QZ v Sydney South West Area Health Service & Anor [2012] HCATrans 164 (22 June 2012)

Last Updated: 27 June 2012

[2012] HCATrans 164

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S22 of 2012

B e t w e e n -

QZ

Applicant

and

SYDNEY SOUTH WEST AREA HEALTH SERVICE

First Respondent

QY

Second Respondent

Application for special leave to appeal

GUMMOW J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 22 JUNE 2012, AT 11.25 AM

Copyright in the High Court of Australia

MR C.S. WARD: May it please the Court, I appear with my learned friend, MR G.J. BLANK, for the applicant. (instructed by HIV/AIDS Legal Centre)

MS M.A. PERRY, QC: May it please the Court, I appear for the first respondent with my learned friend, MR D.F.C. THOMAS. (instructed by GILD Insurance Litigation)

GUMMOW J: Thank you. There is a submitting appearance, is there?

MR WARD: Yes, your Honour, from the second respondent.

GUMMOW J: The second respondent, yes.

MR WARD: The second respondent, your Honour, was the second applicant below.

GUMMOW J: Yes.

MR WARD: Your Honours, this application raises a special leave question in relation to the construction and operation of section 49B of the Anti-Discrimination Act (NSW) as it stood in 2007. Relevantly there has been no change to that provision to today. Section 49B provides that:

A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of the 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 –

a comparator. That represented an extension to the Act introduced in 1994. That is, it introduced the concept that an associate of a person whom had a primary characteristic, in this case the characteristic of a disability, could themselves be an aggrieved person. The central question on the application is whether section 49B, properly construed in the context of the objects of the Act, protects a person who suffers discrimination solely referrable to their personal association with a person with one of the primary characteristics, in this case a disability, where the act of discrimination occurs after the death of the person with a disability.

The Court of Appeal determined the matter adversely to my client on the basis of an issue which arose late in the proceedings, being whether or not the reference in section 49B to an “associate” required a present or living association. The question was said to arise by the Court of Appeal because of the terms of the definition of “associate” in section 4 of the Act. Section 4 your Honours will find at page 3 of the respondent’s - - -

GUMMOW J: This is difficult legislation as we all know. What is the disability of the associate identified in 49B(1) and at what point of time do you identify an associate?

MR WARD: That is the question, your Honour. The disability in this case was the presence of the HIV organism in the body of the deceased. The facts involved, your Honour, an autopsy that was conducted upon - - -

GUMMOW J: I think Ms Perry would argue that the deceased person could not suffer from a disability.

MR WARD: Yes. If I could draw your Honours’ attention to the definition of disability, which is conveniently found at page 3 of the respondent’s materials, “disability” means:

the presence in a person’s body of organisms causing or capable of causing - - -

GUMMOW J: “Person” would ordinarily mean a living person, I think.

MR WARD: There was a second question in the case, your Honour, which is one of the reasons that this is an appropriate vehicle for special leave. The question was whether or not reference to a “person” in 49B required a reference to a living person at the time of the act of discrimination. That question was not decided by the Court of Appeal. Justice Campbell would have found favourably to my client that a deceased person remained a disabled person.

GUMMOW J: I know, it is held in terrorem....here.

MR WARD: Yes. That undoubtedly will be one of the questions that my friend will seek to raise by way of notice of contention if leave is granted. But, your Honour, we say in relation to your Honour’s question as to disability, that the body continued to contain within it the presence of organisms causing or capable of causing disease or illness. Indeed, that is the very factual matter that is put against the proposition that an autopsy should have been conducted by the respondent. They say that there remains a risk, by reason of the presence of an organism, capable of causing illness. Could I also mention, your Honour, that section - - -

KIEFEL J: Justice Young at special leave book page 57, paragraph 104, refers to section 49P of the Act which excuses discrimination in the event of an infectious disease.

MR WARD: It does, your Honour.

KIEFEL J: But his Honour did not apply that?

MR WARD: No. The difficulty with section 49P is that there was no consideration of the facts which would give rise to that in any detailed level. The matter came before the Court of Appeal on the basis of a strike out that was brought at a very early stage before the ADT at first instance.

KIEFEL J: I see.

MR WARD: So there were very limited facts, but sufficient facts for this question to be tested in this Court.

