QY & QZ v Sydney South West Area Health Service (EOD)
[2010] NSWADTAP 48
•29 June 2010
Appeal Panel - Internal
CITATION: QY & QZ v Sydney South West Area Health Service (EOD) [2010] NSWADTAP 48 PARTIES: APPELLANTS
RESPONDENT
QY & QZ
Sydney South West Area Health ServiceFILE NUMBER: 109003 HEARING DATES: 23 April 2010 SUBMISSIONS CLOSED: 23 April 2010
DATE OF DECISION:
29 June 2010BEFORE: O'Connor K - DCJ (President); Patten D - Deputy President; Field B - Non-Judicial Member CATCHWORDS: Equal Opportunity – Complaint of discrimination by reason of being an ‘associate’ of a person with protected characteristic – Construction – Person with protected characteristic need not be a living person at time of conduct put in issue – Anti-Discrimination Act 1977, s 4 (‘associate’), s 49B DECISION UNDER APPEAL: QY & QZ v Sydney South West Area Health Service, unreported FILE NUMBER UNDER APPEAL: 091077 DATE OF DECISION UNDER APPEAL: 12/15/2009 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Anti-Discrimination Amendment Bill 1994
Interpretation Act 1987CASES CITED: Commonwealth of Australia v Wood (2006) 148 FCR 276
Cuna Mutual Group Ltd v Bryant (2000) 102 FCR 270
IW v City of Perth (1997) 191 CLR 1
O'Sullivan v Pehm [2010] NSWADT 57
Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841
QT v State of New South Wales [2010] NSWADT 68
QT v Sydney South West Area Health Service [2010] NSWADT 74
QY and QZ v State of New South Wales [2010] NSWADT 73
Repatriation Commission v Vietnam Veterans Association (2000) 48 NSWLR 548
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290REPRESENTATION: APPELLANTS
RESPONDENT
I Chatterjee, solicitor, HALC
L Clegg, counsel / Gild Insurance Litigation Pty LtdORDERS: 1. Appeal upheld.
2. Order made by the Tribunal summarily dismissing the complaint set aside.
3. Matter remitted to the Tribunal for consideration of outstanding issues.
1 PRESIDENT: Section 48B of the Anti-Discrimination Act 1977 (AD Act) gives protection to persons who suffer discrimination on account of their having as a ‘relative’ or ‘associate’ a person with a disability. Similar protections are given to persons who have as relatives or associates persons with other types of protected attributes (e.g. gender, race, sexual orientation).
2 In this case the appellants have complained of discrimination by the coronial services managed by the respondent agency, in this instance the Department of Forensic Medicine (DOFM) attached to the Coroner’s Court. They say that they suffered unlawful discrimination because of the condition in which the body of their deceased associate was returned to them after forensic pathology. (It is accepted that the deceased person, when living, was an associate of the complainants within the meaning of the AD Act.)
3 The respondent’s position is that conduct can not be put in issue where the associate is deceased at the time of the conduct. Before the Tribunal below, the respondent contested jurisdiction on that basis. The main argument was that the word ‘person’ in the AD Act is consistently used to refer to a living as distinct from deceased person. The Tribunal ruled, upholding the respondent’s submission, that the ‘relative’/‘associate’ discrimination protections only allowed conduct to be put in issue if the relative or associate with the protected characteristic (here disability) is a living person at the time of the conduct put in issue. The complainants now appeal.
The Appeal
4 The appeal is made pursuant to s 115 of the AD Act. As a summary dismissal decision is deemed to be interlocutory, the Appeal Panel’s leave is required, and was granted (see Administrative Decisions Tribunal Act 1997 (ADT Act), s 24A, s 113(2A). An appeal may be made on a question of law, and, with leave, may extend to the merits (ADT Act, s 113).
Background
5 In the present case (no 091077 referred 7 July 2009), the aggrieved persons are Ms QY and Mr QZ. Ms QY is a long-term friend of the deceased person. Mr QZ was his partner. The deceased person, Mr B, was HIV positive at the time of his death on 18 November 2007, and died by suicide. As a suspicious death, the Coroner took control of the body. The Coroner directed a full post-mortem. DOFM did not reconstruct the body before return to the next-of-kin, in line with an internal occupational health and safety policy that did not allow reconstruction in the case of bodies with certain conditions, one of them being HIV positive status.
