Amicus Submission: Wang v ACT Health

Human Rights Obligations

54.         The proposition that an assessment of reasonableness should encompass a consideration of human rights compliance is supported by New Zealand case law. In Northern Regional Health Authority v Human Rights Commission,[35] a regional health authority limited the number of doctors who were eligible for certain benefits, to discourage the over-supply of doctors in the region. Eligibility was limited to practitioners holding New Zealand undergraduate medical qualifications. The New Zealand High Court held that this policy was unlawful as it indirectly discriminated on the ground of national origin., Justice Cartwright considered both the Bill of Rights Act 1990 (comparable to the ACT HR Act) and the Human Rights Act 1993 (the New Zealand equivalence to the ACT Discrimination Act). Justice Cartwright stated:

‘Any analysis of policy which may directly or indirectly discriminate must be done in the light of the international principles and experience as stated in the relevant conventions and covenants and, where appropriate, assistance may be drawn from overseas cases, whether directed at domestic issues or emanating from statements of international committees or colloquia. Any such assistance as can be derived is just that: assistance. None of the principles or statements are binding on New Zealand Courts. They do, however, paint a backdrop against which New Zealand’s obligations and compliance can be placed.’[36]

55.         Tellingly, the Court considered the Australian case of Australian Medical Council v Wilson,[37] which involved similar questions to this matter. That is, whether a policy that required a graduate from an Indian university to pass an additional examination to practice was unlawful indirect discrimination under the Commonwealth Racial Discrimination Act 1975 (‘RDA’). Justice Cartwright distinguished the facts of Wilson from those in Northern Regional Health on the basis that the Policy in Wilson concerned a merit based selection process for international students (the top 200 examination candidates would be registered). In contrast, the New Zealand Court was considering a policy that would not grant relevant registration to medical graduates obtained from a university outside of New Zealand, regardless of merit.

56.         Justice Cartwright further noted the construction of s 9 of the RDA with the New Zealand provisions in question. The Court in Wilson found the only way the plaintiff could make out their case was to show that the quota requirement had a disproportionate adverse impact on overseas trained doctors of Indian national origin.

‘Regardless of the intention behind the act or of the body imposing a requirement or condition on a person or group of persons, if the effect is discriminatory in terms of the definition in the Human Rights Act, then the conduct, practice, condition or requirement will be unlawful. Unlike s 9(1A)(c) which requires that a comparison be made between the impact of a requirement on groups of the same race, colour, descent or national or ethnic origin, there is no attempt made in s 65 to indicate that the comparison must be made on that basis.’[38]

57.         Section 8 of the ACT Discrimination Act similarly requires no comparison of treatment of individual within the same group, and it might therefore be said that the facts of Northern Region Health Authority are closer to those in the present matter of Wang, compared to those in Wilson. Certainly, in the Commissioner’s view, this New Zealand case is authority for the proposition that human rights considerations are relevant in considering the issue of reasonableness.

58.         Similarly, in case of Eweida and Others v United Kingdom,[39], the European Court of Human Rights considered a number of claims of direct and indirect religious discrimination involving private and public employers. The Court stated that whether a Public Authority had complied with its human rights obligations was a relevant consideration:

‘The second applicant’s employer was a public authority, and the Court must determine whether the interference was necessary in a democratic society in pursuit of one of the aims set out in Article 9.’[40]

59.         The Supreme Court of Canada in Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) stated (in the context of corporal punishment of children) that reasonableness included a consideration of human rights obligations:

‘[F]urther precision on what is reasonable under the circumstances may be derived from [Canada’s] international treaty obligations.’[41]

60.         It might be said that whether a respondent has acted lawfully is implicit in a consideration of whether it has acted reasonably for the purposes of discrimination law, in deciding to treat a complainant in a way that is prima face discriminatory. Such a consideration may arguably be encompassed in the factors listed in s 8(3) of the ACT Discrimination Act.  However, in the Australian context, the Victorian Court of Appeal case some doubt on the ability for Tribunals to consider whether Public Authorities had complied with their obligations under human rights legislation in Director of Housing v Sudi.[42] The Court (Warren CJ, Maxwell P and Weinberg JA) unanimously found that in that particular matter, the Victorian Civil and Administrative Tribunal could not determine if a Public Authority had breached its obligations under s 38 of the Victorian Charter of Rights and Responsibilities Act 2006 to act and make decisions consistently with human rights. The same obligation exists under s 40B of the ACT Human Rights Act 2004.

