QFG & GK v JM

IN THE SUPREME COURT

OF QUEENSLAND

O.A. No.1877 of 1997
Brisbane

Before Mr Justice Ambrose

[QFG & GK v. JM]

On Appeal from the Anti-Discrimination Tribunal pursuant to S.217 of the Anti- Discrimination Act 1991

BETWEEN:

QFG

First Appellant

AND

GK

Second Appellant

AND

JM

Respondent

CATCHWORDS: APPEAL - Anti-Discrimination Tribunal - whether evidence before the Tribunal supported the findings of both direct and indirect discrimination against lawful sexual activity - whether service company (QFG) vicariously liable for any discriminatory acts of doctors - whether refusing to provide artificial insemination service to a lesbian because she did not satisfy the doctor’s definition of “infertility” amounted to direct or indirect discrimination under the Act - whether doctors definition of “infertility” was unreasonable -whether requirement that the respondent complete a form to be signed by her “husband” constituted indirect discrimination.

Counsel:Mr P. O’Shea for the appellants
Mrs D. Richards for the respondent

Solicitors: Corrs Chambers Westgarth for the appellants

Nall Payne for the respondent

Hearing Date: 23 May and 14 August 1997

REASONS FOR JUDGMENT - B.W. Ambrose J.

Delivered the 24th day of October 1997

This is an appeal against orders of the Anti-Discrimination Tribunal made on 31 January 1997 based upon a decision that the appellants had unlawfully discriminated against the respondent in declining to provide medical services to her on the basis of her lawful sexual activity, that she be paid to compensation under s.209(1)(b) of the Anti-Discrimination Act 1991 fixed in the sum of $7,500 and costs.
Under s.217(1) of the Act the appellants appeal against those orders and that decision on questions of law.
The appellants contend that errors or law appear on the face of the decision although it is necessary to consider some of the evidence in the proceedings before the Tribunal so that some “shorthand” expressions or statements contained in the decision can be properly understood in the context of the detailed evidence which they purport to summarize.
I will make only a very brief resume of the facts relevant to the determination of the questions of law argued by the appellants and the respondent.
The respondent was a 23 year old woman who had been living in an exclusive lesbian relationship for four years. The woman with whom she had this relationship (her “partner” ) had an eleven year old daughter whom she had conceived by “private donor insemination”.
The respondent and her partner decided that the respondent should also have a child by artificial insemination and after they moved to Brisbane in December 1993 the respondent commenced to make inquiries relating to “donor insemination”.
The respondent had heard that “she would not be able to access donor insemination in Queensland” and had commenced to make inquiries in other parts of Australia. She decided that she could see no basis for her exclusion from “fertility clinics” in Queensland and on 19 May 1994 made contact with a medical practitioners’ service company QFG Pty Ltd, the first appellant, and spoke to an employee informing her that she was not married but that she was in a long term relationship. She did not specify that that relationship was a lesbian one. Information concerning the services provided by that group of doctors was sent to the respondent with a recommendation that she make contact with one of two named doctors of which the second appellant was one.
The Tribunal found upon the evidence that:
“JM made an appointment to see Dr GK (the second appellant) on 27 May 1994 -- Prior to this time JM had thought that the second appellant would be likely to refuse but wanted to receive that refusal in person so that she could make a complaint to the Queensland Anti-Discrimination Commission”.

The respondent consulted with the second appellant. There is a conflict in evidence as to what was said but the Tribunal found it unnecessary to resolve this conflict.
“...as there was nothing in what JM said to Dr GK that persuaded him that she was not eligible for treatment and there is no conflict as to the reason for his eventual decision to refuse her treatment. Dr GK says that he was satisfied with JM’s eligibility for donor insemination program because according to the information provided:-

(a)she had a child eight years previously and achieved pregnancy through normal methods (he was not told otherwise) and from which he assumed she was heterosexual. The fact that she told him she had an 8 year old child was true in the sense that she and her partner had a child then 8 years old whom she regarded as her child although the child’s “birth mother” is her partner;

(b)she had been accepted in the artificial insemination by donor (“AID”) program in Canberra so he assumed that her partner was male and infertile and that she had tried unsuccessfully for a period to conceive with him. He assumed that the guidelines in the ACT were similar to the guidelines in Queensland. There is no evidence however to that effect. Rather the evidence that only one signature was required in Canberra suggests that they are otherwise;

(c)she had a partner who answered the description given to him (and which he said was typical of the male) and who would be the person consenting to her participation in the AID program. The description given was however equivocal as to male or female.”

The respondent gave evidence that the second appellant explained “some of the important

advances made in Brisbane in screening against AIDS”.

Blood tests were performed on the respondent which showed that her ovaries were apparently functioning normally and the doctor agreed to commence his treatment with a view to assisting her to become pregnant, “If she brought in a signed consent form”. The form given to the respondent required the consent of both a “female partner and a male partner”.
The respondent asked if she could just fill out the “wife” part of the form and return it to him but the doctor said that he required a signature from both “wife” and “husband”. The respondent and her partner discussed the matter for some weeks. Then the respondent telephoned the doctor and told him that she would consider making a complaint to the Anti-Discrimination Commission if she could not be treated in his clinic on the basis of “her real circumstances” i.e. the fact that her chosen lifestyle was not compatible with her having heterosexual intercourse.
The respondent then obtained medical treatment from another doctor over a period of some six to eight months in an effort to become pregnant but it was unsuccessful.
Ultimately the respondent conceived a child “by private donor insemination which her partner performed upon her”. They made use of the semen of a man with whom they were acquainted which as perceived by the respondent has two disadvantages compared with AID at a clinic. First of all there are health risks associated with possible HIV infection of the semen and secondly, unlike the position with AID, the identity of the father is readily ascertainable.
She gave birth to a child in 1996. The respondent gave evidence which was accepted by the Tribunal that “she felt humiliation due to being treated less than equal to heterosexual/married women in regard to her right to choose parenthood”. One might infer that such “humiliation” was based upon her perception that treatment had been refused because of the heterosexually eschewed lesbian life style she had chosen rather than upon of one of its inevitable consequences which was her making no effort to conceive a child in the normal way.
It was found that the respondent is eager to conceive again as she wants to have a child close in age to “the baby that she and her partner now have”. She does not of course desire to conceive as a consequence of her sexual activity with her partner - that would be biologically impossible. She desires to conceive by artificial insemination with AID provided by a medical practitioner.
In ordering the appellants to pay to the respondent $7,500 compensation, the President of the Tribunal observed:-
“I am concerned that JM may wish, as the result of this decision, to have a continuing therapeutic relationship with Dr GK or the other doctors in QFG. I therefore limit this amount to $7,500.”

The President found that the appellant’s refusal of treatment to the respondent “was not motivated by malice or any desire to discriminate against JM or other women in her situation and that accordingly it would not be appropriate for the respondents to be ordered to publish a public apology”.
The President summarized the case for the defendants shortly -
“Dr GK relied, as his defence, on the fact that there was no medical cause for JM’s infertility and the policy of QFG was to treat medical conditions resulting in infertility, but not otherwise. Dr GK agreed that the infertility he was talking about was where one partner is female and the other partner is unable to give her sperm with which to conceive a child. However, he then added that the reason for that had to be a medical condition. Dr GK then defined medical fertility as:
‘a condition affecting one or even both partners such that, through normal
intercourse, they are unable to achieve pregnancy.’

He then redefined it to say that he meant to indicate that:

“there is a medical problem affecting one or even both partners such that, through normal intercourse, they are unable to achieve a pregnancy. With a lesbian couple, there may be no medical problem affecting either of them.

He said that in the donor program, they offered:

“donor semen for couples where the male partner is unable to produce semen to achieve a pregnancy.’ ”

I observe only that upon the evidence it could not properly be concluded that QFG Pty

Ltd “treated” infertility. The most that could be said was that QFG Pty Ltd was instrumental in

arranging such treatment by qualified medical practitioners. QFG was the name under which the group of doctors practised as members using QFG Pty Ltd as their service company.

A little further on the President said:

“Dr GK agreed that the reason JM was denied treatment was because she is a lesbian in a stable and exclusive relationship with another woman. He would treat a lesbian who was married to or in a de facto relationship with a man but not one who was in a stable and exclusive relationship. Having an exclusive and stable lesbian relationship is, of course, lawful sexual activity. It is a characteristic of a person in a stable and exclusive lesbian relationship that she is not involved in a sexual relationship with a male partner. Discrimination on the basis of a characteristic of a person with that attribute is prohibited under s.8(a) of the Act.”

Towards the end of her decision the President commented:

“The Act prohibits discrimination on the basis of lawful sexual activity in the provision of services. ‘Services’ is defined in s.4 of the Act to include “(f) services of any profession, trade or business”. As medicine is a profession, this definition encompasses the provision of medical services. Dr GK and the other directors of QFG provide medical services and it is therefore unlawful of them to discriminate on the basis of a person’s lawful sexual activity in the provision of those services.

Dr GK has adopted a definition of infertility which is discriminatory. This narrow definition is not medically necessary nor prescribed by any guideline by which Dr GK is bound. In any event, as it is in breach of the Anti-Discrimination Act, no such guideline, if it existed, could be binding on Dr GK.

The discrimination against JM is both direct and indirect. It is direct in that Dr GK has refused JM service because of her lawful sexual activity of being engaged in an exclusive lesbian relationship. It is indirect discrimination under s.11 of the Act because of the imposition of the term that she would not receive treatment unless she returned the form stating the name of her male partner and signed by her ‘husband.’ This is a term imposed:

(a)with which a person such as JM in a stable relationship is not able to comply;
(b)a higher proportion of people seeking AID who are not involved in a stable lesbian relationship would be able to comply with the term; and
(c)it is not reasonable since there accepted definitions of infertility which do not require discrimination against persons who are involved in lawful sexual activity.