KIEFEL J: Did his Honour deal with the question of – perhaps did not resolve the question of whether or not a post-mortem examination is a “service” within the meaning of the Discrimination Act?

GUMMOW J: Section 49M, is it not?

MR WARD: That is 49M, that is right, and that is the provision upon which my clients rely to give the substantive declaration of discrimination. Justice Young, I think, did not squarely decide the service but thought that it may have been a service. The other members of the court expressly do not decide the question.

KIEFEL J: But I think it is raised against you by the respondent.

MR WARD: By way of a foreshadowed notice of contention, yes.

KIEFEL J: Yes.

MR WARD: There is at the moment one limited affidavit of, I think, a [P] which was before the Tribunal, which goes to the reasons by which the respondent was said not to conduct an autopsy.

KIEFEL J: Why would this be? What is your answer to it, in any event? Why would this be a service to the person suffering from the relevant disability, the post-mortem examination?

MR WARD: It is not a service to the person suffering the disability. It is a service to the aggrieved person, in this case being the associate, in this case the long-term domestic partner of the person with the disability. With respect, your Honour, that is one of the issues we have with the Court of Appeal’s reasoning. Throughout and, in particular, with respect, in the decision of Justice Young there is a conflation of the person aggrieved with the person with a disability which has given rise, we say, to some confusion in the judgment. The person – in this case the person aggrieved – is not the person with the disability and therefore the sole question is whether or not the person who suffers the discrimination does so by reference to a particular personal relationship with a person with a characteristic and that is this case.

GUMMOW J: I suppose the question – I put it to you wrongly I think – there is no doubt that your client who is the aggrieved person, alive and well as it were, it is the associate?

MR WARD: That is right, the associate was dead.

GUMMOW J: The associate have to have the characteristics of a person?

MR WARD: Well, Justice Campbell would say no and we respectfully adopt what Justice Campbell says about that. We say that the context of the Act uses the word “person” in two distinct ways. The first is in relation to an aggrieved person and they are then given rights to make application under section 87 or remedies under section 108, and I do not need to take your Honours to those provisions, but only an aggrieved person may make a claim. Certainly we accept that that person has to be a living person. That is consistent with the existing authorities from lower courts in relation to causes of action that may arise by reason of discrimination before death, that is where the act of discrimination occurs before death, but where the aggrieved person dies and somebody else then maintains that pre-existing cause of action on their behalf.

That distinction is drawn expressly in the Act. The action would then continue under express statutory extension, but what we have is, we say, an artificial importation of a temporal connection in the definition of section 4 “associate”. If your Honours look at the definition of “associate” in section 4 at page 3 of the respondent’s appeal book, “associate” is defined to be “any person with whom the person associates”. Now, that provision was introduced by amendment in 1994. The 1994 amendment introduced it in the same breath as the word “relative”, that is, it extended protection to both a relative and an associate of a person with a characteristic, be it a racial characteristic or in this case a disability characteristic. It was an attempt by the Parliament, we say, to significantly broaden the scope of the Act.

There was some attention given to a temporal connection in this respect. Section 49A – and your Honours will find that at page 6 of the respondent’s book – section 49A extends the definition of “disability” to “past, future and presumed disability”. So one answer to what your Honour Justice Gummow put to me about the existence of organisms in the body is that a presumed disability – and we say we have that in this case because the department presumes there to be a risk – a presumed disability is caught. More significantly, for the present purposes, a discrimination which is a past disability, based on a past disability, is also caught expressly. So where the legislature turned their mind to questions of past disabilities, they expressly tried to catch it.

What the Court of Appeal has done, with respect, is adopt an approach which his Honour Justice McHugh in Kelly v The Queen, which we have extracted in our materials, would say is an impermissible approach, that is, it attempts to give substantive work to do to the definition of “associate”. In our submission, what has occurred is that the legislature has significantly sought to extend the coverage of this legislation, and to do so to encompass relationships of a personal character or quality. It has not sought to catch broader associations.

So, for example, one might say that I am associated with Martin Luther King by reference or by reason of my lengthy and wholehearted support for his words and principles. That would not be an association caught by the Act. But a long-term personal association – in this case what would now be described as a bona fide domestic relationship, although the de facto provision in the Act at the time which is now present in the Act was not there at the time – a long-term personal relationship which then gives rise to discrimination on the ground of a disability of the associate should, we say, by reference to the second reading speech and the overall objects and purpose of the Act glean from its words, squarely be caught.

