Strong v The Hospitals Contribution Fund of Australia Limited (No 3)

[2007] NSWADT 27

CITATION:	Strong v The Hospitals Contribution Fund of Australia Limited (No 3) [2007] NSWADT 27
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Pauline Strong RESPONDENT The Hospitals Contribution Fund of Australia Limited
FILE NUMBER:	031094
HEARING DATES:	20/04/2006-21/04/2006 & 20/06/2006
SUBMISSIONS CLOSED:	20 June 2006
DATE OF DECISION:	1 February 2007
BEFORE:	Rice S - Judicial Member; Mooney L - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
CATCHWORDS:	Marital Status Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 National Health Act 1953 (Cth)
CASES CITED:	Keenan v The Age Company Limited [2004] VCAT 2535 Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15 Khan v Cumberland Community Radio Inc trading as 2CCR-FM [2006] NSWADT 222 State of NSW v Amery (2006) 226 ALR 196 Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176 Waters v Public Transport Corporation (1991) 173 CLR 349
REPRESENTATION:	APPLICANT K Eastman, Barrister RESPONDENT J Timbs, QC N Owens, Barrister
ORDERS:	The Complaint is dismissed

DECISION

1 For the reasons set out below, Ms Strong’s complaint against HCF is dismissed.

REASONS FOR DECISION

Background

2 In March 1992 Ms Strong, her then partner and their child were together covered for private health insurance under a ‘Family’ membership with HCF. At that time only two categories of membership were available: ‘Single’ and ‘Family’. The “Health Insurance Certificate” issued to Ms Strong on 4 March 1992 specified that it was for ‘Family Scale’ and described the available membership categories in this way:

Single membership includes yourself only. Family membership includes yourself, your spouse and your dependent children up to age 17 or up to 25 if they are unmarried, full-time students.
3 In June 1992 Ms Strong and her partner separated, although Ms Strong did not then change her membership details with HCF. She continued to pay the monthly contributions for the Family membership category and HCF’s records continued to show that that membership covered her, her child and her (by that time absent) partner. Even had she changed her membership details with HCF, she would have remained in the Family membership category, as the only alternative was Single, which would not have covered her child.

4 In June 1998 Ms Strong removed her partner’s name from the membership. In the meantime HCF had expanded its available categories of membership from ‘Single’ and ‘Family’ to ‘Single’, ‘Couples’, and ‘Family’. On removing her partner’s name from the membership, Ms Strong and her child remained covered for private health insurance in the ‘Family’ membership category.

5 When she removed her partner’s name from the membership Ms Strong effectively presented to HCF as a single parent. But HCF had no ‘Single Parent’ category. The only category in which a person’s membership could cover a person and their dependent child was ‘Family’. So Ms Strong remained in the Family category and continued to pay the same membership contribution for herself and her child as she had paid previously for herself, her spouse and her son, which at the time was $176.40 per month.

6 It was this situation – that she continued to pay the same membership contribution for herself and her child as she had paid previously for herself, her spouse and her child – that led Ms Strong to make a complaint of discrimination on the ground of marital status.

7 On 6 August 2000 Ms Strong complained to the Anti-Discrimination Board that

As a divorced woman, with one dependent child, HCF currently provides cover to my family at a cost of $173.25 a month ... or $86.63 for one adult and $86.63 for one child.

If I was a married woman, with a spouse and one dependent child, HCF would provide exactly the same cover for exactly the same cost, or $86.63 each for the two adults and membership free of charge to the child.

... to gain equitable cover, including free cover for a dependent child, I am required to have a spouse ...

8 By ‘equitable cover’ Ms Strong means paying a contribution that is proportional to the contribution paid by a married couple with a dependent child. This is apparent from the circumstances Ms Strong describes as giving rise to her complaint (having been married with a child and then being single with a child) from the terms of her complaint (her reference to her status as divorced compared to others’ status as married), and from what Ms Strong said in response to the Tribunal’s inquiry during the earlier hearing of HCF’s application for the complaint to be dismissed ( Strong v The Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176: ‘ Strong No 1 ’).

The area of activity: membership or service?

9 Although it has been assumed throughout this inquiry that Ms Strong’s complaint is about the provision of a service, that service has not been defined. In Strong No 1 the Tribunal said at [105], and only in passing: “HCF operates so as to provide a health insurance service to its members”. In her document titled ‘Points of Claim’, Ms Strong claimed, and HCF in its ‘Points of Defence’ agreed, that HCF “provided services with respect to private health insurance. [That] service ... is a service for the purpose of s47 of the Anti-Discrimination Act”. Ms Strong contended that it was not in dispute that “the provision of ‘health insurance is a ‘service’ for the purpose of ... the Act”.

10 Characterisation of the service as “insurance” is subject to the qualification proposed by HCF, and not contested by Ms Strong, that for reasons relating to the manner in which it is regulated, “health insurance is not ‘insurance’ in any traditionally understood sense of the word”. Subject only to that qualification the parties proceeded on the basis, correct in our view, that an accurate statement of the service that is the subject of Ms Strong’s complaint is ‘private health insurance’. In deference to its not being, strictly speaking, ‘insurance’, we refer to the service as ‘healthcare cover’.

11 In the particular circumstances in which HCF provided this service it is necessary to clarify the confusing inter-relationship between the provision of a service, and the payment for that service by way of membership eligibility and fees. Without our clarifying this point there are possible doubts as to whether the Anti-Discrimination Act 1977(Anti-Discrimination Act) has any application to Ms Strong’s circumstances.

12 The complaint Ms Strong makes under the Anti-Discrimination Act is about the provision of a service and, specifically, the terms on which that service was provided to her (s47(b)). But what appears to complicate this otherwise straightforward provision of a service is that HCF was at the relevant time a membership organisation.

13 The healthcare cover service was provided by HCF only to its members, and a member’s monthly payments for that service were described by HCF as ‘contributions’. There was a direct connection between a person’s payment of the monthly contribution and their status as a member; the monthly contributions were, effectively, membership fees. Ms Strong’s 1992 Health Insurance Certificate, for example, stated that “When contributions are not paid in advance, membership is in arrears”. Membership continued while contributions were in arrears for up to two months, after which time membership ceased automatically.

14 The healthcare cover service was provided only for a member and other people who were both nominated by the member and within the prescribed scope of the membership category. HCF usually described the payments it made for members’ health related costs as members’ ‘benefits’. On this characterisation of the relationship, a person who paid HCF was paying for membership, and as a member they received benefits, including a healthcare cover service.