Dr GK is liable individually and QFG is vicariously liable under s.133 of the Act for his actions when he was apparently acting as their agent. There is no suggestion that QFG had taken any reasonable steps to prevent a contravention of the Act.”

The Tribunal spent a good deal of time considering various definitions of “infertility”.
It would be unprofitable to analyse the observations made on a good deal of evidence that was led on this topic. Suffice is to say that in the course of that consideration it was observed:
“The National Bio-Ethics Consultative Committee report included definitions of infertility. It said that the most commonly accepted definition of infertility within medicine was:

‘The inability of a couple to conceive after 12 months of intercourse without contraception’.”

The President noted that “In the Macquarie Dictionary one of the definitions of sexual

intercourse does not depend on the gender of the members of the couple.”

Historical research of cultures of the middle ages indicates a similar community attitude towards both male and female homosexuality; almost invariably a genital penetration of the body of either male or female by a person of the same sex was proscribed. Literature to which I have referred indicates that it was only in relatively few cases that a Western European woman was thought physically capable of effecting genital penetration of the genitalia of another woman. Careful physical examination of the genitalia of women suspected of such genital penetration was conducted before the women involved were punished for such activity. Keeping this in mind I do not believe any definition of “intercourse” in the Macquarie Dictionary has any historical support for the proposition that a “couple” may refer to a lesbian couple each one of whom lacks the physical capacity to effect genital penetration of the other. There is nothing in any dictionary definition of sexual intercourse or any of the readings to which I have referred to suggest that “sexual intercourse” connotes anything other than a sexual connection involving penile penetration.
In dealing with the meaning of “sexual activity” in s.7(1)(l) a convenient starting point is the meaning of “sex” contained in The Shorter Oxford English Dictionary:

Either of the two divisions of organic beings distinguished as male and female respectively; the males or the females (especially of the human race) viewed collectively;
QQuality in respect of being male or female;
The distinction between male and female in general. In recent use: the sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female and of other physiological differences consequent on these.

In the same dictionary “sexual” is defined to mean inter alia:

Of or pertaining to sex or the attribute of being either male or female; existing or predicated with regard to sex;
Pertaining to sex as concerned in generation or in the processes connected with this;
Of or pertaining to the organs of sex.
Relative to the physical intercourse between the sexes or the gratification of sexual appetites -- taking place by means of the congress of the two sexes.

“Hetero” is defined as “the other of two, other, different; often opposite to homo” -

“Homo” is defined to mean inter alia -

“Same; often in opposition to hetero -”

“Homosexual” in the same dictionary is defined to mean:

“Having a sexual propensity for persons of one’s own sex.”

“Lesbianism” is defined in the same dictionary as a synonym for sapphism which in turn is defined
as “unnatural sexual relations between women”.

“Couple” on the other hand in the same dictionary is defined to mean inter alia:

Coupling in matrimony; the bond of wedlock; sexual union --
A pair of opposite sexes e.g. a wedded or engaged pair

The verb to “couple” is defined to include -

To join in wedlock or sexual union”

I can find nothing to support the proposition advanced by the Tribunal that “sexual intercourse” in its ordinarily understood meaning includes sexual activity between women of homosexual orientation which can have no potential to reproduced the species.
Over recent years there has been a change in the attitude of a significant part of the community towards sexual practices between adult people and this undoubtedly is reflected in s.7(1)(l) where “lawful sexual activity” probably comprehends sexual activities of both homosexual and heterosexual kinds. Historically homosexual activity between adult women has never been subject to criminal sanction in Queensland.
It is clear however that many heterosexual members of the community are ill disposed towards persons who engage in homosexual activity. It was obviously the policy of the Legislature in prohibiting discrimination based upon “lawful sexual activity” in s.7(l)(l) to protect such persons (perhaps comprising no more than 5% of the community) against “unfair discrimination” by reason of their pursuit of such sexual activity.
An appreciation of community attitudes towards persons known to be of homosexual orientation and practices can be gleaned from some of the many books published this century. I make a list of the readings to which I have referred in a very cursory way in Annexure “A” to these reasons.
Counsel for the appellants and the respondent were provided with the list and invited to make comments on the books listed in it to the extent that they thought it useful to do so. As well they were referred to the most recent publication available to me which was “A Separate Creation” by Chandler Burr (published in 1996). Much of the material contained in these books and articles is repetitious and to some extent in conflict. However it is useful to the extent that it reflects past and present community attitudes in different cultures and at different periods of time which is of assistance when considering what the Legislature must have considered when enacting s.7(1)(l) of the Anti-Discrimination Act to be read with s.11(1)(c) and (2) of that Act to prohibit “unfair” discrimination.
The President referred to a World Health Organization Report extending the meaning of “infertility” by describing it as “the incapacity of a man, woman or couple to participate in reproduction i.e. the production of a live child”. She observed “there is no reference to the gender of the couple or the reason for the incapacity to participate in reproduction”.
I must say reference to the significant volume of material touching on this topic leads me to the conclusion that the authors of the various reports etc. when talking of sexual intercourse between “couples” clearly had in mind intercourse between a couple comprising a male and female partner. It is unproductive to embark upon a consideration of the true import of the various definitions of infertility or guidelines etc. relating to the use of medical technology to assist infertile people to become parents where “the couple is infertile and other methods of treatment of infertility have failed or are not appropriate” except when considering the question of indirect discrimination.
Although a good deal of attention was given to the proper definition of “infertility” it seems to me only faintly arguable that the decision ultimately reached by the President was based upon any such definition in view of her conclusion that whatever definition be adopted which might support the second appellant’s refusal to give the respondent artificial insemination treatment, it would be in breach of the Anti-Discrimination Act and provide no justification for his refusal of the medical treatment she requested.

It is convenient at this stage to turn to the relevant sections of the Anti-Discrimination Act to consider the appellant’s contention that on the findings of fact by the Tribunal, its decision that the appellants had unlawfully discriminated against the respondent on the basis of her lawful sexual activity cannot be supported. It is clear from the terms of the Act that its object is to “promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity”. Sections 7 and 8 of the Act prohibit discrimination on the basis of specified “attributes”.
Section 7(1) provides:
“The Act prohibits discrimination on the basis of the following attributes -

(a)-(k) .....
(l)lawful sexual activity;
(m)association with, or relation to, a person identified on the basis of any of the above attributes”.

Section 8 then defines “discrimination on the basis of an attribute” in the following terms -

“8.Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of -

(a)a characteristic that a person with any of the attributes generally has; or
(b)a characteristic that is often imputed to a person with any of the attributes; or
(c)an attribute that a person is presumed to have, or to have had at any time, by the person discriminating; or
(d)an attribute that a person had, even if the person did not have it at the time of the discrimination”.

Section 9 of the Act provides:

“9.The Act prohibits the following types of discrimination -

(a)direct discrimination;
(b)indirect discrimination”.

Section 10 provides:

“10. (1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
(2)It is not necessary that the person who discriminates considers
the treatment is less favourable.
(3)The person’s motive for discriminating is irrelevant.
(4)If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
(5)In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant”.

The first thing to notice about the provisions of the Act about direct discrimination is that no attempt is made to distinguish between discrimination which is unfair and discrimination which is not unfair in spite of the stated purpose of the Act to protect people from unfair discrimination. I say this subject to the qualification that differentiation in treatment shown to be “reasonable” under s.11(2) appears to be regarded as not unfair when indirect discrimination is the complaint.
One looks in vain in the definition section for the meaning of the term “discriminate”.
According to the Shorter Oxford English Dictionary, it means inter alia:
“1. To make or constitute a difference in or between; to differentiate.
2. To perceive or note the difference in or between; to distinguish
3. To make a distinction.”

The words of s.10(1) of the Act dealing with the meaning of “direct discrimination” suggest that it is the treatment or proposed treatment of a person with one of the “attributes” contained in s.7(1) not just differently from another person without that attribute but “less favourably” that is the concern of the legislation. The Act does not attempt to define the ambit of that phrase and I find the simplistic “examples” in s.10(1) and 10(3) of only marginal, if any assistance.
The ordinary meaning of the word “attribute” specified in the Shorter Oxford English Dictionary is:
“1. A quality ascribed to any person or thing, one which is in common usage assigned to him; hence occasionally an epithet or appellation in which the quality is ascribed.
2. --
quality or character.
3. --
4. An inherent or characteristic quality”.
Argument on this appeal has centred on the “attribute” specified in s.7(1)(l) - “lawful sexual activity”.
While it may be an unhappy use of language to describe an activity in which a person engages or has engaged as “an attribute” or even a “characteristic” to which s.8 refers, I construe s.7(1)(l) and s.8 of the Act as prohibiting the appellants from treating the respondent “less favourably” (whatever nuance of meaning beyond “differently from” that term may encompass) than the way they would treat other women on the basis of or substantially for the reason that she engaged in lesbian sexual activity.
It was not suggested that the exclusive lesbian activity in which the respondent engaged at material times was unlawful. Presumably “lawful sexual activity” connotes activity not contrary to law in the sense that it is not subject to any criminal sanction.
One of the problems I have in dealing with the facts and arguments in this case is that essentially the second appellant declined to provide services to the respondent not because of her lesbian activity but because of her heterosexual inactivity. “Inactivity” is defined to mean the quality or state of being inactive whereas “activity” connotes the state of being active.
The decision under appeal talks of the respondent being engaged “in an exclusive lesbian relationship” and “in a “stable lesbian relationship”.
The Tribunal’s approach appears to have been to treat an exclusive and stable lesbian relationship in which the respondent was involved as the “lawful sexual activity” upon which the complaint of discrimination was based.
On the evidence however it seems clear that had the respondent also engaged in lawful heterosexual activities at the time she was engaging in lawful homosexual activities the second appellant would have had no policy or practice which would have resulted in his refusal to give her the medical artificial insemination service which she sought.
On one view it was her heterosexual inactivity which put her outside the guidelines which the second appellant had adopted for the provision of his specialist medical services.
Stated shortly the second appellant would provide his expert medical treatment only to those women who had attempted unsuccessfully to become pregnant in the normal way where their failure was attributable to incapacity on the part of one or both of the heterosexual partners of whom the woman seeking medical assistance was one.
Can it then be the effect of s.7(1)(l) that the refusal of the appellant to provide artificial insemination services to the respondent because she had not attempted to fall pregnant in the normal way by having heterosexual intercourse is a prohibited discrimination against her because of her “lawful sexual activities” which resulted in her never attempting to become pregnant in accordance with the ordinary biological method?
May any woman then who declines to attempt to become pregnant in the normal biological way compel a specialist medical practitioner to provide artificial insemination services to her?
Does “lawful sexual activity” comprehend also “lawful sexual inactivity”? May a woman desiring to give virgin birth without having a sexual relationship of any kind with anybody claim a prohibited discrimination against her on the basis of her lawful sexual activity if a doctor in a fertility clinic declines to treat her with artificial insemination? It is clear upon the evidence given in this case and indeed upon the findings of the President of the Tribunal that the respondent had no desire “to discriminate against JM or other women in her situation”. That finding is fully supported by the evidence from the second appellant apparently accepted by the President that he had no objection to treating people of lesbian sexual orientation. As a medical specialist he simply sought to confine his activities to treating women who had attempted to become pregnant in the ordinary normal way by heterosexual intercourse but had not succeeded in doing so.
There is nothing in the evidence nor any finding to the effect that there was any explanation for the respondent’s abstinence from heterosexual intercourse which would in the normal course of events produce a child other than the choice she made not to have heterosexual intercourse because of her homosexual preference.
In the course of the President’s judgment leading to her conclusion that the second appellant had been guilty also of indirect discrimination it was observed that the imposition of a condition for treatment that the respondent return a form stating the name of her male partner and signed by him was a term imposed -
“With which a person such as JM in a stable lesbian relationship is not able to comply.”

