent Fund since November 2002 at which time he was engaged to conduct the Fund’s triennial review.
21 Mr Minty stated that to the best of his knowledge there are three sources of reliable actuarial or statistical data relevant to age limits on insurance cover. These comprise Federal Government data, data from the IAAust and overseas data. Federal Government data is available in relation to the rate of incidence of disability by age within the general population. This data is compiled on the basis of information collected by government departments such as the Department of Health and the Department of Social Security. The data is released in the form of reports through bodies such as the Government Actuary, the Health Insurance Commission and the Australian Institute of Health and Welfare (AIHW).
22 Mr Minty stated that statistical data is also available from the IAAust based on voluntary collection from commercial insurers. This data is released in the form of studies of the Morbidity Committee of the IAAust and also in the form of the Insured Lives Disability Tables, referred to in the Respondent Fund’s triennial review conducted in June 2000.
23 He stated in his affidavit that most of the data is available up until 65 years of age but that there is a dearth of actuarial or statistical data in relation to insurance coverage beyond the age of 65 years because no commercial insurance policies extend beyond this age.
24 Mr Minty stated that in addition to those sources there are also papers written by experienced actuaries as well as industry practice surveys and summaries of commercial insurance products available in the market. Mr Minty stated that industry practice is best obtained from the most recent survey conducted by Rice Kachor Research (7th Edition published in September 2001) bearing the title “A Survey of Group Life, Salary Continuance and Group Trauma Policies offered by Australian Life Companies”.
25 Mr Minty stated that Section F of that Survey (which was tendered into evidence before the Tribunal) shows that of the 9 companies which dominate the provision of group sickness and accident (or salary continuance) business in the Australian market none pays benefits to policyholders past the age of 65.
26 Mr Minty stated in his affidavit that “no life insurer of which I am aware offers new disability cover to underwritten individuals past the age of 60 nor is renewal of such cover offered past 65 common in the Australian market”.
27 Mr Minty stated that “some life insurers may offer to cover business expenses of an individual who becomes disabled for up to two years, but these policies explicitly exclude the income that the person would generate themselves e.g. from providing advice to clients. While certain disability policies may pay benefits past age 65 I understand they do so only in respect of disabilities that commenced before attainment of that age” and “ some general insurers may offer accident-only cover to individuals past age 69. We are not aware of any policies covering both sickness and accident offered past that age by general insurers”.
28 Mr Minty stated in his affidavit that in his opinion the fact that commercial insurers with significant capital sources refuse to offer insurance to policyholders over the age of 70 years is a relevant factor in determining the commercial prudence of the Respondent fund. The Respondent fund is mutual in nature and offers only one insurance product with no alternative sources of capital other than membership premiums. According to Mr Minty this is relevant in that commercial insurers have a diversity of business and products and are able to spread the risk across their products.
29 Mr Minty stated in his affidavit that the Respondent fund’s actuarial advice has consistently been that it is not commercially prudent to provide sickness and accident insurance to policyholders over the age of 70 years.
30 Mr Minty stated in his affidavit that although the Respondent fund has been exempted from the APRA requirement to have an approved actuary, the Respondent Fund is still required to meet the other APRA requirements such as that the directors manage the insurance operations to ensure the policyholders have reasonable expectations of receiving benefits promised when and if they fall due. Mr Minty notes that special conditions have been attached to the Respondent fund’s licence including that its maximum net exposure for any one claim must not exceed 10% of the fund’s net tangible assets and that the fund must conduct a triennial actuarial review and must charge a commercial premium and must diversify its Board to include non barristers. In addition, he stated that Corporations Law requires that directors manage the business in a manner which is not reckless and which ensures its solvency. Mr Minty stated that “the size, the mutual nature and voluntary market of the Fund all make it imprudent to offer insurance to policyholders over the age of 70 years”.