The alternative has some surprising consequences. If the Court of Appeal is correct, first, there is an open question as to “person” and the court also seems to think that there is an open question as to “relatives”, that is, you may be the subject on the Court of Appeal’s decision – potentially be the subject of legal discrimination on the basis of a past marriage but not an existing marriage, of a past personal familial relationship with somebody who has died and, certainly on the Court of Appeal’s judgment, with any association which has ceased even through the misfortune of death.

If one, for example, went to rent a house and was told by the landlord that we will not rent you a house because you were last week in a relationship with an HIV positive man but that HIV positive man had the misfortune to have died yesterday, on the Court of Appeal’s construction that discrimination would be legal and that, we say, would be a very surprising result to the legislature.

The statute is a beneficial statute. It should not be interpreted narrowly, and we rely upon Waters v Public Transport Corporation. We

freely acknowledge that the authority relied upon by my friend in IW prohibits any strained interpretation, but your Honours would equally be aware that where the legislature fairly plainly intended to catch a concept but has missed it by inadvertently forgetting to include a small number of words, those words can be read into - - -

GUMMOW J: Well, I think the legislature also overlooked the Coroners Act and to think about the interrelation, this statute and the Coroners Act.

MR WARD: Possibly not, your Honours, but we say that the Coroners Act is not going to affect the outcome in these proceedings. We say that there is undoubtedly a question of service which will arise and we - - -

GUMMOW J: The post-mortem was conducted under an order from the responsible magistrate, was it not?

MR WARD: It was, and we do not take any issue with the individual actions of the doctor who conducted the autopsy and we made that point to the Court of Appeal below. The assertion of discrimination arises not from any vicarious liability of the respondent through its doctor, but, instead, from the direct application of the respondent’s own policy, that is, a direction from the respondent to its doctor not to conduct an autopsy. So we say the Coroners Act question, although interesting, do not arise.

GUMMOW J: You have to say the direction under the Coroners Act was beyond power in some way because it conflicted with this other statute?

MR WARD: We have not at this stage taken that point, your Honour. I can see that it may come alive if there is a special leave grant. Your Honour, what we do say is that the decision of the respondent to maintain a policy of this type is, in the facts of this case, generating a very appropriate vehicle for these more substantial questions to be determined by this Court. No superior court, to our research, has investigated this particular obvious lacuna in the legislation and it is one which we say arises not just in the New South Wales statute, but also in the Disability Discrimination Act (Cth), the Racial Discrimination Act and two or three other State Acts, that is, it is a question of more general application. Unless there is anything further, those are our submissions.

GUMMOW J: Thank you. Yes, Dr Perry.

MS PERRY: Thank you, your Honour. We say that the short point is that the Court of Appeal decision is not attended by sufficient doubt to warrant the grant of special leave. Section 49M(1) is said to have been contravened on the basis that QZ was an associate of Mr B and the respondent treated QZ, or the applicant, less favourably by reason of Mr B’s disability, being HIV positive, than it would have treated a person whose relative had no disability.

However, as the Court of Appeal unanimously held, the terms in which Parliament has defined “associate” in section 4(1) of the Anti-Discrimination Act are clear and have the consequence that upon death the deceased ceased to be an associate and, equally, that result would follow on a parting of the ways. It is apparent, as the Court of Appeal held, that Parliament has used the present tense in the sense of an activity of associating which is carried on at the time and that time, by virtue of section 49B defining what constitutes discrimination on the ground of a disability, is the time at which the action said to constitute the discrimination took place, which was relevantly the return of Mr B’s body in an unreconstructed state.

KIEFEL J: The Court of Appeal did not determine the question whether or not the deceased continued to have a disability after death?

MS PERRY: No. The only member of the court who expressly addressed that ground was Justice Young and his Honour considered that that was a question that ultimately collapsed into the question of whether a deceased person was a person for the purposes of the Act. That is not a conclusion with which we would agree. Our submission was that a person cannot be disabled, there is no ability that is effectively disabled unless one is dealing with a living person.