It seems to me that it would be more precise to say that she refused to comply because of her choice or election to maintain an exclusive lesbian relationship. In my view it is impermissible to infer from the fact that the respondent had made such a choice or that other persons in lesbian sexual relationships have made such a choice that therefore they are not physically or psychologically “able to comply” with the criteria adopted by the second appellant for the provision of his specialist medical services, at least for the purposes of determining whether there has been a direct discrimination under s.10 of the Act. I will deal later with the finding of indirect discrimination (defined in s.11 of the Act).
Although an appeal under s.217 of the Act is confined to questions of law only, the sufficiency of any evidence and/or findings of fact to support a decision or order is clearly a question of law. In the light of the facts found in this case it seems to me unnecessary to analyse the evidence closely. The critical finding of prohibited discrimination is stated in these terms:-
“It is direct in that Dr GK has refused JM service because of her lawful sexual activity of being engaged in an exclusive lesbian relationship.”

It is clear however from both the terms of the decision and the acceptance of evidence obviously reflected in it that that statement is intended merely to summarise the finding that the appellant had refused his services because the respondent was not a woman who had attempted unsuccessfully for twelve months to achieve pregnancy in the normal way by engaging in heterosexual intercourse because of the exclusively homosexual lifestyle she had chosen with her lesbian partner.
The refusal of treatment for a broken leg suffered by a person of homosexual orientation on the ground that the doctor involved did not approve of homosexuality illustrates the nature of direct discrimination prohibited by the Act.
In my view the finding of direct discrimination is difficult to support upon the evidence accepted by the President. Indeed I was not directed to any evidence in the course of long argument which arguably supports such a finding. The ultimate finding on the evidence seems to be founded on the propositions that -
(a)The respondent had chosen to become a party to a stable and exclusive lesbian sexual relationship which had subsisted for about four years;
(b)As a consequence of the maintenance of that relationship she chose not to attempt to become pregnant by engaging in normal heterosexual intercourse;
(c)If she had engaged in normal heterosexual intercourse the probability is that she would have become pregnant;
(d)The stable exclusive homo-sexual relationship which the respondent had chosen amounted to a ‘lawful sexual activity’ in the sense that it was not an unlawful activity;
(e)It would have been an equally lawful sexual activity had the respondent -
(i)engaged in an exclusive and stable heterosexual relationship; or

(ii) engaged in heterosexual and homosexual relationships over the same time span.
(f)The refusal of artificial insemination was based on the fact that because of her chosen lifestyle the respondent had not attempted to become pregnant by normal biological means and thus demonstrate medical infertility.
There is nothing in the evidence to suggest and there is no finding in any event to the effect that the appellant treated the respondent any differently or “less favourably” than he would have treated any other woman seeking medical assistance for an infertility problem whatever may have been her lawful sexual activities or inactivities. It would be an abuse of language, to categorise all explanations for a woman’s failure to conceive a child as her “infertility” - or indeed the “infertility” of any person. It would be ridiculous to describe a woman as “infertile” merely because she was a virgin.
In the case of all women seeking assistance at the infertility clinic the second appellant’s practice was to render that assistance only to women considered to be “infertile”; and such infertility was considered to arise where a woman having had sexual intercourse with a man over a period of twelve months without using contraceptive devices had failed to conceive a child.
The finding of direct discrimination having regard to the terms of s.7 and s.10 of the Act is based upon a construction of the Act supported by counsel for the respondent on appeal, which in my view would go far beyond the purpose of the Act as outlined in s.6(1). It would compel the provision of a medical service upon demand even in circumstances where a medical practitioner was quite unpersuaded that it was “needed” on medical grounds.
It is the second appellant’s case that as a doctor he is entitled to confine his practice to the medical treatment of women who are “infertile” - either by reason of their own physical deficiency or that of their heterosexual partners. Counsel for the respondent was driven to contend ultimately that any woman who wants to become pregnant but does not want to have intercourse with a man can claim to be “infertile”. She should be treated as medically infertile for the purpose of getting artificial insemination treatment even if she has no sexual relationship whatever - whether heterosexual or homosexual. The whole concept of fertility in my view involves the innate capacity of persons of the opposite sex to reproduce their own kind by combining their genes in the ordinary biological way. The acceptance of the respondents contention would place the second appellant in the position of a technician required to provide his services to any woman who requested them - irrespective of medical need. On the respondents’ contention, one of the “advantages” of the second appellant’s medical assistance being available to women who seek to have children is that it would be virtually impossible under the present system to discover the identity of the biological father of any child born as a result of artificial insemination. These matters were canvassed on the question of indirect discrimination where the reasonableness of the discrimination was relevant; no evidence however was called or consideration given to the welfare of a child produced by such a procedure where it would be impossible for him or her ever to discover the identity of the biological father.
The ground of refusal of the treatment sought by the respondent was “facially neutral” to use the language found in Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 at p.170-171 per Brennan J; at p.175-177 per Deane and Gaudron JJ; see also p.184 per Dawson J and p.208 per McHugh J. It is clear on the evidence given by the second appellant which was uncontradicted and inferentially accepted having regard to the terms of the decision that precisely the same requirement of unsuccessful attempts to become pregnant after twelve months of heterosexual intercourse without the use of contraceptive devices was required of all women whatever their marital status or sexual orientation. Stated shortly treatment was provided when attempts to achieve pregnancy in the normal way had proved unsuccessful. It was not provided as a substitute or alternative for normal heterosexual intercourse at the election of a woman who had not attempted to conceive a child in the ordinary biological way.
In my view on the evidence and on the findings of fact of the President direct discrimination within s.10 of the Act was not established. The refusal to provide the respondent with the medical treatment of artificial insemination which she sought was not based upon any antipathy towards the lesbian or homosexual activity in which she habitually engaged exclusively with her partner. It was based upon the fact that she had not engaged in heterosexual intercourse for twelve months which had failed to result in her pregnancy to establish a prima facie case of medical infertility which the second appellant was prepared to treat by providing his specialist artificial insemination services.
I will turn now to consider the question whether the finding of indirect discrimination is supportable on the evidence and facts found by the President.
For the meaning of “indirect discrimination” one must go to s.11 of the Act which provides:
“Meaning of indirect discrimination

11.(1) Indirect discrimination on the basis of an attribute happens if a person imposes, or proposes to impose, a term -

(a)with which a person with an attribute does not or is not able to comply; and
(b)with which a higher proportion of people without the attribute comply or are able to comply; and
(c)that is not reasonable.

(2) Whether a term is reasonable depends on all the relevant circumstances of the case, including, for example -

(a)the consequences of failure to comply with the term; and
(b)the cost of alternative terms; and
(c)the financial circumstances of the person who imposes, or proposes to impose, the term.

(3) It is not necessary that the person imposing, or proposing to impose, the term is aware of the indirect discrimination.

(4) In this section -
“term” includes condition, requirement or practice, whether or not written.
Example 1

An employer decides to employ people who are over 190 cm tall, although height is not pertinent to effective performance of the work. This disadvantages women and people of Asian origin, as there are more men of non-Asian origin who can comply. The discrimination is unlawful because the height requirement is unreasonable, there being no genuine occupational reason to justify it.

Example 2

An employer requires employees to wear a uniform, including a cap, for appearance reasons, not for hygiene or safety reasons. The requirement is not directly discriminatory, but it has a discriminatory effect against people who are required by religious or cultural beliefs to wear particular headdress. ”

Section 205 of the Act provides:

“205. In a case involving an allegation of indirect discrimination, the respondent must prove, on the balance of probabilities, that a term complained of is reasonable.”

