Commission Submission - Maslauskas v Qld Nursing

 

IN THE FEDERAL MAGISTRATES COURT

OF AUSTRALIA

REGISTRY:  SYDNEY

 

DARINA JOSEPHINE MASLAUSKAS

Applicant

QUEENSLAND NURSING COUNCIL

Respondent

SUBSTANTIVE SUBMISSIONS OF THE ACTING DISABILITY DISCRIMINATION COMMISSIONER

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A. Scope of submissions

1. These submissions address the following issues that have been raised by the respondent’s strike out application and the applicant’s application for leave to proceed out of time:
   
   1. whether s 19 of the Disability Discrimination Act 1992 (Cth) (‘DDA’) has effect in these proceedings;
   2. the general principles that govern determination of an application under r 13.10 of the Federal Magistrates Court Rules 2001 (Cth) for a stay or dismissal of a disability discrimination application; and
   3. the appropriate test for determining the comparator for the purposes of s 5(1) of the DDA.

B. Background facts relevant to these submissions

2. Prior to the events the subject of this application the applicant was a nurse registered to practice in Queensland.
3. The respondent is a body corporate established pursuant to s 6 of the Nursing Act 1992 (Qld) and can sue and be sued in its corporate name (see s 6(2)(c) of the Nursing Act).
4. One of the respondent’s functions is to ‘establish and maintain a register and a roll of nurses’ (s 7(i) of the Nursing Act) and ss 67, 69 and 70 of the Nursing Act give the Council the power to suspend or (in the case of s 70) cancel a nurse’s registration.  One of the consequences of not being registered is that the person cannot practise as a registered nurse (see s 77H of the Nursing Act).
5. On 27 June 2005, the Executive Officer of the respondent suspended the applicant’s registration as a nurse pursuant to s 68 of the Nursing Act 1992 (Qld).
6. On 1 July 2005, the respondent determined to continue the suspension of the applicant’s registration.
7. On 26 August 2005, following a health assessment by a Dr Donald Grant, psychiatrist, the respondent determined to continue the suspension of the applicant’s registration as a nurse until such time as she was able to provide evidence of fitness to practise.
8. On 8 November 2005, the Queensland Department of Health terminated the applicant’s employment as a nurse because of the suspension of her registration. 
9. On or around 25 November 2005, the applicant lodged a complaint with the Human Rights and Equal Opportunity Commission (‘HREOC’) against the respondent alleging, amongst other things, that the respondent had discriminated against her on the grounds of disability.
10. On 5 June 2006, the delegate of the President of HREOC terminated the applicant’s complaint on the ground that she was satisfied that there was no reasonable prospect of the complaint settling through conciliation.
11. On 8 October 2007, the applicant filed an Application Alleging Unlawful Discrimination (‘the Application’) with the Federal Magistrates Court.
12. On 12 December 2007, the respondent filed an Application in a Case seeking that the Application be stayed permanently or dismissed generally pursuant to Rule 13.10 of the Federal Magistrates Rules 2001 (Cth).
13. On 20 February 2007, the Court will hear:
    
    1. the applicant’s application for extension of time; and
    2. the respondent’s application for summary dismissal.

C. Does s 19 have effect in these proceedings ?

14. The Commissioner submits that s 19 does have effect in these proceedings by virtue of s12(8)(a) or (e) of the DDA.
15. The respondent concedes that the DDA binds the Crown in right of the State (see [34] of the respondent’s submissions), however, it asserts that s 12(6) of the DDA limits the application of s 19(1) to qualifying bodies exercising a power under a Commonwealth law.
16. The Commissioner:
    
    1. agrees that s 19(1) is a ‘limited application provision’ for the purposes of s 12 of the DDA (see definition of this phrase in s 12(1) of the DDA and [36] of the respondent’s submissions); and
    2. agrees that s 12(6) of the DDA does not provide a basis for arguing that s 19 applies with respect to qualifying bodies exercising a power under a State law.
17. However, whilst the respondent has considered whether s 19 has effect by virtue of s 12(6), the respondent’s submissions fail to consider whether s 19 has effect by virtue of one of the other subsections in s 12.  The Commissioner submits this is, with respect, an erroneous approach for the following reasons:
18. the wording of s 12(6) does not purport to limit the application of s 19 solely to the circumstances set out in that subsection; and
19. the wording of s 12(4) combined with the wording of ss 12(7) to (13) make clear that s 19 may also have effect as provided for in subsections (7) to (13).