6 DOFM released the body to a private undertaker. The undertaker was not prevented by law from proceeding to reconstruct. According to the complainants, the undertaker advised them that due to the state in which the body was received the undertaker was not practically able to reconstruct it. The upshot, they say, was that they were forced to reveal to members of the family of the deceased who were previously unaware of his condition, the reason for Mr B’s death, and why the body had not been reconstructed. They wish to see a change in the policy and practice at the morgue. The respondent’s basic position is that it dealt with the body in accordance with official policy, and it was proper to do so.
7 In this case the aggrieved persons claim that they were treated differently, as compared to next of kin whose relatives die free of disability, in the way the mortuary dealt with the body being returned to them for burial.
8 The President of the Anti-Discrimination Board referred the complaint to the Tribunal as it could not be resolved by conciliation. The respondent then applied under s 102 of the ADT Act to the Tribunal for summary dismissal of the complaint on the ground that it disclosed no contravention of the AD Act (s 102 read in conjunction with s 92(1)(a)(ii)). The Tribunal upheld the application: oral reasons delivered 15 December 2009. It has since dismissed the complaint as it relates to the State Coroner: see QY and QZ v State of New South Wales [2010] NSWADT 73 (19 March 2010).
9 In another case (no. 091072 referred 30 June 2009), raising similar issues, the Tribunal has also summarily dismissed the complaint against both respondents: see QT v State of New South Wales [2010] NSWADT 68 (12 March 2010) and QT v Sydney South West Area Health Service [2010] NSWADT 74 (20 March 2010).
Statutory Background
10 The relative/associate discrimination provisions were introduced generally into the AD Act by amendments made in 1994. In introducing the amendments, the government said that the intention of the amendments was to ‘extend the coverage of the [Act] to people who experience discrimination because of their relationship or association with another person who is a member of a group protected by one of the existing grounds of the Act’ (Second Reading Speech, Anti-Discrimination Amendment Bill 1994, 12 May 1994, Hansard, LA, 2467). They apply to discrimination on the ground of race (s 7), transgender (s 38B), age (s 49ZYA), sex (s 24), marital or domestic status (s 39), homosexuality (s 49ZG), and disability (s 49B). The one exception is discrimination on the ground of carer’s responsibilities.
Relevant Provisions
11 The provisions relevant to this case are:
49B What constitutes discrimination on the ground of disability
(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s disability if it is done on the ground of the person’s disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.
(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability:
(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or
(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact,
is taken to be a characteristic that appertains generally to persons who have that disability.
(4) A reference in this section to persons who have a disability (“the particular disability”) is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.
49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
Section 4 (definitions)
associate of a person means:
(a) any person with whom the person associates, whether socially or in business or commerce, or otherwise, and
(b) any person who is wholly or mainly dependent on, or a member of the household of, the person.
relative of a person means any person to whom the person is related by blood, marriage, affinity or adoption, or the de facto partner of the person.
12 The Tribunal in its reasons also referred to the following provisions:
49A Disability includes past, future and presumed disability
A reference in this Part to a person’s disability is a reference to a disability:
(a) that a person has, or
(b) that a person is thought to have (whether or not the person in fact has the disability), or
(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or
(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).
49C What constitutes unjustifiable hardship
In determining what constitutes unjustifiable hardship for the purposes of this Part, all relevant circumstances of the particular case are to be taken into account including:
(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned, and
(b) the effect of the disability of a person concerned, and
(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship.
Tribunal Decision
13 The respondent applied to the Tribunal for the proceedings to be struck out on two bases: one, that the provisions properly construed only allowed a complaint to be brought in relation to conduct perpetrated on a living relative or associate; and two, that the conduct did not occur in the course of providing services. The second argument referred to the mandatory nature of the coronial system.
14 The respondent’s submissions to the Tribunal (10 December 2009) on the first ground concluded:
If a deceased person does not possess a right to initiate a complaint, and if a complaint available to a relative or associate under the Act is inextricably linked to the existence of a person who possesses the relevant characteristic protected by the AD Act, then … the ADT does not possess the power (or jurisdiction) to inquire into the complaint.