Having summarized the findings of fact as I have indicated, and having held that the evidence established discrimination which was both direct and indirect the President continued:
“It is indirect discrimination under s.11 of the Act because of the imposition of the term that she would not receive treatment unless she returned the form stating the name of her male partner and signed by her ‘husband.’ This is a term imposed:

(a)with which a person such as JM in a stable relationship is not able to comply;
(b)a higher proportion of people seeking AID who are not involved in a stable lesbian relationship would be able to comply with that term; and

(c)it is not reasonable since there accepted definitions of infertility which do not require discrimination against persons who are involved in lawful sexual activity.”

The characterization of the second appellant's requirement that the form referred to state the name of the appellant's male partner and be signed by him as within (a) above is simply an assertion that the facts proved come within s.11(1)(a) of the Act. I do not regard it as a finding of fact. Rather it is a conclusion that the facts specifically found come within s.11(1)(a) of the Act.

In my view for reasons I have already given there is no evidence whatever to suggest that the respondent was physically incapable of engaging in heterosexual intercourse. In my view the requirement that the form be signed cannot reasonably be elevated of itself into a finding of indirect discrimination. It was merely part of the procedure adopted by the second appellant to ensure that the women to whom he provided his professional services came within the category of women to which he had decided to confine his attention, being women with a problem of “medical infertility” according to its most commonly accepted medical definition. Accepting that the respondent’s “stable lesbian relationship” constituted under s.7(1)(l) of the Act the attribute of “lawful sexual activity” it does not follow as a matter of law that the possession of such an attribute showed that the respondent was at least physically and psychologically “not able to comply” with the requirement.
There is no evidence whatever to suggest that the respondent was physically or psychologically incapable of engaging in heterosexual intercourse. The evidence indicates that because of her lesbian sexual orientation she had chosen an exclusive sexual activity which excluded the possibility of achieving pregnancy in the normal way. There is no evidence that as a matter of choice she was not capable of engaging in heterosexual activity either instead of or in addition to the homosexual activity which she had chosen with her partner which would not probably have led to her conceiving a child.
I make a similar comment with respect to the finding (b). Upon the evidence accepted by the President, and subject to the effect of the terms of s.11, I can find nothing to suggest that a person in an exclusive, stable lesbian relationship is any “less able to comply” with requirements of the second appellant than persons not engaged in such a relationship. Indeed with respect to the category of women to which the second appellant was prepared to provide his specialised medical services and treatment it is clear that he would have adopted the same approach to women who had no sexual relationship whatever either heterosexual or homosexual. I have already canvassed such considerations when dealing with direct discrimination.
Recent literature touching on the matter - Chandler Burr - A Separate Creation (1996) contains an interesting up to date statistical analysis of the distribution of sexual orientation with respect to both sexes. The view expressed at p. 167 is that from research within the United States at any event:-
“Although sexual orientation is clearly bi-modal among women as well there are more bi-sexual women than there are men.”

Having regard to such research the “best estimate” of the percentage of male persons of homosexual orientation and practice was about 4% to 5% of the male population; about 2% to 2.5% of women were of homosexual orientation.

It is clear therefore on the available literature that there is a much higher proportion of women whose “lawful sexual activity” would provide no dis-incentive to complete the form required by the second appellant demonstrating that they were in a heterosexual relationship, the male partner of which consented to the artificial insemination procedure which the woman sought than there is of women not possessing that characteristic.
There seems little statistical evidence collated in Australia of the sort that has been produced in the United States. There are of course articles written by persons promoting and/or commenting upon the lesbian lifestyle to suggest that the percentage of women engaging in lesbian sexual activity would be greater than 2.5%. The finding however of the President that there would be a higher proportion of women seeking treatment from the second appellant who were of heterosexual orientation than there would be of women in an exclusive lesbian relationship is undoubtedly supported in the literature.
However with respect to the second finding (b) under attack the respondent has the same problem in showing that people of lesbian orientation generally are physically and psychologically any less “able to comply” than persons of heterosexual disposition. An important question to be determined on this finding is really whether “ability to comply” means “willingness to comply”.
Undoubtedly the attributes of sex, age, race and impairment for example under s.7 will constitute characteristics which will sometimes destroy the ability of a person to comply with terms within the meaning of s.11(1). Example (1) at the end of that section illustrates this.
Further the attributes of religion, political belief or activity and trade union activity all involve a choice by the person maintaining them and reference to Example (2) at the end of s.11 suggests that indirect discrimination may occur if a term is imposed with respect to the provision of a service with which the religion, political belief or activity or trade union activity which the complainant at the relevant time has voluntarily chosen would make such person or persons “unable to comply” while at the same time maintaining and adhering to the tenets of his or her religion, political belief or activity or trade union activity.”
In this regard for the purpose of applying s.11 I treat the attributes of religion, political belief or activity, trade union activity and lawful sexual activity as all having an element of choice by the person displaying those “attributes”. Example (2) to s.11 indicates that the intent of the Act is to prohibit treating a person with those chosen attributes “less favourably” than a person without those chosen attributes unless it is “reasonable” to do so under s.11(1)(c). I find it quite unsatisfactory to have to resort to “examples” of the sort found in Example (2) at the end of s.11 to give meaning to terms such as “not able to comply”. However that is the drafting technique adopted in this legislation. Presumably the attributes listed in s.7(1)(a) to (h) at the time when they must be considered involve no element of choice. Presumably s.11(1)(a) and (b) contemplate them as attributes with which a term imposed or to be imposed “does not comply”. Example (1) is illustrative of that contemplation.
Presumably the attributes listed in s.7(1)(i) to (l) are those with which a person “is not able to comply” with the contemplation of s.11(1)(a) and (b) while voluntarily choosing to maintain one of those attributes.
The third essential component of an indirect discrimination is to be found in s.11(1)(c) - that is that the term or requirement “is not reasonable”. Section 205 required that the second appellant prove on the balance of probabilities that his practice of providing artificial insemination services only to women who had failed to achieve pregnancy after engaging in normal heterosexual activities “was reasonable”. That seems to be the only way in which s.11(1)(c) and (2) can be read with s.205 of the Act.
That seems to be the way in which the President construed the Act. I am unpersuaded that construction is incorrect. For the appellants it is contended that in spite of s.205 the obligation was on the respondent to prove indirect discrimination before the Tribunal and the very definition of that indirect discrimination involved the imposition of a requirement that it is not reasonable. When one goes to s.11(2) to consider what is reasonable, one sees that that depends “on all the relevant circumstances of the case, including, for example” those set out in s.11(2)(a),(b) and (c).
Strangely, s.11(2)(c) specifies “the financial circumstances of the person who imposes -- the term”. Presumably the financial circumstances of the person with respect to whom the term is imposed would in some cases be relevant as well.
The finding of the President that the requirement that the respondent have her husband sign the form consenting to the treatment “was not reasonable since there are accepted definitions of infertility which do not require discrimination against persons who are involved in lawful sexual activity”, in my judgment does not really address the question whether the second appellant’s restriction of his services to women who had failed to achieve pregnancy by normal methods of insemination of semen was or was not reasonable for the purposes of s.11.
This finding seems to have little to do with the real issue of indirect discrimination raised before the Tribunal on the evidence which was the refusal to treat the respondent because she engaged in only homosexual activity not that she was required to have her “husband” sign a form as illustrative of the fact that she was in a heterosexual relationship - presumably addressing to some extent at least the second appellant’s requirement that his patients have attempted unsuccessfully for twelve months to achieve pregnancy in the normal way before he would give them the benefit of his specialised treatment by way of artificial insemination.
The Tribunal spent a good deal of time examining various definitions of “infertility”. I am unpersuaded as a matter of law that whatever definitions may be culled from reports, recommendations etc. of national and international committees and organisations interested in ethical considerations in the provision of artificial insemination services by members of the medical profession, they provide more than some of the circumstances for consideration in determining whether the practice adopted by the second appellant in limiting his provision of services to women who could not conceive as the result of engaging in normal heterosexual intercourse with a male partner or partners was reasonable. That question must be determined upon “all the relevant circumstances of the case” rather than upon merely the applicability of such definitions.
The real question for determination on the respondent’s complaint in the alternative of an indirect discrimination under s.11 of the Act, is whether the guideline or practice in fact adopted by the second appellant not merely with respect to the respondent who had adopted an exclusively lesbian sexual lifestyle but also with respect to all women of whatever sexual orientation or activity was a reasonable one for him to adopt in the provision of his specialised services.
This is a question which on my reading of the decision under appeal was not clearly addressed. If it was addressed at all, it was addressed within the confined ambit of the requirement that the respondent have a form signed by her heterosexual partner. For the reasons I have already expressed this was not the real issue to be determined under s.11 of the Act.
Precisely the same question would have to be determined had the respondent been a woman who eschewed any sexual activity whatever and desired to have a child by virgin birth.
It really comes down to whether the practice of the second appellant in so limiting the provision of his specialist services was “reasonable” in all the circumstances of his case. In considering this question, I proceed on the basis that all requirements or practices of the second appellant contemplated under s.11(1) and (2) may be categorised as either reasonable or not reasonable.
Whether a term is reasonable or not reasonable under s.11(1)(c) to my mind is simply a matter for judgment by the Tribunal on the evidence before it. Obviously under s.205 the burden was on the second appellant to prove “all the relevant circumstances” upon which it might be concluded that his requirement or practice was reasonable.
In my view the Tribunal is given no unfettered discretion under the Act to determine whether or not a requirement or practice is reasonable. It sits to determine matters of fact and to apply to them the provisions of the Anti-Discrimination Act. It is a statutory body with its functions and powers delineated in Part 2 of the Act. Under s.249(3) and (4), it may make rules for the effective and efficient performance of its functions which are categorised as “subordinate legislation”.
Under s.212 its orders are enforced by filing a copy of them in a court of competent jurisdiction whereupon they become enforceable “as if an order of the court.”
As an administrative tribunal its decisions on questions of law are subject to the review to which the decisions of all such tribunals have been subject since the 16th Century. In Rooke’s case (1598) 5 Co. Rep. 99(b) (77 ER 209 ) it was pointed out that the discretion given to such a Tribunal in the administration of legislative policy is:
“a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretences and not to do according to their wills and private affections.”
While in my view the Tribunal erred in finding indirect discrimination based upon the second appellant’s requirement that the respondent have completed by “her husband” the form indicating his consent to the proposed artificial insemination treatment it seems to me that the undue consideration given to that requirement distracted the Tribunal from the real question to be determined under s.11(1)(c) of the Act.
That real question was whether the practice of the second appellant in restricting the provision of his specialist medical services in providing artificial insemination to women who had unsuccessfully attempted to achieve pregnancy in the normal biological way for a period of twelve months, so that women who did not come within that category were denied his specialist services, amounted to indirect discrimination against those women. Those women would comprise not merely those who engaged exclusively in homosexual activity but also those who engaged in no sexual activity whatever.
The real question to be determined on the issue of indirect discrimination was whether the policy or practice of the second appellant was “not reasonable” within s.11(1)(c) of the Act. Under Part 2 Division 3 of the Act it is the Tribunal alone that was required to determine whether the second appellant’s practice to which I have referred was “not reasonable” under s.11(1)(c).
The powers of this Court upon appeal are set forth in s.218 of the Act.
Section 218(b) and (c) provides that this Court may -
“(b)substitute, or make, in addition, any order or decision that should have been made in the first instance; or