Section 12(6)

18. Whilst s 12(6) refers expressly to s 19 and provides for circumstances in which s 19 may have effect, the wording of subsection (6) does not purport to limit the application of s 19 solely to the circumstances set out in that subsection.  Subsection (6) provides:
    

    Section 19 has effect in relation to discrimination by….    

    If the legislature had intended s 19 to be limited in its operation to the circumstances set out in subsection (6) then the subsection would have provided as follows: ‘Section 19 only has effect in relation to…’.  The Commissioner submits that the legislature has specifically chosen not to use the word ‘only’ in subsection (6) because they did not intend s 19 to be limited in its application to the circumstances set out in that subsection.

Sections 12(4) and (7) to (13)

19. Further, the Commissioner submits that the wording of s 12(4) combined with the wording of subsections (7) to (13) support the Commissioner’s view that s 19 is not limited in its operation to the circumstances set out in subsection (6) and may have effect as provided for in subsections (7) to (13).

Section 12(4)

20. The limited application of s 19(1) arises not by virtue of s 12(6) but by virtue of the terms of s 12(4) of the DDA.  Section 12(4) provides:
    

    (4) The limited application provisions have effect as provided in subsection (3) of this section and the following provisions of this section and not otherwise.

    The language of s 12(4) makes clear that the ‘limited application provisions’, which includes s 19, have effect as provided for in:

    1. subsection (3); and
    2. the subsections that follow subsection (4), being subsections (5) to (14).

Subsections (7) to (13)

21. Subsections (7) to (13) set out circumstances in which the ‘limited application provisions’ can have effect.  All of these subsections commence with the words:
    

    The limited application provisions have effect in relation to….   (emphasis added)

    Subsections (7) to (13) therefore expressly provide for circumstances in which any one of the ‘limited application provisions’, which includes s 19, can have effect.  The Commissioner submits that a plain reading of subsection (4) and subsections (7) to (13) is that s 19 has effect as provided for in any of those subsections and is not limited in its operation to the circumstances set out in subsection (6). 

The authorities relied upon in the respondent’s submissions

22. In the respondent’s submissions in relation to s 12(6) it relies primarily on the following two authorities:
    
    1. Fernley v The Boxing Authority of New South Wales (2001) 115 FCR 306; and
    2. Court v Hamlyn-Harris [2002] FCA 1870.
       
       The Commissioner makes the following submissions about these two cases.

Fernley

23. The Commissioner submits that the decision and reasoning in Fernley is not relevant in this case because:
    
    1. it concerned the provisions of the Sex Discrimination Act 1984 (Cth) (‘SDA’) not the DDA, and
    2. the SDA, as the respondent itself concedes in its submissions (at [33]), differs significantly from the DDA in that the SDA expressly provides, in a 12(1), that the SDA does not, except as otherwise expressly provided, bind the Crown in right of the State whereas the DDA expressly provides that is does bind the Crown in right of the States (see s14).

The decision in Fernley therefore concerned the issue of whether the SDA ‘otherwise expressly provided’ that the Crown in right of the States was to be bound by s 18 of that Act.  Given the presence of s 14 of the DDA that is not an issue that arises for consideration in these proceedings.

24. Further, the respondent has, with respect, incorrectly summarised the findings of the judge in the Fernley decision.  The respondent submits (at [32]) that ‘his Honour referred to section 9(6) of the SD Act, which had the effect of limiting section 18 only to Commonwealth authorities; and section 9(7), which limited section 18 to exercises of power under Commonwealth or Territory laws’ (emphasis added).  The Commissioner submits that Justice Wilcox did not in Fernley hold that 9(6) and (7) ‘limited’ s 18 to Commonwealth authorities and Commonwealth or Territory laws.  Rather, his Honour held that s 12(1) limited the operation of the SDA to the Crown in right of the Commonwealth and of Norfolk Island unless other provisions of the SDA provided otherwise, and ss 9(6) and (7) fail to extend the operation of the SDA to the Crown in right of the State.  In this regard he said the following (at [26]-[27])
    

    26 However, it is common ground that s18 is not available to Ms Ferneley in this proceeding. As I have mentioned, counsel for Ms Ferneley accept the Boxing Authority is properly to be regarded as the Crown in right of New South Wales. The significance of that fact, in relation to the Sex Discrimination Act, is stated by s 12(1) of that Act. That subsection reads:
    
    "This Act binds the Crown in right of the Commonwealth and of Norfolk Island but, except as otherwise expressly provided by this Act, does not bind the Crown in right of a State."
    