31 Mr Minty noted in his affidavit that the fund is a small organisation which has 486 members and its claim experience is volatile from year to year. He stated that the “inclusion of policyholders over 70 years of age would likely compound that volatility, potentially requiring increases in premiums for all members of the Fund”. Mr Minty stated that the fund has a voluntary market and “as such members are free to decide not to renew their cover each year. If increases in rates offered are too great, members may decide not to renew” and “this could result in younger healthier members leaving the Fund with a consequent increase in expected average claim costs and imperilling the financial position”.
32 Mr Minty stated in his affidavit that other relevant factors were the “moral hazard” associated with providing insurance to policyholders over the age of 70 years when the incentive to return to work is reduced by the existence of other sources of income such as superannuation which is not offset under the terms of the fund’s policy and the risk of “anti-selection” which refers to a person’s decision to take out insurance where they would not have previously because of self-knowledge which the insurer could not obtain.
33 Mr Minty stated that in his opinion “it is neither commercially prudent for, nor reasonable to expect, the fund to offer sickness and accident insurance to policyholders over the age of 70 years” and “given that industry practice shows that the non mutual commercial market does not believe it can offer that business to the market and give its shareholders a reasonable prospect of return….it is unreasonable to impose such an obligation on a considerably smaller mutual organisation which has a lack of capital sources and a voluntary nature to insurance.”
34 A report of Trowbridge Deloitte dated 10 March 2003 prepared by Mr Minty concerning the respondent fund for the respondent fund was attached as an annexure to Mr Minty’s affidavit.
35 Mr Minty gave evidence to the Tribunal which confirmed the information set out in his affidavit and the annexure. In addition he stated that the respondent fund is in a more fragile position than a commercial insurer as it is unable to raise additional capital from other sources. He stated that a commercial insurer can raise additional capital and spread its risk by going to the market and raising additional funds if necessary.
36 Mr Minty stated that members of the respondent fund can choose a premium for the weekly benefit of up to $7500.
37 He stated that if two individuals made a maximum claim of $390,000, the two claims would roughly represent 10% of the fund’s capital and this would significantly prejudice the volatility of the fund. He stated that although the directors of the respondent fund could set premiums at any rate, they would be doing so without any reliable statistical data on which to base the premiums and in the absence of such data in his opinion this undertaking would financially jeopardise the fund and in his view would be reckless. It was his opinion that it is not a commercial option to offer insurance to person over the age of 65.
38 Under cross examination Mr Minty conceded that AXA offered income protection to persons up to the age of 75 years. He also conceded that an insurer, instead of making assumptions about a group of people, could take a step by step approach and determine the nature of changes to risk over time. It was put to Mr Minty that the respondent fund could request the member’s medical history year by year and make a decision with respect to offering insurance on an individual basis but he did not believe that the respondent fund would be able to proceed in this way.
39 In re-examination Mr Minty was asked whether the medical history or claims history of an individual amounted to statistical or actuarial data on which to base a premium. Mr Minty stated that such information about an individual did not constitute actuarial or statistical data on which to base a premium.
Submissions
40 Written submissions were requested from the parties.
41 The applicant submitted as follows:
42 The respondent submitted as follows:
(i) The decision of the High Court in AMP –v- Goulden (1986) 160 CLR 330 related to a form of “continuous disability insurance” which constituted “life insurance”.
(iii) State legislation relating to disability insurance in similar form to the AD Act section 49ZYN and section 49ZYT was found constitutionally invalid in so far as the State legislation altered, impaired or detracted from the Commonwealth scheme of life insurance.
(iv) The Commonwealth scheme permitted life insurers to refuse to insure risks in accordance with the insurer’s own judgment founded upon practice of prudent insurers.
(v) The High Court found that it was at least arguable that the exception provisions of the State legislation would not permit a life insurance company to refuse to accept life insurance on the ground of physical impairment since they were limited to discrimination “with respect to the terms” on which the relevant policy was offered or might be obtained.
(vi) The life insurer had refused to provide the insured with continuous disability insurance.
(vii) The High Court found that because the State legislation relating to disability insurance interfered with the life insurer’s discretion to refuse that form of insurance, the State legislation relating to the refusal of insurance was directly inconsistent with the Commonwealth life insurance legislation and was, accordingly, invalid to the extent of that inconsistency.