(c)remit the matter to the Tribunal for further hearing or consideration or for re-hearing--”

Whether the practice of the second appellant which upon the evidence did not amount to direct discrimination nevertheless constituted indirect discrimination must ultimately depend upon whether that practice was “not reasonable”.
Upon proof of all circumstances relevant to this question the Tribunal was required to determine whether upon the whole of the evidence the practice was “not reasonable”.
As I have indicated in my view upon the proper application of s.205 of the Act there is no “prima facie presumption” that the practice is unreasonable. The effect of that section is simply to require a respondent to ensure that evidence is placed before the Tribunal which leads to the conclusion that more probably than not his or her practice was reasonable; a complainant is under no obligation to lead evidence to show that a practice is “unreasonable”.
In my view in determining whether the second appellant’s practice was “not reasonable”, the Tribunal was not required to consider only whether it was “necessary”. Neither did it require consideration of whether a different practice which would have permitted the artificial insemination of the respondent would have been preferable or more acceptable to women of lesbian orientation and lifestyle.
The issue for determination by the Tribunal was whether the second appellant had contravened the provisions of s.11 of the Act with the consequence that he be ordered to pay compensation to the respondent and costs.
A determination that the second appellant had contravened the provisions of s.11 of the Act had serious consequences for him with respect to the way in which he conducted his practice and made his professional specialist services available to women seeking artificial insemination services and obviously I should have thought would have caused at least as much “embarrassment and humiliation” to him in his professional life as would his refusal to provide those services to the respondent have caused to her. I say this without labouring the fact that her object as found by the President in seeking services from the second appellant appears to have been at least as motivated by her desire to report him to the Anti-Discrimination Commission for the anticipated refusal of his services as it was to obtain them from him.
One matter to be considered then is whether upon the evidence before the Tribunal it was open to it to find that the second appellant’s practice “was not reasonable” - even though it does not seem to have addressed this point directly.
If upon the evidence it was not open as a matter of law to find that the second appellant’s practice was “not reasonable” then arguably it might be appropriate under s.218 of the Act simply to quash the decision and orders made by the Tribunal. On the other hand if this issue has not been clearly addressed it would be desirable to remit the matter to the Tribunal for further hearing and consideration or for re-hearing.
It is not for this Court upon appeal to make determination of a matter which it is the sole function of the Tribunal to determine as an administrative body operating under the Act to apply its provisions. The Tribunal has not in my judgment addressed the real matter to be determined and it would be inappropriate to proceed on the basis that it might be determine it in a particular way. When there is a determination of the real matter in issue a party dissatisfied with the determination will have the opportunity of arguing whether it was open as a matter of law on the facts determined by the Tribunal by applying the test in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1995) 63 FCR 74 at p.84 per Lockhart J.
It is convenient to consider what is meant by “not reasonable” in s.11(1)(c) and assistance in this regard is to be found in Secretary of State for Education and Science v Tameside Metropolitan Burrough Council [1977] A.C. 1014. That was a case where a local education authority the composition of which changed after a local government election reconsidered and decided to alter the partly implemented policy of its predecessor. The Secretary of State however asserted that the education authority was going to act unlawfully and obtained a mandamus in the Divisional Court. The Court of Appeal quashed that order for mandamus and gave consideration to what the Secretary of State had to demonstrate to show that the local education authority was proposing to act “unreasonably”.
Lord Denning M.R. at 1025 said:
“Now I turn to the other important words in this section: that he is satisfied that the local education authority have acted or are proposing to act ‘unreasonably’. The question often arises whether someone has acted, is acting or is proposing to act ‘unreasonably’. To decide this question, it must be remembered, as Lord Hailsham of St. Marylebone L.C. said In Re W (an infant) [1971] A.C. 682,700:

‘Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as ‘reasonable’.’

It is one thing to say to a person : ‘I think you are wrong. I do not agree with you.’ It is quite another thing to say to him: ‘You are being quite unreasonable about it’. I know it is often done. It is common place to say to your adversary: ‘You are being very unreasonable’ when all you mean is: ‘I think you are wrong’. Such hyperbole is excusable in ordinary mortals but not in those who have to consider and apply Acts of Parliament. No one can properly be labelled as being unreasonable unless he is not only wrong but unreasonably wrong, so wrong that no reasonable person could sensibly take that view.

All the more so when a man - be he a judge or a minister - is entrusted by Parliament with the task of deciding whether another person has acted, is acting or is proposing to act unreasonably. Especially when the one who has to decide has himself his own views - and perhaps his own strong views - as to what should or should not be done. He must be very careful then not to fall into the error - a very common error - of thinking that anybody with whom he disagrees is being unreasonable. He may himself think the solution so obvious that the opposite view cannot be reasonably held by anyone. He must pause before doing so. He must ask himself:

‘Is this person so very wrong? May he not quite reasonably take
a different view?’

It is only when the answer is ‘He is completely wrong. No reasonable person would take that view’ that he should condemn him as being unreasonable”.

At p. 1031 Scarman LJ observed:
“-- and my formula would be as follows: that the Secretary of State cannot lawfully be satisfied that the local education authority is proposing to act unreasonably unless upon the information that was or ought to have been available to him the local education authority, acting reasonably, could not have acted, or proposed to act, as it in fact did. In other words, while it is not for the court to substitute its view for the minister’s, it is also the law that the minister cannot substitute his view for that of the local education authority, provided always that an authority, acting reasonably, could have made the decision that in fact it made.”

At p.1032 Scarman LJ continued:
“-- I find it impossible to say that there existed grounds on which the Secretary of State could have been satisfied that the local education authority was proposing to act unreasonably. ‘Unreasonably’ must mean in the context of section 68 not ‘unreasonably policy-wise’ but ‘unreasonably’ in the administrative sense: for the Secretary of State very properly concedes that section 68 is not an appropriate vehicle for imposing an unwelcome educational policy upon a local education authority. Moreover, the word ‘unreasonably’ means not ‘mistakenly’ nor even ‘wrongly’ but refers only to a situation in which the authority is acting or proposing to act in a way in which in the circumstances prevailing and on the expert advice available, no reasonable authority could have acted. The local education authority, being a public authority, is entitled to have its acts assessed by the Secretary of State on that basis.”

On the evidence before the Tribunal in this case what were “the consequences of failure to comply with the term (i.e. practice)” within s.11(2)(a)?
On the evidence the respondent simply attended another doctor for a period of from six to eight months where she received artificial insemination treatment which failed to result in her pregnancy.
The consequence to her then was not an inability to obtain specialist medical assistance by way of artificial insemination - presumably with AID that had been processed and stored in such a way as to avoid the dangers of HIV infection present when she and her lesbian partner later procured semen from an acquaintance and achieved her successful artificial insemination.
There is no evidence that the cost incurred by the respondent in obtaining alternative medical assistance in artificial insemination procedures was any greater than the cost would have been had the second appellant made his services available to her. The evidence suggests that part of the cost may have been funded by Medicare in any event although this was not addressed in argument.
The financial circumstances of the second appellant on the facts of the case before the Tribunal seem to have little relevance to whether his practice was or was not reasonable.
It is clear however that the considerations contained in s.11(2)(a),(b) and (c) do not amount to an exhaustive statement of the circumstances relevant for consideration in determining whether the second appellant’s practice was not reasonable. As a matter of law the Tribunal was required to look at all the circumstances placed before it relating to the second appellant’s practice. The practice of other medical practitioners providing the same service to the same or different categories of women, whether identical with or different from the practice followed by the second appellant was undoubtedly of some relevance in determining whether or not his practice in limiting the provision of his professional services was reasonable.
In the course of a very detailed (one might almost say repetitious) examination of the basis upon which the second appellant limited the provision of his expert medical services to women seeking artificial insemination he summed up not just his approach but also the approach of other doctors providing the same specialised treatment in the QFG group as follows:-
“So it’s not based on the fact that she is in a lesbian relationship; it’s based on the fact that one of the partners has to have a medical condition rendering them infertile as a couple.”

Later he said in effect that he treated only heterosexual “partners” one of whom had a medical problem which was sufficiently demonstrated if the heterosexual association/activity had lasted for about twelve months but failed to result in a pregnancy.
In determining whether the guidelines adopted by the doctors under the QFG banner and the second appellant in particular were “not reasonable” it is relevant to look at the justification advanced by Dr. J.K. another doctor in the group called to explain the reason for the practice. He said that as far as doctors providing those sorts of services were concerned the National Bio Ethics Committee dealing with “definitions” of infertility had published:-
“The most commonly accepted definition within medicine is the inability of a couple to conceive after twelve months of intercourse without contraception.”