15 The complainants submitted that the protections given to aggrieved persons extend to conduct affecting living relatives and associates of a deceased person where the conduct is connected to that person’s disability.
16 The Tribunal upheld the respondent’s objection on the first ground. It accepted the submission that the issue was one of jurisdictional fact. The Tribunal held that the jurisdictional fact not proven was the existence of a living relative or associate with a disability at the time of the alleged discriminatory conduct. The Tribunal did not address the second ground.
17 As the Tribunal’s reasons are not otherwise readily available, they are appended to this decision.
Summary Dismissal and Jurisdictional Fact
18 This Tribunal in dealing with summary dismissal applications in the equal opportunity jurisdiction, as is noted in a recent decision, has ‘adopted a careful approach to the exercise of the power [of summary dismissal], emphasising that it should be exercised with exceptional caution and only if the circumstances clearly warrant such action’: O'Sullivan v Pehm [2010] NSWADT 57 at [51]. It would seem in this case that the respondent, mindful of the caution that attaches to strike-out applications, sought to turn the question into one of jurisdictional fact. In my view it was enough in this case to approach the matter on the usual basis having regard to the usual principles. If a meaning upon which the plaintiff’s case depends is plainly not arguable, then the proceedings should be dismissed. If it seems arguable, the Tribunal retains the power to strike out the proceedings at any stage once the proper interpretation becomes clearer.
19 In Commonwealth of Australia v Wood (2006) 148 FCR 276, mentioned in the course of the Tribunal’s reasons set out earlier, the Federal Court (Heerey J) dealt with statutory construction arguments of a somewhat similar kind to the present. It treated the issues as ones of construction, and applied orthodox summary dismissal principles. It did not refer to them as raising jurisdictional facts. As I see it, it is more usual, especially when dealing with civil claims, to describe clear preconditions to the exercise of jurisdiction as jurisdictional facts (e.g. limitation periods, compliance with mandatory procedural requirements).
Consideration
20 ‘[T]he process of construction must always begin by examining the context of the provision that is being construed’: Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355; 153 ALR 490; 72 ALJR 841 at [69] per McHugh, Gummow, Kirby and Hayne JJ. Later at [78] their Honours said:
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
21 In my opinion, in ordinary speech it is quite usual for people when speaking of their relatives to refer to both the living and the dead. Similarly, it is usual for people to speak of ‘associates’ such as persons they hold dear but to whom they are not related in the strict sense (by blood or marriage and the like) in a way that is inclusive of both the living and dead.
22 The Tribunal adopted the submission that the word ‘person’ must be given the meaning of ‘living person’ wherever it appears in the AD Act. In that regard it referred to the Interpretation Act’s definition of ‘person’ as an ‘individual …’ (Interpretation Act 1987, s 21(1)) as referring to a presently-living person. The dictionary gives ‘person’ as the meaning for ‘individual’, and the main definitions of ‘person’ include ‘human being’, ‘a self conscious or rational being’ (in Philosophy), see Macquarie Dictionary, 4th ed. 2005. The Interpretation Act ‘applies to all Acts and instruments … except in so far as the contrary intention appears in this Act or in the Act or instrument concerned’: s 5(1) and (2).
23 It is also the case that NSW’s legislation often actively distinguishes between living persons and deceased persons. That drafting practice supports the ordinary interpretation of the word ‘person’ as referring to a living person. For examples of such a distinction, see the Human Tissue Act 1983, the Succession Act 2006, the Probate and Administration Act 1898 and the Motor Accidents Compensation Act 1999.
24 The immediate question in this case is the appropriate interpretation of the word ‘person’ as it is used in the definition of ‘associate’. The definition of ‘associate’ is broad and covers anyone with whom the aggrieved person ‘associates, whether socially or in business or otherwise’. The aggrieved person may bring a complaint under s 48B if a perpetrator discriminates against him or her on the ground of the disability of an associate. In this instance the word ‘person’ can, it seems to me, be more broadly interpreted so as to cover persons whether living or dead. The result is that the definition of associate is to be read as ‘associate of a person means: any person, whether living or dead, with whom the person associates, or associated with when that person was alive’, etc. A similar construction would apply to the word ‘relative’. In my view, this approach is consistent with the social and policy objective of this aspect of the legislation.