    27 Nowhere does the Sex Discrimination Act expressly provide that s 18 (or any other provision in Division 1 of Part II) binds the Crown in right of a State. Section 9(6) has the effect of applying s18 to Commonwealth authorities, and s 9(7) makes it apply to exercises of power under Commonwealth or Territory laws; but there is no corresponding provision in relation to State authorities and State law.

            Hamlyn-Harris

25. The respondent relies on the decision in Hamlyn-Harris for its submission that the ‘limited application’ provisions have effect as stated in s 12 and not otherwise (see [36]-[37] of the respondent’s submissions.  The Commissioner agrees with this but submits, for the reasons outlined below, that subsections 12(8)(a) and (e) do provide that s 19 has effect in this case.
26. In Hamlyn-Harris the Court only considered whether s 15 of the DDA had effect under s 12(12).  It does not appear that Heerey J was referred to other sub-sections of s 12, such as s 12(8).  As such this case is of limited assistance in this matter.
27. Finally, the Commissioner submits that the case that is more directly on point and which should be followed in this case is the decision of Merkel J in Souliotopoulos v La Trobe University Liberal Club and Ors (2002) 120 FCR 584 which is considered below at [35]-[37] of these submissions.

Subsection (8)(a) and (e)

28. The Commissioner submits that s 19 has effect in the present case by virtue of s 12(8)(a) or (e) of the DDA.  Section 12(8)(a) and (e) provide:
    

    The limited application provisions have effect in relation to discrimination against a person with a disability to the extent that the provisions:
    
    (a)  give effect to the Convention; or
    
    …
    
    (e)  relate to matters of international concern.

    Subsection (8) therefore expressly provides that the ‘limited application provisions’, of which s 19 is one, has effect in the above situations.  The Commissioner submits that s 19 has effect in relation to the discrimination the subject of this application, as to do so gives effect to ‘the Convention’ and ‘relates to matters of international concern’. 

Giving effect to the convention

29. Section 4(1) of the DDA defines ‘Convention’ to mean ‘the Discrimination (Employment and Occupation) Convention, 1958 adopted by the General Conference of the International Labour Organization on 25 June 1958…’.   The Convention is International Labour Organisations Convention Number 111 (‘ILO 111’).  The Convention requires Members to take steps to eliminate any ‘discrimination’ in respect of employment and occupations.  Article 2 imposes the obligation and Article 1 defines the terms ‘discrimination’ and ‘employment’. 

Article 2

30. Article 2 of the Convention provides:

Article 2

Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.

‘Employment’ and ‘discrimination’ under ILO 111

31.  ‘Employment’ is defined in Article 1(3) of the Convention to include:

access to vocational training, access to employment and to particular occupations, and terms and conditions of employment



and ‘discrimination is defined in Article 1(2) of the Convention to include:

1. Any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
2. Such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies.

The Explanatory Memorandum to cl 12 of the Disability Discrimination Bill 1992 (Cth) acknowledges that Australia has determined that discrimination for the purposes of the Convention includes discrimination on the grounds of disability.  The Explanatory Memorandum states:

…In relation to ILO 111 Australia determined in 1988 that disability would be regarded as a distinction, exclusion or preference for the purposes of Article 1(b) of that Convention. In 1989 Australia gave limited legislative effect to that determination when it enacted regulations under the HREOC Act giving HREOC authority to investigate complaints in relation to discrimination on the basis of disability in employment.1