On any reasonable analysis of that definition in my view, it contemplates “infertility” only in the context of persons in a heterosexual relationship.
Dr J.K. then went on to observe:-
“My medical definition would follow that. It’s a very good working guideline and when we practice medicine we practice under the HIC and Medicare and the implication always is that you are treating something which has gone wrong or isn’t working. If someone has blocked tubes we can try and fix them; if someone doesn’t ovulate we can fix that; if someone has a very low or absent or defective sperm count we can fix that. Now in this case with lesbians we’re not - our group as a group doesn’t have any views or any antagonism towards lesbian relationships and perhaps that should be stated in case we’re made to look like a sort of bunch of rednecks. We’re not. But lesbians cannot have children because they have a biological problem. No two females or two males can have children. Now people may have access and say ‘We would like to get hold of some sperm because we want a child’ and that may or may not be a good thing. We’re not there to comment on that but if they come to us we treat infertility and my understanding is it would be wrong, ethically and under HIC and Medicare to be treating someone who does not have a medical problem under that schedule.”

In the course of his evidence that doctor pointed out that in March 1984 the Demack Committee had advised that doctors ought not “use donor sperm on a non-heterosexual couple”. That admonition had been complied with since that time. I infer from the long and detailed evidence given on this topic that that committee report was probably regarded as lending some support to the practice followed although was not the basis of it.
The medical approach to the whole problem was summed up in the following terms:-
“I have given our medical definition which is the way doctors would understand infertility-----. I think it’s an excellent definition of infertility. If you wish to add on to that people who biologically cannot have children should have access to some of the services like - donor sperm - which is the issue here then that’s another thing altogether. But we won’t change our definition of infertility to suit the politics or the politic correctness of the 1990's. Medical infertility is - has a definition and it’s grown up and the way we view it is the way we view it and we can’t change that. That’s just the way you’re programmed, it’s how you’re educated. That’s what medicine is all about.”

He continued on that infertility in a medical sense was -

“It’s unexplained infertility which is infertility which apparently everything is there. The tubes are there, the sperm is there and the eggs are there but someone isn’t getting pregnant. Can we help them get pregnant. Then that’s what we treat yes, that is unexplained infertility -- it means that a couple who potentially can have children, we have done the investigations,-------. It is saying that in the testing that we do now we cannot find a reason for that couple not getting pregnant but they have some fertility and we will treat them.”

In the course of a long cross-examination in which it was suggested that “infertility” may encompass the inability of a lesbian relationship to produce children he observed -
“The heterosexual bit is not put in in any discriminatory way. It is just a biological one so on that basis yes that only a male and a female can have a baby. So far no-one has managed - they probably will - but you will manage to get two eggs to connect, but no-one has managed to do it yet. So until they do the only couple that can have, that can get pregnant if you like is where there is a male and female involved”.

Later on he observed:-

“We’re not saying that lesbians shouldn’t be allowed to get pregnant at all - we’re saying that we are there as a medical group to treat infertility and in doing so we use all the medical background the guidelines that are put down in front of us”.

It is unnecessary to analyse in more depth the evidence given by the second appellant and the other doctor in his group concerning the practice and their views about confining the provision of their services to people displaying what in their view amounted to “medical infertility”. I have summarised I think sufficiently the explanation placed before the Tribunal for the practice which the second appellant followed in refusing the treatment sought by the respondent because she did not display the “medical infertility” which in his view was necessary - whether reasonably or unreasonably - to persuade him to give her the benefit of his expert treatment. Reference was made to a variety of ethical statements and guidelines etc. and consideration was given to whether on their face they applied only to embryonic treatment for infertility problems and not to AID treatment.
While all those matters undoubtedly were worthy of consideration in my view, to the extent that the Tribunal considered only such guidelines and reports etc. to see whether the type of infertility treatment sought by the respondent came within them and concluding that it did not therefore ignored them as irrelevant, it simply failed to give proper consideration to whether the practice adopted by the second appellant and the other doctors associated with him was or was not reasonable. Indeed if no reference at all had been made to any such reports and the doctors had simply expressed the view that it was their practice (albeit obviously not the practice of all doctors providing such services) to treat only those women who came within the “most commonly accepted medical definition of infertility” that would seem to me to require careful consideration as to whether it was so “unreasonable” that it was prohibited under the Act.
Whether or not his practice was reasonable was a matter to be determined having some regard to the objects of the legislation to be gleaned from sections 1-7 of the Preamble and the purpose contained in s.6(1) of the Act itself but not assuming that any differentiation in the provision of service was prima facie unreasonable under s.11(1)(c).
Discrimination in any event can only be categorized as unfair if it comes within the discrimination prohibited under s.7(1) of the Act. The practice of the second appellant could not be categorised as “indirect discrimination” and therefore unfair discrimination unless in fact upon a proper evaluation of the evidence it was “not reasonable” in the circumstances of his cases.
In the course of her written reasons for the orders made the President observed:-
“Dr GK has adopted a definition of infertility which is discriminatory. This narrow definition is not medically necessary nor prescribed by any guidelines by which Dr GK is bound. In any event, as it is in breach of the Anti-Discrimination Act no such guideline, if it existed, could be binding on Dr GK.”

In my view this observation begs the very question to be answered under s.11(1)(c) and (2). It is only if the requirement is found to be not reasonable that indirect discrimination is established. If the requirement viewed in the context of all the relevant circumstances is not found to be unreasonable then of course there is no breach of the Anti-Discrimination Act. Neither “medical necessity” nor “guideline” prescriptions “binding” the second appellant to adopt the practice in issue are determinative of the issue as to whether his practice was “not reasonable” under s.11(1)(c) of the Act.
Whether his practice was or was not reasonable requires a determination based on the circumstances proved before the Tribunal keeping in mind that a practice which might be “reasonable” in some circumstances for some medical practitioners may well be “not reasonable” if adopted by other medical practitioners in other circumstances. In R v Boundary Commission for England Ex parte Foot & Ors [1983] 1 QB 600 in the judgment of the Court of Appeal handed down by Sir John Donaldson MR it was observed at p. 626:-
“In the present case, it has not been submitted that the commission have exceeded or are about to exceed the letter of their statutory powers. The complaint is more that they have unreasonably exercised or failed to exercise the various discretions conferred on them by statute. This submission necessitates a brief consideration of the meaning of ‘reasonableness’ in this context”.

As Professor H.W.R. Wade says in Wade Administrative Law 5th Ed. (1982) p.362:

“The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the Legislature is presumed to have intended.

What then is this objective standard? The locus classicus on the subject is a passage from the judgment of Lord Green MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223, 230 ------------

For present purposes it will suffice to say that the Wednesbury principle would or might in our opinion entitle a court to intervene if it were satisfied that the Commission had misdirected themselves in law or had failed to consider matters which they were bound to consider or had taken into consideration matters which they should not have considered. It would not however entitle it to intervene merely because it considered that left on its own it might (or indeed would) have made different recommendations on the merits; if the provisional conclusions of the Commission are to be attacked on the ground of unreasonableness they must be shown to be conclusions to which no reasonable Commission could have come. The onus falling on any person seeking to attack their recommendations in the courts must thus be a heavy one which by its very nature may be difficult to discharge.”

Although dealing with a distinguishable point to the one in this case the observations made in R v Boundary Commission Ex parte Foot & Ors suggest that in addressing the issue as to whether the practice of the second appellant was “reasonable” or “unreasonable” it is necessary to consider that objectively in the context not merely of community standards and expectations but also of matters and circumstances personal to the second appellant. Such an approach is consistent with the requirements of s. 205.

It is far from clear that a medical practitioner may not lawfully adopt practices in the conduct of his practice and delivery of professional services to comply with ethical constraints or constraints based upon religious or philosophical beliefs or practices which may lawfully differentiate between the circumstances in which he will provide medical services requested by members of the community particularly services which in his professional judgment he believes to be medically unnecessary.
On the facts of this case there is no suggestion that the second appellant acted under any philosophical or religious constraint in declining to provide the medical services which the respondent sought. He adopted the simple and easily understood practice of declining to provide his professional medical services in giving artificial insemination treatment to women if those women had not endeavoured to become pregnant in the normal way by engaging in heterosexual intercourse. Perhaps he proceeded upon the basis that he would provide “artificial insemination” services only to those women who had failed to achieve pregnancy in the “normal” and “inartificial” way.
Can it then be said on those facts that his practice was “not reasonable”?
This is a question not addressed by the Tribunal.
The decision of the Tribunal really is only one on the facts canvassed before it. It will have no binding effect as a precedent although it may lead to efforts in the future to maintain consistency should similar complaints require determination.
In my view the real matter for determination by the Tribunal on the issue of indirect discrimination was whether or not the second appellant’s practice of limiting his treatment to only those women who had failed to achieve pregnancy naturally by engaging in heterosexual intercourse was not reasonable and that required consideration without the distraction of the effect of requiring the form to be filled in and signed by the respondent’s “husband”. Much consideration was given to various reports and ethical statements etc. by health organisations and other such organisations with respect to the provision of artificial and embryonic insemination services. I have reached conclusions on a brief reading of that material contrary to those reached by the President as to the ethical constraints involved in treating infertile “couples” by providing artificial insemination services.
As I read them, those reports etc. are concerned with the “infertility” of a heterosexual couple. They are not concerned at all with the insurmountable difficulties inevitably experienced by exclusively homosexual couples in achieving pregnancy together as a consequence of their sexual activity. I have already dealt with this topic when dealing with direct discrimination and it would be repetitious to deal with it again.