25 Two examples bear out, I think, the sense of this approach. Say a white man approaches a real estate agent to rent a house, and is told that the house is not available because the white man once had as a social friend a black woman. It would seem odd if the right to complain was lost because the woman was now dead. Similarly, to take an example similar to the present case, say a funeral director (‘the perpetrator’ in the language of the Act) denies a widow a usual mortuary and burial procedure on the basis that her deceased husband’s body is diseased. If the strict view of the word ‘person’ pressed in this case was to be applied, she would not be able to proceed. Yet in the community the wife of a deceased husband, who has not remarried, is commonly described by the term ‘widow’, a word which carries with it the acceptance of a relationship between a living person and another person, now deceased.
26 Consequently I would give the word ‘person’, as it is used in the ‘relative/associate’ provisions of the Act, a broad meaning, in line with the complainants’ submissions.
27 I agree with the further reasons given by Deputy President Patten, and the orders proposed by him.
DEPUTY PRESIDENT PATTEN: I respectfully agree with the President’s summary of facts and with his reasons. His Honour also sets out the relevant law. I would however add some comments of my own.
28 The argument put on the part of the complainants is that they fall within s 49B in that the respondent treated them as associates of B less favourably because of the disability of B than it would have treated associates of B if he had not suffered a disability. This argument of course assumes that the respondent was engaged in providing the service of body reconstruction which the complainants sought. Moreover, the argument treats as irrelevant the fact that B was dead at the time the alleged discrimination took place.
29 In her reasons, the Deputy President held in effect that as a matter of interpretation s 49B requires that the person suffering the relevant disability must be living at the time of the discrimination. She referred to definitions in the Interpretation Act 1987 of ‘person’ and ‘individual’ and to dictionary definitions of ‘natural person’. She also referred to the remarks of Wilcox J in Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290 at 296-297 and to observations of Branson J in Cuna Mutual Group Ltd v Bryant (2000) 102 FCR 270.
30 However, the anti-discrimination cases referred to fail to meet the circumstances of this case in that they focus on the rights of the person with a disability or his or her estate.
31 Of greater relevance here are cases of more general application to the effect that remedial legislation should be given a wide meaning. For instance, in IW v City of Perth (1997) 191 CLR 1 (which happened to be a discrimination on the ground of impairment case), Kirby J at p 58 said (omitting citations):
The purpose of anti-discrimination legislation, such as the Act, is to ensure that, within the areas prescribed by Parliament, equals are treated equally and human rights are not violated by reference to inappropriate or irrelevant distinctions. Especially where important human rights are concerned, protective and remedial legislation should not be construed narrowly lest courts become the undoers and destroyers of the benefits and remedies provided by such legislation. Courts will not unduly stretch the language of such legislation. But they will be very slow to find that the effect of something which is discriminatory falls outside the ambit of the legislation, given its purpose. This is especially so where a complainant, who can establish unequal treatment, falls within the category of persons for whom anti-discrimination legislation has apparently been enacted. It is legitimate in giving effect to such legislation, to keep in mind its broad purposes and, to the full extent that the text permits, to ensure that the Act achieves its objectives and is not held to have misfired. To the extent that, in legislation such as the Act, courts adopt narrow or pernickety approaches, they will force parliaments into expressing their purposes in language of even more detail and complexity. This will increase the burden and costs of litigation. It will obscure the broad objectives of such statutes and frustrate their achievement.
32 Although in IW v City of Perth Kirby J dissented from the majority view as to the outcome of the case, his remarks quoted above were uncontroversial and amply supported by authority.
33 Part 4A of the Act was introduced into it in 1994. Inter alia its purpose as stated by the Attorney General (Hon J P Hannaford) in his second reading speech included:
Other changes to the definitions section of the Act are consequential or clarifying in nature, apart from the insertion of definitions of the terms "associate" and "relative" in section 4. The purpose of the new definitions is to extend the coverage of the Anti-Discrimination Act to people who experience discrimination because of their relationship or association with another person who is a member of a group protected by one of the existing grounds of the Act. The new definitions will allow a relative or associate of a person of any particular race, sex or marital status, or relatives or associates of persons with a disability or of persons who are homosexual, to also have the standing to lodge a complaint.