15 But at times, despite the payment/membership/benefit characterisation of the relationship, HCF referred to the arrangement between itself and its members as “health insurance” (for example in a letter from HCF to Ms Strong dated 2 July 1996, and in an HCF policy dated May 2004), or as “cover” (for example in the same HCF policy dated May 2004). On this characterisation of the relationship, a person who paid HCF was paying for a healthcare cover service, and HCF treated them as members.

16 Either membership of HCF was a condition on which a healthcare cover service was available from HCF, and the cost of membership was the cost of the service, or membership of HCF was a consequence of obtaining a healthcare cover service from HCF, and the cost of the service was the cost of membership. In fact, HCF exercised no real discernment as to who could and could not be a member – a person who wished to use HCF’s health care service paid a membership fee in order to do so. Paying for a service and paying for membership effectively conflated into the same act; the service was available only to members, and all members received that service.

17 It is a fair representation of the circumstances to treat admission to membership by HCF, and provision of the service by HCF, as one and the same thing. A member’s monthly contribution was both a membership fee and the cost of the healthcare cove r service. But choosing to characterise HCF’s conduct as, say, admission to membership rather than as provision of the service, has clear consequences for the application of the Anti-Discrimination Act.

18 Admission to, and qualification for, membership of an organisation are not areas of activity that are covered by the Anti-Discrimination Act (except in relation to clubs within the meaning of the Registered Clubs Act 1976). If a person’s complaint is that the price they pay for membership (other than for a registered club) is calculated on a discriminatory basis, they have no claim under the Anti-Discrimination Act.

19 In light of the way HCF provided healthcare cover, it would be possible to characterise Ms Strong’s complaint as being about either or both of the cost to her of membership, and the available categories of membership. If that was her complaint she would have no claim under the Anti-Discrimination Act. But Ms Strong’s original complaint, which we set out above at [7], complained about neither the price she was asked to pay for HCF membership nor the categories available to her, but about the price she was asked to pay for HCF’s healthcare cover service.

20 At no stage has the Anti-Discrimination Board, Ms Strong or HCF dealt with Ms Strong’s complaint as one that concerns the terms of her membership of HCF. Ms Strong’s complaint has always been dealt with as one about the terms on which HCF provided a service. That is appropriate, as that is clearly the focus of Ms Strong’s complaint.

21 The factual situation that conflates the ideas of membership, access to a service, and insurance has resulted in some fluid use of terms. The amount that a person paid for membership, which we have said is effectively the amount a person paid for healthcare cover, was referred to in the industry as the ‘contribution rate’. Similarly, the person who paid for the healthcare cover was referred to as a member and, as well, as a ‘contributor’. In evidence and in written material Ms Strong and HCF have moved back and forth freely between references to insurance and health care cover, contributors and members. That one has been readily substituted for another at different times is a fair reflection of the facts. At times the different terms are used for contextual reason (eg a member of a category, and a contributor to a health fund). We use the words ‘member’ and ‘contributor’ interchangeably, having regard to the context.

22 To the extent that the issue of membership has arisen it has not been relevant for its own sake but as a phenomenon necessarily related to the provision of the service. The terms of provision of the service – Ms Strong’s real complaint – are to be understood by reference to the terms of membership.

23 In these circumstances, the cost of and eligibility for HCF’s membership categories – matters that are not covered by the Anti-Discrimination Act – raise the same issues as the cost of and eligibility for HCF’s healthcare cover service – matters that are covered by the Anti-Discrimination Act. That is the basis on which the parties engaged in this inquiry.

HCF’s categories of membership

24 To provide its healthcare cover service HCF was (and is) obliged to be registered as a health fund under the National Health Act 1953 (Cth). Before 1996, clause (v) of the prescribed conditions for registration as a health fund specified that “the contribution rate for contributors without dependents shall be one-half the contribution rates for contributors with dependents”.

25 This condition of a health fund’s registration treated people with healthcare cover as falling into two groupings, defined by reference to whether the healthcare cover they paid for was for their dependents as well as for themselves. The condition of registration required HCF to charge members who wanted healthcare cover for their dependents as well as for themselves twice the rate it charged members who wanted healthcare cover only for themselves (a ratio of 1:2 between the two groupings).

26 To give effect to this condition of registration, HCF divided its membership into two categories, which it termed ‘Single’ and ‘Family’, and charged members in the ‘Family’ category twice the rate it charged members in the ‘Single’ category, that is, a 1:2 ratio. This is the arrangement that was in place when Ms Strong first received healthcare cover from HCF in 1992: as a contributor with a dependent she was in the ‘Family’ category and paid twice the rate paid by members in the ‘Single’ category.

27 In 1996 the conditions of registration for all health funds were changed in a Determination by the then Health Minister. The effect of that Determination was advised in a document issued by the then Commonwealth Department of Health and Family Services, ‘HBF Circular 463’. Taking effect on 1 October 1996, the Determination removed clause (v) of the conditions of registration and replaced it with clause (ix), which said that a health fund was obliged to:

(a) charge all memberships consisting of the contributor, another adult person and one or more dependent children, the same premium

(b) charge all memberships consisting of the contributor and one or more dependent children, the same premium

(c) charge all memberships consisting solely of the contributor, the same premium

(d) charge all memberships consisting of the contributor, and one other person who is not a dependent child of the contributor, the same premium.

28 This condition of registration treated people with healthcare cover as falling into four groupings rather than two, defined by reference to whether the healthcare cover they paid for was for their dependents and/or another adult, as well as for themselves. Clause (ix) abandoned the previously mandatory 1:2 relativity, as between what had been only two groupings, for the amount paid for healthcare cover. There was no longer any required relativity between the different groupings for the amounts paid for healthcare cover. The new condition of registration required a health fund to charge all members within a grouping the same amount, but it was no longer necessary for a health fund to charge members in one grouping an amount that was a factor of the amount paid by members in another grouping. There was, for example, no requirement that members in one grouping be charged twice as much as members in another.

29 Although the new groupings were not given any descriptive title in the Minister’s Determination and the formal conditions of registration, in HBF Circular 463 the Department advised that the conditions had been changed so that there were to be:

... four categories of membership. These are:
Single Membership – this membership consists of the contributor only

Couple Membership – this membership consists of the contributor and one other person who is not the dependent child of the contributor

Single Parent Membership – this membership consists of the contributor and one or more dependent children

Family Membership – this membership consists of the contributor, another adult and one or more dependent children.

30 The names or titles or labels for each membership – ‘Single’, ‘Couple’, ‘Single Parent’ and ‘Family’ – were set out in the Department’s Circular, not in the Minister’s Determination or the prescribed conditions of registration.

