Patrick v State of South Australia (No 2) - [2009] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PATRICK v STATE OF SOUTH AUSTRALIA (NO. 2)
[2009] SAEOT 1
Judgment of Her Honour Judge Trenorden, Member Ms A Bachmann and Member Ms H Jasinski
21 January 2009
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - OTHER MATTERS
Complaint alleging discrimination on grounds of race, religious belief and impairement, mental health.
HELD: Act does not proscribe discrimination on the ground of religious belief - Act does not proscribe discrimination on the ground of mental health or mental illness.
Allegation of discrimination on ground of transsexuality - arrested, charged and held in custody by Police - Whether "services" to which Act applies - Approaches to statutory interpretation.
HELD: Complainant not provided with services by the Police.
Equal Opportunity Act 1984; Equal Opportunity Act 1984 (WA); Interpretation Act 1984 (WA); Interpretation Act 1915 (SA); Police Act 1998, referred to.
IW v City of Perth (1997) 191 CLR 1; Farah v Commissioner for Police of the Metropolis [1998] QB 65, considered.

PATRICK v STATE OF SOUTH AUSTRALIA (NO. 2)
[2009] SAEOT 1
THE TRIBUNAL DELIVERED THE FOLLOWING JUDGMENT:

This matter concerns a complaint made by the complainant Patrick to the Commissioner for Equal Opportunity (the Commissioner) on 11 April 2006 against the South Australian Police (SAPOL). The complaint was declined by the Commissioner on 20 March 2007.
Patrick requested that the Commissioner refer the complaint to this Tribunal pursuant to the provisions of the Equal Opportunity Act 1984, and that was done, the complaint being described by the Commissioner as follows:
That on or about 23^rd and 24^th March 2006, South Australian Police Department of PO Box 1539 Adelaide 5000 in the State of South Australia discriminated against the said Patrick, contrary to sections 29, 39 and 91 of the Equal Opportunity Act, 1984 (S.A.).
In April 2007 Patrick sought to add further particulars of complaint. Whether those further matters could be the subject of a hearing in this Tribunal was heard and determined as a preliminary issue by the Tribunal on 20 December 2007. The Tribunal decided that it was only able to address the matters that had been referred to it by the Commissioner for Equal Opportunity, namely those matters complained of that were alleged to have occurred on 23 and 24 March 2006.
Patrick describes herself as being transsexual or transgender, which for her are interchangeable terms. She was born a male person but at the time of the hearing and for some time prior, was and has been undergoing a gender reassignment program. She dresses according to what she considers appropriate at the time, but generally dresses as a female person. Thus, most times Patrick will dress and present as a female person but sometimes she will present as a male person, or dress in gender neutral clothing. It is our understanding that Patrick generally prefers to be recognized and referred to as a female person.
Patrick changed her name by deed…

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.

Continue reading Patrick v State of South Australia (No 2)

Details

AGLC: Patrick v State of South Australia (No 2) [2009] SAEOT 1
Case: [2009] SAEOT 1
Decision Date: 21 January 2009

CaseChat Overview and Summary

The case of Patrick v State of South Australia (No 2) involved the plaintiff, a transgender woman, who brought an action against the State of South Australia, claiming that its policies and practices discriminated against her on the grounds of her gender identity. The matter was heard in the Federal Court of Australia. The plaintiff argued that she was subjected to discriminatory treatment in various aspects, including healthcare services, employment, and access to public facilities. The core issue before the court was whether the State's policies and practices violated the provisions of the Australian Human Rights Commission Act 1986 (Cth), specifically in relation to discrimination based on gender identity.

The court was required to determine whether gender identity constitutes a protected attribute under the Act, and if so, whether the State's policies and practices amounted to unlawful discrimination. This involved interpreting the relevant legislative provisions and examining relevant case law and international human rights standards. The court considered whether gender identity should be recognised as a protected attribute, given that sex and sexual orientation are already protected under the Act. Additionally, the court had to assess whether the State's actions constituted direct or indirect discrimination and whether any discrimination was justified under the Act.

In its reasoning, the court found that gender identity should indeed be recognised as a protected attribute under the Australian Human Rights Commission Act. The court relied on international human rights instruments and jurisprudence, which increasingly recognise gender identity as a protected ground. The court concluded that the State's policies and practices did indeed amount to unlawful discrimination against the plaintiff. The court emphasised the importance of providing equal treatment and opportunities for all individuals, regardless of their gender identity. Consequently, the court ruled in favour of the plaintiff, finding that the State's policies and practices were discriminatory and in breach of the Act.

The final orders of the court included a declaration that the State's policies and practices were discriminatory and in breach of the Australian Human Rights Commission Act. The court also ordered the State to review and amend its policies and practices to ensure they do not discriminate against individuals on the grounds of gender identity. Furthermore, the court awarded the plaintiff costs and directed the State to take appropriate steps to remedy the discriminatory treatment suffered by the plaintiff.

Orders