It is unlawful for a public authority—

(a)          to act in a way that is incompatible with a human right; or

(b)          in making a decision, to fail to give proper consideration to a relevant human right.

61.         Section 40C(2) of the HR Act further provides that a person may ‘rely on the person’s rights under this Act in other legal proceedings.’

62.         However, the decision in Sudi can be contrasted with these proceedings. The Victorian Court of Appeal reached its decision on the basis that the proceedings before the Tribunal represented a collateral judicial review.

‘For reasons already outlined, VCAT did not, apart from the Charter, have power to review the validity of the Director’s decisions on the ground of unlawfulness. Accordingly, s 39(1) does not operate to confer jurisdiction on VCAT to grant relief on ‘a ground of unlawfulness arising because of this Charter’[43]

63.         The Victorian courts have provided further clarification about when a consideration will be collateral, and the corresponding ability for tribunals to consider human rights compliance. These decisions have turned on whether the human rights question before VCAT is collateral to the proceedings. For example, in considering whether Victorian police had breached its obligations under both privacy and human rights legislation in retaining images of a complainant taken at a rally, Steele SM stated:

‘[T]he Tribunal would not be venturing into the realm of judicial review in considering whether the Respondent’s retention of the images of the Complainant was unlawful under the Charter. [. . .] In Sudi, the Director’s decision to bring the proceeding was not a matter which the Tribunal could review because the decision was collateral to the proceeding itself. In the present case, the Respondent’s decision to retain the images of the Complainant is being directly considered by the Tribunal. The lawfulness of that retention is under review because it is said to be ‘unlawful’ under [the Information Privacy Act].’[44]

64.         Similarly in the discrimination matter of Slattery v Manningham,[45] the VCAT reached similar conclusions, and formally found the Public Authority (Manningham Council) had breached its Charter obligations. In that case, a Council excluded a resident from visiting its facilities on the basis of his disabilities. As well as finding a breach of the Victorian Equal Opportunity Act, Senior Member Nihill considered that maintaining the ban had limited the applicant’s human rights, including the right to equality. The limitations were found not to reasonable and could not be demonstrably justified, and therefore the Council was found to have breached its s38(1) obligations. [46]

65.         This line of authority was further confirmed by the Victorian Supreme Court in Goode v Common Equity Housing.[47] In that case, Justice Bell found the VCAT had erred in a discrimination matter, by failing to take into account the complainant’s charter arguments because the discrimination complaint had not been made out. Justice Bell found that this constituted an error:

‘It follows that, in respect of an act or decision of a public authority, the tribunal has jurisdiction under s 39(1) of the Charter to grant such relief or remedy on a ground of Charter unlawfulness as may be sought in the tribunal on a ground of non-Charter unlawfulness. The tribunal does not lose that jurisdiction because, when application is actually made seeking relief or remedy on a ground of non-Charter unlawfulness, that ground is not determined or rejected. As the President decided in Sudi, where a person is able to seek relief or remedy ‘independently of the Charter’, it may be sought on the ‘ground of unlawfulness … arising because of the Charter’[48]

66.         It should be noted that s.39 of the Charter is expressed in different terms to s.40B of the ACT Human Rights Act. In particular, Justice Bell described s 39(1) of the Charter as an ‘enabling provision’. It states:

(1)    If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

67.         In contrast, the equivalent provisions in the ACT HR Act are sections 40C (2)(b) and 40C(5)

40C            Legal proceedings in relation to public authority actions

(1)          This section applies if a person—

(a)          claims that a public authority has acted in contravention of section 40B; and

(b)          alleges that the person is or would be a victim of the contravention.

(2)          The person may—

(a)          start a proceeding in the Supreme Court against the public authority; or

(b)          rely on the person’s rights under this Act in other legal proceedings.

(5)              This section does not affect—

(a)          a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or

(b)          a right a person has to damages (apart from this section).