31 To give effect to this new condition of registration HCF chose to divide its membership into three categories, which it termed ‘Single’, ‘Couple’ and ‘Family’. It chose not to create a separate category for “memberships consisting of the contributor and one or more dependent children”, but to include people who fitted that description in the ‘Family’ membership.

32 As required, HCF charged members within each category the same rate as each other. HCF was free, however, to decide for itself what rate to charge the members of a category. HCF decided to maintain the previous 1:2 relativity, extending it to include the new ‘Couple’ category, so that HCF charged members in the ‘Family’ category and members in the ‘Couple’ category, twice the rate it charged members in the ‘Single’ category.

33 Mr David Watson, Technical Office at HCF, gave uncontradicted evidence as to how HCF achieved the transition of its membership from the pre-1996 system of two categories to the post-1996 system of three categories, which we discuss in more detail below.

34 As a result of HCF’s transition from old to new classifications, Ms Strong’s membership continued to be categorised in the ‘Family category’ because she was a member wanting coverage for a dependent, and she continued to pay the same as a couple wanting coverage for a dependent, which was twice the rate paid by members in the ‘Single’ category.

35 This brings us back to the outline we gave above as background to this matter, and the point at which Ms Strong made her complaint.

Complaint

36 Ms Strong complains that HCF discriminated on the ground of her marital status in the terms on which it provided her with a healthcare cover service. The precise terms of her account are set out above at [7]. Put in terms of the Anti-Discrimination Act (ss 39(1)(a) and (b) respectively), Ms Strong’s complaint is that, in the terms on which it provided a healthcare cover service, HCF either

treated her less favourably than it treated or would have treated, in the same or materially similar circumstances, a person of a different marital status, at least in part because of her marital status (direct discrimination), or

required her to comply with a requirement or condition with which she could not comply, which was not reasonable in the circumstances, and with which a substantially higher proportion of people of a different marital status comply or are able to comply (indirect discrimination).

Characteristic

37 We said above that Ms Strong complains of discrimination “on the ground of her marital status”. Within the range of circumstances covered by the term “marital status” in the definitions of the Anti-Discrimination Act (s 4), Ms Strong was, at the relevant time, “single” in that she had never married.

38 In her “Contentions” filed with the Tribunal, Ms Strong argued that “the care and responsibility of a dependent child/children is a characteristic which appertains generally to or is imputed to married persons and it is not a characteristic imputed to an unmarried person”. To the same effect, she contended that “having ‘dependent children’ is a characteristic which appertains generally to, or is imputed to married persons”. In saying this Ms Strong has picked up the language of s 39(1A), which extends the term “on the ground of a person’s marital status” to include “on the ground of a characteristic that appertains generally to persons of that marital status or a characteristic that is generally imputed to persons of that marital status”.

39 But no clear argument is made in the Contentions that HCF’s treatment of Ms Strong was in fact on the ground of a characteristic she had. Indeed, it is not apparent what that characteristic would be, and none is clearly proposed. Ms Strong contends that care of a dependent child is a characteristic generally imputed to married persons, and is not one that is generally imputed to an unmarried person. This is at best arguable, and we do not accept that it is so. Even if it were, it does not identify a characteristic that is generally imputed to an unmarried person. If Ms Strong’s implicit argument is that not having care of a dependent child is a characteristic generally imputed to an unmarried person, then we do not accept that that is so. It would however be an odd argument to make, as Ms Strong was unmarried and did have care of a dependent child.

40 In her written submissions, Ms Strong relies on the previously filed ‘Contentions’ but does not elaborate on the ‘characteristic’ argument. Instead she argues that “the inclusion of a dependent child is the relevant circumstance in which one may compare the treatment”, and the written submissions proceed on that basis. It appears, therefore, that in her submissions Ms Strong relies on her having a dependent child as a relevant circumstance in which HCF’s conduct is assessed, rather than as indicative of a characteristic which was the ground for HCF’s treatment of her.

41 Accordingly, we have not considered Ms Strong’s complaint as one that alleges treatment on the ground of a characteristic of her marital status. If that were her complaint, then it would fail for three reasons. First, no clear claim is made as to what the characteristic of her ‘single’ status is. Secondly, if we are to infer that the characteristic is a complement of a characteristic said to appertain generally to married persons – the care of dependent children – then we do not accept that that characteristic does appertain generally to a married persons, and even if it did it does not follow that not having the care of a dependent children is a characteristic of a single person. Thirdly, Ms Strong was a single person with a dependent child. She actually had the characteristic said to appertain generally to married persons.

42 There seems no sensible way of casting Ms Strong’s complaint as one that identifies a characteristic of her marital status as a ground for discrimination. Her having a dependent child is, we agree, a relevant circumstance in which to assess HCF’s conduct.

Interpretation

43 We note that Ms Strong has submitted that when construing the terms of the Anti-Discrimination Act we should do so broadly to give effect to its objects, and in conformity with Australia’s obligations under the International Covenant on Economic Social and Cultural Rights. We agree, but in this decision have not had to construe the terms of the Anti-Discrimination Act such that recourse to its objects and Australia’s international obligations is necessary. The complaint is decided on its facts.

Terms on which the service was provided

44 We turn now to consideration of Ms Strong’s complaint, and look first at the nature of the service that is the subject of her complaint.

45 There are many terms on which HCF provided healthcare cover, and in her Points of Claim Ms Strong set out an indicative list, with which HCF agreed in its Points of Defence. The particular term in which Ms Strong says HCF discriminated against her was one relating to the cost of the service, a term that “the premium paid by a single parent with a dependent child [is] the same premium paid by dual parents with a dependent child”.

46 The actual term on which HCF offered healthcare cover was that it be paid for at a cost which was the rate set for a membership category. Ms Strong’s formulation was not an explicit term on which HCF offered its service, but it correctly states an effect of the way in which the cost was calculated. A further effect, identified by Ms Strong as such in her Points of Claim, was that (in circumstances where there was a dependent child) the additional adult in a married couple was covered without an additional fee. There are many other consequences of the way in which the cost of healthcare cover was calculated; the essential term of the provision of the service was that it be paid for at the prescribed cost.

47 As we said above, calculation of the cost of healthcare cover necessarily imported consideration of membership categories, so that a complaint about cost can at the same time be a complaint about categorisation of membership. It is the former characterisation of the issue that is covered by the Anti-Discrimination Act.

48 The relevant term on which HCF provided healthcare cover was, effectively, that the cost to a person was the contribution rate set for the person’s category of membership. That rate was either the single category rate, or double that rate for any other category. At the time Ms Strong complains of, the single rate was $88.20 and, accordingly, the rate for each other category was $176.40.