This is an important extension as the Anti-Discrimination Board has, for example, received complaints from individuals who are associated with or accompanying people of particular races and are discriminated against because of that fact in the provision of education, goods and services and accommodation. The proposed amendments were also recommended by the Anti-Discrimination Board in its 1992 report on HIV-AIDS discrimination entitled "The Other Epidemic".
34 Although the word ‘person’ would commonly refer to a living human being, dictionaries give the expression wide connotation. In context in this case in my opinion the meaning without doing violence to the legislation could include the disability of a deceased person where that disability gives rise to unlawful discrimination perpetrated upon living victims. They after all are the intended beneficiaries of the legislation. Where, as here, more than one interpretation is available a purposive approach is applicable. See, for example, the remarks of Spigelman CJ in Repatriation Commission v Vietnam Veterans Association (2000) 48 NSWLR 548 at 579-578.
35 It seems to me unlikely that the legislature intended that rights given to a person discriminated against because of his or her association with another person might be terminated because of that other person’s death even though the discrimination continued. This case represents but a small extension of that example. While it is true that the discrimination actually arose after death, B was HIV positive before death and his body was HIV positive after death. Relevantly, in my opinion, the complainants were associates of a person with a disability within s 49B and (if the respondent was providing services) were entitled to be treated no less favourably than associates of a deceased person without a disability. By saying this it is not suggested that B himself or his estate was unlawfully discriminated against. Assuming that the respondent was providing services it was the complainants and only the complainants who suffered discrimination.
36 It follows that in respect of the matter argued before the Appeal Panel, the appeal should be allowed and the Order made by the Tribunal set aside. However it will be necessary for the ‘provision of services’ issue to be decided and for that purpose the matter should be remitted.
37 I would propose the following Orders:
1. Appeal upheld.
2. Order made by the Tribunal summarily dismissing the complaint set aside.
3. Matter remitted to the Tribunal for consideration of outstanding issues.
38 NON-JUDICIAL MEMBER FIELD: As the issues are essentially ones of law, I do not wish to add to the opinions expressed by my colleagues.
Orders
39 The Appeal Panel makes the following Orders:
1. Appeal upheld.
2. Order made by the Tribunal summarily dismissing the complaint set aside.
3. Matter remitted to the Tribunal for consideration of outstanding issues.
APPENDIX
ORAL REASONS OF TRIBUNAL BELOW (15 December 2009)
Paragraph numbers have been added to assist later reference.
1. The respondent applied pursuant to s 102 of the Anti-Discrimination Act 1977 (“ AD Act ”) for a complaint made by “QY” and “QZ” (“the complainants”) to be dismissed. The complaint was that the complainants had been discriminated against on the ground of the disability of a relative or associate. Section 102 provides that the Tribunal may dismiss a complaint on a ground on which the President of the Anti-Discrimination Board may decline a complaint under s 92(1)(a)(ii) of the AD Act . Section 92(1)(a)(ii) relates to conduct that it is alleged does not disclose a contravention of the AD Act . The respondent contends that the present complaint should be struck out because at the time of the alleged discrimination the person with the disability did not exist because he had died.
2. I have decided to dismiss the complaint pursuant to s 102 of the AD Act and I will take some time to give some oral reasons for that decision. My reasons are basically the reasons given by the respondent. I will also address the submissions that the applicant made in response.
Introduction
3. The respondent relied upon two separate bases upon which the complaint should be struck out. First, the respondent said that it is an essential pre-requisite or jurisdictional fact for an inquiry under s 49B of the AD Act that the person with the disability be alive at the time of the alleged discrimination. Secondly, the respondent submitted that the complaint should be dismissed because the conduct of the respondent is not concerned with the provision of a service for the purpose of s 49M of the AD Act. As I have decided to dismiss the complaint on the first ground it is not necessary to consider the second basis for the respondent’s application.
Factual background
4. The factual background to this dispute is that the respondent administers and manages the Department of Forensic Medicine. The complainants allege that the policy of the Department of Forensic Medicine not to reconstruct the bodies of deceased persons who are HIV positive after the performance of post-mortem examinations constitutes discrimination on the ground of disability for the purpose of s 49B of the AD Act. It is alleged that the discrimination occurred in the provision of goods and services for the purposes of s 49M.