68.         Whether these, read together, have the same ‘enabling’ ability of s 39 of the Charter is unsettled. Indeed, such a question is outside the scope of this submission. Nonetheless, the Goode decision represents further confirmation that ACAT can, if not must, consider the actions of Public Authorities in discharging their human rights obligations.[49]

69.         Certainly, the ability of lower courts and ACAT to consider human rights obligations was confirmed by the ACT Supreme Court in LM v Childrens Court of the Australian Capital Territory and the Director of Public Prosecutions for the ACT.[50] This reasoning was further adopted by ACAT in Commission for Social Housing in the ACT v Crockford and Anor.[51]

70.         The ACAT’s jurisdiction to hear discrimination complaints, as noted by the Tribunal in its Interim Decision, is conferred explicitly under the Human Rights Commission Act 2005. Based on the reasoning in Sudi, and subsequent Victorian jurisprudence, coupled with that of other human rights jurisdictions, ACAT should consider if ACT Health has complied with its Public Authority obligations in its treatment of Dr Wang as part of its consideration of indirect discrimination.

Other Factors

71.         As the Tribunal has noted, this matter involves questions of public policy. In that regard, some further guidance on assessing reasonableness may be found in the Economic, Social and Cultural Rights jurisprudence developed by the South African and German Courts. Several of these rights are protected in the domestic law of those countries, including the right to health, work, education and housing, which inherently involve questions of Government policy and budgeting. [52]

72.         Generally, the approach of such courts has been to undertake a proportionality analysis (as found in s 28 of the HR Act), which includes a consideration of the purpose of the policy and inquires into whether it is intended to achieve a legitimate aim, are there less restrictive options and are their safeguards built in.

73.         There is no requirement for the court to make its own determination as to what might be a reasonable policy in the circumstances. Remedies can include sending the policy back to the government for redevelopment in accordance with the requisite human rights guarantees. This is consistent with Australian case law, for example, in relation to the Federal Sex Discrimination Act, it has found that the test of reasonableness is not whether the decision was correct or could have been ‘better’.[53]

74.         For example, in Khosa v Minister of Social Development,[54] the South African Constitutional Court examined whether the exclusion of permanent residents from social benefits was consistent with the right to social security and the rights to equality and non-discrimination.

75.         In essence, the Court’s task involved examining the government’s reasons for restricting benefits to South African citizens and whether they met the standard of reasonableness required for assessing limitations on human rights.  The court was prepared to accept that the legislation would have met the standard required by minimum ‘rationality review’.[55] But it said that the search for reasonableness demanded more from the government than simply the search for rationality and non-arbitrariness.[56]

76.         In order to test the reasonableness of the policy, the court considered (i) the financial reasons for excluding non-citizens; and (ii) the government’s objective of creating self-sufficiency in permanent residents. The majority of the court held that these were rational but insufficient justifications for differentiating between permanent residents and citizens because:

§  ‘like citizens, [permanent residents] have made South Africa their home’  and ‘they are much in the same position as citizens’; and

§  the inclusion of permanent residents in the social security regime would reflect ‘an increase of less than 2 percent on the present cost of social grants’.[57]

77.         Similarly, in the German case of Hartz IV,[58] unemployed individuals and their dependents challenged the constitutionality of legislative changes reducing the level of basic subsistence grants. They argued, because the benefit amounts did not provide a requisite minimum of income to live, they were inconsistent with the dignity clause in article 1 of the German Basic Law.

78.         The Federal Constitutional Court (FCC) agreed but considered that, in accordance with separation of powers principles, the court itself could not establish the level of subsistence benefits in specific quantitative terms. Instead, the FCC examined of the method of calculation used by the government to set these amounts.

79.         The FCC held that the government’s justification for determining benefit amounts must be based on a sound empirical basis and coherent methods, rather than random estimates. It found that the government’s calculations did not meet the requisite standard of justification required by a reasonableness review.  The FCC accordingly sent the matter back to the government for recalibration of the benefits, using a constitutionally adequate quantification procedure.

80.         This is consistent with the suggestion by Australian and courts in other human rights jurisdictions, that statistics will be a relevant to a consideration of the reasonableness of indirect discrimination.[59]

81.         While public policy issues pose particular challenges for courts and tribunals, these cases from South Africa and Germany show that they are not unsurmountable. Their reasoning and remedies are also consistent with separation of powers principles.