49 As we noted above, Ms Strong’s actual complaint is that “As a divorced woman, with one dependent child, HCF currently provides cover to my family at a cost of $[x] ... If I was a married woman, with a spouse and one dependent child, HCF would provide exactly the same cover for exactly the same cost”. She says that HCF provided healthcare cover for her and her child when she was a single parent at the same cost that it provided the same healthcare cover for a married couple and their child.

Direct discrimination

50 In Strong No 1 the Tribunal had to decide whether to dismiss Ms Strong’s claim on the ground that is misconceived. This Tribunal, differently constituted, said “There does not ... in the material in the President’s report and provided by Ms Strong, appear to be a basis in fact for an argument that Ms Strong was subject to direct discrimination”. Nevertheless, as she is entitled, Ms Strong has maintained that claim, and at the final hearing was able to rely on further evidence and the assistance of legal representation which she did not have at that earlier hearing.

51 Ms Strong complains that in circumstances where there is a dependent child to be included in the healthcare cover, HCF charged her, a single person, the same rate that it charged a married couple.

Impugned conduct

52 It is the case, and it is not contested, that in circumstances where a dependent child was to be included in the healthcare cover, HCF charged Ms Strong, a single person, the same rate that it charged a married couple. That is the conduct Ms Strong complains of.

53 The issue is ‘for what reason/s did HCF charge that rate to Ms Strong?’ If a reason was Ms Strong’s marital status, then the necessary connection under the Anti-Discrimination Act between Ms Strong’s marital status and the less favourable treatment would be established.

Why did HCF charge that rate?

54 For the following reasons, we are satisfied that no part of the reason for HCF’s charging that rate to Ms Strong was her marital status. Ms Strong’s marital status was irrelevant to HCF’s assessment of the rate it charged her for healthcare cover. The evidence and argument before us leads us to the same view expressed by the Tribunal previously (Strong No 1 at [128]): the level of monthly contributions – which was effectively the rate charged for the service – was set “by reference to industry practice, legislative and Ministerial requirements, and the principle of ‘community rating’”. It was not set by reference, even in part, to the marital status of a member.

55 HCF took two steps to establish the rate a person would pay for healthcare cover. The first was to place them in a membership category, and the second was to set a rate payable by people in that category.

On what basis were people placed in membership categories?

56 HCF placed members in categories that were prescribed in tis the conditions of registration as a health fund. It is apparent from both the terms of clause (ix) of the conditions of registration as set out in the Minister’s Determination, and the terms of the explanation given by the Department in HBF Circular 463, that marital status was not a necessary factor in determining membership of a category. That is to say, the groupings as they were set out in clause (ix) of the conditions of registration did not depend on a person’s marital status. Nowhere is the relationship of another person to a contributor prescribed for any category: a ‘couple’, for example, is only said to be constituted by the contributor and “one other person”, and a ‘family’ is only said to be constituted by the contributor and “another adult” (as well as dependent children).

57 The explanation of the Minister’s Determination given in HBF Circular 463 is to an extent misleading, and to that extent it is an incorrect statement of the effect of the Determination and the terms of clause (ix) of the conditions of registration. As we said above, the groupings were not given any descriptive title by the Minister or in the conditions of registration. But HBF Circular 463 did label them.

58 Significantly, to the category consisting of “the contributor and one or more dependent children”, the Circular gave the label ‘Single Parent’. It is not apparent, however, from either the Minister’s determination or clause (ix) of the conditions of registration that the ‘contributor’ referred to in fact had to be ‘single’ as a description of their marital status. Neither the Minister’s determination nor clause (ix) of the conditions of registration refer at all to the contributor’s marital status.

59 Further, to the category consisting of “the contributor, another adult and one or more dependent children”, the Circular gave the label ‘Family’. But similarly, it is not apparent from either the Minister’s determination or clause (ix) of the conditions of registration that the ‘contributor’ referred to in fact had to be in a ‘family’ relationship with the other adult, presumably as spouse. Neither the Minister’s determination nor clause (ix) of the conditions of registration refer at all to the marital status of the contributor or the other adult.

60 While marital status was not a necessary factor in determining membership of a category, what did HCF in fact do when it created the new categories to give effect to the Minister’s determination? Importantly, did it take its lead from the labelling in the HBF Circular and take account of a contributor’s marital status in determining contributors’ categories (and consequently the price a contributor would pay for healthcare cover)?

61 In late 1996 HCF engaged in the necessary transition exercise to place its existing members, including Ms Strong, into its new membership categories of Single, Couple and Family. Mr Watson’s evidence was that HCF effectively “slotted contributors in” to the new categories, based on a range of data and considerations, none of which included a contributor’s marital status. The answer to ‘why was someone in a particular membership category?’ was ‘because of the number and age of the people whom the contributor nominated’, not at all ‘because of the marital status of the contributor’.

62 It can reasonably be inferred from documents in evidence that at some stage before 1996, and to an unknown extent, HCF was aware of and did concern itself with the marital status of at least some if its members. Ms Strong’s own “Health Insurance Certificate” issued on 4 March 1992 described her membership as including “yourself, your spouse and your dependent children ... ” (emphasis added). This was so despite the fact that the conditions of registration then in place, ie those prior to the Minister’s determination in 1996, made no reference to the marital status of the contributor but referred simply to a single contributor and to a contributor and their dependants.

63 In his evidence Mr Watson said that HCF’s membership records did not record a contributor’s marital status. He said that in his 30 years’ experience at HCF there was no practice of recording a contributor’s marital status. He conceded that at times the ‘partner’ of a contributor may have been recorded as a ‘spouse partner’, and it seems from Ms Strong’s own records that that was the case. But there is no evidence that the marital status of another adult nominated by a contributor was necessarily recorded, and there is evidence that it was not.

64 Ms Strong says that she recalls completing a membership application form in 1992 that was “similar in content” to a form in use by HCF in 2003. That form required the contributor to record the following details of “other persons to be covered”: their name, date of birth, sex and “relationship”. No types or descriptions of relationships were specified on the form. The form then required the person to tick a box for a membership category: Single, or Couple/Family. The “Office Use Only” part of the form enabled HCF to record, among other things, the person’s HCF membership number, their own status as “Parent or Spouse” and the names of “Persons Covered”.

65 It would have been possible for HCF to identify a contributor’s spouse and record that fact if the contributor volunteered it on the form. It would have been possible as well for HCF to infer from the information volunteered on the form what the relationship between the person and other people covered was likely to be. But that inference would not always be available. A contributor could identify the relationship to them of another person to be covered as, for example, ‘child’ or ‘aunt’ or ‘friend’. In none of these examples would the marital status of the contributor be apparent, and HCF would be unable to record, for its “office use”, the marital status of the contributor.