5. The policy of the Department of Forensic Medicine not to reconstruct HIV affected bodies is applied to the body of a deceased person who was HIV positive or who, whilst living, fell within the other categories of “hazardous cases” outlined in the Department of Forensic Medicine’s Mortuary Procedures Manual.
6. The complainants are respectively the long time friend and partner of the deceased who died on 18 November 2007. The first complainant is also the executor of the deceased’s will. As such, the complainants are each a ‘relative or associate’ of the deceased within the meaning of that term in s 4 of the AD Act.
7. The deceased committed suicide by overdosing on medication at a hotel in Sydney. The deceased was HIV positive. As all suspected suicides must be reported to the Coroner in accordance with the Coroners Act 2009 (which was the Coroners Act 1980 at the time of the suicide), the deceased’s body was admitted to the Department of Forensic Medicine on 18 November 2007 for a post-mortem examination.
8. When the deceased’s body came into the possession of the Department of Forensic Medicine the complainants were advised that a post-mortem examination was to be conducted. In accordance with the policy referred to above, after the post-mortem examination had taken place the Department did not reconstruct the deceased’s body and it was released to a funeral home for burial.
Statutory Framework
9. The statutory framework is set out in s 49B of the AD Act . That provision defines discrimination on the ground of disability. Section 49A makes it clear that disability discrimination applies to a person who has a disability whether it is an actual disability or a disability that the person is thought to have which includes a presumed existing, past or future disability. Section 49M is the provision which makes discrimination on the ground of disability unlawful.
Jurisdictional fact
10. According to the respondent the existence of a person with a disability is a jurisdictional fact which must exist before an inquiry can take place under the AD Act. Section 49B vests a stand alone right in a person identified as ‘the aggrieved person’, who is a relative or an associate of a disabled person and who suffers discrimination because of the disability of the disabled person, to make a complaint under s 49B.
11. However, it is not sufficient to merely point to a living relative or associate. For the right to subsist, the existence of a living disabled person is also a necessary precondition to an inquiry under s 49B of the AD Act . A complaint by an aggrieved person under s 49B is tied, in every case, to the existence of a person with a disability whether or not the aggrieved person, for the purposes of s 49B, is a relative or an associate of a person with a disability or the actual person with a disability.
12. This means that the existence of a disabled person is a jurisdictional fact. A jurisdictional fact is an essential requirement to the exercise of the decision making process. It is distinguishable from a fact that can be determined in the course of the hearing on liability if the Tribunal did have jurisdiction to inquire into the complaint: Corporation of the City of Enfield v Development Assessment Commission (2000)199 CLR 135. In Corporation of the City of Enfield , Gleeson CJ, Gummow, Kirby and Hayne JJ state (at [28]):
“The term ‘jurisdictional fact’ (which may be a complex of elements) is often used to identify that criterion satisfaction of which enlivens the power of the decision maker to exercise a discretion.”
13. Whether or not a fact is jurisdictional depends upon the construction of the statute conferring jurisdiction. For example in Woolworths Limited v Pallas Newco Pty Limited (2004) 61 NSWLR 707 at [6], Spigelman CJ said:
“The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred including the scope and nature of jurisdiction and the facts said to be jurisdictional.”
14. A complaint commenced under the AD Act prior to the death of the complainant survives the death of the complainant. That proposition follows from s 93(1) of the AD Act and the case of Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at [2]. Generally a complaint may also be brought under anti-discrimination legislation in relation to discrimination perpetuated against a person who dies before the complaint is lodged: Commonwealth v Wood (2006) 148 FCR 276 at [40] - [43].
15. However, the present proceedings are not concerned with the continuance of a claim of disability discrimination that occurred before the disabled person’s death. They are concerned with what Branson J has described as “[T]he forensically fascinating issue of the possibility of discrimination against a person already dead”: CUNA Mutual Group Limited v Bryant (2000)102 FCR 270 at [1].
16. A summary of the factors leading to the conclusion that the existence of a disabled person is a jurisdictional fact include:
the structure and language of s 49B which is drafted on the assumption that an aggrieved person may be either a disabled person or a relative or associate of such a person; the structure and language of s 49A and s 49B(1) when read together because s 49A sets the parameters for the concept of a person’s disability.