32. In light of the above, the Commissioner submits that the Convention requires Members to take steps to eliminate disability discrimination in all forms of employment, including access to employment and particular occupations, regardless of the type of employment and regardless of the identity of the discriminator.  Accordingly, the Commissioner submits that any legislative provision which seeks to prohibit such discrimination, including provisions which seek to prohibit such discrimination by State bodies, gives effect to the Convention.  The Commissioner submits that s 19 is such a provision as it prohibits disability discrimination by qualifying bodies that will limit a person’s access to employment and particular occupations. 
33. The Commissioner further submits that in this particular case s 19 gives effect to the Convention because the applicant alleges that the respondent discriminated against her on the ground of her imputed disabilities by suspending her registration as a nurse and that this suspension resulted in the applicant’s employment as a nurse being terminated.  Accordingly, s 19 gives effect to the Convention, by permitting the applicant to seek redress for an alleged act of disability discrimination that has adversely affected her access to employment.
34. The Commissioner therefore submits that in this case s 19 gives effect to the Convention and therefore has effect in relation to discrimination against a person with a disability by virtue of s 12(8)(a).    

Matter of international concern – s 12(8)(e)

35. The Commissioner submits that s 19(1) also has effect by virtue of s 12(8)(e) as it relates to a matter of international concern.  This view is supported by obiter comments by Justice Merkel in Souliotopoulos v La Trobe University Liberal Club and Ors (2002) 120 FCR 584.  In that case Merkel J expressed the view that all of the limited application provisions in the DDA relate to matters of international concern and therefore have effect by virtue of s 12(8)(e).  His Honour said (at [57]):
    

    Plainly, the purpose or object of Divs 1, 2 and 3 of Pt 2 of the Act is to deal with international concerns about disability discrimination. Accordingly, I am satisfied that the limited application provisions in Divs 1, 2 and 3 of Pt 2 of the Act but, in particular s 27(2), have effect by reason of s 12(8)(e).  

The particular provision of the DDA that Justice Merkel was dealing with in that case was s 27(2), however, his Honour clearly was of the view that all of the limited application provisions and not simply s 27(2) relate to matters of international concern. 

36. Justice Merkel reached the view that disability discrimination was a matter of international concern for the following reasons that are relevant for present purposes:

(a)  Although initially International Conventions and other human rights instruments did not expressly deal with discrimination on the ground of disability there was still a suggestion that these instruments implicitly prohibited disability discrimination (see [38] of Merkel J’s judgment).  Further, more recent human rights instruments have expressly prohibited disability discrimination.  This is reflected in the following observation by the United Nations Committee on Economic, Social and Cultural Rights, in the report of the Economic and Social Council E/C. 12/1994 13/14 December 1994 on the implementation of the International Covenant on Civil and Political Rights as at 14 December 1994:

5. The Covenant does not refer explicitly to persons with disabilities. Nevertheless, the Universal Declaration of Human Rights recognizes that all human beings are born free and equal in dignity and rights and, since the Covenant's provisions apply fully to all members of society, persons with disabilities are clearly entitled to the full range of rights recognized in the Covenant. In addition, in so far as special treatment is necessary, States parties are required to take appropriate measures, to the maximum extent of their available resources, to enable such persons to seek to overcome any disadvantages, in terms of the enjoyment of the rights specified in the Covenant, flowing from their disability. Moreover, the requirement contained in article 2(2) of the Covenant that the rights `enunciated ... will be exercised without discrimination of any kind' based on certain specified grounds `or other status' clearly applies to discrimination on the grounds of disability.

6. The absence of an explicit, disability-related provision in the Covenant can be attributed to the lack of awareness of the importance of addressing this issue explicitly, rather than only by implication, at the time of the drafting of the Covenant over a quarter of a century ago. More recent international human rights instruments have, however, addressed the issue specifically. They include the Convention on the Rights of the Child (art 23); the African Charter on Human and Peoples' Rights (art 18(4)); and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (art 18). Thus it is now very widely accepted that the human rights of persons with disabilities must be protected and promoted through general, as well as specifically designed, laws, policies and programmes."