66 But whatever was recorded, and whatever knowledge HCF might have had of the contributor’s marital status, we are satisfied that information had no bearing on the membership category the contributor was in. If no-one else was to be covered then the contributor was in the Single category, and if someone else was to be covered then the contributor was in the Couple or Family category depending on whether the someone else was a dependent child. It was not any knowledge that HCF had of a contributor’s marital status that determined which of the new categories the contributor would be in, but the existence or not of another person to be covered and the relationship of dependence, if any, between the contributor and that other person.

67 If two people were covered in the Couple category, it was because the contributor nominated an ‘other adult’. That other adult may have been the contributor’s spouse, or the marital status of both the contributor and the other adult may have been ‘single’. Similarly, if a contributor was covered only for themselves, their marital status may have been single, or it may have been married but they did not want coverage for their spouse under their membership.

68 Mr Watson agreed that it was unlikely that a person in the Single category would have been married. But, likely or not, it was possible, because marital status was not in fact a ground for classifying members into categories. Ms Strong acknowledges this possibility, and concedes that “in theory a married parent could also take out a single parent membership and thereby exclude the spouse from coverage”. But she contends that “in practice it is highly unlikely that married parents with dependent children would adopt such a course”. She submits that there is no evidence of that in fact having happened, and says that the mere possibility of it does not change the fact that the titles of the categories identify marital status. It was said for her in oral argument that exceptions do not disprove the argument that the language used does refer to marital status.

69 That is not so, and is central to Ms Strong’s misperception of the reason for HCF’s conduct. When in her contentions Ms Strong says that for Single membership a person pays “a single’s rate reflecting the fact she is not married”, she misstates the meaning of the word ‘single’ in its context. The term ‘Single’ meant that “this membership consists of the contributor only”, and gave no necessary indication of the person’s marital status. Ms Strong’s complaint of direct discrimination is based on the understandable but misconceived conviction that the membership category titles necessarily described the marital status of the members in those categories.

70 There is a real possibility of an exception to the usual case that a person in a Single category was of single marital status and a person in a Family category was married. Such an exception would not alone disprove the argument that the language used refers to marital status: in the absence of any other evidence it could be explained as an error or an example of dishonesty. But the other evidence we have referred to is conclusive, and shows that the possibility of exceptions to the usual case is a consequence of the fact that the language used to describe eligibility for a category – in the Minister’s Determination, in the conditions of registration, in the Department’s HBF Circular, and in HCF’s own documentation and practices – does not prescribe or necessarily identify the marital status of members in that category.

71 Terminology has created the misleading appearance that two very different forms of categorisation – marital status, and ‘number of adults covered’ – have been conflated. It would be more accurate, would avoid creating the perception of discrimination on the ground of marital status, and would no doubt confound the marketing department if, for example, single membership were to be titled instead ‘membership for coverage of one adult contributor’, couples membership ‘membership for coverage of an adult contributor and another nominated adult’, and family membership ‘membership for coverage of one or two adults of whom one is the contributor, and dependent children’.

72 Unfortunately the titles given to the categories in HBF Circular 463, and subsequently used by HCF, were capable of creating the impression that marital status is a criterion for membership of a category. That was in fact not so. The category titles were, in effect, a rough indication of the numbers of people HCF would cover under a membership: ‘Single’ covered one person, ‘Couple’ covered two people, and ‘Family’ covered two or more people. ‘Single’ membership could have provided cover to a married person whose partner did not require coverage from HCF, ‘Couple’ could have provided cover to two people who were not married or in a marriage-like relationship, and ‘Family’ could have provided cover to two people who were not married or in a marriage-like relationship, and the dependent children of one of them. Although none of these examples would usually have been the case, and the membership category title would usually reflect the actual marital status of the contributor, the fact that this was not necessarily so illustrates that membership within a certain category was not determined according to marital status.

73 In its documentation HCF’s use of the term ‘partner’ is misleading. The evidence shows that, consistently with the broad scope of the phrasing in clause (ix), any person could be nominated to HCF by the member, not only their ‘partner’. Although one might expect that a contributor’s nominee would have been their partner, it need not have been so. HCF included in the coverage any person nominated by the contributor. Similarly a person with a partner was able to choose to not nominate them, and to be covered only for themselves under the ‘Single’ category. A more accurate phrase than ‘the contributor’s nominated partner’ would have been ‘the contributor’s nominee’.

74 Ms Strong’s marital status happened to ‘match’ or be described by the title of the membership of category that she chose, but her marital status was not in fact a reason why she was in the Family category. Ms Strong was in that category because she wanted healthcare cover for a dependent child as well as for herself, not because of her marital status. A person not of Ms Strong’s marital status, in circumstances where they wanted healthcare cover for a dependent child as well as for themselves, would have been treated in the same way, by being placed in the Family category.

75 The evidence satisfies us that when HCF gave effect to the Minister’s determination, a member’s marital status was not a factor in HCF determining the allocation of members to categories.

76 But that is only the first of two parts of an answer to why HCF charged Ms Strong the rate that it did. The question remains: having put Ms Strong in that category, how did HCF set the rate to be paid by members in that category, and was it at all by reference to their marital status?

On what basis were rates set for membership categories?

77 Having placed members in a category, the second part of HCF’s setting the price to be paid for healthcare cover was to decide on a price that all members of that category would pay.

78 HCF pointed out in submissions that Ms Strong’s complaint is about the level of monthly contribution (the cost of the service), not the category she was placed in. But as we have described above, the two are necessarily and closely related: the amount a person paid was set by reference to the membership category the person was in.

79 Was the marital status of people in a category a reason for setting the payment rates for that category? No. It follows from the circumstances that we have described above that HCF was not able not to assume that all people in a category were of the same membership status. But HCF was obliged to charge all people in that category the same amount (and it is not suggested that it did not). It was, therefore, simply not possible to have regard to the marital status of members in a category when setting one rate that would apply to every contributor in a category.

80 Rather, HCF set the level of monthly contribution for all contributors in a category according to a range of factors set out in the three affidavits and the oral evidence of Mr Watson. Mr Watson’s evidence was that even after the 1996 changes HCF continued to set the level of monthly contribution for each category on the basis of the historical 1:2 ratio. The ratio was extended to 1:2:2, and the rates for all categories other than ‘Single’ were set at twice the rate for ‘Single’. Mr Watson agreed that applying this ratio was mechanical and convenient, clear to members, and manageable for HCF as it minimised exposure to volatility in rates.

81 Because of the Minister’s 1996 determination, HCF was not obliged to give effect to a 1:2:2 ratio. But it chose to, and so the amount charged to all people in a category was set by reference to the amount charged to all people in the Single category. As we said above, membership of a category had nothing to do with one’s marital status.