(viii) The insurance provided by the respondent is not life insurance and it is not suggested that any other Commonwealth legislative scheme of insurance is inconsistent with the State legislation in so far as it relates to the refusal of disability insurance on the ground of age.
(ix) The exception provisions of the AD Act section 49ZYT relating to discrimination on the ground of age are limited to “the terms on which…..insurance is offered or may be obtained”.
(x) The exception provisions are not applicable to discrimination on the ground of age by “refusing” to provide insurance.
(xi) By AD Act section 49ZYN(1) a bright line of distinction is drawn by the use of the word “or” between (a) discrimination by “refusing to provide” insurance and (b) discrimination in “terms on which” insurance “is provided”.
(xii) The respondent’s suggestion that refusing insurance constitutes “terms on which… insurance is offered or may be obtained” within the meaning of the AD Act section 49ZYT reads into the exception provisions an additional form of proscribed discrimination, contrary to legislative intention.
(xiii) It was further submitted that by failing to give its forensic expert the benefit of its former actuaries (upon which opinion those actuaries had proposed insurance for fund members including members from 65 to 75 years of age) the respondent forfeited any credible claim to criticise that opinion. As it was found reasonable to suppose that the data extrapolation used for members from 65 to 70 years of age would succeed so it was reasonable to suppose that the same data extrapolation for members from 70 to 75 years of age would succeed.
(xiv) The respondent’s “moral hazard” in dealing with barristers is not appropriate.
REASONS FOR DECISION
Section 49K (1) provided as follows:
(i) The applicant sought to rely upon the decision in AMP –v- Goulden (op.cit.) in support of the proposition that an insurer could not rely upon section 49ZYT of the AD Act because that section refers to the terms upon which “insurance is offered” as opposed to a refusal to renew insurance. The applicant sought to contend that section 49ZYT is confined in its interpretation and application to those circumstances in which insurance is “offered” and cannot apply in circumstances where the renewal of insurance is not renewed.
(ii) Such a construction should be rejected because it would compel an insurer to “offer” to renew insurance in circumstances where it is impossible – if not reckless – to “offer” insurance on any actuarially or rationally calculated premium and hence to the considerable detriment of other fund members; and
(iii) Such an obligation would create a legal fiction and deny the insurer the benefit that section 49ZYT was intended to confer. It was submitted that such an approach was endorsed by Mr Minty as but a “social experiment” – to experiment with what premiums could possibly be charged so as to protect the insurer against unknown and unknowable claims that may be made and so as not to expose other fund members to unacceptable risk.
(iv) It was submitted that nothing in Goulden’s case either supports or compels any contrary conclusion.
(v) It was submitted that the observations of Gibbs CJ, Mason, Brennan, Deane and Dawson JJ in Goulden’s case do not support the contention sought to be advanced by the applicant. The provision which was held to be inconsistent with Commonwealth legislation and hence invalid pursuant to section 109 of the Constitution was section 49K and not 49N. It was held to be inconsistent with Commonwealth legislation to deny the insurer its ability to fix premiums in a manner which ensured their continued “financial stability”.
Section 78(1) of the Commonwealth Act provided as follows:
It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a physically handicapped person on the ground of his physical impairment –
(a) by refusing to provide him with those goods or services; or
(b) in the terms on which he provides him with those goods or services.
It was those provisions which attracted the inconsistency.
(1) A company shall not issue any policy unless the rate of premium chargeable under the policy is a rate which has been approved by an actuary as suitable for the class of policy to which that policy belongs.
(vii) The observations of the Court in Goulden’s case support the construction sought to be advanced by the respondent fund namely that section 49ZYT is directed to a consideration of both:
(a) the “life insurance business”; and
(b) “ensuring the financial stability of registered life insurance companies and their statutory funds and the financial viability of the rates of premium and other terms and conditions of the policies of insurance which they write..”.