(b) International concern about disability discrimination is reflected by the passage of the Declaration on the Rights of Disabled Persons 1975 proclaimed by the General Assembly of the United Nations on 9 December 1975.  In particular Clause 10 of the Declaration provides that disabled persons shall be protected ‘against all treatment of a discriminatory, abusive or degrading nature’2. (See [39]-[41] of Merkel J’s judgment)

(c) The promotion of the rights of the disabled internationally by the Declaration of the United Nations General Assembly of an annual "International Day of Disabled Persons" which was celebrated and acknowledged internationally throughout the 1990s (see [42] of Merkel J’s judgment).  The Commissioner also draws the Court’s attention to the fact that by August 2005 (the date of the alleged discrimination) significant steps had been taken towards the development of an overarching treaty on disability.3

(d) The adoption on 20 December 1993 by the General Assembly of the United Nations of the Standard Rules on the Equalisation of Opportunities for Persons with Disabilities (see [42]-[47] of Merkel J’s judgment). The Commissioner in particular draws the Court’s attention to Rule 7 which provides:

States should recognize the principle that persons with disabilities must be empowered to exercise their human rights, particularly in the field of employment. In both rural and urban areas they must have equal opportunities for productive and gainful employment in the labour market.

(e) The amendments of the Treaty Establishing the European Community (opened for signature on 25 March 1957 and entered into force on 1 January 1958), by the Treaty of Amsterdam (which was signed on 2 October 1997 and entered into force on 1 May 1999) which provided for members of the Union to take appropriate action to combat discrimination based on disability (at [48] of the judgment).

(f) The following comment in the explanatory Memorandum to cl 12 of the Disability Discrimination Bill

It is also clear from a number of lesser international instruments that discrimination against people with a disability is a matter of concern to the international community generally. The limited application provisions apply to the extent of that international concern. The Declaration on the Rights of Disabled Persons, The Declarations on the Rights of Mentally Retarded Persons and The Declaration on the Rights of the Child are just some of the instruments which further indicate how discrimination against people with disabilities is a matter of international concern.

On the basis of the above Merkel J concluded (at [53]) that:

…as at 1992, and as at 1998 prohibition of disability discrimination was a matter of international concern

37. Merkel J’s view and his reasoning therefore clearly support a conclusion that all of the limited application provisions, including s 19, relate to a matter of international concern, namely the prohibition of disability discrimination, and therefore by virtue of s 12(8)(e) have effect.  In particular all of the matters to which Merkel J refers, together with the passage of the Convention by the International Labour Organisations, clearly demonstrate that the prohibition of disability discrimination in employment, whether the discrimination is by a State or Federal regulatory body, is a matter of international concern and that as s 19 relates to such an issue it has effect by virtue of s 12(8)(e).

The general principles that govern determination of an application under r 13.10 of the Federal Magistrates Court Rules 2001 (Cth) for a stay or dismissal of a disability discrimination application

38. The Commissioner agrees with the respondent’s submission that the power to summarily dismiss matters under r 13.10 must be exercised sparingly.  The Commissioner, however, submits that when assessing the respondent’s application for summary dismissal the Court should take into account the matters outlined by Federal Magistrate Smith in  Paramasivam v The State of New South Wales (No.2) [2007] FMCA 1033.  His Honour stated:
    

    The legislative test also now requires a predictive assessment of the case which an applicant is likely to be able to present, if he or she were permitted to pursue the matter through the Court's processes to a final hearing. The nature of that predictive assessment must, in my opinion, be understood as allowing a Court to take into account the stage at which the proceeding has reached when the application for interlocutory dismissal is brought, so as to be less demanding as to demonstrated evidentiary support at the commencement of the proceeding. This is because an assessment of "prospects" can vary through the stages of management of a proceeding, and particularly in this Court, as I shall explain below. The test of "reasonable prospect" suggests a value judgment which would take into account the level of investigation and preparation of evidence reasonably expected to have been achieved as the matter progresses. This would allow, for example, at the commencement of a proceeding, a broader latitude in the Court’s assessment of prospects than an assessment made immediately before or during a hearing.

    In this Court, the flexibility and informality of its proceedings which are intended by the legislation and rules setting up the Federal Magistrates' Court, make it particularly important to be cautious at early stages of a proceeding before forming a conclusion that a litigant has "no prospect of success". The need for this caution in an application for summary dismissal was referred to by Lander J in Rana v The University of South Australia [2004] FCA 559; (2004) 136 FCR 344 under the previous rule allowing summary dismissal. However, in my opinion, the points made by his Honour in support of caution remain equally, if not more, relevant to a consideration of the Court's current power of summary dismissal. His Honour said at [75]:

    In my view, because the FMCA Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant's proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim.