Finding

82 Ms Strong’s complaint of direct discrimination is that it was because of her marital status that HCF charged her the rate it did for provision to her of healthcare cover. In fact HCF charged her the rate it did because of the category of membership she was in. She was not in that category because of her marital status, and the rate for a category was set by reference to factors other than the category members’ marital status. Ms Strong’s marital status was not a ground for HCF’s charging her the rate it did for provision to her of healthcare cover.

83 It follows that she was not treated more or less favourably than any other HCF member on the ground of her marital status. All members were allocated to categories in the same way, without regard to their marital status. All members in a category paid the same amount, set without regard to their marital status.

84 Ms Strong contends that “a married couple with dependent children are treated more favourably than an unmarried person with a dependent child”. The issue is whether, in fact, HCF treated Ms Strong less favourably than it treated a married person in the same or similar circumstances. HCF treated (ie, charged for health care cover) any person with a dependent child in the same way that it treated any other person with a dependent child, regardless of their marital status.

85 Ms Strong was not subjected to less favourable treatment on the ground of her marital status and so has failed to establish her complaint of direct discrimination

Indirect discrimination

86 The Anti-Discrimination Act refers to a ‘requirement or condition’; when we use the word ‘requirement’ alone it indicates the phrase ‘requirement or condition’.

Ms Strong’s proposed formulation of the requirement

87 Whether Ms Strong was required to comply with a requirement is a question of fact, and it is for the Tribunal to determine the terms of that requirement. Counsel for Ms Strong drew our attention to a recent re-statement by Callinan J (State of NSW v Amery 2006) 226 ALR 196 at 245) of the well-established position in discrimination law to the effect that, regardless of the applicant’s formulation of the requirement, it is the duty of the Tribunal to ascertain the actual requirement, if any, imposed by the respondent (and see Waters v Public Transport Corporation (1991) 173 CLR 349 per Mason CJ and Gaudron J at 361; Brennan J at 375; McHugh J at 404).

88 In Waters the High Court was concerned, as we are in this matter, with the provision of a service on terms. The Court said that in determining the existence or not of a requirement, what is said to be the requirement involves “something over and above that which is necessarily inherent in the goods or services provided” (Mason CJ and Gaudron J at 361). As was pointed out by Brennan J (at 376-7), Dawson and Toohey JJ (at 393-4) and McHugh J (at 404), care must be taken to distinguish between a feature of the service and any requirement on which it was offered.

89 In Strong No 1 the Tribunal had to decide whether to dismiss Ms Strong’s claim on the ground that it is misconceived. This Tribunal, differently constituted, said “There does ... in the material in the President’s report and provided by Ms Strong, appear ... to be a basis in fact for an argument that Ms Strong was subject to indirect discrimination”. In saying that, the Tribunal suggested a way in which, on the facts, a requirement could be expressed:

For a person with a dependent child to be included in one membership at a cost that is less per person than the cost of two single memberships, the person must nominate another (third) person to be covered by the membership.
90 The Tribunal went on to say “If the requirement can properly be formulated as we have suggested, or in some other way , then a real issue for inquiry and decision is whether it is a requirement with which a higher proportion of people who are not single – eg who are married or in a de facto relationship – comply or are able to comply”. (emphasis added).

91 From documents filed with the Tribunal Ms Strong has made it clear she does in fact rely on a different formulation of the requirement. Counsel for Ms Strong responded to the Tribunal’s query on this point by confirming that that was the case.

92 Ms Strong has invited the Tribunal to adopt, as fact, her formulation of the requirement. In three documents filed for Ms Strong and titled, respectively, Points of Claim, The Applicant’s Contentions, and Applicant’s Submissions, Ms Strong set out the alleged condition or requirement in this way:

It was and is a condition or requirement that to qualify for a single membership, a single contributor could not include his or her dependent child in the single member policy.

It was a further requirement that if the single person wishes to include a dependent child on his or her membership, he or she would have to pay the premium for a Single Parent Family being double the cost of a single membership.

93 In using the word ‘single’ Ms Strong is referring to the person’s marital status, not to the way the word was used by HCF to describe a category, as we discussed above.

94 Ms Strong complains that she was unable to comply with this requirement, that it was not reasonable in the circumstances, and that a substantial proportion of people not of her marital status (ie, not ‘single’) complied or were able to comply with it.

95 Our first observation regarding Ms Strong’s formulation is that to the extent that it refers in part to a current state of affairs, and not only to the state of affairs at the relevant time, is irrelevant to these proceedings.

96 Our second observation is that HCF is not correct to object to Ms Strong’s formulation, as it has done, on the basis that it is not ‘facially neutral’ but is directed to ‘single persons’. There is no such prescription as to the terms in which a requirement that is the subject of a discrimination claim must be expressed. The concept of ‘indirect discrimination’ is intended to identify the discriminatory effect of a ‘facially neutral’ requirement when the imposition of that requirement would not constitute ‘direct’ discrimination. The ‘facially neutral’ character of a requirement is sufficient but not necessary to found a claim of indirect discrimination. Contrary to HCF’s submission, a claim based on a requirement will not fail only for the reason that the imposition of the requirement can, because of its terms, also be complained of as direct discrimination.

97 Our third observation is that if a requirement is to be a relevant requirement for purposes of the Anti-Discrimination Act it needs to arise in an area of activity that is addressed by that Act and, in this case, be properly the subject of s39(1)(b). The requirement as formulated by Ms Strong does not. As formulated by Ms Strong, the requirement of which she complains arises in the area of ‘membership of an organisation’. Even though s57 of Act says that certain organisations are not affected by the Anti-Discrimination Act in relation to admission to membership, the Anti-Discrimination Act does not address that activity (and see Khan v Blacktown City Community Radio SWR FM Association Inc [2006] NSWADT 15 at [11]; Khan v Cumberland Community Radio Inc trading as 2CCR-FM [2006] NSWADT 222 at [11]).

98 If we were to make findings on Ms Strong’s proposed formulation of the requirement she says HCF imposed on her, we would have to say that such a requirement related to admission to membership, which is not an area of activity covered by the Anti-Discrimination Act. We would dismiss the complaint on that basis.

The Tribunal’s proposed formulation of the requirement

99 But Ms Strong’s complaint – see para [7] above – is not in fact about her admission to membership. It is about the cost to her of the service she was provided as a member. Because of the conflation of membership status and price-setting in the way HCF charged for its healthcare cover – see paras [9]-[23] above – a requirement could be framed either in a way that relates to membership, or in a way that relates to the cost of the service. But to frame it in a way that relates to membership would be to direct attention to whatever it was that HCF did to admit Ms Strong to membership, and that is not an area of activity that is covered by the Act. To be conduct that is properly the subject of complaint under the Act the requirement must be one that is concerned with whatever it was that HCF did in setting a price for its service. It is, in fact, that term of HCF’s provision of a service that Ms Strong has complained about.