KIEFEL J: Talking about the functioning of a person in society.

MS PERRY: Yes, indeed your Honour, that is what we said below. The definition of “associate” is not a case, as his Honour Justice Campbell held, where the present tense has been used in the sense of the timeless present tense which refers to facts which are always the same. Paris, for example, is the capital of France, and so forth, and while not an issue here, another example is that A is related by blood to B, notwithstanding that B is dead. But associations are different.

Friendships do not necessarily last. Social and business associations may be fleeting, and there is nothing in the terms of section 4(1) that suggests that an association of the relevant kind is limited to a long-term personal relationship. Equally, relationships of dependency, which comprise the second limb of the definition of “associate”, may come to an end. Children leave home. The expression of this limb of the definition of “associate” we say is no different. In its ordinary meaning it refers to an existing relationship of dependency and not one that merely existed in the past.

Much weight is placed by the applicant on the remedial or beneficial purpose of the Anti-Discrimination Act. However, such a rule must be applied still with a watchful eye. The proper principles of statutory interpretation still must be applied and the existence of the general purpose cannot be used, as my learned friend conceded, to strain the language. The starting point to discerning legislative change must always be the text and it is that which is the best indicator of legislative intent. It may be difficult to discern a policy reason that is furthered by drawing the line of protection afforded by the Act against discrimination so as to exclude discrimination on the ground of past associations and the Court of Appeal acknowledged that, but one possibility is the indeterminate nature of the class of persons who might be associates if past association was sufficient, and the difficulties, for example, of proving past associations such as friendships formed in childhood.

Alternatively, as Justice Campbell said in his reasons, it may be that, rightly or wrongly, the Parliament considered that certain circumstances were too unlikely or occurred too infrequently to warrant legislative prohibition. In any event, the history of the Act in common with other anti-discrimination legislation is one of incremental development to cover more and more cases and the process of construction we say in that context ought not to be approached on the assumption that the Act is comprehensive and fully reflective of what might be ideal by society’s values.

For example, on no view, we say, could the definition of “associate” be met on the basis that a person was merely perceived to be or thought to be associating with a person. Yet discrimination on the basis that a person is merely perceived to be associating, for example, with a person of a different race or who has a disability, is an equally arbitrary ground of discrimination. One may contrast in this regard the definition of “disability” in section 49A, to which my learned friend has already taken the Court, and which does extend expressly to a disability that a person is thought to have. The impact of the incremental development of discrimination law on the questions of construction were properly taken into account, we say, by Justice Young in the appeal book at page 60, paragraph 118, and also at page 65, paragraph 144, and properly taken into account in line with the approach of Chief Justice Brennan and Justice McHugh in IW v City of Perth.

In short, however tantalising the other questions are that might have been addressed, this case we say turned ultimately on a straightforward question of statutory construction which is not attended by sufficient doubt. Unless there are any other matters on which I can assist the Court, those are our submissions.

GUMMOW J: Thank you. Yes, Mr Ward.

MR WARD: Just one point briefly, your Honour. My learned friend makes the point that fleeting or tenuous associations may fall within the expanded definition if our contentions are correct. The question is not whether there is a fleeting or tenuous association. The question is, on the evidence for a primary fact finder, whether or not the discrimination that is alleged under section 49B arises because of a relationship of association. That is the question and the question is one of fact for the ultimate fact finder. The tenuousness of that relationship is no doubt something which will be taken into account in making that determination of whether there is a causal connection between the association and the discrimination complained of.

GUMMOW J: This litigation arises from the summary dismissal upon a limited body of evidence of a complaint under the Anti-Discrimination Act 1977 (NSW). If special leave were to be granted, there would arise a number of issues of statutory construction, as noted in paragraph 23 of the first respondent’s submissions, in addition to the ground upon which the Court of Appeal of New South Wales decided the matter. It would be necessary for the applicant to succeed upon these issues as we see it to achieve ultimate success.

There are insufficient prospects of success in that fashion to warrant a grant of special leave. Special leave is refused.

You seek costs, do you?

MS PERRY: Yes, we do, your Honour.

MR WARD: There is nothing we can say to that, your Honour.

GUMMOW J: All right – is dismissed with costs.

AT 11.50 AM THE MATTER WAS CONCLUDED