43 Section 49ZYN of the AD Act makes it unlawful for a person who provides goods or services for money or otherwise to discriminate against another person on the ground of age by refusing to provide the other person with those goods or services or in the terms on which the other person is provided with those goods and services.
44 Section 49ZYT allows discrimination on the ground of age with respect to the terms on which any annuity, life assurance policy or accident or insurance policy or any other kind of insurance is offered or may be obtained if those terms are based on actuarial or statistical data on which it is reasonable to rely or if there is no such data on such other data as may be available and are reasonable having regard to the data and any other relevant factors.
45 Although the respondent did not concede that insurance constitutes “services”, the Tribunal is of the view that the fact of the exception set out in section 49ZYT strongly supports the view that insurance/assurance accident/disability policies would be considered to be “services” for the purposes of the AD Act. The Tribunal finds therefore that the respondent fund is a provider of “insurance services” within the meaning of sections 49ZYN and 49ZYT of the AD Act.
46 In essence, Mr Leslie submitted that the respondent refused to provide him with insurance in contravention of section 49ZYN and that the exception set out in section 49ZYT is irrelevant and does not provide a defence to the unlawful act of refusal because section 49ZYT is confined to “the terms” on which insurance could be offered and not to any “refusal” to provide insurance. Mr Leslie submitted that the respondent is not entitled to refuse to renew insurance.
47 In support of his submission, Mr Leslie relied on Goulden’s case and on the distinction drawn in section 49ZYN between “refusing to provide goods and services” and “terms on which the other person is provided with the goods and services”.
48 The Tribunal notes that a distinction is drawn between “refusing to provide goods and services” and the “terms on which the other person is provided with the goods and services” in section 49ZYN. However the Tribunal is not persuaded that this distinction is necessarily imported into section 49ZYT.
49 The Tribunal notes that the AD Act is beneficial legislation in that its intention is to give some benefit to a person and remedy some injustice. The Tribunal also notes that ambiguities in beneficial legislation are usually construed liberally and resolved in favour of the intended beneficiary (Sinnapan –v- Rizkalla [1993] 1VR 547).
50 Section 49ZYT is an excepting provision which, within the context of beneficial legislation, would usually be construed narrowly so as not to destroy the benefit or remedy conferred by the legislation. However in Rose –v- Secretary, Department of Social Security [1990] 92 ALR 521 the Full Federal Court noted that enabling and excepting provisions in a remedial (beneficial) Act were not necessarily interpreted narrowly in favour of the intended beneficiary but that regard should be had to the purpose of the provision.
51 Mr Leslie is asking the Tribunal to read down the provisions of section 49ZYT by confining the exception to the “terms” referred to in section 49ZYN, having regard to the distinction drawn in section 49ZYN.
52 Mr Leslie referred the Tribunal to the High Court decision in Goulden’s case. That case concerned similar provisions (section 49N and 49M) of the NSW Anti-Discrimination Act as it was in 1986 to the ones the subject of this Tribunal’s consideration but with respect to physical impairment.
53 Section 49N is in similar terms to the provisions of section 49ZYT in that it provided that discrimination was not unlawful on the ground of physical impairment with respect to the “terms” on which an annuity, a life assurance policy, an accident or insurance policy or other policy of insurance “is offered or may be obtained where the discrimination is reasonably based on actuarial or statistical data or other relevant factors”.
54 In Goulden’s case the High Court observed that ‘while the exception in s.49N is more broadly based, it would seem at least arguable that it would never permit a life insurance company to refuse altogether to accept a proposal for life insurance on the ground of some physical impairment of the proposer since it is limited to discrimination “with respect to the terms” on which the relevant policy is offered or may be obtained.’
55 The High Court in Goulden’s case did not determine the question of whether an insurer could refuse altogether insurance on the basis of physical impairment because the exception is limited to discrimination “with respect to the terms”. The Court’s decision in that case did not turn on the provisions of section 49N and so it cannot be considered to be authority for that proposition.