39. Applying the above approach to this case it means that when assessing the merits of the applicant’s claim for the purposes of the test set out in r 13.10 the Court should take into account that:
    
    1. the applicant was unrepresented when she filed her application with the Court;
    2. the parties have not filed and have not been directed to file Points of Claim or Points of Defence;
    3. the parties have not yet had the opportunity to issue subpoenas for production pursuant to which they may obtain evidence in support of their cases;
    4. the parties have not yet filed or been directed to file their evidence in relation to the substantive proceedings; and
    5. the parties have not yet had the opportunity to cross-examine witnesses.
40. Further the Commissioner submits that the Court should take into account the fact that whilst an application to a court alleging unlawful discrimination must be factually the same as the complaint before HREOC, the applicant:
    
    1. is not required to frame their complaint to HREOC in terms of pleadings, and
    2. can characterise those facts legally in a different way to the way in which they characterised the facts before HREOC; and
    3. can alleged different facts before the Court than those which were alleged before HREOC, provided, that the new facts are not different in substance from the facts formerly being alleged.4

Appropriate comparator for the purposes of s 5 of the DDA

41. The Commissioner submits that determination of who the appropriate comparator is in this matter for the purposes of s 5 is a factual matter that should be determined on the basis of full submissions following evidence and should not be an issue to be resolved at a summary dismissal stage.
42. Further, the Commissioner submits, with respect, that the respondent has erred when identifying the comparator for these proceedings.
43. The respondent has submitted (at 47]) that, in this case, when determining whether the applicant has been treated less favourably for the purposes of s 5(1) the question for the Court is ‘whether a person with the applicant’s qualifications and experiences, and without her behavioural manifestation of confessing to violent crimes (among other things), and with an assessment such as that provided by Dr Grant’s report would have had their licence suspended initially and/or would have continued to have their licence suspended’.  The respondent submits that the answer to this question would be yes.  The Commissioner submits that the Court would be erring if it took into account the assessment provided by Dr Grant in so far as it expresses a view about the applicant having a Delusional Disorder and/or having had a florid psychotic episode as these are the applicant’s imputed disabilities.
44. The Commissioner agrees with the respondent’s submission that the principles governing identification of a comparator for the purposes of s 5 are those identified by the High Court in Purvis v New South Wales (Department of Education and Training) (2003) 202 ALR 133. In that case Gummow, Hayne and Heydon JJ in their judgment stated (at [223]-[225]):
    

    In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled…

    The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person by the person referred to in the provision as the “discriminator”. It would be artificial to exclude (and there is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with that person's disability. There may be cases in which identifying the circumstances of intended treatment is not easy. But where it is alleged that a disabled person has been treated disadvantageously, those difficulties do not intrude. All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or were not materially different.5 (emphasis added)   

45. The test formulated by Justices Gummow, Hayne and Heydon requires a Court to:
    
    1. identify the objective features which surround the actual or intended treatment of the disabled person by the discriminator; and
    2. then compare the treatment of the applicant with the treatment that would have been given to a person without the applicant’s disability in circumstances that were the same or were not materially different. 

    It is ultimately a finding of fact for the Court to make as to what the objective features are and what the circumstances are that are ‘the same or not materially different’.  Further, whilst circumstances connected with a person’s disability, such as the behavioural manifestations of the disability, may be taken into account when conducting the comparison, what clearly cannot be taken into account is the applicant’s disability or imputed disability. 

46. The Commissioner therefore submits that when applying those principles to this case when conducting the comparison required by s 5(1) the Court would not be permitted to take into account the opinions expressed by Dr Grant about whether the applicant does or does not have a Delusional Disorder or florid psychotic illness or any opinions that flow from that conclusion because to do so would be to conduct the comparison with a person with the applicant’s disability which is contrary to the wording of s 5(1) and the principles identified in Purvis. 

Mimi Isabel Barbaro

Solicitor for the Acting Disability Discrimination Commissioner

18 February 2008

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