It is relevant however when considering whether the practice of the second appellant was reasonable (and the onus was on him to lead evidence to support the conclusion that it was) to have regard to such reports and ethical rulings etc. They are all “circumstances” to be considered when determining whether the second appellant demonstrated that the practice he adopted in conducting his profession was “reasonable”.
The question is not whether his practice was “necessary” or “the most desirable” or in conformity with the perceived “purposes of the Act”. The question is whether it was “reasonable”. “Reasonable” is defined in the Shorter Oxford English Dictionary as -
“1.Endowed with reason;
2.Having sound judgment;
3.Requiring the use of reason;
4.Agreeable to reason, not irrational, absurd or ridiculous;
5.Not going beyond the limit assigned by reason, not extravagant or excessive;
moderate.”

The Tribunal has expressly found that the second appellant’s refusal to provide his services to the respondent “was not motivated by malice or any desire to discriminate against JM or other women in her situation.” This of course is consistent with an absence of direct discrimination which is borne out by both the evidence and the other specific findings of fact. However, more importantly it is also relevant when considering whether on the issue of indirect discrimination the practice of the second appellant was in the circumstances reasonable.
A matter of concern in this case is the observation towards the end of the decision that:-
“This was a case of public interest dealing with an area of discrimination which has not previously been the subject of a decision in the Tribunal.”

To the extent that the community generally and members of the medical profession specialising in the provision of services of the sort provided by the second appellant in particular may regard the decision as a precedent of some sort, it is my view that the issue of indirect discrimination should go back to the Tribunal for further consideration.
I propose therefore to set aside the finding of the Tribunal that upon the material before it the second appellant was guilty of direct discrimination.
I propose also to set aside the decision of the Tribunal that by reason of the second appellant’s requirement that the respondent have completed the form provided by her “husband” the second appellant was guilty of indirect discrimination.
I propose to direct that the Tribunal consider whether the practice of the second appellant in providing his specialised medical services of artificial insemination only to women who were considered “infertile” because they had failed to achieve pregnancy in the normal way by engaging in heterosexual intercourse over a period of twelve months prior to seeking treatment from him was not reasonable and so amounted to indirect discrimination pursuant to s.11 of the Anti-Discrimination Act.
There have been several cases that give assistance in correctly approaching this task.
Dealing with the question of reasonableness under s.11(1) of the Act I refer to Secretary, Department of Foreign Affairs and Trade v Styles & Anor (1989) 23FCR 251 at p.263 where it was observed in the judgment of Bowen CJ and Gummow J at p. 263:-
“The third element in the definition of sex discrimination in s.5(2) is that the requirement or condition be ‘not reasonable having regard to the circumstances of the case’. As Wilcox J held ((1989) 84 ALR 408 at 429) the test of reasonableness is less demanding than one of necessity, but more demanding than a test of convenience. We agree. The criterion is an objective one which requires to weigh the nature and extent of the discriminatory effect, on the one hand, against the reasons advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account.

However, in our view, it is unnecessary to decide whether “reasonable” differs from “justifiable”. ---

Wilcox J held in the present case that the requirement or condition that applicants be Grade A2 was not reasonable in the circumstances of the case -- His Honour said that the arguments put to support the requirement or condition depended essentially on two factors: expense and tidiness of administration.”

At p.264 they continued:

“In speaking of reasonableness -- one is not necessarily trying to assess states of affairs and their consequences. The task is rather to assess what reasonableness requires of particular people, which depends essentially on what responsibilities they have -- It is thus not necessary to consider the extent of any staff resentment or industrial disharmony which might arise from alternative selection policies, although any evidence of this would further strengthen the appellant’s case.”

In Waters v Public Transport Corporation (1992) 173 CLR 349 when considering a statute in

pari materia Dawson and Toohey JJ at p. 395 observed:

“Reasonableness for the purposes of both s.17(5)(c) and s.29(2) is a question of fact for the Board to determine but it can only do so by weighing all the relevant factors. What is relevant will differ from case to case, but clearly in the present case the ability of the respondent to meet the cost, both in financial terms and in terms of efficiency, of accommodating the needs of impaired persons who use trams was relevant in relation to the reasonableness of the requirements or conditions which it imposed and in relation to the reasonableness of the special manner in which the appellants required the respondent to perform its service. Another relevant factor would be the availability of alternative methods which would achieve the objectives of the Cabinet resolution but in a less discriminatory way. Other factors which might be relevant are the maintenance of good industrial relations, the observance of health and safety requirements, the existence of competitors and the like.”

Their Honours then referred to the observations in Styles to which I have already referred.

In Commonwealth of Australia v Human Rights and Equal Opportunity Commission

(1995) 63 FCR 74 the Federal Court on appeal considered whether there had been “indirect discrimination” which was not reasonable where different allowances were made to members of the Royal Australian Air Force depending on whether or not they had a family to support.

The Court adopted the observations to which I have referred in Styles and at p.84 Lockhart J observed:-
“In my opinion, the Commission did not consider all the relevant circumstances of this case, in particular, the matters to which reference has just been made. Nor did it make findings about the nature, extent and effect of the alleged discriminatory treatment, an exercise which it was required to do in accordance with Styles and Waters.

Taking all these matters into account, in my view it was impermissible for the Commission to find that the condition the subject of the challenge in the present proceedings was unreasonable. It was not unreasonable for the Commonwealth to decide that, in circumstances where on-base accommodation to Mr Dopking as a member without a family, it would not, by granting him a further benefit in the form of HPSEA, subsidise the choice of lifestyle made by him and involving the purchase of a home of his own off-base, in preference to the package of entitlements comprised in the service accommodation on-base.
Views in the community will differ about whether people generally like or approve of the condition; but it is a quite different question to say that the condition is not reasonable having regard to the circumstances of the case.”

At p.86 Shepherd J observed:

“The contest between the parties is whether the subject Determination required Mr Dopking to comply with a requirement or condition which was not reasonable having regard to the circumstances of the case --

To me the critical question is whether it was open to the Commission in the light of the totality of the material before it to conclude that the Determination was not reasonable ---

The basis for the discrimination which results from its application only to married members is, in the circumstances of the case, within the bounds of objective reasonableness. In other words the point of distinction which has been adopted has a logical and understandable basis. There may have been other ways of approaching the problem; views may differ about the matter. But in my opinion, there was nothing unreasonable in adopting the point of distinction applied by those responsible for the Determination. With respect, I do not consider any other view to be open. I am thus unable to see how it can be said that the adoption of the policy to which the Determination gives effect is unreasonable having regard to the relevant circumstances.”

At p. 96 Lindgren J observed:-

“Section 6(2)(b)’s stipulation that the requirement or condition with which the discriminator requires the aggrieved person to comply must be not reasonable having regard to the circumstances of the case’, is to be applied according to its terms and free of any notion that indirect discrimination for the purposes of the Act prima facie exists. Rather, there is no indirect discrimination for the purposes of the Act unless unreasonableness exists--”

In Australian Medical Council v Wilson & Ors (1995) 137 ALR 653 the Federal Court again

considered the meaning of “reasonable” in discrimination legislation. At p. 667 Heerey J.

observed-

“All the foregoing confirms the inappropriateness of a single decision-maker, be it a specialist administrative body like the Commission, or this court, deciding in a forensic setting what is or is not in absolute terms the correct - and therefore ‘reasonable’ - decision. The ‘political science pathology’ of such a decision dictates reference to economic, political and commercial factors. ---

In any case, ‘reasonable’ in this context speaks of a term, condition or requirement that is dictated by reason and rationality - not necessarily one with which all people or even most people agree. In Dopking Sheppard J emphasised what is in my respectful opinion an important aspect of reasonableness in an indirect discrimination context.’

In the same case at p.679 Sackville J observed:

“First, although no case has yet authoritatively determined the relationship between s.9(1) and s.9(1A) of the RD Act, the balance of opinion in relation to comparable legislation favours the view that the two subsections are mutually exclusive in their operation. If this is correct, s.9(1) is confined to so-called ‘direct discrimination’, while s.9(1A) is concerned exclusively with ‘indirect discrimination’.”

His Honour drew support for this conclusion from observations in both Banovic and Waters and at p. 684 concurred with the view of Heerey that the Commission in that case was in error in finding the quota of which complaint was made “was not reasonable in the circumstances of the case.”

With reference to what some might think of community concern as to the welfare (both financial and otherwise) of children conceived as a result of artificial insemination procedures applied to one partner of a lesbian relationship I refer to W v G (1996) 20 Fam. LR 49 where Hodgson J. recently called in aid principles of promissory estoppel to require the former lesbian partner of a biological mother who conceived a child during their cohabitation after artificial insemination by a known donor to contribute towards the maintenance of that child after the lesbian relationship was discontinued. There have been a number of cases where courts have attempted to give support and protection to children born by one partner in a lesbian relationship. It is unnecessary to refer to those cases which are summarised at p.243-244 of “Alternative Law Journal” No. 5 October 1996.
I refer only briefly to these matters as possibly relevant when considering whether a requirement that a woman seeking artificial insemination should demonstrate that a heterosexual partner with whom she cohabits consents to that procedure. It was conceded that he would be obliged to maintain a child deemed to be “his child”, but if no similar obligations would fall upon the lesbian partner, that may be one of the circumstances to consider in determining whether the requirement was “reasonable”. Of course if the lesbian partner of a woman seeking AID treatment made herself responsible to maintain and support the child in the event of the biological mother becoming unable to do so by death or some other event, that might also be a relevant consideration. It would seem to me that the considerations in W v G (supra) would be relevant in determining whether the requirement of the second appellant was “reasonable”. It is nothing to the point that children might be born of heterosexual unions, one or both of the partners of which declined to meet their obligations to the child or children produced. Quite apart from a medical practitioner’s desire to restrict his professional services to persons who had unsuccessfully attempted to conceive in a normal biological way, which is no doubt a matter personal to him, as a matter of policy the probable lifestyle and support available to a child conceived by a woman in an exclusively lesbian relationship as a consequence of the provision of his specialised medical services is also a matter open for consideration by the Tribunal if raised.
Finally the first appellant appeals against the orders made against it. In the written reasons given, the basis of that order emerges clearly:-
“Dr GK is liable individually and QFG is vicariously liable under s. 133 of the Act for his actions when he was apparently acting as their agent. There is no suggestion that QFG had taken any reasonable steps to prevent a contravention of the Act.”