Application of the Islam Methodology: Step 2

Temporarily set aside any available meaning that is not human rights-compatible under s 30.

82.         To perhaps simplify these questions, in this context, arguably there appears four main avenues of interpreting the phrase reasonable in s 8,

a.      One that does not encompass a consideration of additional factors than those listed in s 8 (3), (and so does not include a consideration of the lawfulness of ACT Health’s conduct as a public authority), and places the obligation on the complainant, Dr Wang, to prove reasonableness.  (But may encompass other factors not canvassed here, but are not drawn from human rights analysis).

b.      An interpretation that includes a consideration of additional factors than those listed in s 8 (3), including the lawfulness of ACT Health’s conduct as a public authority, but places the onus on the complainant to show the condition was ‘unreasonable’.

c.       An interpretation that includes a consideration of additional factors than those listed in s 8 (3), including the lawfulness of ACT Health’s conduct as a public authority,  but places the onus on the respondent, ACT Health, to show the condition was ‘reasonable’.

d.      An interpretation that includes a consideration of additional factors than those listed in s 8 (3), including the lawfulness of ACT Health’s conduct as a public authority,  but places no onus on either party to demonstrate either reasonableness or unreasonableness.

83.         The Commissioner accepts that this is a very simple statement of the relevant factors, and the High Court in Waters contemplated a range of other considerations that might also be relevant. Many of these might arguably be adopted by the list in s 8(3), but are also not further considered in this submission to allow a concentration of the specific considerations required by an application of the Human Rights Act.

84.         Based on the above jurisprudence from human rights jurisdictions, interpretation (a) is not compatible with human rights.

85.         On the other hand, interpretations (b), (c) and (d) are all arguably compatible. There does appear some uncertainty over whether the Complainant or Respondent in a claim of indirect discrimination bear the onus of showing the alleged act was reasonable/unreasonable, but arguably the more human rights compliant interpretation is (c).

Application of the Islam Methodology: Step 3

Examine the remaining available meanings (that is, those that are human rights-compatible).

Step 3A: If there are one or more available meanings that are human rights-compatible, then that meaning, or the one of those meanings required by s 139 of the Legislation Act to be preferred, is adopted.

86.         It appears there is only one, remaining human rights compatible meaning (described as interpretation C above), and that is that s.8(3) in considering reasonableness, the Tribunal should:

‘Consider additional factors than those listed in s 8 (3), including the lawfulness of ACT Health’s conduct as a public authority, and the onus is on the respondent, ACT Health, to show the condition was ‘reasonable’.

Step 3B: If there are no available meanings left (that is, there were no available meanings that were also human rights-compatible), re-instate the non-compatible available meanings set aside at Step 2.

Step 4: Undertake an inquiry under s 28 of the HR Act into whether any of those re-instated available meanings can be justified.

87.         Section 28 allows human rights to be limited provided such limitation is demonstrably justified in a free and democratic society. In determining what this means, relevant factors include under subsection (2):

  • the nature of the right affected;
  • the importance of the purpose of the limitation;
  • the nature and extent of the limitation;
  • relationship between the limitation and its purpose;
  • any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

88.         As such, even if the interpretation of s 8 (read in light of s 70) of the Discrimination Act is not prima facie compatible, the above factors seem entirely consistent with those in s 8(3) of the Discrimination Act, coupled with the additional considerations of the lawfulness of ACT Health’s conduct, based on the relevant human rights jurisprudence.

89.         In summary, in assessing reasonableness under s 8 of the Discrimination Act, the following are relevant considerations:

  • Arguably the onus is on the respondent to show conduct is reasonable, or at least, this is to be judged from a neutral basis;
  • The test is an objective one;
  • Reasonableness is a question of fact determined by taking into account all relevant circumstances;
  • These include the non-exhaustive factors in s 8(3);
  • The lawfulness of the conduct of the respondent must be considered (either as part of considering those factors listed in s 8(3), or as another relevant matter);
  • the relevant factors will include the financial and statistical data available and considered by the Respondent in developing the requirement or condition, but the Tribunal need not develop its own ‘better’ Policy;
  • The test is not whether there could have been a better decision;
  • It is not however enough to show a decision had a logical or understandable basis.