17. It must be read together with and makes no sense without the existence of s 49B; the structure and language of Division 1 of Part 4A. Subsections (2), (3), (3A), and (4) of 49B and 49C all refer to and invoke the concept of a disabled person and are expressed in terms of such a person possessing a disability; and the overall context and the history of the legislative scheme, in particular, Part 4A of the AD Act and Parts 2 and 3 and the other parts of Part 4 are concerned with protecting ‘persons’ who possess a protected characteristic (and their relatives or associates) from discrimination because they possess that characteristic.
18. There is no indication that the amendments to the AD Act in 1994 which gave relatives and associates a right to bring a complaint under the Act altered that assumption.
‘Person with a disability’
19. If the existence of a ‘person with a disability’ is a jurisdictional fact then this raises the question of whether a person who suffers a disability for the purposes of s 49B must be a living person. In my view it does for the following reasons.
20. Section 21 of the Interpretation Act 1987 defines a ‘person’ as including an ‘individual’ which is, in turn, defined as a ‘natural person’. The Oxford English Dictionary defines a natural person as ‘a person having legal status as an individual as distinguished from a corporate body, representative etc.’ The Macquarie Dictionary defines a natural person as an ‘individual human being (as opposed to an artificial being)’.
21. These definitions, while lacking an express reference to a living person, all connote and indeed assume, the existence of life. In addition, the expression ‘human being’ carries with it the connotation of life. That use of the term ‘natural person’ can be compared, for example, with the language used in the Human Tissue Act 1983 where there is reference to a ‘deceased person’ signifying a qualification to the ordinary meaning of the word ‘person’. Further, even if the constructional point was merely limited to the question of what is a ‘relative or associate’ for the purpose of s 49B, those terms, like the reference to a ‘person’ in s 49A, are also framed by reference to the existence of a person who possesses a disability. The plain and ordinary meaning of these phrases reveal that the legislature intended that an aggrieved person, who is a relative or associate, must be the relative or associate of a living person.
22. In the discrimination law context, it has been said that in the absence of an express provision relevant to the issue, regard should be had to the intention of Parliament as it may be discerned from the legislation: Stephenson v Human Rights & Equal Opportunity Commission (1996) 68 FCR 290 at 296 to 297 per Wilcox J. Wilcox J said the exercise is “one of determining what result best accords” with the scope and purpose of the Act as is disclosed by its terms.
23. However, the observation of Branson J at [49] in CUNA Mutual is particularly apt in the present case. Her Honour said the right to bring a complaint in respect of post-mortem discrimination would be an exceptional right that would need to be explicitly revealed by the terms of the legislation. That such a right is not explicitly revealed in the AD Act indicates that the legislature did not intend that a deceased person possess a right to initiate a complaint under s 49B or at all.
24. This is consistent with mainstream legal philosophy which proceeds on the assumption that only living persons with rights and therefore corresponding responsibilities may possess juridical significance. If a deceased person does not possess a right to initiate a complaint and if a complaint available to a relative or associate under the AD Act is inextricably linked to the existence of a person who possesses the relevant characteristic protected by the AD Act , then the Tribunal does not possess the power or jurisdiction to inquire into the complaint.
25. I will deal briefly with the submissions to the contrary from the complainants which were, firstly that the AD Act should be given a beneficial construction. While that is undoubtedly true, the question of whether a jurisdictional fact exists is a question of law and must be answered by interpreting the legislation. There is no grey area to which a beneficial construction can be accorded. The complainants also drew attention to the definition of disability in the AD Act which includes a disability that the person had in the past. By analogy, it was argued that a deceased person could be regarded as a person who had a disability in the past. Such a construction strains the ordinary meaning of the words in s 49A. The complainants also pointed to the objects of the AD Act. There is no doubt that it is the intention of Parliament that people who have been discriminated against on the ground of the disability of a relative or associate should be able to bring proceedings.
26. However, that does not allow this Tribunal to give the AD Act a construction which it cannot bear. The provisions of the legislation to which I have referred, in my view, lead to the inevitable conclusion that because discrimination must be on the ground of a disability, that disability must exist at the time and it can only exist in a living person. By definition a deceased person cannot have a disability. For those reasons the application for dismissal is granted.
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