56 The Court’s decision in that case instead turned on the inconsistency between section 49K which made it unlawful to discriminate against a person on the ground of his physical impairment by refusing to provide those goods or services or in the terms on which those good or services are provided” and section 78 of the Commonwealth Life Insurance Act.
57 The High Court held in that case that the provisions of section 49K would effectively preclude life insurance companies “from taking account of physical impairment in classifying risks and rates of premium and other terms and conditions of insurance in the course of their life insurance business which could not be positively justified under s.49N as ‘reasonable’ having regard to any ‘factors’ which may be ‘relevant’ for the purposes of that Act” that is, it would deny an insurer the ability to fix premiums in a manner which ensured their continued financial viability.
58 Although prima facie it appears that the exception in section 49ZYT is limited to the “terms” and not “refusal”, given the use of the language in both sections 49ZYN and 49ZYT, the Tribunal is of the view that this cannot be the correct construction because to construe the provision narrowly would be to destroy its intention. It would create an absurd situation where an insurance company would be required to offer insurance in situations which would potentially jeopardise the financial viability of the business because it was impossible to classify the risk.
59 The Tribunal is of the view that section 49ZYT must be construed in a way that promotes its purpose and gives effect to its intention.
60 In the Tribunal’s view section 49ZYT recognises the inherent discrimination in the provision of insurance and allows this discrimination as long as the Tribunal is satisfied that it is based on reliable actuarial or statistical or other reasonable data. It is the Tribunal’s view that the words “terms on which…is offered or may be obtained” are intended to cover situations such as the one before the Tribunal, where a person is seeking insurance cover but the insurer determines that it is unable to provide insurance cover to persons over the age of 70 reasonably based on reliable actuarial or statistical data which indicates that the intended insured is a bad risk.
61 The Tribunal concludes therefore that the words “the terms on which any……kind of insurance is offered or may be obtained” include the right to refuse.
62 Turning now to whether the respondent has satisfied the provisions of section 49ZYT. The evidence before the Tribunal is that the advice provided to the fund by its actuaries was that the respondent fund was cautioned against offering insurance to members over the age of 70 because there was no known statistical or actuarial data on which to fix premiums and given the mutual nature of the fund, the size of the fund, the voluntary nature of its membership, offering such insurance could seriously jeopardise the financial viability of the fund. Although it was stated during the hearing that premium rates could be extrapolated for the age group 65 to 75, based on percentage increases in the age group 60 to 65, this was not endorsed by the actuary, Mr Minty who was providing actuarial advice to the fund. The advice he was providing to the fund was that such a course would seriously jeopardise the fund.
63 The Tribunal also notes the comment at page 34 of the report of the June 2000 Review of the Reserves and Premium Rates of the respondent fund by Tillinghast-Towers Perrin dated 20 March 2001 to the Trustees of the fund where it is stated “Because of this lack of reliable data, we are not confident about the accuracy of the premium rates after age 65 and caution the fund as to their use”. Further at page 23 it is stated “The increase in the assumed exit rate has a significant impact on the capital required in the fund. Significant additional capital is required to reserve against the additional claims for older ages”.
64 The Tribunal is satisfied that the respondent fund’s decision not offer the applicant insurance on any terms once he reached the age of 70 was based on actuarial advice which in turn was based on an analysis of the available actuarial and statistical data.
65 The Tribunal finds that the respondent fund’s decision although based on the applicant’s age was also based on actuarial or statistical data and was reasonable having regard to the data available and to the mutual nature, size and financial viability of the fund and therefore its actions were not unlawful.
66 The Tribunal finds that the decision not to offer the insurance to the applicant on any terms was a decision to refuse it to him. The applicant was refused insurance but the refusal, that is, the decision as to the terms on which insurance was offered or may be obtained was excused by section 49ZYT.
67 The Tribunal finds therefore that the respondent has not contravened the AD Act and the Tribunal finds that the complaint is not substantiated.
Order
Costs
Pursuant to section 113(a) of the AD Act the Tribunal dismisses the complaint.
The Tribunal makes no order as to costs.
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