100 Accordingly, Ms Strong’s contention is better stated in this way, retaining as much as possible the form of her original contention:

It was a condition or requirement that to be provided with a healthcare cover service for the cost of a single membership, a single contributor could not include his or her dependent child in the receipt of the healthcare cover service .

It was a further requirement that if the single person wished to include a dependent child in the receipt of the healthcare cover service, he or she would have to pay the premium for a Single Parent Family being double the cost of a single membership.

101 It causes no prejudice to HCF to recast the requirement as formulated by Ms Strong in a way that clearly addresses an area of activity covered by the Anti-Discrimination Act . HCF conducted its case throughout on the basis that Ms Strong’s claim concerned not qualification and payment for membership in its own right, but qualification and payment for membership as the basis on which the cost of a service was set.

102 We note that although the Anti-Discrimination Act exempts the provision of services to a contributor by some organisations, the Tribunal has already decided that HCF is not one of those exempt organisations (Strong No 1 at [21]-[109]).

Operation of the first part of the requirement

103 The first part of the proposed condition or requirement – that ‘to qualify for a single membership, a single contributor could not include his or her dependent child in the single member policy’ or, as we have put it differently, that ‘to be provided with a healthcare cover service for the cost of a single membership, a single contributor could not include his or her dependent child in the receipt of the healthcare cover service’ – is problematic in three ways.

104 First, on the reasoning of the High Court in Amery, this appears not to have been a requirement within the meaning of the Anti-Discrimination Act. In State of NSW v Amery at 216 Justices Gummow, Hayne and Crennan said that

The distinction between permanent and non-permanent teachers in the Education Teaching Service is a feature of the structure of the workforce employed in that Service. That structure was not adopted by decision or practice of the Department. It was imposed by the Teaching Services Act .
105 Similarly it can be said in this matter that
The distinction between membership categories in HCF is a feature of the structure of the healthcare cover service provided by HCF. That structure was not adopted by decision or practice of HCF. It was imposed by the conditions of registration pursuant to the National Health Act.
106 In Amery , what appeared to be an imposed requirement was, rather, “an incident of the management” (at 216) of the categories that were imposed by an Act. The same can be said here: what appears to be an imposed requirement was, rather, an incident of HCF’s management of the categories of membership that were imposed by the conditions of registration.

107 Secondly, as an alternative to the reasoning of the High Court in Amery, the first part of the proposed condition or requirement is covered by s54 of the Anti-Discrimination Act. Section 54 exempts from the Anti-Discrimination Act anything necessarily done to comply with an Act or an instrument made under an Act. HCF has relied on s54 in these proceedings and the Tribunal has agreed that “it does seem that, in setting its categories of membership, HCF complied with conditions of registration pursuant to s73B(1) of the National Health Act, determined by the Minister in 1996 (Strong No 1 at [154]).

108 The membership category and its scope of coverage were prescribed not by HCF but the Commonwealth Government. A registered health care fund could provide its services under only those membership categories or some of them, with the prescribed scope of coverage in each category. HCF did not set eligibility requirements for the membership categories. Those requirements were set by the Minister and advised by HBF Circular 463. When HCF required members to choose among only those categories of membership it was merely giving effect to the Minister’s Determination and the prescribed conditions of registration.

109 Finally, and fundamentally, whether it was an incident of the management of the categories that were imposed by an Act (according to Amery), or it was necessarily done to comply with an Act (and caught by s54), or it was HCF’s own invention, the first part of the proposed requirement is not a requirement that HCF actually imposed on Ms Strong. Ms Strong’s proposed formulation does not describe what actually happened between her and HCF.

110 Ms Strong did not want or seek to qualify for a single membership, so a condition that she could not include her dependent child in that membership was never imposed on her. Similarly, Ms Strong did not want or seek to be provided with health care cover for the cost of a single membership, so a condition that she could not be provided with health care cover as well for her dependent child was never imposed on her.

111 At no stage did Ms Strong seek single membership. At no stage has Ms Strong complained about terms on which single membership was available. HCF did not impose any requirement on her regarding single membership. Ms Strong sought from HCF healthcare cover for herself and her son, and HCF offered her healthcare cover on terms that required her to pay the rate set for Family membership.

Operation of the second part of the requirement

112 In the second part of her proposed requirement Ms Strong says that she was required to pay the monthly contribution rate for the Family membership so as to include a dependent child on her membership. To bring it within the operation of the Act we have recast her proposed requirement to say that it was so as to include a dependent child in the receipt of the healthcare cover service. In either case, the important point Ms Strong wishes to make is that to include her dependent child, she was required to pay the monthly contribution rate for the Family membership.

113 This is true. It was, as Ms Strong contends, in fact a requirement of the provision of health care services to her and her dependent child that she pay the monthly contribution rate for the Family membership. The second part of the requirement proposed by Ms Strong is in fact the whole of the requirement imposed on her by HCF:

if the single person wished to be provided with health care cover service for a dependent child as well as for themselves, he or she would have to pay the premium for a Single Parent Family being double the cost of a single membership.
114 This was a requirement entirely within the discretion of HCF to impose. As the Tribunal has said previously ( Strong No 1 at [154]), HCF was not required to set or maintain the 1:2:2 cost relativity between the categories of membership.

115 After the Minister’s Determination in 1996, HCF was free to charge what it liked for membership of each category, and to abandon any necessary relativity between categories. HCF did however give effect to the previously established 1:2 ratio, and so the cost of health cover for people in the Family category was twice that for people in the Single category: HCF required people who were in a category other than ‘Single’ to pay twice the ‘Single’ category’s monthly contribution as the cost of health cover.

116 Unlike the first part of the proposed requirement, this second part was neither an incident of the management of the categories that were imposed by an Act, or necessarily done to comply with an Act. It was a requirement that HCF decided to impose. Most of the evidence in the Tribunal’s inquiry was directed towards whether it was reasonable in the circumstances for HCF to impose it.

Ability to comply

117 Ms Strong was able to comply with the requirement that for healthcare cover for her dependent child she pay the same as a couple who had cover for a dependent child. She didn’t like, it, and she felt it was unfair. She was required to pay the same amount to cover one adult and a child as someone else paid to cover two adults and a child. She was able to pay this amount – she had been doing it for some years – but, understandably, she no longer wanted to.