The facts upon which this decision was made are stated shortly.
“On 19 May 1994, JM contacted QFG, which is a group of doctors specialising in infertility. The entity represented by the initials ‘QFG’ is a company, QFG Pty Ltd. Dr GK is one of the directors of that company. While QFG is a service company which employs no medical staff, it was established for the provision of medical scientific services. The owners of the company are all doctors who carry on their practices individually and offer services for the treatment of infertility. QFG holds itself out as a company operating in the area of infertility services or artificial reproductive technology.

JM spoke to a co-ordinator at QFG and told her that she was not married -- etc. The co-ordinator offered to send out information about the services offered by QFG. The co-ordinator sent her information, including information on support and counselling, and a letter recommending that she contact either Dr GK or Dr DK (both of whom were directors of QFG and on the letterhead) on the basis that those doctors would accept the Medicare fee for their services. The doctors therefore while practising as individuals were also apparently acting as agents for QFG.”
Under s.4 of the Act “agent” is defined:-

“‘Agent’” means a person who has actual, implied or ostensible authority to act on behalf of another”.

The provisions of the Act relating to vicarious liability are found in s. 133 which provides:
“133(1) If any of a person’s, workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent as the case may be are jointly and severally civilly liable for the contravention and a proceeding under the Act may be taken against either or both;

(2) It is a defence to a proceeding for a contravention of the Act arising under
sub-section (1) if the respondent proves on the balance of probabilities that the
respondent took reasonable steps to prevent the worker or agent contravening
the Act”

It is clear from the terms of the reasons for the orders under appeal that the President had regard to those statutory provisions in determining that in refusing his medical services to the respondent the second appellant was acting as agent for the first appellant.
The first observation to be made is that only two documents were tendered to support the respondent’s assertion that the service company QFG Pty Ltd was vicariously liable for any breach of the Anti-Discrimination Act by the second appellant. The first was a letter written by the “co-ordinator” employed by the first appellant to the respondent enclosing information on support and counselling services available from the “Q-F-G-”.
Subsequently when the respondent visited the second appellant for consultation, he handed her the second document, a form headed “The Q-F-G-” on the top of which was printed the name of various doctors, the names of “scientific consultants” and a telephone contact number for “IVF Secretary Support Sister”.
Nowhere in any of that material was the name QFG Pty Ltd even mentioned.
From examination of the documents it is impossible to deduce even the existence of such a corporation. Perusal of the documents and their contents does not suggest that QFG Pty Ltd was even a service company providing administrative and other services to various doctors and others who constituted the director, clinicians, scientific consultants and support sister of “The Q-F-G-”.
The evidence before the Tribunal at its strongest for the respondent was that QFG Pty Ltd was a company set up to assist in the provisions of administrative support services for a group of doctors providing professional medical services on the basis of the normal personal doctor-patient relationship.
The evidence indicated that it employed “a co-ordinator” to refer persons seeking services to one or more of the doctors who were members of the group. The evidence indicates that upon introduction the doctors dealt with their patients on a personal and individual doctor/patient basis and that fees for the services rendered were charged by the doctors independently of the service company and were payable by the patients to them - not to the company.
On the facts of this case, apart from the co-ordinator of the company making the first appointment for the respondent with the second appellant - presumably one of the “services” provided to the doctors - there was no further association between the company and the respondent from the time she first inquired by telephone of the availability of services and the time she complained of unfair discrimination.
On the whole of the evidence and indeed upon the finding of the Tribunal it could only have been the second appellant’s alleged personal breach of the Anti-Discrimination Act when he was said to be “apparently acting as” the agent of his service company that led to the company being held “vicariously liable” under s.133 of the Act.
QFG Pty Ltd was held to be the “person” within the contemplation of s.133(1) and the second appellant to be its “agent”. Further, the second appellant’s breach was held to have occurred “while acting as agent” of his service company.
For the respondent it was contended that the finding that the second appellant “was apparently acting as” the agent of his service company is consistent with him having “ostensible authority” to act on behalf of his service company in the provision of specialist medical artificial insemination services.
In my judgment the evidence before the Tribunal as a matter of law was incapable of supporting the conclusion that in consulting with the respondent preparatory to providing her with his specialist artificial insemination services the second appellant was “acting as agent” of his service company - even acting as its “ostensible agent” for that purpose. There is nothing to suggest that the respondent was even aware of the existence of the company. All the documentary material that she had received from the co-ordinator of the company and from the second appellant during the first consultation she had with him on its face is equally consistent with the provision of the services she sought by one member of an unincorporated group of medical practitioners practising at the clinic. There was nothing even to suggest on that material the existence of a body or person providing services of the sort desired by the respondent independently of or through the agency of the doctors and specialists whose names appeared on those documents.

In my view it is nothing to the point when considering questions of ostensible agency that the service company may have been responsible for the preparation of the documents provided by the co-ordinator of the services (apparently employed by the service company) and the second appellant in the course of consultation with the respondent. The plain fact is there is no evidence whatever to suggest that the second appellant was in fact acting as the agent of the service company when providing his medical services to the respondent and there is no evidence that the respondent was aware of the existence of the service company as an entity distinct from and independent of each of the doctors and perhaps others for whom it apparently provided administrative services.
In my view the evidence is simply insufficient to support the decision that the first appellant as “a person” was vicariously liable for any prohibited discrimination on the part of the second appellant on the ground that discrimination, if any, occurred while he was “apparently acting as their agent” (sic “its agent”) in the provision of medical services.
I would therefore set aside the order made against the first appellant.
When the appeal came on for hearing an application was made for leave to amend the Notice of Appeal if necessary to permit the appellants to raise the applicability of s.104 of the Act which is one of the “general exemptions” under Part 5 of the Act. Section 104 provides:
“104A person may do an act to benefit the members of a group of people with an attribute for whose welfare the act was designed if the purpose of the act is not inconsistent with this Act -

Example 1 -
It is not unlawful for a bus operator to give travel concessions to pensioners or to give priority in seating to people who are pregnant or frail.

Example 2

It is not unlawful to restrict special accommodation to women who have been victims of domestic violence or to frail older people.”

Example 3

It is not unlawful to establish a high security patrolled car park exclusively for women that would reduce the likelihood of physical attacks.”

The respondent contends that this was not a matter that was clearly raised and

considered by the Tribunal. That seems to be correct because in her decision the President did not refer at all to s.104 of the Act.

Had I not been persuaded that the Tribunal ought reconsider the question of indirect discrimination under s.11 in the circumstances I would be disinclined to send the matter back to the Tribunal for its consideration of the applicability of s.104.
An appeal to this Court is not by way of re-hearing. While undoubtedly the Court has wide powers under s.218(c) to remit the matter to the Tribunal for further consideration or re-hearing it would seldom be the case that such power would be exercised to permit a point not really canvassed before the Tribunal prior to appeal to be canvassed and determined by it subsequent to an appeal resulting in a remission for rehearing.
Were I not persuaded that the Tribunal ought rehear the matter or at least further consider the question of indirect discrimination under s.11(1) for the reasons I have given at some length I would be disinclined to accede to the appellant’s requests.
However on my reading of s.104 and particularly the content of the examples given in that section, it would be convenient and perhaps useful for the Tribunal when considering whether the practice of the second appellant “was not reasonable” under s.11(1)(c) of the Act to consider also whether his practice is supportable under s.104 being capable of characterisation as one “to benefit the members of a group of people with an attribute for whose welfare the Act was designed” - the attribute being the lawful sexual activity of women incapable of achieving pregnancy by biologically normal heterosexual intercourse or whether the selection of that group of women to the exclusion of all others “is inconsistent with” the provisions of the Act.
I have concluded therefore that I ought in the interests of having this matter raised by the appellants determined at a rehearing that must occur in any event, grant leave to the second appellant to amend the Notice of Appeal to raise s.104 and then remit the matter back to the Tribunal for further hearing and consideration of the application and effect of s.104 of the Act on the facts determined by the Tribunal.
Of course both the respondent and the second appellant should be permitted to adduce further evidence if they so desire upon the further hearing.
In conclusion therefore I make the following orders:-

I allow the first appellant’s appeal and set aside the order of the Tribunal made against it;
I allow the appeal of the second appellant to the extent of setting aside the finding of direct discrimination against him;
I allow the appeal of the second appellant to the extent of setting aside the finding that his requirement that the respondent have completed the consent form which was Exhibit “JM2" upon the hearing constituted indirect discrimination;
I remit the matter to the Tribunal either for further hearing and consideration or re-hearing at the option of the Tribunal of the following matters:-
(i)Whether the practice of the second appellant in providing his specialised medical services of artificial insemination only to women considered medically infertile because they had failed to achieve pregnancy in the normal way by engaging in heterosexual intercourse over a period of twelve months prior to seeking treatment from him was not reasonable and so amounted to indirect discrimination against women in an exclusive homosexual relationship pursuant to s.11(1) of the Anti-Discrimination Act; and
(ii)Whether the said practice of the second appellant was not unlawful because it came within the exemption contained in s.104 of the Anti-Discrimination Act 1991;
The second appellant and the respondent have liberty to rely upon all the evidence already called before the Tribunal and also be at liberty to call such further evidence relevant to the matters to be further heard or considered, or at the election of the Tribunal to be re-heard, as they may think fit.
I will take further submissions on the question of the first appellant’s costs of the appeal and the hearing before the Tribunal.

[1997] QSC 206

24 October 1997