Finding

118 The first part of Ms Strong’s complaint of indirect discrimination is that HCF imposed on her a condition or requirement that to be provided with health care cover for the cost of a single membership she could not be provided as well with health care cover for her dependent child. But that, as we have said, was necessary to comply with the National Health Act, and was not in fact a requirement that was imposed on Ms Strong. Her inability to comply with it never arose, in fact or in prospect. It related to a service other than the service she asked for.

119 The second part of Ms Strong’s complaint of indirect discrimination is that HCF imposed on her a condition or requirement that she pay the same as a married couple paid for cover. This was in fact the actual requirement imposed on Ms Strong. There is no evidence, and no suggestion, that she was not able to do this, even in a practical sense. She had been doing it for some years. For this reason Ms Strong has not established that she was subject to unlawful discrimination.

120 Ms Strong was not required to comply with a requirement or condition with which she was unable to comply, and so has failed to establish her complaint of indirect discrimination. Because the requirement she relies on is not in ‘facially neutral’ terms it clearly invites an alternative claim of direct discrimination, which we have dealt with above.

Other possible formulations of the requirement

121 It is possible to formulate a requirement in different terms. But however it is formulated, it must be a requirement that was in fact imposed by HCF, and not one that is merely a way of characterising the circumstances in hindsight, or that is formulated as an intellectual exercise, or that is formulated for the purpose of constructing a requirement with which Ms Strong would, hypothetically, have been unable to comply. And, as the High Court pointed out in Waters, it must be a requirement and not a feature of the service itself.

122 In her actual complaint, Ms Strong’s identified a requirement in terms different from those on which she relied in the inquiry. Rather than saying that the requirement was concerned with having coverage for a dependent child, Ms Strong’s original complaint was that “to gain equitable cover, including free cover for a dependent child, I am required to have a spouse” (emphasis added). In Strong No 1 the Tribunal saw some possible substance in this. It now appears to us, however, that such a requirement would not pass the test of ‘did HCF actually impose that requirement?’.

123 In making this claim for ‘equitable’ cover Ms Strong said that the service was one that was provided at an amount per head (‘per capita’), or on terms that a child is ‘free’ (She calculates the cost for a married woman as being $86.63 each for two adults and a child ‘free of charge’; this could as readily be calculated as a rate of $57.75 each for three people, or $69.30 each for two adults and $34.65 (half price) for a child). But that is to describe the service that is not in accordance with the facts, and to then import a requirement for such a service that was not in fact imposed. HCF was not providing a service of ‘equitable’ health care service cover, or ‘same cost per capita’ health care service cover. It was providing a health care cover service, and it did so at prescribed rates. Payment of the prescribed rate was a requirement that HCF imposed, and was one that Ms Strong could comply with. There was no actual or implicit requirement that she be of any particular marital status.

124 Ms Strong says that if the cost were to be calculated, for example, on a per capita basis, she was paying more per capita than certain other members. That may be so, but it is not in fact the way the service was provided. Only if HCF’s service is, contrary to the facts, characterised as one that, of its nature, was an ‘equitable’ or ‘same cost per capita’ service can an argument be made that marital status was a requirement.

125 In any event, that is to speculate on how a requirement other than that proposed by Ms Strong to the inquiry would fare were it to be the subject of this decision. As a matter of fairness, no requirement other than that proposed by Ms Strong can be the subject of this decision.

126 As we noted above at [89]-[92], our inquiry has been conducted throughout on the basis that Ms Strong, with legal advice and representation, has had sufficient time and opportunity to consider her position and a proposed formulation of the requirement offered by the Tribunal, and has repeatedly relied on her proposed formulation of the requirement. HCF responded to Ms Strong’s claim of discrimination in those terms.

127 Procedurally, the undoubted necessity of a respondent’s being on notice as to the discriminatory requirement they are alleged to have imposed sits awkwardly with the established obligation on the Tribunal to ascertain, as a matter of fact, the actual requirement, if any, imposed by the respondent. The reason for this awkwardness is twofold.

128 First, it is open to the Tribunal, in discharging its obligation to make a finding as to the existence and terms of a requirement, if any, imposed by a respondent, to find on the evidence that the respondent in fact imposed a requirement that was different in its terms from that alleged by the applicant. That finding would not usually be made until the close of the evidence, and so at a stage when it would be necessary to re-open the inquiry to allow the parties to be heard on the conclusion the Tribunal says the evidence leads to.

129 Secondly, during the course of an inquiry the parties will have led evidence on the reasonableness of the requirement that has been relied on by the applicant. A finding by the Tribunal that the requirement was in fact in terms other than that contended for by the applicant would again result in the need to re-open the inquiry to allow the parties to lead fresh evidence addressing the reasonableness of the requirement found by the Tribunal.

130 This unfolding process of onus, evidence, reasoning and findings in indirect discrimination is illustrated in Waters, where it was not until the High Court decision that the formulation of the requirement was resolved; the matter was then remitted to the primary jurisdiction to consider and decide the issue of reasonableness. In Keenan v The Age Company Limited [2004] VCAT 2535 the Victorian Civil and Administrative Tribunal (VCAT) identified, at [42]-[45], the difficulty in being both fair and efficient when trying to make findings as to both the terms of the requirement actually imposed and the reasonableness of that requirement. In that matter, the applicant re-formulated the alleged requirement only in the closing address, leading VCAT to allow the respondent to call some further evidence at that very late stage. VCAT said

There is some force to [the respondent’s submission] that the late formulation of the case ... denied the respondent the opportunity to explore the appropriateness of the formulation through the evidence. Nevertheless, while not deciding that it is an appropriate formulation, given the duration of the hearing and the extent of evidence adduced, I shall proceed on the basis of that formulation to consider whether indirect discrimination is otherwise established in this case
131 In this matter the parties have been represented during the inquiry. As we noted above, Ms Strong, although she represented herself prior to the commencement of the substantive hearing, was legally advised and represented in the preparation of pleadings and in the conduct of her case before the Tribunal. In the circumstances, it is efficient and fair to decide the complaint on the basis that it was put by Ms Strong and answered by HCF. Our finding as to the existence and terms of any requirement imposed on Ms Strong by HCF is, therefore, a finding as to the existence and terms of the requirement Ms Strong contends was imposed on her by HCF – recast slightly by us to bring it within the coverage of the Anti-Discrimination Act – and we decide her complaint on that basis.

Reasonableness

132 Most of the evidence in the inquiry was directed to the issue of the reasonableness of HCF’s maintaining the 1:2:2 cost relativity between categories. In light of our finding that the requirement was not discriminatory it is not necessary for us to make findings on its reasonableness in the circumstances.

ORDERS

The complaint is dismissed.